Opinion
No. 1516 MDA 2004.
Filed: June 1, 2005. Opinion Withdrawn: July 27, 2005.
Appeal from the Order Entered September 7, 2004, In the Court of Common Pleas of Lancaster County Criminal at No. 30 of 2004.
Before: STEVENS, BOWES, and McCAFFERY, JJ.
The Opinion by Judge Stevens is withdrawn. The application for panel reconsideration was granted on July 27, 2005.
¶ 1 The Commonwealth appeals from the order of the Court of Common Pleas of Lancaster County granting Appellee/Defendant John Earl Dommel's motion to suppress evidence obtained subsequent to a warrantless arrest occurring in his home. Dommel's arrest stemmed from an alleged hit and run violation, for which he had been charged with two counts of DUI, accidents involving damage to attended vehicle or property, and the summary offenses of drivers required to be licensed and traffic control signals. Herein, the Commonwealth justifies the warrantless arrest on the argument that entry into Dommel's home occurred during hot pursuit, was reasonable to prevent escape, and was supported by probable cause. We reverse and remand for further proceedings.
Pursuant to Pa.R.A.P. 311(d), the Commonwealth certifies in good faith that the lower court's order to suppress substantially terminates the prosecution of this case.
¶ 2 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. Commonwealth v. Chernosky, 2005 Pa. Super. Lexis 943 at *2 (Pa.Super. filed April 27, 2005) ( en banc). The suppression court's findings of fact bind us if the record supports those findings. Id. The suppression court's conclusions of law, however, are not binding on this Court, whose duty is to determine if the suppression court properly applied the law to the facts. Id.
¶ 3 At the suppression hearing, the Commonwealth presented the following uncontradicted testimony: On October 23, 2003 at about 10:20 p.m., Dommel was driving his pick up truck on East Towne Mall highway when his truck stopped halfway at the intersection of East Towne Mall and Route 462 despite having a green light. N.T. 9/7/04 at 4. Kevin Witman, whose Acura Integra was stopped at a red light on Route 462 at the same intersection, proceeded when the intersection lights had changed, only to be broadsided by Dommel's pick up truck, which had resumed travel through a red light. N.T. at 5-6. Witman's Acura spun to the right 180 degrees before he corrected its course just short of hitting a curb, whereupon he saw Dommel's pick up truck leaving the scene. N.T. at 6. Witman quickly assessed that his car could travel safely and he decided to follow Dommel, calling 911 as he set off. N.T. at 7.
Witman later made a full assessment of damage, which included a bent rear wheel and heavily damaged side corner panel. N.T. at 12.
¶ 4 Witman followed Dommel through four intersections and a left turn onto a residential side street, where Dommel drove his pick up onto a residential driveway. N.T. at 9. Talking with the 911 dispatcher throughout his pursuit, Witman provided authorities with a running report of Dommel's location, and officers arrived at the residence some 15 to 30 seconds after Dommel had stopped his pick up truck. N.T. at 9-10.
¶ 5 Officer Bryan Kondras of the East Lampeter Township Police Department responded to the dispatch and arrived, with emergency lights flashing, at the residence, where he saw both a pickup truck and a baseball cap-wearing white male operator, Dommel, fitting descriptions given to him over the radio. N.T. 17-18. Two other officers arrived shortly thereafter. Officer Kondras saw that Dommel had parked the pickup behind the residence, an area that is "kind of open. It leads down into an open field — or open yards, rather." N.T. at 18.
¶ 6 Dommel had already walked about fifteen feet from his pick up truck — thirty feet from the officer — and so Officer Kondras twice shouted an order for Dommel to stop where he was because the officer needed to talk to him. N.T. at 18. Dommel continued to walk towards the home despite the flashing lights and police commands, however, giving Officer Kondras the impression that Dommel was deliberately refusing to halt for police. N.T. at 28. Officer Kondras testified that he tried unsuccessfully to intercept Dommel before Dommel entered the home but was not fast enough to do so. N.T. at 20.
¶ 7 Dommel walked into the home leaving the door standing fully open behind him, and Officer Kondras ran in pursuit immediately afterward. N.T. at 21, 30. The officer entered the home without knocking or announcing and without verbal consent. He raced through the kitchen, and he encountered Dommel seated on a sofa next to his girlfriend. N.T. at 21, 22, 31. Officer Kondras placed Dommel under arrest. N.T. at 23. It was confirmed later that the house was, in fact, Dommel's residence.
¶ 8 At the close of the Commonwealth's evidence and closing arguments (not transcribed), the suppression court ruled that, without exigent circumstances to accompany clear probable cause to enter Appellee's home, the officer had violated Appellee's Fourth Amendment right against warantless search and seizure. This timely appeal followed.
¶ 9 In its Pa.R.A.P. 1925(a) opinion, the court explains that it arrived at its determination by balancing established competing interests, namely, the Commonwealth's interest in law enforcement against the fact that Dommel's offense was a non-violent, third-degree misdemeanor, that there was no reason to believe Dommel was armed, that this was not a case in which incriminating evidence could be destroyed, and that the home could have easily been secured pending receipt of either permission from Dommel or a warrant from a judicial officer.
¶ 10 The Commonwealth advances a hot pursuit justification for Officer Kondras's home entry, namely, that Dommel's leaving the door open suggested that the home was not his and was only being used as cover while he continued his flight out the back door. The Commonwealth charges the suppression court with employing "a technical analysis contrary to common-sense and ignoring the practical considerations confronting the arresting officer." Brief for Appellant at 11.
¶ 11 The two cases relied upon by the suppression court were Commonwealth v. Demshock, 854 A.2d 553, (Pa.Super. 2004), and Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269 (1994). The latter decision by the Pennsylvania Supreme Court laid out the numerous Fourth Amendment principles and considerations governing warantless intrusions into the home:
In a private home, searches and seizures without a warrant are presumptively unreasonable. Absent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment. In determining whether exigent circumstances exist, a number of factors are to be considered[:]
the gravity of the offense, (2) whether the suspect is reasonably believed to be armed, (3) whether there is above and beyond a clear showing of probable cause, (4) whether there is strong reason to believe that the suspect is within the premises being entered, (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended, (6) whether the entry was made peaceable, and (7) the time of the entry, i.e., whether it was made at night. These factors are to be balanced against one another in determining whether the warrantless intrusion was justified.
Other factors may also be taken into account, such as whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take time to obtain a warrant, or danger to police or other persons inside or outside the dwelling. Nevertheless, police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests.
Where an offense being investigated is a minor one, a balancing of the foregoing factors should be weighted against finding that exigent circumstances exist. . . . It is difficult to conceive of a warrantless home arrest that would not be unreasonable under the Fourth Amendment when the underlying offense is extremely minor.
Roland, 535 Pa. at 599-600, 637 A.2d 270-271 (quotations and citations omitted). Such constitutional protections, moreover, have been held to apply where officers encountered an open front door and an unlocked screen door on a warm summer evening. See Commonwealth v. Crompton, 545 Pa. 586, 591, 682 A.2d 286, 288 (1996) ("It is the nature of the premises, not the door to the premises, that triggers the protections of Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment of the U.S. Constitution.").
¶ 12 While such overarching principles governing warantless intrusions into the home clearly apply to the case at bar, we note that the facts involved in both Roland and Demshock are inapposite to the facts of the present case. Specifically, both Roland and Demshock involved warantless intrusions upon occupants who had been in their homes at all times, and whose first encounter with police occurred upon opening their front doors in response to a simple knock. In each case, officers entered and conducted searches upon seeing, from the doorway, marijuana ( Demshock) and underage possession of beer ( Roland) (finding that "[b]eer cans are not, however, a type of evidence that can easily be destroyed by flushing them down a drain or burning them," and that the minors would have easily been apprehended for underage consumption if they attempted to leave the house prior to officers obtaining a warrant). In neither case were meaningful exigent circumstances established.
¶ 13 In contrast, several of the enumerated factors, supra, crucial to finding the presence of exigent circumstances existed here, specifically: above and beyond a clear showing of probable cause; a strong reason to believe that the suspect is within the premises being entered; a likelihood that the suspect will escape if not swiftly apprehended; a peaceable entry; and, though a nighttime entry, one made in a very public display of police lights, before a witnessing complainant, and without surprise to the homeowner. Moreover, though ultimately charged with misdemeanor offenses, Dommel's actions at the time of pursuit indicated a callous disregard of a violent automobile collision which he caused. Officer Kondras thus did not enter the home of beer drinking minors or marijuana smokers, but of a hit and run suspect who had shown no concern for the physical injury he may have caused his victim. Though neither wanted for a felony nor believed to be armed, there was nevertheless reason under these facts to consider Dommel dangerous.
¶ 14 Similarly, Officer Kondras witnessed that Dommel had parked his pickup to the extreme rear of the property, had ignored obvious police commands to stop, and had entered a home while leaving the door wide open, all suggesting a further disregard for law enforcement, a likelihood of an escape attempt, and a possibility that the home was not even his own. Dommel's actions thus warranted immediate pursuit.
¶ 15 Finally, we find that any expectation of privacy Dommel had in his home under such circumstances was unreasonable, as he must have known that it was he who directed a police pursuit from outside his home to inside his home. See Commonwealth v. Govens, 632 A.2d 1316 (citing United States v. Santana, 427 U.S. 38, 43, 96 S.Ct. 2406, 2410, 49 L.Ed.2d 300, 306 (1976) and its rationale "that police had been in `hot pursuit' when they followed the suspect into her home. The Court observed that `a suspect may not defeat an arrest which has been set in motion in a public place, and is therefore proper . . . by the expedient of escaping into a private place.'")
¶ 16 Given the totality of such circumstances, we find Officer Kondras's warantless entry into Dommel's house was supported by both probable cause and exigent circumstances. Accordingly, we reverse the suppression order entered below, and remand for further proceedings.
¶ 17 Order reversed. Remanded for further proceedings consistent with this decision. Jurisdiction relinquished.