J-S27038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 DONALD RAY ROMESBURG                   :   No. 1733 WDA 2018

             Appeal from the Order Entered November 7, 2018
    In the Court of Common Pleas of Fayette County Criminal Division at
                      No(s): CP-26-CR-0001299-2018

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 MELISSA L. WARGO                       :   No. 1734 WDA 2018

             Appeal from the Order Entered November 7, 2018
    In the Court of Common Pleas of Fayette County Criminal Division at
                      No(s): CP-26-CR-0001301-2018

 COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 MARK ALAN CRISWELL                     :   No. 1735 WDA 2018

             Appeal from the Order Entered November 7, 2018
    In the Court of Common Pleas of Fayette County Criminal Division at
                      No(s): CP-26-CR-0001300-2018


BEFORE:   OLSON, J., OTT, J., and COLINS*, J.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S27038-19



MEMORANDUM BY COLINS, J.:                               FILED JULY 12, 2019

        In these consolidated appeals, the Commonwealth appeals from the trial

court’s order, which granted the motions of Appellees, Melissa L. Wargo,

Donald Ray Romesburg, and Mark Alan Criswell, to suppress evidence seized

during a June 7, 2017 search of a Smithfield, Pennsylvania residence and

Appellees’ habeas corpus motions to dismiss the charges of dealing in

proceeds of unlawful activities1 against them. We affirm.

        On June 7, 2017, Corporal Creighton Callas of the Pennsylvania State

Police received a tip from Lieutenant John Harvey Bryant of the Preston

County, West Virginia Sheriff’s Department regarding a large marijuana grow

operation on Great Lakes Road in Smithfield.        N.T., 5/30/18, at 30; N.T.,

10/22/18, at 12-13.         The tip identified the Appellees as residing at the

address. N.T., 5/30/18, at 30; N.T., 10/22/18, at 12. Corporal Callas did not

speak to the informant directly or discover the informant’s name, and no

information relating to the reliability of the informant was known to the

Pennsylvania State Police. N.T., 5/30/18, at 20-21, 30, 45; N.T., 10/22/18,

at 6-7, 9-10.

        Based on the tip, Corporal Callas and Troopers Robert Hughes, Adam

Kezmarsky, and Matthew Rucinski went to the identified Smithfield address to

perform a “knock and talk.” N.T., 5/30/18, at 6-8, 12, 30-31; N.T., 10/22/18,

at 5-6, 11. While traveling on Great Lakes Road, a single-lane gravel road,

____________________________________________


1   18 Pa.C.S. § 5111(a)(1).

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the troopers encountered a black SUV, which was pulling out of the driveway

of the troopers’ destination.   N.T., 5/30/18, at 7, 13-14, 24-26, 34; N.T.,

10/22/18, at 8. Trooper Hughes, who was leading the investigation, directed

Trooper Rucinski to stop the vehicle, but, before Trooper Rucinski could do so,

the SUV pulled off the road and stopped approximately 40 to 50 yards from

the driveway entrance to let the troopers pass. N.T., 5/30/18, at 7, 14, 16,

24, 34-35, 46, 55-56; N.T., 10/22/18, at 8-9.       The troopers exited their

vehicles and approached the SUV, which was driven by Appellee Wargo. N.T.,

5/30/18, at 7-8, 25, 35; N.T., 10/22/18, at 8. Trooper Hughes detected a

strong odor of raw marijuana from Wargo, and he directed Trooper Rucinski

to detain Wargo at that location while the other three troopers proceeded to

the residence. N.T., 5/30/18, at 8, 27-28, 35-36, 46, 57-58.

      Troopers Hughes and Kezmarsky and Corporal Callas then proceeded to

the house, which was set back approximately 50 to 70 yards from the road

down a hill and surrounded by woods. Id. at 8, 36; N.T., 10/22/18, at 5-8,

10. Three cars were present in the driveway when they pulled up to the house.

N.T., 5/30/18, at 37, 52.    When the three troopers arrived at the house,

Appellees Criswell and Romesburg exited the front door and approached the

troopers. Id. at 10, 37, 46-47. The troopers detected a very strong odor of

raw marijuana that grew stronger as they walked towards the house. Id. at

8, 10, 17-18, 22-23, 37, 47-48.         The troopers detained Criswell and

Romesburg, and then heard a noise from inside the house, which sounded like

“physical movement” or “another person possibly running around.” Id. at 11,

                                     -3-
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19, 21, 27-28, 37, 48-49. Trooper Kezmarsky asked Criswell and Romesburg,

whether there was anyone else inside the house; either Criswell or Romesburg

responded that no one else was home. Id. at 18-19.

