Commonwealth v. Grimes

COMMONWEALTH OF PENNSYLVANIA v. LOUIS RICHARD GRIMES, JR. Appellant

J-S10041-21

No. 1194 MDA 2020

SUPERIOR COURT OF PENNSYLVANIA

MAY 28, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered August 6, 2020

In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0001166-2019

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.^*

MEMORANDUM BY PELLEGRINI, J.:

Louis Richard Grimes, Jr. (Grimes) appeals from the August 6, 2020 judgment of sentence imposed by the Court of Common Pleas of York County (trial court) following his convictions for persons not to possess a firearm, discharge of a firearm into an occupied structure, three counts of recklessly endangering another person and criminal mischief.¹ Grimes argues that the trial court erred in denying his motion to suppress. We affirm in part, reverse in part and remand for further proceedings.

I.

A.

We glean the following facts from the certified record.² On January 12, 2019, Officer Benjamin Smith (Officer Smith) of the York City Police Department responded to a 911 call from Sepia DeShields (DeShields). DeShields reported that her boyfriend, Grimes, had fired several shots at her vehicle and her home. She believed Grimes could be found nearby at his ex-girlfriend's home. Officers proceeded to the address and immediately observed Grimes leaving the home and placed him under arrest.

Officer Smith and his partner then approached the home and spoke with one of the occupants, 25-year-old Denzell Sipe (Denzell), who contacted hismother, Camille.³ Officer Smith understood Camille to be the owner of the home and attempted to speak with her on the phone at approximately 11 AM about conducting a search. However, Camille was at a cheerleading competition in Harrisburg and he could not understand her because of the background noise. Officer Smith attempted to explain that he wanted to search the home for any evidence related to the shooting. He said that obtaining a search warrant for the home was "a possibility." Notes of Testimony, 10/3/19, at 29. At the suppression hearing, Officer Smith testified that Camille may have told him to get a search warrant when they were on the phone but he could not hear her. He spoke with her twice on the phone and she told him she would return home at approximately 1 PM.

After his unsuccessful calls with Camille, Officer Smith consulted his supervisor and they determined that because Denzell was an adult who lived in the residence, he could consent to a search. Officer Smith again spoke with Denzell, explained the situation regarding the shooting, and asked for consent to search the home. Denzell agreed and signed a consent form at 11:40 AM.

Denzell told the officers which bedroom Grimes usually stayed in and the officers began to search. They recovered a pair of pants that matched the description given by DeShields. Another officer had also observed someonein similar pants on a surveillance camera near the scene of the shooting. Additionally, they recovered a shell casing that was sitting on top of the dresser in the bedroom.

Officers also found a safe in the bedroom closet which they were unable to open until Camille returned home. When she arrived at the home, the officers explained to her that they were looking for evidence related to the shooting and asked her for the combination to the safe. They did not explain that they had obtained Denzell's consent to search the home. Camille said that Grimes did not reside at the home, but he was the father of two of her children and spent the night there regularly. Camille told the officers that she did not know the exact combination to the safe, but she knew it was a zip code in the Bronx. They used that information to open the safe and recover a black Glock 26 9mm semi-automatic pistol from inside.

As the officers were leaving the home, Camille asked to see the search warrant. Officer Smith explained that they did not have a search warrant because Denzell had consented to the search. Officer Smith testified that no coercion or threats were used to continue the search once Camille returned home.

At the suppression hearing, the Commonwealth presented two portions of Officer Smith's body camera footage from the day of the search.⁴ Commonwealth Exhibit 2 was approximately 18 minutes of footage covering the period of time after Camille returned to the residence. When she returned, Officer Smith told Camille that the officers were only looking for evidence against Grimes and said "If you wouldn't mind opening the safe to see if he put a gun in there, that's the only thing we're looking for." Commonwealth Exhibit 2 at 12:03. He informed her that they found a shell casing on the dresser and that if they found a gun in the safe, the search would be complete and they would leave. Camille did not ask Officer Smith whether he had a search warrant. Officer Smith repeatedly told Camille and Denzell throughout both videos that he was not looking for evidence against them or their family and was only interested in finding evidence related to Grimes. The officers told Camille that they had already arrested Grimes.

