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NON - PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 COMMONWEALTH OF PENN SYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. JOSHUA PAUL WHITTAKER, Appellant No. 1763 EDA 2013 Appeal from the Judgment of Sentence June 5 , 2013 in the Court of Common Pleas of Montgomery County Criminal Division at No.: CP

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BEFORE: SHOGAN, J., STABILE, J., and PLATT, J. * DISSENTING MEMORANDUM BY PLATT, J.: FILED OCTOBER 29, 2014 I respectfully dissent. I conclude from the record that under our standard of review the trial court properly decided in the totality of circumstances to deny the motion to suppress e vidence obtained on execution of a night time search warrant. In my view, the challenged preliminary “searches,” (more precisely, warrantless entries before the night search warrant was issued and executed), were justified by exigent circumstances. Furth ermore, because there was no illegal search, there is no antecedent illegality requiring application of the “fruit of an illegal search” exclusion. I would affirm the trial court’s denial of suppression.

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* Retired Senior Judge assigned to the Superior Court.J

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In addition to the authority cited by the learned M ajority, I note the following applicable legal principles:

[O]nly in exigent circumstances will the judgment of the police as to probable cause serve as a sufficient authorization for a warrantless search. * * * Exigent circumstances may excuse an otherwise unconstitutional search. [ Commonwealth v. ] Wright , [742 A.2d 661, 664 (Pa. 1999). In determining whether exigent circumstances exist, one factor the court may consider is whether there is “a likelihood that evidence will be destroyed if poli ce take the time to obtain a warrant. . . .” Commonwealth v. Roland

, 535 Pa. 595, 637 A.2d 269, 271 (1994) (citations omitted). Commonwealth v. Wright , 961 A.2d 119, 137

- 38 (Pa. 2008) (some citations omitted) (concluding trial court did not err in holding exigent circumstances justified seizure of evidence without warrant; trial court properly denied appellant’s suppression motion). Also,

It is well established that “[a]bsent probable cause and exigent circumstances, warrantless searches and seizures in a private home violate both the Fourth Amendment and Article 1, [Section] 8 of the Pennsylvania Constitution.” Commonwealth v. Gibbs

, 981 A.2d 274, 279 (Pa. Sup er. 2009). Our courts have extended this constitutional protection to the curtilage of a person’s home by analyzing “factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private.” Id . at 279. “Curtilage is entitled to constitutional protection from unreasonable searches and seizures as a place where the occupants have a reasonable expectation of privacy that society is prepared to accept.” Commonwealth v. Fickes , 969 A.2d 1251, 1256 (Pa. Super. 2009).J

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Commonwealth v. Simmen , 58 A.3d 811, 815 (Pa. Super. 2012). Furthermore, It is within the suppression court’s sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony. Moreover, with respect to our scope of review on suppression issues, our Supreme Court has held: “it is appropriate to consider all of the testimony, not just the testimony presented at the suppression hearing, in determining whether evidence was properly admitted.” Commonwealth v. Chacko , 500 Pa. 571, 459 A.2d 311, 318 n.5 (1983) (emphasis in original); see also Commonwealth v. Charleston , 16 A.3d 505, 516

– 518 (Pa. Super. 2011) (collecting cases and explaining Chacko ). Commonwealth v. Clemens , 66 A.3d 373, 378 (Pa . Super. 2013) (one citation and some quotation marks omitted). Preliminarily, here, the learned Majority’s analysis concedes that the police had probable cause. 1 ( See Majority, at *13) ( e.g. , “Sergeant [Robert J.] Matalavage had probable cause . . . .” and further “[b]ecause probable cause alone cannot suffice . . . .”). ( See also Majority, at *19 n.9) (“even though [the] police officers had probable cause . . .”). Therefore, the sole issue remaining for review of Appellant’s challenge to the denial of suppression is the existence of exigent circumstances. To the extent

____________________________________________ 1 Nevertheless, it bears noting that “[p]robable cause justifying a warrantless arrest is determined by the totality of the circumstances

. . . . Furthermore, probable cause does not involve certainties, but rather the factual and practical considerations of everyday life on which reasonable and prudent persons act.” Commonwealth v. Simmen , 58 A.3d 811, 817 (Pa. Super. 2012) (emphasis added) (citation omitted).J

