J. A34007/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. : No. 596 MDA 2014

:

DANIEL F. LOUGHNANE :

Appeal from the Order Entered March 17, 2014,

in the Court of Common Pleas of Luzerne County

Criminal Division at No. CP-40-CR-0000046-2013

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 21, 2018

This case comes before us on remand from the Supreme Court of 

Pennsylvania for further consideration consistent with its opinion. See 

Commonwealth v. Loughnane, 173 A.3d 733, 746 (Pa. 2017). 

Specifically, our supreme court directed us to determine whether exigent 

circumstances existed, permitting the police to enter Daniel F. Loughnane’s 

(hereinafter, “appellee”) driveway and seize his Ford F-350 pickup truck

without a warrant. Upon careful review, we affirm the suppression court’s 

order as it pertains to the suppression of any evidence obtained from 

appellee’s truck.1

 

1 Upon our initial review, we also considered whether the suppression court 

erred when it excluded testimony pertaining to security tapes and still 

photographs and whether the suppression court abused its discretion when it 

suppressed the audio recording of John Schenk, III’s 911 call. 
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As we noted in our initial opinion, the applicable standard of review is 

well settled. 

When the Commonwealth appeals from a 

suppression order, we follow a clearly defined 

standard of review and consider only the evidence

from the defendant’s witnesses together with the 

evidence of the prosecution that, when read in the 

context of the entire record, remains uncontradicted. 

The suppression court’s conclusions of law, however, 

are not binding on an appellate court, whose duty is 

to determine if the suppression court properly 

applied the law to the facts. 

Commonwealth v. Miller, 56 A.3d 1276, 1278-1279 (Pa.Super. 2012) 

(citations omitted), quoted by Loughnane, 128 A.3d at 812.

Both the United States Constitution and the 

Pennsylvania Constitution guarantee that individuals 

shall not be subject to unreasonable searches or 

seizures.

The right of the people to be secure in 

their persons, houses, papers, and 

effects, against unreasonable searches 

and seizures, shall not be violated, and 

no Warrants shall issue, but upon 

probable cause, supported by Oath or 

affirmation, and particularly describing 

the place to be searched, and the 

persons or things to be seized.

U.S. Const. amend. IV.

The people shall be secure in their 

persons, houses, papers and possessions 

from unreasonable searches and 

 

Commonwealth v. Loughnane, 128 A.3d 806, 812 (Pa.Super. 2015). Our 

supreme court denied allocatur as to these issues. Commonwealth v. 

Loughnane, 158 A.3d 1224 (Pa. 2016). 
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seizures, and no warrant to search any 

place or to seize any person or things 

shall issue without describing them as 

nearly as may be, nor without probable 

cause, supported by oath or affirmation 

subscribed to by the affiant.

Pa. Const. Art. I, § 8. A search or seizure conducted 

without a warrant is, under the Fourth Amendment 

and Article I, Section 8, presumed to be 

unreasonable. Commonwealth v. McCree, 924 

A.2d 621, 627 (Pa. 2007) (citations omitted).

Evidence obtained as a result of an unlawful search 

is subject to the fruit of the poisonous tree doctrine. 

The United States Supreme Court has stated that 

any material, tangible, or verbal evidence “obtained 

either during or as a direct result of an unlawful 

invasion” is inadmissible at trial. Wong Sun v. 

United States, 371 U.S. 471, 485 (1963).

Our supreme court further stated:

We need not hold that all evidence is 

“fruit of the poisonous tree” simply 

because it would not have come to light 

but for the illegal actions of the police. 

Rather, the more apt question in such a 

case is “whether, granting establishment 

of the primary illegality, the evidence to 

which instant objection is made has been 

come at by exploitation of that illegality 

or instead by means sufficiently 

distinguishable to be purged of the 

primary taint.”

Commonwealth v. Cunningham, 370 A.2d 1172, 

1176-1177 (Pa. 1977), quoting Wong Sun, 371 U.S. 

at 487-488.

Pennsylvania courts have recognized that the 

protections afforded to individuals under both the 

Fourth Amendment and Article I, Section 8 are 

applicable to the curtilage of a person's home. 
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Commonwealth v. Bowmaster, 101 A.3d 789, 792 

(Pa.Super.2014) (citations omitted). This court 

defined the curtilage of the home as places “where 

the occupants have a reasonable expectation of 

privacy that society is prepared to accept.” Id. citing 

Commonwealth v. Johnson, 68 A.3d 930, 935 n. 3 

(Pa.Super. 2013) (citations omitted).

Loughnane, 128 A.3d at 815-816.

In 2014, our supreme court adopted the federal automobile exception 

in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). The federal 

automobile exception permitted the police to conduct a warrantless search 

on a vehicle upon the establishment of probable cause; however, it was no 

longer necessary to demonstrate exigent circumstances “beyond the mere 

mobility of the vehicle.” Id. at 138.

In the instant case, our supreme court held that the federal 

automobile exception did not apply to appellee’s truck when it was parked 

on his private residential driveway, as the driveway constituted curtilage. 

See Loughnane, 173 A.3d at 745. In light of our supreme court’s holding, 

the Commonwealth must demonstrate both probable cause and exigent 

circumstances beyond the mere mobility of the vehicle in order to seize a 

vehicle from an individual’s private driveway without a warrant. Accordingly, 

we must now determine whether the Commonwealth demonstrated exigent 

circumstances beyond the mere mobility of appellee’s truck.

