J-A03023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

JACK WESBY

                         Appellee                      No. 238 EDA 2015


                Appeal from the Order December 18, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0003534-2013


BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY MUNDY, J.:                          FILED MARCH 03, 2016

     The Commonwealth appeals from the December 18, 2014 order

granting the suppression motion filed by Appellee, Jack Wesby. After careful

review, we reverse and remand for further proceedings.

     On October 5, 2012, Wesby was arrested and charged with drug-

related offenses.   On May 15, 2014, Wesby filed a motion to suppress

physical evidence obtained from the search of his apartment, Number 7,

located at 2800 Cecil B. Moore Avenue, Philadelphia.

     A suppression hearing commenced on November 6, 2014, at which the

Commonwealth presented the sole witness, Philadelphia Police Officer David

Rausch. Officer Rausch testified to being on duty on North 28 th Street on

the evening of October 5, 2012, and conducting surveillance for the illegal

sale of narcotics. N.T., 11/6/14, at 8-10. Around 8:10 p.m., Officer Rausch
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saw a black male, later identified as Samuel Harris, approach Wesby, engage

in a brief conversation, and hand Wesby United States currency. Id. at 11.

Wesby then entered the building at 2800 Cecil B. Moore Avenue, exited

approximately 20 seconds later, and handed Mr. Harris a small item.       Id.

Officer Rausch relayed what he saw to back-up officers, who stopped Mr.

Harris at 8:15 p.m. and recovered a packet of crack cocaine from him. Id.

      Also at 8:15 p.m., a black male later identified as Andrew Albrooks

approached Wesby and engaged in a brief conversation.        Id. at 12.   Mr.

Albrooks handed Wesby United States currency; Wesby then entered the

building on Cecil B. Moore Avenue, exited the building approximately 20

seconds later, and handed Mr. Albrooks a small item.      Id. Officer Rausch

again notified back-up officers, who stopped Mr. Albrooks and recovered

“one clear knotted baggie containing alleged crack cocaine” from him. Id.

      At approximately 8:20 p.m., another black male, later identified as

John Savage, approached Wesby. Id. Mr. Savage engaged in conversation

with Wesby and gave him money.         Id.   Once more, Wesby entered the

building on Cecil B. Moore Avenue, and returned approximately 20 seconds

later and handed Mr. Savage a small item, after which Officer Rausch

notified back-up officers.   Id. at 12-13.   The back-up officers stopped Mr.

Savage and recovered one packet of alleged crack cocaine from him. Id. at

13.




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      After the third transaction, another officer, Officer Cherry, stopped and

arrested Wesby, and recovered from him thirty dollars, a cell phone, and

keys to Apartment 7 in the Cecil B. Moore Avenue building.            Id. at 13.

Officer Rausch testified as follows.

         [Wesby] was arrested. He was in possession of keys, keys
         used to open Apartment No. 7. It was secured to make
         sure no one else was inside of it. And then the Narcotics
         Strike Force was notified to draw up a search and seizure
         warrant.

Id. at 16-17. Officer Rausch “had backup go in and secure the apartment

building, Apartment No. 7, 2800 C.B. Moore Avenue.” Id. Officer Rausch

testified that the apartment was secured to preserve evidence, and “make

sure no one else was inside of it.” Id. at 16-17, 21-22. He also “notified

Narcotics Strike Force for a search warrant.”         Id. at 13.   While Wesby’s

apartment was secured, and prior to receiving and executing the warrant,

the police did not recover any evidence from the apartment.           Id. at 18.

Officer Rausch testified, “there was evidence in plain view, but it was all kept

where it was” until the execution of the warrant. Id.

      Officer Rausch explained that he was not permitted to prepare the

warrant because “departmental policy” was that “only Strike Force and Field

Unit” prepared search warrants.        Id. at 34.   Officer Rausch “wrote up the

whole affidavit part” for the warrant, which was issued for the building at

2800 Cecil B. Moore Avenue. Id. at 34-36. The warrant listed Wesby as the

“owner, occupant, or possessor” of the property to be searched. Id. at 37.