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possible, I limit my discussion to that issue. See Commonwealth v. Lee , 972 A.2d 1, 3 (Pa. Super. 2009). The learned Majority enumerates the factors to be considered in determining whe ther exigent circumstances exist, citing Roland , supra . ( See Majority, at *12, 13). 2 For this determination, our Court has observed that “[a]n analysis of these factors requires an examination of all of the surrounding circumstances in a particular case. These circumstances will vary from case to case and the inherent necessities of the situation at the time must be scrutinized .” Fickes , supra at 1255 (emphases added) (citation omitted). In my view, the Majority misapplies our standard and scope of re view by its side

- by

- side comparison of factors from other cases, as if the factors from those other cases, like evidence of driving under the influence (DUI), vel non , constitute a per se checklist against which the denial of suppression in this appeal mus t be measured. ( See Majority, at 11

- 18). DUI may be an

____________________________________________ 2 The “ Roland ” factors are taken from Comm onwealth v. Wagner , 406 A.2d 1026, 1031 (Pa. 1979), which derived them from Commonwealth v. Williams , 396 A.2d 1177, 1179

- 80 (Pa. 1978). Williams borrowed the seven considerations from Dorman v. United States , 435 F.2d 385, 392 (C.A. D.C. 1970). Our case law sometimes refers to the review of the Roland factors as “ Dorman analysis.” See Pennsylvania Criminal Procedure, Elements, Analysis & Application, Bruce A. Antkowiak, editor, 3 rd Ed., at 182 n.88.J

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example of exigent circumstances. It is not the sine qua non of exigent
circumstances. To the contrary, on appellate review, as recognized in principle by the learned Majority, we must accept all the findings of fact made by the trial court which are supported by the record. ( See Majority, at *7

- 8), (citing Commonwealth v. Berkheimer , 57 A.3d 171, 177 (Pa. Super. 2012) (“Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.”)); see also Fickes , supra at 1255 (requiring “an examination of all of the surrounding circumstances in a particular case.”) (emphasis added) ( citation omitted). We may not re

weigh the evidence considered by the suppression court. See Clemens , supra at 378. However, disregarding these requirements, the Majority concludes that even “[t]hough the driver of the Subaru hit several parked cars, no evidence of record exists─and the trial court did not find─that the driver left a ‘trail of destruction’ on the roadway like the defendant in Fickes .” (Majority, at 17). Here, in my view, the Majority seeks, by an adverse comparison with the metaphor borrowed from Fickes , to re
- characterize the findings of the trial court. This checklist comparison approach disregards the “all of the surrounding circumstances” requirement in favor of an impermissibleJ

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a ttempt to re
- weigh the evidence. It is also unsupported by the record or controlling authority (or the facts in Fickes ). The Majority also misapprehends the underlying facts on which it bases its analysis. For example, the Majority maintains that “[h]e re, like
Lee and unlike Fickes , police officers were investigating a hit and run.” (Majority, at *17) (emphasis added); ( see also id. , at 13

- 19). However, after the introductory paragraph Fickes plainly states: “In the early morning hours of August 20, 2 007, Officer Gary Ross received a dispatch call to respond to a hit and run accident.” Fickes , supra at 1253 (emphasis added). Furthermore, “[i]n so doing [reviewing the findings of the suppression court], we may consider only the evidence of the prosec ution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole.” Berkheimer , supra (citation and internal quotation marks omitted). Here, Appellant presented no evidence. ( See N.T. Suppressi on Hearing, 7/03/12, at 43). Therefore, there is no additional evidence to consider and the evidence of the Commonwealth, read in the context of the record as a whole, stands uncontradicted. From my independent review of this case, I would conclude tha t the findings of the suppression court are amply supported by the record. Accordingly, this Court is not at liberty to re

- weigh the evidence or disturb the suppression court’s ruling on the implicit supposition that other factsJ

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might have made a more com pelling case of exigent circumstances for the Majority. Similarly, I conclude that the Majority misapprehends the scope and application of our standard of review, e.g. , in its determination that the gravity of the offense was low (the “first” Roland fact or), because the police were only investigating a report of property damage from a hit

- and

- run accident. ( See Majority, at 15). In this context, it bears repeating that “[a]n analysis of these factors requires an examination of all of the surrounding cir cumstances in a particular case. These circumstances will vary from case to case and the inherent necessities of the situation at the time must be scrutinized .” Fickes , supra at 1255 (emphases added) (citation omitted). See , e.g. , Commonwealth v. Dommel , 885 A.2d 998, 1004

- 1005 (Pa. Super. 2005), appeal denied , 920 A.2d 831 (Pa. 2007) (reversing suppression; even though appellant not charged with violent offenses, his actions in hit