      Concerned for their safety and the potential destruction of evidence

related to the marijuana grow operation, Trooper Kezmarsky and Corporal

Callas entered the house and swept the house room-by-room, looking in any

area that would be large enough for a human to hide. Id. at 11, 19, 27, 37.

The troopers did not find anyone else inside the house, but did notice several

cats present to which they attributed the noise they had heard. Id. at 12.

The troopers also discovered in plain view live marijuana plants, marijuana

drying on screens, and pound bags of marijuana. Id. at 11-12, 19-20, 49.

      Upon the completion of the sweep of the house, Trooper Kezmarsky

related what he saw inside the house to Trooper Hughes. Id. at 12, 38. Based

on this information along with their detection of a strong raw marijuana odor

and the information from the West Virginia tip, Trooper Hughes applied for a

search warrant for the house and a detached shed behind the house. Id. at

38, 54. The application was granted, and the troopers seized approximately

48 pounds of bagged marijuana, 111 marijuana plants, 50 of which were

located in the shed, along with lights and other materials used in the grow

operation. Id. at 39-40, 50, 54. The troopers also seized $7,572 in cash from

a bedroom in the house and various unlabeled pill bottles containing tramadol

and hydrocodone.     Id. at 41, 44, 50.      The troopers did not find any

prescriptions for the pills that were seized, but also did not ask Appellees

                                    -4-
J-S27038-19



whether the pills were prescribed. Id. at 51, 57. The troopers also did not

perform any test on the cash to determine whether any traces of controlled

substances were present. Id. at 50.

      On June 8, 2017, Appellees were each charged with dealing in proceeds

of unlawful activities, 18 Pa.C.S. § 5111(a)(1); manufacture, delivery or

possession of a controlled substance with intent to deliver, 35 P.S. § 780-

113(a)(30); adulteration, mutilation, destruction, obliteration, or removal of

label, 35 P.S. § 780-113(a)(5); two counts of possession of a controlled

substance, 35 P.S. § 780-113(a)(16); and use or possession of drug

paraphernalia, 35 P.S. § 780-113(a)(32). On May 30, 2018, a preliminary

hearing was conducted at which Troopers Hughes and Kezmarsky testified. At

the conclusion of the preliminary hearing, the magisterial district judge held

the charges over for court. N.T., 5/30/18, at 58. On June 26, 2018, the

Commonwealth filed notices of consolidation of the three criminal matters for

trial. On July 16, 2018, the Commonwealth filed a criminal information against

each Appellee, which added a third count of possession of a controlled

substance.

      On August 22, 2018, Appellees filed omnibus pre-trial motions seeking

the suppression of the evidence collected during the searches of the Smithfield

property and the dismissal of the charges against them based on the




                                     -5-
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Commonwealth’s purported failure to present a prima facie case.2,3 A hearing

was held on the motions on October 22, 2018, at which Trooper Hughes and

Lieutenant Bryant of the Preston County, West Virginia Sheriff’s Department

testified, and the transcript of the preliminary hearing was submitted into the

record. N.T., 10/22/18, at 3.

       On November 7, 2018, the trial court entered an order granting the

motions to suppress the evidence seized during the June 7, 2017 searches of

the Smithfield property, denying the motions to suppress statements made

by Appellees Criswell and Wargo, and granting the habeas corpus motions

with respect to the dealing in proceeds of unlawful activities charges. In light

of these rulings, the trial court dismissed all of the charges against Appellees.

       In its opinion accompanying the order, the trial court rejected the

Commonwealth’s contention that exigent circumstances related to the

potential destruction of evidence justified the warrantless entry of the

residence:
      The possibility that an occupant in the residence might attempt to
      destroy evidence would be a possibility these trained narcotic
      officers would anticipate and be prepared to deal with. However,

____________________________________________


2 Appellee Romesburg sought the dismissal of only four of the charges
against him: dealing in proceeds of unlawful activities; adulteration,
mutilation, destruction, obliteration, or removal of label; and two of the
possession of a controlled substance charges.
3 Appellees Criswell and Wargo also sought suppression of statements they

made to the officers in their omnibus pre-trial motions. The trial court
denied the motions to suppress statements because no evidence was
presented of any statements made to the officers nor was there testimony
presented regarding the circumstances of when such statements, if any,
were made. Trial Court Opinion and Order, 11/7/18, at 5-6.

