Commonwealth v. Caudell

40 Pa. D. & C.5th 546
CourtPennsylvania Court of Common Pleas, Lycoming County
DecidedSeptember 16, 2014
DocketNo. CR-330-2014
StatusPublished

This text of 40 Pa. D. & C.5th 546 (Commonwealth v. Caudell) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lycoming County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Caudell, 40 Pa. D. & C.5th 546 (Pa. Super. Ct. 2014).

Opinion

BUTTS, J.,

— On April 23, 2014, the Defendant filed a timely Omnibus Pretrial Motion.. A hearing on the motion was held on June 23, 2014.

I. Background

On February 23, 2014, the Lycoming County 911 Communications Center received a complaint that a juvenile pointed a gun at another and then went into the residence at 610 Penn Street, Williamsport, Pennsylvania. At 3:52 P.M., the Communications Center notified police of an incident involving a gun at 610 Penn Street. During the hearing on the Omnibus Pretrial Motion, Officer Joshua Bell of the Williamsport Bureau of Police testified that upon notification of the complaint, he and one or two other officers proceeded to 610 Penn Street, while another group of officers proceeded to the complainant’s location, which was also on Penn Street. While en route to 610 Penn Street, Bell was notified that the juvenile who allegedly pointed the gun was wearing an orange shirt and had cornrows. Bell testified that he arrived at 610 Penn Street between three and seven minutes after police were notified of the compliant. According to Communications Center’s call log, Bell arrived at 610 Penn Street at 3:55 P.M. Bell testified that the complainant was the person at whom the juvenile pointed the gun, but he also testified that he did not talk with the complainant and did not know whether the complainant was reliable.

[549]*549Upon arriving at 610 Penn Street, Bell went to the residence’s door, which was opened by a juvenile with an orange shirt and cornrows. Officers detained the juvenile on the porch of the residence. No gun was discovered on the juvenile. Eugene Caudell (defendant), who is the juvenile’s father, then came to the door. He was also removed from the residence and detained.

Bell testified that officers then went through the residence to look “for anybody else that might be in the residence.” Bell testified that the officers did this to make sure that “no one else was in there when officers are in there.” While going through the residence, officers noticed a strong odor of marijuana and several items of drug paraphernalia. They did not find anyone else in the residence. The officers exited the residence and applied for a warrant to search the residence for controlled substances and drug paraphernalia.

Although it is unclear exactly when, the juvenile told the officers that a gun was inside the residence in an entertainment center. On direct examination, Bell testified that he asked the juvenile about a gun before the officers entered the residence. On cross examination, Bell testified that he could not remember whether he asked about a gun before or after entering the residence. The juvenile testified that police asked him about a gun after they entered the residence. The juvenile also testified that he told the officers that the gun was a BB gun.

At 5:3 5 P.M., Magisterial District Judge Gary Whiteman (Whiteman) issued a warrant to search 610 Penn Street for controlled substances and drug paraphernalia. At [550]*5506:04 P.M., the officers executed the warrant. They found marijuana, drug paraphernalia, Ziploc bags, and an envelope containing cash and checks together totaling $409.75. A BB gun was found in an entertainment center.

The defendant was charged with Possession ofMarij uana with intent to deliver.1 In his Omnibus Pretrial Motion, the defendant argues that the evidence is insufficient to establish a prima facie case on the element of “intent to deliver.” The defendant also argues that the officers’ initial entry into 610 Penn Street and the search pursuant to the warrant violated the defendant’s rights under the fourth amendment to the United States Constitution and article I, Section 8 of the Pennsylvania Constitution. Specifically, the defendant argues that the initial entry was improper since the officers did not have a reasonable belief that there were occupants of the residence who posed a danger to the officers or others. The defendant argues that since the officers’ observations in the initial entry led to the warrant, the search pursuant to the warrant was also done in violation of the defendant’s constitutional rights. The defendant asks this court to exclude the evidence obtained during the initial entry and the search pursuant to the warrant since it was obtained in violation of the defendant’s rights.

During the hearing on the defendant’s omnibus pretrial motion, the Commonwealth argued that the initial entry did not violate the defendant’s rights because the officers did indeed have a reasonable belief that the residence [551]*551harbored an individual who posed a danger to the officers or others. The Commonwealth argued that this reasonable belief came from the facts that a gun was used by a suspect who entered a family residence that may have contained other people. Finally, the Commonwealth argued that even if the initial entry violated the defendant’s rights, the evidence obtained during the search pursuant to the warrant would have been inevitably discovered by police; therefore, the evidence should not be excluded.

II. Discussion

A. The Exigent Circumstances Exception to the Fourth Amendment Warrant Requirement

“The United States Supreme Court has recognized that there are ‘exigent circumstances’ which justify a warrantless search incident to an arrest.” Commonwealth v. Curry, 494 A.2d 1146, 1148 (Pa. Super. 1985). “Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the fourth amendment.” Commonwealth v. Roland, 637 A.2d 269, 270 (Pa. Super. 1994) (citing Payton v. New York, 445 U.S. 573, 583-90 (1980)). Among the factors to be considered [in determining the existence of exigent circumstances] 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 [552]*552if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night.

Commonwealth v. Wagner, 406 A.2d 1026, 1031 (Pa. Super. 1979). “Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling.” Roland, 637 A.2d at 271.

The exigencies of police during an arrest in a confined area give rise to a protective sweep. A protective sweep is “a quick and limited search incident to an arrest and conducted to protect the safety of police officers or others; it is narrowly confined to a cursory visual inspection of those places in which a person may be hiding.” Commonwealth v. Crouse, 729 A.2d 588, 592 (Pa. Super. 1999). In Maryland v. Buie2 the Supreme Court of the United States wrote the following:

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Bluebook (online)
40 Pa. D. & C.5th 546, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-caudell-pactcompllycomi-2014.