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HomeMy WebLinkAboutCP-21-SA-207 & 212-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. JEFFREY THOMAS RITCHEY CP-21-SA-212-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALLISON M. IGO CP-21-SA-207 -2004 IN RE: MOTIONS TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., March 7, 2005:-- Defendants, Jeffrey Ritchey and Allison Igo, are each charged with violating the Crimes Code at 18 Pa.C.S. Section 6308(a), which provides: A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages, as defined in section 6310.6 (relating to definitions). . . A hearing on the motions of defendants to suppress evidence was conducted on March 1, 2005. We find the following facts. On September 24,2004, at approximately 1 :50 a.m., six Pennsylvania State Police Officers went to a duplex at 213-215 High Street in Shippensburg Township, Cumberland County. There was a report of a loud party at the house. It was homecoming weekend at Shippensburg University. The officers looked through a front CR-21-SA-212-2004 CR-21-SA-207 -2004 window and saw a beer keg, cups, and a couple of people. They thought there might be people inside who were drinking and under the age of 21 years. Some of the officers went to a yard next to the backyard of the duplex where they saw two people come out. They questioned both people who provided identification that they were 21 years old. They told the officers that there were underage kids drinking inside the duplex who had run upstairs. Sergeant Steven Junkin knocked on the front door at 215 High Street. Someone came to the door, and Sergeant Junkin said that he needed to talk to a person who lived there who was at least 21 years old. Adam Smith then came to the door, showed Officer Junkin his identification as being 21 years old, said that he lived there with roommates, and told him their names. Sergeant Junkin told Smith that the party had to end. Junkin said that he wanted to look inside for people under 21 years old who had consumed alcohol. Smith looked at him and paused. Junkin then said that his intent was not to prosecute him for furnishing alcohol to minors. Smith then let Junkin and five other officers inside the house. Each duplex had a kitchen, bathrooms and separate bedrooms, with door locks, for the residents who were students. There had previously been a fraternity at the house but it was disbanded prior to September 24,2004. There were two inside doorways between No. 215 and No. 213 that were open. The officers looked through both sides of the duplex. Officer Daniel Houser went upstairs at No. 215 and opened a closed door to one of the bedrooms. Jeffrey Ritchey and Allison Igo were in the room. Ritchey lived in the room. -2- CR-21-SA-212-2004 CR-21-SA-207 -2004 Igo, who lived somewhere else, was visiting him. Officers obtained identification that showed both were under the age of 21. Both took a preliminary breath test, and as a result the citations were issued. In all, at least seven people in the duplex were arrested for underage drinking. Adam Smith was not arrested for furnishing alcohol to persons under 21 years of age. Ritchey was one of three lessees of 215 High Street. Adam Smith was one of the lessees of 213 High Street. I. WERE THERE EXIGENT CIRCUMSTANCES JUSTIFYING A WARRANTLESS ENTRY BY THE STATE POLICE INTO 213-215 HIGH STREET? In Commonwealth v. Roland, 535 Pa. 595 (1994), the facts were: 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. (Emphasis added.) The Supreme Court of Pennsylvania stated: 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 -3- CR-21-SA-212-2004 CR-21-SA-207 -2004 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. . . . 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). (Emphasis added.) In reversing the order of the trial court that denied a motion to suppress evidence, the Supreme Court concluded: 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 -4- CR-21-SA-212-2004 CR-21-SA-207 -2004 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. 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. (Emphasis added. ) -5- CR-21-SA-212-2004 CR-21-SA-207 -2004 See also, Commonwealth v. Demshock, 854 A.2d 553 (Pa. Super. 2004); Commonwealth v. McClellan, et aI., 01-1611 Criminal, Cumberland County, December 6, 2001). Roland cannot be distinguished from the facts in the present case. Assuming that the state police, based on their observations and what they were told by the two persons who left the rear of the duplex, had probable cause to believe that there were people who had been drinking alcohol inside who are under the age of 21, there were no exigent circumstances justifying a warrantless entry into the duplex. II. DID THE STATE POLICE HAVE A LEGAL CONSENT FROM ADAM SMITH TO ENTER 213 HIGH STREET AND SEARCH FOR UNDERAGE DRINKERS, AND IF SO, DID THAT CONSENT ALLOW THEM TO OPEN THE DOOR AND ENTER THE ROOM OF JEFFREY RITCHEY? Jeffrey Ritchey and two other students leased 215 High Street. Adam Smith and other students leased 213 High Street. Adam Smith did not have actual authority to consent to a search of No. 215 that he did not lease and where he did not live. The Superior Court of Pennsylvania in Commonwealth v. Blair, 394 Pa. Super. 