J-A19004-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    JAQUISE JOSEPH THOMAS                      :
                                               :
                       Appellant               :       No. 179 MDA 2018

           Appeal from the Judgment of Sentence January 11, 2018
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0000988-2017


BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                        FILED NOVEMBER 21, 2018

       Appellant, Jaquise Joseph Thomas, appeals from the judgment of

sentence entered in the Dauphin County Court of Common Pleas, following his

jury trial convictions for possession with intent to deliver (“PWID”), possession

of a small amount of marijuana, possession of drug paraphernalia, conspiracy,

and false identification to law enforcement.1 We affirm.

       The relevant facts and procedural history of this case are as follows.

          Swatara Township Police Officer Patrick Walsh…was on
          routine patrol in the early morning hours of February 6,
          2017. Officer Walsh was at the Howard Johnson Motel[,
          which was known for drug-related activity,] on Eisenhower
          Boulevard, Harrisburg, PA[,] and was walking the hallway
          when he saw…Appellant in a doorway.              Appellant
          immediately shut the door and Officer Walsh proceeded to
          go up to the door and immediately smelled burnt marijuana.
____________________________________________


1 35 P.S. §§ 780-113(a)(30), (31), (32); 18 Pa.C.S.A. §§ 903, 4914(a),
respectively.
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          Officer Walsh knocked several times and after a couple of
          minutes [Dnasia Peterson] answered the door. The odor of
          marijuana was much stronger when the door was opened.

          Officer Walsh talked to [Appellant] who told Officer Walsh
          that [Appellant] had some friends over earlier who were
          smoking [marijuana]. Officer Walsh told…Appellant that
          this was now a drug investigation due to the smell and
          Appellant gave the name of John Thompson. Officer Walsh
          was given permission [by Appellant] to search the room[,
          which was registered to Jamie Pacheco,] and waited for
          backup to arrive. As Officer Walsh searched the room, he
          discovered a marijuana blunt that…Appellant said was his
          and [also] discovered a digital scale underneath the bed.
          Next, Officer Walsh found a bag containing men’s clothing
          and two cardboard boxes that contained 50-100 small
          [plastic] baggies. At this point, [Appellant] told Officer
          Walsh that he [was] not permitted to search [the bag of
          clothing]. Officer Walsh stopped the search and obtain[ed]
          a search warrant. Officer David Ritter, of the Swatara
          Township Police, returned and informed Officer Walsh
          that…Appellant had given the wrong name.

          As [Ms. Peterson] was being arrested, a bag containing
          numerous bundles of heroin fell out of her right front pocket.
          Both Ms. Peterson and…Appellant were placed under arrest
          and read their Miranda[2] rights. As this was happening,
          Appellant claimed that the bags of heroin…were his.

Trial Court Opinion, filed March 9, 2018, at 3-4 (internal citations omitted).

After officers removed Appellant and Ms. Peterson from the hotel room, Officer

Walsh found a straw with heroin residue and a candy bag that contained

marijuana.

        On October 31, 2017, Appellant filed a motion to suppress. The court

held a suppression hearing on November 16, 2017, and denied Appellant’s


____________________________________________


2   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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suppression motion on December 7, 2017. The following day, a jury convicted

Appellant of PWID, possession of a small amount of marijuana, possession of

drug paraphernalia, conspiracy, and false identification to law enforcement.

On January 11, 2018, the court sentenced Appellant to an aggregate term of

30 to 72 months’ imprisonment plus 1 year of probation. Appellant timely

filed a notice of appeal on January 22, 2018. On February 1, 2018, the court

ordered Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b); Appellant timely complied on February 21,

2018.

        Appellant raises the following issue for our review:

           DID NOT THE COURT ERR IN DENYING [APPELLANT’S]
           MOTION TO SUPPRESS WHEN THE POLICE EFFECTED A
           WARRANTLESS, NON-EXIGENT ENTRY INTO A HOTEL ROOM
           WHERE [APPELLANT] WAS AN OVERNIGHT GUEST AND
           WHEN THE KNOWINGNESS AND VOLUNTARINESS OF ANY
           SUBSEQUENT CONSENT TO SEARCH WAS VITIATED BY THE
           UNLAWFUL ENTRY?

(Appellant’s Brief at 4).

        “Our standard of review in addressing a challenge to a trial court’s denial

of a suppression motion is limited to determining whether the factual findings

are supported by the record and whether the legal conclusions drawn from

those facts are correct.” Commonwealth v. Hope L. Williams, 941 A.2d

14, 26 (Pa.Super. 2008) (en banc) (quoting Commonwealth v. Jones, 874

A.2d 108, 115 (Pa.Super. 2005)).

           [W]e may consider only the evidence of the prosecution and
           so much of the evidence for the defense as remains

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         uncontradicted when read in the context of the record as a
         whole. Where the record supports the findings of the
         suppression court, we are bound by those facts and may
         reverse only if the court erred in reaching its legal
         conclusions based upon the facts.

Williams, supra at 27 (quoting Jones, supra).

