Commonwealth v. Roland , 535 Pa. 595 ( 1994 )

OPINION OF THE COURT

FLAHERTY, Justice.

This is an appeal, by allowance, from a memorandum decision of the Superior Court which affirmed a judgment of sentence entered by the Court of Common Pleas of Allegheny County. The appellant, Dennis D. Roland, was convicted of furnishing liquor or malt or brewed beverages to minors, possession of a small amount of marijuana, and possession of drug paraphernalia. A fine of $250.00, plus costs of prosecution, was imposed.

Appellant’s convictions rested on evidence obtained when police entered his home, without a warrant, to investigate underage drinking. Appellant sought to have the evidence suppressed on the ground that it was obtained through an illegal search. At issue is whether the trial court erred in denying suppression. The record of the suppression hearing provides the following factual background.

On September 29, 1989, at approximately 10:15 p.m., police responded to a call from an individual who claimed to have been assaulted. The individual, a nineteen-year-old male, was bleeding about the head. He claimed that he had been struck while at a party in appellant’s nearby home. • He also stated that there was underage drinking and marijuana use at the party.

Around 11:30 p.m., after driving this individual to his residence, police went to appellant’s home to investigate. They knocked at the front door, and appellant answered. Appellant, an adult, had been seated inside with a number of individuals, and, while the door was open, police observed that the individuals were under the age of twenty-one years. The minors were sitting in close proximity to numerous cans of beer, and, upon seeing the police, they attempted to shield the cans from view. Believing that underage drinking was taking place, police entered the home and conducted a search. They found many opened and unopened cans of beer, as well as a small bag of marijuana, marijuana seeds, and a pipe containing marijuana residue.

Appellant was placed under arrest. He subsequently admitted that he had purchased the beer in question, in addition to rum, for consumption by the minors. Based on this evidence, appellant was tried and convicted on the present charges.

Prior to trial a motion to suppress evidence was filed by appellant. . It was denied by the trial court, on the basis that the search of appellant’s home was justified by exigent circumstances. The Superior Court affirmed. We reverse.

The applicable standard of review in an appeal challenging the 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 in error. Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985). In the present case, the courts below erroneously concluded that the search of appellant’s home was supported by exigent circumstances.

In a private home, “searches and seizures without a warrant are presumptively unreasonable.... ” Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347, 355 (1987). Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment. Payton v. New York, 445 U.S. 573, 583-90, 100 S.Ct. 1371, 1378-82, 63 L.Ed.2d 639, 648-53 (1980). In determining whether exigent circumstances exist, a number of factors are to be considered. As stated in Commonwealth v. Wagner, 486 Pa. 548, 557, 406 A.2d 1026, 1031 (1979),

Among the factors to be considered are: (1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.

Accord Commonwealth v. Williams, 483 Pa. 293, 298-99, 396 A.2d 1177, 1179-80 (1978), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980). Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 1690, 109 L.Ed.2d 85, 95 (1990). Nevertheless, “police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.” Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 743 (1984).

Where an offense being investigated by police is a minor one, a balancing of the foregoing factors should be weighted against finding that exigent circumstances exist. Welsh v. Wisconsin, 466 U.S. at 750-53, 104 S.Ct. at 2098-99, 80 L.Ed.2d at 743-45 (1984). See also Commonwealth v. Williams, 483 Pa. at 298, 396 A.2d at 1179 (where no grave offense is involved, particularly a crime of violence, the justification for proceeding without a warrant is more likely absent).

As stated in Welsh v. Wisconsin, 466 U.S. at 750-53, 104 S.Ct. at 2098-99, 80 L.Ed.2d at 743-45,

Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries.

[I]t is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor.

... [A]n important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense.... [Application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense, such as the kind at issue in this case, has been committed.

Applying these considerations to the present case, we regard the entry by police into appellant’s home as improper. Clearly, the police were not in hot pursuit of a fleeing felon. Nor was there a danger to police or other persons that would have necessitated an immediate entry. There was no reason to believe that appellant or the minors were armed. Further, the entry occurred at nighttime, which is a particularly suspect time for searches to be conducted. See Commonwealth v. Williams, 483 Pa. at 299, 396 A.2d at 1180 (an entry made at night raises particular concern over its reasonableness); Pa.R.Crim.P. 2003(c).

At the suppression hearing the police did not testify that they had any information, prior to entering appellant’s home, that appellant had furnished beer and liquor to the minors. Nor did they testify that they observed any indication of marijuana use prior to making their entry. Rather, they stated that their entry was triggered by their belief that underage drinking was taking place, due to their own observation of minors inside the residence who were attempting to shield cans of beer from view.

Given probable cause to believe that the offense of underage drinking was present, police should have obtained a warrant before searching appellant’s home. Underage drinking is not a grave crime of violence, such as might have justified a warrantless entry. See Commonwealth v. Williams, supra; Welsh v. Wisconsin, supra. Rather, it is a summary offense. 18 Pa.C.S. § 6308(a).

The Superior Court, in affirming the denial of suppression in this case, held that the exigencies justifying the warrantless entry were the risk that evidence, to wit, the beer cans, would be removed or destroyed before a warrant could be obtained, and the possibility that minors would flee from the scene. Beer cans are not, however, a type of evidence that can be readily destroyed, as, for example, by flushing them down a drain or burning them. The risk of the cans being destroyed before a warrant could be obtained was, therefore, negligible. Further, if the minors attempted to leave the scene while in possession of the beer or in an intoxicated state, before a warrant was obtained, police could have taken action pursuant to 18 Pa.C.S. § 6308 (mere possession of beer by a minor is an offense) or 18 Pa.C.S. § 5505 (public intoxication). Even if some of the minors had succeeded in fleeing from the scene, it must be remembered that “[o]ne of the prices we have to pay for the security which the Fourth Amendment bestows upon us is the risk that an occasional guilty party will escape.” Commonwealth v. Newman, 429 Pa. 441, 448, 240 A.2d 795, 798 (1968).

Moreover, in Welsh v. Wisconsin, supra, the risk of loss or destruction of evidence was addressed in relation to exigent circumstances. In Welsh, where the police had entered a home to arrest the owner for drunk driving, an offense that under the laws of Wisconsin was merely a noncriminal civil forfeiture offense, the Supreme Court of the United States stated that “a warrantless home arrest cannot be upheld simply because evidence of the petitioner’s blood-alcohol level might have dissipated while police obtained a warrant.” 466 U.S. at 754, 104 S.Ct. at 2100, 80 L.Ed.2d at 746 (footnote omitted). Similarly, in the present case, even assuming arguendo that beer cans might have been removed from appellant’s home before a warrant could be obtained, this alone would not have supported a warrantless entry to investigate the summary offense of underage drinking.

Thus, given the minor nature of the offense that triggered the police entry, and the lack of exigent circumstances supporting that entry, the denial of appellant’s motion for suppression was erroneous.

Judgment of sentence reversed, and a new trial granted.

CASTILLE, J., did not participate in the consideration or decision of this matter. MONTEMURO^*, J., files a dissenting opinion which is joined by PAPADAKOS, J.