Opinion
1194 MDA 2020
05-28-2021
COMMONWEALTH OF PENNSYLVANIA v. LOUIS RICHARD GRIMES, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered August 6, 2020 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67- CR-0001166-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J. [*]
MEMORANDUM
PELLEGRINI, J.
Louis Richard Grimes, Jr. (Grimes) appeals from the August 6, 2020 judgment of sentence imposed by the Court of Common Pleas of York County (trial court) following his convictions for persons not to possess a firearm, discharge of a firearm into an occupied structure, three counts of recklessly endangering another person and criminal mischief. Grimes argues that the trial court erred in denying his motion to suppress. We affirm in part, reverse in part and remand for further proceedings.
I.
A.
We glean the following facts from the certified record. On January 12, 2019, Officer Benjamin Smith (Officer Smith) of the York City Police Department responded to a 911 call from Sepia DeShields (DeShields). DeShields reported that her boyfriend, Grimes, had fired several shots at her vehicle and her home. She believed Grimes could be found nearby at his ex-girlfriend's home. Officers proceeded to the address and immediately observed Grimes leaving the home and placed him under arrest.
Contrary to the assertions in the Concurring and Dissenting Memorandum, we do not engage in appellate fact-finding in setting forth the facts of this matter or in our subsequent legal analysis. That memorandum arrived at that belief because the suppression court made inadequate findings so necessarily, we must have engaged in impermissible factfinding to arrive at our decision. However, it is well-settled that in reviewing an appeal from the denial of suppression, "we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole." Commonwealth v. Way, 238 A.3d 515, 518 (Pa. Super. 2020) (citation omitted). Here, the Commonwealth offered the testimony of Officer Smith and his body camera footage and Grimes offered Camille's testimony. Our analysis takes into consideration Officer Smith's uncontradicted testimony that he did not hear Camille's responses and his body camera footage. Consistent with our standard of review, we only rely on Camille's testimony to the extent that it is both uncontradicted and supported by the Commonwealth's evidence. Remand for fact-finding is not necessary when the facts are not in dispute.
Officer Smith and his partner then approached the home and spoke with one of the occupants, 25-year-old Denzell Sipe (Denzell), who contacted his mother, Camille. Officer Smith understood Camille to be the owner of the home and attempted to speak with her on the phone at approximately 11 AM about conducting a search. However, Camille was at a cheerleading competition in Harrisburg and he could not understand her because of the background noise. Officer Smith attempted to explain that he wanted to search the home for any evidence related to the shooting. He said that obtaining a search warrant for the home was "a possibility." Notes of Testimony, 10/3/19, at 29. At the suppression hearing, Officer Smith testified that Camille may have told him to get a search warrant when they were on the phone but he could not hear her. He spoke with her twice on the phone and she told him she would return home at approximately 1 PM.
For clarity, we refer to Denzell and his mother, Camille Sipe, by their first names.
After his unsuccessful calls with Camille, Officer Smith consulted his supervisor and they determined that because Denzell was an adult who lived in the residence, he could consent to a search. Officer Smith again spoke with Denzell, explained the situation regarding the shooting, and asked for consent to search the home. Denzell agreed and signed a consent form at 11:40 AM.
Denzell told the officers which bedroom Grimes usually stayed in and the officers began to search. They recovered a pair of pants that matched the description given by DeShields. Another officer had also observed someone in similar pants on a surveillance camera near the scene of the shooting. Additionally, they recovered a shell casing that was sitting on top of the dresser in the bedroom.
Officers also found a safe in the bedroom closet which they were unable to open until Camille returned home. When she arrived at the home, the officers explained to her that they were looking for evidence related to the shooting and asked her for the combination to the safe. They did not explain that they had obtained Denzell's consent to search the home. Camille said that Grimes did not reside at the home, but he was the father of two of her children and spent the night there regularly. Camille told the officers that she did not know the exact combination to the safe, but she knew it was a zip code in the Bronx. They used that information to open the safe and recover a black Glock 26 9mm semi-automatic pistol from inside.
