J-A02027-19

2019 PA Super 115

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY MARTIN DUKE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1293 MDA 2018

Appeal from the Judgment of Sentence November 22, 2016

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0007563-2015

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

OPINION BY DUBOW, J.: FILED APRIL 12, 2019

Appellant, Timothy Martin Duke, appeals from the Judgment of 

Sentence entered in the York County Court of Common Pleas on November 

22, 2016. He challenges the trial court’s denial of his Suppression Motion, 

averring that the search of his garage was an illegal warrantless search and 

any evidence obtained thereafter was “fruit of the poisonous tree.” After 

careful review, we agree. We, thus, vacate Appellant’s Judgment of Sentence.

The facts and procedural history are as follows. On October 23, 2015, 

Pennsylvania State Troopers Joshua Koach, Kyle Yeager, and Alan Krall went 

to Appellant’s home at 4724 Glatfelter Road in Seven Valleys, York County, in 
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an effort to locate Appellant’s son, Brandon.

1

 The troopers did not have a 

warrant to search Appellant’s property.2 

Appellant was standing at the end of his driveway holding his small dog 

when the troopers arrived. Appellant informed the troopers that Brandon was 

incarcerated in Lancaster County Prison and, thus, not on the premises.3 N.T. 

Suppression, 6/29/16, at 12-13.

Trooper Krall then asked Appellant for permission to look through 

Appellant’s house to confirm that Brandon was not there. Id. at 13, 28, 51. 

Appellant denied Trooper Krall’s request to search. Appellant, who was 

holding his dog, then retreated up his driveway toward his garage. Id. at 29, 

51, 55. 

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1 The troopers were acting at the behest of troopers from the Lancaster County 

barracks who earlier that day had attempted to execute a New York stateissued arrest warrant for Brandon at an address in Lancaster County. While 

at the address listed on the New York state warrant as Brandon’s last known 

address, the troopers received a tip that Brandon resided with Appellant in 

York County. Troopers Koach, Yeager, and Krall proceeded to Appellant’s 

residence in search of Brandon, without a copy of the New York-issued arrest 

warrant or any other warrant.

2 See Trial Ct. Op., 2/23/17, at 5 (discussing the Commonwealth’s stipulation 

at Appellant’s non-jury trial that “the[ troopers] would have testified that they 

had made a warrantless entry into the attached garage[.]”).

3 Brandon had been incarcerated in Lancaster County Prison since September 

11, 2015, where he was serving a six-month sentence. The troopers did not 

make any effort to verify Appellant’s report that Brandon was incarcerated

until after they returned to the station. N.T. Suppression at 14, 27-28, 50.
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Notwithstanding Appellant’s denial of consent to the troopers’ request 

to search, Troopers Koach and Yeager followed Appellant up his driveway 

towards his attached two-car garage. Appellant did not make any threats or 

move towards the troopers, and the troopers did not instruct Appellant to stop 

walking towards the garage. Id. at 30-31.4 

Still without Appellant’s consent to be on his property, the troopers went 

further onto Appellant’s property, following him while he walked towards his 

garage. The troopers then observed inside the garage a compound bow and 

arrow, a crossbow, and a long gun or rifle. They also smelled marijuana. Id.

at 14-15, 31-32. The troopers then entered the garage, again without 

Appellant’s consent, and found five or six marijuana plants drying in 

Appellant’s garage. Id. at 15-16, 35-36.

Based on this discovery, the troopers arrested Appellant. They 

subsequently obtained a search warrant for Appellant’s home and found 

additional marijuana plants. The Commonwealth charged Appellant with one 

count of Manufacturing with Intent to Deliver, 35 P.S. § 780-113(a)(30).

On January 15, 2016, Appellant filed an Omnibus Pretrial Motion seeking 

to suppress physical evidence that the state troopers obtained from 

Appellant’s property and statements that Appellant made to the troopers. 

Appellant argued that the troopers conducted an illegal warrantless search of 

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4 The garage door on the right side was closed and on the left side was open.
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Appellant’s garage and that the evidence they collected was the result of that 

illegal search. Appellant also sought the suppression of any statements he 

made to police prior to the issuance of Miranda5 warnings. 

