J-S58011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                             Appellant

                        v.

MANDY LEANE COOK,

                             Appellee                      No. 525 MDA 2015


                    Appeal from the Order Entered March 9, 2015
                   in the Court of Common Pleas of Centre County
                  Criminal Division at No.: CP-14-CR-0001490-2014

BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED NOVEMBER 24, 2015

        The Commonwealth appeals from the order of March 9, 2015, which

granted     the    motion    of   Appellee,    Mandy    Leane   Cook,   to   suppress

photographs taken of her home.1 After review, we affirm.

        We take the underlying facts and procedural history in this matter

from the December 23, 2014 notes of testimony, our independent review of

the certified record, and the trial court’s March 9, 2015 opinion.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The Commonwealth may take an appeal of right from an order that does
not end the entire case if it certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d);
see also Commonwealth v. Torres, 764 A.2d 532, 536 n.2 (Pa. 2001).
The Commonwealth has included such a certification in this case.
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             At the [suppression] hearing, [Pennsylvania State Police]
       Trooper Jeffrey Ebeck testified he received a call from Patricia
       Mlynek, a broker for Advantage One Property. Ms. Mlynek
       advised Trooper Ebeck she had some concerns with the state of
       the property located at 122 Smullton Road in Rebers[b]urg,
       Pennsylvania, rented by [Appellee] and her family. Ms. Mlynek
       represented to Trooper Ebeck she was able to give him
       permission to enter the residence, as [Appellee] was “behind on
       the rent and . . . being allowed to live at the residence out of . . .
       kindness” on the part of Advantage One and the landlord,
       although eviction proceedings had been started. Ms. Mlynek
       advised Trooper Ebeck the back door of the residence would be
       unlocked.

            Trooper Ebeck went to the residence and entered through
       the aforementioned rear door, which was unlocked. He took
       photographs of the residence and its condition and spoke to
       neighbors. [Appellee] was not at the residence when Trooper
       Ebeck arrived and he testified it took him several months to
       make contact with her. Ultimately, charges[2] were filed against
       [Appellee] on August 20, 2014, approximately six months after
       Trooper Ebeck’s entry into the home.

(Trial Court Opinion, 3/09/15, at 1-2).

       On October 17, 2014, Appellee filed a motion to suppress. The trial

court held a hearing on Appellee’s motion on December 23, 2014. On March

9, 2015, the trial court issued an order granting the motion. The instant,

timely appeal followed.        On March 27, 2015, the trial court ordered the

Commonwealth to file a concise statement of errors complained of on

appeal.    See Pa.R.A.P. 1925(b).         The Commonwealth filed its timely Rule

1925(b) statement on April 17, 2015.             On April 23, 2015, the trial court
____________________________________________


2
  Appellee was charged with eight counts of endangering the welfare of
children, 18 Pa.C.S.A. § 4304(a)(1), and three counts of cruelty to animals,
18 Pa.C.S.A. § 5511(c)(1).



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issued an opinion, adopting its March 9, 2015 decision.           See Pa.R.A.P.

1925(a).

       On appeal, the Commonwealth raises the following question for our

review:

       1. Did the [trial] court err as a matter of law in granting
          [Appellee’s] [m]otion to [s]uppress when the search was
          constitutionally valid pursuant to the doctrine of apparent
          authority[?]

(Commonwealth’s Brief, at 4).

       The Commonwealth challenges the trial court’s grant of Appellee’s

motion to suppress, arguing that the trial court erred in suppressing the

photographs taken by Trooper Ebeck.          (See id. at 15-22).      When the

Commonwealth appeals from a suppression order, this Court follows a

clearly defined scope and standard of review: we consider only the evidence

from   the   defendant’s   witnesses   together   with   the   evidence   of   the

prosecution that, when read in the context of the entire record, remains

uncontradicted.   See Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.

Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008).           This Court must

first determine whether the record supports the factual findings of the

suppression court, and then determine the reasonableness of the inferences

and legal conclusions drawn from those findings. See id. Here, because our

review of the certified record supports the trial court’s factual findings and

because the inferences and legal conclusions that the trial court drew are

both reasonable and legally correct, we affirm.

