J-A16023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

VINCENT PAUL CHURCH,

                        Appellant                  No. 1244 WDA 2015


          Appeal from the Judgment of Sentence of July 14, 2015
          In the Court of Common Pleas of Westmoreland County
            Criminal Division at No(s): CP-65-CR-0000465-2014


BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 24, 2016

     Appellant, Vincent Paul Church, appeals from the judgment of

sentence entered on July 14, 2015. We affirm.

     The suppression court made the following factual findings:

     Andrew Toth, a narcotics agent from the Office of the Attorney
     General, testified that he, along with Rostraver and Clairton
     police officers, were present at [Appellant’s] home [in] Belle
     Vernon, PA [on January 8, 2014]. The officers were armed with
     a search warrant but, prior to executing the warrant, observed
     the home for approximately three hours, or until 12:14 p.m.
     when [Appellant] was seen leaving. The plan was to conduct
     surveillance and, when [Appellant] left his home, to follow and
     stop him.

     Once [Appellant] was approximately one[-]half to one mile from
     his home, a marked police car pulled him over. Police did not
     have an arrest warrant nor was any traffic violation committed.
     In fact, when police hailed his vehicle, [Appellant] pulled over
     immediately.




*Retired Senior Judge assigned to the Superior Court.
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        [Appellant] was informed that there was a search warrant for his
        residence and for this reason he was being detained. Prior to
        being placed in the police vehicle[,] he was handcuffed and
        searched. The search revealed a snuff can located in his back
        pocket which was opened and found to contain [illegal
        narcotics].

        Once in transit to his home, and thereafter, [Appellant] informed
        police that no one else was in the home and repeatedly
        requested that they use his key to open the door in order to
        avoid damaging it. Police then knocked and announced their
        identity, presence, and intent, waiting 45-60 seconds before
        using the key and entering the premises. Once inside, a search
        revealed narcotics in a white mug, [$3,000.00] in cash, and a
        safe for which a second warrant was obtained. Agent Toth
        stated that [Appellant] was arrested as a result of the items that
        were located during the search of the residence.

Suppression Court Opinion, 2/18/2015, at 1-2 (internal citations omitted).

        The procedural history of this case is as follows.        On February 13,

2014, the Commonwealth charged Appellant via criminal information with

possession of a controlled substance1 and possession of a controlled

substance with intent to deliver.2             On May 21, 2014, Appellant filed an

omnibus pre-trial motion which included a motion to suppress.                   A

suppression hearing was held on September 30, 2014.

        On February 18, 2015, the suppression court entered findings of fact

and conclusions of law and granted in part and denied in part Appellant’s

motion to suppress. The suppression court granted the motion to suppress

____________________________________________


1
    35 P.S. § 780-113(a)(16).
2
    35 P.S. § 780-113(a)(30).



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in regards to evidence recovered from the illegal traffic stop; however, it

denied the motion to suppress in regards to evidence found in Appellant’s

residence. Appellant filed a motion to reconsider, which was denied by the

suppression court.

       Appellant proceeded with a stipulated bench trial on July 14, 2015.

The trial court found Appellant guilty of both offenses and sentenced him to

9 to 18 months’ incarceration. This timely appeal followed.3

       Appellant presents two issues for our review:

       1. Whether the police illegally executed the search warrant at
       the home of [A]ppellant [] in violation of Article I, § 8 of the
       Pennsylvania Constitution and Rule 207 of the Pennsylvania
       Rules of Criminal Procedure by the failure to comply with the
       knock and announce rule?

       2. Whether the police, by initially illegally arresting and detaining
       [A]ppellant [] and seizing his house key during that illegal
       detention, and thereafter using the illegally seized house key to
       gain entrance to his premises, illegally executed the search
       warrant?

Appellant’s Brief at 3.

       Our “standard of review in addressing a challenge to the denial of a

suppression motion is limited to determining whether the suppression court’s

____________________________________________


3
  On August 6, 2015, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).    On August 26, 2015, Appellant filed his concise
statement. On September 21, 2015, the trial court issued an order in lieu of
an opinion referencing the suppression court’s findings of fact and
conclusions of law. Both of Appellant’s issues were included in his concise
statement.



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factual findings are supported by the record and whether the legal

conclusions drawn from those facts are correct.”        Commonwealth v.