On June 29, 2016, the trial court held a hearing on Appellant’s Motion 

to Suppress. Troopers Koach and Yeager testified on behalf of the 

Commonwealth. They testified that they suspected that Appellant had lied 

about Brandon not being inside and had followed Appellant up his driveway 

because they were unsure of his intentions and wanted to make sure he did 

not go for a weapon. Id. at 15, 30, 32, 52. Trooper Koach also testified that 

Appellant “indicated there is no way we are getting to his house.” Id. at 29. 

Trooper Koach also admitted that it was possible that Appellant had asked the 

troopers to leave his property. Id. 

Appellant testified on his own behalf and offered the testimony of 

Trooper Krall. The trial court credited the testimony of the Troopers Koach 

and Yeager over Appellant’s, and denied Appellant’s Motion that same day. 

Relevantly, the trial court concluded that exigent circumstances, namely 

“officer safety,” justified the troopers’ warrantless incursion into Appellant’s 

garage. Trial Ct. Op., 2/23/17, at 5.

On November 22, 2016, Appellant proceeded to a stipulated non-jury 

trial and the court found him guilty of the above offense. The court 

immediately sentenced Appellant to a term of 3 years’ probation. 

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5 Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant did not file a Post-Sentence Motion, but did timely appeal. On 

October 24, 2017, this Court affirmed Appellant’s Judgment of Sentence. See 

Commonwealth v. Timothy Martin Duke, No. 2093 MDA 2016 (Pa. Super. 

filed Oct. 24, 2017) (unpublished memorandum). Following its review, 

however, the Pennsylvania Supreme Court vacated this Court’s decision and 

remanded to the trial court for reconsideration in light of the Supreme Court’s 

decision in Commonwealth v. Romero, 183 A.3d 364 (Pa. 2018) (plurality).

6

Pursuant to the Supreme Court’s directive, the trial court ordered the 

parties to brief the issues raised in Appellant’s Motion to Suppress in light of 

the Romero decision. On July 16, 2018, both Appellant and the 

Commonwealth complied with the court’s Order.

Following its consideration of the parties’ arguments and the holding in 

Romero, on July 17, 2018, the trial court again denied Appellant’s Motion to 

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6

In Romero, the Pennsylvania Supreme Court considered whether an arrest 

warrant alone provides the necessary Fourth Amendment protection to permit 

an officer to enter a residence of a third-party to effectuate an arrest. It held 

that “[i]f entry into a residence is necessary to search for [an individual named 

on an arrest warrant], then the warrant must reflect a magisterial 

determination of probable cause to search that residence, regardless of 

whether the warrant is styled as an ‘arrest warrant’ or a ‘search warrant.’” 

Romero, 183 A.3d at 403. The lead Opinion “determined that the proper 

standard for determining whether a suspect lives at a particular residence 

could not be anything less than probable cause.” Commonwealth v. Boyd 

Chisholm, 198 A.3d 407, 414 (Pa. Super. 2018) (citing Romero, 183 A.3d 

at 394). In sum, Romero held that “police officers may enter the home of 

the subject of an arrest warrant to effectuate the arrest, but they must obtain 

a valid search warrant before entering the home of a third party.” Romero, 

183 A.3d at 389. 
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Suppress. The trial court concluded that “because [it] found that [t]roopers 

entered [Appellant’s] garage for officer safety concerns as opposed to 

specifically searching for the target of the arrest warrant in [Appellant’s] 

garage, Romero does not apply to this matter.”

7 Trial Ct. Op., 9/4/18, at 12. 

Appellant timely filed the instant appeal. Both Appellant and the trial 

court complied with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Whether the searches and seizures conducted by the [t]roopers

on Appellant’s property without valid search warrants violated the 

Fourth Amendment and Article I, Section 8 of the Pennsylvania 

Constitution.

Appellant’s Brief at 4.

Appellant challenges the trial court’s denial of his Motion to Suppress. 

We review the suppression court’s denial of a motion to suppress to determine 

whether the record supports the court’s factual findings and whether the legal 

conclusions drawn from those facts are correct. Commonwealth v. 

Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations omitted). In 

conducting this review, we consider “only the evidence of the prosecution and 

so much of the evidence of the defense as remains uncontradicted when read 

in the context of the record as a whole.” Id. We are bound by the facts as 

found by the suppression court, so long as they are supported by the record. 

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7 Given that the parties do not dispute that troopers in the instant case 

conducted the search of Appellant’s garage without a valid search warrant, 

and that the troopers did not have an arrest warrant for Brandon when they 

arrived on Appellant’s property, we agree with the trial court’s conclusion that 

the holding in Romero is inapplicable herein.
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Id. We “may reverse only if the legal conclusions drawn therefrom are in 

error.” Id.

“It is within the suppression court’s sole province as factfinder to pass 

on the credibility of witnesses and the weight to be given to their testimony. 

The suppression court is free to believe all, some or none of the evidence 

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823 

A.2d 180, 183 (Pa. Super. 2003) (citation omitted).

“Both the Fourth Amendment of the United States Constitution and 

Article 1, Section 8 of the Pennsylvania Constitution guarantee individuals 

freedom from unreasonable searches and seizures.” Commonwealth v. 

Bostick, 958 A.2d 543, 550 (Pa. Super. 2008) (citation and internal quotation 

marks omitted). “[W]arrantless searches and seizures are . . . unreasonable 

per se, unless conducted pursuant to a specifically established and welldelineated exception to the warrant requirement.” Id. at 556. 

One exception to the warrant requirement is when probable cause and 

exigent circumstances are present. “Absent probable cause and exigent 

circumstances, warrantless searches and seizures in a private home violate 

both the Fourth Amendment [of the United States Constitution] and Article 

1[,] § 8 of the Pennsylvania Constitution.” Commonwealth v. Bowmaster, 

101 A.3d 789, 792 (Pa. Super. 2014) (citing Commonwealth v. Lopez, 609 

A.2d 177, 178-179 (Pa.1992)). 

There are a number of factors to consider when determining whether 

exigent circumstances exist, including “danger to police or other persons 
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inside or outside the dwelling.”8 Commonwealth v. Lee, 972 A.2d 1, 3-4

(Pa. Super. 2009) (citation omitted). Our Supreme Court has equated the 

term “exigent circumstances” with “urgent need” to underscore the “heavy 

burden” on the Commonwealth to prove that prompt police action was 

imperative. Commonwealth v. Williams, 396 A.2d 1177, 1179 (Pa. 1979).

The Commonwealth must show by clear and convincing evidence that the 

circumstances surrounding the opportunity to search were truly exigent. Lee,

supra at 4. “Whether exigent circumstances exist depends on an examination 

of all of the surrounding circumstances in a particular case.” Commonwealth 

v. Flowers, 735 A.2d 115, 119 (Pa. Super. 1999) (citation and internal 

quotation marks omitted).

Additionally, “police cannot rely upon exigent circumstances to justify a 

warrantless entry where the exigency derives from their own actions.” 

Commonwealth v. Demshock, 854 A.2d 553, 557 (Pa. Super. 2004).

In considering Appellant’s issue, the suppression court found as follows:

In the driveway of the residence, Trooper Yeager and Trooper 

Koach spoke with the Appellant and told him they were serving an 

arrest warrant, and the Appellant told them that the subject of the 

arrest warrant was his son, who was incarcerated at that time. 

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8 Factors a court commonly considers in determining whether exigent 

circumstances exist 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 a 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 

entry[.] Commonwealth v. Lee, 972 A.2d 1, 3-4 (Pa. Super. 2009) (quoting 

Commonwealth v. Roland, 637 A.2d 26, 270-71 (Pa. 1994).
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According to Trooper Koach, Trooper Krall then asked the 

Appellant about looking through the house to see if the subject 

was there, and Appellant did not want them near the house.

