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HomeMy WebLinkAboutCP-21-CR-1459-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-08-1459 : DERK ROBERTS : MEMORANDUM OPINION IN RE: OMNIBUS PRETRIAL MOTION On September 5, 2008, the undersigned entered an order denying the defendant’s omnibus pretrial motion in the nature of a motion to suppress evidence. This memorandum is written in support of that order. The facts upon which we based that order are as follows. On December 23, 2006, Trooper Tandy Carey of the Pennsylvania State Police was dispatched to a single-vehicle accident on Oxford Road in South Middleton Township, Cumberland County. On arriving at the scene, he noticed a red Honda Accord which had impacted a utility pole, completely severing the pole. The vehicle had been abandoned. A records check indicated that the registered owner was Connie Mickley who lived on Torway Road in Gardners, Pennsylvania. Looking through the vehicle, Trooper Carey was able to locate a picture ID from JFC employment bearing the name of Derk Roberts. While in the vehicle, the trooper smelled an odor of alcoholic beverage. He also found a spot of blood on the driver’s side floor and oval-shaped impact damage into the windshield directly in front of the steering wheel. A PennDOT records check with regard to Derk Roberts revealed that he also lived at the same Torway Road address as Ms. Mickley. After securing the scene, the trooper went to the Torway Road address. Connie Mickley responded to the trooper’s knock on the door. The trooper described what then ensued as follows: And I advised her that her vehicle was involved in a crash. I asked her then if Derk Roberts was in the residence. She had stated that she didn’t know and wasn’t sure and would go check to see. As she turned around she left the door open to the residence. Upon her turning around, leaving the door open, she stood there and then she departed and turned around. I felt as though, through her demeanor, that she was inviting me into the residence. I took one foot inside of the residence. As soon as I entered into the residence, Mr. Roberts was standing around the corner and stated that we had made an illegal entry. I observed facial injuries to Mr. Roberts, a bloody, swollen lip. I had asked Mr. Roberts if he was the driver of the vehicle, and he stated that he wasn’t. And he stated that he was drinking. And I had noticed that he was slurring his speech and his eyes were bloodshot and glassy. And he was unsure of his footing as he was walking around into the kitchen. And he had stated that he had – he got home a couple hours ago, and that he had five beers since he got home. He said that there is beer cans on the kitchen counter if we would like to see. However, there was no beer cans. He had asked Ms. Mickley where the beer cans were. She had no idea she stated. Based on that evidence, I had arrested Mr. Roberts for driving under the influence. N.T. 8-9. The defendant contends that, because the entry of the residence was unlawful, all evidence flowing from the unlawful intrusion should be suppressed. It is axiomatic that entry into a home is unlawful if done without a warrant and without exigent circumstances. Com. v. Arnold, 932 A.2d 143, 146 (Pa.Super. 2007). Searches may be conducted, however, without a warrant where there is consent to entry even by a third party. Com. v. Hughes, 836 A.2d 893 (Pa. 2003). In this case, the trooper described the door as being left open to accommodate his entry. He took, at most, two steps into the residence before he was 1 confronted by Mr. Roberts. Admittedly, we have been unable to locate any Pennsylvania cases wherein the police officer inferred the right to enter from circumstances like those present in this case. We conclude, however, that the officer did not act unreasonably. Moreover, any intrusion into the residence was minimal as Mr. Roberts was confronted as soon as the police officer crossed the threshold. In fact, Mr. Roberts was moving towards the police officer and we have no difficulty in concluding that the officer would have encountered Mr. Roberts even without entering the residence. In other words, we are satisfied that the police officer’s entry into the residence did not result in Mr. Roberts’ discovery. Therefore, even if the officer entered the residence unlawfully, we cannot conclude that the discovery of Mr. Roberts was the fruit of an otherwise poisonous tree. March 6, 2009 _______________________________ Kevin A. Hess, J. Daniel Sodus, Esquire Sr. Assistant District Attorney Patrick F. Lauer, Jr., Esquire For the Defendant :rlm 1 Ms. Mickley describes the events somewhat differently. We are satisfied to resolve issues of credibility in favor of the Commonwealth.