J-S20041-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

WARREN HAND

                                                     No. 2579 EDA 2016


                    Appeal from the Order July 13, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0012187-2015


BEFORE: BOWES, J., OTT, J. AND FORD ELLIOTT, P.J.E.

DISSENTING MEMORANDUM BY BOWES, J.:             FILED NOVEMBER 27, 2017

      I would reverse the order granting suppression. I would hold that Officer

James Crown was permitted to conduct a warrantless search of the closet in

order to investigate potential danger to third parties as an application of

exigent circumstances, resulting in a valid seizure of the firearm under the

plain view doctrine. Therefore, I respectfully submit this dissent.

      The facts are relatively straightforward.      On June 19, 2015, at

approximately 12:10 a.m., Philadelphia Police Officer James Crown and his

partner, Officer Donald Vandemay, were directed to respond to a particular

residence due to a report of a man with a gun. When they arrived, the front

door was open, but was immediately shut by an unknown person when the

officers exited their vehicle.   Officer Crown heard males yelling inside the
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home and his attention was drawn to a broken window, with the drapes

billowing.    He brushed the curtain aside and observed two men, Appellee

Warren Hand and Nasir Lewis, standing by a bedroom door. Appellee had a

firearm in his hand.      Officer Crown announced his presence, and Appellee

retreated into a bedroom and shut the door. Lewis was ordered outside, and

he complied.

        Officer Crown opened the bedroom door, removed Appellee, who no

longer possessed a firearm, and turned him over to his partner. Officer Crown

then reentered the home, and searched a closet in the bedroom from which

Appellee was apprehended. He observed a firearm, which he seized. The trial

court    granted   Appellee’s   motion    to   suppress   the   firearm,   and   the

Commonwealth appealed.

        The learned Majority, like the trial court, limits its analysis of the closet

search to Maryland v. Buie, 494 U.S. 325 (1990), wherein the United States

Supreme Court established when police officers may perform a “protective

sweep” as a search incident to an arrest. Therein, police officers were serving

an arrest warrant for Buie. Once inside Buie’s home, an officer called down

basement steps, and Buie responded. Buie complied with the order to come

upstairs, where he was arrested, searched, and handcuffed, thereby

completing the warrant’s purpose. Id. at 328. Nevertheless, another officer

“entered the basement ‘in case there was someone else’ down there.” Id. at

328 (citation omitted). He seized evidence and the trial court denied Buie’s

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motion to suppress. The Court of Appeals of Maryland reversed, holding that

the officers were required to establish probable cause of a “serious and

demonstrable potentiality for danger” to justify the warrantless search. Id.

at 329 (citation omitted).

       The High Court reversed. First, the Court noted that the officers would

have been permitted, prior to arresting Buie, to enter the basement. Once

apprehended, however, the reason for the entry into the home was complete

and the arrest warrant could not justify a further search of the home. Id. at

333.   The Court nevertheless concluded that the officers were not per se

barred from searching the basement:

       We also hold that as an incident to the arrest the officers could,
       as a precautionary matter and without probable cause or
       reasonable suspicion, look in closets and other spaces
       immediately adjoining the place of arrest from which an attack
       could be immediately launched. Beyond that, however, we hold
       that there must be articulable facts which, taken together with the
       rational inferences from those facts, would warrant a reasonably
       prudent officer in believing that the area to be swept harbors an
       individual posing a danger to those on the arrest scene.

Id. at 1098. Thus, the warrantless search in Buie was reasonable due to the

interest in officer safety, and permitted a search of the immediate area

surrounding the arrestee with no further justification whatsoever. “We are

quite sure, however, that the arresting officers are permitted in such

circumstances to take reasonable steps to ensure their safety after, and while

making, the arrest. That interest is sufficient to outweigh the intrusion such




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procedures may entail.”      Id. at 334.     The Court remanded for further

proceedings.

      However, the Fourth Amendment analysis alters with respect to spaces

not immediately adjoining the place of arrest, and, concomitantly, changes

when the officer is outside of the home. At this juncture, I now address the

trial court’s application of Buie, which is adopted by the Majority.

      Here, the re-entry of the house and the search of the bedroom
      clearly did not fit within the “first level” described above because
      [Hand] and Lewis were in custody outside the property. They no
      longer posed a threat to the officers and others present at the
      time and the bedroom and the closet were not locations from
      which [Hand] or Lewis could launch an attack or obtain a weapon
      given that neither man was in close proximity to those locations.

      Under the “second” level, Officer Crown was not justified in re-
      entering the residence and walking into the bedroom because he
      did not articulate specific facts to justify a reasonable belief that
      someone was in the bedroom who posed a danger to the police or
      others. According to Officer Crown, he re-entered the house and
      the bedroom “to check the bedroom to secure it for any other
      people that are in there.” The officer, however, had no basis to do
      so because when he moved the curtain and looked into the
      residence, he only saw [Hand] and Lewis enter the bedroom and
      only [Hand] and Lewis exited the bedroom when he ordered those
      inside to exit it. There was no evidence presented indicating that
      anyone else was inside the bedroom or that, if there was, that
      person or persons posed a threat to the police or others. Thus,
      because both [Hand] and Lewis were in custody outside the
      residence and there was no evidence presented indicating that
      someone who posed a threat may have been in the bedroom,
      there was no remaining exigency that could justify the general
      exploratory search of the bedroom.