- and

- run incident indicated either callous disregard of, or inability to regard at all, both violent automobile collision which he caused and subsequent official commands to stop. Though appellant was neither wanted for a felony nor believed to be armed, there was nevertheless reason under these facts to consider him either chemically impaired or highly unpredictable and perhaps dangerous; actions thus warranted immediate pursuit).J

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Here, the police were faced not merely with a case of property damage (the dimensions of which it was impossible to determine before completing th eir investigation), but a missing hit

- and run driver, (unlike Lee , supra at 2, where the appellant’s wife told the police he was asleep in their house), who could have been driving under the influence, who might have been injured from the multiple collisio ns, who might have been hiding with an intent to escape into the darkness, even the possibility that there were other passengers (who also might have been injured in the multiple collisions), and last but not least, direct evidence of a marijuana growing o peration. Therefore, this case differs factually in many respects from Lee

. Even more importantly, the learned Majority overlooks or ignores that there is no indication in Lee that the police sought a search warrant. Here, it is undisputed that the pol ice obtained a search warrant and did not seize any evidence until the search warrant was executed . ( See N.T. Suppression Hearing, at 13, 31). 3 I believe the learned Majority also errs by overlooking the complexity of the dual investigation the police h ad to undertake that evening. Exigent circumstance existed under the “ Roland factors” not only because of the

____________________________________________ 3 On execution of the warrant, police discovered and seized a large amount of marijuana inside the toilet bowl, packaging equipment, a scale commonly used to weigh narcotics, cash in excess of $4,000, several books on growing marijuana, two long guns (a .22 and a 30

- 36), a Tec

- 9 9 mm pistol, and related ite ms. ( See N.T. Suppression Hearing, at 31; see also Order Sur: Motion to Suppress, Findings of Fact, at 4

- 5).J

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ongoing investigation of the unresolved multiple hit

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- run accidents and Appellant’s flight, but also because of the subsequent discovery, duri ng the course of the ongoing hit

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- run investigation, of the evidence of a marijuana growing operation in plain view. In the same vein, I respectfully disagree with the Majority’s apparent lack of regard for the possibility of personal injury as a result of the motor vehicle accidents. That there was “no evidence that anyone was injured” is not, and should not be, dispositive. (Majority, at *19). The more appropriate inquiry is whether, given the limited information available to the police at that point in time, it was reasonable for them to consider that someone might have been injured, and possibly required emergency attention. Officer Christoph er Wienczek, as well as Sergeant Matalavage, so testified: “[B]ased on the amount of damage that was left at the scene, I didn’t know if the driver was injured or not.” (N.T. Suppression Hearing, 7/03/12, at 14; see also id. at 18, 28, 39). Furthermore, because the striking vehicle was not registered to Appellant, there remained the open possibility that the vehicle was stolen. ( See N.T. Suppression Hearing, at 42). The trial court was entitled to consider all this testimonial evidence under the totality of the circumstances test. We may not re

- weigh the evidence considered by the suppression court. See Clemens , supra at 378.J

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An additional consideration supporting a finding of exigent circumstances is that, until Appellant reappeared, it was reasonable for the police to suppose that he might have been hiding, in the house or in the backyard, and consequently, in the darkness, there was the risk of escape. See Roland , supra at 270

- 71 (the fifth “ Roland factor”). Similarly, when Appellant entered his house, flouting the explicit instructions of the police (who were properly trying to secure the premises in expectation of the search warrant), locked the front door be hind him, and barricaded himself in the bathroom behind another locked door, it was imperative that the police take prompt action to avoid the possible destruction of evidence, (an additional “ Roland factor”), which, in the event, is exactly what Appellant tried to do. ( See N.T. Suppression Hearing, 7/03/12, at 10

- 11, 31). Appellant refused police orders to come out of the bathroom. 4 ( See id. , at 10). On execution of the search warrant, police found and recovered a large amount of marijuana inside the t oilet bowl. 5 ( See id. , at 31). This was not a mere likelihood that evidence would be destroyed without immediate police action. Although probable cause is not

____________________________________________ 4 The police had to knock the door down and “tase” Appellant to subdue him. ( See Order, Findings of Fact, at 4, ¶ 15; see also Stipulations, supra at 1).