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Before Officer Rausch conducted the surveillance, he “had some information

… of a specific apartment” in the Cecil B. Moore Avenue building, but during

surveillance, he did not see Wesby enter a specific apartment when he went

into the building.    Id. at 16, 25.   The search warrant and its supporting

affidavit of probable cause were entered into evidence as Exhibit C-1. Id. at

19.

      After hearing testimony from Officer Rausch as the sole witness,

followed by argument from counsel, the suppression court took the matter

under advisement. On December 18, 2014, the suppression court convened

the parties and stated its determination that “the affidavit of probable cause

failed to establish sufficient probable cause to search Apartment No. 7.

Therefore, entry into the apartment, even after a search warrant was

secured, was unlawful.”       N.T., 12/18/14, at 3.      The suppression court

entered a corresponding order granting Wesby’s suppression motion.

      The Commonwealth filed a timely appeal on January 15, 2015. With

its notice of appeal, the Commonwealth certified that the suppression court’s

order would terminate or substantially handicap the prosecution of Wesby.

See   Pa.R.A.P.      311(d)   (permitting    Commonwealth     appeal   from    an

interlocutory order if it certifies that the order will terminate or substantially

handicap the prosecution). The same day, the Commonwealth preemptively

filed a statement of errors complained of on appeal pursuant to Pennsylvania




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Rule of Appellate Procedure 1925(b). The suppression court issued its Rule

1925(a) opinion on May 7, 2015.

      On appeal, the Commonwealth presents the following issue for our

review.

                  Did the lower court err in suppressing 85
            grams of crack cocaine and other evidence found in
            [Wesby’s] apartment where there was probable
            cause to believe that contraband would be found
            therein, the police legitimately entered the
            apartment to prevent destruction of the evidence
            while they obtained a warrant, and the evidence was
            subsequently recovered pursuant to the lawfully
            issued warrant?

Commonwealth’s Brief at 4.

      The Commonwealth specifically asserts that the affidavit of probable

cause supporting the search warrant “established that the police had

received information that [Wesby] resided in a particular apartment in a

particular building and was selling drugs at the location. The application also

detailed the fact that police confirmed through their own surveillance that

[Wesby] was selling drugs right outside the apartment building[.]” Id. at 9.

The Commonwealth further avers, “[t]he fact that police entered the

apartment prior to the approval of the warrant did not provide a basis for

suppressing the evidence. The police lawfully entered the property to secure

it because they legitimately feared someone inside might have learned of




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[Wesby’s] arrest and would destroy the evidence before the warrant

arrived.” Id.1

        Our standard of review in addressing a challenge to the suppression

court’s granting of a suppression motion is well settled.

              When     the   Commonwealth       appeals   from     a
              suppression order, we follow a clearly defined
              standard of review and 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.
              The suppression court’s findings of fact bind an
              appellate court if the record supports those findings.
              The suppression court’s conclusions of law, however,
              are not binding on an appellate court, whose duty is
              to determine if the suppression court properly
              applied the law to the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278-1279 (Pa. Super. 2012)

(citations omitted).      “Our standard of review is restricted to establishing

whether the record supports the suppression court’s factual findings;

however, we maintain de novo review over the suppression court’s legal

conclusions.”     Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010)

(citation omitted).

        With regard to search warrants, we have explained the following.

                     It is well-established that for a search warrant
              to be constitutionally valid, the issuing authority
              must decide that probable cause exists at the time of
              its issuance, and make this determination on facts
              described within the four corners of the supporting
____________________________________________


1
    Wesby elected not to file a brief in this matter.



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           affidavit, and closely related in time to the date of
           issuance of the warrant.          It is equally well
           established that a reviewing court [must] pay great
           deference to an issuing authority’s determination of
           probable cause for the issuance of a search warrant.
           Moreover, our Supreme Court has recognized that
           affidavits supporting search warrants normally are
           prepared ..., ‘by nonlawyers in the midst and haste
           of a criminal investigation,’ and, accordingly, said
           affidavits, should be interpreted in a ‘common sense
           and realistic’ fashion rather than in a hypertechnical
           manner.