Garibay, 106 A.3d 136, 138 (Pa. Super. 2014), appeal denied, 123 A.3d

1060 (Pa. 2015) (citation omitted). “[O]ur scope of review is limited to the

factual findings and legal conclusions of the suppression court.” In re L.J.,

79 A.3d 1073, 1080 (Pa. 2013) (citation omitted). “We may consider only

the Commonwealth’s evidence and so much of the evidence for the defense

as remains uncontradicted when read in the context of the record as a

whole.”   Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation

omitted). “Once a defendant files a motion to suppress, the Commonwealth

has the burden of proving that the evidence in question was lawfully

obtained without violating the defendant’s rights.” Commonwealth v.

Fleet, 114 A.3d 840, 844 (Pa. Super. 2015) (citation omitted).

     Appellant’s first claim asserts that the police illegally executed the

search warrant for Appellant’s home by failing to comply with the knock and

announce rule.    That rule, however, does not apply in this case.         Our

Supreme Court recognizes four exceptions to the knock and announce rule:

     (1) the occupants remain silent after repeated knocking and
     announcing; (2) the police are virtually certain that the occupants
     of the premises already know their purpose; (3) the police have
     reason to believe that an announcement prior to entry will imperil
     their safety; and (4) the police have reason to believe that
     evidence is about to be destroyed.

Commonwealth v. Means, 614 A.2d 220, 222-223 (Pa. 1992). In order to

invoke one of these exceptions, police officers must only possess reasonable

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suspicion that one of the exceptions is satisfied. Commonwealth v. Kane,

940 A.2d 483, 489 (Pa. Super. 2007), appeal denied, 951 A.2d 1161 & 951

A.2d 1163 (Pa. 2008).

      The Commonwealth argues that the second exception to the knock and

announce rule applies in this case.       We agree.     Contrary to Appellant’s

contention, see Appellant’s Brief at 19, this Court has held that police have

no obligation to knock and announce when they reasonably believe that the

residence is unoccupied.     See Commonwealth v. Baker, 522 A.2d 643,

646-647 (Pa. Super. 1987) (holding that when the house is unoccupied, the

second Means exception applies).       In addition to Appellant’s statement to

police that the residence was unoccupied, police independently acquired

reasonable suspicion to believe that the residence was unoccupied. Officers

surveilled Appellant’s residence for three hours prior to entering the

residence.    While doing so, they did not observe anyone, other than

Appellant, enter or leave the residence.        N.T., 8/29/2014, at 6, 14-15.

Accordingly, Appellant is not entitled to relief on this issue.

      In his next issue, Appellant argues that the police illegally executed

the search warrant by using his house key.             Appellant’s Brief at 29.

Specifically, Appellant contends that the house key was illegally seized from

him as a result of his unlawful detention. The suppression court found, and

the Commonwealth does not contest, that Appellant’s detention was

unlawful.    Suppression Court Opinion, 2/18/2015, at 4; Commonwealth’s


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Brief at 13. Appellant argues that consent during an unlawful detention is

ipso facto involuntary.

      We find most of the cases cited by Appellant in his brief inapposite to

the case at bar. In most of the cases cited by Appellant, police lacked an

independent, legal justification to conduct the challenged search. Instead, in

most of the cases cited by Appellant, the police only conducted the search

because of the illegal detention.   E.g., Commonwealth v. Acosta, 815

A.2d 1078 (Pa. Super. 2003) (en banc), appeal denied, 839 A.2d 350 (Pa.

2003); Commonwealth v. Key, 789 A.2d 282 (Pa. Super. 2001), appeal

denied, 805 A.2d 521 (Pa. 2002).       Here, the police had a valid search

warrant authorizing entry into Appellant’s residence long before they

detained him.

      Appellant argues that Commonwealth v. Melendez, 676 A.2d 226

(Pa. 1996), is “perhaps the most similar case to the present” case.

Appellant’s Brief at 35.   Although there are some similarities between the

case sub judice and Melendez, the factual differences between the two

cases are legally significant.   In Melendez, the police illegally stopped

Melendez

      then transported Melendez back to her house, where they used
      her keys to gain entrance. . . . Police then secured the house
      and its occupants and waited for communication as to whether
      or not the search warrant had been approved.                 For
      approximately an hour, police waited at the scene with both
      occupants of the dwelling, but did not conduct a search. Finally,
      the warrant arrived and they searched the house, finding drugs,


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      cash[,] and other evidence which was used to obtain the
      convictions.

Id. at 227.      Our Supreme Court held that the drugs, cash, and other

evidence must be suppressed because they were the fruits of an illegal

search.   Id. at 228-230.    Key to this determination was the fact that (1)

Melendez did not voluntarily consent to police searching her residence and

(2) “[g]overnment agents may not enter private dwellings through the use

of battering rams . . . or by effecting illegal stops and seizures as in this

case, and secure the premises by detaining those who occupy the premises

while police wait to learn whether their application for a warrant has

been approved.” Id. at 231 (emphasis added).

