J-A16023-16

*Retired Senior Judge assigned to the Superior Cour t. NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. VINCENT PAUL CHURCH, Appellant No. 1244 WDA 2015

Appeal from the Judgment of Sentence of July 14, 20 15 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0000465-2014
BEFORE: SHOGAN, OLSON and STRASSBURGER,* JJ. MEMORANDUM BY OLSON, J.: FILED AUGUST 24, 2016 Appellant, Vincent Paul Church, appeals from the j udgment of sentence entered on July 14, 2015. We affirm. The suppression court made the following factual f indings: Andrew Toth, a narcotics agent from the Office of t he Attorney General, testified that he, along with Rostraver an d Clairton police officers, were present at [Appellant’s] home [in] Belle Vernon, PA [on January 8, 2014]. The officers were armed with a search warrant but, prior to executing the warran t, observed the home for approximately three hours, or until 12 :14 p.m. when [Appellant] was seen leaving. The plan was to conduct surveillance and, when [Appellant] left his home, t o follow and stop him. Once [Appellant] was approximately one[-]half to on e mile from his home, a marked police car pulled him over. Pol ice did not have an arrest warrant nor was any traffic violatio n committed. In fact, when police hailed his vehicle, [Appellant ] pulled over immediately.J-A16023-16

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[Appellant] was informed that there was a search wa rrant for his residence and for this reason he was being detained . Prior to being placed in the police vehicle[,] he was handcu ffed and searched. The search revealed a snuff can located in his back pocket which was opened and found to contain [illeg al narcotics]. Once in transit to his home, and thereafter, [Appel lant] informed police that no one else was in the home and repeate dly requested that they use his key to open the door in order to avoid damaging it. Police then knocked and announc ed their identity, presence, and intent, waiting 45-60 secon ds before using the key and entering the premises. Once insi de, a search revealed narcotics in a white mug, [$3,000.00] in c ash, and a safe for which a second warrant was obtained. Agen t Toth stated that [Appellant] was arrested as a result of the items that were located during the search of the residence. Suppression Court Opinion, 2/18/2015, at 1-2 (inter nal citations omitted). The procedural history of this case is as follows. On February 13, 2014, the Commonwealth charged Appellant via crimin al information with possession of a controlled substance 1 and possession of a controlled substance with intent to deliver. 2 On May 21, 2014, Appellant filed an omnibus pre-trial motion which included a motion to suppress. A suppression hearing was held on September 30, 2014. On February 18, 2015, the suppression court entered findings of fact and conclusions of law and granted in part and deni ed in part Appellant’s motion to suppress. The suppression court granted the motion to suppress

____________________________________________ 1 35 P.S. § 780-113(a)(16).

2 35 P.S. § 780-113(a)(30).J-A16023-16

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in regards to evidence recovered from the illegal t raffic stop; however, it denied the motion to suppress in regards to evidenc e found in Appellant’s residence. Appellant filed a motion to reconsider, which was denied by the suppression court. Appellant proceeded with a stipulated bench trial o n July 14, 2015. The trial court found Appellant guilty of both offe nses and sentenced him to 9 to 18 months’ incarceration. This timely appeal followed. 3 Appellant presents two issues for our review: 1. Whether the police illegally executed the search warrant at the home of [A]ppellant [] in violation of Article I, § 8 of the Pennsylvania Constitution and Rule 207 of the Penns ylvania Rules of Criminal Procedure by the failure to compl y with the knock and announce rule? 2. Whether the police, by initially illegally arres ting and detaining [A]ppellant [] and seizing his house key during tha t illegal detention, and thereafter using the illegally seize d house key to gain entrance to his premises, illegally executed t he search warrant? Appellant’s Brief at 3. Our “standard of review in addressing a challenge t o the denial of a suppression motion is limited to determining whethe r the suppression court’s

____________________________________________ 3 On August 6, 2015, the trial court ordered Appella nt to file a concise statement of errors complained of on appeal (“conci se statement”). See Pa.R.A.P. 1925(b). On August 26, 2015, Appellant f iled his concise statement. On September 21, 2015, the trial court issued an order in lieu of an opinion referencing the suppression court’s find ings of fact and conclusions of law. Both of Appellant’s issues wer e included in his concise statement.J-A16023-16