Commonwealth v. Griffin, 24 A.3d 1037, 1043 (Pa. Super. 2011) (some

quotation marks and citations omitted).      “It must be remembered that

probable cause is based on a finding of the probability of criminal activity,

not a prima facie showing of criminal activity.” Commonwealth v. Luton,

672 A.2d 819, 822 (Pa. Super. 1996).

     Here, the affidavit of probable cause attached to the application for the

search warrant reads as follows.

           ON 10-5-12 AT APPROXIMATELY 7:50PM P/O
           RAUSCH SET UP A PLAIN CLOTHES SURVEILLANCE
           FOR THE ILLEGAL SALES OF NARCOTICS IN THE
           1600 BLOCK OF N. 28TH ST. P/O RAUSCH HAD
           RECEIVED INFORMATION THAT A B/M, NAME JACK
           WESBY, WHO LIVED AT 2800 C.B. MOORE AVE APT
           7, WAS INVOLVED IN ILLEGAL NARCOTICS SALES
           AT THAT LOCATION.

           UPON SETTING UP MY SURVEILLANCE I OBSERVED
           A B/M, LATER ID’D AS JACK WESBY, WEARING A
           BLUE POLO SHIRT AND BLUE JEANS STANDING IN
           THE 1600 BLOCK OF N. 28TH STREET.

           AT APPROXIMATELY 8:10PM A B/M, LATER ID’D AS
           SAMUEL HARRIS, WEARING A GRAY HOODY AND
           BLUE JEANS APPROACHED WESBY.       THE TWO
           ENGAGED IN A BRIEF CONVERSATION WHICH

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              RESULTED IN HARRIS HANDING WESBY U.S.
              CURRENCY WHICH HE ACCEPTED AND IN RETURN
              WESBY ENTERED 2800 C.B. MOORE AVE FOR
              APPROXIMATELY 20 SECONDS. WESBY RETURNED
              AND HANDED HARRIS A SMALL ITEM WHICH
              HARRIS ACCEPTED. HARRIS THEN WALKED EB ON
              2800 C.B. MOORE AVE. BACKUP WAS NOTIFIED.

              AT APPROXIMATELY 8:15PM HARRIS WAS STOPPED
              IN THE 2700 BLOCK [OF] C.B. MOORE AVE BY SGT.
              YOUNG WHO RECOVERED 1 YELLOW TINTED
              HEATSEALED PACKET CONT. AN OFF WHITE CHUNKY
              SUBSTANCE ALLEGED CRACK COCAINE FROM
              HARRIS’ LEFT FRONT JEANS POCKET WHICH WAS
              PLACED ON PR# 3070808. HARRIS WAS TRANS TO
              THE 22ND DISTRICT FOR PROCESSING.

              AT   APPROXIMATELY    8:15PM   WESBY    WAS
              APPROACHED BY A B/M, LATER ID’D AS ANDREW
              ALSBROOKS[2], WEARING A WHITE SHIRT AND BLUE
              JEAN SHORTS. THE TWO ENGAGED IN A BRIEF
              CONVERSATION WHICH RESULTED IN ALSBROOKS
              HANDING WESBY U.S. CURRENCY WHICH HE
              ACCEPTED AND AGAIN ENTERED 2800 C.B. MOORE
              AVE FOR APPROXIMATELY 20 SECONDS. WESBY
              RETURNED AND HANDED ALSBROOKS A SMALL
              ITEM. ALSBROOKS THEN WENT EB ON 2800 C.B.
              MOORE AVE. BACKUP WAS NOTIFIED.

              AT APPROXIMATELY 8:19PM ALSBROOKS WAS
              STOPPED BY P/O AYERS IN THE 1600 BLOCK OF 27TH
              ST. AND RECOVERED 1 CLEAR SMALL KNOTTED
              BAGGIE CONT. AN OFF WHITE CHUNKY SUBSTANCE
              ALLEGED CRACK COCAINE FROM ALSBROOKS’
              SHORTS POCKET WHICH WAS PLACED ON PR#
              3070809. ALSBROOKS WAS TRANS TO THE 22ND
              DISTRICT FOR PROCESSING.


