J-S54011-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 WILLIAM DANIEL BROWN, JR.                 :
                                           :
                    Appellant              :   No. 1725 WDA 2017

          Appeal from the Judgment of Sentence October 24, 2017
                In the Court of Common Pleas of Blair County
            Criminal Division at No(s): CP-07-CR-0001313-2016


BEFORE: PANELLA, J., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY PANELLA, J.                        FILED NOVEMBER 26, 2018

      William Daniel Brown, Jr., appeals from the judgment of sentence

entered in the Blair County Court of Common Pleas following a jury trial.

Brown challenges the trial court’s denial of his pre-trial suppression motion.

In light of our Supreme Court’s decision in Commonwealth v. Romero, 183

A.3d 364 (Pa. 2018), we vacate the judgment of sentence, reverse the order

denying suppression, and remand for a new trial.

      On June 7, 2016, following the search of an attic where Brown was

residing, Brown was arrested and charged with various drug offenses. Brown

moved to suppress the evidence gained from the search, claiming that the

illegal entry into the residence led to an illegal search of the attic. The court

held a suppression hearing.

      At the hearing, the Commonwealth presented the following evidence. In

September of 2015, the State Board of Probation and Parole (the “Board”)
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issued an administrative action against Brown due to his failure to comply with

the terms of his supervision. The action did not proceed against Brown until

June 7, 2016, when parole agents received a tip from Blair County Children,

Youth and Families (“CYF”) that Brown was living, and selling drugs, out of a

residence located at 2620 6th Avenue in Altoona, Pennsylvania. Based upon

the tip, the Board sent State Parole Agents Brian Clawson and James Rucosky

to the residence to arrest Brown. Agent Rucosky testified that while they did

not have an arrest warrant for Brown, the administrative action declaring

Brown delinquent was all they needed to detain him pursuant to the terms of

Brown’s parole.

      Upon arrival, the state parole agents approached the residence with

officers from Blair County Adult Parole and Probation. After knocking on the

door, Agent Rucosky testified that one of the Blair County probation officers

recognized the young woman who answered the door, Tricia Mitchell, and

informed her that “we’re coming in; we’re looking for [] Brown.” N.T.,

Suppression Hearing, 1/12/17, at 12. Mitchell admitted the state parole

agents and probation officers (collectively, the “parole agents”) into the

residence and motioned that Brown was upstairs. The parties discovered

Brown in a small room in the attic. While Agent Clawson was taking Brown

into custody, Agent Rucosky scanned the room and observed, in plain view, a

plate with a powdery substance, baggies, and a cutting tool atop it. After state




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parole agents contacted Altoona Police to inform them of their discovery, they

issued a warrant to commit and detain Appellant.1

       Once Altoona Police officers responded to the residence, Brown admitted

to the officers that all of the drug paraphernalia in the attic space belonged to

him. A search warrant uncovered 103 packets of heroin, a plate with heroin

residue on it, $736 in U.S. currency, and various packaging materials such as

plastic baggies, rubber bands and rubber gloves.

       Following the hearing, the suppression court concluded that, pursuant

to Commonwealth v. Muniz, 5 A.3d 345 (Pa. Super. 2010), the state parole

agents were only required to have an arrest warrant and a reasonable belief

Brown was inside the premises to enter the residence. Because the trial court

found the Commonwealth met these requirements,2 it denied Brown’s

suppression motion.

       Following a jury trial, Brown was convicted of possession with intent to

deliver a controlled substance (heroin), possession of a controlled substance,

and possession of drug paraphernalia. The trial court sentenced Brown to 30

to 60 months’ incarceration. This timely appeal follows.
____________________________________________


1 Agent Rucosky testified that because state parole does not need a warrant
to detain an absconder, the warrant to commit and detain would likely have
been created after Brown’s arrest was noted in the computer system, as per
standard procedure. See N.T., Suppression Hearing, 1/12/17, at 21-22.

2The parties do not dispute that the administrative action legally functioned
as an arrest warrant in this matter.




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       On appeal, Brown argues the trial court erred in denying his pretrial

motion to suppress.3 Specifically, Brown argues that the parole agents

unlawfully entered the residence without a search warrant. Therefore, he

contends all evidence recovered from the subsequent search of the attic room

must be suppressed.

       “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. 2012)

(citations omitted).

