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Commonwealth of Pennsylvania v. Brian Johnson

April 23, 2013

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
BRIAN JOHNSON, APPELLEE



Appeal from the Order entered May 9, 2012, in the Court of Common Pleas of Bucks County, Criminal Division at No(s): CP-09-CR-0000455-2012.

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

J-A06022-13

BEFORE: PANELLA, ALLEN, and PLATT,*fn1 JJ.

OPINION BY ALLEN, J.:

The Commonwealth appeals from the trial court's May 9, 2012 order granting the suppression motion of Appellee, Brian Johnson ("Johnson"). We reverse.

The pertinent facts are as follows: On or about December 12, 2011, officers of the Bensalem Township Police Department, Bucks County, Pennsylvania, received information from two anonymous informants that controlled substances, specifically marijuana and prescription pills, were being sold from Unit 97-A at 1313 Gibson Road, a trailer park within the Township of Bensalem. Affidavit of Probable Cause, 12/14/11; N.T., 5/9/12, at 6. One of the informants advised the officers that an older white female with red hair, who resided in the trailer park, was involved in the drug transactions. Id. at 46-54.

On December 12, 2011, at approximately 10 a.m., Officers Adam Schwartz, Michael Brady, and Joseph Gansky responded to the report of drug activity, arriving at the trailer park in plain clothes and in an unmarked police vehicle, but wearing police badges. Id. at 5-8, 46. Upon arrival, Officers Brady and Schwartz approached Unit 97-A while Officer Gansky remained in the police vehicle. Id. As the officers approached Unit 97-A, they observed an "older white female with red hair" in the vicinity of Unit 97-A, who informed them that she lived in the trailer park. Id. at 46-54. The woman asked the officers who they were. Id. After informing her that they were police officers, they asked her to leave the area so they could continue their investigation of Unit 97-A, and she complied. Id. at 46.

Officers Brady and Schwartz then approached Unit 97-A, and while ascending a set of wooden steps leading to the elevated deck of the trailer, the officers detected the strong odor of burnt marijuana emanating from Unit 97-A. Id. at 8, 35-37. Fearing that the woman with red hair would alert the occupants of Unit 97-A to their presence, leading to the destruction of evidence, the officers opted not to leave to obtain a search warrant, and instead knocked on the door of the trailer. Id. at 47. Johnson opened the door, remaining inside the doorway in the "threshold area" of the trailer. Id. at 9, 25, 37. When the door opened, the officers observed that the trailer was smoke-filled, and detected an even stronger smell of burnt marijuana emanating from the trailer, leading the officers to believe that marijuana was actively burning inside the residence. Id. at 9-11, 36. Johnson stepped out of the trailer and onto the porch area, approximately one and a half feet outside the front door. Id. at 24; 37. The officers asked Johnson if they could enter the trailer to speak with him, to which Johnson replied, "go fuck yourself, you're not coming in my house." Id. at 10, 23-24, 37-38. Officer Schwartz informed Johnson that he would obtain a search warrant, whereupon Johnson told them to "go ahead and do that" before turning around to re-enter the trailer. Id. at 10-12, 24, 37-38.

Fearing that Johnson was going to destroy evidence, Officers Schwarz and Brady informed Johnson that they needed to secure the residence, and took hold of Johnson by the arm to prevent him from re-entering the trailer. Id. at 12, 37-38. Johnson pulled away, "became aggressive" and pushed at the police officers. Id. at 10-12, 24, 37-38. In the ensuing struggle, all three men slipped and fell from the porch to the pavement. Id. The officers subsequently placed Johnson under arrest. During a search incident to the arrest, the officers recovered $458 from Johnson. Id. at 12-14.

After restraining Johnson, the police officers asked him if there was anybody else in the trailer, to which Johnson responded "yes." Id. at 14. While Officer Brady transported Johnson to the police station, Officers Schwartz and Gansky knocked again on the front door of Unit 97-A and called for the occupants. Receiving no response, the officers entered Unit 97-A "to make sure there was no one else inside." Id. Upon entering, the officers encountered Johnson's wife. Id. at 17. Mrs. Johnson asked the officers to leave, but after the officers explained that they were securing the residence pending a search warrant, Mrs. Johnson voluntarily left the trailer. Id. at 14-17. The officers "looked into" the various rooms of the trailer to ensure nobody else was present, but did not conduct a search for contraband. Id. at 44. The officers did however observe, in plain view, a marijuana cigarette actively burning in the living room area. Id. at 17-18. The officers did not see any other drugs or paraphernalia. Id. After Mrs. Johnson departed, Officer Gansky remained on the porch to ensure the security of the trailer pending issuance of the search warrant. Id. at 40.

Johnson was transported to the police station, where Officer Brady provided him with Miranda*fn2 warnings, after which Johnson provided a written statement admitting to the possession, use, and delivery of marijuana, and indicating that there was marijuana stored in the kitchen cabinet of his trailer. Id. at 28-33; Commonwealth Exhibit 1. See also Trial Court Opinion, 8/16/12, at 2-5.

