J-A12028-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, 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-46-CR-0000958-2012

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 evidence 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. Furthermore, 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.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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In addition to the authority cited by the learned Majority, 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 

police 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. Super. 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).
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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).
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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 whether 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 review 

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 must be measured. (See Majority, at 11-18). DUI may be an 

____________________________________________

2 The “Roland” factors are taken from Commonwealth 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 caselaw sometimes refers to the review of the 

Roland factors as “Dorman analysis.” See Pennsylvania Criminal 

Procedure, Elements, Analysis & Application, Bruce A. Antkowiak, editor, 3rd

Ed., at 182 n.88. 
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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 reweigh 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 impermissible 
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attempt 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]ere, 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, 2007, 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 prosecution 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. Suppression 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 that 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 facts 
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might have made a more compelling 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 factor), 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 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). 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).
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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 

their 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 collisions, 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 operation. 

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 police 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 had 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 items. (See N.T. Suppression Hearing, at 31; see also Order Sur: 

Motion to Suppress, Findings of Fact, at 4-5). 
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ongoing investigation of the unresolved multiple hit-and-run accidents and 

Appellant’s flight, but also because of the subsequent discovery, during the 

course of the ongoing hit-and-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 Christopher 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.
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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 behind 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 toilet 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). 
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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 Majority 

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 court’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 police 
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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 caselaw, 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 937, 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 evidence 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)).

Lee, 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 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 
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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 example 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 reasonable 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 hot 

pursuit, emergency situation, incident to lawful arrest and stop 

and frisk. 

Holzer, supra at 106 (emphases added) (one footnote and citations 

omitted). 
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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 record 

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) provides 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 neighboring Royersford police force, where the hitand-runs occurred. 
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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 

quotation 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 

“hot 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 thus 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. The 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 limit on hot pursuit. To the 
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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 (thirty 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 

from 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 members 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 ascending steps of trailer reasonably believed that defendant might 

destroy drugs inside trailer, or otherwise act to frustrate police 

investigation). 
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It is the Commonwealth’s burden to prove that the search and seizure 

is valid. See id. Nevertheless, Appellant’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 show 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, 579 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 specific 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 argument 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, 263 A.2d 761 

(Pa. Super. 1970) (en banc), a per curiam affirmance of judgment of 
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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 twentyfive feet from the appellant’s lawn were not within the curtilage. See

Robbins, supra at 761-62. Appellant baldly posits that because his twofoot 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 Majority, 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 necessary 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 case law extends the protections of the home to the 

curtilage. It does not extend greater protection to the curtilage. 
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“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.” 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 the 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 seized 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 sought 
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and obtained a warrant. The evidence obtained on the execution of the 

search warrant was not tainted. See Commonwealth 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 seized 

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 correctly 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, it 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.