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Home My WebLink AboutCP-21-SA-0048-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA v. : : JAMES WALTON HEISS : NO. CP-21-SA-0047-2007 ----------------------------------------------------- COMMONWEALTH : : : v. : : AMY MARIE GALIE : NO. CP-21-SA-0048-2007 ----------------------------------------------------- COMMONWEALTH : : : v. : : JASON ANDREW : NO. CP-21-SA-0049-2007 SULLIVAN : Defendants : IN RE: DEFENDANTS’ PRE-TRIAL MOTION TO SUPPRESS BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., July 5, 2007, In this criminal case, Defendants James Walton Heiss, Amy Marie Galie, and Jason Andrew Sullivan were each cited for purchase, consumption, possession or transportation of liquor or malt or brewed beverages by a minor, a summary offense. For disposition at this time is Defendants’ pre-trial motion to suppress evidence based upon an allegedly unlawful intrusion into their residence by law enforcement authorities. A hearing on the motion was held on May 22, 2007. For the reasons stated in this opinion, the motion to suppress will be granted. STATEMENT OF FACTS On December 31, 2006, at approximately 12:35 a.m., Pennsylvania State Police received a complaint regarding excessively loud music in the vicinity of 205 Bard Drive, Shippensburg Township, Cumberland County, near Shippensburg 1 University. After identifying the row house from which the music was coming, 2 two troopers knocked on the door of the residence. After receiving no answer, 3 the troopers knocked on a window, again without answer. Upon looking in the window, one trooper observed two males interacting with electronic equipment of 4 some nature. After an additional attempt to secure admittance by knocking, this 5 trooper turned the unlocked doorknob and opened the door. After they had opened the door and yelled for the music to be turned down, the troopers’ presence 6 was perceived by the occupants. 1 N.T. 4. Summary appeal trial, Commonwealth v. Kieffer, held on March 13, 2007 before the Honorable Judge Edward E. Guido of this court (hereinafter N.T. ___). The transcript of this trial was incorporated into the suppression hearing record. 2 N.T. 6. 3 N.T. 6-7. 4 N.T. 7. 5 Id. 6 N.T. 7-8. -2- The troopers then noticed that the occupants, initially numbering 7 approximately fifteen individuals, did not appear to be twenty-one years of age. They further noticed the presence of alcoholic containers, beverages, and liquor, as 8 well as an alcoholic beverage odor emanating from inside the residence. The 9 troopers then entered the residence, without consent or a search warrant. One of the troopers testified that a search warrant had not been obtained, in part because of the hour the incident occurred and the length of time that would have been 10 required to obtain it. The incident culminated in charges against the Defendants, 11 all three of whom were tenants of the building, for purchase, consumption, 12 possession or transportation of liquor or malt or brewed beverages by a minor. DISCUSSION With respect to a private home, warrantless searches and seizures have been held to be presumptively unreasonable. Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347, 355 (1987); Commonwealth v. McAliley, 2007 Pa. Super. 55, ¶13, 919 A.2d 272, 276 (2007). In order to validate a warrantless search of a private home, the government must show probable cause of criminal activity and exigent circumstances requiring the warrantless search. Payton v. 7 Id. 8 Id. 9 N.T. 8. 10 Id. 11 N.T. 9-10. Suppression Hearing, May 22, 2007. 12 Commonwealth’s Exhibit 1 -3- New York, 445 U.S. 573, 583-590, 100 S.Ct. 1371, 1379-82, 63 L.Ed.2d 639, 648- 53 (1980); Commonwealth v. Roland, 535 Pa. 595, 599, 637 A.2d 269, 270 (1994). In a suppression hearing, the burden of making this requisite showing by a preponderance of the evidence falls upon the Commonwealth. Commonwealth v. Eliff, 300 Pa. Super. 423, 428, 446 A.2d 927, 929 (1982). In determining whether exigent circumstances exist for a warrantless search or seizure, several factors have been recognized as important considerations: 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. Commonwealth v. Wagner, 486 Pa. 548, 557, 406 A.2d 1026, 1031 (1979). Other factors commonly to be considered include “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.” Commonwealth v. Demshock, 2004 Pa. Super. 263, ¶7, 854 A.2d 553, 556 (2004); see Minnesota v. Olson, 495 U.S. 91, 100, 100 S.Ct. 1684, 1690, 109 L.Ed.2d 85, 95 (1990). A minor offense typically causes the foregoing balancing factors to be weighted against a finding of exigent circumstances. Welsh v. Wisconsin, 466 U.S. 740, 750, 104 S. Ct. 2091, 2098, 80 L. Ed. 2d 732, 743 (1984); see, e.g., Commonwealth v. Roland, 535 Pa. 595, 600, 637 A.2d 269, 271 (1994). As stated -4- in Commonwealth v. Williams, warrantless searches based on exigent circumstances are less likely to be found constitutional when no grave offense or crime of violence is involved. 483 Pa. 293, 298, 396 A.2d 1177, 1179 (1978). Searches made at nighttime also are particularly questioned. Id. at 299, 396 A.2d at 1180; Commonwealth v. Roland, 535 Pa. at 600, 637 A.2d at 271. In Commonwealth v. Roland, 535 Pa. at 597-98, 637 A.2d at 270, the facts were as follows: 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. The Pennsylvania Supreme Court, based on these facts, held that sufficient exigent circumstances had not existed to support a warrantless, nonconsensual entry. Id. at 602, 637 A.2d at 272. In Commonwealth v. Demshock, after observing several individuals, believed to be teenagers, drinking alcoholic beverages within a residence, police -5- proceeded to knock on the door of the residence. 2004 Pa. Super. at ¶2-3, 854 A.2d at 554. After an occupant opened the door part way, the police pushed the door open and entered the apartment. Id. The Court concluded that exigent circumstances had not been present so as to justify the warrantless, nonconsensual entry. Id. at ¶20, 854 A.2d at 559. In Commonwealth v. McClellan, responding to loud music at approximately 1:45 a.m., police peered under a partially open garage door and saw occupants, appearing to be juveniles, with beer in their possession. Nos. 01-1661 Criminal Term, 01-1687 Criminal Term, 01-1974 Criminal Term (Cumberland County Ct. of Common Pleas Dec. 6, 2001). The police then entered the garage without consent or a search warrant, seized the beer, and issued a citation for underage drinking. Id. The Honorable Judge Edgar B. Bayley of this court concluded that the police lacked exigent circumstances sufficient to justify the warrantless entry and seizure. Id. Although the court is sympathetic with the situation in which the troopers in the present case found themselves, wherein valuable time which they could have devoted to more serious matters had been, and was being, consumed by Defendants’ illegal and unreasonable conduct, the precedent in this area of the law does not permit a conclusion that the warrantless and nonconsensual intrusion with respect to Defendants’ residence was permissible. Accordingly, the following order will be entered: -6- ORDER OF COURT th AND NOW, this 5 day of July, 2007, upon consideration of the Defendants’ Pre-Trial Motion To Suppress, following a hearing held on May 22, 2007, and for the reasons stated in the accompanying opinion, the motion is granted, and all physical evidence, statements, and all other evidence obtained as a result of the entry into and search of the residence at 205 Bard Drive, Shippensburg Township, Cumberland County, Pennsylvania, is suppressed. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Michelle Seibert, Esq. Assistant District Attorney Paul Bradford Orr, Esq. LAW OFFICES OF PAUL BRAFFORD ORR 50 East High Street Carlisle, PA 17013 For Defendants -7- -8-