J-A18019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DONALD JOHN BRILL

                        Appellant                   No. 1956 MDA 2013


         Appeal from the Judgment of Sentence of October 3, 2013
            In the Court of Common Pleas of Lancaster County
            Criminal Division at No.: CP-36-CR-0002696-2012


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY WECHT, J.:                    FILED MAY 15, 2015

      Today’s learned Majority holds that Officer        Daniel   Nipper   was

permitted to direct Eugene Nolt to enter Donald Brill’s home through a

window, and, more importantly, without a warrant, pursuant to the

immediate aid exception to the warrant requirements of the Fourth

Amendment to the United States Constitution and Article 1, Section 8 of the

Pennsylvania Constitution. Thereafter, the Majority concludes that some of

the incriminating evidence that was observed by the police once inside Brill’s

home was retrievable pursuant to the plain view doctrine. I disagree with

the Majority’s application of the immediate aid exception, and would hold

that the entry into Brill’s home was unconstitutional from the moment that

Mr. Nolt climbed through Brill’s window. Hence, I respectfully dissent.
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       On February 10, 2012, Officer Nipper, a police officer with the East

Earl Township1 Police Department, and others entered Brill’s home without a

warrant, and seized, inter alia, potted marijuana plants and loose marijuana

in glass jars.     The police later performed two additional searches of the

home upon the consent of both Brill and his wife. Those searches produced

additional marijuana (stored in baggies), as well as marijuana-cultivating

equipment.     As a result of the searches, Brill was charged with one count

each of manufacturing a controlled substance, possession of a controlled

substance, and possession of drug paraphernalia.2

       Prior to trial, Brill filed a motion seeking to suppress the marijuana and

the paraphernalia. On May 10, 2013, the trial court held a hearing on the

motion. The following represents a summary of the evidence and testimony

produced at that hearing.

       On February 10, 2012, Officer Nipper was dispatched by radio to assist

on a call for an ambulance at Brill’s residence, 1081 Weaverland Road, East

Earl Township.      Officer Nipper arrived at the residence at approximately

10:25 a.m., and located Sandra Baumer.           Ms. Baumer informed Officer

Nipper that she was concerned about the well-being of her sister, Carol Brill

(Brill’s wife), who had been suffering from fainting spells in the prior days


____________________________________________


1
       East Earl Township is located in Lancaster County, Pennsylvania.
2
       35 P.S. §§ 780-113(a)(30), (16), and (32), respectively.




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and weeks. Ms. Baumer reported that, although her sister’s car was parked

at the house, Ms. Brill did not respond to Ms. Baumer’s telephone calls or to

knocks on the door at the Brill residence. Officer Nipper also knocked on the

door in an attempt to contact Ms. Brill, to no avail.

      Ms. Baumer told Officer Nipper that a window at the rear of the house

was unlocked. Before Officer Nipper could take any further action, Mr. Nolt,

who is a trained volunteer firefighter and also Brill’s neighbor, arrived at the

Brill residence. Noting that Mr. Nolt was smaller in size, Officer Nipper asked

Mr. Nolt to enter the residence through the unlocked window, and to open

the door once inside so that Officer Nipper could commence a search for Ms.

Brill. Mr. Nolt obliged, entering the residence through the window, and then

opening the front door. Officer Nipper, as well as two EMTs who had arrived

at the scene, then proceeded into the residence.

      Once inside, Officer Nipper, Mr. Nolt, the two EMTs, and Ms. Baumer

commenced a search of the home for Ms. Brill.           Officer Nipper repeatedly

called out for Ms. Brill, but received no response. During his search, Officer

Nipper noticed a closet in Brill’s bedroom that was closed and blocked with a

chair. Officer Nipper opened the closet and, on a shelf therein, found two

glass jars filled with loose marijuana.      Officer Nipper also found rolling




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papers,     a   cigarette-rolling      machine,    and   other   marijuana-related

paraphernalia in the bedroom.3

       Officer Nipper continued his search for Ms. Brill on both the main floor

and the second floor of the residence, with no success. While Officer Nipper

was searching those areas, Mr. Nolt looked for Ms. Brill in the basement.

