Com. v. Gault, M. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL L. GAULT,
Appellant No. 810 WDA 2014
Appeal from the Judgment of Sentence April 15, 2014
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001827-2013
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 11, 2015
Michael L. Gault appeals from the judgment of sentence of one year
probation after he was found guilty of possession of a controlled substance--
marijuana, possession of a small amount of marijuana, and possession of
drug paraphernalia following a non-jury trial. We affirm.
At approximately 9:15 p.m. on November 11, 2013, Officer Jeremiah
Christner received a call from 911 regarding an assault at 23 South High
Street, Apartment 101, Greenville, Pennsylvania, Mercer County. The
dispatch indicated that a resident had been attacked by individuals who had
broken into an apartment. Officer Christner responded to that address and
found the front door open and the doorjamb damaged. Appellant was inside
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*
Retired Senior Judge assigned to the Superior Court.
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and bleeding extensively from his head. He indicated to the officer that he
had been assaulted in his bedroom, which was on the same floor and visible
from the front door. After paramedics arrived to treat Appellant, Officer
Christner entered the bedroom to investigate. Upon entering, Officer
Christner observed that an entertainment center was damaged and blood
was throughout the room. In addition, he saw in plain view a charred metal
pipe on the top of a dresser, which appeared to be a crack pipe. Officer
Christner also observed a night stand with a drawer open that contained a
metal spoon with burned substance in the spoon. He believed that the
spoon was consistent with heroin use. Officer Christner also found a pill
bottle in the drawer and two small digital scales with marijuana on them. He
opened the bottle and inside was marijuana.1
Appellant filed a suppression motion that was denied in part and
granted in part. Specifically, the court suppressed the marijuana evidence
found inside the pill bottle. However, it concluded that the discovery of the
pipe and metal spoon fit within the plain view exception to the warrant
requirement. The court made no specific findings regarding the digital
scales at the suppression hearing, but did not suppress the scales or small
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1
Appellant has failed to supply this Court with the transcript from the trial.
We glean the facts of this case from the suppression transcript, which also
was originally not part of the certified record. The Commonwealth did not
argue waiver and this Court directed the lower court to transmit a copy of
the suppression hearing transcript.
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amount of marijuana thereon. Appellant proceeded to a non-jury trial
before a different judge. The court found Appellant guilty of the
aforementioned charges.2 Appellant timely appealed. The court directed
Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Appellant complied, and the trial court authored a
Rule 1925(a) decision.
The matter is now ready for this Court’s review. Appellant’s sole
challenge on appeal is, “Under the Fourth and Fourteenth Amendments of
the U.S. Constitution as well as Article I, § 8 of the Pennsylvania
Constitution, did the trial court err in failing to suppress evidence obtained
as a fruit of the warrantless police search of Michael Gault’s bedroom?”
Appellant’s brief at 4.
In evaluating a suppression ruling, we consider the evidence of the
Commonwealth, as the prevailing party below, and any evidence of the
defendant that is uncontradicted when examined in the context of the
suppression record. Commonwealth v. Sanders, 42 A.3d 325, 330
(Pa.Super. 2012). This Court is bound by the factual findings of the
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2
We are aware that in Commonwealth v. Gordon, 897 A.2d 504
(Pa.Super. 2006), this Court held that it was improper to find a person guilty
of possession of marijuana and not the more specific crime of possession of
a small amount of marijuana where the amount of marijuana fell within the
small amount of marijuana statute. Appellant has not raised this issue and
we are without a trial transcript to discern the weight of marijuana at issue.
Hence, Appellant has waived any contention under Gordon.
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suppression court where the record supports those findings and may only
reverse when the legal conclusions drawn from those facts are in error. Id.
Appellant argues that the warrantless search of his apartment
bedroom violated both his Fourth Amendment and Article I, § 8 right to be
free from unreasonable searches and seizures. He contends that the
suppression court erred in failing to consider the absence of exigent
circumstances. In addition, according to Appellant, the consent exception to
the warrant requirement did not extend into his bedroom nor do the search
incident to arrest or immediate aid exception apply.
The current version of Article I, § 8 of the Pennsylvania Constitution
provides,
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things
shall issue without describing them as nearly as may be, nor
without probable cause, supported by oath or affirmation
subscribed by the affiant.
Pa.Const., Article I, § 8. Similarly, the Fourth Amendment reads,
The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons
or things to be seized.
U.S.Const. Am. IV. Appellant has not delineated any separate challenge
under the Pennsylvania Constitution. Accordingly, we do not consider
whether our state charter offers greater protections herein.