      In this case, police did not search the residence based upon

Appellant’s alleged consent like the police did in Melendez. Furthermore, in

the case at bar, police already had a search warrant for the residence prior

to illegally detaining Appellant. Police did not detain Appellant and then wait

for their search warrant application to be approved.         This distinction is

critical because in Melendez police had no idea whether their search

warrant application would be approved. Thus, their use of the key to enter

the residence prior to approval and issuance of the search warrant violated

the   occupants’    rights   under   the   United   States   and   Pennsylvania

constitutions.   In this case, police already had a search warrant in hand.

Thus, they had the authority to enter Appellant’s residence whether they

used the key, a battering ram, or some other method.

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      We find instructive our Supreme Court’s decision in Commonwealth

v. Carlton, 701 A.2d 143 (Pa. 1997), for two reasons. First, in Carlton our

Supreme Court held that police are authorized to use force when executing a

search warrant if they possess reasonable suspicion that the residence is

unoccupied. See id. at 147, citing Means, 614 A.2d 220. As noted above,

police possessed reasonable suspicion that Appellant’s residence was

unoccupied and thus they had the authority to use force to enter the

residence. One option for the use of force was a battering ram; however,

Appellant asked police not to use that option and to instead use his key.

The use of the key, as Appellant argues, was a use of force. Police chose to

use the manner of force requested by Appellant.       By granting Appellant’s

request, the police merely chose the least destructive option to enter the

residence. Thus, the police neither requested nor recovered Appellant’s key

for purposes of securing his consent to search the home and seize

contraband maintained therein.     The use of Appellant’s house key in this

case was plainly practical, not evidentiary, as the suppression court correctly

found.   The remedy for evidence gathered during an illegal detention is

suppression and he received that remedy in this case. Appellant’s effort to

extend the remedy of suppression to preclude extra-judicial utility stretches

our search and seizure jurisprudence too far.

      That leads to the second reason we find Carlton instructive.          In

Carlton, our Supreme Court emphasized that one of the key reasons for the


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knock and announce rule is to “prevent[] property damage resulting from

forced entry during the execution of a search warrant.” Id. at 146, citing

Commonwealth v. Crompton, 682 A.2d 286 (Pa. 1996).                    If we adopted

the reasoning advanced by Appellant, we would eviscerate this purpose by

holding that the police could have legally searched the residence if they used

a battering ram but their use of Appellant’s key invalidated the search. The

knock and announce rule, and other United States and Pennsylvania

constitutional jurisprudence, is meant to protect the privacy interests of

citizens. We refuse to adopt a rule that not only encourages, but requires,

that police destroy a citizen’s property in order to prevent suppression of

evidence gathered pursuant to a lawful search warrant.

      Appellant’s    unlawful   detention   did   not   go   unaddressed.        The

suppression court correctly suppressed all evidence seized from Appellant’s

person. Furthermore, although the record is unclear as to whether the key

was   subject   to     the   suppression    court’s     suppression     order,   the

Commonwealth did not offer the key into evidence. Thus, Appellant got the

full benefit of the suppression court’s ruling. Nothing gathered as a result of

the illegal detention was used against him at trial. Police had the right to

enter his home by virtue of the lawfully issued search warrant. The mere

fact that police used Appellant’s key to enter his residence does not require

the suppression of the items found in the residence.




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      Appellant also relies on the Court of Appeals of Ohio’s decision in Ohio

v. Thompson, 659 N.E.2d 1297 (Ohio Ct. App. 1995), appeal dismissed,

655 N.E.2d 738 (Ohio 1995), in support of his argument that using illegally

seized keys to conduct a search requires suppression of any evidence found

during that search. Contrary to Appellant’s argument, however, police did

not have a search warrant for the vehicle they opened with the illegally

seized keys. Instead, the police relied upon the defendant’s consent, which

they received during the course of an illegal detention, to conduct the search

of the vehicle.      See Thompson, 659 N.E.2d at 1299.             Therefore,

Thompson is distinguishable from the case at bar for the same reasons that

Acosta, Key, and similar cases are distinguishable.

      The police in this case unlawfully detained Appellant and the

suppression court properly excluded evidence gathered as a result of that

illegal detention.    Nevertheless, the suppression court properly denied

Appellant’s suppression motion as to evidence recovered from a search

conducted pursuant to a lawfully issued search warrant.      Accordingly, we

affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2016




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