Mr. Nolt did not find Ms. Brill there, but told Officer Nipper that there was

“something down there that [he] needed to see.”              Notes of Testimony,

5/10/2013, at 7-8.          Based upon Mr. Nolt’s comment, Officer Nipper

proceeded to the basement. In the basement, Officer Nipper failed to locate

Ms. Brill, but he did find three potted marijuana plants hidden behind a

makeshift curtain under the stairs.              Officer Nipper seized the jarred

marijuana, the potted plants, and the paraphernalia, sealed the residence,

left a business card containing his contact information, and departed.

       A short time later, having found the business card, Ms. Brill contacted

Officer Nipper.4 Ms. Brill then went to the police station and met with the

officer. She admitted to Officer Nipper that Brill grows marijuana inside the

home, and that he has done so for approximately two years.             After initial

discussions, Ms. Brill and Officer Nipper drove to the Brill residence. There,
____________________________________________


3
     Officer Nipper did not specify the items among those he found which
he considered to be marijuana-related paraphernalia.
4
      The record does not reveal Ms. Brill’s whereabouts during the initial
search.




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after Officer Nipper explained the terms of the consent-to-search form,5 Ms.

Brill signed the form.

       When Officer Nipper entered the home with Ms. Brill, he asked her to

locate the contraband for him so that he did not have to disturb her home

with a thorough search. Ms. Brill directed Officer Nipper to numerous bags

of marijuana that were stashed in the bottom drawer of a set of cupboards

in the living room.

       Later that day, Officer Nipper spoke with Brill, and asked him if he

would be willing to discuss the contraband that was found in his home. Brill

agreed to meet with Officer Nipper at the police station. Brill waived his

Miranda rights, and spoke with the officer. Brill confessed to Officer Nipper

that the marijuana was his, and that he acted entirely alone in growing and

cultivating it. Brill claimed that he grew the marijuana for his own personal

use; he purportedly used the marijuana for pain relief.

       Officer Nipper also asked Brill about a certain room in the residence

that was locked. Brill confirmed that the room was kept locked, and that he

was the only person with access to that room. Officer Nipper and Brill then

proceeded to the residence, whereupon Brill signed a consent-to-search

form, and allowed Officer Nipper into the home. Officer Nipper asked Brill to

open the locked room, and Brill did so.          Inside, Officer Nipper observed a

____________________________________________


5
     This explanation included a statement that Ms. Brill could refuse to
consent to a search.



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large amount of marijuana-growing equipment, including an insulated tent,

growing lights, a ventilation system, chemicals, calendars that displayed

planting and harvesting dates, and a seedling box used to grow the plants

from seeds until they are large enough to be planted in the growing tent.

Officer Nipper photographed and then seized all of this equipment. Brill was

arrested and charged with the aforementioned crimes.

      On July 3, 2013, the trial court entered an order upholding the

warrantless entry and the subsequent consent searches of Brill’s home, with

the exception of the search of Brill’s bedroom closet. In the order, the trial

court concluded that Officer Nipper constitutionally was permitted to enter

Brill’s home without a warrant because he reasonably believed that Ms. Brill

was in need of immediate aid, a long-standing exception to the warrant

requirement   of   both   the   Fourth   Amendment    to   the   United   States

Constitution and Article 1, Section 8 of the Pennsylvania Constitution.

However, the court held that it was unreasonable for Officer Nipper to

believe that Ms. Brill could have been located in Brill’s bedroom closet, which

was closed and blocked by a chair. See Order, 7/3/2013, at 3 (“It was not

reasonable to believe that Ms. Brill could have entered the closet and then

proceeded to put a chair in front of the closed door.      Not to mention the

closet was very small in size and there is no [feasible] way Ms. Brill could

have fainted inside.”).

      On October 3, 2013, Brill waived his right to a jury trial, and

proceeded to a stipulated non-jury trial. At the conclusion of the stipulated

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trial, the trial court found Brill guilty of the aforementioned crimes.   The

same day, Brill was sentenced to an aggregate two-year term of probation

and a three hundred dollar fine.

      For the reasons that follow, I would vacate Brill’s judgment of

sentence, and order that the evidence seized from Brill’s home be

suppressed.

      The Fourth Amendment to the United States Constitution provides as

follows:

      The right of the people to be secure in their persons, houses,
      papers, and effects, against unreasonable searches and seizures,
      shall not be violated, and no Warrants shall issue, but upon
      probable cause, supported by Oath or Affirmation, and
      particularly describing the place to be searched, and the persons
      or things to be seized.

