J-A15031-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
                                             :
                                             :
               v.                            :
                                             :
ERIN BROPHY-DESANTE,                         :
                                             :
                    Appellant                :           No. 1849 MDA 2016

          Appeal from the Judgment of Sentence October 20, 2016
              in the Court of Common Pleas of Berks County,
            Criminal Division, No(s): CP-06-CR-0005199-2015

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                           FILED AUGUST 23, 2017

      Erin Brophy-Desante (“Brophy-Desante”) appeals from the judgment

of sentence imposed following her conviction of possession of a controlled

substance. See 35 P.S. § 780-113(a)(16). We affirm.

      On August 26, 2013, at approximately 9:00 p.m., Muhlenberg

Township Police Officer Thenard Caraballo (“Officer Caraballo”) received a

dispatch notification regarding a SAM1 crisis requiring police assistance.

SAM   crisis    personnel   had   notified   the   Muhlenberg   Township   Police

Department that a client (Brophy-Desante) was on the phone, and they

believed that, based on her history, she should be taken to the hospital for




1
 SAM (Service Access and Management) provides mental health services in
Berks County. See N.T. (Pretrial Hearing), 2/11/16, at 4-5.
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an involuntary emergency examination and treatment, pursuant to section

302 of the Mental Health Procedures Act (“302 commitment”).2

        Officer Caraballo proceeded to Brophy-Desante’s home, and waited for

Officer Chris Orzech (“Officer Orzech”) to arrive. Both officers approached

the residence, and Officer Caraballo knocked on the door and announced

that they were police officers.         Brophy-Desante opened the door, but

became uncooperative when the officers informed her that they had received

a report from SAM, and were directed to take her into custody for a 302

commitment. Brophy-Desante moved toward the rear of the residence, and

the officers placed her in handcuffs.

        Brophy-Desante was not wearing shoes at that time, so the officers

asked her what she would like to wear. Brophy-Desante pointed to a pair of

sneakers in her kitchen. The officers escorted Brophy-Desante to a chair at

her kitchen table, and assisted her in putting on her sneakers. The officers

then asked Brophy-Desante whether there was anything else she needed to

take with her.    Brophy-Desante asked for her purse, and indicated that it

was on the bathroom floor. Officer Orzech retrieved the purse.

        Officer Caraballo informed Brophy-Desante that he would have to

search her purse, because she was in police custody, and because she was

going to be admitted to a secure area of the hospital for treatment. When

Officer Caraballo searched the main compartment of the purse, he


2
    See 50 P.S. § 7302.


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discovered a transparent plastic makeup container, inside of which were two

plastic bags—one containing a white, powdery substance, and the other

containing a “rock” about the size of a quarter.     Officer Caraballo asked

Brophy-Desante if the substance was cocaine, and she replied that it was

“meth.”     Officer Caraballo asked Brophy-Desante to clarify whether she

meant methamphetamine, and she said yes. Officer Josh Candee performed

a NIK test3 prior to inventorying the evidence, and the substance tested

positive for methamphetamine.4

        On February 1, 2016, Brophy-Desante filed an Omnibus Pretrial

Motion, including a Motion to suppress the physical evidence recovered from

her purse, on the basis that the evidence was the result of an illegal search,

as well as her statements to the police, on the basis that she was subjected

to a custodial interrogation without being informed of her Miranda5 rights.

The suppression court conducted a hearing, during which Officer Caraballo

was presented as the only witness. The suppression court denied Brophy-

Desante’s Motion to suppress.




3
  A NIK test (Narcotic Identification Kit) is a presumptive field test used to
identify drugs and controlled substances.
4
 A sample of the substance was also sent to the state police lab for testing,
but the results of that test were not available at the time of the pretrial
hearing.
5
    Miranda v. Arizona, 384 U.S. 436 (1966).


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     Following a jury trial, Brophy-Desante was convicted of one count of

possession of a controlled substance. On October 20, 2016, the trial court

sentenced Brophy-Desante to one year of probation. Brophy-Desante filed a

post-sentence Motion, which the trial court denied.        Brophy-Desante

subsequently filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.

1925(b) Concise Statement of errors complained of on appeal.