5 Police found a half pound of marijuana in the toilet. ( See Stipulations, supra at 2).J

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to be measured by the result, in this case it is a fact that the likelihood turned out to be a certainty. To summarize my analysis of the Dorman or Roland factors, the first factor, gravity of the offense, is satisfied both by the reasonable apprehension of possible injury as well as discovery of evidence of the growth and production of marijuana, an even more serious offense than the hi

- and

- run incidents; the second factor, suspect reasonably believed to be armed, does not appear to be satisfied, even though on execution of the warrant numerous firearms were found in Appellant’s house. The Majorit y concedes the third factor, probable cause. With the striking vehicle parked in Appellant’s driveway, there was some reason to believe that the suspect was within the premises being entered, the fourth factor. As to the fifth factor, there was a strong likelihood of escape in the darkness; on the sixth factor, the first entry was peaceable. As to the seventh factor, whether entry was made at night, it was. Of the “additional” Roland factors, I would note that the record abundantly supports the trial c ourt’s finding that the police were concerned that Appellant might try to destroy evidence. ( See Order, 8/23/12, Findings of Fact, at 3, 4). And, given Appellant’s unpredictable behavior, the record supports that there was some danger to police or other persons inside or outside the dwelling. ( See id. at 4 ¶ 15) (Appellant resisted entry by policeJ

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and had to be subdued by Taser before he was arrested and removed); see also Roland , supra at 271. Balancing these factors against one another, as our casela w, including Roland itself, requires, I would conclude that the pre

- warrant intrusions made by the police were more than amply justified by exigent
circumstances. I would note specifically that the Majority misapprehends the standard for hot pursuit and erroneously concludes there was none. ( See Majority, at
14

- 15, 17

- 18). I respectfully disagree. The Majority relies on Commonwealth v. Lee , 972 A.2d 1, at 5 (Pa. Super. 2009), which, as the Majority notes, was quoting Commonwealth v. Rispo , 487 A.2d 9 37, at 939 (Pa. Super. 1985): In significant contrast, “hot pursuit of a fleeing felon” sufficient to create exigent circumstances for constitutional purposes requires a showing that “the need for prompt police action is imperative, either because the ev idence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger. . . .” Rispo , 487 A.2d at 939 (quoting Commonwealth v. Holzer , 480 Pa. 93, 102, 389 A.2d 101, 106 (1978)).
Le e , supra at 5. Rispo , in turn, states: However, warrantless searches and seizures are excused where exigent circumstances exist

. Commonwealth v. Montgomery , supra at 376, 371 A.2d at 888. Such circumstances arise “where the need for prompt police acti on is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself fromJ

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danger to his person by checking for concealed weapons.” Commonwealth v. Holzer , supra , 480 Pa. [93] at 102, 389 A.2d [101] at 106 [(Pa. 1978)]; Commonwealth v. Hinkson , supra , 315 Pa. Superior Ct. at 27, 461 A.2d at 618. Rispo , supra at 939

- 40 (emphases added). Therefore, it is apparent that the Lee Court mis

- read prior authority’s explication of exigent circumstances to be the definition, or the equivalent, of hot pursuit . They are two separate, albeit related, concepts. 6 As the enumeration in the footnote establishes beyond dispute, the Holzer Court treated hot pursuit as one ex ample of exigent circumstances, not as its equivalent, much less its definition. The Majority’s misreading and

____________________________________________ 6 Any doubt of this misunderstanding is resolved by reference to Holzer , which, in pertinent part, provides:

The warrant requirement, however, is excused where exigent circumstances exist. Exceptions arise where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation , or because the officer must protect himself from danger to his person by checking for concealed weapons. N.5 Exceptions also arise where the warrantless search or seizure by a police officer does not amount to a significant invasion of a defendant’s rea sonable expectations of privacy. These exceptions reflect practical compromises between the interests of the state in effective law enforcement and the privacy interests of its citizens.

_____________ FN5. Recognized exceptions in this category include h ot pursuit , emergency situation, incident to lawful arrest and stop and frisk. Holzer , supra at 106 (emphases added) (one footnote and citations omitted).J

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reliance on Lee perpetuates this misinterpretation. Exigent circumstances are not limited to hot pursuit. In any event, my review of the recor d confirms that the police here were in hot pursuit and had exigent
circumstances. The concepts of hot pursuit and fresh pursuit frequently arise in the context of the Statewide Municipal Police Jurisdiction Act (MPJA), 42 Pa.C.S.A. §§ 8951

– 8954. 7 See , e.g. , Commonwealth v. Reigel , 75 A.3d 1284 (Pa. Super. 2013) (holding police officer, acting within his primary jurisdiction, is authorized to issue citation for summary offense committed in another jurisdiction). Specifically, sub

- section 8953(a)(2) prov ides that :

Where the officer is in hot pursuit of any person for any offense which was committed, or which he has probable cause to believe was committed, within his primary jurisdiction and for which offense the officer continues in fresh pursuit of the person after the commission of the offense. 42 Pa.C.S.A. § 8953(a)(2). Construing the hot and fresh pursuit requirements of section 8953(a)(2), this Court has explained that: “[H]ot pursuit” requires some sort of chase, but does not require a “fender

- smashing Hollywood

- style chase scene” nor “police observation of the criminal activity.” Furthermore, pursuit of a suspect may constitute a chase when it is based on witness information as to the location of the suspect. And “fresh pursuit” requires that it be immediate, continuous and uninterrupted.

