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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellant

                       v.

RODERICK L. LEWIS

                            Appellee                No. 268 MDA 2016


                    Appeal from the Order January 15, 2016
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0004451-2015


BEFORE: LAZARUS, J., STABILE, J., and RANSOM, J.

MEMORANDUM BY LAZARUS, J.:                      FILED JANUARY 11, 2017

       The Commonwealth of Pennsylvania appeals from the January 15,

2016 order entered in the Court of Common Pleas of Berks County granting

Roderick L. Lewis’ (“Lewis”) motion to suppress.1     After our review, we

affirm.

       The trial court’s findings are summarized as follows: On August 19,

2015, at 12:21 p.m., Officer Francisco Contreras received a dispatch that a

man, later identified as Lewis, reported a burglary at his apartment at 1009
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1
  The Commonwealth filed its notice of appeal on February 16, 2016; the
Commonwealth included in the notice its certification that suppression would
substantially hinder its prosecution of the case. See Notice of Appeal,
2/16/16. “In a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of
appeal that the order will terminate or substantially handicap the
prosecution.” Pa.R.A.P. 311(d).
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Greenwich Street in Reading, Berks County.      The   dispatch indicated that

Lewis would be outside of his apartment, waiting to speak with Officer

Contreras. When Officer Contreras arrived, Lewis informed him that his ex-

wife, Jennifer Lewis, had broken into his apartment and stolen his television.

When he questioned Jennifer Lewis, who was standing nearby, she denied

the allegations and told Officer Contreras he should ask Lewis about the

drugs he had in a bottle in his refrigerator.      Officer Contreras did not

question Jennifer Lewis further; he did not know if the drugs were legal or

illegal and he did not know when Jennifer Lewis had last been in Lewis’

apartment.

      Lewis then walked quickly to his apartment, and Officer Contreras

followed him up the common stairwell.      Lewis walked into an apartment

where the front door was open; from his vantage point, Officer Contreras

could see into the kitchen and observed that the refrigerator door was wide

open and Lewis was walking away from the refrigerator into the living area.

Officer Contreras did not see any illegal substances in plain view; Lewis did

not invite Officer Contreras into the apartment, and Officer Contreras did not

knock and announce.     Officer Contreras then heard a toilet flushing.    He

entered the apartment, rushed into the bathroom and observed what he

suspected was cocaine in a baggie in the bowl of the toilet.           Officer

Contreras seized the baggie of cocaine.




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       Lewis was charged with Possession with Intent to Deliver (PWID)

(heroin and cocaine),2 Possession of a Controlled Substance (heroin and

cocaine),3 and Possession with Intent to Use Drug Paraphernalia.4            Lewis

filed a motion to suppress.

       At the suppression hearing, Officer Contreras acknowledged that he

did not have a search warrant to enter Lewis’ home, and he did not have

Lewis’ permission or consent to enter.         N.T. Suppression Hearing, 1/6/16, at

13. Officer Contreras also admitted that he did not know when the last time

Jennifer Lewis had been inside the apartment as to have knowledge of what

was in the refrigerator and that he had no knowledge of her credibility. Id.

at 18-20. He also stated that Jennifer Lewis did not say whether the drugs

were legal or illegal, but based on both the fact that Lewis went into his

apartment at that point and two years of experience, he believed she

referred to illegal drugs. Id. at 13-14.

       Following a hearing, the court granted Lewis’ motion to suppress. The

Commonwealth appealed and raises one issue for our review:                 Did the

suppression court err in suppressing evidence obtained as a result of the




____________________________________________


2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(16).
4
    35 P.S. § 780-113(a)(32).



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lawful entry of Lewis’ apartment based upon probable cause and exigent

circumstances?

      When the Commonwealth appeals from a suppression order, the

relevant scope and standard of review is as follows:

      [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. As
      long as there is some evidence to support them, we are bound
      by the suppression court’s findings of fact. Most importantly, we
      are not at liberty to reject a finding of fact which is based on
      credibility. 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. Goldsborough, 31 A.3d 299, 305 (Pa. Super. 2011),

(internal citations and quotation marks omitted).

      The Commonwealth argues that the evidence presented at the

suppression hearing was sufficient to support a finding that Officer Contreras

executed a lawful, warrantless search and seizure.          The Commonwealth

contends Officer Contreras possessed probable cause and there were exigent

circumstances justifying a warrantless search. We disagree.

