Com. v. Kneller, L.

• Court: Superior Court of Pennsylvania
• Decided: January 3, 2019
• Docket: 193 MDA 2018
• Status: Unpublished

Opinion

J-S69001-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

LORIE ANNE KNELLER,

Appellee No. 193 MDA 2018

Appeal from the Order Entered December 29, 2017 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000808-2017

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

RICHARD KNELLER,

Appellee No. 474 MDA 2018

Appeal from the Order Entered February 14, 2018 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000809-2017

BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: JANUARY 3, 2019

In these consolidated cases, the Commonwealth appeals from the trial

court’s orders granting suppression of evidence that was discovered pursuant

to a search of the home of Appellees, Lorie Anne and Richard Kneller, by a J-S69001-18

police officer who was conducting a welfare check on Appellees’ minor child.

After careful review, we affirm.

The facts of this case were summarized by the trial court, as follows:

On Friday, January 20, 2017, Officer Evans of the Larksville Police Department received a call to assist Luzerne County Children and Youth to check on the welfare of [Appellees’] seven- year-old son, C.K., at [Appellees’] home…. Residing in the home with [Appellees] and C.K. was … [Appellee Lorie Kneller’s] other two sons, fifteen year old L.S., and nineteen year old Austin Feistl (Feistl). Officer Evans and two other police officers arrived and met “Jessica[,”] a Children and Youth employee, at the residence. On Monday of the same week, there had been a report of child abuse stemming from a fight between L.S. and his stepfather, [Appellee] Richard Kneller, at the same residence. Jessica’s knock on the door was answered by … []Feistl[]…. Feistl said that C.K. was inside the home, but that his parents, [Appellees]…, were not at home. The officers called [Lorie Kneller], who said she was shopping and doing errands that she would be on her way home. C.K.’s father, Richard Kneller, was contacted but was at work. After waiting for over an hour for [Lorie Kneller] to return home, the officers asked Feistl if they could check on C.K. Officer Evans testified that the door was halfway open and that he could smell a foul smell coming from inside the residence and that even before entering[,] he could see that there were clothes thrown about and that the home was cluttered. After Feistl gave consent to check on C.K.,2 Officer Evans, his partner Officer Stitzer, and Jessica from Children and Youth entered the “bi-level ranch” home with Feistl. Officer Evans testified that when they went up the steps, the living room, dining room, and kitchen area was all open, and … the first thing he noticed was all the stuff thrown about the house. He said it was “absolutely disgusting” with stains on the carpet and an electric heater plugged into an extension cord. He testified that the space heater was the only source of heat throughout the house. He testified that when he looked straight, he could see into the kitchen area, and … the sink was full of dishes and dirty[,] moldy water. He saw several flies “as if they were Fruit Flies (sic) or fleas around.” He further testified that before locating C.K., [Feistl] led him down … the hallway[,] which contained three bedrooms and a bathroom. C.K. was not in his bedroom, which happened to be the first bedroom Officer Evans

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passed. Officer Evans was able to see inside the first bedroom because there was no door on the hinges. Inside the first bedroom, which belonged to C.K., there was a “kid’s bed” and a nightstand or dresser with burnt cigarettes and ashes right on it. C.K. was located in the second bedroom lying on his side on the bed. There was a big screen TV on the bed, and there were “extension cords and stuff” all thrown around the bedroom, which … Officer Evans determined belonged to Feistl. Also on the bed was a fan and a PlayStation and games. There was a second bed inside that bedroom that had “stuff and garbage” thrown on top of it. 2 Officer Evans testified that Feistl gave consent for him to check on C.K., but Feistl testified that he told the officers he didn’t “feel comfortable” with them coming in to [sic] the home, and that instead of verbally consenting, he “just kind of stepped out of the way.” We found Officer Evans’ version of events to be believable and credible as to the subject of Feistl’s consent to check the welfare of C.K.

Even after locating C.K. for his welfare check, the officers continued their tour of the home. The door to the third bedroom, which Officer Evans testified that he believed belonged to … [Appellees], was halfway open and Officer Evans noticed there was a brown carpet with mold stains all over it and “stuff … thrown all over.” He then proceeded to the bathroom and turned on the faucet. He testified that he saw “…stains, mold inside the sink, and inside there, no running water.” Further, he saw that the toilet had very little water inside, and that the bathroom window was open halfway with no screen. Additionally, he testified that there was no running water in the shower.

Officer Evans said that they then went down the steps and into the basement of the bi-level. In the basement, Officer Evans was able to see clothes thrown around[,] … debris and garbage thrown everywhere[,] and … it “was completely disgusting.” He said that when he looked to the left, he saw a door that was closed and a laundry room door that was halfway open. In the laundry room, Officer Evans saw a water heater completely covered with clothes at the base, which he testified was a fire hazard “if there’s an open flame inside there.” Through the laundry room, Officer Evans checked another bathroom “that was disgusting[,] too[,] with stains and no water, as well.” There was another room in the basement that he was unable to access[,] although he tried. He testified that although the door was open slightly, he “had to push

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it a little bit, and [he] couldn’t get behind it because there was so much clutter behind it.”

