Commonwealth v. Duke

208 A.3d 465

COMMONWEALTH of Pennsylvania

v.Timothy Martin DUKE, Appellant

No. 1293 MDA 2018

Superior Court of Pennsylvania.

Argued January 9, 2019

Filed April 12, 2019

Reargument Denied June 20, 2019

David Rudovsky, Philadelphia, for appellant.

Justin M. Talarowski, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY DUBOW, J.:

Appellant, Timothy Martin Duke, appeals from the Judgment of Sentence entered in the York County Court of Common Pleas on November 22, 2016. He challenges the trial court's denial of his Suppression Motion, averring that the search of his garage was an illegal warrantless search and any evidence obtained thereafter was "fruit of the poisonous tree." After careful review, we agree. We, thus, vacate Appellant's Judgment of Sentence.

The facts and procedural history are as follows. On October 23, 2015, Pennsylvania State Troopers Joshua Koach, Kyle Yeager, and Alan Krall went to Appellant's home at 4724 Glatfelter Road in Seven Valleys, York County, in an effort to locate Appellant's son, Brandon.¹ The troopers did not have a warrant to search Appellant's property.²

Appellant was standing at the end of his driveway holding his small dog when the troopers arrived. Appellant informed the troopers that Brandon was incarcerated in Lancaster County Prison and, thus, not on the premises.³ N.T. Suppression, 6/29/16, at 12-13.

Trooper Krall then asked Appellant for permission to look through Appellant's house to confirm that Brandon was not there. Id. at 13, 28, 51. Appellant denied Trooper Krall's request to search. Appellant, who was holding his dog, then retreated up his driveway toward his garage. Id. at 29, 51, 55.

Notwithstanding Appellant's denial of consent to the troopers' request to search, Troopers Koach and Yeager followed Appellant up his driveway towards his attached two-car garage. Appellant did not make any threats or move towards the troopers, and the troopers did not instruct Appellant to stop walking towards the garage. Id. at 30-31.⁴

Still without Appellant's consent to be on his property, the troopers went further onto Appellant's property, following him while he walked towards his garage. The troopers then observed inside the garage a compound bow and arrow, a crossbow, and a long gun or rifle. They also smelled marijuana. Id. at 14-15, 31-32. The troopers then entered the garage, again without Appellant's consent, and found five or six marijuana plants drying in Appellant's garage. Id. at 15-16, 35-36.

Based on this discovery, the troopers arrested Appellant. They subsequently obtained a search warrant for Appellant's home and found additional marijuana plants. The Commonwealth charged Appellant with one count of Manufacturing with Intent to Deliver, 35 P.S. § 780-113(a)(30).

On January 15, 2016, Appellant filed an Omnibus Pretrial Motion seeking to suppress physical evidence that the state troopers obtained from Appellant's property and statements that Appellant made to the troopers. Appellant argued that the troopers conducted an illegal warrantless search of Appellant's garage and that the evidence they collected was the result of that illegal search. Appellant also sought the suppression of any statements he made to police prior to the issuance of Miranda⁵ warnings.

On June 29, 2016, the trial court held a hearing on Appellant's Motion to Suppress. Troopers Koach and Yeager testified on behalf of the Commonwealth. They testified that they suspected that Appellant had lied about Brandon not being inside and had followed Appellant up his driveway because they were unsure of his intentions and wanted to make sure he did not go for a weapon. Id. at 15, 30, 32, 52. Trooper Koach also testified that Appellant "indicated there is no way we are getting to his house." Id. at 29. Trooper Koach also admitted that it was possible that Appellant had asked the troopers to leave his property. Id.

Appellant testified on his own behalf and offered the testimony of Trooper Krall. The trial court credited the testimony of the Troopers Koach and Yeager over Appellant's, and denied Appellant's Motion that same day. Relevantly, the trial court concluded that exigent circumstances, namely "officer safety," justified the troopers' warrantless incursion into Appellant's garage. Trial Ct. Op., 2/23/17, at 5.

On November 22, 2016, Appellant proceeded to a stipulated non-jury trial and the court found him guilty of the above offense. The court immediately sentenced Appellant to a term of 3 years' probation.