                                           -6-
J-S27038-19


      the sound of movement, without more, was insufficient to excuse
      a warrantless search of this home. Large quantities of marijuana
      cannot easily be destroyed in the same manner as other forms of
      controlled substances. As the troopers believed this was a large
      marijuana manufacturing operation, the troopers could have
      secured the Defendants in front of the residence while a warrant
      was being obtained. If circumstances changed while they were
      awaiting the warrant, then other actions could have been taken.
      There simply was no serious risk that a substantial quantity of
      marijuana would have been destroyed while the officers secured
      the residence but did not enter it. The troopers lacked sufficient
      and valid exigent circumstances to permit a warrantless intrusion
      of the property.

Trial Court Opinion and Order, 11/7/18, at 4. The trial court recognized that

probable cause existed for a search warrant when the troopers smelled the

odor of raw marijuana as they were approaching the house.             Id. at 3.

However, in the absence of a warrant or exigent circumstances, the trial court

concluded that the search of the home by Trooper Kezmarsky and Corporal

Callas was in contravention of the Fourth Amendment of the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution. Id. at

4.

      The trial court further ruled that the evidence collected at the Smithfield

property was not admissible under the doctrine of inevitable discovery

because the Commonwealth had not demonstrated a source of information

fully independent from the tainted evidence and the investigative team that

engaged in the warrantless search of the residence. Id. at 4-5. The trial

court determined that the information provided to the State Police by the

Preston County, West Virginia Sheriff’s Department was devoid of information

concerning the reliability of the informant, and was by itself insufficient to


                                      -7-
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support a finding of probable cause. Id. at 3. The trial court concluded that,

because the evidence of the illegal search of the residence was suppressed,

the violations of The Controlled Substance, Drug, Device and Cosmetics Act

would have to be dismissed. Id. at 5. In addition, the trial court concluded

that the Dealing in Proceeds of Unlawful Activities charge would have to be

dismissed because the Commonwealth had not presented evidence that

Appellees engaged in any financial transactions or sale of either marijuana or

the tramadol and hydrocodone pills found inside the residence. Id.

       The Commonwealth filed timely notices of appeal of the trial court’s

November 7, 2018 order.4 By an April 12, 2019 order, this Court consolidated

the Commonwealth’s three appeals.

       The Commonwealth presents the following three issues on appeal:
       1. Did the Trial Court error in granting the Appellees’ Pre-Trial
       Motion to Suppress Evidence in finding that the Pennsylvania
       State Police did not have exigent circumstances to validate a
       warrantless search of the Appellees’ home?

       2. Did the Trial Court error in granting the Appellees’ Pre-Trial
       Motion to Suppress evidence in rejecting the Commonwealth's
       argument of inevitable discovery?

       3. Did the Trial Court error in granting the Appellees’ Habeas
       Corpus Motion regarding the charge of Dealing in Proceeds of
       Unlawful Activity?

Commonwealth’s Brief at 4 (suggested answers omitted).



____________________________________________


4 The Commonwealth filed its statements of errors complained of on appeal
on January 2, 2019. On January 3, 2019, the trial court entered a
statement in lieu of opinion, in which it indicated that it was relying on its
earlier opinion.

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J-S27038-19



       Our standard of review in a review of the denial of a suppression motion

is whether the lower court’s factual findings are supported by the record and

whether     the   legal    conclusions      drawn       from    those   facts   are   correct.

Commonwealth v. Raglin, 178 A.3d 868, 871 (Pa. Super. 2018).                              The

suppression court has sole province as factfinder to pass on the credibility of

witnesses and the weight to be given to their testimony. Commonwealth v.

Duke, ___ A.3d ___, 2019 PA Super 115, *7 (filed April 12, 2019). We are

not bound by the suppression court’s conclusions of law, and our standard of

review of questions of law is de novo. Commonwealth v. Millner, 888 A.2d

680, 685 (Pa. 2005). Our scope of review from a suppression ruling is limited

to    the   evidentiary      record        created      at     the   suppression      hearing.

Commonwealth v. Fulton, 179 A.3d 475, 487 (Pa. 2018).

       The Commonwealth’s first argument on appeal is that the search was

justified by exigent circumstances. “Both the Fourth Amendment of the United

States Constitution and Article I, Section 8 of the Pennsylvania Constitution

guarantee individuals freedom from unreasonable searches and seizures.”