While going through the residence, Officer Evans photographed all of the areas of the house and took approximately 50 photographs. While discussing the photographs, he showed a picture of the open refrigerator in the kitchen. He showed a picture of the living room area depicting that the baseboard heat had been “taken apart.”

Officer Evans requested that the code enforcement officer respond due to fire hazards, no running water in the home, and no safe sleeping area for the children. The home was condemned and C.K. was taken into the protective custody of Children and Youth [Services].

Trial Court Opinion (TCO), 4/26/18, at 1-4 (opinion filed in Lorie Kneller’s

case; citations to the record omitted).1

Based on these facts, Lorie Kneller was arrested and charged with two

counts of endangering the welfare of a child (EWOC), 18 Pa.C.S. § 4304(a)(1),

and Richard Kneller was arrested and charged with one count of EWOC. On

July 6, 2017, Lorie Kneller filed a motion to suppress evidence obtained during

the search of her home. A hearing was conducted on August 30, 2017. On

December 28, 2017, the trial court issued an order granting the motion in

part, and denying it in part. Specifically, the court ruled that:

Officer Evans obtained the consent of Austin Feistl to enter the residence in order to do a welfare check on C.K., but did not request consent to do a search.

a. Anything in plain view of the officer is admissible without a warrant to search. Commonwealth v. Anderson, [40] A.3d 1245 (Pa. Super. 2012).

____________________________________________

1The trial court adopted this opinion in Richard Kneller’s case, as well. See Trial Court Opinion, 5/14/18, at 2 (Richard Kneller’s case).

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b. Those items that did not fall within the plain view exception to the warrant requirement will be suppressed. Specifically, photographs and testimony regarding any evidence discovered after C.K. was located for his welfare check are not admissible. See Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149 (1987).

Trial Court Order, 12/29/17, at 1 (Lorie Kneller’s case). The Commonwealth

filed a timely notice of appeal, certifying that the court’s order terminates or

substantially handicaps the prosecution of Lorie Kneller’s case. See Pa.R.A.P.

311(d).

On January 10, 2018, Richard Kneller filed a motion to suppress that

raised the same issues as asserted by Lorie Kneller. On February 8, 2018,

the parties agreed to submit the transcript of the August 30, 2017 suppression

hearing in Lori’s case for the court’s consideration in ruling on Richard’s motion

to suppress. On February 14, 2018, the court issued an order identical to that

quoted above, thus granting in part, and denying in part, Richard’s motion to

suppress. Again, the Commonwealth filed a timely notice of appeal with the

requisite certification under Rule 311(d).

In both cases, the trial court issued a Pa.R.A.P. 1925(b) order, notifying

the Commonwealth that any issue not raised in a timely-filed statement would

be deemed waived. The Commonwealth timely complied with those orders,

filing identical Rule 1925(b) statements in both cases, which preserved the

following, single issue for this Court’s review:

The [c]ourt erred when it granted [Appellees’] Motion[s] to Suppress because the condition of the house was in plain view or in the alternative would have been inevitably discovered since the

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condition of the house provided probable cause to obtain a warrant.

Rule 1925(b) Statement (Lorie Kneller’s case), 2/12/18, at 1; Rule 1925(b)

Statement (Richard Kneller’s case), 3/29/18, at 1. The trial court issued a

Rule 1925(a) opinion on April 26, 2018.

On May 29, 2018, the Commonwealth filed with this Court an

“Application for Consolidation” of Lorie Kneller’s and Richard Kneller’s appeals.

This Court granted that application by per curiam order on June 11, 2018.

The Commonwealth then submitted a single brief, stating the following issue

for our review: “Whether the court erred when it suppressed the photographs

of the house and any of the observations of the officer after C.K. was located?”

Commonwealth’s Brief at 3. Appellees submitted individual briefs thereafter.

Initially, we note that: In appeals from orders granting suppression, our scope of review is limited to the evidence presented at the suppression hearing. In the Interest of L.J., 622 Pa. 126, 79 A.3d 1073, 1088–89 (2013). Thus, we may consider only the evidence from the appellee’s witnesses together with the Commonwealth’s evidence that, when read in context of the record at the suppression hearing, remains uncontradicted. Id.; Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa. Super. 2013). As for the standard of review, we apply no deference to the suppression court’s legal conclusions. Whitlock, 69 A.3d at 637. In contrast, we defer to the suppression court’s findings of fact, “because it is the fact-finder’s sole prerogative to pass on the credibility of the witnesses and the weight to be given to their testimony.” Id.

Commonwealth v. Davis, 102 A.3d 996, 999 (Pa. Super. 2014) (footnote

omitted).

