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Commonwealth v. Chism

Superior Court of Pennsylvania

August 9, 2019

COMMONWEALTH OF PENNSYLVANIA Appellant
v.
ZACHARY DYLAN CHISM

          Appeal from the Order Entered November 8, 2018 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000872-2018

          BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER [*] , J.

          OPINION

          MURRAY, J.

         The Commonwealth appeals from the order granting the suppression request of Zachary Dylan Chism (Appellee). After careful consideration, we quash.

         The trial court summarized the suppression hearing testimony as follows:

Trooper Jonathan Thompson (Thompson) of the Pennsylvania State Police testified on behalf of the Commonwealth. His testimony established the following. On May 27, 2018[, ] at approximately 1:30 p.m., Thompson responded to a criminal mischief report of an individual shooting a glass window with a BB gun. He arrived in the area of Lot 35, 36, and 37 of Back [Street, Loyalsock Township, Lycoming County] to conduct an area canvas by knocking on residences' doors and asking questions. As soon as Thompson exited the vehicle[, ] he smelled the pervasive smell of processed marijuana in the area. The smell led Thompson to initially believe someone was smoking a gravity bong in front of their fan. There were no observable individuals in the area of Lots 35, 36, and 37 at that time. As Thompson spoke with one individual (who later was determined to be the mother of [Appellee]), he could continually smell the marijuana coming from behind him, Lot 35. Thompson then approached the door of Lot 35, as he did he could smell the overwhelming scent of marijuana. He knocked on the door, without announcing himself as a police officer, and [Appellee] answered the door visibly intoxicated with the smell of burnt marijuana emanating from his breath[]. Additionally, the smell of unburnt, processed, marijuana was emanating from within the residence. Initially[, ] Thompson asked [Appellee] about whether or not he had a BB gun, but quickly turned the conversation to "how much marijuana had he smoked." Thompson then asked if and how many individuals were within the residence. [Appellee] responded that his two friends and girlfriend were within the residence. At this time[, ] Thompson placed [Appellee] in handcuffs, informed him he was not free to leave, and that he was being detained. Thompson then had [Appellee] enter his residence, sit in the kitchen, and summoned the others into the kitchen and instructed them to sit on the kitchen floor as they also were not allowed to leave. At this point[, ] Thompson radioed for backup as he was the only trooper on the scene. It was after this that [Appellee] took Thompson to a rear room where a gravity bong and multiple smoking devices were present. [Appellee] gave permission to search the residence, as a result of the search eleven pounds of marijuana and assorted drug paraphernalia was recovered.

Trial Court Opinion, 11/8/18, at 1-2.

[Appellee] was arrested . . . on one count of Possession of a Controlled Substance with the Intent to Manufacture or Deliver, one count of Possession of a Controlled Substance, and one count of Possession of Drug Paraphernalia. . . . [Appellee] filed [a] timely Pretrial Omnibus Motion on September 24, 2018. A hearing on the motion was held by th[e trial court] on October 26, 2018.
In his Omnibus Motion, [Appellee] challenge[d] whether exigent circumstances existed to permit the police to enter [Appellee]'s residence without obtaining a search warrant. [Appellee] contend[ed that] as a result of this unlawful entry[, ] any evidence obtained as a basis of the search of his residence should be suppressed.

Id. at 1 (footnotes omitted).

         On November 8, 2018, the trial court granted Appellee's suppression motion. On December 7, 2018, the Commonwealth filed a timely notice of appeal. In its notice of appeal, the Commonwealth did not certify, pursuant to Pa.R.A.P. 311(d), that the trial court's suppression ruling terminated or substantially handicapped the prosecution. See Pa.R.A.P. 311(d).[1]

         On appeal, the Commonwealth presents the following issues for review:

I. Whether the trial court erred in finding that the exigency in this case was officer-created.
II. Whether the trial court erred in suppressing the evidence when [Appellee] subsequently consented to a warrantless ...

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