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

Section   8   of   the   Pennsylvania   Constitution   protect   individuals   from

unreasonable searches and seizures, thereby ensuring the “right of each

individual to be let alone.”   In the Interest of D.M., 781 A.2d 1161, 1163

(Pa. 2001); Commonwealth v. Blair, 575 A.2d 593, 596 (Pa. Super.

1990).    As a general rule, a search warrant is required before police may

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conduct any search.    Commonwealth v. White, 669 A.2d 896, 900 (Pa.

1995).   Except for a few established exceptions, a warrantless search or

seizure is presumptively unreasonable under the Fourth Amendment and

under Article I, Section 8 of the Pennsylvania Constitution.       Horton v.

California, 496 U.S. 128 (1990); Commonwealth v. McCree, 924 A.2d

621, 627 (Pa. 2007). See also Commonwealth v. Lopez, 609 A.2d 177,

178–79 (1992). The “[p]hysical entry of the home is the chief evil against

which the wording of the Fourth Amendment is directed.” Commonwealth

v. Waddell, 61 A.3d 198, 211 (Pa. Super. 2012), quoting Welsh v.

Wisconsin, 466 U.S. 740, 748 (1984).

      It is well established that probable cause alone will not support a
      warrantless search or arrest in a residence unless some
      exception to the warrant requirement is also present. 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, 631 (Pa. Super. 1999)

(citations omitted).   See also Commonwealth v. Gibbs, 981 A.2d 274,

279 (Pa. Super. 2009) (“Absent probable cause and exigent circumstances,

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

Amendment and Article 1, [Section] 8 of the Pennsylvania Constitution.”).

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

Supreme Court explained that in determining whether exigent circumstances

exist, several factors are to be considered, such as:




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      (1) the gravity of the offense, (2) whether the suspect is
      reasonably believed to be armed, (3) whether there is above and
      beyond a clear showing of probable cause, (4) whether there is
      strong reason to believe that the suspect is within the premises
      being entered, (5) whether there is a likelihood that the suspect
      will escape if not swiftly apprehended, (6) whether the entry was
      peaceable, and (7) the time of the entry, i.e., whether it was
      made at night.

Commonwealth v. Roland, 637 A.2d 269, 270-71 (Pa. 1994).               “These

factors are to be balanced against one another in determining whether the

warrantless intrusion was justified.” Commonwealth v. Wagner, 406 A.2d

1026, 1031 (Pa. 1979).

      Further, the Roland Court stated that other factors may also be taken

into account, “such as whether there is hot pursuit of a fleeing felon, a

likelihood that evidence will be destroyed if police take the time to obtain a

warrant, or danger to police or other persons inside or outside the dwelling.”

Roland, 637 A.2d at 271, citing Minnesota v. Olson, 495 U.S. 91, 100

(1990).   Nevertheless, “police bear a heavy burden when attempting to

demonstrate an urgent need that might justify warrantless searches or

arrests.” Roland, 637 A.2d at 271, quoting Welsh v. Wisconsin, 466 U.S.

740, 749-50 (1984). See also Commonwealth v. Bowmaster, 101 A.3d

789 (Pa. Super. 2014).

      In this case, a balancing of the Roland factors demonstrates a lack of

exigency for a warrantless search of Lewis’ home. The gravity of the offense

was slight, as Officer Contreras was investigating a report that Lewis’ ex-

wife had broken into the home and stolen a television at the time of the


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intrusion. Officer Contreras’ belief that evidence might be destroyed, which

might give rise to exigent circumstances, is not supported here.      Jennifer

Lewis’ statement to Officer Contreras was not the statement of a confidential

informant. Officer Contreras readily admitted he had no basis for believing

that Jennifer Lewis was credible.     Although Officer Contreras’   belief that

there were illegal drugs in the refrigerator was perhaps reasonable, and

would have supported further investigation, it does not satisfy the quantum

of evidence necessary to justify a warrantless intrusion into Lewis’ home.

The Commonwealth, therefore, failed to prove by clear and convincing

evidence that exigent circumstances existed.

     The suppression court’s findings are supported in the record, and the

court properly determined that Officer Contreras’ warrantless search violated

Lewis’ constitutional right to be free of unreasonable searches and seizures.

Goldsborough, supra. Officer Contreras’ entry in Lewis’ apartment was

illegal, Bowmaster, supra, and therefore we affirm the court’s order

granting Lewis’ motion to suppress.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/11/2017


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