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Presently, the Commonwealth first avers that the trial court erred by

applying Article I, Section 8 of the Pennsylvania Constitution in granting both

Appellees’ motions to suppress. According to the Commonwealth, both

Appellees failed to adequately raise a claim under the Pennsylvania

Constitution, instead relying only on the Fourth Amendment to the United

States Constitution to support their suppression claims.2 In support of its

waiver argument, the Commonwealth relies on Commonwealth v. Updike,

172 A.3d 621 (Pa. Super. 2017). There, we concluded that the suppression

court erred by applying Article I, Section 8 of the Pennsylvania Constitution,

where Updike had “only moved to suppress the … evidence under the Fourth

Amendment of the United States Constitution” in his motion to suppress, and

his counsel also “never mentioned the Pennsylvania Constitution at the

suppression hearing.” Id. at 626.

We agree with Appellees that their cases are distinguishable from

Updike. As they point out, each of them stated in their motions to suppress

that, “[u]nder both the United States and Pennsylvania Constitutions,

there exists ‘a reasonable expectation of privacy associated with one’s place

of dwelling.’” Omnibus Pretrial Motion (Lorie Kneller Case), 7/6/1, at 2 ¶ 10

(emphasis added); Omnibus Pretrial Motion (Richard Kneller), 1/10/18, at 2 ¶

2 We recognize that the Commonwealth did not raise this specific claim in its Rule 1925(b) statement. However, it was not clear until the trial court issued its Rule 1925(a) opinion that the court had based its suppression ruling on Pennsylvania constitutional law, rather than its federal counterpart. Therefore, we will not deem the Commonwealth’s first issue waived.

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10. Lorie reiterated this quote in her brief in support of her motion to suppress

that was filed after the suppression hearing. Also, in Lori’s brief, she relied on

Commonwealth v. Edwards, 735 A.2d 723 (Pa. Super. 1999), which was a

decision premised on Article 1, Section 8 of the Pennsylvania Constitution.

See Lorie Kneller’s Brief at 9 (citing Brief in Support of Defendant’s Omnibus

Pretrial Motion, 9/13/17, at 2-3); see also Edwards, 735 A.2d at 725.

Admittedly, neither Lorie nor Richard provided elaborate discussion about the

differences between the federal and Pennsylvania ‘inevitable discovery’

doctrines, which is the central issue the Commonwealth raises on appeal (as

will be discussed herein). However, the Commonwealth did not raise its

inevitable discovery claim until it filed its briefs in opposition to Appellees’

omnibus pretrial motions, which were filed after the suppression hearing and

subsequent to Appellees’ briefs.

Thus, we conclude that Appellees’ references to the Pennsylvania

Constitution distinguishes their cases from Updike, and were sufficient to

support the trial court’s reliance on Pennsylvania constitutional law in granting

their motions to suppress.

Next, the Commonwealth avers that the trial court erred by granting

suppression of the evidence discovered during Officer Evans’ search of

Appellees’ home after he located C.K., because that evidence would have been

inevitably discovered by lawful means.3 More specifically, the Commonwealth ____________________________________________

3 The Commonwealth does not dispute that Officer Evans’ warrantless search of Appellees’ home after he located C.K. was illegal.

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initially contends that the code enforcement officer would have inevitably

conducted a lawful search of Appellees’ home.

We need not delve into the details of the Commonwealth’s argument,

however, as our review of the record demonstrates that it is waived. The

Commonwealth did not raise this claim in either of the briefs it filed in response

to Appellees’ omnibus pretrial motions, and it does not point to where in the

record of the suppression hearing it preserved this inevitable discovery

argument. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”). Additionally, the

Commonwealth’s Rule 1925(b) statement, quoted supra, did not set forth a

claim that the code enforcement officer would have inevitably discovered the

evidence; instead, the Commonwealth asserted that the evidence would have

been “inevitably discovered since the condition of the house provided probable

cause to obtain a warrant.” Rule 1925(b) Statement (Lorie Kneller’s case) at

1 (emphasis added); Rule 1925(b) Statement (Richard Kneller’s case) at 1

(emphasis added). The trial court addressed only this probable cause issue

in its opinion, and made no mention of the code enforcement officer’s

inevitably discovering the evidence. Accordingly, the Commonwealth failed to

preserve this claim for our review. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not