      Appellant argues that, as an overnight guest in a hotel room, he had a

reasonable expectation of privacy and standing to contest unlawful police

activity. Appellant complains Officer Walsh unconstitutionally entered beyond

the doorway of the hotel room without acquiring consent or articulating

exigent circumstances.      Appellant avers that Officer Walsh did not see

Appellant with any contraband outside of the room; Appellant did not flee into

his hotel room but merely backed into the room and closed the door; and

Appellant had no knowledge that Officer Walsh would walk down the corridor

and position himself outside the hotel room. Appellant submits Officer Walsh

created his own exigency by insisting on knocking and entering the hotel room

after he smelled marijuana, when at that point, he could have obtained a

search warrant. Appellant concedes he consented to a search but maintains

the consent happened after Officer Walsh had illegally entered the hotel room,

which vitiated any consent Appellant gave after the illegal entry. Appellant

contends all physical evidence and statements police obtained that night are

fruit of the initial illegal entrance.   Appellant concludes the court erred in

denying his motion to suppress, and this Court should vacate the judgment of

sentence and remand for a new trial. We disagree.


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     “The Fourth Amendment to the United States Constitution and Article I,

Section 8 of the Pennsylvania Constitution protect individuals against

unreasonable searches and seizures.” Commonwealth v. Hudson, 92 A.3d

1235, 1241 (Pa.Super. 2014), appeal denied, 630 Pa. 734, 106 A.3d 724

(2014).   Article I, Section 8 can provide no less protection than what the

Fourth Amendment requires. Commonwealth v. McCree, 592 Pa. 238, 246,

924 A.2d 621, 626 (2007). “A defendant moving to suppress evidence has

the preliminary burden of establishing standing and a legitimate expectation

of privacy.” Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa.Super.

2011). Importantly,

          The traditional formulation for standing requires a defendant
          to demonstrate one of the following personal interests: (1)
          his presence on the premise at the time of the search and
          seizure; (2) a possessory interest in the evidence
          improperly seized; (3) that the offense charged includes as
          an essential element of the prosecution’s case, the element
          of possession at the time of the contested search and
          seizure; or (4) a proprietary or possessory interest in the
          searched premises.

Commonwealth v. Bostick, 958 A.2d 543, 551 (Pa.Super. 2008), appeal

denied, 604 Pa. 702, 987 A.2d 158 (2009) (internal citation omitted).

     “[G]enerally under Pennsylvania law, a defendant charged with a

possessory    offense   has   automatic   standing   to   challenge   a   search.”

Maldonado, supra at 910. Under this general rule, a defendant is entitled

to a review of the merits of his suppression motion without a preliminary

showing of ownership or possession of the premises or items seized.


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Commonwealth v. Enimpah, 630 Pa. 357, 363-64, 106 A.3d 695, 698

(2014).   In addition to standing, a defendant must also show he had a

reasonable expectation of privacy. Id.

      “An expectation of privacy will be found to exist when the individual

exhibits an actual or subjective expectation of privacy and that expectation is

one that society is prepared to recognize as reasonable.” Commonwealth

v. Viall, 890 A.2d 419, 422 (Pa.Super. 2005). “In determining whether a

person’s expectation of privacy is legitimate or reasonable, the totality of the

circumstances must be considered and the determination will ultimately rest

upon a balancing of the societal interests involved.” Id.

      A hotel room can have the same Fourth Amendment protection as a

home or an office. Commonwealth v. Dean, 940 A.2d 514, 519 (Pa.Super.

2008). “[A] registered hotel guest enjoys a legitimate expectation of privacy

in a hotel room during the period of time in which the room rental remains

valid.”   Commonwealth v. Dion Jerry Williams, 165 A.3d 994, 1000

(Pa.Super. 2017), appeal denied, ___ Pa. ___, 179 A.3d 6 (2018).

“Warrantless searches and seizures inside a home (hotel room) are

presumptively unreasonable unless the occupant consents or probable cause

and exigent circumstances exist to justify intrusion.” Dean, supra at 521.

      “The central Fourth Amendment inquiries in consent cases entail

assessment of the constitutional validity of the citizen/police encounter giving

rise to the consent; and, ultimately, the voluntariness of consent. Where the


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underlying encounter is found to be lawful, voluntariness becomes the

exclusive focus.”    Commonwealth v. Moultrie, 870 A.2d 352, 356

(Pa.Super. 2005) (quoting Commonwealth v. LaMonte, 859 A.2d 495

(Pa.Super. 2004)) (internal quotation marks omitted).

        In determining the validity of a given consent, the
        Commonwealth bears the burden of establishing that a
        consent is the product of an essentially free and
        unconstrained choice—not the result of duress or coercion,
        express or implied, or a will overborne—under the totality
        of the circumstances. The standard for measuring the scope
        of a person’s consent is based on an objective evaluation of
        what a reasonable person would have understood by the
        exchange between the officer and the person who gave the
        consent. Such evaluation includes an objective examination
        of the maturity, sophistication and mental or emotional
        state of the defendant….        Gauging the scope of a
        defendant’s consent is an inherent and necessary part of the
        process of determining, on the totality of the circumstances
        presented, whether the consent is objectively valid, or
        instead     the   product    of    coercion,     deceit,  or
        misrepresentation.

