J-S48038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
              v.                            :
                                            :
DEMAR ALLEN CLAIBORNE,                      :
                                            :
                    Appellant               :            No. 35 WDA 2016

           Appeal from the Judgment of Sentence December 2, 2015
               in the Court of Common Pleas of Mercer County,
              Criminal Division, No(s): CP-43-CR-0000697-2015

BEFORE: BOWES, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                             FILED JULY 13, 2016

        Demar Allen Claiborne (“Claiborne”) appeals from the judgment of

sentence imposed following his conviction of several counts of possession of

narcotics, possession of drug paraphernalia, and possession with intent to

deliver narcotics.1 We affirm.

        The trial court set forth the relevant factual and procedural history as

follows:

               An arrest warrant was issued for [Claiborne] for drug
        trafficking that occurred during the spring and summer of 2014.
        On April 17, 2015, Officer Erick Gatewood [“Officer Gatewood”]
        of the Mercer County Drug Task Force went to the residence of
        713 Darr Avenue in Farrell, Pennsylvania for purposes of
        executing the arrest warrant. [Officer Gatewood had] received
        information that [Claiborne] was staying there.           Officer
        Gatewood knocked on the door to that residence and [Claiborne]
        opened the inner door.       The screen door remained closed.
        Officer Gatewood recognized [Claiborne] as the individual that
        they were there to arrest. Officer Gatewood directed [Claiborne]
        to come outside. [Claiborne] did nothing. Officer Gatewood

1
    See 35 Pa.C.S.A. §§ 780-113(a)(16), (32), (30).
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     opened the screen door, put his foot inside the residence, and
     grabbed and pulled [Claiborne] into the threshold and arrested
     him. At some point following [Claiborne’s] arrest, and because
     of circumstances unknown, [Claiborne] indicated that he had
     been smoking a blunt in the residence the night before. While
     Officer Gatewood was arresting [Claiborne], [Officer Gatewood]
     noticed an odor of marijuana coming from the residence. A
     female was observed in the residence. She was instructed to
     leave the residence, and did so. The officers did a protective
     sweep of the residence to determine whether any other persons
     were there. The protective search lasted between 2 and 4
     minutes. While doing that search, they saw evidence of a burnt
     marijuana cigarette in an ashtray in the living room. A search
     warrant was issued at 2:40 p.m.[on] that date. The initial entry
     into the residence was at 1:35 p.m.[on] that date. Pursuant to
     the issued search warrant, the officers conducted a second
     search and found various forms of contraband throughout the
     residence.

           [Claiborne] filed an Omnibus Pre-Trial Motion for Relief on
     July 20, 2015, seeking to exclude evidence of the burnt
     marijuana joint in the house. On September 9, 2015, the [trial
     court] held a hearing regarding [Claiborne’s] [M]otion. That
     date, [the trial court] issued Findings of Fact and Conclusions of
     law from the bench, and ruled that the statement made by
     [Claiborne] regarding smoking a blunt must be suppressed and
     stricken from the search warrant because the Commonwealth
     failed to meet its burden of production regarding [the]
     circumstances of the statement being made. [The trial court]
     further ruled that when the statement is removed from the
     search warrant, there is still sufficient evidence for the issuance
     of the search warrant. Finally, [the trial court] held that[,] given
     the generality that there was an odor of marijuana coming from
     the residence, the search of the entire residence was lawful.
     After a jury trial, [Claiborne] was found guilty of numerous
     [p]ossession [w]ith intent to [d]eliver crimes, and was sentenced
     by th[e trial] court to an aggregate term of 32 to 72 months of
     incarceration. [Claiborne] filed a Motion to Modify Sentence,
     which was denied by [the trial c]ourt. [Claiborne] timely filed a
     Notice of Appeal.

Trial Court Opinion, 2/17/16, at 2-3 (numbering and paragraphs omitted).