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included in the Statement and/or not raised in accordance with the provisions

of this paragraph (b)(4) are waived.”).4

Finally, the Commonwealth challenges the trial court’s rejection of its

argument that the evidence obtained during Officer Evans’ illegal search of

Appellees’ home would have been inevitably discovered because Officer Evans

possessed probable cause to obtain a warrant. Having reviewed the

Commonwealth’s argument, Appellees’ responses, the certified record, and

the applicable law, we discern no error in the trial court’s decision on this

issue, based on the rationale set forth in its April 26, 2018 opinion. See TCO

at 8-14. Accordingly, we adopt that portion of the trial court’s decision as our

4 In any event, we also would deem this argument meritless. In Commonwealth v. Berkheimer, 57 A.3d 171 (Pa. Super. 2012) (en banc), we held that, “where law enforcement officers engage in apparent misconduct by negating the warrant requirement, the Commonwealth only can avoid suppression by demonstrating a source ‘truly independent from both the tainted evidence and the police or investigative team which engaged in the misconduct.’” Commonwealth v. Perel, 107 A.3d 185, 195 (Pa. Super. 2014) (discussing and quoting Berkheimer, 57 A.3d at 176). Here, the code enforcement officer was called to the scene by Officer Evans, based on the apparent code violations discovered during the officer’s illegal search of Appellees’ home. The Commonwealth presented no evidence at the suppression hearing - such as the code officer’s testimony - to establish that the code officer would have legally inspected Appellees’ home, but for Officer Evans’ illegal search and report of information to the code officer. Thus, we would conclude that the Commonwealth failed to establish that the code enforcement officer was a ‘truly independent source’ who would have inevitably discovered the evidence in Appellees’ home.

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own, and affirm the order granting Appellees’ suppression motions on this

basis.5

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 01/03/2019

5 We add, however, that the Commonwealth’s cursory argument that the present cases are distinguishable from the two cases primarily relied upon by the trial court, Berkheimer and Perel, is wholly unconvincing. See Commonwealth’s Brief at 12-14. The Commonwealth focuses its argument on inconsequential differences between the facts of those cases and the present. However, the trial court did not premise its reasoning on the facts of Berkheimer or Perel but, instead, on the legal principles that emerged from those decisions.

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CO:tv1MONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY- CRIMINAL vs.

LORIE A. KNELLER NO. 808 OF 2017

Pa.R.A.P. 1925(a) OPINION

I. Factual and procedural history.

The Commonwealth appeals from the December 28, 2017 Order of this court, which granted

in part the Defendant's Motion to Suppress the Search of the Residence and Evidence Secured

Therefrom. Defendant Lorie Kneller (Defendant) was charged with two counts of endangering the

. welfare of her own children due to the condition of her home.1 The Commonwealth filed its Notice

of Appealon January 26, 2018, and a Statement of Errors Complained of on Appeal (Statement)

on February 12, 2018. Defendant filed her Response (Response) on February 26, 2018.

On Friday, January 20, 2017, Officer Evans of the Larksville Police Department received

a call to assist Luzerne County Children and Youth to check on the welfare of Defendant's seven-

year-old son, C.K., at Defendant's home in Larksville Borough. N.T. 2, 5. Residing in the home

with Defendant and C.K. was Richard Kneller (C.K. 's father), and Defendant's other two sons,

fifteen year old L.S., and nineteen year old Austin Feistl (Feistl). Officer Evans and two other

police officers arrived and met "Jessica", a Children and Youth employee, at the residence. Id. at

3-4. On Monday of the same week, there had been a report of child abuse stemming from a fight

between L.S. and his stepfather, Richard Kneller, at the same residence. Id. at 4. Jessica's knock

on the door was answered by Defendant's nineteen year old son (Feistl) who lives in the home.

Id.at 4-5. Feist) said that C.K. was inside the home, but that his parents, Defendant and Richard

1 Defendant was charged with two counts of Endangering Welfare of Children, 18 Pa.C.S.A. § 4304 (a)(l ), a felony of the third degree, one count for each of two minor children, C.K. and L.S. Kneller (in fact not Feistl's natural father), were not at home. Id. at 5. The officers called

Defendant, who said she was shopping and doing errands and that she would be on her way home.

Id. at 6. C.K. 's father, Richard Kneller, was contacted but was at work. Id. After waiting for over

an hour for Defendant to return home, the officers asked Feist} if they could check on C.K. Id. at

6, 24. Officer Evans testified that the door was halfway open and that he could smell a foul smell

coming from inside the residence and that even before entering he could see that there were clothes

thrown about and that the home was cluttered. Id. at 7. After Feistl gave consent to check on

C.K.,2 Officer Evans, his partner Officer Stitzer, and Jessica from Children and Youth entered the

"bi-level ranch" home with Feistl. Id. Officer Evans testified that when they went up the steps,

the living room, dining room, and kitchen area was all open, and that the first thing he noticed was

all the stuff thrown about the house. Id. at 8. He said it was "absolutely disgusting" with stains

on the carpet and an electric heater plugged into an extension cord. Id. at 8. He testified that the

space heater was the only source of heat throughout the house. Id. at 16. He testified that when

he looked straight, he could see into the kitchen area, and that the sink was full of dishes and dirty

moldy water. He saw several flies "as if they were Frnit Flies (sic) or fleas around." Id. at 8. He

further testified that before locating C.K., Austin led him down to the hallway which contained

three bedrooms and a bathroom. Id. C.K. was not in his bedroom, which happened to be the first

bedroom Officer Evans passed. Id. at 8-9. Officer Evans was able to see inside the first bedroom

because there was no door on the hinges. Id. at 9. Inside the first bedroom, which belonged to

C.K., there was a "kid's bed" and a nightstand or dresser with burnt cigarettes and ashes right on

it. Id. at 9. C.K. was located in the second bedroom lying on his side on the bed. There was a big

2 Officer Evans testified that Feist! gave consent for him to check on C.K., but Feist) testified that he told the officers he didn't "feel comfortable" with them coming in to the home, and that instead of verbally consenting, he "just kind of stepped out of the way." N.T. 32. We found Officer Evans' version of events to be believable and credible as to the subject ofFeistl's consent to check the welfare of C.K.