     On appeal, Brophy-Desante raises the following issues for our review:

     1. Whether the [suppression] court erred in denying [Brophy-
     Desante’s M]otion to suppress the contraband seized from her
     purse in that:

           a. The police exceeded the scope of a valid search
           for officer safety[;]

           b. The plain view exception to the warrant
           requirement does not apply where the officer was
           not at a lawful vantage point, the incriminating
           nature of the substance was not immediately
           apparent and the officer did not have lawful access
           to the contraband[;] and

           c. The Commonwealth failed to establish facts that
           would support the doctrine of inevitable discovery?

     2. Whether the [suppression] court erred in denying [Brophy-
     Desante’s M]otion to suppress her statement to police[,] where
     the police failed to provide [Brophy-Desante] with Miranda
     warnings at the time that [Brophy-Desante] was subject to a
     custodial detention[,] and the officer’s inquiry about the
     substance seized from [Brophy-Desante’s] purse was calculated
     to, expected to and likely to evoke admission from [Brophy-
     Desante]?

Brief for Appellant at 5 (issues renumbered).

          In reviewing the denial of a motion to suppress, our
     responsibility is to determine whether the record supports the


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      suppression court’s factual findings and legitimacy of the
      inferences and legal conclusions drawn from those findings. If
      the suppression court held for the prosecution, we consider only
      the evidence of the prosecution’s witnesses and so much of the
      evidence for the defense as, fairly read in the context of the
      record as a whole, remains uncontradicted. When the factual
      findings of the suppression court are supported by the evidence,
      the appellate court may reverse if there is an error in the legal
      conclusions drawn from those factual findings.

Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation

omitted).

      In her first claim, Brophy-Desante argues that the trial court erred in

denying her Motion to suppress the physical evidence recovered during the

search of her purse.   Brief for Appellant at 17.   Brophy-Desante contends

that Officer Caraballo exceeded the scope of a valid search for officer safety

because the makeup bag could not have contained a weapon. Id. at 17-18.

Brophy-Desante also asserts that the Commonwealth had not satisfied its

burden regarding the 302 commitment, and therefore, Officer Caraballo was

not at a lawful vantage point when he observed drugs in Brophy-Desante’s

purse.      Id. at 19-20.   Brophy-Desante claims that the incriminating

character of the substance was not immediately apparent to Officer

Caraballo, and that he did not have a lawful right to access the makeup bag

contained therein. Id. at 20-21. Additionally, Brophy-Desante argues that

the inevitable discovery doctrine does not apply to this case, because the

Commonwealth had not properly established whether the hospital, as part of




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its intake procedures, would have conducted an inventory search of Brophy-

Desante’s personal items. Id. at 21-23.

      Both the United States and Pennsylvania Constitutions protect people

from unreasonable searches and seizures.          See Commonwealth v.

McCree, 924 A.2d 621, 626 (Pa. 2007).            Although involuntary civil

commitments are not based on criminal standards and procedures, persons

subjected to involuntary civil commitment proceedings are entitled to the

protections afforded by the Fourth Amendment to the United States

Constitution, and Article I, Section 8 of the Pennsylvania Constitution. See

Commonwealth v. Fleet, 114 A.3d 840, 844 (Pa. Super. 2015); see also

id. (stating that “[i]t is the intrusion by the government, not the status of

the citizen, that triggers protection and inquiry into the reasonableness of

the intrusion.”).   Additionally, the Commonwealth bears the burden at a

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

the evidence was properly obtained. Commonwealth v. Jackson, 62 A.3d

433, 438 (Pa. Super. 2013).

      Notably, Brophy-Desante did not challenge the validity of the 302

commitment in her Omnibus Pretrial Motion, during the pretrial hearing, or

in her post-sentence Motion. See Pa.R.A.P. 302(a) (providing that “[i]ssues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.”); see also generally Fleet, 114 A.3d at 845 (considering

whether the Commonwealth met its burden of proving that requirements for



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the issuance of a 302 warrant had been met, where seizure occurred as the

result of the execution of a 302 warrant, and appellant challenged the

propriety of the warrant).    Additionally, section 302 of the Mental Health

Procedures Act allows     police   officers to   transport    individuals    to    an

appropriate facility for an involuntary emergency examination.              50 P.S.