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     The Fourth Amendment to the United States Constitution and Article 1,

§ 8 of the Pennsylvania Constitution require that searches be conducted

pursuant to a warrant issued by a neutral and detached magistrate.            A

warrantless search or seizure is per se unreasonable unless it falls within a

specifically enumerated exception. See Commonwealth v. Lee, 972 A.2d

1, 3 (Pa. Super. 2009). “A search warrant is not required, however, where a

person with the proper authority unequivocally and specifically consents to

the search.” Commonwealth v. Reid, 811 A.2d 530, 544 (Pa. 2002), cert.

denied, 540 U.S. 850 (2003) (citations and footnote omitted).

     The Commonwealth argues that the apparent authority exception to

the warrant requirement justifies the search in the instant matter.         (See

Commonwealth’s Brief, at 8). We disagree.

           A third party with apparent authority over the area to be
     searched may provide police with consent to search. Third party
     consent is valid when police reasonably believe a third party has
     authority to consent.      Specifically, the apparent authority
     exception turns on whether the facts available to police at the
     moment would lead a person of reasonable caution to believe
     the consenting third party had authority over the premises. If
     the person asserting authority to consent did not have such
     authority, that mistake is constitutionally excusable if police
     reasonably believed the consenter had such authority and police
     acted on facts leading sensibly to their conclusions of probability.

Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007), cert. denied,

552 U.S. 1234 (2008) (citations and quotation marks omitted). This Court

has discussed the standard to be applied when determining whether a police




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officer reasonably believed that a person possessed apparent authority to

consent.

     . . . [W]e are not allowing carte blanche consent entries into
     residences with the police officer being able to ratify his entry at
     a later date suppression hearing by merely stating that he was
     mistaken as to the actual authority of the consenting party. We
     hold that the police officer’s reasonable mistake must be judged
     from an objective standard based on the totality of the
     circumstances. Although the police officer’s state of mind is one
     factor to be considered in determining the reasonability of the
     mistake, it is not the only factor. Moreover, the police officer’s
     mistake must be reasonable. In ambiguous situations, those
     situations which would cause a reasonable person to question
     the consenting party’s actual authority or if the consenting
     party’s assertions of authority appear unreasonable, a police
     officer should make further inquiries to determine the status of
     the consenting party. Reliance on a third party’s bald assertion
     in such situations could subject any search to the remedy of the
     exclusionary rule.

Commonwealth v. Blair, 575 A.2d 593, 598 (Pa. Super. 1990), appeal

denied, 585 A.2d 466 (Pa. 1991) (citation and footnote omitted).

     In the instant matter, the Commonwealth does not argue that Ms.

Mlynek     had   actual   authority    to   consent   to   the   search.    (See

Commonwealth’s Brief, at 15-17). The Commonwealth also does not claim

that landlords have the actual authority to consent to a search of a tenant’s

residence. (See id. at 17); see also Commonwealth v. Davis, 743 A.2d

946, 951 (Pa. Super. 1999).           Lastly, the Commonwealth concedes that

Trooper Ebeck knew that a landlord could not consent to a search of a

tenant’s residence.   (See Commonwealth’s Brief, at 17; N.T. Suppression

Hearing, 12/23/14, at 15).


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       Instead, the Commonwealth relies upon the Pennsylvania Supreme

Court’s plurality decision in Commonwealth v. Hughes, 836 A.2d 893 (Pa.

2003) and this Court’s decision in Commonwealth v. Basking, 970 A.2d

1181 (Pa. Super. 2009), appeal denied, 986 A.2d 148 (Pa. 2009).          The

Commonwealth argues that these cases support its position that Trooper

Ebeck’s conclusion that Ms. Mlynek had apparent authority to consent to the

search was reasonable.      (See Commonwealth’s Brief, at 21-22).        We

disagree.

       In Hughes, a parole officer and a police officer observed the

defendant standing outside a bar and wanted to question him about possible

parole violations. See Hughes, supra at 896. However, they lost sight of

the defendant and drove to his residence.      See id.    When the officers

arrived, there was a group of teenage girls standing on the porch. See id.

They asked if the defendant was home and the girls replied in the negative;

the officers then asked the girls if they could go into the house to look for

the defendant and the girls agreed.    See id. at 896-97.   Two of the girls

opened the door of the residence and followed the officers inside; while

searching the residence, they observed marijuana in plain view. See id. at

897.    Our Supreme Court held that the girls had apparent authority to

consent to the search.   See id. at 904.