2 screen TV on the bed, and there were "extension cords and stuff" all thrown around the bedroom,

which bedroom Officer Evans determined belonged to Feistl. Id. at 8-9. Also on the bed was a fan

and a PlayStation and games. Id. at 15. There was a second bed inside that bedroom that had

"stuff and garbage" thrown on top of it. Id.

Even after locating C.K. for his welfare check, the officers continued their tour of the home.

Id. The door to the third bedroom, which Officer Evans testified that he believed belonged to the

Defendant and her husband, Richard Kneller, was halfway open and Officer Evans noticed there

was a brown carpet with mold stains all over it and "stuff all thrown all over." Id. at 10. He then

proceeded to the bathroom and turned on the faucet. Id. at 10, 14. He testified that he saw "all

stains, mold inside the sink, and inside there, no running water." Id. at 10. Further, he said that the

toilet had very little water inside, and that the bathroom window was open halfway with no screen.

Id. Additionally, he testified that there was no running water in the shower. Id.

Officer Evans said that they then went down the steps and into the basement of the bi-level.

Id. In the basement, Officer Evans was able to see clothes thrown around and debris and garbage

thrown everywhere and that it "was completely disgusting." Id. He said that when he looked to the

left, he saw a door that was closed and a laundry room door that was halfway open. Id. In the

laundry room, Officer Evans saw a water heater completely covered with clothes at the base, which

he testified was a fire hazard "if there's an open flame inside there." Id. at 10-11. Through the

laundry room, Officer Evans checked another bathroom "that was disgusting too with stains and

no water, as well." Id at 11. There was another room in the basement that he was unable to access

although he tried. Id. He testified that although the door was open slightly, he "had to push it a

little bit, and [he J couldn't get behind it because there was so much clutter behind it." Id.

3 While going through the residence, Officer Evans photographed all of the areas of the

house and took approximately 50 photographs. Id. at 11 - 12. While discussing the photographs,

he showed a picture of the open refrigerator in the kitchen. Id. at 15. He also showed a picture of

the living room area depicting that the baseboard heat had been "taken apart." Id. at 16.

Officer Evans requested that the code enforcement officer respond due to fire hazards, no

running water in the home, and no safe sleeping areas for the children. Id. at 11, 17. The home

was condemned and C.K. was taken into the protective custody of Children and Youth. Id. at 17.3

Defendant was arrested and charged with the aforementioned offenses. Defendant filed an

omnibus pre-trial motion, seeking in pertinent part the suppression of the search of the residence

and evidence secured therefrom. We granted Defendant's motion in part and directed that since

Officer Evans obtained the consent of Feist! to enter the residence in order to do a welfare check

on C.K., but did not request consent to conduct a search, anything in plain view of the officer while

he was looking for C.K. was admissible without a warrant. Conversely, those items that did not

fall within the plain view exception to the warrant requirement were suppressed. Specifically, we

ordered that photographs and testimony regarding any evidence discovered after C.K. was located

for his welfare check were not admissible.

II. Law and discussion.

In its Statement, the Commonwealth alleges that this Court erred in granting the

Defendant's Motion to Suppress because either the condition of the house (1) was in plain view

or, in the alternative (2) would have been inevitably discovered since the condition of the house

provided probable cause to obtain a warrant. We will address each argument in turn.

3 L.S., the other minor child, was staying with his natural father and was not taken into protective custody.

4 The Commonwealth first alleges that this Court erred because the condition of the house

was in plain view. Generally, a search warrant is required before police may conduct any search.

"Absent the application of one of a few clearly delineated exceptions, a warrantless search or

seizure is presumptively unreasonable. This is the law under both the Fourth Amendment to the

United States Constitution and Article I, Section 8 of the Pennsylvania Constitution."

Commonwealth v. Williams, 73 A.3d 609, 614 (Pa. Super. 2013).

The plain view doctrine is an exception to the warrant requirement, and provides that evidence in

plain view of the police can be seized without a warrant. Commonwealth v. Anderson, 40 A.3d

1245, 1248 (Pa. Super. 2012), quoting Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971).

The plain view doctrine permits the warrantless seizure of an object if: (1) the police did

not violate the Fourth Amendment when they arrived at the vantage point from which they could

view the items in question; (2) the items were not obscured and could be seen from the

investigator's location; (3) the incriminating nature of the items was "readily apparent"; and (4)

police had a "lawful right to access the items." Anderson, at 1248.