Then, Appellant began walking away toward his two-car garage, 

which was attached to the residence. One of the two garage doors 

was open. They followed Appellant as he walked back to the 

garage because his demeanor suggested someone was 

inside the house, because they did not know his intentions 

or if he was violent, and because they wanted to make sure 

that he did not go for a weapon. While all of the officers were 

on the driveway, Troopers Koach and Yeager saw a compound 

bow and arrow, a crossbow, and a long gun or rifle in the garage 

since the garage door was open. As they got closer to the garage, 

the officers smelled marijuana. When Appellant was halfway 

inside the garage, Trooper Koach told Appellant to stop and not to 

move toward the gun.

Trial Ct. Op., 9/14/18, at 3-4 (emphasis added). 

The trial court further noted that “[t]he officers were aware that 

[Appellant] had a compound bow and arrow, a crossbow, and a long gun or 

rifle in the garage because the garage door was open.” Id. The court credited

the troopers’ testimony, concluding that they followed Appellant when he 

began walking towards his garage because “they were concerned that 

[Appellant] was going for the weapons.” Id. Thus, the suppression court 

concluded that the circumstances of Appellant’s retreat toward his garage 

gave rise to the troopers’ fear for their safety, and justified the warrantless 

search of Appellant’s garage. Id. at 11. 

Following our review of the record, we conclude that the trial court’s 

factual findings, as set forth above, are supported by the record. We, further 

conclude, however, that the trial court erred in its application of those facts to 
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the law because the “exigent circumstances” were not based on facts from 

which to infer that Appellant intended to harm the troopers. 

The testimony at the suppression hearing established that after 

Appellant denied the troopers consent to search his premises, he began to 

walk up his driveway to his garage. Appellant was holding his small dog and

did not threaten the troopers, retreat in haste, or make any movement 

towards the troopers. The troopers followed Appellant merely because they 

“did not know his intentions or if he was violent, and because they wanted to 

make sure that he did not go for a weapon.” Trial Ct. Op., 9/14/18, at 3-4.

We start our analysis with the proposition that once Appellant denied 

the troopers his consent to search his property, by remaining on and searching 

his property, the troopers were violating Appellant’s Fourth Amendment 

rights. Bowmaster, 101 A.3d at 792. Since the troopers did not have a 

search warrant, they could only remain on and search Appellant’s property if 

there were exigent circumstances. Id. In this case, the trial court concluded 

that the troopers had the right to remain on and search Appellant’s property 

because of the exigency of officer safety. We disagree.

The trial court’s conclusion that the troopers faced the exigency of officer 

safety assumes that, because the troopers did not know Appellant’s intentions 

or if he were violent, Appellant intended to harm them. Thus, the court 

concluded that Appellant created an exigency that permitted the troopers to 

remain on Appellant’s property. This lack of knowledge of Appellant’s 

intentions, however, without more, is insufficient to create an exigency that 
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Appellant intended to harm the troopers. The troopers must observe some 

conduct or action on the part of Appellant from which they could reasonably

infer that Appellant intended to harm them. There is no such conduct or action 

in this case.

Additionally, the undisputed facts lead to a contrary result. After 

Appellant told the troopers to leave his property, Appellant walked away. It 

is not reasonable to infer from Appellant’s retreat that Appellant was intending 

to harm the troopers. 

The trial court’s other basis for finding exigency was the troopers’ desire 

to ensure that Appellant did not go for a weapon. This reasoning is similarly 

flawed. It assumes that because Appellant did not have a weapon, Appellant 

was retreating to obtain one. The problem, however, with this analysis, is 

that the troopers had no basis upon which to make this assumption. Appellant 

simply retreated from the troopers, carrying a small dog. He did not act in 

any manner from which it was reasonable for the troopers to assume that 

Appellant was walking away from the troopers to obtain a weapon and 

threaten their safety.

In sum, the trial court erred because there were no facts to support an 

inference that Appellant challenged the troopers’ safety and, thus, no exigency 

that permitted the troopers to remain, and, in fact, encroach further onto

Appellant’s premises after he told them to leave. Thus, the troopers violated 

Appellant’s Fourth Amendment rights once they failed to leave Appellant’s 
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premises after he told them to leave. Any evidence obtained after Appellant 

instructed the troopers to leave his premises must, therefore, be suppressed. 

Order reversed. Judgment of Sentence vacated.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/12/2019