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Commonwealth of Pennsylvania v. Brandy Lynn Berkheimer

November 21, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
BRANDY LYNN BERKHEIMER, APPELLANT COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
KENT LEROY BERKHEIMER, APPELLANT



Appeal from the Judgment of Sentence entered February 22, 2011 In the Court of Common Pleas of Snyder County Criminal Division at No(s): CP-55-CR-0000380-2009 Appeal from the Judgment of Sentence entered February 22, 2011 In the Court of Common Pleas of Snyder County Criminal Division at No(s): CP-55-CR-0000381-2009

The opinion of the court was delivered by: Bender, J.

J-E03005-12

IN THE SUPERIOR COURT OF PENNSYLVANIA

BEFORE: FORD ELLIOTT, P.J.E., MUSMANNO, J., BENDER, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J., OLSON, J., and WECHT, J.

OPINION BY BENDER, J.

Brandy Lynn Berkheimer and Kent Leroy Berkheimer appeal their respective judgments of sentence following a stipulated bench trial on charges of possession of a controlled substance (marijuana), manufacture of a controlled substance (marijuana), possession of a small amount of marijuana, and possession of drug paraphernalia. See 35 P.S. § 780- 113(a)(16), (30), (31), (32) (respectively). The Berkheimers contend that all of the evidence on which their convictions rest was garnered during a warrantless search and seizure committed unlawfully by the Pennsylvania State Police, in the dead of night. The trial court concluded that the search itself was indeed unlawful, but found the evidence seized admissible nonetheless on a supposition of inevitable discovery pursuant to the "independent source" rule. A three-judge panel of this Court affirmed the trial court's ruling with one judge concurring in the result and one judge dissenting on the basis of our Supreme Court's holding in Commonwealth v. Melendez, 676 A.2d 226 (Pa. 1996). We granted consideration by the Court en banc to determine if in fact the search was unlawful and, if so, whether the evidence is rendered admissible nonetheless by the "independent source" rule or otherwise purged of the taint of illegality. Based on the testimony adduced at the omnibus pre-trial hearing, we conclude that the actions of the troopers constituted misconduct within the meaning of the Fourth Amendment and an invasion of the defendants' privacy interest in their home pursuant to Article I, section 8 of the

Constitution of this Commonwealth. Moreover, the evidence seized was not subject to discovery by way of an independent source, and therefore is not purged of the taint of illegality. Accordingly, we reverse the Berkheimers' judgments of sentence and order the defendants discharged.

The Berkheimers' misadventure commenced when, on the night of Tuesday, August 25, 2009, Troopers Rodney Shoeman and William Gangloff of the Pennsylvania State Police (PSP) determined to execute a probation detainer on Ryan Lecroy, who had failed to respond to citations imposed following a traffic accident. N.T., Omnibus Hearing, 6/10/10, at 6, 27.

Because they were less experienced, Troopers Shoeman and Gangloff enlisted the aid of Troopers Tyson Havens and Scott Davis, two veteran officers of the Criminal Interdiction Unit, Troop F, who that evening were on temporary assignment in the Selinsgrove Barracks of the PSP.*fn1 Id. at 6. Having investigated Lecroy's whereabouts earlier, Trooper Shoeman had obtained a tip from Lecroy's stepfather that Lecroy might be present at 3982 Buckwheat Valley Road in Mount Pleasant Mills, Snyder County. Id. at 28. The Buckwheat Valley Road address hosted two residential properties, one of which was a doublewide mobile home with a basement, built on a block foundation and rented by the Berkheimers. Id. at 7, 50.

