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HomeMy WebLinkAbout01-166,1687,1974 CriminalCOMMONWEALTH MASON REIDT MCCLELLAN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1661 CRIMINAL TERM COMMONWEALTH MICHAEL SCOTT SHOVER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1687 CRIMINAL TERM COMMONWEALTH MATTHEW JOHN ROMAN IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-1974 CRIMINAL TERM MOTION OF DEFENDANTS TO SUPPRESS EVIDENCE OPINION AND ORDER OF COURT Bayley, J., December 6, 2001:-- Defendants, Mason McClellan, Michael Shover, and Matthew Roman, are each charged with unlawful possession and consumption of an alcoholic beverage while under the age of twenty-one.1 They each filed a motion to suppress evidence. We find the following facts. 1 18 Pa. C.S. § 6308(a). 01-1611 CRIMINAL TERM 01-1687 CRIMINAL TERM 01-1974 CRIMINAL TERM At approximately 1:45 a.m., on June 5, 2001, Officers Scott Cornelious and David Pepperman, of the Borough of Camp Hill Police, were in separate police vehicles. While each was in his vehicle and stopped on North 21st Street, in the Borough, they could hear loud voices and music coming from a residential property in the Park Side Development. They both exited their vehicles and stood behind the residence, but off the property. They peered through some shrubbery and a fence and saw a garage that was lit inside. The garage door was partially open. They could see three pairs of legs in a standing position inside the garage. The officers heard loud music and some yelling with vulgarities coming from inside the garage. The officers then drove to the front of the residence, which was the home of defendant, Matthew Roman. When they stopped, they could hear music, loud voices and some obscenities coming from the garage to the rear of the residence. The officers saw a television flickering inside the front window of the residence. They then walked down the driveway of the Roman property to the garage. They looked underneath the partially open garage door and saw defendants, who appeared to be juveniles, inside. Officer Cornelious knew Mason McClellan. The defendants had Labatts beer in their possession. The officers went into the garage, seized the beer, and a partially full bottle of Jose Cuervo. While inside the garage, the officers obtained further evidence that defendants, who were all under the age of 21, had been drinking alcohol. Each defendant was issued a citation for underage possession and consumption of alcohol. -2- 01-1611 CRIMINAL TERM 01-1687 CRIMINAL TERM 01-1974 CRIMINAL TERM DISCUSSION Maintaining that the officers' entry onto the Roman property was illegal, defendants seek to suppress all evidence obtained thereafter. Alternatively, they argue that if the officers' entry onto the Roman property was legal, their entry into the garage was illegal, thus warranting the suppression of all evidence obtained thereafter. During the questioning of Officer Cornelious, he was asked, "And you hadn't received any reports of other criminal activity that would connect your concern with this noise with that garage?," He answered, "No. That's why we patrol, to be pro-active." Officer Cornelious was asked why he and Officer Pepperman did not walk to the front door of the residence since it appeared that someone was inside. He answered, "because if they were involved in a physical altercation and we stood there and did nothing, then we would be derelict of our duty." Officer Cornelious was asked, "And the fact of the matter is that by the time you made the decision to walk back to the garage and look in there you had already determined that what you are dealing with was basically a self-reported noise complaint of your own, am I right?" He answered, "That's correct." Bad language is epidemic. What Officers Cornelious and Pepperman heard did not given them a reasonable belief that any type of altercation was going on inside the Roman garage. Nor was there any basis for the officers to reasonably believe that someone inside -3- 01-1611 CRIMINAL TERM 01-1687 CRIMINAL TERM 01-1974 CRIMINAL TERM the garage was in need of immediate aid? Nor did the officers have probable cause to believe that there was a summary disorderly conduct violation. The Crimes Code, at 18 Pa.C.S. Section 5503, provides: (a) Offense defined.--A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:... (2) makes unreasonable noise; (Emphasis added.) Section 5503(c) defines "public" as "[a]ffecting or likely to affect persons to which the public or a substantial group has access; among the places included are highways.., any neighborhood, or any premises which are open to the public." There had been no complaints, or is there any evidence, that the music and voices in the garage were causing any public inconvenience, annoyance or alarm. Nor, given the circumstances, does the evidence support a conclusion that the music was of the magnitude to support probable cause that it was recklessly creating a risk of causing public inconvenience, annoyance or alarm. Accordingly, there was no legal basis for the officers to enter the Roman's property because they did not have probable cause to believe that any type of crime had been or was being committed 2 See Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); United States v. Richardson, 208 F.3d 626 (7th Cir. 2000); and Good v. Dauphin, 891 F.2d 1087 (3rd Cir. 1989), quoting United States v. Barone, 330 F.2d 543 (2® Cir. 1964). -4- 01-1611 CRIMINAL TERM 01-1687 CRIMINAL TERM 01-1974 CRIMINAL TERM thereon. See Commonwealth v. Gibson, 638 A.2d 203 (Pa. 1994).3 Furthermore, even if the officers had probable cause to believe that the summary offense of disorderly conduct was occurring in the Roman garage, there was no legal basis for their entering the Roman property, or the garage, without a search warrant. 