J-S02045-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANTHONY BELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3055 EDA 2016

Appeal from the Judgment of Sentence September 6, 2016

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0009324-2014

BEFORE: BOWES, J., NICHOLS, J., and RANSOM*, J.

CONCURRING MEMORANDUM BY RANSOM, J.: FILED JUNE 28, 2018

Although I agree with the majority that Appellant’s judgment of 

sentence should be affirmed, I disagree with the majority’s analysis in many 

respects. First, it is improper to reach the question of whether exigent 

circumstances existed without first establishing that a defendant had a 

reasonable expectation of privacy in the area being searched. Second, the 

question of whether this Appellant had a reasonable expectation of privacy in 

the location being searched – i.e., his unlocked, outdoor mailbox -- was 

repeatedly broached by the parties, and, thus, the majority’s failure to address 

it is in error. Third, I conclude that Appellant had no reasonable expectation 

of privacy in his unsecured, outdoor mailbox, and, thus, the question of 

whether law enforcement needed a warrant or an exception to the warrant 

requirement, such as exigent circumstances becomes moot. Finally, assuming 

(but not conceding) that Appellant did have a reasonable expectation of 
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privacy in his mailbox, the facts of this case do not constitute exigent 

circumstances.

Reasonable Expectation of Privacy Must Be Established Before 

Question of Exigent Circumstances Can be Considered

The constitutional protections against unreasonable searches and 

seizures extend to one’s person, house, writings, and effects and to those 

zones or areas in which a person has a reasonable or justified “expectation of 

privacy.” Commonwealth v. Viall, 890 A.2d 419, 421-23 (Pa. Super. 2005). 

If there is no reasonable expectation of privacy, then the search and seizure 

will not be deemed “unreasonable” and thus unconstitutional, even when 

probable cause is lacking or a warrant was not obtained. Commonwealth v. 

Edwards, 874 A.2d 1192, 1195 (Pa. Super. 2005).

As the Commonwealth itself suggested in its brief, Commonwealth’s 

Brief at 6-7, the question of whether exigent circumstances existed cannot be 

considered until after a reasonable expectation of has been established. 

Commonwealth v. Peterson, 636 A.2d 615, 618 (Pa. 1993).

The Parties Sufficiently Broached the Question of Whether Appellant 

Had a Reasonable Expectation of Privacy in His Unsecured, Outdoor 

Mailbox

While I agree with the majority that Commonwealth v. Enimpah, 106 

A.3d 695 (Pa. 2014), is controlling, I diverge from the majority in both its 

interpretation and application of this case. The majority states that “the 

Commonwealth generally bears the initial burden of placing at issue the 
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defendant’s lack of a reasonable expectation of privacy.” Majority Mem. at 1 

(citing Enimpah, 106 A.3d at 702).

However, according to Enimpah, 106 A.2d at 701, what the 

Commonwealth bears in the context of a motion to suppress evidence is the 

initial burden of production1 – i.e., the Commonwealth bears the initial 

burden of producing evidence of a defendant’s lack of a reasonable 

expectation of privacy – not of “plac[ing] Appellant’s expectation of privacy in 

the mailbox at issue.” Majority Mem. at 1.

The “court may, indeed, treat the defendant’s privacy interest as a 

‘threshold’ or ‘preliminary’ matter.” Enimpah, 106 A.2d at 701-02. “[I]f the 

evidence of the Commonwealth, the party with the burden of production, 

shows the defendant lacked such a privacy interest,” the Commonwealth 

“need prove no more.” Id. at 701-02. “As it relates to the parties’ 

presentation of evidence, our cases and the Rules of Criminal Procedure make 

clear that the Commonwealth has the burden of production, to give the court 

evidence allowing that conclusion.” Id. at 702.

Here, Appellant placed his reasonable expectation of privacy at issue 

during the suppression hearing in September 2016, when Defense Counsel 

stated: “[T]o me, the question is: Does a person have a reasonable 

expectation of privacy in their identifiable mailbox?” Notes of Testimony 

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1 This burden of production is distinct from the burden of persuasion.
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(N. T.), 9/6/16, at 38-39; see also id. at 5, 43-46 (discussion of reasonable 

expectation of privacy).