207 (1990), held that under certain circumstances, actual authority is not required for entry into a premises if a third party has apparent authority to consent to an entry. The Court stated: The Fourth Amendment protects only "against unreasonable searches and seizures." W. LaFave, Search and Seizure S 8.3(g), at 264 (1987). The exclusionary rule operates to deter the police from unreasonable search and seizures. Nix v. State, 621 P.2d 1347, 1349 (Alaska 1981). There can be no deterrent effect where the police believe they are acting reasonably and lawfully -6- CR-21-SA-212-2004 CR-21-SA-207 -2004 and it is only with hindsight that actual authority to consent to a search is missing. The Commonwealth adopts the standard enunciated in Nix: We now align ourselves with those authorities, representing the majority view, which hold that apparent authority alone is required. We adopt this view because it is more consistent with the fourth amendment proscription of unreasonably searches and seizures than a rule requiring actual authority regardless of reasonable appearances. In adopting the majority position, we are not allowing carte blanche consent entries into residences with the police officer being able to ratify his entry at a later date suppression hearing by merely stating that he was mistaken as to the actual authority of the consenting party. We hold that the police officer's reasonable mistake must be judged from an objective standard based on the totality of the circumstances. Although the police officer's state of mind is one factor to be considered in determining the reasonability of the mistake, it is not the only factor. Moreover, the police officer's mistake must be reasonable. In ambiguous situations, those situations which would cause a reasonable person to question the consenting party's actual authority or if the consenting party's assertions of authority appear unreasonable, a police officer should make further inquiries to determine the status of the consenting party. Reliance on a third party's bald assertion in such situations could subject any search to the remedy of the exclusionary rule. Adams, supra, 439 N.Y.S.2d at 881, 422 N.E.2d at 541. Our holdings in this case buttress a person's reasonable expectation of privacy as to a given area or in things by continuing to deter unreasonable police searches and seizures. Although we could require police officers to secure both actual and apparent authority before entering a residence, we do not believe the police should have to institute an action for declaratory judgment to determine the authority of the third party or individual giving consent to enter or search. Effective law enforcement must be balanced against an individual's right to be let alone. By holding that a reasonable mistake regarding actual authority to consent does not invoke the exclusionary rule, the police are deterred from undertaking unreasonable searches and seizures. Effective law enforcement is also promoted since fortuitous findings of evidence are not excluded. In fact, where an officer reasonably believes that his search is a legitimate third-party consent search, excluding evidence seized would not further the goal of deterring illegal searches since the officer believed his search was legal. In other words, the police officer could not have been deterred since he believed that he was conducting a permissible consent search. Investigating authorities -7- CR-21-SA-212-2004 CR-21-SA-207 -2004 can only be deterred from making searches and seizures they know are outside the framework of a proper search and seizure. To remove some of the ambiguity inherent in third-party consent searches, we hold that it is reasonable for police officers to assume that a person who answers the door at a residence has authority to consent to their entry into the residence. Nix, supra, 619 P.2d at 1350; see also, LaFave S 8.5(e) at 311. (Footnotes omitted.) (Emphasis added.) In the case sub judice, Sergeant Junkin knocked on the front door of 215 High Street. When somebody came to the door he told that person that he needed to talk to a person who lived there who was at least 21 years old. Adam Smith then came to the door and said that he lived there with his roommates. Smith actually lived in No. 213 with his own roommates. Based on the totality of those circumstances, the mistake by Sergeant Junkin in believing that Smith had actual authority to allow the state police to enter 215 High Street was reasonable. Accordingly, the entry was legal. In Commonwealth v. Gibbons, 379 Pa. Super. 285 (1988), the Superior Court of Pennsylvania stated: The law is well-settled that a warrantless search may be made with the voluntary consent of a third party who possesses 'common authority over or other sufficient relationship to the premises or effects sought to be inspected.' Commonwealth v. Lowery, 305 Pa.Super. 66, 73, 451 A.2d 245, 248 (1982) (citing United States v. Matlock, 415 U.S. 164, 168, 172,94 S.Ct. 988, 991-92, 993-94, 39 L.Ed.2d 242 (1974)). Common authority. . . rests. . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Id. 305 Pa.Super. at 73, 451 A.2d at 248 (quoting United States v. -8- CR-21-SA-212-2004 CR-21-SA-207 -2004 Matlock, 415 U.S. at 173, n. 7, 94 S.Ct. at 993-94, n. 7)(citations omitted). Our courts have held that a family member has the common authority to permit a search of the family home unless one family member has manifested and exhibited an intent to exclude others from certain areas of the home. Commonwealth v. Van Jordan, 310 Pa.Super. 