Commonwealth v. Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017).

“Absent the application of one of a few clearly delineated exceptions, a

warrantless       search     or   seizure          is    presumptively      unreasonable.”

Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013). Among

the   recognized     exceptions       to     the     warrant     requirement     is   exigent

circumstances;      “[a]bsent     probable           cause      and exigent circumstances,




                                             -9-
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warrantless searches and seizures in a private home violate both the Fourth

Amendment” and Article I, Section 8. Duke, 2019 PA Super 115, *7.

      In Commonwealth v. Roland, 637 A.2d 269 (Pa. 1994), our Supreme

Court listed various factors to be considered when determining whether

exigent circumstances exist, including:
      (1) the gravity of the offense, (2) whether the suspect is
      reasonably believed to be armed, (3) whether there is above and
      beyond a clear showing of probable cause, (4) whether there is
      strong reason to believe that the suspect is within the premises
      being entered, (5) whether there is a likelihood that the suspect
      will escape if not swiftly apprehended, (6) whether the entry was
      peaceable, and (7) the time of the entry, i.e., whether it was made
      at night. These factors are to be balanced against one another in
      determining whether the warrantless intrusion was justified.

      Other factors may also be taken into account, such as whether
      there is hot pursuit of a fleeing felon, a likelihood that evidence
      will be destroyed if police take the time to obtain a warrant, or a
      danger to police or other persons inside or outside the dwelling.

Id. at 270-71 (citations omitted); see also Commonwealth v. Bowmaster,

101 A.3d 789, 793 (Pa. Super. 2014). The Commonwealth bears a “heavy

burden when attempting to demonstrate an urgent need that might justify

warrantless searches or arrests,” and must present clear and convincing

evidence to meet this burden. Roland, 637 A.2d at 271 (quoting Welsh v.

Wisconsin, 466 U.S. 740, 749-50 (1984); Duke, 2019 PA Super 115, *8.

      The Commonwealth argues that the balance of factors weighs in favor

of a finding of exigent circumstances that justified the warrantless search.

The Commonwealth argues that the troopers had probable cause to search

the residence based upon the strong odor of raw marijuana emanating from

the house and Appellee Wargo coupled with the previous information that they

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had received from West Virginia regarding a large marijuana operation. The

Commonwealth asserts that the troopers lacked sufficient knowledge to rule

out that anyone else was present in the house, based on the fact that the

property was located in a remote, wooded location and that there was one

more vehicle in the driveway than known occupants of the house. Thus, the

Commonwealth contends, when the troopers heard a noise inside the house,

they reasonably believed that someone inside was potentially destroying

evidence or posed a threat to the troopers’ safety. Finally, the Commonwealth

notes that the incident took place during daylight hours and the criminal

offense of the manufacture of large quantities of marijuana was a serious

offense, additional factors under Roland weighing in favor of the troopers’

need to make entry to secure the premises.

      This Court’s decision in Commonwealth v. Waddell, 61 A.3d 198 (Pa.

Super. 2012), involves analogous facts and is instructive in our analysis of the

issue of whether exigent circumstances existed here.         In Waddell, the

Homestead Borough Police Department received a tip conveyed by a

neighboring police department that large quantities of marijuana were being

distributed from a house in the Borough. Id. at 208. That tip was confirmed

by another informant, and based upon information the informant disclosed,

an arrest was made of individuals transporting 13 pounds of marijuana from

the house. Id. Four officers then proceeded to the house to perform a “knock

and talk.” Id. at 209. The officers detected the odor of marijuana in the

vicinity of the house, which grew stronger as they approached.        Id.   The

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officers knocked three times at the door with no response, but they heard

“slight movement” inside, which grew louder after the third knock. Id. An

officer posted at the rear of the residence then observed the appellant

attempting to jump out of a rear window, radioing this information to the

officers at the front of the house. Id. Upon learning of the attempted escape,

the officers at the front of the house kicked the front door open and entered

the house, discovering two firearms and ten pounds of marijuana in plain view

in the residence. Id. at 209-10.

      This Court in Waddell reversed the trial court’s denial of the motion to

suppress, rejecting the claim of exigent circumstances based upon a concern

of potential destruction of evidence or a danger to the safety of the officers.