The Commonwealth was therefore compelled to present evidence in 

support of its position that Appellant’s constitutional rights were not violated.2 

See Enimpah, 106 A.3d at 703. Here, the evidence presented by the 

Commonwealth was that a police officer opened the lid of and looked inside 

an outdoor mailbox that had no lock, that was not otherwise secured, and that 

was labelled with the home address given to the officer by Appellant. N. T., 

9/6/16, at 9-14, 23, 25, 29, 31-33; Trial Court Opinion (TCO), 5/1/17, at 3.

As the Commonwealth produced some evidence of Appellant’s lack of a 

reasonable expectation of privacy, Enimpah, 106 A.3d at 701, our first 

consideration therefore must be whether the Commonwealth presented 

sufficient evidence to satisfy it burden of production to show that Appellant 

had no reasonable expectation of privacy in his mailbox, which was not locked 

and was easily subject to being opened by anyone who was interested in its 

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2 The Commonwealth renews the issue of Appellant’s reasonable expectation 

of privacy in its brief to this Court by asserting that Officer Jean’s “minimally 

invasive step” of “looking inside [Appellant]’s unlocked mailbox . . . did not 

infringe [Appellant’s] constitutional rights.” Commonwealth’s Brief at 6.

In the alternative, the Commonwealth argues that, “[t]o the extent the policy 

infringed any privacy interest defendant had in the unlocked mailbox, by doing 

no more than a postal officer would have done on a daily basis, the police 

reasonably sought . . . to protect the residents of the neighborhood by locating 

[Appellant]’s gun.” Id. at 6 & 7; see also id. at 11-12.
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contents.3 Id. at 702 (“in terms of the court’s review, it need go no further if 

it finds” no proof of “a reasonable expectation of privacy”).

Appellant Did Not Have a Reasonable Expectation of Privacy In His 

Unsecured, Outdoor Mailbox

I have uncovered no Pennsylvania case law on this issue. I thus believe 

that this appeal is a case of first impression for our Pennsylvania courts. 

However, the question of whether an individual has a reasonable expectation 

of privacy in his or her own mailbox has been considered by other jurisdictions. 

“Although we are not bound by those decisions,” “we may use decisions from 

other jurisdictions for guidance to the degree we find them useful and not 

incompatible with Pennsylvania law.” Newell v. Montana W., Inc., 154 A.3d 

819, 823 & n.6 (Pa. Super. 2017) (citation and internal quotation marks 

omitted). Upon my review, it is clear that a majority of jurisdictions that have 

considered this question have held that a person has no reasonable 

expectation of privacy in an unlocked, accessible mailbox. United States v. 

Stokes, 829 F.3d 47 (1st Cir. 2016); United States v. Hinton, 222 F.3d 664 

(9th Cir. 2000); United States v. Osunegbu, 822 F.2d 472 (5th Cir. 1987); 

United States v. Lewis, 738 F.2d 916 (8th Cir. 1984); State v. Champion, 

594 N.W.2d 526 (Minn. Ct. App. 1999); Gabriel v. State, 290 S.W.3d 426 

(Tex. Ct. App. 2009); see Parker v. State, 112 So.2d 493 (Ala. Ct. App. 

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3

I note that I would limit my analysis to outdoor, unlocked mailboxes. I would 

not extend my analysis to address whether a defendant would have a 

reasonable expectation of privacy in an indoor or locked mailbox.
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1959); contra People v. Lilly, 211 A.D.2d 428 (N.Y. App. Div. 1995); but 

see Commonwealth v. Garcia, 612 N.E.2d 674 (Mass. App. Ct. 1993).

The Minnesota Court of Appeals wrote in State v. Champion, 594 

N.W.2d 526, 529 (Minn. Ct. App. 1999), that “not only is it unreasonable for 

an occupant to expect protection of his or her mailbox from outside intrusion, 

but protection from such intrusion is also not a societal expectation.” The 

Minnesota Court of Appeals relied upon three federal statutes controlling the 

mail: 18 U.S.C. § 1701, prohibiting knowing or willful obstruction of the 

passage of mail; 18 U.S.C. § 1705, stating that any person who willfully or 

maliciously breaks open a mailbox or defaces or destroys any mail will be fined 

or imprisoned for not more than three years; and 18 U.S.C. § 1725, imposing 

a fine on any individual who deposits mailable matter into a mailbox with 

intent to avoid postage. Based upon these three statutes – but particularly 

Section 1701 – the Minnesota Court of Appeals observed that “it is a violation 

of federal law to obstruct the passage of mail by using a mailbox for purposes 

unrelated to the delivery of U.S. mail.” Champion, 594 N.W.2d at 529. The 

Minnesota Court of Appeals hence concluded that, since Champion knew that 

the mailbox would be accessed by government officials delivering mail but 

took no precaution to secure the mailbox when depositing contraband – in his 

case, drugs -- he had no reasonable expectation of privacy in the mailbox, 

and any search of the mailbox was proper. Id. at 530.