____________________________________________


2
  The proper spelling of the individual’s surname is not clear from the record;
the name is spelled “Albrooks” in the November 6, 2014 notes of testimony,
and “Alsbrooks” in the affidavit of probable cause.



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          AT   APPROXIMATELY     8:25PM  WESBY    WAS
          APPROACHED BY A B/M, LATER ID’D AS JOHN
          SAVAGE, WEARING A GRAY SLEEVELESS SHIRT AND
          BLACK SWEAT PANTS. THE TWO ENGAGED IN A
          BRIEF CONVERSATION WHICH RESULTED IN
          SAVAGE HANDING WESBY U.S. CURRENCY WHICH
          HE ACCEPTED AND AGAIN WENT INTO 2800 C.B.
          MOORE AVE FOR APPROXIMATELY 20 SECONDS.
          WESBY RETURNED AND HANDED SAVAGE A SMALL
          ITEM. SAVAGE AND WESBY THEN SAT ON THE
          CORNER OF 28TH AND C.B. MOORE.

          AT APPROXIMATELY 8:30PM RAUSCH HAD BACKUP
          COME IN AND STOP SAVAGE AND WESBY.

          SAVAGE WAS STOPPED BY P/O WALLACE WHO
          RECOVERED 1 YELLOW TINTED HEATSEALED
          PACKET CONT. AN OFF WHITE CHUNKY SUBSTANCE
          ALLEGED CRACK COCAINE FROM SAVAGE’S LEFT
          HAND WHICH WAS PLACED ON PR# 3070810.

          WESBY WAS STOPPED BY P/O CHERRY WHO
          RECOVERED 30 DOLLARS U.S. CURRENCY WHICH
          WAS PLACED ON PR# 3070811 AND 1 CELL PHONE
          WHICH WAS PLACED ON PR# 3070812.

          RAUSCH THEN HAD BACKUP GO TO 2800 C.B.
          MOORE APT 7 AND SECURE THE LOCATION.
          BACKUP WENT TO APT 7, KNOCKED ON THE DOOR
          AND ANNOUNCED PRESENCE.       THERE WAS NO
          ANSWER FROM INSIDE SO POLICE USED THE KEYS
          THAT WERE IN THE POSSESSION OF WESBY AND
          ENTERED THE APARTMENT, MADE SURE THE SCENE
          WAS SECURE, THEN NOTIFIED NARCOTICS STRIKE
          FORCE IN ANTICIPATION OF A SEARCH WARRANT.

          BOTH SAVAGE AND WESBY WERE TRANS TO 22ND
          DISTRICT FOR PROCESSING.

          NARCOTICS    RECOVERED    FROM     HARRIS,
          ALSBROOKS, AND SAVAGE WERE FIELD TESTED BY
          P/O RAUSCH POSITIVE RESULTS FOR COCAINE
          BASE.




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Commonwealth’s Exhibit C-1, Application for Search Warrant, Affidavit of

Probable Cause, 10/5/12, at 1-2.

     Based on the hearing testimony of Officer Rausch and the affidavit of

probable cause, the suppression court concluded as follows.

                 The subject affidavit includes a detailed
           account of Officer Rausch’s observations of the
           alleged narcotics sales.    It does not, however,
           indicate how, or when, Officer Rausch came to
           believe that Apartment 7 contained evidence related
           to those transactions. The affidavit states only that:

           P/O RAUSCH HAD RECEIVED INFORMATION THAT A
           B/M, NAME JACK WESBY, WHO LIVED AT 2800 C.B.
           MOORE AVE APT 7, WAS INVOLVED IN ILLEGAL
           NARCOTICS SALES AT THAT LOCATION.