       Our standard of review in addressing a challenge to a trial court’s
       denial of a suppression motion is whether the factual findings are
       supported by the record and whether the legal conclusions drawn
       from those facts are correct. When reviewing the ruling of the
       suppression court, we must consider only the evidence of the
       prosecution and so much of the evidence of the defense as
       remains 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 legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted).

       “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given to their testimony.


____________________________________________


3 Brown also argues that the verdict was against the weight of the evidence
at trial. However, due to our disposition of Brown’s first issue, we did not reach
this issue.

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The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citation omitted).

      Brown challenges the parole officers’ entry into the residence in order

to arrest him. Generally, the police are required to obtain a search warrant

before entering a residence. See Commonwealth v. Caple, 121 A.3d 511,

517 (Pa. Super. 2015). This requirement is subject to limited exceptions,

which include consent and exigent circumstances. See Commonwealth v.

Boyd Chisholm, ___ A.3d ___, ___, 2018 WL 5575649, at *3 (Pa. Super.,

filed October 30, 2018). Additionally, our Court has held that where the police

have a “reasonable belief” that the subject of an arrest warrant lives at a

particular address, even if they are mistaken in this belief, they can enter the

residence to look for the subject of the warrant without first obtaining a search

warrant for the address. See Muniz, 5 A.3d at 349-352. See also

Commonwealth v. Romero, 138 A.3d 21, 25 (Pa. Super. 2016) (“Where

authorities have a reasonable belief that the subject of an arrest warrant lives

within a given premises, they can enter the home and arrest the suspect

without a search warrant.”)

      However, our Supreme Court recently rejected this “reasonable belief”

standard. The Court observed that “[t]he Fourth Amendment protects the

privacy interests in all homes[,]” and,           absent consent or exigent

circumstances, “[t]o overcome that privacy interest, a warrant used to enter

a home must reflect a magisterial determination of probable cause to believe

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that the legitimate object of a search is contained therein.” Romero, 183 A.3d

at 403.

      [T]he central distinction between an “arrest warrant” and a
      “search warrant” is the identification of the particular person or
      place that the magistrate has found probable cause to seize or to
      search. If an arrest warrant is based solely upon probable cause
      to seize an individual, then it authorizes precisely that seizure. If
      entry into a residence is necessary to search for that individual,
      then the warrant must reflect a magisterial determination of
      probable cause to search that residence, regardless of whether
      the warrant is styled as an “arrest warrant” or a “search warrant.”
      The critical inquiry is whether the warrant adequately addresses
      all of the Fourth Amendment interests that are implicated by the
      contemplated action.

Id. (footnote omitted).

      Here, no magisterial determination of probable cause occurred. The

administrative action, which served as the arrest warrant in this matter, does

not list 2620 6th Avenue as Brown’s residence. In fact, the action does not list

any address. Instead, the only information as to how that address was

obtained was an indication that Blair County CYF obtained a “tip” that Brown

was living at, and selling drugs from, the residence. Accordingly, pursuant to

Romero, without exigent circumstances or consent, the parole officers’ entry

into the home to arrest Brown was unlawful.

      In response to the ramifications of Romero, the Commonwealth

contends that Mitchell consented to the parole officers entering her home to

search for Brown. See Commonwealth’s Brief, at 20. However, there is no

indication that the court expressly found that Mitchell consented to the parole

officers entering her home. See Trial Court Opinion, 1/20/17, at 2 (finding

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only that officers were “admitted” to the home by Tricia Mitchell”). And, the

limited evidence presented at the suppression hearing related to consent does

not lead us to a conclusion that Mitchell consented to the parole officers

entering her home; it appears only that Mitchell was simply informed that the

parole officers would be entering her home. See N.T., Suppression Hearing,

1/12/17, at 12 (“we’re coming in; we’re looking for [] Brown.”).

       Therefore, because we find no evidence of consent to justify the parole

officers’ unlawful entry into the residence, the evidence recovered during the

subsequent search must be suppressed.4

       Judgment of sentence vacated. Order denying suppression reversed.

Case remanded for further proceedings. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2018




____________________________________________


4 We recognize that the administrative action utilized to arrest Brown differs
substantially from the typical arrest warrant contemplated in Romero.
However, as a panel of our Court found in Boyd Chisholm,“we are bound to
follow Romero.” ___ A.3d at ___, 2018 WL 5575649, at *8 n.15.

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