As the officers were leaving the home, Camille asked to see the search warrant. Officer Smith explained that they did not have a search warrant because Denzell had consented to the search. Officer Smith testified that no coercion or threats were used to continue the search once Camille returned home.
At the suppression hearing, the Commonwealth presented two portions of Officer Smith's body camera footage from the day of the search.Commonwealth Exhibit 2 was approximately 18 minutes of footage covering the period of time after Camille returned to the residence. When she returned, Officer Smith told Camille that the officers were only looking for evidence against Grimes and said "If you wouldn't mind opening the safe to see if he put a gun in there, that's the only thing we're looking for." Commonwealth Exhibit 2 at 12:03. He informed her that they found a shell casing on the dresser and that if they found a gun in the safe, the search would be complete and they would leave. Camille did not ask Officer Smith whether he had a search warrant. Officer Smith repeatedly told Camille and Denzell throughout both videos that he was not looking for evidence against them or their family and was only interested in finding evidence related to Grimes. The officers told Camille that they had already arrested Grimes.
Portions of the audio in both exhibits are unintelligible. We set forth the conversations that we are able to discern. Camille's voice on the phone calls is inaudible but we glean some of her responses from Officer Smith's side of the conversation.
Camille said that she did not know if she remembered the combination but began attempting to open the safe. Eventually she recalled that the combination was a zip code from the Bronx and an officer looked up a list of Bronx zip codes from the internet. The officer took over entering the zip codes into the safe and Officer Smith asked if there was anywhere else Grimes would keep items in the house. Camille directed him to a drawer in the bedroom. Camille and Officer Smith spoke about the search and the cheerleading competition while the second officer attempted to open the safe. Moments later, the officer opened the safe and located the firearm.
Officer Smith and Camille continued talking while the additional officer completed the inventory form and Officer Smith, referencing their earlier phone call, said "it was really difficult because I couldn't hear a word you were saying." Id. at 12:18. As the officers left the house, Officer Smith thanked Camille for her cooperation and she asked to see the search warrant. Officer Smith informed her that they did not have a search warrant because Denzell signed the consent form as an adult resident of the house. He explained that he had tried to talk to Camille about consenting to the search but "we couldn't understand each other on the phone." Id. at 12:19.
Commonwealth Exhibit 3 was Officer Smith's body camera footage while he was attempting to speak with Camille on the phone. The officers first spoke to Denzell and asked him for Camille's phone number, which he provided. Camille did not answer the phone when Officer Smith called, so the officers asked Denzell to call her from a phone number she would recognize. When he spoke with Camille, Officer Smith first asked if she could move somewhere quieter and whether Grimes had been at her house the previous night. He explained that Grimes might have left some items in the house and asked when Camille would return home, and she responded that she would be back at 1 PM. Officer Smith told her that if she was not home by then he would call her promptly at that time to talk further.
The officers then left the front porch and discussed speaking with Camille at 1 PM to get consent to search the home with other officers on the scene. Officer Smith explained that Camille was at a competition with loud music and they could barely hear each other. He and another officer on the scene spoke about securing the home in the meantime and "getting a ticket."Commonwealth Exhibit 3 at 11:07. The officers returned to the porch and spoke with Denzell again. They explained that they needed to secure the house while they got a search warrant for any evidence related to Grimes. They asked Denzell if he could leave for a couple of hours because they needed to remove everyone from the home while they waited for a search warrant. The officers then followed Denzell for a brief sweep of the house to ensure that no one else was inside.
Officer Smith explained at the suppression hearing that he was referring to a search warrant.
Camille called Denzell on the phone during the sweep but their conversation was not captured on the camera.
Officer Smith then received a phone call from Camille. At the outset of the conversation, Officer Smith said, "I can barely hear you, but if you can hear me then that's fine." Id. at 11:12. He went on to explain that they wanted to look for anything that Grimes had brought into the house overnight and that she and Denzell were not in any trouble. He said they needed to follow procedure to search for evidence. He told Camille that if she was at the house, they would ask her to sign a consent to search form, but because she was in Harrisburg, they "have to get a search warrant." Id. at 11:13. He mentioned that Denzell could be at the house "when that happens." Id. at 11:13. Officer Smith then said that he would explain more "when we can both hear each other." Id. at 11:14.