§ 7302(a).    Here, Officer Caraballo testified that he responded to Brophy-

Desante’s home based upon information from SAM that Brophy-Desante

should be taken to the hospital for a 302 commitment. See N.T. (Pretrial

Hearing), 2/11/16, at 4-5, 13.     We therefore agree with the trial court’s

conclusion that Officer Caraballo and Officer Orzech were lawfully present in

Brophy-Desante’s home, and Brophy-Desante was lawfully seized for the

purpose of a 302 commitment.       See Trial Court Opinion, 1/13/17, at 7-8;

see also Jackson, 62 A.3d at 440 (concluding that officers were lawfully

present in appellant’s home to execute a 302 warrant when they observed,

in plain view, controlled substances, and those observations supported the

issuance of a search warrant).

     After Brophy-Desante was lawfully seized, the officers were permitted

to search Brophy-Desante and the items she asked to take with her, for

safety   purposes,   before   transporting   her   to   the    hospital.          See

Commonwealth v. Kendall, 649 A.2d 695, 698 (Pa. Super. 1994) (stating

that “it is unreasonable to expect a police officer to place a suspect in his

squad car for transport to another site without first taking reasonable



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measures to insure that the suspect is unarmed.”). At the pretrial hearing,

Officer Caraballo testified that when he asked Brophy-Desante if she needed

to take anything with her to the hospital, she specifically requested her

purse and told the officers where to find it.     See N.T. (Pretrial Hearing),

2/11/16, at 8-9, 14. According to Officer Caraballo, when an individual is in

custody, it is standard procedure to search the person, as well as any

personal belongings that would be carried into the police car. See id. at 9.

Officer Caraballo testified that Officer Orzech retrieved the purse, and Officer

Caraballo informed Brophy-Desante that anything she wanted to take along

would be searched as a safety precaution.         See id. at 9, 15.      Officer

Caraballo testified that when he looked into the main compartment of the

purse, he noticed a transparent plastic makeup container, inside of which

were two plastic bags—one containing a white, powdery substance, and the

other containing a “rock” about the size of a quarter. See id. at 10, 11, 15.

Officer Caraballo also testified that the container was visible as soon as he

opened the purse, and the contents of the container were immediately

visible. See id. 10-11. Additionally, Officer Caraballo testified that, based

on his previous experience as an undercover narcotics officer in Lancaster

County, he suspected that the substance was cocaine.        See id. at 11-12.

Based upon the foregoing, we conclude that Officer Caraballo lawfully

observed the contraband, the illicit nature of which was immediately

apparent through the transparent container, during the course of a valid



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safety search.   See Kendall, 649 A.2d at 698 (concluding that weapons

search of defendant’s purse prior to transport was justified). Thus, the trial

court did not err in denying Brophy-Desante’s Motion to suppress the

methamphetamine.6

      In her second claim, Brophy-Desante asserts that the trial court erred

in denying her Motion to suppress her statement to police that the substance

found in her purse was methamphetamine.           Brief for Appellant at 13.

Brophy-Desante argues that she was subjected to a custodial interrogation




6
  Moreover, we conclude that, even if Officer Caraballo had exceeded the
lawful scope of the search, the evidence obtained from Brophy-Desante’s
purse would be admissible pursuant to the inevitable discovery doctrine.
See Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa. Super. 2009)
(stating that “[i]f the prosecution can establish by a preponderance of the
evidence that the illegally obtained evidence ultimately or inevitably would
have been discovered by lawful means, the evidence is admissible. The
purpose of the inevitable discovery rule is to block setting aside convictions
that would have been obtained without police misconduct.”). During the
pretrial hearing, Officer Caraballo testified that the hospital’s “internal
security guidelines dictate a security officer will meet a person in police
custody, [and] inventory every single item that person brings in….” N.T.
(Pretrial Hearing), 2/11/16, at 12-13; see also id. at 17-18 (wherein Officer
Caraballo testified that he is familiar with the hospital’s intake procedures,
and any items coming in with a person would be documented). Officer
Caraballo also testified that he had previously received calls from the
hospital regarding illegal items found during intake. See id. at 13. Thus,
the challenged evidence would have been discovered by lawful means during
the hospital’s intake procedures. See Bailey, supra; see also Trial Court
Opinion, 1/13/17, at 9-10 (wherein the trial court, considering the inevitable
discovery doctrine, concluded that the contraband would have been lawfully
discovered during the hospital’s inventory).


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without being informed of her Miranda rights. Id. at 13, 14, 16. Brophy-

Desante also claims that Officer Caraballo’s questions were intended to elicit

an incriminating response. Id. at 16-17.