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factual findings are supported by the record and wh ether the legal conclusions drawn from those facts are correct.” Commonwealth v. Garibay , 106 A.3d 136, 138 (Pa. Super. 2014), appeal denied , 123 A.3d 1060 (Pa. 2015) (citation omitted). “[O]ur scope o f review is limited to the factual findings and legal conclusions of the suppr ession court.” In re L.J. , 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted). “We may consider only the Commonwealth’s evidence and so much of the evid ence for the defense as remains uncontradicted when read in the context of the record as a whole.” Commonwealth v. Gary , 91 A.3d 102, 106 (Pa. 2014) (citation omitted). “Once a defendant files a motion to supp ress, the Commonwealth has the burden of proving that the evidence in ques tion was lawfully obtained without violating the defendant’s rights.” Commonwealth v. Fleet , 114 A.3d 840, 844 (Pa. Super. 2015) (citation omi tted). Appellant’s first claim asserts that the police ill egally executed the search warrant for Appellant’s home by failing to c omply with the knock and announce rule. That rule, however, does not apply in this case. Our Supreme Court recognizes four exceptions to the kno ck and announce rule: (1) the occupants remain silent after repeated knoc king and announcing; (2) the police are virtually certain th at the occupants of the premises already know their purpose; (3) the police have reason to believe that an announcement prior to ent ry will imperil their safety; and (4) the police have reason to bel ieve that evidence is about to be destroyed. Commonwealth v. Means , 614 A.2d 220, 222-223 (Pa. 1992). In order to invoke one of these exceptions, police officers mus t only possess reasonableJ-A16023-16

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suspicion that one of the exceptions is satisfied. Commonwealth v. Kane , 940 A.2d 483, 489 (Pa. Super. 2007), appeal denied , 951 A.2d 1161 & 951 A.2d 1163 (Pa. 2008). The Commonwealth argues that the second exception to the knock and announce rule applies in this case. We agree. Con trary to Appellant’s contention, see Appellant’s Brief at 19, this Court has held that police have no obligation to knock and announce when they reaso nably believe that the residence is unoccupied. See Commonwealth v. Baker , 522 A.2d 643, 646-647 (Pa. Super. 1987) (holding that when the ho use is unoccupied, the second Means exception applies). In addition to Appellant’s st atement to police that the residence was unoccupied, police in dependently acquired reasonable suspicion to believe that the residence was unoccupied. Officers surveilled Appellant’s residence for three hours pr ior to entering the residence. While doing so, they did not observe an yone, other than Appellant, enter or leave the residence. N.T., 8/2 9/2014, at 6, 14-15. Accordingly, Appellant is not entitled to relief on this issue. In his next issue, Appellant argues that the police illegally executed the search warrant by using his house key. Appella nt’s Brief at 29. Specifically, Appellant contends that the house key was illegally seized from him as a result of his unlawful detention. The sup pression court found, and the Commonwealth does not contest, that Appellant’s detention was unlawful. Suppression Court Opinion, 2/18/2015, at 4; Commonwealth’sJ-A16023-16

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Brief at 13. Appellant argues that consent during an unlawful detention is ipso facto involuntary. We find most of the cases cited by Appellant in hi s brief inapposite to the case at bar. In most of the cases cited by App ellant, police lacked an independent, legal justification to conduct the cha llenged search. Instead, in most of the cases cited by Appellant, the police on ly conducted the search because of the illegal detention. E.g., Commonwealth v. Acosta , 815 A.2d 1078 (Pa. Super. 2003) ( en banc ), appeal denied , 839 A.2d 350 (Pa. 2003); Commonwealth v. Key , 789 A.2d 282 (Pa. Super. 2001), appeal denied , 805 A.2d 521 (Pa. 2002). Here, the police had a valid search warrant authorizing entry into Appellant’s residenc e long before they detained him. Appellant argues that Commonwealth v. Melendez , 676 A.2d 226 (Pa. 1996), is “perhaps the most similar case to th e present” case. Appellant’s Brief at 35. Although there are some s imilarities between the

case s ub judice and Melendez , the factual differences between the two cases are legally significant. In Melendez , the police illegally stopped Melendez then transported Melendez back to her house, where they used her keys to gain entrance. . . . Police then secure d the house and its occupants and waited for communication as t o whether or not the search warrant had been approved. For approximately an hour, police waited at the scene w ith both occupants of the dwelling, but did not conduct a se arch. Finally, the warrant arrived and they searched the house, fi nding drugs,J-A16023-16