B.
Camille also testified at the suppression hearing regarding her interactions with Officer Smith on the day of the search. She testified that she lives with her six children and Denzell was the only adult child. Grimes is the father to two of the children and he stayed at the house frequently to care for them. He kept clothes and a safe in the bedroom. Camille testified that the safe had been in the closet for over 15 years, but she had never opened it. Grimes had told her in the past that the combination was a zip code from the Bronx.
On the morning of the search, Camille was attending a cheerleading competition with her daughter. She testified based on her phone records that Denzell first called her at 11:05 AM to tell her that the police wanted to search the home and she told him not to let the officers conduct the search. She then spoke with an officer on the phone a couple of minutes later. She told the officer that she would be home after 1 PM and that he should meet her at the house then. She told him that he did not have permission to search her home. She testified that the officer told her he would get a search warrant and meet her at the house around 1 PM. She spoke with the officer again at approximately 11:45 AM and he told her they were in the process of getting a search warrant. The officer did not advise her that Denzell had consented to the search. Camille said she initially had difficulty hearing the officer because of the background noise at the competition, but they were able to speak to each other after she stepped out into a hallway.
When Camille returned home around 1 PM, she saw Denzell sitting on the couch and officers inside the house. She did not speak with Denzell immediately but said "he knew I was mad." Notes of Testimony, 10/3/19, at 17. She did not immediately ask to see a search warrant and helped the officers open the safe in her bedroom. After the search, she asked to see the search warrant and the officers told her that Denzell had consented to the search. Camille confirmed that Denzell had lived at the home for several years, had access to the entire house, and was 25 years old at the time of the search.
C.
Grimes subsequently filed a motion to suppress the pants, shell casing and firearm that were recovered during the search. The Commonwealth argued that the warrantless search was permissible because Denzell had apparent authority over the entire home and provided voluntary consent to the search. It argued that Officer Smith was not able to hear Camille during their phone conversations and he was permitted to seek consent for the search from another adult with authority over the premises.
The Commonwealth also initially argued that Grimes did not have a reasonable expectation of privacy in the home. On appeal, the Commonwealth and the trial court agree that Grimes did have a reasonable expectation of privacy as he was a frequent overnight guest, kept belongings there, had a key to the home, and visited without announcing himself. See Commonwealth's Brief at 13; Trial Court Opinion, 11/17/20, at 6.
Grimes argued that Denzell could not consent to the search because his mother, Camille, had a "higher degree of authority for the home." Id. at 52. He argued that the body camera footage confirmed that they agreed to get a search warrant and wait until 1 PM when Camille would be home to search the premises. He further argued that obtaining consent from Denzell to search the premises was an "end run" around Camille's actual authority over the premises. Id. at 54. In the alternative, he argued that the firearm should be suppressed because Camille only helped the officers open the safe because she was under the impression that they had already obtained a search warrant. Finally, he argued that Camille did not have the authority to consent to a search of his safe.
The trial court denied the motion to suppress. Without resolving the contradictions between Officer Smith and Camille's testimony, the trial court determined that Denzell had authority over the premises and his consent was sufficient to allow a search of the home and the containers within.
The Honorable Gregory M. Snyder presided over the suppression hearing and ruled on the motion at the conclusion of the hearing. The Honorable Harry M. Ness presided over the trial and sentencing proceedings and authored the opinion pursuant to Pa.R.A.P. 1925(a).
Grimes proceeded to trial where he was convicted of the above-mentioned charges. On August 6, 2020, the trial court sentenced Grimes to 5 to 10 years' incarceration for persons not to possess a firearm; 2.5 to 5 years' incarceration to be served consecutively for discharge of a firearm into an occupied structure; and 1-2 years' incarceration for each of the three counts of recklessly endangering another person, to be served concurrently. The aggregate sentence was 7.5 to 15 years of incarceration. Grimes filed a timely post-sentence motion seeking modification of the sentence which the trial court denied. He filed a timely notice of appeal and he and the trial court have complied with Pa.R.A.P. 1925.
II.