Camille said that she did not know if she remembered the combination but began attempting to open the safe. Eventually she recalled that the combination was a zip code from the Bronx and an officer looked up a list of Bronx zip codes from the internet. The officer took over entering the zip codesinto the safe and Officer Smith asked if there was anywhere else Grimes would keep items in the house. Camille directed him to a drawer in the bedroom. Camille and Officer Smith spoke about the search and the cheerleading competition while the second officer attempted to open the safe. Moments later, the officer opened the safe and located the firearm.

Officer Smith and Camille continued talking while the additional officer completed the inventory form and Officer Smith, referencing their earlier phone call, said "it was really difficult because I couldn't hear a word you were saying." Id. at 12:18. As the officers left the house, Officer Smith thanked Camille for her cooperation and she asked to see the search warrant. Officer Smith informed her that they did not have a search warrant because Denzell signed the consent form as an adult resident of the house. He explained that he had tried to talk to Camille about consenting to the search but "we couldn't understand each other on the phone." Id. at 12:19.

Commonwealth Exhibit 3 was Officer Smith's body camera footage while he was attempting to speak with Camille on the phone. The officers first spoke to Denzell and asked him for Camille's phone number, which he provided. Camille did not answer the phone when Officer Smith called, so the officers asked Denzell to call her from a phone number she would recognize. When he spoke with Camille, Officer Smith first asked if she could move somewhere quieter and whether Grimes had been at her house the previous night. He explained that Grimes might have left some items in the house and askedwhen Camille would return home, and she responded that she would be back at 1 PM. Officer Smith told her that if she was not home by then he would call her promptly at that time to talk further.

The officers then left the front porch and discussed speaking with Camille at 1 PM to get consent to search the home with other officers on the scene. Officer Smith explained that Camille was at a competition with loud music and they could barely hear each other. He and another officer on the scene spoke about securing the home in the meantime and "getting a ticket."⁵ Commonwealth Exhibit 3 at 11:07. The officers returned to the porch and spoke with Denzell again. They explained that they needed to secure the house while they got a search warrant for any evidence related to Grimes. They asked Denzell if he could leave for a couple of hours because they needed to remove everyone from the home while they waited for a search warrant. The officers then followed Denzell for a brief sweep of the house to ensure that no one else was inside.⁶

Officer Smith then received a phone call from Camille. At the outset of the conversation, Officer Smith said, "I can barely hear you, but if you can hear me then that's fine." Id. at 11:12. He went on to explain that theywanted to look for anything that Grimes had brought into the house overnight and that she and Denzell were not in any trouble. He said they needed to follow procedure to search for evidence. He told Camille that if she was at the house, they would ask her to sign a consent to search form, but because she was in Harrisburg, they "have to get a search warrant." Id. at 11:13. He mentioned that Denzell could be at the house "when that happens." Id. at 11:13. Officer Smith then said that he would explain more "when we can both hear each other." Id. at 11:14.

B.

Camille also testified at the suppression hearing regarding her interactions with Officer Smith on the day of the search. She testified that she lives with her six children and Denzell was the only adult child. Grimes is the father to two of the children and he stayed at the house frequently to care for them. He kept clothes and a safe in the bedroom. Camille testified that the safe had been in the closet for over 15 years, but she had never opened it. Grimes had told her in the past that the combination was a zip code from the Bronx.

On the morning of the search, Camille was attending a cheerleading competition with her daughter. She testified based on her phone records that Denzell first called her at 11:05 AM to tell her that the police wanted to search the home and she told him not to let the officers conduct the search. She then spoke with an officer on the phone a couple of minutes later. She toldthe officer that she would be home after 1 PM and that he should meet her at the house then. She told him that he did not have permission to search her home. She...