The four troopers reached the Berkheimers' home at 11:30 p.m. and noticed as they approached the house that the rooms were dark and the residents appeared to be asleep. Id. at 7, 9. Although the troopers had no particular knowledge of the reliability of the tip concerning Lecroy's whereabouts,*fn2 Trooper Havens determined that an enquiry of the home's occupants was "[a]bsolutely" appropriate and instructed Trooper Gangloff to knock. In a process that lasted "maybe two seconds, three seconds[,]" Gangloff banged on the door, pushing it open, allowing the smell of burned marijuana to drift outside, and Trooper Havens entered.*fn3 Id. at 23-24. As Trooper Havens entered, he shined his flashlight into the room and could see Brandy Lynn Berkheimer and her sister, Natasha Lighter, lying asleep on separate sofas.*fn4 Id. at 8. As Lighter awoke, Trooper Havens shined his flashlight on his badge and announced himself as a member of the PSP. Id. Lighter then awoke Mrs. Berkheimer who, concerned about the possibility that Lecroy would venture to the home in search of her sister, reported that she was initially terrified. Id. at 34-35. Havens then announced his purpose and explained that he had smelled marijuana and was intent on securing the house while he obtained a search warrant. Id. at 9, 10-11. Trooper Havens then asked the women if anyone else was present, to which Lighter replied that Mr. Berkheimer was in the bedroom. Id. at 9. However, as she arose from the sofa and walked toward the hallway to get him, Havens stopped her and told her to wait in the living room while he went to the bedroom on his own. Id. at 10.

Upon reaching the Berkheimers' bedroom, Trooper Havens entered to find Kent Berkheimer standing by the side of the bed and the Berkheimers' daughter, then four years of age, asleep in the bed. Id. In the subsequent Affidavit of Probable Cause, Havens averred that he also saw "several glass marijuana pipes, a plastic bag of marijuana, a pill bottle containing marijuana, several rounds of pistol ammunition, along with a book on growing marijuana[,]" all in plain view.*fn5 Affidavit of Probable Cause, 8/22/09, at 4. Trooper Havens then escorted Mr. Berkheimer to the living room, where he explained that although the three were not under arrest, they also were not free to leave, as he was going to apply for a search warrant to ensure further access to the house. N.T., Omnibus Hearing, 6/10/10, at 10-11. He also asked if there were any firearms in the house, to which Mr. Berkheimer responded that there were two pistols under the mattress in the bedroom from which he had just exited. Id. at 11. Trooper Havens then retrieved the pistols and left Troopers Shoeman and Gangloff to superintend Lightner and the Berkheimers while he and Trooper Davis went to the residence next door, still in search of Lecroy. Id. At the omnibus hearing, Havens testified that "essentially, the same thing happened [there], only in [that] case, Trooper Davis observed marijuana in plain view." Id. at 12.

The troopers then determined to search both houses and Havens directed that the residents of the Berkheimer residence, including the couple's four-year-old and a pregnant Mrs. Berkheimer, id. at 22, be removed from the residence and confined with the neighbors while he and Trooper Davis went for the warrants. Id. at 11-12. Troopers Shoeman and Gangloff remained behind to oversee the assembled "suspects" until Troopers Havens and Davis returned with the warrants "[a] few hours later."

Id. at 12. *fn6 *fn7

Now armed with search warrants, Troopers Havens and Davis returned in what had become the wee hours of the morning. While Troopers Shoeman and Gangloff held the Berkheimers and their neighbors in the neighbors' home, Troopers Havens and Davis searched the Berkheimer home. With the aid of "four or five" additional members of the PSP vice unit, they searched the home thoroughly, and found in the basement a "2x4" wooden box lined with aluminum foil, pots that showed evidence of past plant growth in the form of stems that were cut but still rooted, grow lights, a timer, and additional potting soil. Id. at 12, 15-16. They also recovered the contraband seen in the Berkheimers' bedroom as well as an additional three small bags of marijuana and a digital scale in Mrs. Berkheimer's car, which the troopers entered by "jimm[ying]" the door. Id. at 47.

Nevertheless, the troopers found no live cannabis plants and did not test the stems in the pots. Id. at 25. The sum total of marijuana seized during the raid amounted to less than 30 grams, constituting a "small amount" under the Controlled Substances Act. See 35 P.S. § 780-113(a)(31).*fn8