On appeal, Grimes contends that the trial court erred in denying his motion to suppress. He first argues that Denzell did not have actual or apparent authority to consent to a search of the home. Second, he argues that even if Denzell's initial consent to search the home was proper, Camille's later consent to search the safe was involuntary based on her mistaken impression that the officers had already obtained a search warrant.
An appellate court's standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to
A.
Consent voluntarily given by an individual with authority to do so is an exception to the general requirement that a law enforcement officer must obtain a warrant to conduct a search of an individual's home. Commonwealth v. Hawkins, __A.3d__, 1524 WDA 2019, at *5-6 (Pa. Super. 2020). An individual has actual authority to consent to a search if he or she "possesses common authority over or other sufficient relationship to the premises or effects sought to be inspected." Commonwealth v. Basking, 970 A.2d 1181, 1188 (Pa. Super. 2009) (quoting U.S. v. Matlock, 415 U.S. 164, 171 (1974)). Common authority is based on "mutual use of the property by persons generally having joint access or control for most purposes." Commonwealth v. Perel, 107 A.3d 185 (Pa. Super. 2014) (cleaned up). A person may have a property interest without having common authority over a premises if he or she does not enjoy joint access and control of the premises. Basking, supra (noting that a landlord does not have common authority over a tenant's apartment by virtue of owning the property). Finally, "a family member has the common authority to permit a search of the family home unless one family member has manifested and exhibited an intent to exclude others from certain areas of the home." Commonwealth v. Gibbons, 549 A.2d 1296, 1301 (Pa. Super. 1988).
In contrast, under the apparent authority doctrine, an individual's consent to a search is valid even if he or she does not have actual authority if the officers reasonably believe based on the totality of the circumstances that the individual had actual authority to consent. Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007). "[T]he 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." Id. If the totality of the circumstances renders ambiguous the third-party's authority to consent to the search, the officer must "make further inquiries to determine the status of the consenting party." Commonwealth v. Blair, 575 A.2d 593, 598 (Pa. Super. 1990).
We conclude that Denzell had apparent authority to consent to the search of the home in Camille's absence, and it was reasonable for Officer Smith to rely on this authority in seeking consent to search the home. Denzell was 25 years old at the time of the search and had lived at the house for at least a couple of years after he finished college. He lived at the home fulltime and had access to the entire house, and he answered the door when the officers first arrived at the home after arresting Grimes. Denzell explained that Grimes had two children with Camille, stayed at the house occasionally and had been there that morning. Officer Smith was not able to speak with Camille over the phone because of the background noise from the cheerleading competition, so he asked Denzell for consent to search the home because he was an adult who resided there. After Denzell signed the consent form, he directed Officer Smith to the bedroom upstairs that Grimes used.
In addition, Denzell led the officers through the home before giving consent to search so that they could secure the premises and ensure no one else was inside. He demonstrated authority over the premises by walking the officers through each room and explaining who stayed in the different bedrooms. This sweep occurred before Officer Smith asked Denzell for consent to search the home. Officer Smith could reasonably infer from Denzell's actions that he had common authority over the premises.
Grimes's argument that Camille had superior authority over the home requires us to credit her testimony that she was "in charge" of the home and that Denzell was subject to her "rules." Notes of Testimony, 10/3/19, at 17-18, 21. Because the Commonwealth prevailed below, we 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." Postie, supra. Camille's testimony about her authority over the home at the suppression hearing was uncontradicted and we accept her testimony that she expressly instructed Denzell not to allow the officers to search the home. Gibbons, supra.
However, in determining whether Denzell had apparent authority over the home, we consider the totality of the circumstances based on the facts that Officer Smith was aware of at the time of the search. Strader, supra. Officer Smith and Camille disagreed at the suppression hearing regarding whether Officer Smith heard Camille's objection to the search and agreed to get a search warrant. For the purposes of our review, we accept Officer Smith's unequivocal testimony that he was not able to hear Camille when he attempted to speak with her on the phone. Because he did not hear Camille's objections to the search, it was reasonable for Officer Smith to believe that another adult who resided on the premises had authority to consent to a search of the home. This was particularly true when Denzell initially answered the door when the officers arrived, explained Grimes's relationship to Camille, had knowledge about the frequency of Grimes's visits to the home, led the officers through a sweep of the home and directed them to the bedroom that Grimes used when he spent the night.