                 The search warrant relied heavily on this
           “information” received by Officer Rausch. But this
           blanket assertion alone left the issuing authority “no
           substantial basis on which to assess the reliability of
           the information provided to the affiant[].”        See
           Commonwealth v. Torres, 764 A.2d 532, 538 (Pa.
           2001). Furthermore, the affidavit does not give any
           indication of when Officer Rausch received the
           information about Apartment 7, leaving the issuing
           authority unequipped to evaluate whether the
           information had grown stale. See [Commonwealth
           v.] Hoppert, 39 A.3d at 363. Because the warrant
           was issued without a sufficient showing of probable
           cause to search Apartment 7, any physical evidence
           recovered from the search was properly suppressed.

Suppression Court Opinion, 5/7/15, at 6 (footnote omitted).

     Upon careful scrutiny of the uncontradicted facts of record, as well as

pertinent legal authority in conducting our de novo review, we are

constrained to disagree with the suppression court. Applying our standard of




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review, and giving “great deference” to the authority issuing the search

warrant, we recognize our Supreme Court’s mandate.

            In considering an affidavit of probable cause, the
            issuing magistrate must apply the “totality of the
            circumstances test” which requires her to make a
            practical, common-sense decision whether, given all
            of the circumstances set forth in the affidavit …
            including the veracity of and basis of knowledge of
            persons supplying hearsay information, there is a fair
            probability that contraband or evidence of a crime
            will be found in a particular place. A court reviewing
            a search warrant determines only if a substantial
            basis existed for the magistrate to find probable
            cause.

Commonwealth v. Johnson, 42 A.3d 1017, 1031 (Pa. 2012) (quotation

marks and citations omitted).

      Instantly, the facts described within “the four corners of the supporting

affidavit” demonstrate “a substantial basis” upon which the issuing authority

could find probable cause. Johnson, supra; Griffin, supra. Furthermore,

the suppression court erred in concluding that “[i]t was irrelevant that the

officers ultimately entered Apartment 7 using a key found on [Wesby], as

that act was part of the unlawful entry itself.” Suppression Court Opinion,

5/7/15, at 4, n.5. The totality of the circumstances in this case, including

the key to Apartment 7 recovered from Wesby, establishes the “fair

probability” that contraband, i.e., additional evidence of Wesby’s illegal sale

of cocaine, would be found in Apartment 7, 2800 Cecil B. Moore Avenue,

consistent with Officer Rausch’s firsthand observation of Wesby’s three

transactions involving his entry and exit from 2800 Cecil B. Moore Avenue.


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Using a practical, common sense assessment of the facts of record from both

the supporting affidavit of probable cause and Officer Rausch’s testimony,

we agree with the Commonwealth that “inserting a key into a lock … does

not constitute a search[.]”         Commonwealth’s Brief at 16-17; see also

Commonwealth v. Harvard, 64 A.3d 690, 695-696 (Pa. Super. 2013)

(concluding an officer’s use of a key fob to unlock a car is not a search

within the meaning of the Fourth Amendment).. Based on the foregoing, we

conclude that the suppression court erred in its “hypertechnical” reading of

the affidavit. See Griffin, supra.

      Having established that the search warrant was supported by probable

cause, we turn to the Commonwealth’s assertion that the police legitimately

entered Apartment 7 to secure any evidence pending the execution of the

warrant.    The suppression court found that “no exigent circumstances

justified the warrantless entry.”        Suppression Court Opinion, 5/7/15, at 4.

In challenging this finding, the Commonwealth cites Commonwealth v.

Frank, 605 A.2d 356 (Pa. Super. 1992) (warrantless search was supported

by exigent circumstances, where police had just arrested outside defendant’s

apartment     a    person   who    was    participating    with   defendant    in    drug

distribution network, and risk existed that defendant had observed arrest

and   would       succeed   in   destroying   critical    evidence,   police   had    not

manufactured the exigent circumstances, and police had already applied for

a warrant and did not conduct more than preliminary search until it was


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obtained). We additionally note that the United States Supreme Court has

held that where probable cause exists to support the issuance of a warrant,

police may secure the residence of an individual to preserve the loss of

evidence while a warrant is diligently sought, and that given the nature of

the intrusion and the law enforcement interest at stake, the brief seizure of

the premises is permissible. Illinois v. McArthur, 531 U.S. 326, 331-332

(2001). However, our review of Pennsylvania case law militates against a

finding of exigent circumstances in this case.