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Ordinarily, law enforcement must obtain a warrant before conducting a
search. Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013). In
this respect, warrantless searches are generally presumed unreasonable.
Commonwealth v. Taylor, 771 A.2d 1261, 1266 (Pa. 2001). Nonetheless,
there are exceptions to the warrant requirement, including consent. See
Commonwealth v. Cleckley, 738 A.2d 427, 429 (Pa. 1999); Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973) (“It is equally well settled that
one of the specifically established exceptions to the requirements of both a
warrant and probable cause is a search that is conducted pursuant to
consent.”).
This Court has held that, in the situation where a defendant telephones
police or emergency personnel regarding potential criminal activity, he or
she impliedly consent to a search of the premises that is reasonably related
to an investigation of the alleged crime. See Commonwealth v. Witman,
750 A.2d 327, 335 (Pa.Super. 2000) (collecting and discussing case law
from other jurisdictions). Appellant distinguishes Witman on the ground
that therein the defendant had summoned police whereas, in the instant
case, a neighbor alerted police to the assault.
In Witman, the defendant telephoned 911. Police and other
emergency personnel responded within ten minutes of the call. An EMT
informed the first police officer to arrive that he had a crime scene. The
defendant’s thirteen year old brother was, in fact, deceased. The defendant
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was reportedly in an excited state, holding a telephone, with blood visible on
both the phone and the defendant’s hands and shirt. According to the first
officer on the scene, the defendant stated that he had left a key in the door
for his brother and had been sleeping. The defendant then reported that he
heard a thud downstairs and discovered his brother. The officer then walked
to a doorway in the garage leading to a laundry room, where he saw the
body of the victim.
Police then began to mark off the scene. An additional officer
performed what he described as a security sweep of the home. In doing so,
he observed drops of blood on the kitchen floor and a large amount of blood
in a hallway. In addition, he saw a broken table, a jacket, book bag, and
key ring neck chain. The officer also found blood on the front door and on
the walls in a foyer area. Subsequently, police began to process the scene.
The mother of the victim arrived and told police to find the person who
committed the crime. Police did not secure a search warrant for the home at
that time.
The father of the victim also spoke with police approximately four and
one-half hours later while he was at the hospital with the defendant.
According to one officer, he told the victim’s father that they were
processing the scene and the father told police to do whatever it took.
Approximately nine hours after arriving at the house, around 12:30 a.m.,
police, using Luminol, were led by a blood trail to an outdoor dirt mound.
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They unearthed a knife and athletic gloves. Subsequently, police secured a
warrant. The suppression court originally suppressed sixteen items taken
from the house as part of the investigation as well as other items not
material herein. This Court reversed the suppression court’s ruling as to the
warrantless seizures.
The panel first found “that a sound exception to the warrant
requirement must exist where a defendant has summoned police and set the
tone for the initial investigation.” Id. at 335. Quoting Brown v. Texas,
856 S.W.2d 177, 182 (Tex.Crim.App. 1993), the Witman Court set forth:
when a crime is reported to the police by an individual who owns
or controls the premises to which the police are summoned, and
that individual either states or suggests that it was committed by
a third person, he or she implicitly consents to a search of the
premises reasonably related to the routine investigation of the
offense and the identification of the perpetrator. As long as the
individual is not a suspect in the case or does nothing to revoke
his consent, the police may search the premises for these
purposes, and evidence obtained thereby is admissible. This
implied consent is valid only for the initial investigation
conducted at the scene and does not carry over to future visits
to the scene.
Witman, supra at 335. The Witman Court held that “in summoning
emergency personnel for help and by communicating to police the idea that
a murderer was at large, appellee implicitly consented to the police entry
into the house.” Id.
The panel then discussed the protective sweep that occurred and
determined that the sweep was warranted. It opined that the defendant’s
call to 911 and his statements to police upon their arrival created reasonable
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grounds to conclude that the perpetrator might have still been present. The
Court added that the continued investigation in the home, without a warrant,
was permissible based on the defendant’s implied consent. Id. at 337. The
Witman panel also reasoned that the defendant’s mother and father had
consented to the searches.
We find, under the totality of the circumstances presented in this
matter, that it is immaterial that Appellant did not first alert police of the
attack inside his residence. Based on the telephone call, police were
justified in responding to Appellant’s home. When Officer Christner arrived,
the door to Appellant’s apartment was ajar and it appeared that it had been
forced open. Thus, Officer Christner was warranted in proceeding inside.