Georgia v. Randolph, 547 U.S. 103 (2006), concerning searches in which one tenant objects and another consents, is distinguishable for several reasons. First, the holding in that case was expressly limited to situations in which the non-consenting occupant of the home was physically present to object to the search. Id. at 120. In emphasizing that the objecting co-occupant must be physically present to assert his or her right to preclude the officers from entering, the Supreme Court recognized that when individuals share a home, they must accept that in their absence one of their co-occupants could allow an unwelcome visitor into the home. Id. at 111-12.
Moreover, while Camille testified at the suppression hearing that she alone is in charge of the home, there was no testimony that she made Officer Smith aware of this fact or of the other "rules" that Denzell was subject to while living there. Camille only testified that she told Denzell not to allow the officers to search the home and that she told the officers to meet her at the home with a search warrant. While Officer Smith clearly knew that Camille had authority to consent to the search, it does not follow that Camille was the only person with authority to consent to the search.
Grimes relies on Commonwealth v. Garcia, 387 A.2d 46 (Pa. 1978) for the proposition that a parent may have superior authority over a home she shares with a child such that the child does not have authority to consent to a search of the premises without the parent's permission. There, the Supreme Court stated that the validity of third-party consent depends upon "whether that third party had co-equal dominion and control over the area or property to be searched," noting, for example, that a landlord may not consent to a search of a tenant's home and a hotel clerk may not consent to a search of a guest's room. Id. at 55. In Garcia, the defendant's 16-year-old daughter consented to a search of the defendant's home. Id. at 54. Without further discussion, the court concluded that the defendant "had the power to determine the extent of her daughter's authority to admit people to the house and therefore her consent was ineffective." Id. at 55.
The court in Garcia did not expand on the factual basis for its determination that the daughter did not have co-equal authority over the premises to consent to the search. However, the fact that the daughter in Garcia was 16 years old as opposed to 25 years old is not a trivial distinction. An officer of "reasonable caution" may conclude that further inquiry is necessary to determine whether a minor still in the custody of a parent is permitted to authorize a search of a family home in her parents' absence. Strader, supra; Blair, supra. However, when adults reside together, an officer is more justified in concluding that one such adult has authority to permit a search of the home, and that the residents each retain authority to admit other guests to the residence without permission from their co-occupants. Randolph, supra, at 120. While the inquiry is fact-specific and there is no precise age at which an individual becomes old enough to consent to a search, it is reasonable for an officer to believe that a 25-year-old adult has the authority to consent to a search of a family home in which he resides. Under these circumstances, the initial search of the home, which uncovered the pants and shell casing, was proper.
B.
Next, Grimes argues that the trial court erred in denying his motion to suppress the firearm because the search of the safe was fruit of the unlawful search of the home, and because Camille's consent to aid the officers in opening the safe was unknowing and involuntary. He argues that Camille only consented to the search of the safe based on her mistaken belief that the officers had already obtained a search warrant. He contends that the officers exploited this misunderstanding to get the combination to the safe from Camille, rendering her consent involuntary. The Commonwealth responds that, based on the totality of the circumstances, Camille's consent was voluntary, even if she mistakenly believed the officers had a search warrant. Commonwealth's Brief at 32. It argues that the officers did not intend to deceive Camille by obtaining consent to search from Denzell because they only realized they could seek his consent after speaking with Camille. Id.
As we have concluded that the search of the home was lawful, we do not address this argument further.
Grimes argued below and in his concise statement pursuant to Pa.R.A.P. 1925(b) that Camille did not have authority to consent to the search of his safe, but he does not raise this argument on appeal.
For consent to search to be constitutionally valid, it must be given intelligently and voluntarily. "For a finding of voluntariness, the Commonwealth must establish that the consent given by the defendant is the product of an essentially free and unconstrained choice-not the result of duress or coercion, express or implied, or a will overborne-under the totality of the circumstances." Commonwealth v. Valdivia, 195 A.3d 855, 862 (Pa. 2018) (quotations & citation omitted). In assessing the voluntariness of consent to search, we consider the following factors:
(1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen's movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8)whether the person has been told that he is free to leave; and 9) whether the citizen has been informed that he is not required to consent to the search. Hawkins, supra, at *6 (citation omitted). In addition, "the maturity, sophistication and mental or emotional state of the [individual] (including age, intelligence and capacity to exercise free will), are to be taken into account."Id.