Trial Court Opinion, 11/6/16, at 2 (citation to transcript omitted).




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       I agree that re-entry into the home after Appellee was arrested is

difficult to justify under a pure “officer safety” rationale as expressed in Buie.

Once Officer Crown escorted Appellee outside of the home, he could have

refrained from reentering the bedroom area. 1

       However, while Buie tells us that an officer may search the closet of the

area near the arrestee for safety as a matter of Fourth Amendment

sufficiency, it does not follow that an officer safety rationale is the only

condition justifying this search.        The Commonwealth argued that exigent

circumstances justified the reentry. “Officer Crown checked the bedroom to

ensure that no one else who might pose a threat or require medical attention

was in that room.”          Commonwealth’s brief at 12.2      I agree with the


____________________________________________


1 Buie would permit the challenged search had Officer Crown arrested
Appellee in the bedroom and immediately searched the closet. The opinion
explicitly referenced nearby closets as an area falling within the protective
sweep. “We also hold that as an incident to the arrest the officers could, as a
precautionary matter and without probable cause or reasonable suspicion,
look in closets and other spaces immediately adjoining the place of
arrest from which an attack could be immediately launched.” Maryland v.
Buie, 494 U.S. 325, 334 (1990) (emphasis added).

2 The Commonwealth’s argument interchangeably suggests that Officer Crown
was permitted to enter the closet to search for other perpetrators, i.e.
investigation of an ongoing crime, and search for persons that might require
aid, i.e. potential victims trapped in the home. The exigent circumstances
rationale encompasses elements of both in this situation, where the
responding authorities do not know if other suspects or potential victims were
on-site. Officer Crown’s testimony alluded to the same:




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Commonwealth, and would hold that the trial court misapplied the law and

reverse.

       The emergency aid doctrine is summarized as follows:

             “[W]arrants are generally required to search a person's
       home or his person unless ‘the exigencies of the situation’ make
       the needs of law enforcement so compelling that the warrantless
       search   is    objectively  reasonable    under     the    Fourth
       Amendment.” Mincey v. Arizona, 437 U.S. 385, 393-394, 98
       S.Ct. 2408, 57 L.Ed.2d 290 (1978).

       One exigency obviating the requirement of a warrant is the need
       to assist persons who are seriously injured or threatened with
       such injury. “‘The need to protect or preserve life or avoid serious
       injury is justification for what would be otherwise illegal absent an
       exigency or emergency.’” Id., at 392, 98 S.Ct. 2408
       (quoting Wayne v. United States, 318 F.2d 205, 212
       (C.A.D.C.1963) (Burger, J.)); see also Tyler, supra, at 509, 98
       S.Ct. 1942. Accordingly, law enforcement officers may enter a
       home without a warrant to render emergency assistance to an
       injured occupant or to protect an occupant from imminent
       injury. Mincey, supra, at 392, 98 S.Ct. 2408; see also Georgia
       v. Randolph, ante, at 118, 126 S.Ct. 1515, 1525, 164 L.Ed.2d
       208 (“[I]t would be silly to suggest that the police would commit
       a tort by entering ... to determine whether violence (or threat of
       violence) has just occurred or is about to (or soon will) occur”).



____________________________________________


       . . . . So once Lewis comes out, I go in. I yell at the door two or
       three times for him to come out. I obviously didn't know his name
       at the time. I yell and Hand comes out. I take him out front. I give
       him to my partner. At this time Highway Patrol had showed up.
       With the yelling and screaming, they had given us an assist. So a
       couple of units showed up. I hand this defendant off to Officer
       Vandermay. I go back in to check the bedroom to secure it
       for any other people that are in there.

N.T., 5/26/16, at 15-16 (emphasis added).


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Brigham City, Utah v. Stuart, 547 U.S. 398. 403-04 (2006) (alterations in

original).

      Stuart and Commonwealth v. Potts, 73 A.3d 1275 (Pa.Super. 2013),

which applied the emergency aid doctrine, are instructive. In Stuart, four

police officers responded to a home at approximately 3:00 a.m. due to a

complaint of a loud party. The officers heard shouting from inside, and went

down the driveway to investigate. Through a screen door, they saw multiple

adults trying to subdue a juvenile male. The juvenile broke free and struck

one of the adults in the face, causing the victim to spit blood in a nearby sink.

At this point, officers entered the home. The defendants sought to suppress

all evidence obtained following entry, arguing that the warrantless search was

unreasonable.   The Supreme Court disagreed, finding that the entry “was

plainly reasonable under the circumstances.”