While they were attempting to locate C.K., the police did not violate the Fourth

Amendment because they had Feistl's consent to enter the residence. The Pennsylvania Supreme

Court has held that "[t]hird party consent is valid when police reasonably believe a third party has

authority to consent." Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007). When a third

party who has the authority to consent does so, police are not required to obtain a search warrant

based upon probable cause. Commonwealth v. Hughes, 836 A.2d 893, 900 (Pa. 2003). Feistl was

a nineteen year old adult residing in the home and was able to give consent for the police to enter

the residence. However, the consent given by Feistl was limited in scope as he only consented to

allow the police to check on C.K. "The scope of a search is generally defined by its expressed

5 object." Commonwealth v. Parker, 619 A.2d 735, 739 (Pa. Super. 1993). In Parker, the defendant

gave consent for police to search his car for "drugs or other contraband" or for "drugs and other

violations of law." Id. at 737. After police seized a cassette tape, the defendant was charged with

violating Pennsylvania's Wiretapping Act. In reversing the suppression court, the Superior Court

stated that the tape was beyond the scope of the defendant's consent. Id. at 739.

In the case before us, the record reflects that Officer Evans obtained Feistl's consent to

enter the residence in order to do a welfare check on C.K, but did not request consent to do a

search. Id. at 6. Defense counsel questioned Officer Evans regarding the scope of consent:

Q: When you said you were granted permission to go, no, you basically told him you were

going to go in, didn't you?

A: No. I said, Do you mind, can we check to make sure he's okay? He said, Sure.

Absolutely. He's sleeping in the bedroom.

Q: So, specifically you asked him if he can check on his brother, you didn't ask him -

A: That was the reason we were there.

Q: You didn't ask him to search the residence, did you?

A: No.

Q: So the consent was just to see if his brother was okay?

A: Correct.

N.T. at 24.

Before Officer Evans located C.K. for his welfare check, all four requirements were

satisfied and anything in plain view of the officers up until the point that C.K. was located is

admissible under the plain view exception. The officers had permission to be in the house in order

to do the welfare check. The testimony as to what Officer Evans saw prior to locating C.K.

6 indicates that what he saw was not obscured and that the incriminating nature of the items was

readily apparent. On the other hand, any evidence discovered after C.K. was located for his welfare

check did not satisfy the test in order for the plain view exception to apply and is properly

suppressed. After C.K. was located, Officer Evans did not have permission to continue to be at

the residence. Additionally, the turning of the faucets and pushing on the doors indicates that the

evidence he was searching for was "obscured".

Specifically, as our Order stated, photographs and testimony regarding any evidence

discovered after C.K. was located for his welfare check are not admissible. This includes, but is

not limited to, evidence of Officer Evans looking into rooms after C.K. was located (N.T. 9-11);

entering rooms after C.K. was located (N.T. 10-11); looking in the toilet (N.T. 10, 13-14); testing

the toilet (N.T. 13-14); walking through the basement4 (N.T. 10); turning on faucets (N.T. 10-11,

14); checking to see if the shower had running water (N.T. 10); and pushing on a door -- which

was only slightly open -- to try to get behind it. (N.T. 11). See, Arizona v. Hicks, 480 U.S. 321

(1987). (When a bullet was fired through the floor of defendant's apartment, police entered the

apartment to search for the shooter, other victims, and for weapons. While there, a police officer

noticed two sets of expensive stereo components and, suspecting that they were stolen, moved

some of them to read and record the serial numbers and seized a stolen turntable. The serial

numbers were not subject to the plain view exception because the moving of the equipment was a

"search" separate and apart from the search that was the lawful objective of entering the

apartment.)

4 Because Officer Evans testified that the home was a bilevel, it would appear that after locating C.K., the officer would have had to go down the first set of stairs and pass the front door and go down a second set of steps to reach the basement, which he then proceeded to search, entering the laundry room and the bathroom and pushing on a door in the basement in an attempt to gain access to another room. (N.T. 10). Although Officer Evans testified that Feist! led them through the home, the court finds that Feist! did not voluntarily initiate and lead a tour of the rest of the home after C.K. was located.

7 Alternatively, the Commonwealth argues that the condition of the house would have been

inevitably discovered since the condition it was in provided probable cause to obtain a warrant.

Having probable cause to obtain a search warrant does not negate an otherwise illegal search.

Commonwealth v. Berkheimer, 57 A.3d 171, 174 (Pa. Super. 2012) (en bane); Commonwealth v.

Perel, 107 A.3d 185, FN 11 (Pa. Super. 2014)

The exclusionary rule has traditionally barred from trial physical, tangible materials

obtained during -- or as a direct result of -- an unlawful invasion. Wong Sun v. United States, 371

U.S. 471, 485 (1963).

