J-A17028-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellant

v.

AUBREY DEVON SIMPSON,

Appellee No. 1799 EDA 2016

Appeal from the Order May 12, 2016

in the Court of Common Pleas of Montgomery County

Criminal Division at No.: CP-46-0007947-2014

BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 30, 2018

The Commonwealth appeals from the trial court’s order granting the 

motion to suppress of Appellee, Aubrey Devon Simpson. We reverse and 

remand.

The trial court aptly set forth the relevant facts and procedural history 

for our review in its August 22, 2016 opinion.

The facts of this case are largely undisputed. Officer David 

Chiofolo testified that at 2:53 p.m., on June 23, 2014, he received 

a call to respond to a private security alarm that was activated at 

7720B Lucretia Mott Way in Elkins Park, PA. When he arrived at 

the premises, which is a building consisting of four apartments, 

each with their own external entrance, no audible alarm was 

sounding.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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The officer knocked on the front door, and was greeted by a 

seven[-]year[-]old[-]girl. The officer described her as 

“hysterically crying.” He testified that “[s]he was in a state of 

panic. She was crying. She was hysterical. She was hard to 

understand. She was frightened.”

The officer questioned the child while she stood in the 

threshold. She stated that there was no one else in the apartment 

with her; that she had no idea how the alarm was activated; that 

her mother’s boyfriend had left her home alone approximately 

twenty minutes earlier, and she did not know where he had gone. 

The conversation lasted no longer than two minutes. The officer 

testified that he didn’t hear any noises coming from the apartment 

or see any activity inside.

Following this conversation, Officer [Jarreau] Francis arrived 

on the scene. Officer Chiofolo then proceeded to search every 

room in the apartment.[

1] The officer testified that his reasoning 

for the search was to make sure that there was no one in the 

apartment that needed medical attention, and to make sure that 

the child was not alone.

Officer [] Francis testified similarly. He did not converse with 

the child prior to the search. When asked whether there was a 

threat of physical harm to anyone inside of the apartment when 

they decided to conduct the search, Officer Chiofolo replied that it 

was “unknown.”

On April 27, 2016, [Appellee] moved for the suppression of 

physical evidence recovered from the search of her home. 

Following a hearing on May 12, 2016, [Appellee’s] motion was 

granted. The Commonwealth filed a notice of appeal on June 13, 

2016.[a] On June 14, 2016, th[e trial c]ourt entered an order for 

a concise statement of errors complained of on appeal to be filed 

within twenty-one days. [See] Pa.R.A.P. 1925[(b)]. The 

Commonwealth’s statement was filed on July 5, 2016. [See id. 

____________________________________________

1 While performing his visual sweep, Officer Chiofolo observed a Glock ninemillimeter handgun with a magazine, without a gunlock, in plain view. (See 

N.T. Hearing, 5/12/16, at 13-14, 18-19, 36). The firearm was fully loaded, 

with a round in the chamber. (See id. at 37-38). Ultimately, Appellee was 

charged with endangering the welfare of a child.
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The trial court filed an opinion on August 22, 2016. See Pa.R.A.P. 

1925(a).]

[a] The Commonwealth’s notice of appeal included a 

certification that the order which is under appeal will 

terminate or substantially handicap the prosecution 

pursuant to Pa.R.A.P. 311(d).

(Trial Court Opinion, 8/22/16, at 1-2) (some footnotes omitted).

The Commonwealth raises one question for our review: 

Whether the suppression court erred by concluding that the search 

of an apartment for any adult supervisor (an investigatory sweep) 

was unreasonable under the Fourth Amendment of the U.S. 

Constitution where officers responding to a security alarm found 

the exigencies of an unattended distraught young child, who was 

crying hysterically and unable to tell police the whereabouts of her 

adult supervision?

(Commonwealth’s Brief, at 5).

Our standard of review of this matter is well-settled.