     On appeal, Claiborne raises the following question for our review:


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        Did the trial court commit an error of law in denying []
        Claiborne’s Motion to Suppress Evidence where [] Claiborne’s
        house was searched pursuant to a search warrant based on the
        police smelling marijuana in the house, seeing a suspected
        marijuana cigarette in the house, and an arrest warrant for drug
        trafficking that allegedly occurred almost 12 months before the
        challenged house search?

Brief for Appellant at 5 (some capitalization omitted).

        Claiborne contends that, after the trial court suppressed his statement

that he had been smoking a marijuana cigarette in the house, the remaining

bases for the issuance of the search warrant were reduced to allegations

that the police (1) had been at the house to serve an arrest warrant on

Claiborne for drug trafficking; (2) smelled an odor of marijuana in the

house; and (3) saw a burnt marijuana cigarette in an ashtray in the living

room.     Id. at 11.   Claiborne claims that these allegations did not provide

sufficient information to the issuing authority to conclude that there were

additional drugs or contraband within the house.          Id. at 12.   Claiborne

argues that the trial court failed to cite any case holding that the odor of

marijuana and the presence of a burnt marijuana cigarette are sufficient

facts to establish probable cause to justify the issuance of a search warrant




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for the house. Id. at 13.2

      Claiborne   further    contends    that   the   trial   court’s    reliance   on

Commonwealth v. Dean, 940 A.2d 514, 521 (Pa. Super. 2008) is

misplaced, as the language in Dean “is from an opinion determining whether

a search warrant was issued in conformity with the Fourth Amendment.”

Brief for Appellant at 13. Claiborne asserts that his challenge to the search

warrant is based not only on the Fourth Amendment to the United States

Constitution, but   also    on Article   1, Section 8         of   the   Pennsylvania

Constitution,3 which, Claiborne claims, provides greater protection than the

Fourth Amendment. Id.

      Our standard of review of an order denying a motion to suppress

evidence is limited to determining whether the findings of fact are supported

by the record and whether the legal conclusions drawn from those facts are

2
  Claiborne also asserts that the allegations of drug trafficking in the search
warrant constituted “stale information,” as they related to events which
occurred nearly one year prior to the search. Brief for Appellant at 11.
However, this issue was not raised in Claiborne’s Concise Statement of
Issues Complained of on Appeal. Accordingly, Claiborne failed to preserve it
for our review. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998) (stating that, if an appellant is directed to file a concise statement of
matters to be raised on appeal pursuant to Pa.R.A.P. 1925(b), any issues
not raised in that statement are waived).
3
  The Fourth Amendment of the United States Constitution provides, “[t]he
right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated
....” U.S. CONST. AMEND. IV. Likewise, Article I, Section 8 of the Pennsylvania
Constitution states, “[t]he people shall be secure in their persons, houses,
papers and possessions from unreasonable searches and seizures ....” PA.
CONST. ART. I, § 8.



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in error.   See Commonwealth v. Freeman, 128 A.3d 1231, 1240 (Pa.

Super. 2015). In making this determination, this Court may only consider

the evidence of the Commonwealth’s witnesses, and so much of the

witnesses for the defendant, as fairly read in the context of the record as a

whole, which remains uncontradicted.      Id.   If the evidence supports the

findings of the trial court, we are bound by such findings and may reverse

only if the legal conclusions drawn therefrom are erroneous. Id.

      Here, the record reveals that, when police officers were arresting

Claiborne at the front door of his residence, they detected an odor of

marijuana.4 See N.T. (suppression hearing), 9/9/15, at 19, 30. Where an

officer is lawfully present at a particular location, detection of an odor of

marijuana constitutes sufficient probable cause to obtain a search warrant.

See Commonwealth v. Johnson, 68 A.3d 930, 936 (Pa. Super. 2013);

see also Commonwealth v. Waddell, 61 A.3d 196, 215 (Pa. Super. 2012)

(stating that “[o]nce the odor of marijuana was detected emanating from

the residence, the threshold necessary to establish probable cause to obtain

a search warrant was met...”).      Because the odor of marijuana, alone,

provided a sufficient basis for issuance of the search warrant, the trial court

did not err in denying Claiborne’s Motion to suppress the evidence.       See

Johnson, supra.