Commonwealth v. Smith, 621 Pa. 218, 236, 77 A.3d 562, 573 (2013)

(internal citations and quotation marks omitted). Furthermore,

        [T]here is no requirement that a police officer advise a
        person that he…may refuse consent to be searched. Unless
        the totality of factors indicate[s] that the consent was the
        product of express or implied duress or coercion…the mere
        fact that a police officer did not specifically inform an
        appellant that he…could refuse the request will not in and of
        itself result in a determination that the subsequent search
        was involuntary.

Moultrie, supra at 360 (citing Commonwealth v. Key, 789 A.2d 282, 291

(Pa.Super. 2001)).

     The United States Supreme Court recently held “as a general rule,

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someone in otherwise lawful possession and control of a rental car has a

reasonable expectation of privacy in it even if the rental agreement does not

list him or her as an authorized driver.” Byrd v. U.S., ___ U.S. ___, ___,

138 S.Ct. 1518, 1524, 200 L.Ed.2d 805, ___ (2018). The Supreme Court

reasoned a common-law property interest in the place searched is not always

needed for a person to claim a reasonable expectation of privacy. Id. Thus,

the lack of authorization to drive a rental car does not eliminate an individual’s

expectation of privacy in the vehicle, as long as the individual is in lawful

possession and control over the car. Id.

      Here, Appellant had a reasonable expectation of privacy based on his

lawful presence within the hotel room.       The room was registered to Ms.

Pacheco and not Appellant or Ms. Peterson. There is, however, no dispute

that Appellant and Ms. Peterson were lawfully present and had control over

the hotel room.     See id.    Because Article I, Section 8 cannot give less

protection than the Fourth Amendment, Appellant had a reasonable

expectation of the privacy in the hotel room.       See McCree, supra; Dion

Jerry Williams, supra; Viall, supra. Therefore, we will evaluate the validity

of Appellant’s consent to search as an exception to the warrant requirement.

      The trial court analyzed this case as follows:

         Here, Officer Walsh, who has been investigating drug
         related offenses over the past three years and specifically
         at the hotel in question, was on routine patrol in the early
         morning hours of February 6, 2017. While walking the
         Howard Johnson Hotel, Officer Walsh turned the corner and
         saw [Appellant] standing in a doorway.           [Appellant]

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        immediately went inside and shut the door. Officer Walsh
        approached the door and detected an odor of burnt
        marijuana. He knocked on the door and heard a male voice
        respond.     Officer Walsh [identified himself] and kept
        knocking. Officer Walsh testified that he “could hear people
        inside rustling around, movement and stuff.” After waiting
        nearly three minutes, [Ms. Peterson opened] the door.
        When the door was opened, a stronger odor of marijuana
        was detected by Officer Walsh. Having detected a strong
        odor of marijuana coming from the hotel room, Officer
        Walsh had probable cause to obtain a search warrant. …

        Officer Walsh then asked Appellant if he could search the
        hotel room and Appellant gave his consent. Officer Walsh
        waited for back-up to arrive and then once again asked
        [Appellant] if [Officer Walsh] could search the hotel room.
        Officer Walsh described his interaction with Appellant as
        conversational. Officer Walsh began searching the room
        and at some point, [Appellant] withdrew his permission to
        search the room. At this point, Officer Walsh stopped his
        search and obtained a search warrant. [Appellant] was
        asked two times whether he would consent to the search of
        the hotel room and twice (one in front of several officers)
        gave his consent. Additionally, Appellant was aware of his
        actions because as soon as Officer Walsh began searching
        in the bag of clothing, Appellant withdrew his consent.
        Officer Walsh then properly obtained a search warrant.
        Here, Appellant voluntarily gave his consent and when the
        Appellant withdrew his consent, the [o]fficers respected that
        decision and obtained a valid search warrant.

Trial Court Opinion at 8-9 (internal citations and footnote omitted). We agree

with the court’s rationale and adopt its reasoning.     See Smith, supra;

Moultrie, supra.

     Ms. Peterson voluntarily opened the door after Officer Walsh knocked

and announced himself. Neither Ms. Peterson nor Appellant objected to Officer

Walsh’s presence in the doorway, even though they both had the right to

exclude him from the room. See Dean, supra. Thereafter, Officer Walsh

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twice asked Appellant if he consented to a search of the room; and Appellant

answered affirmatively both times. See id. Nothing in the record suggests

Officer Walsh coerced Appellant to consent to a search. See Smith, supra.

Further, Appellant objected to the search when Officer Walsh went through a

bag of clothes, which suggests Appellant understood his right to refuse

consent.   See Moultrie, supra.     Officer Walsh immediately stopped the

search and obtained a search warrant.           Under the totality of the

circumstances, Appellant’s consent to search was voluntary and valid; and the

trial court properly denied Appellant’s motion to suppress. See Dean, supra.

Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2018




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