____________________________________________ 7 I observe that in this case the actions of the Limerick police were undertaken to assist the n eighboring Royersford police force, where the hit

and

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Commonwealth v. Peters , 915 A.2d 1213, 1219 (Pa. Super. 2007), affirmed , 965 A.2d 222, 225 (Pa. 2009) (citation and some internal quotat ion marks omitted). In its affirmance, our Supreme Court further explained: While Section 8953(a)(2) requires both “hot pursuit” and “fresh pursuit” to fulfill the exception to the MPJA, the statute does not include definitions for either form of pursuit

. However, the Superior Court has defined “hot pursuit” and “fresh pursuit” under Section 8953 and has consistently applied its interpretation of each. Here, the panel ably set forth what is necessary to comply with Section 8953(a)(2). We agree that “ho t pursuit” and “fresh pursuit” require some sort of investigation and tracking of the perpetrator and that that pursuit be immediate, continuous and uninterrupted. The facts here support the panel’s application of these standards to the instant case and t hus confirm its sound findings and conclusion.
Peters , 965 A.2d at 225 (footnote omitted). Here, similarly, my review of the record confirms that the pursuit of Appellant on receipt of the radio dispatch was immediate, continuous, and uninterrupted. Th e record leaves no doubt that the police were in hot and fresh pursuit. The Majority’s citation in support of its contrary conclusion is
to Lee . ( See Majority, at 14

- 15). For the reasons already noted, I find that authority unpersuasive. Additionally , the Majority’s unsupported conclusion that the passage of twenty
- to twenty five minutes from the original radio dispatch obviates hot pursuit is unsupported by controlling authority and erroneous. ( See Majority, at *17

- 18). There is no arbitrary time l imit on hot pursuit. To theJ

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contrary, our Supreme Court and this Court have repeatedly found hot pursuit despite longer time frames than occurred here. See , e.g. , Peters , supra at 225 (approving approximately one hour pursuit); Fickes , supra at 1253 (thi rty seven minutes); Commonwealth v. Brown , 444 A.2d 149, 153 (Pa. Super. 1982) (thirty minutes). Finally, I would note that the learned Majority’s discussion of curtilage does not provide an alternative ground of relief for Appellant. ( See Majority,
at *9

- 11). In determining what constitutes “curtilage,” we consider “factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. Curtilage is entitled to constitutional protection fr om unreasonable searches and seizures as a place where the occupants have a reasonable expectation of privacy that society is prepared to accept.” Simmen , 58 A.3d at 815. See Gibbs , (holding that front porch did not constitute “curtilage” where there was no front yard or other enclosed space preceding or surrounding the porch, the porch abutted the sidewalk, there was no gate blocking entry to the porch and nothing else that would indicate that it was closed to membe rs of the general public). Johnson , 68 A.3d 930, 936 (Pa. Super. 2013) (emphasis in original) (concluding exigent circumstances justified police officers’ warrantless entry into defendant’s trailer; officers who detected odor of burning marijuana when asc ending steps of trailer reasonably believed that defendant might destroy drugs inside trailer, or otherwise act to frustrate police investigation).J

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It is the Commonwealth’s burden to prove that the search and seizure is valid. See id. Nevertheless, App ellant’s mere invocation of curtilage does not end the Fourth Amendment (or Pennsylvania constitutional) inquiry. ( See Appellant’s Brief, at 9

- 10).

