Opinion
J-S10012-14 No. 1038 MDA 2013
04-25-2014
COMMONWEALTH OF PENNSYLVANIA Appellee v. DEMETRIUS LABLAIRD WOMACK Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 10, 2013
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000186-2012
BEFORE: GANTMAN, P.J., OTT, J., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Demetrius Lablaird Womack, appeals from the judgment of sentence entered in the Lancaster County Court of Common Pleas, following his bench trial convictions for possession of a controlled substance with intent to deliver ("PWID"), possession of a small amount of marijuana, and possession of drug paraphernalia. We affirm.
35 P.S. § 780-113(a)(30), (31)(i), (32).
The relevant facts and procedural history of this appeal are as follows. On December 1, 2011, at approximately 1:40 a.m., Lancaster City Police Officers McCormick and Weaver were working the night shift when they heard a single gunshot. After receiving calls from nearby residents, police determined that the gunshot had originated from 551 Howard Avenue, and multiple units responded to the scene. Upon arriving at the residence, Officer McCormick made contact with the occupants, Sharue Autry, Robert Youngblood, Appellant, and three small children. Officer McCormick ordered the adults out of the residence, and the police secured them outside for officer safety. After securing the adult occupants, police conducted a protective sweep of the residence. On the third floor, police observed drug paraphernalia in plain view.
At the same time, police discovered an outstanding arrest warrant for Appellant, and Officer Schmidt transported Appellant to the police station. Officer McCormick subsequently questioned Ms. Autry regarding who lived at the residence. Ms. Autry stated she was renting the property, and she lived there with Mr. Youngblood and her children. Ms. Autry claimed Appellant "just moved in a few days prior," and "he was just staying there until he could find another place because he was kicked out of the house that he was staying in." (N.T. Suppression Hearing, 5/9/13, at 12). Ms. Autry also indicated that Appellant slept on the third floor. Officer McCormick asked Ms. Autry for consent to search the residence, which she provided.
The officers' search revealed a spent shell casing on the floor near the front door. On the third floor, the officers recovered a digital scale, scissors, sandwich bags, and a marijuana pipe, sitting on a table. Also on the third floor, the officers found a black leather jacket. Inside the front left pocket of the jacket, the officers recovered a baggie of marijuana and a prescription pill bottle containing thirty-eight (38) baggies of crack cocaine. The pill bottle had Appellant's name on it. Following the search, Ms. Autry identified the contraband as belonging to Appellant.
The Commonwealth filed a criminal information charging Appellant with PWID, possession of a small amount of marijuana, and possession of drug paraphernalia. On February 12, 2013, Appellant filed a motion to suppress all evidence seized from 551 Howard Avenue. In it, Appellant argued that he resided on the third floor of the residence, he did not consent to the warrantless search, and Ms. Autry's consent could not extend to the area he exclusively occupied. Appellant concluded that the police conducted an illegal, warrantless search. Following a hearing, the court denied the suppression motion. Appellant immediately proceeded to a stipulated bench trial, and the court found him guilty of the remaining charges. On May 10, 2013, the court sentenced Appellant to an aggregate term of two (2) to four (4) years' incarceration, followed by one (1) year of probation. Appellant did not file post-sentence motions.
The Commonwealth withdrew one count of possession of a controlled substance prior to trial.
Appellant timely filed a notice of appeal on June 7, 2013. On June 14, 2013, the court ordered Appellant to file a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed the Rule 1925(b) statement on July 5, 2013.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ERR IN REFUSING TO SUPPRESS THE ITEMS SEIZED FROM [APPELLANT'S] THIRD FLOOR ROOM AND FROM HIS LEATHER JACKET IN THE THIRD FLOOR ROOM?(Appellant's Brief at 5).
We examine this issue subject to the following principles:
Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en banc) (internal citations and quotation marks omitted).
[W]e 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. 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.
On appeal, Appellant contends that the lessee of a residence does not have the authority to consent to the search of a bedroom exclusively occupied by a temporary houseguest. Appellant asserts he exclusively occupied the third floor of Ms. Autry's residence, the police knew this fact before asking for Ms. Autry's consent to search, and Ms. Autry could not provide valid consent for a search of the third floor. Appellant maintains the police could not reasonably believe that Ms. Autry had authority to consent to a search of the third floor. Further, Appellant argues the police removed him from the scene to avoid any objection to a search of the third floor.
Appellant acknowledges that the officers found children's toys and bedding on the third floor, thereby calling into question whether Appellant exclusively occupied the space. Nevertheless, Appellant emphasizes his uncontradicted suppression hearing testimony regarding his exclusive occupation of the third floor, and he submits, "The mere fact that children's items were stored in the space was not sufficient to contradict this testimony." (Appellant's Brief at 14). In the alternative, even if police properly relied on Ms. Autry's consent to search the third floor, Appellant claims the search of his jacket was outside the scope of such consent. Appellant insists the jacket obviously did not belong to Ms. Autry, and he did not abandon the jacket or otherwise forfeit his privacy interest in the garment. Based upon the foregoing, Appellant concludes the court should have granted his suppression motion. We disagree.