While we acknowledged that the officers had probable cause to conduct a

search once they detected the smell of raw marijuana emanating from the

house, we distinguished the facts from other cases where the police were in

hot pursuit of a felon who retreated into a residence, noting that the residents

of the house appeared to be unaware of the police activity before they knocked

on the door. Id. at 215; cf. Commonwealth v. Bostick, 958 A.2d 543, 557-

58 (Pa. Super. 2008) (exigent circumstances found where individual opened

front door that was targeted for drug operation, saw an arrest in progress,

uttered an expletive, and retreated inside, tossing items in vestibule in an

apparent effort to conceal evidence); Commonwealth v. Griffin, 785 A.2d

501, 506 (Pa. Super. 2001) (suspect fleeing police into residence and

displaying handgun during his retreat contributed to finding of exigent

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circumstances). We concluded that the “officers lacked any specific evidence

that anyone inside the home was armed,” and any concern of a danger to the

officers “was premised upon generalized experience with those that traffic in

narcotics, not any particular evidence derived from the investigation in this

case.” Waddell, 61 A.3d at 215.

      Related to the potential destruction of evidence, we noted that the mere

detection of a noise indicating “hurried movement” inside the premises did not

“provide a strong inference that evidence was being destroyed.” Id. at 216.

Additionally, we recognized that the concerns of the destruction of evidence

were overstated based on the crime being investigated: “It does not take an

expert to know that one cannot flush multiple pounds of marijuana down a

toilet quickly, nor with the ease that one could flush heroin, cocaine, or other

common controlled substances.” Id. at 217. Moreover, in light of the fact

that the officers present were adept at differentiating the scents of burnt and

raw marijuana, there was no serious risk that “significant quantities of

marijuana [could be] burned inside the home, particularly since windows at

the house had been left open permitting the odor of raw marijuana to exude

from the residence in the first place.” Id. at 218.

      Upon review and in light of our decision in Waddell, we agree with the

trial court that the Commonwealth did not present sufficient evidence to justify

the warrantless search on the basis of exigent circumstances. First, while the

troopers clearly had reason to believe that marijuana was present inside the

house based upon the smell emanating from the house, their fear that

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evidence of the marijuana operation was being destroyed was not nearly so

well-founded. The tip identified three individuals as being involved with the

grow operation, Appellees, and all three had been detained prior to the

troopers making the decision to enter the residence. While the troopers heard

a noise from inside the house and one more car than the number of known

individuals was observed at the property, the troopers only generally related

that these noises conveyed a sense of “movement” and did not indicate that

these noises were related to an act of destroying evidence.             These

observations only gave the troopers grounds to speculate whether another

individual was present at the residence and did not provide any reason for the

troopers   to   conclude   that   evidence   was   being   destroyed.    See

Commonwealth v. Mason, 637 A.2d 251, 255 n.2 (Pa. 1993) (“[U]nless

there is something more than suspicion that [] destruction of evidence may

occur, the circumstances are not exigent.”).

      In addition, as in Waddell, the nature of the illicit operation being

investigated cast doubt on the potential destruction of evidence as

authorization for the warrantless entry. The tip that the troopers were acting

upon indicated that there was a large-scale marijuana grow operation taking

place at the property, and the extent of the operation was confirmed by the

strong odor of marijuana emanating from the house.          The risk that the

evidence of such an operation could be destroyed is greatly reduced compared

to the evidence of other crimes, including the manufacture of other controlled

substances in pill or powder form. See Waddell, 61 A.3d at 217-18. To the

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extent the troopers were concerned of the potential destruction of the

marijuana by burning, Trooper Kezmarsky testified that he was well-trained

in distinguishing the scents of raw and burned marijuana, N.T., 5/30/18 at 8-

10, and he therefore would have been well equipped to detect whether any

potential destruction of the marijuana occurred by burning.      Furthermore,

similar to Waddell, Trooper Hughes testified that a window in the front of the

house was open and a screened door remained open after Appellees Criswell

and Romesburg had exited, id. at 47-48, thus allowing the troopers ample

opportunity to secure and monitor the house from the outside while they

obtained a search warrant. See Commonwealth v. English, 839 A.2d 1136,

1142 (Pa. Super. 2003) (concluding that exigent circumstances did not justify

warrantless seizure of marijuana plants, even though police claimed plants

could be destroyed before search warrant could be procured, where officers

could have secured the scene while a different officer obtained a warrant).