      In these circumstances, the officers had an objectively reasonable
      basis for believing both that the injured adult might need help and
      that the violence in the kitchen was just beginning. Nothing in the
      Fourth Amendment required them to wait until another blow
      rendered someone “unconscious” or “semi-conscious” or worse
      before entering. The role of a peace officer includes preventing
      violence and restoring order, not simply rendering first aid to
      casualties; an officer is not like a boxing (or hockey) referee,
      poised to stop a bout only if it becomes too one-sided.

Id. at 406 (citations omitted).

      In Potts, two police officers were dispatched by 911 to a home for

reported domestic dispute. Upon arrival, they heard screaming and yelling

from the second floor apartment and began knocking on the door. The yelling

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stopped, and after approximately thirty seconds Potts’s fiancée, Ms. Young,

opened the door. She was crying and her clothes were disheveled. Potts ran

into a bedroom. At that point, the officers entered the home and began to

ask Ms. Young questions. Shortly thereafter, Potts exited the bedroom. One

of the officers entered the bedroom to conduct a protective sweep and

observed marijuana in plain view.

      Therefore, two searches were at issue: The initial entry into the home,

and the search of the bedroom. With respect to the initial search, we held

that the emergency aid doctrine applied, due to the fact that the officers were

responding to a 911 call for a domestic dispute, heard screaming, and the

appearance of Ms. Young.         We concluded that “the totality of the

circumstances justified the police officers' reasonable belief that they needed

to enter Appellant's apartment to ensure that Ms. Young was not in danger or

in need of immediate aid.” Id. at 1281 (citations omitted). With respect to

the second search of the bedroom, we applied Buie and determined that the

officers possessed reasonable suspicion that the bedroom harbored an

individual posing a danger, as Potts had not yet been arrested at the time of

the sweep.

      The Majority distinguishes Potts by pointing out that Potts and Ms.

Young remained inside the residence when the bedroom sweep occurred.

Respectfully, I believe that distinction is of no moment, as the emergency aid

doctrine, not a protective sweep as an incident to an arrest, justified the

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search herein. Potts’s application of Buie to the bedroom search, as opposed

to emergency aid principles, is unsurprising as Potts involved investigation of

a domestic disturbance, corroborated when Ms. Young answered the door and

appeared to be in distress. Therefore, the officers in Potts had no reason to

suspect any other type of ongoing crime; moreover, they were speaking to

the probable victim.

       In contrast, we must consider the information known to Officer Crown

when he investigated the instant report.         The officers arrived shortly after

midnight, the front door was open, and an actor slammed the door shut as

the officer exited his vehicle. A front window of the home was broken, with

the drapes blowing out the window. Officer Crown heard arguing from inside

and observed two males, Appellee and Lewis, with Appellee holding a gun.

These observations corroborated the report of an ongoing crime, and the

situation presented itself as a potential armed home invasion involving an

unknown number of perpetrators. Moreover, a citizen and/or another culprit

could have been hiding in the closet or other area of the structure.3 To say,

as the Majority does, that the search was unreasonable solely because two



____________________________________________


3 The Majority accepts that the limited search occasioned by brushing the
curtain aside was justifiable to determine if anyone inside was in need of aid,
but does not explain why the same logic does not extend to the search of the
closet. The Majority apparently relies on the ex post knowledge that this was
not, in fact, a home invasion as opposed to viewing the objective
reasonableness of the police action at the time.

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men were already in custody outside of the home ignores the fact that the

officers could not know that Appellee and Lewis were the only persons on site,

nor could they be expected to know that Appellee was apparently staying at

the residence and therefore had a reasonable expectation of privacy.

     Under the facts known to the police officers at the time, I would find

that there was a compelling government interest in searching for other

occupants or perpetrators, thereby permitting the warrantless search even in

absence of reasonable suspicion.      “It does not meet the needs of law

enforcement or the demands of public safety to require officers to walk away

from a situation like the one they encountered here.” Michigan v. Fisher,

558 U.S. 45, 49 (2009) (per curiam); Potts, supra (finding that totality of

the circumstances justified entry to ensure that occupant was not in danger).

     Finally, I note that the Majority declares its belief that Officer Crown’s

search was not for safety reasons: “The more reasonable inference is that the

officer entered the bedroom to search for the weapon he had seen in Hand’s

possession.”   Majority memorandum at 8.     Putting aside the fact that this

statement is supported by nothing except conjecture, its suggestion that the

subjective motivation of Officer Crown is relevant to the lawfulness of the

search is incorrect. Stuart, supra, repeated the general proposition that the

subjective motivation of an officer is irrelevant to the reasonableness of a

search, and made plain that subjective intent remains irrelevant in the

emergency aid context: “It therefore does not matter here-even if their

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subjective motives could be so neatly unraveled-whether the officers entered

the kitchen to arrest respondents and gather evidence against them or to

assist the injured and prevent further violence.”   Stuart, supra at 405.

Therefore, for the foregoing reasons, I find that the search was reasonable

and therefore respectfully dissent.




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