       However, our Supreme Court based this holding on factors that are not

present in the instant matter.   Hughes placed great emphasis on the fact


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that, as a parolee, the defendant had a diminished expectation of privacy.

See id. at 899 (“The parole status of Appellant is significant because a

parolee has a diminished expectation of privacy and the Fourth Amendment

protections of a parolee are more limited than the protections afforded the

average citizen.”) (citations omitted).       Moreover, given the opinion’s

concluding paragraph, it is questionable whether Hughes even applies in a

case that does not involve parolees or individuals on probation. See id. at

904 (“Nevertheless, we need not reach the question of whether the

‘apparent authority exception’ should be applied in situations involving the

average citizen because Appellant is a parolee and, consequently, he has a

diminished expectation of privacy.”) (citation omitted).

      Further, in Hughes, the plurality emphasized the specific factual

circumstances in that case, namely that the girls were present at the home

and they were the ones who let the officers into the home, in finding that

the officers reasonably believed the girls had apparent authority to consent

to the search. See id. at 901. The opinion, described its reasoning thusly:

             In this case, the officers approached the approved parole
      residence of Appellant. Once they arrived, they noticed three
      teenage girls standing on the porch. They inquired whether
      Appellant was home and the girls responded that he was not.
      When Officer Vines asked the girls whether he and Officer Aldrich
      could enter the home and look for Appellant, they responded,
      “no problem,” and opened the door for them. The girls
      voluntarily gave the officers consent to enter the home; they did
      not hesitate in giving the officers their consent—they even
      opened the door to the residence for the officers. Additionally,
      the girls followed the officers into the house. The actions of the
      girls provided the officers with the reasonable belief that the girls

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        possessed common authority over the premises permitting them
        to provide valid consent to enter the residence.

Id. (emphasis in original) (record citation omitted).

        Likewise, Basking is factually distinct from the instant matter.   In

Basking, the police went to the home of a defendant, who was already in

custody, to search for a weapon used in an assault. See Basking, supra at

1185. The homeowner was the adult defendant’s mother and consented to

the search of the residence.    See id.    She let the police into the home,

accompanied them on a search of the first two floors, and volunteered that

any contraband would likely be found on the third floor where defendant

resided. See id. She then escorted the police to the third floor and told the

police to remove any contraband.      See id.   However, at the suppression

hearing, the mother admitted that she had not told police that she rented

the third floor to defendant; she and defendant had agreed that no one in

the house could access the third floor; and she had not been up to the third

floor in years. See id. at 1185-86. In holding that the police reasonably

believed that the mother had apparent authority to consent to the search,

we focused on a combination of factors, namely the close familial

relationship between the parties, the mother’s ownership of the property,

and her actions and assistance to the police during the search. See id. at

1191.

        The factors emphasized in Hughes and Basking are simply not

present in the instant matter. Appellee is not on parole and Ms. Mlynek is

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not a close relative who owns the home and resides there. Ms. Mlynek was

not present at the residence during the search and there is no evidence of

record that she physically gave Trooper Ebeck access to the home.3 In both

Hughes and Basking, the plurality and this Court emphasized the presence

at the scene of the individuals who consented to the search and their actions

in physically giving the police access to the residence and accompanying

them into the residence. See Hughes, supra at 901; Basking, supra at

1191; see also Strader, supra at 635 (finding officers reasonably believed

occupant of apartment had apparent authority to consent to search where

occupant answered door, spoke with police, stated he had authority to

control who entered apartment, and agreed to let police enter); Blair,

supra at 598-99 (holding police reasonably believed woman who opened

door to defendant’s home had apparent authority to consent to entry where

she stated that defendant was present, officers did not seek entry to home

but rather asked to speak with defendant, and in response woman “ushered”



____________________________________________


3
  While the Commonwealth argues that Ms. Mlynek left the door unlocked for
Trooper Ebeck, the certified record does not support this statement. (See
Commonwealth’s Brief, at 19). At the suppression hearing, Trooper Ebeck
testified that Ms. Mlynek told him on the telephone that the back door was
unlocked. (See N.T. Suppression Hearing, at 10). Ms. Mlynek did not make
any statements with respect to the door at the hearing. (See id. at 17-22).
Thus, it is impossible to tell from the record whether Ms. Mlynek left the
door unlocked for Trooper Ebeck or Appellee generally did not lock the back
door.