4
 The arrest warrant was based on several deliveries of narcotics. See N.T.
(suppression hearing), 9/9/15, at 19.


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      Moreover, the police officers’ subsequent observance of the burnt

marijuana cigarette, made while they were conducting a protective sweep of

the residence, also provided a sufficient basis for issuance of the search

warrant.

      While a search is generally not reasonable unless executed pursuant to

a warrant, the Supreme Court of the United States and the Pennsylvania

Supreme Court have recognized exceptions to the warrant requirement.

See Commonwealth v. Taylor, 771 A.2d 1261, 1266 (Pa. 2001) (stating

that “[n]ot every search must be conducted pursuant to a warrant”). One

well-recognized exception to the warrant requirement is the protective

sweep. See id. at 1267. A protective sweep is “a quick and limited search

of premises, incident to an arrest and conducted to protect the safety of

police officers or others.”   Maryland v. Buie, 494 U.S. 325, 327 (1990).

Buie set forth two levels of protective sweeps:

      As an incident to the arrest the officers could, as a precautionary
      matter and without probable cause or reasonable suspicion, look
      in closets and other spaces immediately adjoining the place of
      arrest from which an attack could be immediately launched.
      Beyond that, however, we hold that there must be articulable
      facts which, taken together with the rational inferences from
      those facts, would warrant a reasonably prudent officer in
      believing that the area to be swept harbors an individual posing
      a danger to those on the arrest scene.

Id. at 334.5

5
 This Court has adopted the Buie test for determining whether a protective
sweep is constitutional under Article I, Section 8 of the Pennsylvania
Constitution. See Commonwealth v. Crouse, 729 A.2d 588, 598 (Pa.
Super. 1999) (stating that “we see no compelling reason to deviate from the


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       “Pursuant to the first level of a protective sweep, without a showing of

even   reasonable   suspicion,   police   officers   may   make   cursory   visual

inspections of spaces immediately adjacent to the arrest scene, which could

conceal an assailant.”    Taylor, 771 A.2d at 1267 (noting that “[w]e have

recognized the exigency created by the existence of hidden third parties

during an arrest.”).     The scope of the second level permits a search for

attackers further away from the place of arrest, provided that the officer

who conducted the sweep can articulate specific facts to justify a reasonable

fear for the safety of himself and others. Id. To decide whether the facts

justified a protective sweep, this Court must consider all of the facts

objectively and from the position of the reasonably prudent police officer.

Id. at 1267.

       Here, because the sweep extended beyond the area within the

immediate vicinity of the arrest, there must be “articulable facts which,

taken together with the rational inferences from those facts, would warrant a

reasonably prudent officer in believing that the area to be swept harbors an

individual posing a danger to those on the arrest scene.”         Id. at 1267-68

(citing Buie, 494 U.S. at 334). Our review of the record discloses that when

police officers, in attempting to arrest Claiborne, instructed him to exit the

residence, he refused to do so. See N.T. (suppression hearing), 9/9/15, at



Buie analysis to provide greater rights in this context at the expense of the
safety of our state law enforcement personnel.”).


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19, 27.    Additionally, as police officers were arresting Claiborne, they

observed a female inside the residence. See id. at 29.    The police officers

asked the female to exit the residence, and thereafter conducted a brief

protective sweep of the residence to make sure there were no other persons

in the residence.   See id. at 29, 31; see also id. at 34 (wherein Officer

Gatewood testified that the protective sweep lasted more than two minutes

but less than four minutes).

     These specific and articulable facts, “when taken together with the

rational inferences from those facts,” would support the police officers’

reasonable concerns for their safety.        Taylor, 771 A.2d at 1268.

Accordingly, we conclude that the police carried out a proper protective

sweep. Accordingly, the trial court did not err in denying Claiborne’s Motion

to suppress evidence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/13/2016




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