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HomeMy WebLinkAbout97-0309 CriminalCOMMONWEALTH OF IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA : V, : NO. 97-0309 CRIMINAL SHARON K. NEIBERT, Defendant IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION ORDER OF COURT AND NOW, April 6, 1998, pursuant to the opinion filed this date, and after a hearing held December 3, 1997 and careful consideration of the parties' briefs, Defendant's Omnibus Pretrial Motion to suppress evidence collected in a search of Defendant's home on December 11, 1996 is granted. By the Court, p.j. John A. Abom, Esquire Assistant District Attorney For the Commonwealth John E. Gainer, Esquire 3540 N. Progress Avenue Suite 209 Harrisburg, PA 17110 For the Defendant COMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA CUMBERLAND COUNTY, PENNSYLVANIA : V, : : NO. 97-0309 CRIMINAL TERM SHARON K. NEIBERT, : Defendant : IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION OPINION HOFFER, P.J.: In this opinion, we address Defendant's Motion to Suppress. Defendant, Sharon K. Neibert, is seeking to have evidence found in a search conducted at the Neibert home, on December 11, 1996, suppressed, because the search was conducted without a search warrant, consent, probable cause or the existence of exigent circumstances to justify the search. Factual Back~jround Early in the morning of December 11, 1996, Smith Neibert, father of Defendant, contacted a Mr. Stoner, father of a juvenile boy under the supervision of the Cumberland County Juvenile Probation Office, to tell him that the boy was at the Neibert home. Neibert said he would wait to go to work until Stoner came ' to get his son. Neibert testified, at the hearing held concerning this motion, that he never gave anyone permission to enter his home. Stoner then called a probation officer to inform him that the juvenile could be found at the Neibert home. The officer had an outstanding warrant for the boy's 97-0309 CRIMINAL TERM arrest. Stoner told the officer that he could go to the Neiberts' to get the boy. The probation officer went to the Neibert home later that morning. When he arrived, he rang the bell and yelled for the juvenile. There was no answer. Three to four minutes passed, then the officer entered through the unlocked door. Inside, he yelled for the boy and again got no response. He proceeded upstairs to look for him. Upstairs, the officer found the brother of the defendant, in a bedroom that smelled of drugs. The brother was arrested and taken downstairs. The officer continued to search, moving to the master bedroom. The officer did not find the boy but he did find marijuana in the master bedroom closet. The defendant arrived home after the police had found the marijuana and drug paraphernalia. Discussion Defendant asks that the evidence found by police in a search of her home be suppressed because the search was conducted without a search warrant, consent, probable cause, or the existence of exigent circumstances to justify the warrantless search. The purpose of the Fourth Amendment of the United States Constitution is to ensure a citizen's right to be secure in knowing that his possessions and property will be safe from illegal searches and seizures. 97-0309 CRIMINAL TERM Commonwealth v. Blair, 394 Pa. Super. 207, 214, 575 A.2d 593, 596 (1990). Search without a Warrant The United States Supreme Court has found that there is significant potential for abuse of a person's Fourth Amendment rights when police, acting alone and without exigent circumstances, are allowed to search the home of a third party for the subject of an arrest warrant. Commonwealth v. Martin, 423 Pa. Super. 228, 230-31,620 A.2d 1194, 1196 (1993); citing Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L. Ed.2d 38 (1981). In circumstances similar to those found in the case at bar, the Superior Court of Pennsylvania followed the U.S. Supreme Court precedent and found that a search of a third party's home, without a search warrant, for the subject of an arrest warrant was a violation of the third party's Fourth Amendment rights. Martin at 231,620 A.2d at 1196. Based upon this decision, the Court finds that the arrest warrant, alone, which the probation officer held for the missing juvenile, did not justify entering and searching the Neibert home without a search warrant. Search with Consent "A search conducted without a warrant issued upon probable cause is per se unreasonable under the Fourth and Fourteenth Amendments, subject only to a few specifically established and well-delineated exceptions." Commonwealth v. 3 97-0309 CRIMINAL TERM Blair, 394 Pa. Super. 207, 214, 575 A.2d 593, 596-97 (1990). Searches conducted with consent are excepted from the warrant requirement and both the federal and state constitutions allow for third party consent searches conducted without warrants. Blair at 214, 575 A.2d at 597. There are four broad categories of third party consent cases: (1) the consenting party had superior authority to the party objecting to the search; (2) the consenting party had equal authority to the party objecting to the search; (3) the consenting authority had inferior authority to the party objecting to the search; and (4) situations where a police officer reasonably mistakes apparent authority for actual authority to consent to his entry. Blair at 215, 575 A.2d at 597. The Superior Court held that only apparent authority is required and that "the police officer's reasonable mistake must be judged from an objective standard based upon the totality of the circumstances." Blair at 216, 575 A.2d at 598. The court went on to hold that it is reasonable for police officers to assume that the person who answers the door has the authority to permit the officers to enter and search. Blair at 217-218, 575 A.2d at 598. In the case at bar, Neibert testified that he did not give anyone permission to enter his home. Stoner, not Neibert, contacted the probation officer to tell him that the juvenile could be found at the Neibert home. Stoner told the officer only 4 97-0309 CRIMINAL TERM that he could go to the Neiberts' to get the boy. He did not tell the officer that he could enter if no one answered the door. It was not reasonable for the officer to believe that Stoner had the authority to give the police permission to enter the Neibert home without speaking to one of the Neiberts. When the officer rang the bell at the Neibert home no one answered. Clearly, the probation officer could not have mistaken no response for apparent authority to enter the home. Aisc, the officer made no effort to speak to Neibert or any other member of the Neibert family before he entered the home. Under a totality of the circumstances analysis, it is clear that the officer lacked both apparent and actual authority to enter the Neibert home. He did not have consent, third party or otherwise, to conduct the search. The Existence of Exigent Circumstances "Absent probable cause and exigent cimumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment." Commonwealth v. Roland, 535 Pa. 595, 599, 637 A.2d 269, 270 (1994). There are a number of factors to be considered in determining whether exigent circumstances exist: (1) the gravity of the offense; (2) whether the suspect is believed to be armed; (3) whether there is an absolutely clear showing of probable cause; (4) whether there is strong reason to believe that the suspect is inside; (5) whether there is a 97-0309 CRIMINAL TERM likelihood that the suspect will escape if not promptly apprehended; (6) whether the entry was peaceable; (7) the time of entry; (8) whether there is a likelihood that evidence will be destroyed if police wait for a warrant; and (9) whether there is danger to police or persons inside or outside the building. Roland at 599, 637 A.2d at 270-71. Exigent circumstances to justify a warrantless search do not exist where police could maintain surveillance until a warrant is obtained. Commonwealth v. Rispo, 338 Pa. Super. 225, 233-34, 487 A.2d 937, 941 (1985). Defendant is correct in alleging that the officer lacked exigent circumstances necessary to justify entrance into the Neibert home. The officer went there to get the missing juvenile. He had the opportunity to place the home under surveillance and seek a search warrant before entering. The officer's failure to get a warrant renders the search of the Neibert home an unlawful search and seizure.