U.S. Const. Amend. IV.    Similarly, the text of Article 1, Section 8 of the

Pennsylvania Constitution states the following:

      The people shall be secure in their persons, houses, papers and
      possessions from unreasonable searches and seizures, and no
      warrant to search any place or to seize any person or things
      shall issue without describing them as nearly as may be, nor
      without probable cause, supported by oath or affirmation
      subscribed to by the affiant.

Pa. Const. Art. I, § 8.

      Based upon the plain language of these fundamental tenets, it is well-

settled that “a search warrant is required before police may conduct any

search.” Commonwealth v. White, 669 A.2d 896, 900 (Pa. 1995). Absent

the application of one of a few clearly delineated exceptions, a warrantless


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search or seizure is presumptively unreasonable.           Id. (citing Horton v.

California, 496 U.S. 128, 134 n.4 (1990)).       “Generally, the police will be

excused from compliance with the warrant and probable cause requirements

of the Fourth Amendment to the United States Constitution [and Article 1,

Section   8   of   the    Pennsylvania     Constitution]     in     only   limited

circumstances.”      Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa.

2009) (emphasis added). One such circumstance is when “police reasonably

believe that someone within a residence is in need of immediate aid.” Id.;

see also Commonwealth v. Potts, 73 A.3d 1275, 1280 (Pa. Super. 2013);

Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa. 2009). “The need to

protect or preserve life or avoid serious injury is justification for what would

be otherwise illegal absent an exigency or emergency.” Mincey v. Arizona,

437 U.S. 385, 392 (1978) (quoting Wayne v. United States, 318 F.2d 205,

212 (D.C. Cir. 1963)).

      In applying this exception, the relevant inquiry is “whether there was

an objectively reasonable basis for believing that medical assistance was

needed, or persons were in danger[.]”       Potts, 73 A.3d at 1280 (quoting

Michigan v. Fisher, 558 U.S. 45, 49 (2009)).                      “The calculus of

reasonableness must embody allowance for the fact that police officers are

often forced to make split-second judgments—in circumstances that are

tense, uncertain, and rapidly evolving.” Id. at 1280-81 (quoting Ryburn v.

Huff, 132 S.Ct. 987, 992 (2012) (per curiam)).




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      The question presented in this case is whether the circumstances

preceding Officer Nipper’s warrantless entry into Brill’s home provided an

objectively reasonable basis for Officer Nipper to believe that someone inside

the residence was in need of immediate aid. The trial court concluded that

the circumstances sufficed to justify the warrantless entry because “Officer

Nipper reasonably believed [that Ms.] Brill was in need of immediate medical

aid.” Trial Court Opinion (“T.C.O.”), 12/26/2013, at 3. However, I am not

convinced that the facts of this case readily validate the conclusion that the

entry constitutionally was valid. To the contrary, the facts present a close

call, which requires an examination of the facts and circumstances of some

Pennsylvania   cases   that   previously    have    applied    the    immediate    aid

exception.

      Our    Supreme   Court    applied     the    immediate    aid    exception    in

Commonwealth v. Silo, 502 A.2d 173 (Pa. 1985).                 In that case, Silo’s

neighbors heard an argument and loud screams emanating from the home

that Silo shared with his mother.          Id. at 174.    Shortly thereafter, the

neighbors observed Silo sitting on the front porch, and then being taken

away by an ambulance. The neighbors did not see Silo’s mother leave for

work that day at her usual time, nor did she return to her home at her

normal time.    Id. at 175.     Additionally, Silo’s mother did not close her

bedroom window before or during the night, which she almost always did.

The following day, the neighbors became concerned because they still had




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not seen Silo’s mother. They called the local hospital and the mother’s place

of employment, but they were unable to locate her. Id.

      Silo’s mother’s employer also became concerned when she did not

report for work.    The employer called her home once every hour until

approximately midnight, to no avail.          The following day, neither the

neighbors nor the employer were able to locate Silo’s mother.           They

contacted the police, who went to the hospital, retrieved a key from Silo,

and used the key to open the door to the home. Inside, they found Silo’s

mother lying dead in a pool of her own blood.         She had been stabbed

repeatedly by Silo. Id.

      Noting that “the Fourth Amendment does not bar police officers from

making warrantless entries and searches of houses when they reasonably

believe that a person within is in need of immediate aid,” our Supreme Court

upheld the warrantless entry into Silo’s home. Id. at 175.