To prevail successfully on a claim of governmental invasion of privacy, [a]ppellee is required first to s how that a subjective expectation of privacy exists as to the area being searched. An expectation of privacy is present when the individual, by his conduct, exhibits an actual (subjective) expectation of privacy and that the subjective expectation is one that society is prepared to recognize as reasonable. The controlling consideration is whether the individual contesting the search and seizure entertains a legitimate expectation of privacy in the premises or area searched. Commonwealth v. Oglialoro , 5 79 A.2d 1288, 1290

- 91 (Pa. 1990) (citations and internal quotation marks omitted); see also Johnson , supra at 936; Simmen , supra at 815. Here, aside from citing cases for general principles, Appellant fails to develop an argument in support of his specif ic claim, or to support it with citation to pertinent authority. As already noted, he presented no evidence at the suppression hearing. No new evidence, except for the stipulations, was introduced at the stipulated trial. On appeal, he offers no argumen t in support of a reasonable expectation of privacy: no gate, no fence, no “No Trespassing” sign, nor anything else, except to declare that there is “no doubt” to his claim. (Appellant’s Brief, at 10). Instead, Appellant cites Commonwealth v. Robbins , 2 63 A.2d 761 (Pa. Super. 1970) ( en banc ), a per curiam affirmance of judgment ofJ

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sentence. ( See Appellant’s Brief, at 10). In Robbins , Judge Hoffman, concurring , suggests that marijuana plants found in a wooded area twenty

five feet from the appellant’s l awn were not within the curtilage. See Robbins , supra at 761

- 62. Appellant baldly posits that because his two

foot marijuana plant and 400 watt light bulbs were right outside his back door, his case is “unlike in Robbins [.]” (Appellant’s Brief, at 10). I find this argument undeveloped, without citation to pertinent authority. Accordingly, I would find Appellant’s curtilage argument waived. I note that the Majority offers an intermittent, and sometimes confusing, discussion of curtilage. ( See Majori ty, at 9

- 11, 13, 14 n.6). In any event, it is not the role of this Court to develop arguments for a litigant. “It would be improper for this Court to act as counsel for a party. That is, we must not write a party’s brief and develop the analysis necessa ry to support the party’s position.” Johnson , supra at 936. Even assuming for the sake of argument that Appellant’s two foot marijuana plant was within the curtilage of his home, the question still remains whether the police had exigent circumstances to enter the area behind his house. Just as the existence of probable cause and exigent circumstances may excuse an otherwise unconstitutional search of a private home, they may excuse a search of the curtilage. See Wright , supra at 137

- 38. Controlling ca se law extends the protections of the home to the curtilage. It does not extend greater protection to the curtilage.J

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“Curtilage is entitled to constitutional protection from unreasonable searches and seizures as a place where the occupants have a reason able expectation of privacy that society is prepared to accept.” Simmen , supra at 815 (Pa. Super. 2012), (quoting Fickes , supra at 1256); see also Oglialoro , supra at 1290

- 91 (claimant required to show subjective expectation of privacy as to area searched ). Here, Appellant failed to develop a cognizable claim of reasonable expectation of privacy. The Majority’s somewhat discursive analysis fails to refute that the discovery of the two foot marijuana plant and high wattage cultivation lamps even if found in the curtilage, was justified by exigent
circumstances. Because the Majority erroneously concludes that there were no exigent circumstances to enter Appellant’s property, it also errs in its conclusion that evidence subsequently seized on execution of t he search warrant “should have been suppressed as the fruits of an illegal search.” ( See Majority, at *20). In support, the Majority cites Commonwealth v. Johnson , 86 A.3d 182, 187 (Pa. 2014) (holding trial court properly suppressed physical evidence sei zed by police incident to arrest based solely on invalid, expired arrest warrant). The facts of Johnson are inapposite. This is not a question of a defective warrant. Johnson plainly does not apply. Here, there were no fruits of an illegal search. The police had exigent circumstances to enter Appellant’s property (and curtilage). They soughtJ

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and obtained a warrant. The evidence obtained on the execution of the search warrant was not tainted. See C ommonwealth v. Jackson , 62 A.3d 433, 440 (Pa. Super. 2013) (holding observations of officers lawfully present in appellant’s home when they observed controlled substances in plain view supported issuance of search warrant for appellant’s premises; items se ized were legally obtained and admissible as evidence against appellant). 8 The police were in hot pursuit, had exigent circumstances to enter, and properly obtained a search warrant before they seized any materials previously viewed. The trial court cor rectly denied suppression. Accordingly, I respectfully dissent.

____________________________________________ 8 As previously noted, I have limited my discussion to the issue of exigent circumstances. Because I conclude that the police had exigent circumstances to enter Appellant’s property, i t is not necessary to address whether the evidence seized was also admissible under the plain view doctrine, or under the inevitable discovery rule. Additionally, I would remand to the trial court, as it requested, for re

- sentencing. I join the Majority in its conclusion that the Rule 600 claim is not reviewable on the present state of the record.