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them into home where defendant was in plain sight). Thus, neither Hughes

nor Basking provide legal support for the Commonwealth’s position.

     We next turn to the question of whether the facts in the instant matter

support a conclusion that Trooper Ebeck’s belief that Ms. Mlynek had

apparent authority to consent to the search was reasonable under the

standards enunciated in Strader and Blair. See Strader, supra at 634;

Blair, supra at 598.     Here, the Commonwealth lists fourteen different

factors that it believes contributed to the reasonableness of Trooper Ebeck’s

belief that Ms. Mlynek had apparent authority to consent to the search of the

residence. (See Commonwealth’s Brief, at 18-19). These factors are:

     (1) a broker for the rental residence, Patricia Mlynek, reported
     concerns about the status of the property; (2) the condition of
     the property was at issue; (3) the welfare of animals living inside
     it were at issue; (4) [Children and Youth Services] had been to
     the residence on multiple occasions within the past eight (8)
     days to check on the welfare of the children; (5) [Children and
     Youth Services] was accompanied by uniformed law enforcement
     officers during these visits; (6) [Appellee] was behind on rent at
     the time of the search; (7) eviction proceedings had been
     initiated; (8) [Appellee] was only being allowed to stay there out
     of charity on the part of the rental agent, Ms. Mlynek—not the
     landlord; (9) [Appellee] was not home at the time Ms. Mlynek
     went to visit the property; (10) [Appellee] was not home at the
     time of [Trooper] Ebeck’s search; (11) Ms. Mlynek specifically
     stated she was the individual who had the authority to make
     decisions regarding the residence; (12) Ms. Mlynek told
     [Trooper] Ebeck that [Appellee] no longer had a right to be there
     (thus Trp. Ebeck believed the issue of consent could not be
     granted by [Appellee]); (13) Ms. Mlynek told [Trooper] Ebeck
     you have permission to enter the home; and (14) Ms. Mlynek
     provided [Trooper] Ebeck with the sole means to gain entry to
     the residence; she left the back door unlocked—further
     evidencing her authority and control over the residence.


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(Comonwealth’s Brief, at 18-19) (quotation marks and record citations

omitted).    We find this list to be unpersuasive and many of the factual

averments therein unsupported by the testimony at the suppression

hearing. See In re L.J., 79 A.3d 1073, 1087 (Pa. 2013) (reviewing court

can look only to record developed at suppression hearing in determining

propriety of suppression court’s decision).

       Initially, we note that the reasonableness of these factors must be

balanced against Trooper Ebeck’s knowledge that a landlord could not

consent to the search of a tenant’s residence. (See Commonwealth’s Brief,

at 17; N.T. Suppression Hearing, at 15).           Further, the record does not

support the Commonwealth’s assertions with respect to factors three

through five,4 nine,5 twelve,6 and fourteen.7       The Commonwealth fails to

____________________________________________


4
  There is no evidence that Trooper Ebeck had any detailed knowledge of the
police, Children and Youth Services, and animal welfare involvement in the
case. Ms. Mlynek did not testify that she informed Trooper Ebeck about
these issues. (See N.T. Suppression Hearing, at 17-22). Trooper Ebeck
simply testified that he was generally aware of concerns about animals and
that there had been police and Children and Youth Services involvement, not
that he was aware of the specific timetable. (See id. at 9).
5
  There was no testimony at the suppression hearing regarding Ms. Mlynek’s
visit to the home. (See id. at 9-22).
6
  Ms. Mlynek did not testify that she told Trooper Ebeck that Appellee no
longer had the right to be in the residence. (See id. at 17-22). Further,
Trooper Ebeck did not testify that Ms. Mlynek directly stated that Appellee
had no right to be at the residence but that it was “construed;” he never
testified that he believed that Appellee could not consent to a search of the
residence. (Id. at 15).
(Footnote Continued Next Page)


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explain how factors one and two contributed to the reasonableness analysis

given Trooper Ebeck’s awareness that a landlord could not give consent to

search. We also do not find the fact that Appellee was not home at the time

of the search persuasive, given there was simply no testimony at the

hearing that Trooper Ebeck believed, or that Ms. Mlynek told him, that

Appellee abandoned the residence (See N.T. Suppression Hearing, at 9-22).

Further, Trooper Ebeck testified that he did not attempt to contact Appellee

prior to searching the residence. (See id. at 13-14).