      The Commonwealth also did not demonstrate that the troopers had

knowledge of a potential threat to their safety inside the residence. Appellees

Criswell and Romesburg were cooperative to the troopers, and indeed

responded truthfully in the negative when asked whether anyone else was

present at the house. No testimony was presented that any weapons were

found on Appellees, and there also was no indication that the West Virginia tip

included information that Appellees or anyone else with access to the property

were armed or otherwise would present a danger to investigating troopers.

As in Waddell, the troopers’ concern regarding the potential destruction of

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evidence appears to have been based upon “generalized experience” with drug

trafficking cases rather than any “specific evidence” in this case.5 61 A.3d at

215; see also Duke, 2019 PA Super 115, *11 (stating that a “lack of

knowledge of” an individual’s intentions does create an exigency based on

concern of officer safety and the officers “must observe some conduct or

action on the part of [the individual] from which they could reasonably infer

that [the individual] intended to harm them”). Thus, we conclude that exigent

circumstances could not have been found based upon potential danger to the

troopers. Compare Duke, 2019 PA Super 115, *10-*11 (exigency could not

be grounded on officers’ concern that defendant who refused consent to

search house would retreat to house to obtain a weapon where officers “had

no basis on which to make this assumption”) with Commonwealth v.

Coughlin, 199 A.3d 401, 408-09 (Pa. Super. 2018) (en banc) (exigent

circumstances existed for warrantless entry for warrantless sweep of home

where officers responded to reports of suspect firing assault rifle in

neighborhood known for gun violence and suspect gave inconsistent answers

as to whether anyone else was inside home).



____________________________________________


5 We recognize that Waddell is distinguishable from the instant case based
upon the fact that, once the appellant in Waddell exited from the rear
window, a fact that was communicated to the officers at the front of the
house just prior to their warrantless entry, there was no reason to believe
that anyone was present inside the house. 61 A.3d at 215. However, we
are not convinced that this factor alone tips the balance of factors in favor of
finding exigent circumstances here.

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       Certainly, other factors related to the presence of exigent circumstances

elaborated in Roland were present in this case. As the trial court noted, the

troopers clearly had probable cause to obtain a search warrant for the property

based upon the tip from the West Virginia informant and their detection of the

smell of marijuana coming from the house.          The criminal offense at issue

involving the manufacture of large quantities of marijuana is also undoubtedly

a serious one. Furthermore, the warrantless entry to the residence was not

made with force, and it occurred during daylight hours, rather than at night

when a warrantless search would have been more intrusive.6 N.T., 5/30/18,

at 56-57. Nevertheless, these factors tilting in favor of exigent circumstances

must be weighed against factors that detracted from the urgent need to make

entry, including the fact that all of the identified suspects related to the drug

operation had already been apprehended, none of the individuals the troopers

encountered had attempted to flee, there was no reason to believe that

anyone present at the property was armed or posed a danger to the troopers,

and the nebulous concern that evidence was being destroyed. The trial court

did not err in balan+cing these factors in favor of Appellees.

____________________________________________


6 In Commonwealth v. Williams, 396 A.2d 1177 (Pa. 1978), our Supreme
Court noted that the time of day “works in more than one direction” as the
late hour in which the incident occurs may also provide justification for
warrantless entry based upon the potential delay in or impracticability of
obtaining a warrant. Id. at 1180 (citation omitted); see also Griffin, 785
A.2d at 506 (fact that warrantless entry was made at night when “the
prospect of securing the house pending a warrant [was] too dangerous given
the cover that nightfall could have given the armed conspirators” weighed in
favor of finding of exigent circumstances).

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      In its second appellate issue, the Commonwealth argues that, even if

the warrantless entry to the residence was not justified through exigent

circumstances, the evidence on the property would have inevitably been

discovered when the troopers executed a search warrant. The Commonwealth

asserts that the troopers’ detection of a strong odor emanating from the

residence provided a basis for applying for the search warrant that was

entirely independent of any of the marijuana plants, bagged marijuana and

grow equipment that Trooper Kezmarsky and Corporal Callas viewed during

their warrantless entry. The Commonwealth contends that the troopers would

have still obtained a search warrant even if the troopers had never decided to

enter the residence, and the trial court therefore erred in granting the

suppression motion.

      Evidence that is obtained by law enforcement through an unlawful

search may not be used in any respect, including as evidence against the

subject of the search at trial. Fulton, 179 A.3d at 489. Such evidence may

only be used against a defendant if knowledge of the evidence is gained from

an independent source or if the evidence in question would inevitably have

been discovered without reference to the police error or misconduct. Id. at

489-90.   The Commonwealth bears the burden of proof at a suppression

hearing to establish by a preponderance of the evidence that the evidence

illegally obtained would have ultimately or inevitably been discovered by legal

means. Id. at 490.