      In Commonwealth v. Miller, 724 A.2d 895 (Pa. 1999), the

Pennsylvania Supreme Court also applied the immediate aid exception, and

upheld the constitutionality of a warrantless entry into Miller’s home based

upon the following sequence of events. Miller, who lived with his wife and

children, had a history of drug use and assaultive behavior towards his wife.

Id. at 897. In one instance, Miller was convicted of aggravated assault, and

imprisoned, for holding a gun to his wife’s head. On the exact day that he

was released from prison, Miller told his cellmate that he would be returning

to prison soon for killing his wife. Id.

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         Shortly after his release from prison, Miller and his wife went drinking

at   a     local   bar.    After   imbibing     alcoholic   drinks   and   ingesting

methamphetamine, Miller became increasingly agitated towards his wife,

especially after she talked to another man and after she used the telephone.

While they were at the bar, Miller’s mother was babysitting Miller’s children.

Miller was supposed to pick the children up from his mother’s house around

breakfast time the next day. Miller’s mother became concerned first when

he did not show up to retrieve the children, and more so when no one

answered her telephone calls.        Miller’s mother drove to Miller’s home on

multiple occasions, and each time the house was locked and no one

answered the door. Miller’s mother also noticed that Miller’s wife’s vehicle

was missing. Id.

         Miller’s mother was not able to contact either Miller or his wife for the

rest of the day. On the following day, Miller’s mother contacted the wife’s

mother, who also had not heard from Miller’s wife. Concerned, Miller’s wife’s

mother filed a missing person’s report.         The Pennsylvania Supreme Court

explained the subsequent events as follows:

         In response to this report, the investigating trooper contacted
         the employers for Miller and his wife, checked with local prisons
         and hospitals, and interviewed family members. Both [Miller’s
         mother] and [Miller’s wife’s mother] related to the police that
         Miller and his wife had used illicit drugs and speculated that they
         might have travelled to Philadelphia to purchase drugs. The
         police also went to the Miller home, knocked on the door, and
         after receiving no response, checked the doors, finding them
         locked. When these efforts failed, the troopers asked [Miller’s
         mother] to meet them at the residence. Once there, [Miller’s


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        mother] again expressed concern that something may have
        happened to her son and daughter-in-law because of their
        history of drug abuse. The troopers who met [Miller’s mother]
        were familiar with the Millers’ drug problem and were aware of
        Miller’s history of spousal abuse. At [Miller’s mother’s] request,
        and after receiving assurance from her that she would be
        responsible for the property, the troopers agreed to forcibly
        enter the residence.

Id. at 897-98. The troopers entered the home through a basement window.

In a bedroom, they found Miller’s wife, who had been forcibly raped and then

stabbed to death. Id. at 898. Based upon these extensive circumstances,

the Court held that the police constitutionally were permitted to enter the

home pursuant to the immediate aid exception. Id. at 900.

        Our   Supreme    Court   applied   the   exception   more   recently   in

Commonwealth v. Galvin.           In that case, police officers stopped a van

being driven by Galvin because one of the van’s headlights was not

illuminated. Galvin, 985 A.2d at 786. After stopping the van, one of the

police officers observed a human leg protruding from a white sheet in the

back of the van. The officer also noticed that a piece of plastic had broken

off of the van’s bumper. Id.

        Upon closer inspection, the police discovered the body of a large white

male wrapped in a bloody white sheet, and secured with yellow electrical

cord.    After arresting Galvin, officers noted that Galvin’s pant leg, boot,

watch, and glasses were spotted with human blood. Id. at 786-87. From

Galvin’s driver’s license, the police were able to ascertain Galvin’s address.

Another police officer was dispatched to the residence to look for the piece of


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plastic that had broken off of the van’s bumper. When that officer arrived at

the residence, he noticed a fresh trail of blood leading from the sidewalk to

the front door. The officer also located a wooden broom with blood on it.

Based upon these observations, and most notably because the trail of blood

appeared to lead from the sidewalk into the house, the officer feared that

other victims might be inside of the residence and might be in need of

immediate medical aid. The officer called for assistance. Id.

     When the assisting team arrived, they first knocked on the front door,

and received no answer.      However, after knocking a second time, the

officers heard a muffled voice coming from inside the residence.        They

immediately forced entry into the home and performed a sweep inside.