Appellant did not file a Post-Sentence Motion, but did timely appeal. On October 24, 2017, this Court affirmed Appellant's Judgment of Sentence. See Commonwealth v. Timothy Martin Duke , No. 2093 MDA 2016, 2017 WL 4786420 (Pa. Super. Filed Oct. 24, 2017) (unpublished memorandum). Following its review, however, the Pennsylvania Supreme Court vacated this Court's decision and remanded to the trial court for reconsideration in light of the Supreme Court's decision in Commonwealth v. Romero , 183 A.3d 364 (Pa. 2018) (plurality ).⁶

Pursuant to the Supreme Court's directive, the trial court ordered the parties to brief the issues raised in Appellant's Motion to Suppress in light of the Romero decision. On July 16, 2018, both Appellant and the Commonwealth complied with the court's Order.

Following its consideration of the parties' arguments and the holding in Romero , on July 17, 2018, the trial court again denied Appellant's Motion to Suppress. The trial court concluded that "because [it] found that [t]roopers entered [Appellant's] garage for officer safety concerns as opposed to specifically searching for the target of the arrest warrant in [Appellant's] garage, Romero does not apply to this matter."⁷ Trial Ct. Op., 9/4/18, at 12.

Appellant timely filed the instant appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Whether the searches and seizures conducted by the [t]roopers on Appellant's property without valid search warrants violated the Fourth Amendment and Article I, Section 8 of the Pennsylvania Constitution.

Appellant's Brief at 4.

Appellant challenges the trial court's denial of his Motion to Suppress. We review the suppression court's denial of a motion to suppress to determine whether the record supports the court's factual findings and whether the legal conclusions drawn from those facts are correct. Commonwealth v. Eichinger , 591 Pa. 1, 915 A.2d 1122, 1134 (2007) (citations omitted). In conducting this review, we 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." Id. We are bound by the facts as found by the suppression court, so long as they are supported by the record. Id. We "may reverse only if the legal conclusions drawn therefrom are in error." Id.

"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. 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).

"Both the Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals freedom from unreasonable searches and seizures." Commonwealth v. Bostick , 958 A.2d 543, 550 (Pa. Super. 2008) (citation and internal quotation marks omitted). "[W]arrantless searches and seizures are ... unreasonable per se , unless conducted pursuant to a specifically established and well-delineated exception to the warrant requirement." Id. at 556.

One exception to the warrant requirement is when probable cause and exigent circumstances are present. "Absent probable cause and exigent circumstances, warrantless searches and seizures in a private home violate both the Fourth Amendment [of the United States Constitution] and Article 1[,] § 8 of the Pennsylvania Constitution." Commonwealth v. Bowmaster , 101 A.3d 789, 792 (Pa. Super. 2014) (citing Commonwealth v. Lopez , 415 Pa.Super. 252, 609 A.2d 177, 178-179 (Pa. 1992) ).

There are a number of factors to consider when determining whether exigent circumstances exist, including "danger to police or other persons inside or outside the dwelling."⁸ Commonwealth v. Lee , 972 A.2d 1, 3-4 (Pa. Super. 2009) (citation omitted). Our Supreme Court has equated the term "exigent circumstances" with "urgent need" to underscore the "heavy burden" on the Commonwealth to prove that prompt police action was imperative. Commonwealth v. Williams , 483 Pa. 293, 396 A.2d 1177, 1179 (1979). The Commonwealth must show by clear and convincing evidence that the circumstances surrounding the opportunity to search were truly exigent. Lee , supra at 4. "Whether exigent circumstances exist depends on an examination of all of the surrounding circumstances in a particular case." Commonwealth v. Flowers , 735 A.2d 115, 119 (Pa. Super. 1999) (citation and internal quotation marks omitted).

Additionally, "police cannot rely upon exigent circumstances to justify a warrantless entry where the exigency derives from their own actions." Commonwealth v. Demshock , 854 A.2d 553, 557 (Pa. Super. 2004).

In considering Appellant's issue, the suppression court found as follows:

In the driveway of the residence, Trooper Yeager and Trooper Koach spoke with the Appellant and told him they were serving an arrest warrant, and the Appellant told them that the subject of the arrest warrant was his son, who was incarcerated at that time. According to Trooper Koach, Trooper Krall then asked the Appellant about looking through the house to see if the subject was there, and Appellant did not want them near the house.

Then, Appellant began walking away toward his two-car garage, which was attached to the residence. One of the two

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