The inevitable discovery exception to the exclusionary rule provides that:

Evidence which would have been discovered was sufficiently purged of the original illegality to allow admission of the evidence. [I]mplicit in this doctrine is the fact that the evidence would have been discovered despite the initial illegality. If the prosecution can establish by a preponderance of the evidence that the illegally obtained evidence ... inevitably would have been discovered by lawful means, the evidence is admissible. The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct.

Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa. Super. 2009), appeal denied, 995 A.2d 350 (Pa. 2010), citing Commonwealth v. Gonzalez, 979 A.2d 879, 889 (Pa. Super. 2009).

The United States Supreme Court announced the inevitable discovery exception to the

exclusionary rule in Nix v. Williams. 467 U.S. 431 (1984), holding that evidence discovered after

a defendant was questioned in violation of his Sixth Amendment rights is admissible where the

prosecution can establish by a preponderance of the evidence that the information inevitably would

have been discovered by lawful means. Id. at 448.

According to the Supreme Court, the sole purpose for the exclusionary rule under the 4th

Amendment was to deter police misconduct. U.S. v. Leon, 468 U.S. 897, 916 (1964). However,

8 due to the protections contained in Article I, Section 8 of the Pennsylvania Constitution,5 the

purpose of the exclusionary rule in Pennsylvania is quite different from the federal

exception. Commonwealth v. Mason, 637 A.2d 251, 256 (Pa. 1993). In Mason, our Supreme

Court introduced privacy considerations stemming from Pennsylvania's constitution as an element

of inevitable discovery:

If our sole purpose in applying Article I, Section 8 to the facts of this case were to deter police misconduct, we would be constrained to rule in favor of the Commonwealth, for in balancing the interests, it is apparent that society's interest in arresting those guilty of serious crime should not be thwarted where police would inevitably and independently arrive at the same evidence, but for their illegal conduct. However, where our task is not merely to deter police misconduct, but also to safeguard privacy and the requirement that warrants shall be issued only upon probable cause, our conclusion is different.

Mason, at 256.

In its Statement, the Commonwealth claims that the condition of the house would have

been inevitably discovered since the condition it was in provided police with probable cause to

obtain a warrant, However, even if the police did have probable cause to obtain a warrant, the

Superior Court in Perel rejected that argument, making it clear that "the inevitable discovery

doctrine is not a substitute for the warrant requirement." Commonwealth v. Perel, 107 A.3d 185,

196 (Pa. Super. 2014). In Perel, the defendant's girlfriend consented to a search of her apartment

and of the defendant's shaving bag. Although the Superior Court determined that the defendant's

girlfriend could not properly consent to a search of his shaving bag, the Dissent argued that the

evidence contained in the bag should still be admissible under the inevitable discovery doctrine.

5 The Pennsylvania Constitution provides: The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. Pa. Const. art. 1, § 8.

9 The Pere] court held that the warrantless search of the defendant's private belongings in closed

containers in his girlfriend's apartment did not fall within the "narrow confines" of the inevitable

discovery doctrine, even if police had probable cause and could have obtained a warrant, The

Perel court soundly rejected the same argument that the Commonwealth makes here. The court

was clear that police cannot seize an item or search a home and then invoke the inevitable

discovery doctrine with the assertion that they could have obtained a warrant, emphasizing that

"the inevitable discovery doctrine does not operate in such a constitutionally impoverished

manner." Perel, at 196.

In reaching the conclusion that the inevitable discovery doctrine did not apply, the Perel

court considered the Superior Court's in-depth analysis of the doctrine in Commonwealth v.

Berkheimer. Perel, at 193. In Berkheimer, the stepfather of an individual who was wanted on a

probation detainer provided an address where he might be located. Commonwealth v. Berkheimer,

57 A.3d 171, 174 (Pa. Super. 2012) ( en bane). After arriving at the address late at night, the police

smelled marijuana and entered the home without a warrant. Id. at 175. Inside the home, they

observed the defendants (but not the individual who had been wanted on the detainer.) Id.

Additionally, police observed marijuana, drug paraphernalia; and several rounds of ammunition.

Id. The police then got a warrant, and in a search pursuant to the warrant they found three small

bags of marijuana and a scale. Id.at 176. The suppression court agreed with the defense argument

that the search of the home was unlawful. However, the suppression court held that because the

smell of marijuana provided probable cause for the issuance of a warrant, the evidence inevitably

would have been discovered. Id. at 176-177.

On appeal, an en bane panel of the Superior Court considered the extent to which "the

evidence in question was subject to inevitable discovery under the independent source rule and

10 should therefore be properly admitted." Id. at 178. The court held that the evidence obtained

pursuant to the search wan-ant should have been suppressed. Id. at 176-177. The Berkheimer court

further held that where police "engage in apparent misconduct by negating the warrant

requirement, the Commonwealth only can avoid suppression by demonstrating a source truly

independent from both the tainted evidence and the police or investigative team which engaged in

the misconduct." Perel at 195.