             Statements made during the custodial interrogation are
      presumptively involuntary, unless the accused is first advised of
      … Miranda rights. Commonwealth v. DiStefano, 782 A.2d
      574, 579 (Pa. Super. 2001), appeal denied, [806 A.2d 858 (Pa.
      2002)]. Custodial interrogation is “questioning initiated by law
      enforcement officers after a person has been taken into custody
      or otherwise deprived of [her] freedom of action in any
      significant way.” Miranda, [384 U.S. at 444]. “The Miranda
      safeguards come into play whenever a person in custody is
      subjected to either express questioning or its functional
      equivalent.” Commonwealth v. Gaul, [912 A.2d 252, 255 (Pa.
      2006), cert. denied, 552 U.S. 939 (2007)].                  Thus,
      “interrogation occurs where the police should know that their
      words or actions are reasonably likely to elicit an incriminating
      response from the suspect.” Commonwealth v. Ingram, 814
      A.2d 264, 271 (Pa. Super. 2002), appeal denied, [821 A.2d
      586 (Pa. 2003)]. “In evaluating whether Miranda warnings
      were necessary, a court must consider the totality of the
      circumstances….” Gaul, supra.

            Whether a person is in custody for Miranda
            purposes depends on whether the person is
            physically denied of [her] freedom of action in any
            significant way or is placed in a situation in which
            [she] reasonably believes that [her] freedom of
            action    or   movement       is restricted by    the
            interrogation.     Moreover, the test for custodial
            interrogation does not depend upon the subjective
            intent of the law enforcement officer interrogator.
            Rather, the test focuses on whether the individual
            being interrogated reasonably believes [her] freedom
            of action is being restricted.

      Commonwealth v. [Williams, 650 A.2d 420, 427 (Pa. 1994)]
      (internal citations omitted).




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Commonwealth v. Gonzalez, 979 A.2d 879, 887-88 (Pa. Super. 2009);

see also Commonwealth v. Johnson, 42 A.3d 1017, 1028 (Pa. 2012)

(stating that “[t]he standard for determining whether an encounter with the

police is deemed ‘custodial’ is an objective one based on a totality of the

circumstances with due consideration given to the reasonable impression

conveyed to the person interrogated[.]” (citation and ellipses omitted));

Commonwealth v. Page, 965 A.2d 1212, 1218 (Pa. Super. 2009) (stating

that “[a] person is considered to be in custody for the purposes of Miranda

when the officer’s show of authority leads the person to believe that she was

not free to decline the officer’s request, or otherwise terminate the

encounter.” (citation omitted)).

      Here, the trial court concluded that Brophy-Desante was not subjected

to a custodial interrogation, because the incriminating nature of the

substance was already apparent at that time, and because Officer

Caraballo’s questions were not designed to evoke an incriminating response.

See Trial Court Opinion, 1/13/17, at 11-13. We disagree.

      At the time Officer Caraballo asked Brophy-Desante about the

substance found in her purse, Brophy-Desante had already been informed

that she was being taken into custody for a 302 commitment.        See N.T.

(Pretrial Hearing), 2/11/16, at 7-8, 14-16.    Additionally, Brophy-Desante

was physically restrained and placed in handcuffs shortly after the officers

entered her residence.    See id. at 8, 14.   The questioning also occurred



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after Officer Caraballo had informed Brophy-Desante that he would search

everything Brophy-Desante brought with her.     See id. at 9, 19.   Further,

during the pretrial hearing, Officer Caraballo indicated that Brophy-Desante

had been taken into police custody.      See id. at 14; see also id. at 9

(wherein Officer Caraballo described the standard procedure for taking a

person into custody). Officer Caraballo also conceded that he did not advise

Brophy-Desante of her Miranda rights.       See id. at 15.     Under these

circumstances, Brophy-Desante would not have reasonably believed that she

was free to leave or terminate the encounter. We therefore conclude that

Brophy-Desante was in custody for the purposes of Miranda at the time

Officer Caraballo questioned her about the substance found in her purse.

See Gonzalez, supra; see also Page, supra.          Thus, Brophy-Desante’s

statement should have been suppressed.      However, because we conclude

that the methamphetamine was seized pursuant to a lawful search, and

would have been discovered and identified irrespective of whether Brophy-

Desante made the incriminating statement, we affirm the judgment of

sentence.   See Ingram, 814 A.2d at 271-72 (concluding that, despite a

Miranda violation, defendant’s motion to suppress was properly denied

where evidence inevitably would have been discovered in a lawful search

incident to arrest).




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/23/2017




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