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cash[,] and other evidence which was used to obtain the convictions. Id. at 227. Our Supreme Court held that the drugs, cas h, and other evidence must be suppressed because they were the f ruits of an illegal search. Id. at 228-230. Key to this determination was the fac t that (1) Melendez did not voluntarily consent to police sear ching her residence and (2) “[g]overnment agents may not enter private dwe llings through the use of battering rams . . . or by effecting illegal sto ps and seizures as in this case, and secure the premises by detaining those wh o occupy the premises while police wait to learn whether their application for a warra nt has been approved. ” Id. at 231 (emphasis added). In this case, police did not search the residenc e based upon Appellant’s alleged consent like the police did in Melendez . Furthermore, in the case at bar, police already had a search warran t for the residence prior to illegally detaining Appellant. Police did not d etain Appellant and then wait for their search warrant application to be approved . This distinction is critical because in Melendez police had no idea whether their search warrant application would be approved. Thus, their use of the key to enter the residence prior to approval and issuance of the search warrant violated the occupants’ rights under the United States and P ennsylvania constitutions. In this case, police already had a search warrant in hand. Thus, they had the authority to enter Appellant’s r esidence whether they used the key, a battering ram, or some other method

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We find instructive our Supreme Court’s decision i n Commonwealth v. Carlton , 701 A.2d 143 (Pa. 1997), for two reasons. First, in Carlton our Supreme Court held that police are authorized to us e force when executing a search warrant if they possess reasonable suspicion that the residence is unoccupied. See id. at 147, citing Means , 614 A.2d 220. As noted above, police possessed reasonable suspicion that Appellan t’s residence was unoccupied and thus they had the authority to use f orce to enter the residence. One option for the use of force was a b attering ram; however, Appellant asked police not to use that option and t o instead use his key. The use of the key, as Appellant argues, was a use of force. Police chose to use the manner of force requested by Appellant. By granting Appellant’s request, the police merely chose the least destruct ive option to enter the residence. Thus, the police neither requested nor recovered Appellant’s key for purposes of securing his consent to search the home and seize contraband maintained therein. The use of Appellan t’s house key in this case was plainly practical, not evidentiary, as the suppression court correctly found. The remedy for evidence gathered during an illegal detention is suppression and he received that remedy in this cas e. Appellant’s effort to extend the remedy of suppression to preclude extra- judicial utility stretches our search and seizure jurisprudence too far. That leads to the second reason we find Carlton instructive. In Carlton , our Supreme Court emphasized that one of the key reasons for theJ-A16023-16

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knock and announce rule is to “prevent[] property d amage resulting from forced entry during the execution of a search warra nt.” Id. at 146, citing Commonwealth v. Crompton , 682 A.2d 286 (Pa. 1996). If we adopted the reasoning advanced by Appellant, we would evisc erate this purpose by holding that the police could have legally searched the residence if they used a battering ram but their use of Appellant’s key in validated the search. The knock and announce rule, and other United States an d Pennsylvania constitutional jurisprudence, is meant to protect t he privacy interests of citizens. We refuse to adopt a rule that not only encourages, but requires, that police destroy a citizen’s property in order t o prevent suppression of evidence gathered pursuant to a lawful search warra nt. Appellant’s unlawful detention did not go unaddres sed. The suppression court correctly suppressed all evidence seized from Appellant’s person. Furthermore, although the record is unclea r as to whether the key was subject to the suppression court’s suppression order, the Commonwealth did not offer the key into evidence. Thus, Appellant got the full benefit of the suppression court’s ruling. No thing gathered as a result of the illegal detention was used against him at trial . Police had the right to enter his home by virtue of the lawfully issued sea rch warrant. The mere fact that police used Appellant’s key to enter his residence does not require the suppression of the items found in the residence

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Appellant also relies on the Court of Appeals of Oh io’s decision in Ohio v. Thompson , 659 N.E.2d 1297 (Ohio Ct. App. 1995), appeal dismissed , 655 N.E.2d 738 (Ohio 1995), in support of his argum ent that using illegally seized keys to conduct a search requires suppressio n of any evidence found during that search. Contrary to Appellant’s argume nt, however, police did not have a search warrant for the vehicle they open ed with the illegally seized keys. Instead, the police relied upon the d efendant’s consent, which they received during the course of an illegal deten tion, to conduct the search of the vehicle. See Thompson , 659 N.E.2d at 1299. Therefore, Thompson is distinguishable from the case at bar for the sa me reasons that
Acosta , Key , and similar cases are distinguishable. The police in this case unlawfully detained Appella nt and the suppression court properly excluded evidence gather ed as a result of that illegal detention. Nevertheless, the suppression c ourt properly denied Appellant’s suppression motion as to evidence recov ered from a search conducted pursuant to a lawfully issued search warr ant. Accordingly, we affirm Appellant’s judgment of sentence. Judgment of sentence affirmed.J-A16023-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/24/2016