Analogously, here, Appellant knew that a mailbox could be accessed by 

government officials delivering mail but took no precaution to secure his 
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mailbox when he hid his firearm inside. Following the analysis of Champion, 

it is unreasonable for Appellant to expect protection of his mailbox from 

outside intrusion, he had no reasonable expectation of privacy in his mailbox, 

and the search of his mailbox was proper. Id. at 529-30.4

Turning to the federal courts, I note that, in United States v. Lewis, 

738 F.2d 916, 918-19 & n.2 (8th Cir. 1984), the Eighth Circuit considered 

whether the appellant, James Lewis, had a legitimate expectation of privacy 

in his unlocked mailbox that was accessible to the public after police had 

opened the mailbox without a warrant. After receiving a report that a credit 

card was being used fraudulently,

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4

In Parker v. State, 112 So.2d 493 (Ala. Ct. App. 1959), the appellant was 

accused of possessing prohibited liquors in a county where alcohol was 

prohibited. Specifically, a deputy found two pints of whiskey in the appellant’s 

mailbox. Id. at 494. The Court of Appeals of Alabama stated: “We do not 

consider the mailbox as being located within the curtilage” of the appellant’s 

“dwelling house.” Id. However, the appellant’s mailbox was located across a 

rural public road from his dwelling, not immediately in front of his home. Id. 

The Court of Appeals did not clarify whether it believed that a mailbox is never 

part of the curtilage of a house or if that appellant’s circumstances were 

distinct, due to the unusual location of his mailbox on the opposite side of a 

public road from his house. See id. at 493-94. If a mailbox were never 

curtilage, then its owner would not be entitled to constitutional protection from 

warrantless searches of it. See Commonwealth v. Brian Johnson, 68 A.3d 

930, 935 n.3 (Pa. Super. 2013) (“Our courts have extended the constitutional 

protection of the Fourth Amendment and Article 1, § 8 of the Pennsylvania 

Constitution to the curtilage of a person’s home.” (citation and internal 

brackets omitted)); Commonwealth v. Simmen, 58 A.3d 811, 815 (Pa. 

Super. 2012) (“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.” (citation 

omitted)).
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police discovered that some of the merchandise being purchased 

with this credit card was being delivered to a mailbox at 8342 

Swartz Road, Kansas City, Kansas. Detective William C. Moore of 

the Kansas City, Missouri Police Department drove there and 

found a mailbox mounted in a two-gallon can filed with concrete, 

lying on the ground in a ditch, and in a state of disrepair. . . . 

Detective Moore then peered into the box to attempt to determine 

when mail was being picked up. On October 29, 1981, he opened 

the mailbox and found a Jackson County property assessment bill 

addressed to a David E. Woods.

Id. at 918. Detective Moore returned the bill to the mailbox. Id. Police then 

commenced surveillance on the mailbox and observed Lewis picking up and 

repairing the mailbox. Id. at 918, 921. After his arrest, “Lewis moved to 

suppress the evidence concerning the warrantless opening of the David Woods 

mailbox, additionally claiming that all subsequent search warrants, and 

therefore all evidence at trial, were fruit of this allegedly illegal search.” Id.

at 919. The Eighth Circuit “ha[d] no difficulty in concluding that Lewis lacked 

a legitimate expectation of privacy in the mailbox[,]” because “[h]e had every 

expectation that governmental officials would regularly open the box to deliver 

mail.” Id. at 919 n.2. Applying that analysis to the current case, the search 

of Appellant’s unlocked mailbox that was accessible to the public was also 

valid, because he would expect that government officials would regularly open 

the box to deliver mail.5

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5 Albeit that, unlike in the current case, Lewis’s mailbox was located in a rural 

area and bore a false name, “David Woods,” I find those distinctions to be 

inconsequential, because the crux of the Eighth Circuit’s reasoning was that 

Lewis lacked a legitimate expectation of privacy in an object that government 

officials would regularly open to deliver mail. Lewis, 738 F.2d at 919 n.2.
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Another useful case is United States v. Osunegbu, 822 F.2d 472, 474 