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      In Commonwealth v. Berkheimer, 57 A.3d 171 (Pa. Super. 2012) (en

banc), an en banc panel of this Court reviewed the development of the

inevitable discovery doctrine in Pennsylvania, explaining that Pennsylvania

courts   have   interpreted   the   doctrine   more   narrowly   based   on   the

understanding that the exclusionary role serves an essential role in

safeguarding the right to privacy under Article I, Section 8. Id. at 181-88;

see also, e.g., Mason, 637 A.2d at 256. This Court explained that in cases

where evidence is gathered through “a substantially unwitting violation of the

warrant requirement, devoid of any cognizable misconduct,” the inevitable

discovery doctrine in Pennsylvania is coterminous with its application under

the Fourth Amendment. Berkheimer, 57 A.3d at 188. This standard requires

a finding that the law enforcement officers’ decision to seek a warrant was

prompted by information independent of what was learned during the unlawful

entry and that the information illegally obtained did not influence the

magistrate’s issuance of the search warrant. Id. at 184 (citing Murray v.

United States, 487 U.S. 533, 543-44).

      On the other hand, in cases “where misconduct by law enforcement

officers is apparent, negating the warrant requirement and violating the

constitutional right to privacy,” the higher standard under Article I, Section 8

applies. Id. at 187-88. In such cases, suppression of the evidence can only

be avoided where the information that forms the basis of the warrant is “truly

independent from both the tainted evidence and the police or investigative

team which engaged in the misconduct by which the tainted evidence was

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discovered.” Id. at 186-88 (quoting Commonwealth v. Melendez, 676 A.2d

226, 231 (Pa. 1996)) (emphasis omitted); see also Commonwealth v.

Perel, 107 A.3d 185, 195 (Pa. Super. 2014). As this Court later emphasized,

the doctrine of inevitable discovery does not operate “as an invitation for

appellate courts to overlook patently unconstitutional searches whenever the

police could have complied with the Constitution’s warrant requirement, but

instead consciously disregarded it.”    Perel, 107 A.3d at 195 (emphasis in

original).

      In Berkheimer, police officers received a tip that an individual who was

wanted on a probation detainer was residing at the house of the defendants.

57 A.3d at 174. When they arrived at the door, the officers banged on the

door for two or three seconds and then entered the house after detecting the

smell of burnt marijuana drifting outside. Id. at 174-75. The officers then

announced their intention to secure the house while they obtained a search

warrant based on the marijuana smell.         Id. at 175.   While removing the

defendants, the officers observed a plastic bag and pill bottle containing

marijuana, marijuana pipes, and several rounds of ammunition.          Id.   The

officers then applied for a search warrant based in part upon the observation

of the contraband they saw during their warrantless entry. Id. at 175, 189-

90 & n.15.

      The trial court recognized that the officers’ initial warrantless entry was

unlawful based on the absence of exigent circumstances, but denied a

suppression motion on the basis that the officers had probable cause for the

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issuance of a warrant prior to the initial entry based upon the smell of

marijuana and therefore the evidence would have been inevitably discovered.

Id. at 176-77. This Court disagreed, and reversed the convictions for the

possession and manufacture of marijuana. First, the Court noted that, under

applicable precedent, the officers’ “entry of a private home in the absence of

a warrant, on the pretext of circumstances that are not demonstrably exigent,

poses a substantial invasion of privacy and [] constitute[s] police misconduct,”

necessitating the application of the heightened standard of the inevitable

discovery rule under Pennsylvania Constitution.      Id. at 188.    Under that

standard, the Court concluded that the Commonwealth could not show that

the search warrant was premised on a truly independent source as the entry

and the warrant application arose “from the concerted actions of a single

group of officers.”   Id. at 188-90.      The Court further determined that

suppression would also be required under the more lenient Fourth Amendment

inevitable discovery standard applicable in cases where no police misconduct

is present because the application for the search warrant was premised upon

the officers’ observations during their initial entry, obviating the possibility

that the magistrate who issued the warrant had an independent source for the

issuance of the warrant. Id. at 189-90.

      The failure of the inevitable discovery doctrine to overcome the

exclusionary rule’s protection of the essential privacy rights embedded in

Article I, Section 8, naturally follows from our prior decision in Berkheimer.