Following the Berkheimers' arrest, their counsel sought suppression of all evidence seized during the nighttime raid, as well as admissions they had made of having smoked marijuana. Following the omnibus hearing, the trial court recognized that the troopers' search of the residence was unlawful, notwithstanding the belated issuance of a search warrant, as although the troopers' observations suggested probable cause to believe that marijuana was being used inside the residence, the totality of the circumstances failed to establish any exigency beyond that created by the officers themselves. Trial Court Opinion, 7/2/10, at 11 ("Trooper Havens justified his entry into the residence and detention of the occupants by his experience that in drug cases evidence can easily be destroyed, and that drug users are not necessarily asleep at 11:30 in the evening. He was concerned as well about officer safety since weapons are frequently a feature in drug cases. He also said he wanted to apprehend [Lecroy] if he was in the residence. The problem with Trooper Havens['] rationale is that according to his narration, the exigent circumstances were all of the police's own making."). The court denied suppression, however, on the basis that because the smell of marijuana the troopers detected provided probable cause for the issuance of a warrant, the evidence would have been discovered inevitably and therefore is not subject to suppression. Id. (citing Nix v. Williams, 467 U.S. 431, 444 (1984); Commonwealth v. Dean, 940 A.2d 514, 523 n. 3 (Pa. Super. 2008)).

At a stipulated bench trial, the court found the Berkheimers guilty as charged and sentenced each to pay a fine of $1000, one month to twenty-three months' jail time with immediate parole upon completion of the one-month minimum, and a concurrent sentence of 37 months' probation. On appeal, a panel of this Court agreed with the trial court's rationale and affirmed the judgment of sentence. We granted reconsideration en banc to determine the extent to which the evidence in question was subject to inevitable discovery under the independent source rule and therefore properly admitted. On reargument, the Berkheimers have framed the question for our consideration as follows:

[Whether] [t]he Trial Court committed an error of law by holding that the independent source doctrine is applicable to a situation where a police team a) illegally obtained evidence through a warrantless, nighttime, non-peaceful entry into a private home in the absence of exigent circumstances, and b) this police team is the very same police team claiming to have legally obtained sufficient evidence to form the basis of a search warrant, through an independent source, prior to conducting a warrantless home invasion[?]

Substituted Brief on Reargument of Appellants at 4.

Our analysis of this question begins with the presumption that "[w]here a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible." Commonwealth v. Ruey, 892 A.2d 802, 807 (Pa. 2006) (Opinion Announcing the Judgment of the Court) (quoting Commonwealth v. DeWitt, 608 A.2d 1030, 1031 (Pa. 1992)). If the trial court denies the motion, we must determine "whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error." Commonwealth v. McClease, 750 A.2d 320, 323 (Pa. Super. 2000). In so doing, 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." Commonwealth v. Maxon, 798 A.2d 761, 765 (Pa. Super. 2002). "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." McClease, 750 A.2d at 323-24.

In support of their suppression claim, the Berkheimers contend that the entry of the state police into their home without a warrant violated their right to privacy guaranteed by the Constitution of this Commonwealth. The Berkheimers argue that the resulting aura of illegality is not susceptible to dissipation through application of the "inevitable discovery" exception to the exclusionary rule recognized in the decisions of the United States Supreme Court, as that doctrine has been supplemented in Pennsylvania by a strong "independent source" requirement that cannot be satisfied on the facts of this case. Substituted Brief on Reargument of Appellants at 10 ("The Trial Court erroneously applied the independent source doctrine articulated in Nix v. Williams, 467 U.S. 431, 444 (1984), although this rule had been rendered inapplicable to the case at bar by the Pennsylvania Supreme Court's interpretation of Article I, Section 8 of the Pennsylvania Constitution in Commonwealth v. Mason [637 A.2d 251 (Pa. 1993)] and its progeny Commonwealth v. Melendez, 535 Pa. 560, 637 A.2d 251 (1993) and 544 Pa. 323, 676 A.2d 226 (1996)."). The Commonwealth, by contrast, appears to argue that the four state troopers' entry into the Berkheimer's' home did not constitute an "unconstitutional invasion of privacy," ostensibly distinguishing the Berkheimer's' claim from factually similar scenarios in Mason and Melendez and ostensibly obviating the protection of the independent source rule. Brief for Appellee at 7 ("The absence of the forcible entry and violent shattering of the door is what distinguishes this case from Mason. In the absence of an unconstitutional invasion of privacy, the inevitable discovery rule applies.").*fn9 It also ...


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