As in Berkheimer and in Perel, the Commonwealth cannot meet this standard here. Only

one team of police participated in the extended walk-through of Defendant's residence. There was

no source independent from that police team. The evidence indicated that all of the police officers

acted together during the search. The record offers no justification that would have allowed the

police to continue to proceed wholesale through Defendant's home after C.K. was located --

entering rooms, turning on faucets, and pushing on doors. Although the facts of Berkheimer and

Perel may differ from the facts of the instant case, the guiding principle is the same. As the Perel

court summed up, "A fair reading of Berkheimer, in which the en bane panel reviewed all of the

leading cases in this area, demonstrates that the principle that possessing probable cause to obtain

a warrant is insufficient to overcome illegal searches applies broadly to all search and seizure

cases. "6 Perel, at n.11 (emphasis supplied).

The idea that law enforcement officers may remove the need to secure a search warrant

based upon their own determination that sufficient probable cause exists is incompatible with the

6 As in the instant case, police did not use any force in Perel to enter the premises they searched, obtaining the defendant's girlfriend's consent to enter her apartment, In holding that the seized evidence should be suppressed, the court demonstrated that police need not violently enter a premises in order for the procedural safeguards of the warrant requirement to apply.

11 protections provided by the Fourth Amendment. Peret at 196. As stated by Justice Robert Jackson

in Johnson v. United States, 333 U.S. 10, 14 (1948):

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity(.]

Id. at 14 (footnote omitted), quoted by Perel, at 196.

The Commonwealth's argument that the condition of the house would have been inevitably

discovered since the condition it was in provided probable cause to obtain a warrant does not

excuse the absence of the issuance of a warrant by a detached and neutral fact finder, where exigent

circumstances did not exist. Even if the police had developed probable cause while performing

C.K.'s welfare check, that does not excuse them from getting a warrant to conduct a more

exhaustive, wholesale search. Exigent circumstances did not here exist and, moreover, the

Commonwealth did not argue that they did.

The doctrine of inevitable discovery should not be viewed as an invitation to overlook

unconstitutional searches whenever the police could have complied with the Constitution's warrant

requirement, but instead consciously disregarded it. Perel, at 195. Police must demonstrate that

the evidence would have been discovered absent the police misconduct, not simply that they

somehow could have lawfully discovered it. Id. at 196. (emphasis in original).

The burden of proving that evidence would have been inevitably discovered rests with the

Commonwealth. Conunonwealth v. Ingram, 814 A.2d 264, 272 (Pa. Super. 2002). The

Commonwealth suggests two different scenarios as the basis for the application of inevitable

discovery in the instant matter. In its Brief in Opposition to Defendant's Omnibus Pretrial Motion,

12 the Commonwealth argues that the inevitable discovery doctrine applies because if the officers

had waited for Defendant to arrive home rather than entering the home when they did, "one of two

things would have happened: either the Defendant would have given consent for the officers to

enter the home at that time, or the Defendant would have refused to give consent to the officers to

enter." The Commonwealth argues that if the Defendant had given consent, the officers would

have found the residence in the same condition it was in during the initial search. Alternatively,

the Commonwealth posits, if on arriving home the Defendant had refused permission to allow the

police to check on C.K., the officers would then have been in an "exigent circumstances situation"

where the Defendant was preventing law enforcement from assessing C.K. 's welfare, and they

would have had the ability to enter the home to check on C.K., and again would have inevitably

discovered the condition of the home.

While arguing this hypothetical, alternate reality in which the search after locating C.K.

would have been lawful, no evidence was presented that Defendant would have either refused

access to the child or would have given consent to search the home. There was no evidence

presented that Defendant would have agreed, or even that she would have been asked by the police,

to give greater consent than the limited consent given by Feistl. As the defense argues in their

Response, a third possibility would have been that the Defendant would have arrived home and

brought C.K. to the investigators outside the home. Yet another possibility is that Defendant would

only have been asked for -- and only would have given -- consent to check on the welfare of C.K.

rather than to a wholesale search of the home. None of these scenarios trigger the application of

the inevitable discovery doctrine. The Commonwealth has simply failed to meet its burden.

The warrantless search of Defendant's bathrooms, third bedroom, basement, and the other

locations in the residence that were searched after C.K. was located was improper, despite the

13 Commonwealth's argument that the police had probable cause. After C.K. was located, the police

no longer had consent to be on the premises. The fact that police may have developed probable

cause during the period of time they were looking for C.K. does not excuse the requirement that

they get a warrant to conduct a more thorough search. Pere! makes it clear that the Commonwealth

cannot invoke the inevitable discovery doctrine by merely asserting that the police could have

obtained a warrant. Therefore, this court submits that it did not err in suppressing evidence

discovered after C.K. was located for the welfare check and respectfully suggests that the Order

of this Court be affirmed.

ORDER ATTACHED SEPARATELY AS PAGE 15