When the Commonwealth appeals from a suppression order, 

we follow a clearly defined standard of review and consider only 

the evidence from the defendant’s witnesses together with the 

evidence of the prosecution that, when read in the context of the 

entire record, remains uncontradicted. The suppression court’s 

findings of fact bind an appellate court if the record supports those 

findings. The suppression court’s conclusions of law, however, are 

not binding on an appellate court, whose duty is to determine if 

the suppression court properly applied the law to the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278 (Pa. Super. 2012), appeal 

denied, 70 A.3d 810 (Pa. 2013) (citation omitted).

The Fourth Amendment to the United States Constitution and Article I, 

Section 8 of the Pennsylvania Constitution provide:

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 
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shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to 

be seized.

U.S. Constitution, Amend. IV.

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 Constitution Art. I, § 8.

The primary objective of the Fourth Amendment to the U.S. 

Constitution and Article I, Section 8 of the Pennsylvania 

Constitution is the protection of privacy. As a general rule, for a 

search to be reasonable under the Fourth Amendment or Article I, 

Section 8, police must obtain a warrant, supported by probable 

cause and issued by an independent judicial officer, prior to 

conducting the search. This general rule is subject to only a few 

delineated exceptions[.]

Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citations omitted).

In the recent case of Commonwealth v. Livingstone, ___ A.3d ___, 

2017 WL 5662399 (Pa. filed Nov. 27, 2017), the Pennsylvania Supreme Court 

considered the community caretaking exception to the warrant requirement. 

The Court observed:

The United States Supreme Court first recognized a community 

caretaking exception to the warrant requirement in Cady v. 

Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 

(1973). Therein, the Court considered whether police officers 

violated a vehicle owner’s Fourth Amendment rights when, 

without obtaining a warrant, they searched the trunk of a parked 

vehicle because they reasonably believed that the trunk contained 

a loaded service revolver that could endanger the public if left 

unsecured. The vehicle owner had been arrested one day earlier 
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for drunk driving and identified himself as a police officer. In 

determining that the search of the trunk was reasonable, the 

Court observed that police officers “frequently investigate vehicle 

accidents in which there is no claim of criminal liability and engage 

in what, for want of a better term, may be described as community 

caretaking functions, totally divorced from the detection, 

investigation, or acquisition of evidence relating to the violation of 

a criminal statute.” Id. at 441, 93 S.Ct. 2523. The high Court 

further opined that, “[t]he fact that the protection of the public 

might, in the abstract, have been accomplished by ‘less intrusive’

means does not, by itself, render the search unreasonable.” Id.

at 447, 93 S.Ct. 2523.

The community caretaking doctrine has been characterized 

as encompassing three specific exceptions: the emergency aid 

exception; the automobile impoundment/inventory exception; 

and the public servant exception, also sometimes referred to as 

the public safety exception. See State v. Acrey, 148 Wash.2d 

738, 64 P.3d 594, 600 (2003) (en banc) (community caretaking 

function exception to the warrant requirement encompasses not 

only search and seizure of automobiles, but also situations 

involving either emergency aid or routine checks on health and 

safety).

Each of the exceptions contemplates that the police officer’s 

actions be motivated by a desire to render aid or assistance, 

rather than the investigation of criminal activity.

* * *

This Court [] recognizes that the role of police is not limited 

to the detection, investigation, and prevention of criminal activity. 

Rather, police officers engage in a myriad of activities that ensure 

the safety and welfare of our Commonwealth’s citizens. Indeed, 

we want to encourage such laudable activity. However, even 

community caretaking activity must be performed in accordance 

with Fourth Amendment protections. Ultimately, we agree that 

the public servant exception may be employed consistent with 

these protections.