In this case, as in Berkheimer, the troopers had probable cause to obtain a

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search warrant based upon the detection of the marijuana smell prior to their

warrantless entry of the residence. However, despite the presence of probable

cause and the opportunity to obtain a search warrant for the premises, the

troopers made a warrantless entry to the residence. This warrantless entry

triggered the heightened standard under Article I, Section 8 of the

Pennsylvania Constitution. In both this case and Berkheimer, there was only

a single law enforcement investigative team involved in the case. Therefore,

it was impossible to show a “truly independent source” that would have led to

the inevitable discovery of the contraband. Moreover, like in Berkheimer,

the troopers’ search warrant incorporated information gathered from their

warrantless entry precluding invocation of inevitable discovery as an exception

to the exclusionary rule even assuming the less onerous Fourth Amendment

version of that standard applied in this case.

      We next address the Commonwealth’s argument the evidence collected

from the detached shed behind the house, including approximately 50 live

marijuana plants and marijuana growing equipment, should not have been

suppressed because the troopers obtained a search warrant prior to entering

the shed. This argument was not raised in the Commonwealth’s Pa.R.A.P.

1925(b) statement of errors complained of on appeal nor is it raised in the

statement of questions presented section of the Commonwealth’s brief;

accordingly, this argument is waived. Pa.R.A.P. 302(a) (“Issues not raised in

the lower court are waived and cannot be raised for the first time on appeal.”);

Commonwealth v. Proctor, 156 A.3d 261, 267 (Pa. Super. 2017) (“[I]t is

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well-settled that issues that are not set forth in an appellant’s statement of

matters complained of on appeal are deemed waived.”) (citation, quotation

marks, and brackets omitted); Krebs v. United Refining Company of

Pennsylvania, 893 A.2d 776, 797 (Pa. Super. 2006) (issue not set forth in

or suggested by the statement of questions involved in an appellate brief is

deemed waived under Pa.R.A.P. 2116(a)).

      Even if not waived, however, this argument would fail.                 “The

exclusionary remedy for illegal searches and seizures extends not only to the

direct product of the illegality, the primary evidence, but also to the indirect

product of the search or seizure, the secondary or derivative evidence.”

Fulton, 179 A.3d at 490 (citation omitted). The focus of the inquiry as to

whether the challenged evidence constitutes “fruit of the poisonous tree” is

whether such evidence was obtained via exploitation of the initial illegality.

Id.; Commonwealth v. Shabezz, 166 A.3d 278, 289 (Pa. 2017). If the

evidence is a product of the initial illegality, it “may nonetheless be usable and

admissible if the connection between the information obtained was sufficiently

attenuated from the illegal search, thus removing the taint of the original

illegality.” Fulton, 179 A.3d at 490. The “traditional circumstances that have

been found to purge the taint of an unconstitutional act” include “attenuation,

inevitable discovery, independent source, or some other intervening act or

event.” Shabezz, 166 A.3d at 290.

      In this case, there is no doubt that the search of the shed was the fruit

of the earlier warrantless search of the residence as the search of the shed

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occurred on the same day, directly following the warrantless search of the

residence. For the same reasons as described above, the inevitable discovery

doctrine is unavailing to the Commonwealth because no truly independent

source of information was shown for the search of the shed and the troopers’

observations of the contraband detected during the warrantless search of the

house was incorporated into the affidavit of probable cause for the search

warrant for the shed. Furthermore, no evidence was presented to the trial

court of any intervening event or other attenuating factor following the

unconstitutional entry of the residence that would serve to purge the taint of

illegality from the later search of the shed.

       Based upon the foregoing, we conclude that the trial court properly

granted the motions to suppress the evidence gathered at the Smithfield

property and dismissed the criminal charges against Appellees that were

based on the evidence collected. The Commonwealth’s final appellate issue

related to the trial court’s ruling that the Commonwealth did not present a

prima facie case as to the charges of dealing in proceeds of unlawful activities.

However, as we have already ruled that the evidence underlying these charges

was properly excluded, we need not address this portion of the trial court’s

November 7, 2018 order in this decision.7

       Order affirmed.

____________________________________________


7 The Commonwealth recognized in its appellate brief that its third appellate
issue only applied if it was meritorious in its claim challenging the grant of
Appellees’ motions to suppress. Commonwealth’s Brief at 23.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2019




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