516, 523, 456 A.2d 1055, 1058 (1983); Commonwealth v. Lowery, 305 Pa.Super. at 73,451 A.2d at 247-48; Commonwealth v. Reiland, 241 Pa.Super. 109, 115-16, 359 A.2d 811, 814 (1976). Absent such an intention, where there exists joint access or control, there can be no reasonable or legitimate expectation of privacy and thus, a warrantless search may be made with the voluntary consent of a third party. Commonwealth v. Lowery, 305 Pa.Super. at 73, 451 A.2d at 248. In this analysis, we note that when the findings of the suppression court are sufficiently supported by the record, they will not be disturbed on appeal. Commonwealth v. Lowery, 305 Pa. Super. at 69, 451 A.2d at 246. Here, appellant mistakenly challenges the validity of the search on the basis that his status as an adult precludes his mother from giving her consent to a search of their house. The law is very clear, however, that the determination of whether a third party may consent to a warrantless search does not depend on the age of nonassenting party but on the 'common authority' or 'special relationship' shared by the cohabitants of the premises. See id., 305 Pa.Superior Ct. at 73,451 A.2d at 248. In this case, our review of the record discloses that appellant resided with his mother and family in their home. See Motion to Suppress at 164, 176. When the police asked appellant's mother for her permission to search the premises, she voluntarily consented to the search. See id. at 165. Subsequently, at the suppression hearing, appellant neither claimed nor introduced evidence that his mother did not share dominion over the premises or that he had expressed an intent to exclude persons from his bedroom. See Motion to Suppress at 164-179. See also Commonwealth v. Van Jordan, 310 Pa.Super. 516, 523, 456 A.2d 1055, 1058 (1983); Commonwealth v. Lowery, 305 Pa.Super. at 73,451 A.2d at 247-48; Commonwealth v. Reiland, 241 Pa.Super. 109, 115-16, 359 A.2d 811, 814 (1976). Moreover, this court has held that, 'a parent has the authority to consent to a search of his [or her] child's quarters in the parent's home', unless the child has manifested an expectation of privacy. Commonwealth v. Lowery, 305 Pa.Super. at 73,451 A.2d at 247-48 (citing Commonwealth v. Reiland, 241 Pa.Super. at 115, 359 A.2d at -9- CR-21-SA-212-2004 CR-21-SA-207 -2004 814). Accordingly, because appellant's mother possessed 'common authority' over the premises and because appellant did not manifest an expectation of privacy, we conclude that the lower court did not err in finding that the consent search was not invalid on this ground. (Emphasis added. ) Adam Smith did not have a special relationship with the lessees of 215 High Street whereby he had common authority over their individual rooms. Each of the rooms had locks. It is not reasonable to recognize that any of the co-habitants of the duplex had a right to permit the inspection in their own right of the other inhabitants' individual rooms in contrast to the common areas of the property. The evidence supports a finding that Jeffrey Ritchey exhibited an intent to exclude others from his room unless they were invited, and that he had a reasonable expectation of privacy in his room. See Commonwealth v. O'Neal, 287 Pa. Super. 238 (1981). Accordingly, when a state police officer opened the closed door of Ritchey's room and entered that room he exceeded the legal scope of the search of No. 215 based on the consent by Adam Smith to enter the premises.1 Accordingly, the motions to suppress all evidence obtained by the police against Jeffrey Ritchey and Allison Igo following the police entry into Ritchey's room at No. 215 High Street will be granted.2 1 The situation may have been different if the state police had obtained a search warrant for the entire duplex based on probable cause to believe that there were people throughout the duplex who had been drinking alcohol and who were under the age of 21. See Commonwealth v. Copertino, 209 Pa. Super. 63 (1966); Commonwealth v. Bailer, (01-1000 Criminal, Cumberland County, August 8, 2001). 2 This resolution makes in unnecessary to address defendants' other claim that the -10- CR-21-SA-212-2004 CR-21-SA-207 -2004 ORDER OF COURT AND NOW, this day of March, 2005, IT IS ORDERED: (1) The motion of Jeffrey Ritchey at CP-21-CR-212-2004 to suppress all evidence obtained by the state police as a result of the police entry into his room at 215 High Street, Shippensburg Township, IS GRANTED. All such evidence IS SUPPRESSED. (2) The motion of Allison M. Igo at CP-21-CR-207 -2004 to suppress all evidence obtained by the state police as a result of the police entry into Jeffrey Ritchey's room at 215 High Street, Shippensburg Township, IS GRANTED. All such evidence IS SUPPRESSED. By the Court, Edgar B. Bayley, J. Jamie Keating, Esquire Assistant District Attorney Nathan C. Wolf, Esquire F or Defendants :sal consent to search by Adam Smith was involuntary resulting from coercion and the inducement by the police not to prosecute him for furnishing alcoholic beverages to minors. -11-