Appeal from the Judgment of Sentence entered November 15, 2007, Court of Common Pleas, Westmoreland County, Criminal Division at No. 5434 C 2006.
The opinion of the court was delivered by: Donohue, J.
BEFORE: MUSMANNO, DONOHUE and COLVILLE*fn1, JJ.
¶ 1 John Charles Lee, II ("Lee") appeals from the judgment of sentence entered following his conviction for driving under the influence ("DUI") pursuant to 75 Pa.C.S.A. § 3802(a)(1) and (c). For the reasons that follow, we reverse and remand for a new trial.
¶ 2 The factual and procedural background of this case is as follows. At approximately 11:30 p.m. on August 22, 2006, Lisa Jones ("Jones") was in her home on Schendel Road, Westmoreland County, when she heard a loud crash. Jones looked out her window and observed a pickup truck speed away. She went outside and found that her mailbox had been broken into pieces and that a large pine tree in her yard had been partially uprooted.
¶ 3 Jones called the police. Within five or ten minutes, Officer Lewis of the Penn Township Police Department arrived. Jones told Officer Lewis what she had observed. Officer Lewis examined the scene and observed a trail of antifreeze fluid in the street that began in front of Jones's house and led away from the residence. Officer Lewis and Officer Otto, who responded to the scene shortly after Officer Lewis arrived, followed the antifreeze trail for approximately one and a half miles. The trail ended at the driveway of Lee's house.
¶ 4 Officer Lewis parked in front of Lee's house and walked down Lee's driveway. As he reached the end of the driveway, Officer Lewis could see the rear end of a pickup truck parked behind the residence. Officer Lewis proceeded to the pickup truck, where he observed that it had severe front end damage and that the front airbags had deployed. As Officer Lewis made his way back up the driveway, Lee's wife exited the house and approached the officers. Officer Lewis asked Lee's wife who had been driving the truck, and she responded that Lee had been driving it. When Lee's wife advised that Lee was inside the house sleeping, the officers asked her to go get him so they could talk to him. She did so, at which time Lee greeted the officers on his front porch. The officers immediately observed that he had bloodshot eyes, difficulty standing, and a strong odor of alcohol about him. A subsequently administered blood alcohol test revealed that Lee had a blood alcohol content of .27%.
¶ 5 Lee was charged with DUI and three summary offenses, failure to notify police of an accident, 75 Pa.C.S.A. §3746(a)(2), accidents involving damage to unattended vehicle or property, 75 Pa.C.S.A. §3745(a), and careless driving, 75 Pa.C.S.A. §3714. Lee filed a motion to suppress the evidence against him, arguing that the police officers' entry onto his property without a warrant constituted an illegal search. The trial court denied Lee's suppression motion. Following a bench trial, Lee was found guilty of DUI only and sentenced to five years of intermediate punishment, 90 days of which were to be spent on electronic monitoring or house arrest. Notes of Testimony ("N.T."), 11/15/07, at 5.
¶ 6 This timely appeal followed, in which Lee contends that the trial court erred in denying his motion to suppress because the police officers' warrantless entry onto his private property violated his constitutional rights under the Fourth Amendment to the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution.*fn2 Appellant's Brief at 8. Our standard of review when addressing a challenge to the denial of a suppression motion requires us to determine whether the record on appeal supports the trial court's factual findings and whether the legal conclusions drawn by the trial court from those facts are correct. Commonwealth v. Wright, -- Pa. -- , 961 A.2d 119, 137 (2008).
¶ 7 "The Fourth Amendment to the United States Constitution and Article 1, §8 of the Pennsylvania Constitution require that searches be conducted pursuant to a warrant issued by a neutral and detached magistrate." Commonwealth v. Copeland, 955 A.2d 396, 399 (Pa. Super.), appeal denied, 2008 WL 5087421 (Pa., Dec 03, 2008). "A warrantless search or seizure is per se unreasonable unless it falls within a specifically enumerated exception." Wright, 961 A.2d at 137. Exigent circumstances provide one such exception to the warrant requirement. Commonwealth v. English, 839 A.2d 1136, 1141 (Pa. Super. 2003). In Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269 (1994), our Supreme Court provided the following description of the applicable constitutional principles relating to exigent circumstances:
In a private home,*fn3 searches and seizures without a warrant are presumptively unreasonable. Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment. In determining whether exigent circumstances exist, a number of factors are to be considered[:]
(1) the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.
Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or danger to police or other persons inside or outside the dwelling. Nevertheless, police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.
Id. at 600, 637 A.2d at 270-71 (quotations and citations omitted); Commonwealth v. Bostick, 958 A.2d 543, 557 (Pa. Super. 2008). 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." Commonwealth v. Rispo, 487 A.2d 937, 940 (Pa. Super. 1985) (quoting Commonwealth v. Davis, 411 A.2d 250, 252 (Pa. Super. 1979)).
¶ 8 In this case, a balancing of the Roland factors demonstrates a lack of exigency for a warrantless search of Lee's property. The gravity of the offense was low, as the police were investigating a report of property damage at the time of the intrusion. The officers had no reason to believe that any occupants of the house were armed or posed any danger to anyone, as the crime involved was not a violent one. There is no evidence in the record to indicate that the occupants of the house were even aware of the presence of the police outside, and thus there was no reason for the officers to think that destruction of evidence was imminent or that a ...