Once inside, Officer Christner encountered Appellant, who was bleeding
profusely from a head wound. Officer Christner was lawfully inside the
apartment. See Witman, supra; Flippo v. West Virginia 528 U.S. 11,
14 (1999) (“police may make warrantless entries onto premises if they
reasonably believe a person is in need of immediate aid and may make
prompt warrantless searches of a homicide scene for possible other victims
or a killer on the premises[.]”).
Appellant contends that, while Officer Christner was lawfully entitled to
enter his apartment, he was not permitted to enter the bedroom. Based on
these facts, we find that Officer Christner had implied consent to enter the
bedroom to investigate the crime. Appellant cites no legal authority
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supporting the view that an officer lawfully at the scene of a crime, which is
a residence, is required to secure a search warrant to enter a bedroom
identified as the precise place of the crime by the victim. Compare Mincey
v. Arizona, 437 U.S. 385 (1978) (no warrantless exception based on
homicide crime scene where law enforcement conducted a four-day search);
Flippo v. West Virginia, supra.
We are aware that in Mincey, supra, the United States Supreme
Court held that there was no murder crime scene exception to the warrant
requirement. It reiterated that ruling in Flippo, supra. The facts of those
decisions, however, are readily distinguishable. In Mincey, an undercover
officer, Barry Headricks, arrived at the apartment of the defendant after
earlier arranging to purchase heroin. The officer was accompanied by nine
plain-clothed officers and a deputy county attorney. When an individual
opened the door, Headricks entered, and the individual attempted to slam
the door to prevent the additional men from entering. Shots were then fired
from the bedroom, and Headricks exited and collapsed on the floor from
being shot. He died several hours later. The defendant was found on the
floor of the bedroom, wounded.
Police also found a young woman who was wounded in a bedroom
closet and another individual with a head wound was in the living room.
They did not perform any other search or investigation, and guarded the
suspects and premises. Having learned of the shooting, homicide detectives
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arrived within ten minutes and began an exhaustive four-day search of the
apartment without a warrant.
The Mincey Court first rejected the prosecution’s assertion that
Mincey forfeited his expectation of privacy by shooting Officer Headricks. It
then addressed the government’s additional position that the possible
homicide resulted in an emergency-situation justifying the four-day search.
While noting that police may enter a place to render immediate aid without a
warrant and search if additional victims or assailants are on the premises,
the High Court concluded that the search must be confined to the exigencies
of the circumstances. The Court held, “a four-day search that included
opening dresser drawers and ripping up carpets can hardly be rationalized in
terms of the legitimate concerns that justify an emergency search.” Id. at
393.
This case involves an investigation that began at the behest of a
neighbor and in response to Appellant’s own recounting of being attacked.
It does not involve a search of the entire apartment or a four-day search of
Appellant’s bedroom. Indeed, unlike Mincey, where police were clearly
looking for evidence of crimes committed by the defendant, in the present
case, police were seeking evidence of a crime against the victim based on
his own version of what transpired. Mincey is inapposite.
Likewise, Flippo does not compel reversal. In Flippo, the defendant
and his wife were staying in a cabin at a state park. The defendant
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telephoned 911, and reported that he and his wife had been attacked.
Police responded, and found the defendant outside the cabin with various
injuries. An officer then entered the cabin and discovered the defendant’s
wife, who was deceased. Police searched the exterior of the cabin for signs
of forced entry or for footprints. Subsequently, police re-entered the cabin
and began to process the crime scene without a warrant. For sixteen hours,
police photographed the area, collected evidence, and opened a briefcase
located inside the cabin, which contained photographs and negatives. The
defendant moved to suppress the photos and negatives. The Flippo Court
expressly declined to offer any opinion as to whether the defendant’s actions
impliedly consented to the search. Instead, the Court ruled that the trial
court had erred in considering the search permissible because it was
undertaken as part of a homicide investigation.
Our decision today should not be construed as creating a crime scene
exception to the general search warrant requirement. Rather, Appellant’s
cooperation with the police investigation after they arrived signified his
consent to allow police to conduct a reasonable investigation into the crime
against him. Appellant did not ask the officer to leave. He answered
questions regarding the identity and number of his attackers. Appellant
maintained that he could not identify his assailants but told Officer Christner
that the assault occurred inside his bedroom. Officer Christner proceeded to
enter the bedroom to investigate the assault, not to conduct a search for
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evidence against Appellant. Based on the facts, we find that Appellant
permitted police to enter the area where the attack occurred to look for
evidence of that crime. Cf. Witman, supra; Cason v. State, 780 A.2d 466
(Md.App. 2001). Upon entering the bedroom, Officer Christner observed the
evidence establishing Appellant’s guilt in plain view.
Judgment of sentence affirmed.
Judge Olson joins in this memorandum.
Judge Strassburger concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2015
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