* * *

Specifically, we first hold that, in order for the public servant 

exception of the community caretaking doctrine to apply, police 
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officers must be able to point to specific, objective, and articulable 

facts that would reasonably suggest to an experienced officer that 

a citizen is in need of assistance. . . . . Second, we hold that, in 

order for the public servant exception of the community 

caretaking doctrine to apply, the police caretaking action must be 

independent from the detection, investigation, and acquisition of 

criminal evidence. As noted above, this is a common requirement 

to warrantless searches under all three exceptions of the 

community caretaking doctrine, including the emergency aid 

exception and the automobile impoundment/inventory 

exceptions. . . .

Livingstone, supra at *12-14, 19-20 (most citations omitted). 

In this case, police responded to the subject apartment because of a 

triggered security alarm. Upon arriving, they encountered a hysterical, 

panicked, unattended seven-year-old girl, who could not explain the activated 

alarm. Officer Chiofolo explained the officers’ decision to enter the apartment 

upon being confronted with this scenario:

The fear that [the child] was showing, the hystericalness 

(sic) that she was in, the crying. I wanted to make sure that her 

parents were not upstairs in the apartment and that there was no 

domestic involved, that nobody was hurt. I just wanted to make 

sure that she wasn’t by herself[,] that she was telling me the truth 

at that moment.

* * *

I didn’t know what was inside the apartment. It is not 

normal for a[] seven year old to be left by themselves. And she 

was so hysterical that I—in my mind, I believe maybe something 

transpired in the apartment.

* * *

I wanted to make sure that everybody was safe.

(Hearing, 5/12/16, at 11-12).
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Similarly, Officer Francis explained:

[Y]ou respond to an alarm and you have a young child crying at 

the front door. . . . [O]bviously there’s an unknown there. We 

have an alarm. We have a child. . . . We are talking about a young 

child by herself in an apartment. . . . So we are worried about 

maybe there was someone else in the apartment that was in 

danger or distress. So Officer Chiofolo checked not only to see if 

there’s anyone else that may need police assistance or medical 

assistance; but also for her safety and for our safety as well[.] . . 

.

(Id. at 32-35).

Based on the foregoing testimony, we conclude that the trial court erred 

in granting Appellee’s motion to suppress where the community caretaking 

exception to the warrant requirement applied to the officers’ actions in 

searching Appellee’s apartment. See Miller, supra at 1278. The record 

reflects that the “police officers [were] able to point to specific, objective, and 

articulable facts that would reasonably suggest to an experienced officer that 

a citizen is in need of assistance” where a hysterical, apparently 

unaccompanied seven-year-old child answered the door of an apartment 

where a security alarm had been activated. Livingstone, supra at *19 

(citation omitted). Additionally, “the police caretaking action [was] 

independent from the detection, investigation, and acquisition of criminal 

evidence.” Id. at *20. As both officers testified, they entered the apartment, 
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not to search for criminal evidence, but to ensure everyone was safe and that 

no one needed assistance.2

Accordingly, for the foregoing reasons, we are constrained to reverse 

the trial court’s order granting Appellee’s motion to suppress, and remand.

Order reversed. Case remanded. Jurisdiction relinquished.

____________________________________________

2 We also observe that the warrantless search was supported by the exigent 

circumstances exception.

The exigent circumstances exception to the warrant 

requirement recognizes that some situations present a compelling 

need for instant arrest, and that delay to seek a warrant will 

endanger life, limb[,] or overriding law enforcement interests. In 

these cases, our strong preference for use of a warrant must give 

way to an urgent need for immediate action.

Commonwealth v. Caple, 121 A.3d 511, 518 (Pa. Super. 2015) (citation 

omitted). 

The need to protect or preserve life or avoid serious injury is 

justification for what would be otherwise illegal absent an 

exigency or emergency. . . . [I]t would be silly to suggest that the 

police would commit a tort by entering . . . to determine whether 

violence (or threat of violence) has just occurred or is about to (or 

soon will) occur. . . .

Brigham City, Utah v. Stuart, 547 U.S. 398, 403-04 (2006) (citations and 

quotation marks omitted).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/18