Inside, they found Galvin’s father, who was not in need of medical

assistance. However, the officers found bullet casings and blood on the floor

of Galvin’s bedroom. The piece that had broken off of the bumper was found

on the curb near the front of the home. Id.

     Citing Mincey, Miller, and Silo, our Supreme Court held that the

fresh trail of blood and the muffled voice were sufficient to demonstrate an

objectively reasonable basis for the officers to conclude that someone was

inside Galvin’s residence and in need of immediate aid.      Thus, the Court

upheld the warrantless entry into the home. Id. at 795-96.

     Finally, in Potts, a panel of this Court upheld the application of the

immediate aid exception to the following circumstances, as summarized by

the panel:

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      In this case, police officers responded to a 911 call for an alleged
      domestic dispute involving someone screaming at [Potts’]
      apartment building. Upon arriving at the location, the officers
      heard the screams emanating from [Potts’] apartment.              As
      observed by the trial court, this not only corroborated the report
      of screaming in the distress call, but indicated that it had been
      going on “for quite some time.”           The officers announced
      themselves, knocked on [Potts’] apartment door, and the
      screaming stopped within seconds.            After knocking and
      announcing several more times over approximately ten seconds,
      [Potts’ fiancée] opened the door. [She] was “very distraught,”
      “appeared to be crying,” was sweating although it was a cold day
      in January, her breathing was “really heavy,” and her clothes
      were “disheveled.”

      From the open doorway, the officers saw [Potts] run into a
      bedroom directly behind the living room, shutting the door
      behind him. [Potts’ fiancée] then walked into the living room,
      leaving the front door to the apartment open. Concerned for her
      safety, the officers followed [her] into the apartment to ensure
      that she was not in danger.

Potts, 73 A.3d at 1281 (citations to the notes of testimony omitted). Once

inside, the police conducted a protective sweep of the apartment, during

which the police observed marijuana. This Court held that the totality of the

circumstances justified the police entry into the home both to ensure that

Potts’ fiancée was not in any further danger and to determine whether she

was in need of immediate aid. Id.

      Upon considering the facts of these precedential decisions, it becomes

apparent to me that the circumstances leading up to the warrantless entry

into Brill’s home in the case sub judice do not exhibit a similar immediacy as

was exhibited in those case. The indicia of immediacy in those cases simply

are not present here.    Ms. Brill had not been missing for days, nor had

anyone observed any disruption in her normal routine.        Ms. Brill had not

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missed work or any scheduled appointments.         Her absence had not been

noted for a significant period of time; indeed, the evidence did not establish

that her absence lasted any longer than that very morning. She did not go

days without picking up her children.    No witnesses overheard arguments,

screams, disturbances, or other unusual events. There were no reports of

domestic violence, verbal or mental abuse, or excessive drug use.            Of

course, there was no trail of blood or dead bodies.

      Although Ms. Baumer reported to Officer Nipper that Ms. Brill had

suffered from recent fainting spells, there was no indication that Ms. Brill had

fainted that particular morning.    As noted above, the circumstances that

permit a warrantless entry into a home are circumscribed narrowly, and are

justified only in very limited circumstances.    The immediate aid exception

applies only when there is an objectively reasonable basis to conclude that

someone is in immediate need of medical attention; it simply does not

apply, without more concrete information, to general concerns for safety. I

certainly do not mean to downplay Ms. Baumer’s concern for her sister’s

well-being, but the genuineness of concern is not cause to extend the

application of the immediate aid exception to circumstances that do not

exhibit the immediacy necessary to bypass the constitutionally foundational

warrant requirement.       Here, the entry into Brill’s home lacked those

necessary circumstances.

      Consequently, while the record supports the trial court’s factual

findings, the legal conclusions that the trial court drew therefrom were

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erroneous.     Additionally, because the subsequent consent searches were

direct descendants of the initial unconstitutional entry, with no intervening

and independent circumstances, those searches necessarily suffer from the

original taint. See Commonwealth v. Freeman, 757 A.2d 903, 909 (Pa.

2000). Thus, I would reverse the court’s order denying Brill’s suppression

motion, vacate the judgment of sentence, and remand for any further

proceedings.6

       Because the Majority concludes otherwise, I dissent.




____________________________________________


6
        Because of the disposition that I would reach, I would not address
Brill’s second listed issue.



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