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 circumstances, the entry of a home without a warrant is prohibited under 3 If the officers personally thought the noise coming from the garage was too loud, they could have gone to the front door of the Roman residence to ask to have whoever was watching television ask the persons in the garage to turn the music down and talk more quietly, or they could have phoned the residence rather than making an entry without consent. -5- 01-1611 CRIMINAL TERM 01-1687 CRIMINAL TERM 01-1974 CRIMINAL TERM 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 -6- 01-1611 CRIMINAL TERM 01-1687 CRIMINAL TERM 01-1974 CRIMINAL TERM 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. § 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 -7- 01-1611 CRIMINAL TERM 01-1687 CRIMINAL TERM 01-1974 CRIMINAL TERM denial of appellant's motion for suppression was erroneous. (Emphasis added.) In Commonwealth v. Hodge, 44 Cumberland L.J. 441 (1995), the facts were: Tina Rynard lived at 813 Factory Street, Carlisle. On a number of occasions she had been disturbed by loud music coming from the Davis property next door at 811 Factory Street. She complained to the residents and to the Carlisle police. On August 22, 1994, Rynard came home from work at about 4:00 p.m. There was very loud music coming from the Davis residence. Rynard called the police and complained. Officer Gary Shulenberger responded in about ten minutes. The officer heard the very loud music while outside and inside Rynard's house. The officer then went to 811 Factory Street and knocked on the front door. No one answered. He called out that he was a Carlisle police officer and knocked again on the glass part of the door. The door came slightly open. The officer closed the door and went to the back of the house. He knocked on the rear door and announced his presence. The officers then went back to the front door and entered the property. He and another officer climbed to a third floor attic where the music was coming from. There they found defendant, Hodge, and another male, with various illegal drugs. Citing Commonwealth v. Roland, supra, this Court concluded: [n]otwithstanding the distress caused to Tina Rynard by the loud music, there was no evidence of a serious crime being committed. The persistent playing of the very loud music would arguably constitute disorderly conduct under Section 5503(a)(2) of the Crimes Code. See, Commonwealth v. Hillis, 43 Cumb. 135 (1993). That is a minor offense. Obviously, the evidence of the loud music could not have been destroyed if the police had taken time to secure a warrant; the music had already been heard. Entry of a home without a warrant is prohibited under the Fourth Amendment absent both probable cause and exigent circumstances. There were no exigent circumstances demonstrating an urgent need justifying the warrantless entry into the Davis residence during the afternoon. There was nothing more amiss than the apparent fact that there was loud music coming from the house and that the occupiers had left and failed to -8- 01-1611 CRIMINAL TERM 01-1687 CRIMINAL TERM 01-1974 CRIMINAL TERM turn it off, or were there, and because of the loudness of the music, did not hear the knocking and announcements by the police. The evidence does not come close to supporting the argument of the Commonwealth that the officers were fulfilling their community caretaking function of providing emergency help and assistance by entering the house under exigent circumstances. Since the facts do not support a finding that there were exigent circumstances relieving the police from the requirement of securing a warrant to enter the house, all evidence obtained as a result of the warrantless entry must be suppressed. In Commonwealth v. Weik, 360 Pa. Super. 560 (1987), the facts were: In the early morning hours of April 28, 1985, two North Lebanon Township police officers saw a bonfire on appellant's property. Suspecting that the fire was in violation of a local ordinance, the officers returned to the police station, discovered that appellant did not have a permit for such a fire, and determined that he was in violation of the ordinance. The officers therefore returned to appellant's property, saw that the fire was still burning, and entered onto the property to tell appellant to extinguish it. A house, a detached garage, and a detached shed are located on appellant's property. As they approached, the officers saw appellant walk away from the fire and enter the shed. There were windows in the shed which were not covered by curtains. Through the uncovered windows, the officers saw three slot machines against a wall, and saw a companion of appellant attempting to cover the machines. Appellant then walked out of the shed and approached the officers. The officers told appellant that they were there to investigate the fire, but that they had also seen the slot machines. The officers then announced that they were going in to take a closer look at the machines and, over appellant's objection, entered the shed and seized the machines. (Emphasis added.) The Superior Court of Pennsylvania concluded that the police officers properly entered the property to enforce the ordinance, however, the Court held "that the warrantless entry into appellant's detached shed and seizure of the slot machines was not justified by exigent circumstances. Therefore, because defendant's motion to suppress evidence should have been granted, the court reversed the judgment of sentence and remanded for a new trial. -9- 01-1611 CRIMINAL TERM 01-1687 CRIMINAL TERM 01-1974 CRIMINAL TERM In light of Roland, Hodge and Weik, we find, in the case sub judice, that even if Officers Cornelious and Pepperman had probable cause to believe that defendants were committing the minor offense of summary disorderly conduct inside the Roman garage, there were no exigent circumstances to justify their entry onto the Roman property, much less into the garage, without a search warrant. Even if the circumstances had somehow justified the officers' entry onto the Roman property without a search warrant, as contrasted to into the garage on the property, and they had then been lawfully in front of the garage, their observations of defendants inside the garage giving them probable cause to believe that the minor offense of underage possession and consumption of alcohol was taking place, lacked exigent circumstances to justify the warrantless entry into the garage and the seizure of evidence therein. Therefore, the officers' unlawful entry onto the Roman property and into the garage, and seizure of evidence therein, without a search warrant, was a violation of defendants' constitutional rights. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of December, 2001, the motion of defendants to suppress all evidence obtained by the police after their entry onto the property of Matthew Roman, IS GRANTED. -10- 01-1611 CRIMINAL TERM 01-1687 CRIMINAL TERM 01-1974 CRIMINAL TERM By the Court, Edgar B. Bayley, J. David Freed, Esquire Assistant District Attorney Joshua D. Lock, Esquire For Mason McClellan William A. Fetterhoff, Esquire For Matthew Roman William J. Fulton, Esquire For Michael Shover :saa -11-