"Both the Fourth Amendment to the United States Constitution and Article I, § 8 of the Pennsylvania Constitution protect the people from unreasonable searches and seizures." Commonwealth v. McCree, 592 Pa. 238, 246, 924 A.2d 621, 626 (2007) (internal footnotes omitted). "A warrantless search or seizure is presumptively unreasonable under the Fourth Amendment and Article 1, § 8, subject to a few specifically established, well-delineated exceptions." Id. at 247, 924 A.2d at 627. "One such exception is a consensual search...." Commonwealth v Strader, 593 Pa. 421, 427, 931 A.2d 630, 634 (2007), cert. denied, 552 U.S. 1234, 128 S.Ct. 1452, 170 L.Ed.2d 281 (2008) (internal citation omitted). "[T]he common authority and apparent authority doctrines.are corollaries to the consent exception to the warrant requirement." Commonwealth v. Basking, 970 A.2d 1181, 1184 (Pa.Super. 2009), appeal denied, 604 Pa. 693, 986 A.2d 148 (2009). Regarding common authority, "The United States Supreme Court has held that a third party has actual authority to consent to a search if he/she 'possesse[d] common authority over or other sufficient relationship to the premises or effects sought to be inspected.'" Id. at 1188 (quoting U.S. v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L.Ed.2d 242, ___ (1974)).
Common authority is, of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.Basking, supra at 1188 (quoting Matlock, supra at 172 n.7, 94 S.Ct. at 993 n.7, 39 L.Ed.2d at ___ n.7 (internal citations omitted)).
With respect to apparent authority, "A third party with apparent authority over the area to be searched may provide police with consent to search." Strader, supra at 427-28, 931 A.2d at 634.
Third party consent is valid when police reasonably believe a third party has authority to consent. Specifically, the apparent authority exception turns on whether the facts available to police at the moment would lead a person of reasonable caution to believe the consenting third party had authority over the premises. If the person asserting authority to consent did not have such authority, that mistake is constitutionally excusable if police reasonably believed the consenter had such authority and police acted on facts leading sensibly to their conclusions of probability.Id. (internal citations and quotation marks omitted). Further, "the scope of a search extends to the entire area in which the object of the search may be found and properly includes the opening and inspection of containers and other receptacles where the object may be secreted." Commonwealth v. Abdul-Salaam, 544 Pa. 514, 534, 678 A.2d 342, 352 (1996), cert. denied, 520 U.S. 1157, 117 S.Ct. 1337, 137 L.Ed.2d 496 (1997) (quoting Commonwealth v. Reese, 520 Pa. 29, 33, 549 A.2d 909, 911 (1988)).
Instantly, Officers McCormick and Weaver heard a gunshot, responded to 551 Howard Avenue, ordered the adult occupants to exit, and participated in a protective sweep of the residence. During the sweep, the officers observed drug paraphernalia in plain view on the third floor. Officer McCormick described the remaining contents of the third floor as follows:
On the third floor, you walk up a set of steps and it opens up ahead of you. And to the right there's a wall the whole way down the left side.( See N.T. Suppression Hearing at 21.) The only door to the third floor was located at the bottom of the stairway. The door was open when Officer McCormick arrived, and the officer did not see any locks on the door.
As you walk up the steps there's some children's toys at the top of the steps. A little father back as you walk up there's children's toys.
To the right there's a TV stand with a TV on it, a video game console, some other electronics. In front of that is a brown leather...recliner. There's a table farther against the wall.
Then behind where the recliner sits is—there's a small mattress that would be about the size of one you'd put in a baby's crib. There's also children's toys [on] either side of the room.
Following the sweep, Officer McCormick questioned Ms. Autry. Ms. Autry informed the officer that she leased the property, and she lived there with her boyfriend, Mr. Youngblood, and three small children. Officer McCormick also asked Ms. Autry about Appellant's status:
She states that he's not on the lease. He just moved in a few days prior, that he was just staying there until he could find another place because he was kicked out of the house that he was staying in.( Id. at 12). Ms. Autry confirmed that Appellant had been using the third floor as his bedroom since the prior Sunday.
I asked her specifically about any bills that [Appellant] may be paying, the rent, anything like that, and she said he didn't pay a dime to the house or contribute in any way. Also, he was not receiving mail or anything else that would lead her or I to believe that he's a resident there.
Under these circumstances, the suppression court concluded: "[I]t was entirely reasonable for the officers to believe that Ms. Autry had authority to consent to a search of the entire residence, including the third floor." ( See Trial Court Opinion, filed August 23, 2013, at 3.) In light of the applicable scope of review and relevant case law, we agree with the suppression court. See Strader, supra; Basking, supra. We emphasize that Ms. Autry's statements to Officer McCormick did not indicate she, her boyfriend, or her children no longer had access to the third floor. The officers could reasonably believe Ms. Autry had authority to consent to a search of third floor, which appeared to be an area of joint access. See Basking, supra. Thus, the court properly denied Appellant's suppression motion. See Williams, supra. Accordingly, we affirm the judgment of sentence.
To the extent Appellant also complains that the officers exceeded the scope of Ms. Autry's consent by inspecting his jacket, the testimony demonstrated the jacket was part of the area and a location where the officers could expect to find contraband. See Abdul-Salaam, supra.
Judgment of sentence affirmed. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary