from the Order Entered November 8, 2018 In the Court of
Common Pleas of Lycoming County Criminal Division at No(s):
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER [*] , J.
Commonwealth appeals from the order granting the suppression
request of Zachary Dylan Chism (Appellee). After careful
consideration, we quash.
trial court summarized the suppression hearing testimony as
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).
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
appeal, the Commonwealth presents the following issues for
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