(5th Cir. 1987), in which the Fifth Circuit upheld a warrantless search of a 

private post office box by postal inspectors. In its analysis, the Fifth Circuit 

noted that postal employees would often have to look at and move mail into 

and out of mailboxes. Id. at 480. For this reason, there is a minimal 

expectation of privacy as to the contents placed in a mailbox. Id.; see also 

Gabriel v. State, 290 S.W.3d 426, 432-33 (Tex. Ct. App. 2009) (applied the 

reasoning of Osunegbu to a postal box rented in a private facility, an UPS 

Store, and held that the trial court did not err in denying appellant’s motion 

to suppress evidence seized therefrom by a detective in the county sheriff’s 

office).

In what was a case of first impression, the First Circuit, in United States 

v. Stokes, 829 F.3d 47, 52 (1st Cir. 2016), also considered “whether a 

defendant can hold a reasonable expectation of privacy in a rented mailbox[.]”

From 2008 to 2012, defendant-appellant Darren Stokes sent 

fraudulent invoices to thousands of businesses. Each invoice 

appeared to be sent by a legitimate trade association and directed 

the business to send membership dues to one of three addresses 

in Massachusetts where, unbeknownst to the business, Stokes 

received mail. Postal inspectors intercepted mailings to these 

addresses. After criminal charges were leveled against Stokes in 

the United States District Court for the District of Massachusetts, 

he moved to suppress the mailings as the product of an 

unreasonable search under the Fourth Amendment. The district 

court denied the motion to suppress[.]
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Id. at 49.6 The First Circuit affirmed, holding that Stokes did not have “a 

legitimate expectation of privacy in the . . . P.O. Box.” Id. at 52.

Although Osunegbu and Stokes involved post office boxes and not a 

private mailbox, I find their reasoning – i.e., that postal employees regularly 

look at the inside of post office boxes so no warrant is needed to search one 

– applies equally to a private mailbox, which postal employees also look inside 

regularly. For this reason, a private mailbox would also have a minimal 

expectation of privacy, and a warrant would not be required for other 

government officials, such as police officers, to search it.

Another case that is similar, albeit not directly on point, is United 

States v. Hinton, 222 F.3d 664 (9th Cir. 2000), in which the Ninth Circuit 

considered whether an individual has an expectation of privacy in a parcel 

locker. In Hinton, the appellant rented a post office box, which was closed 

and locked from the outside but open and in plain view of postal employees. 

Id. at 667. When the appellant received a package that was too large for his 

post office box, employees placed the package in a parcel locker and placed a 

key for the locker in his post office box. Id. The parcel locker was locked to 

the public, but a door at the back of the locker opened to employees without 

a key. Id. Postal employees could thus remove packages from their side 

without using a key. Id. at 667-68.

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6 “Stokes pled guilty to 8 counts of wire fraud under 18 U.S.C. § 1343 and 7 

counts of mail fraud under 18 U.S.C. § 1341.” Stokes, 829 F.3d at 49.
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The Ninth Circuit held that there “is no reasonable expectation of privacy 

in a parcel locker.” Hinton, 222 F.3d at 675. The court explained: “The 

postal employees would have the right to move the packages whether the 

parcel locker has a back door facing the employee area or not, because the 

right to move the packages exists irrespective of a locker’s enclosure.” Id. at 

676. Since the contents can be accessed by postal workers, “one may not 

claim an objectively reasonable expectation of privacy in a parcel locker.” Id. 

Although the current matter involves a mailbox at a residence and not a post 

office box nor a parcel locker inside a post office, the access of postal workers 

to their contents remains the same. Therefore, following the logic of Hinton, 

id., in the instant case, there would also be no reasonable expectation of 

privacy.