            Absent consent or exigent circumstances, private
            homes may not be constitutionally entered to
            conduct a search or to effectuate an arrest without a
            warrant, even where probable cause exists.
            Commonwealth v. Santiago, 736 A.2d 624 (Pa.
            Super. 1999).

                  It is well-settled that exigent circumstances
                  excusing the warrant requirement arise where
                  the need for prompt police action is imperative.
                  Exigent circumstances can be generated when
                  evidence sought to be preserved is likely to be
                  destroyed or secreted from investigation, or
                  because the officer must protect himself from
                  danger to his person by checking for concealed
                  weapons.     Whether exigent circumstances
                  exist depends on ‘an examination of all of the
                  surrounding circumstances in a particular
                  case.’

            Commonwealth v. Peterson, 408 Pa.Super. 22,
            596 A.2d 172, 179 (1991) quoting Commonwealth
            v. Hinkson, 315 Pa.Super. 23, 461 A.2d 616, 618
            (1983).

                  In determining whether exigent circumstances
                  exist, a number of factors are to be
                  considered.    Among the factors to be

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                  considered are: (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 a strong reason to believe
                  that the suspect is within the premises to be
                  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.

            Commonwealth v. Roland, 535 Pa. 595, 599, 637
            A.2d 269, 270–71 (1994). Other factors may also
            merit consideration, such as whether there is 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.

Commonwealth v. Griffin, 785 A.2d 501, 505-506 (Pa. Super. 2001).

      It is undisputed that Officer Rausch observed three interactions

between Wesby and individuals who were immediately and subsequently

stopped and found to possess cocaine.        The three interactions occurred

quickly and in close proximity to Wesby’s residence at 2800 C.B. Moore

Avenue, which he entered and exited in 20 second increments when

transacting with the three individuals.      Officer Rausch testified that he

sought to have Apartment 7 secured “to preserve evidence, [and to] make

sure no one else was in the apartment.” N.T., 11/6/14, at 17. Yet Officer

Rausch “had no knowledge of who else was in the apartment,” id., and did

not otherwise articulate any other factors to demonstrate “the likelihood that

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evidence would be destroyed” while police took the time to obtain a warrant,

or “a danger to police or other persons inside or outside” the apartment.

See Commonwealth v. Melendez, 676 A.2d 226, 231 (Pa. 1996) (mere

speculation that evidence may be destroyed because suspects may learn of

police activity is inadequate to justify a warrantless entry, and in any event,

police may not bootstrap themselves into exigencies by their own conduct).

Accordingly, we find no error of law in the suppression court’s conclusion

that police secured Apartment 7 in the absence of exigent circumstances.

Our analysis, however, does not end with the lack of exigency, because we

agree with the Commonwealth’s assertion that even if the police improperly

entered Apartment 7 before obtaining the search warrant, suppression of the

evidence was not justified because the evidence was not seized until the

subsequently issued warrant was executed.       Commonwealth’s Brief at 26-

29, citing Commonwealth v. Byrd, 987 A.2d 786, 794 (Pa. Super. 2009)

(suppression of evidence is not available as a remedy for unlawful police

conduct where the evidence was obtained by means independent of the

unlawful police conduct).    The record is uncontroverted that “all of the

evidence was seized pursuant to the lawfully issued warrant,” and the initial

entry by police into the apartment “did not play a role in the obtaining of the

warrant...,” such that suppression was not appropriate.      Commonwealth’s

Brief at 28-29.




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     In sum, we conclude that the suppression court erred in suppressing

the evidence found in Wesby’s apartment where there was probable cause to

believe that contraband would be found there, and although the police

entered Apartment 7 in the absence of exigent circumstances, the evidence

was subsequently recovered pursuant to the lawfully issued warrant.

Accordingly, we reverse the order granting suppression, and remand this

case for further proceedings, consistent with this memorandum.

     Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2016




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