When determining whether exigent circumstances exist, several 

factors must be considered, including “a likelihood that evidence will be 
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destroyed if police take the time to obtain a warrant.” Commonwealth v. 

Lee, 972 A.2d 1, 4 (Pa.Super. 2009), quoting Commonwealth v. Roland, 

637 A.2d 269, 270-271 (Pa. 1994). “Moreover, this Court has observed 

that, ‘the Commonwealth must present clear and convincing evidence that 

the circumstances surrounding the opportunity to search were truly exigent, 

[] and that the exigency was in no way attributable to the decision by police 

to forego seeking a warrant.’” Id., quoting Commonwealth v. Rispo, 487 

A.2d 937, 940 (Pa.Super. 1985).

The Commonwealth argues that the following exigent circumstances 

justified seizing appellee’s truck without a warrant: 

[not knowing] the whereabouts of [appellee;] not 

getting cooperation from [appellee’s] family, friends 

and employers about his whereabouts; [the police] 

had been made aware that a spare set of the keys 

were in the toolbox of the vehicle readily available to 

anyone who decided to remove it; [and the police] 

did not have additional law enforcement available to 

sit on the vehicle and was concerned that evidence 

on the vehicle may be compromised by the weather.

Commonwealth’s brief at 21.

A reading of the suppression hearing testimony belies the 

Commonwealth’s assertion of exigent circumstances. Wilkes-Barre City 

Police Department Detective David Sobocinski testified that he received a 

phone call notifying him of the presence of the truck in appellee’s driveway 

on the afternoon of August 8, 2012. (Notes of testimony, 2/18/14 at 169.) 

Detective Sobocinski further testified that he was not able to simultaneously 
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secure the truck and obtain a search warrant, as the process of obtaining a 

warrant would take approximately 2-3 hours. (Id. at 169-170.) Due to rain 

in the forecast for the evening of August 8, 2012, Detective Sobocinski 

decided to seize the truck without a warrant and called the Wilkes-Barre city 

tower and directed him to tow the truck to the Wilkes-Barre city garage.

(Id. at 167-168; 171.) Detective Sobocinski testified that the truck was not 

actually seized until the early morning hours of August 9, 2012. (Id. at 

184-185; 199.)

Detective Sobocinski further testified that he originally requested a 

uniformed Wilkes-Barre police officer to “stand by,” but Detective Sobocinski 

failed to specifically ask for coverage for the purposes of securing the truck 

while a search warrant was obtained.

2

 (Id. at 175-176.) 

Detective Sobocinski also failed to ask the police officer sent by the 

neighboring Hanover Police Department to secure the truck while he 

obtained a search warrant. (Id. at 178.)

Based on the record before us, we find that the Commonwealth failed 

to establish clear and convincing evidence of exigent circumstances that 

would justify seizing appellee’s truck without a warrant. While 

Detective Sobocinski testified that the threat of rain in the weather forecast 

 

2 Detective Sobocinski testified that it is common practice for a detective in 

plain clothes to have a uniformed officer present to “stand by” to show a 

visible police presence and because “people feel more comfortable when a 

police car is there.” (Id. at 175.)
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for the evening of August 8, 20123 necessitated the truck to be seized 

without a warrant, the truck was not actually seized until the early morning 

hours of August 9, 2012. Such a delay in the seizure of the truck belies the 

Commonwealth’s argument that a search warrant could not be obtained in a 

timely manner because Detective Sobocinski testified that it would only take 

2-3 hours to obtain a warrant. The record establishes that 

Detective Sobocinski could have obtained a search warrant in the time 

between when he was notified of the truck’s location and the time the truck 

was actually seized. Additionally, we agree with the suppression court’s 

conclusion that Detective Sobocinski could have requested law enforcement 

assistance to secure the truck while he obtained a search warrant.

In our initial opinion, we remanded to the suppression court for a 

determination of whether the police established probable cause to seize 

appellee’s truck without a warrant. Loughnane, 128 A.3d at 817. Because 

we have determined that the Commonwealth failed to demonstrate that 

there were exigent circumstances that would justify seizing appellee’s truck 

without a warrant, this issue is now moot. 

We, however, also reversed the part of the suppression court’s order

in which the suppression court did not permit Peter Sladin, an employee of 

Legion Security monitoring the Hawkeye Camera Center on the night of the 

incident, to testify as to the place and time of a still photograph that Sladin 

 

3 The incident central to this case took place on July 24, 2012.
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took from video surveillance cameras4in the area of 199 Hazle Street in 

Wilkes-Barre, Pennsylvania. See id. at 809, 812. We held that Sladin 

would be able to authenticate the photograph pursuant to Pa.R.E. 901(b)(1) 

and (9), and that he should be permitted to testify. Id. at 814. We, 

therefore, vacate the suppression court’s March 17, 2014 order and remand 

for further proceedings consistent with this memorandum.

Order affirmed in part and reversed in part.5 Case remanded for 

further proceedings. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/21/2018

 

4 The Hawkeye camera system only preserves video footage for 10-14 days. 

At no point was the video intentionally erased or deleted. Id. at 810.

5 See id. at 814-815, 818.