One case that arguably could be considered an exception to the 

conclusion of the majority of jurisdictions that found no reasonable 

expectation of privacy in a mailbox is Commonwealth v. Garcia, 612 N.E.2d 

674 (Mass. App. Ct. 1993). In Garcia, the Massachusetts Appeals Court held 

that a warrantless search of a mailbox was unjustified, because the defendant 

had a reasonable expectation of privacy in a mailbox, even when he was not 

a tenant in that building. However, I believe that Garcia is distinguishable, 

because the mailbox was inside an apartment building and was locked. Id.

at 676, 678-79. In the current appeal, Appellant’s mailbox was outside and 

was unlocked. Thus, I conclude that Garcia is not persuasive.
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The only jurisdiction that has considered this issue and held that a 

defendant has a reasonable expectation of privacy in his own mailbox is New 

York. The opinion rending this holding, People v. Lilly, 211 A.D.2d 428, 428 

(N.Y. App. Div. 1995), states in its entirety:

Order, Supreme Court, New York County (Nicholas Figueroa, J.), 

entered on or about June 28, 1994, which granted defendant’s 

motion to suppress physical evidence and a postarrest statement, 

unanimously affirmed.

Defendant’s legitimate expectation of privacy in the mailbox (see, 

People v Whitfield, 81 NY2d 904; People v Wesley, 73 NY2d 

351), and his resulting standing, were established by his 

assertion, in response to the officer’s question, that the mailbox 

was his and that he resided in the corresponding apartment.

The officer’s contention that he feared for his safety lacked any 

objective basis (cf., People v Chin, 192 AD2d 413, lv denied 81 

NY2d 1071; People v Marine, 142 AD2d 368, 370-371), as the 

court properly determined that defendant was seized, i.e., that 

there was a “significant interruption [of his] liberty of movement”, 

when the officer, while standing in defendant’s path and without 

first asking him to move, placed his hand on defendant’s left 

shoulder to brush him aside in order to observe the contents of 

the mailbox (see, People v Bora, 83 NY2d 531, 534-535) and 

was unwarranted under the circumstances.

None of the cases cited therein – Whitfield, Wesley, Chin, Marine, and 

Bora – concerns the search of a mailbox.7

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7 The New York Supreme Court, Appellate Division, upheld the validity of the 

search of a mailbox in two subsequent memorandum decisions.

In People v. Merchant, 258 A.D.2d 478, 478 (N.Y. App. Div. 1999) 

(memorandum), “the defendant challenge[d] the search of a mailbox which 

was not located in his residence and in which he claimed no possessory 

interest,” even though “keys to the mailbox were found in his possession.” 

Not only do the facts of Merchant distinguish it from the current matter, but 
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I find that New York’s analysis of this issue is not an in-depth as in the 

other jurisdictions that have considered this question. I am wary of 

contradicting the majority of jurisdictions on the basis of the ruling of a 

minority of one.

Accordingly, based upon Champion and Lewis and in consideration of 

Osunegbu, Gabriel, Stokes, and Hinton, I conclude that a person has no 

reasonable expectation of privacy in his unlocked, outdoor mailbox.8 Here, 

____________________________________________

the New York Supreme Court, Appellate Division, concluded that the 

defendant had no standing to challenge the search of the mailbox and never 

reached the question of whether the defendant had a reasonable expectation 

of privacy.

The New York Supreme Court, Appellate Division, did reach that question in 

People v. Scott, 273 A.D.2d 76, 76 (N.Y. App. Div. 2000) (memorandum 

decision), while patrolling the lobby of a building in a housing project, two 

police officers saw the defendant smoking marijuana and arrested him. Upon 

searching the defendant, the officers discovered a set of keys. Id. The 

defendant denied “any personal connection to the building and any connection 

between the keys and the building.” Id. An officer tried the keys in the 

building’s mailboxes, and, upon opening one of the boxes, discovered cocaine 

and PCP. Id. The trial court granted the defendant’s motion to suppress the 

drugs, but the Supreme Court, Appellate Division, held that “[m]ere 

possession of the mailbox key” did not invest the defendant “with a reasonable 

expectation of privacy in the mailbox.” Id.

8 However, an individual has a privacy interest in the contents of his or her 

mail. Stokes, 829 F.3d at 52 (citing United States v. Jacobsen, 466 U.S. 

109 (1984); Ex parte Jackson, 98 U.S. 727 (1877); United States v. 