Johnson was subsequently charged with possession of a controlled substance with intent to deliver, possession with intent to use drug paraphernalia, person not to possess a firearm, and resisting arrest.*fn3 An affidavit for a search warrant was prepared and submitted to District Judge Baranoski, who issued a warrant at 3:15 p.m., approximately four hours after the incident began. Id. at 17-19; Trial Court Opinion, 8/12/16, at 5.

On August 21, 2012, Johnson filed a pre-trial motion to suppress the physical evidence from the trailer and the incriminating statements he made after his arrest, asserting that the evidence was obtained in violation of his rights pursuant to the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. The trial court convened a hearing on May 9, 2012, at the conclusion of which the trial court granted Johnson's suppression motion. N.T., 5/9/12, at 75. The Commonwealth filed a timely notice of appeal asserting that the grant of Johnson's suppression motion would terminate or substantially handicap the prosecution. Pa.R.A.P. 311(d). Both the Commonwealth and the trial court have complied with Pa.R.A.P. 1925. Johnson did not file a responsive brief before this Court.

The Commonwealth presents the following issues for our review:

A. WHETHER THE SUPPRESSION COURT ERRED AND/OR MISAPPLIED THE STANDARD FOR SEARCHES AND SEIZURES BY SUPPRESSING THE EVIDENCE SEIZED IN THIS CASE BASED ON ITS FINDINGS THAT THE POLICE OFFICERS WERE REQUIRED TO OBTAIN A SEARCH WARRANT FOR [JOHNSON'S] RESIDENCE IMMEDIATELY AFTER SMELLING THE ODOR OF BURNT MARIJUANA COMING FROM THE RESIDENCE, AND WERE NOT OTHERWISE PERMITTED TO FURTHER THEIR INVESTIGATION THROUGH OTHER REASONABLE MEANS, SUCH AS ATTEMPTING TO SPEAK WITH THE RESIDENT OR SEEK CONSENT?

B. WHETHER THE SUPPRESSION COURT ERRED AND/OR MISAPPLIED THE LAW IN CONCLUDING THAT THE OFFICERS UNLAWFULLY ENTERED [JOHNSON'S] RESIDENCE PRIOR TO OBTAINING THE SEARCH WARRANT WHERE THE OFFICERS WERE JUSTIFIED IN BRIEFLY ENTERING AND SECURING [JOHNSON'S] HOME TO PREVENT THE DESTRUCTION OR REMOVAL OF EVIDENCE WHILE THE SEARCH WARRANT WAS BEING OBTAINED BASED ON THE FOLLOWING: THE OFFICERS SMELLED THE ODOR OF BURNT MARIJUANA AND OBSERVED SMOKE INSIDE [JOHNSON'S] RESIDENCE, AND WHERE AFTER [JOHNSON] DENIED CONSENT TO ENTER AND/OR SEARCH AND WAS ADVISED THAT A SEARCH WARRANT WOULD BE OBTAINED, [JOHNSON] ATTEMPTED TO RE-ENTER THE HOME?

C. WHETHER THE SUPPRESSION COURT ERRED AND/OR MISAPPLIED THE LAW IN FINDING THAT THE DETENTION AND SUBSEQUENT ARREST OF [JOHNSON] WAS UNLAWFUL WHERE THE OFFICERS WERE JUSTIFIED IN STOPPING [JOHNSON] FROM RE-ENTERING HIS HOME AND DETAINING HIM UNDER THE FOLLOWING CIRCUMSTANCES: WHERE THE OFFICERS

SMELLED THE ODOR OF BURNT MARIJUANA AND OBSERVED SMOKE INSIDE [JOHNSON'S] RESIDENCE; WHERE AFTER

[JOHNSON] DENIED POLICE CONSENT TO ENTER AND WAS ADVISED THAT A SEARCH WARRANT WOULD BE OBTAINED, [JOHNSON] ATTEMPTED TO RE-ENTER HIS HOME; AND, WHEN OFFICERS ATTEMPTED TO STOP [JOHNSON] FROM RE-

ENTERING HIS HOME, [JOHNSON] PUSHED AND/OR PULLED AWAY FROM THE OFFICERS AND CREATED A STRUGGLE WHICH LED TO [SIC] THE OFFICERS AND [JOHNSON] TO FALL FROM THE FRONT STEPS TO THE GROUND?

D. WHETHER THE SUPPRESSION COURT ERRED IN DETERMINING THAT [JOHNSON'S] STATEMENT TO POLICE WAS FRUIT OF THE POISONOUS TREE BY FINDING THAT IT WAS OBTAINED FOLLOWING WHAT THE COURT DETERMINED TO BE AN UNLAWFUL ARREST?

Commonwealth Brief at 4.

The Commonwealth's first three issues challenging the trial court's grant of suppression are interrelated. Therefore, we will address them together. Our standard of review of a Commonwealth's appeal from the trial court's grant of a motion to suppress is as follows:

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 findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not ...


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