        The remaining factors concern the alleged eviction proceedings and

Ms. Mlynek’s statements to Trooper Ebeck regarding them, telling him that

she had authority to consent to search, and giving him express permission

to search the home.          The certified record supports the Commonwealth’s

contentions that Ms. Mlynek made these statements and that Trooper Ebeck

relied upon them in making his decision that she had apparent authority to

give him permission to search the residence.8 (See id. at 10-12, 14-15, 17-

                       _______________________
(Footnote Continued)


7
    See footnote 3, supra.
8
  While Appellee does not question that Trooper Ebeck relied upon these
statements in making his decision, the evidence of whether there were
pending eviction proceedings is in dispute. Appellee testified that there were
no evictions proceedings. (See id. at 7). Ms. Mlynek did testify that
Appellee was behind in rent and that there were ongoing eviction
proceedings, although her testimony about what stage the proceedings were
at was equivocal. (See id. at 19-20). The Commonwealth did not offer any
documentary proof in support of the claim. Because the Commonwealth did
(Footnote Continued Next Page)


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20). However, we do not find Trooper Ebeck’s reliance on these statements

to be reasonable.

      Trooper Ebeck knew that a landlord could not give consent to search,

thus it was not reasonable for him to rely on a statement from someone in a

position equivalent to a landlord that she had that authority.      Further,

Trooper Ebeck testified that he “took [Ms. Mlynek] at her word” with respect

to the existence of eviction proceedings and that this meant that Appellee

had no right to be on the property. (Id. at 15-17). He did not attempt to

verify that this actually was true and did not attempt to substantiate his

apparent belief that the pendency of eviction proceedings gave the landlord

the authority to consent to a search. (See id.). We find Trooper Ebeck’s

conduct in this matter to be remarkably similar to the police conduct that

this Court deplored in Davis.9 We stated:

            . . . the United States Supreme Court has condemned a
      warrantless search where the police had abundant opportunity to
      obtain a warrant and there were no exigencies requiring
      immediate entry into the premises. Presently, there was no
      reason to justify the warrantless search of appellant’s
      apartment.     The officers simply should have secured the

                       _______________________
(Footnote Continued)

not prevail at the hearing, we cannot accept its claim that there were
ongoing eviction proceedings, only that Trooper Ebeck believed that there
were. See Henry, supra at 969.
9
  While the issue in Davis was whether a landlord had actual authority under
the common authority doctrine to consent to a search of a tenant’s residence
rather than apparent authority, its reasoning is both pertinent and
persuasive. See Davis, supra at 951-52.



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      premises and obtained a warrant based upon [the apartment
      manager’s] observations.

                                     *   *    *

             The present case demonstrates the problems of the police
      proceeding into a premises without a warrant. The evidence
      which the police seized as a result of [the apartment manager’s]
      consent to enter the apartment could have easily been seized
      legally via the execution of a valid warrant based upon the
      information provided by [him]. Presently, the police simply
      should have secured the premises without entering it and waited
      for the issuance of a warrant based upon the apartment
      manager’s observations. Rather, the officers chose to enter the
      apartment illegally and view the contraband before proceeding to
      obtain a search warrant. To permit a warrantless search in this
      situation, we believe, emasculates the protections afforded to
      appellant and all citizens by the United States and Pennsylvania
      Constitutions.

Davis, supra at 952-53 (citations omitted).

      Here, despite the Commonwealth’s implications to the contrary (see

Commonwealth’s Brief, at 17-19), there were no exigent circumstances.

Trooper Ebeck knew a landlord could not consent to the search. Despite this

he took Ms. Mlynek “at her word” that, in fact, she had the authority to

consent to the search without making any attempt whatsoever to verify

either the factual or legal truth of her averments. This is exactly the type of

ambiguous situation where, in Blair, we held that the police officer should

make further inquiries into the circumstances and not rely on the third

party’s   “bald   assertion[s].”    Blair,   supra   at   598.     Thus,   the

Commonwealth’s claim that the trial court should have denied the motion to

suppress lacks merit.   See Strader, supra at 634; Blair, supra at 598.


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      Accordingly, for the reasons discussed above, we affirm the order of

March 9, 2015 granting Appellee’s motion to suppress and remand the

matter to the trial court.

      Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/24/2015




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