Barnette, 375 F.3d 10 (1st Cir. 2004), judgment vacated on other 

grounds by 543 U.S. 1181 (2005)) (“Letters and other sealed packages are 

in the general class of effects in which the public at large has a legitimate 

expectation of privacy. Yet a defendant has no reasonable expectation of 

privacy in the outside of mail . . .” (internal quotation marks omitted)). Thus, 

the holding of this opinion does not permit law enforcement to open mail, such 

as sealed envelopes or packages, without a warrant or a clearly recognized 

exception to the warrant requirement.
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the Commonwealth gave the trial court evidence that police had searched 

Appellant’s unlocked, outdoor mailbox, N. T., 9/6/16, at 9-14, 23, 25, 29, 31-

33; TCO at 3; it thus fulfilled its burden of production by providing sufficient 

evidence for the court to determine whether Appellant had a reasonable 

expectation of privacy. Enimpah, 106 A.3d at 702. As no reasonable 

expectation of privacy exists in an unlocked, outdoor mailbox and as the 

Commonwealth produced evidence that the search at issue was of an 

unlocked, outdoor mailbox, id., Appellant had no privacy interest in the area 

that was searched. Hence, the search that lead to the discovery of Appellant’s 

firearm cannot be deemed “unreasonable” and thus unconstitutional. See 

Edwards, 874 A.2d at 1195.

To be clear, I would conclude that no warrant was required to search 

Appellant’s unlocked, outdoor mailbox, and, for that reason, I thus concur that 

Appellant’s motion to suppress the firearm seized from Appellant’s unlocked, 

outdoor mailbox was properly denied. See Freeman, 150 A.3d at 34–35. As 

I would hold that Appellant had no reasonable expectation of privacy in his 

own unlocked, outdoor mailbox, I do not need to reach the issue of whether 

exigent circumstances existed to justify a warrantless search. Peterson, 636 

A.2d at 618. 

No Exigent Circumstances Existed

The trial court, however, assumed that Appellant had “reasonable 

expectations of privacy in his own mailbox,” TCO at 7, without further analysis 
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and without any citation to case law. Consequently, the trial court denied 

Appellant’s motion to suppress based upon exigent circumstances. Id. at 6-

7 (quoting Commonwealth v. Stewart, 740 A.2d 712, 717-18 (Pa. Super. 

1999) (defining exigent circumstances)). The majority also is “of the view 

that the trial court properly denied Appellant’s motion to suppress based on 

exigent circumstances.” Majority Mem. at 3 (footnote omitted) (citations 

omitted).

During the suppression hearing, Defense Counsel argued that police 

could have had an officer secure Appellant’s mailbox, and, “[i]f they thought 

there was probable cause or reason to believe it, go get a warrant.” N. T., 

9/6/16, at 42. In his brief to this Court, Appellant also argued:

The Appellant also argues that there were no exigent 

circumstances to open up the mailbox without a warrant. The 

Commonwealth argued that there was a school nearby.

However, it was a closed mailbox which was secured by a police 

officer. The police officer testified that he did not search an 

unsecured car and did not appear to be concerned.

Appellant’s Brief at 8.

As the trial court and the majority both rely solely on the theory that 

exigent circumstances existed and as Appellant preserved this issue, 

I therefore feel compelled to explain why I would disagree with the trial court’s 

and the majority’s rationale. TCO at 6-7; Majority Mem. at 3. “This Court is 

not bound by the rationale of the trial court, and we may affirm the trial court 

on any basis.” Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa. 

Super. 2013) (citing In re Jacobs, 15 A.3d 509, 509 n.1 (Pa. Super. 2011)).
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Exigent circumstances are an exception to the warrant requirement, 

excusing the need for a warrant where “prompt police action is imperative” –

i.e., when the delay in obtaining a search warrant would result in personal 

injury or the loss of evidence. Commonwealth v. Hakim Johnson, 969 

A.2d 565, 569 (Pa. Super. 2009) (citation omitted); accord Schmerber v. 

California, 384 U.S. 757 (1966). The classic examples of exigent 

circumstances are where someone is yelling for help or where a defendant is 

flushing drugs down the toilet. See, e.g., Commonwealth v. Potts, 73 A.3d 

1275, 1275, 1280 (Pa. Super. 2013) (when police arrived, they heard 

screaming and yelling from appellant’s apartment; their warrantless entry and 

search was proper, as one exception to the warrant requirement “is when the 

police reasonably believe that someone within a residence is in need of 

immediate aid” (quoting Commonwealth v. Galvin, 985 A.2d 783, 795 (Pa. 

2009)); United States v. Fiasche, 520 F.3d 694 (7th Cir. 2008) (after seeing 

police, defendant yelled “hold on,” followed by “flushing sounds”; it was 

reasonable to conclude that drugs would have been flushed down the toilet in 

the time it would take to obtain a search warrant).

