Com. v. Demshock

• Decision Date: 08 July 2004
• Citation: 854 A.2d 553
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joshua DEMSHOCK, Appellant.
• Court: Pennsylvania Superior Court

854 A.2d 553

COMMONWEALTH of Pennsylvania, Appellee v. Joshua DEMSHOCK, Appellant.

Superior Court of Pennsylvania.

Submitted November 19, 2003.

Filed July 8, 2004.

Tamara M. Cozzi, York, for appellant.

Sandra I. Thompson, Asst. Dist. Atty., York, for Com., appellee.

Before: TODD, BENDER and BECK, JJ.

BENDER, J.

¶ 1 This is an appeal from a judgment of sentence imposed upon Appellant after he was convicted of possession of marijuana and underage drinking. Appellant raises a single issue, did the suppression court err in denying Appellant's motion to suppress. We vacate and remand.

¶ 2 On March 29, 2002, at approximately 9:30 p.m., in response to complaints of automobile theft and vandalism in the vicinity of the Towne and Country Apartments in York Township, York County, Detective Donald E. Hopple of the York Area Regional Police Department was patrolling the apartments in an attempt to interdict any additional theft or vandalism of automobiles. As Detective Hopple proceeded down a walkway between two apartment buildings he observed, through an approximately one-foot opening in a vertical blind housed inside a sliding glass door, individuals that he believed to be teenagers consuming beer. Spurred by this observation, Detective Hopple called for additional police officers, some of whom were positioned at the rear of the apartment upon arriving. N.T. Suppression Hearing, 2/24/2003, at 6.¹

¶ 3 As soon as back-up was in place, Detective Hopple, who had been joined by Officers Steven Sanders and William Thoman at the door to the apartment, knocked on the door while covering the peephole. In response to the knock, one of the occupants asked "who was there" from behind the door. Detective Hopple replied, "[h]ey man, it is me." Id. at 10. The person behind the door, Richard Stough, opened the door part way and peered out. After seeing the police officers the young man backed away from the door after which the officers proceeded through the doorway, pushing the door open as they entered the apartment. Id. at 13, 15. According to the police officers, an odor of burnt marijuana was clearly detectable after the door was opened.

¶ 4 Once inside the apartment, the officers were able to observe marijuana on a coffee table in plain view which was then seized. Detective Hopple and Officer Sanders began taking identification information from the teenagers. In response to observing the marijuana on the table, Officer Thoman told the teenagers that if anyone had marijuana on them, they might as well place it on the table. Id. at 8. In response to this comment, Appellant, who had a bag of marijuana in his pocket, reached into his pocket and threw the bag on the table. Id.

¶ 5 Appellant was arrested and charged with possession of marijuana and underage drinking. Prior to trial, Appellant filed a motion to suppress, which was heard on February 24, 2003. Appellant's motion was denied, following which Appellant waived his right to a jury trial and the case was submitted to the trial court based upon the testimony taken at the suppression hearing. Appellant was found guilty of the two offenses and was immediately sentenced to a fine of $100.00 on the underage drinking charge and to a period of thirty days reporting probation on the marijuana possession charge. This timely appeal followed.

¶ 6 Without question, the reported decision most relevant to the instant case, and the decision that most influences our decision today, is Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269 (1994). In Roland, police officers responded to a call of an assault upon a nineteen year-old male. The teen was bleeding about the head when police officers arrived. The teen told the police that he had been assaulted while at a party at Roland's home and that there was underage drinking and marijuana use at the party. The police proceeded to the apartment and knocked on the door. When the door was opened, the police observed several minors in close proximity to open cans of beer which the teens then attempted to shield from view. Believing that they had seen evidence of underage drinking, the police officers entered the apartment and conducted a search. In addition to numerous beer cans, police found marijuana. Roland was then placed under arrest after which he admitted that he furnished alcohol to minors. Prior to trial, Roland filed a motion to suppress which was denied. Upon conviction, Roland took an appeal, which led to an affirmance in this Court. However, upon further appeal, the Supreme Court reversed.

¶ 7 In overturning our decision, the Court first recited the applicable law:

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 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.

Accord Commonwealth v. Williams, 483 Pa. 293, 298-99, 396 A.2d 1177, 1179-80 (1978), cert. denied, 446 U.S. 912, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980). 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. See Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 1690, 109 L.Ed.2d 85, 95 (1990). Nevertheless, "police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Welsh v. Wisconsin, 466 U.S. 740, 749-50, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732, 743 (1984).

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).

Roland, 637 A.2d at 270-71. The Court then applied the law to the facts of the case and stated:

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).

Id. at 271.

¶ 8 Of course, a quick review of the above paragraph reveals that all of these comments are similarly applicable to the present case. The police were not in hot pursuit of a fleeing felon, there was no indication that anyone was in danger, including the police or the partygoers, there was no reason to believe that the occupants of the apartment were armed, and the entry occurred at night. Thus, one might conclude, Roland compels us to vacate Appellant's judgment of sentence. The Commonwealth suggests otherwise.

¶ 9 In attempting to distinguish Roland, the Commonwealth states that although the police knocked on the door to question occupants about underage drinking, the actual entry into the apartment was prompted by the need to prevent the destruction of drug evidence as opposed to evidence of alcohol use found in Roland. Commonwealth's Brief at 11. This is a position echoed by the suppression court. However, this position appears to strike a neutral observer as retroactive justification as there is a complete lack of support on the record for this proposition.

¶ 10 Although given ample opportunity to offer such testimony, Detective Hopple never testified that the purpose of knocking at the door was to merely inquire about underage drinking and that the decision to enter the premises without a warrant was made only upon the smelling of marijuana. Moreover, Detective Hopple's actions belie this interpretation of the events. Rather than knock on the door and announce their presence, Detective Hopple covered the peephole on the door so that the occupants could not determine their identity. Then Detective Hopple engaged in a subterfuge to get the occupants to open the door. The obvious, and seemingly only, purpose of these actions was to, in effect, catch the teens "red handed." Of course, doing so would require an entry into the premises, an action which, in fact, occurred immediately upon the door's opening. Indeed, there is no indication in the record that a period of hesitation or reflection took place after the door was opened before the police entered the premises.

¶ 11 The Commonwealth's and suppression court's premise is further belied by Detective Hopple's calling...