Here, there was no chance that the firearm, located in Appellant’s 

mailbox, would have been destroyed by Appellant or that Appellant would 

have caused someone personal injury with the firearm. Appellant was with 

Officer Robin Song while Officer Joel Jean performed the search, so Appellant 

could not have destroyed the evidence. N. T., 9/6/16, at 25, 27. The firearm 

also would not have quickly been damaged by the elements from inside a 
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mailbox or otherwise lost. There is no suggestion that Appellant would flee, 

and, even if he did, he was not in the vicinity of the firearm, where he could 

grab it easily. Id. at 12-14, 24, 29-31.

As for Officer Jean’s and the trial court’s concern that a child from the 

local daycare may have found the firearm, if Officer Jean had probable cause 

that the firearm was in Appellant’s mailbox, he could have secured the mailbox 

while another officer obtained a warrant. See, e.g., Commonwealth v. 

English, 839 A.2d 1136, 1142 (Pa. Super. 2003) (concluding warrantless 

seizure of marijuana plants not justified, even though police claimed plants 

could be destroyed before search warrant could be procured, where officers 

could have secured the scene while a different officer obtained a warrant). As 

noted above, Appellant had raised this argument during the suppression 

hearing and in his brief to this Court. N. T., 9/6/16, at 42; Appellant’s Brief 

at 8.

Even taking into account the most comprehensive list of factors that a 

court may consider when assessing the presence of exigent circumstances, 

which was cited by the majority, Majority Mem. at 3-4 n.4, those factors would 

weigh against finding exigent circumstances in the current action. That list of 

factors is:

(1) the gravity of the offense; (2) whether the suspect is 

reasonably believed to be armed; (3) whether there is 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 is peaceable; (7) the 

timing of the entry; (8) whether there is hot pursuit of a fleeing 
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felon; (9) whether there is a likelihood that evidence will be 

destroyed if police take the time to obtain a warrant; and (10) 

whether there is a danger to police or other persons inside or 

outside of the dwelling to require immediate and swift action.

Commonwealth v. Brian Johnson, 68 A.3d 930, 937 (Pa. Super. 2013). In 

the current appeal, these factors count against finding exigent circumstances: 

at the time of Officer Jean’s search, Appellant was not armed, obviously could 

not be inside the “premises” of the mailbox, did not have a likelihood of 

escape, was not fleeing, could not destroy evidence, and was not a danger to 

others.

In conclusion, there was no emergency that would allow for the finding 

of exigent circumstances. See Birchfield v. North Dakota, 136 S. Ct. 2160, 

2173 (2016) (“The exigent circumstances exception allows a warrantless 

search when an emergency leaves police insufficient time to seek a warrant.”); 

Commonwealth v. Gatlos, 76 A.3d 44, 56 (Pa. Super. 2013) (“exigent 

circumstances may provide an exception to the warrant requirement in what 

are essentially emergency situations created by those exigent 

circumstances”); see also Commonwealth v. Ritcher, 791 A.2d 1181 (Pa. 

Super. 2002) (en banc).

“[A]ll decisions made pursuant to the exigent circumstances exception 

must be made cautiously, for it is an exception which by its nature can very 

easily swallow the rule unless applied in only restricted circumstances.” 

Commonwealth v. Bostick, 958 A.2d 543, 557 (Pa. Super. 2008) (quoting 

English, 839 A.2d at 1141).
J-S02045-18

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Neither the requisite danger nor potential for destruction of evidence 

existed that would qualify as such restricted circumstances requiring prompt 

police action. See Hakim Johnson, 969 A.2d at 569; Bostick, 958 A.2d at 

557.9

For the reasons explained above, I would affirm the judgment of 

sentence but on a different basis than both the trial court and the majority. 

Thus, I concur.

____________________________________________

9 The facts of this case also do not merit the recently-recognized “community 

caretaker” exception. Commonwealth v. Livingstone, 174 A.3d 609 (Pa. 

2017). For this exception, the police have to be rendering aid or assistance 

and cannot be engaging in crime-solving activity. Id. at 627-28 & n.12, 635. 

The current action fails on both accounts: the police were not helping anyone, 

and they were specifically engaged in criminal investigation by searching for 

a weapon.