Factor nine, "whether the citizen has been informed that he is not required to consent to the search," is most relevant to this case. Id. Camille was undisputedly aware of her right to refuse consent to a search. She testified repeatedly at the suppression hearing that she told Officer Smith that he would have to get a search warrant to search her home, though Officer Smith could not hear these orders over the phone. During their second phone call, Officer Smith explicitly explained to Camille that he would ask her to sign a consent to search form if she was present at the house, but because she was not, he would "have to get a search warrant." Commonwealth's Exhibit 3 at 11:13. He told her that Denzell could be present while the search warrant was executed if she had not returned by then and that he could explain the situation in more detail when they spoke in person.
Officer Smith testified at the suppression hearing that he told Camille that obtaining a search warrant was "a possibility," but the conversation captured on the body camera reveals that he told her that he had to get a warrant. Compare Notes of Testimony, 10/3/19, at 29, with Commonwealth's Exhibit 3 at 11:13.
It is well-established that consent to search is not valid when it is given only after a law enforcement officer falsely asserts that he has a search warrant to search the premises. Bumper v. North Carolina, 391 U.S. 543, 550 (1968); see also Commonwealth v. White, 327 A.2d 40, 42 (Pa. 1974) (holding that mother "did not voluntarily consent to the search of her apartment, but rather acquiesced to a claim of lawful authority" when she allowed search only after being shown a defective warrant). "When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion-albeit colorably lawful coercion." Bumper, supra.
Consent is not coerced merely because an officer informs a suspect that he will obtain a search warrant if the suspect does not consent to the search. Commonwealth v. Mack, 796 A.2d 967, 971 (Pa. 2002). Rather, the officer's statement is one factor to consider under the totality of the circumstances to determine whether consent was freely and voluntarily given. Id.; see also Commonwealth v. Bagley, 596 A.2d 811, 818-19 (Pa. Super. 1991) (consent was voluntary when defendant told officer that he did not need a search warrant and led the officer on a tour of his house); Commonwealth v. Woods, 368 A.2d 304, 306 (Pa. Super. 1976) (consent was voluntary when defendant initially refused to allow search but consented after officer told him that he would obtain a search warrant instead).
Here, it is undisputed that Camille was under the impression that the officers obtained a search warrant between the time when she spoke with Officer Smith on the phone and when she returned to the house. The body camera footage reveals that during one of the calls, Officer Smith told her that because she was in Harrisburg, they "have to get a search warrant." Commonwealth's Exhibit 3 at 11:13. He did not tell Camille that Denzell or anyone else may be able to consent to the search. When Camille returned to the home, Officer Smith did not explain that they had started the search with Denzell's consent. He said that they had already found a shell casing in the bedroom and asked for her help to open the safe. He also reassured her that they were not looking for any evidence of crimes committed by her or her family members and would leave the home if they found the gun in the safe. After they had opened the safe and secured the gun, Camille asked to see the search warrant. At that time, Officer Smith explained that Denzell had signed a consent form.
We recognize that Officer Smith only realized that Denzell could consent to the search after speaking with his supervisor which occurred after his phone calls with Camille.
The facts of this case align more with Bumper and White, cited by Grimes, than Bagley and Woods, cited by the Commonwealth. When Officer Smith spoke with Camille on the phone, he informed her that there were "procedures" to follow to search her home, and that because she was not present to sign the consent form, he would "have to get a search warrant." Id. He also told Camille that he would explain the situation in more detail when she returned to the house. Unlike in Bumper and White, Officer Smith never affirmatively stated to Camille that he had already obtained a search warrant to search her home. When she returned to the house, he explained to her that he was looking for evidence related to Grimes and said, "If you wouldn't mind opening the safe to see if he put a gun in there, that's the only thing we're looking for." Commonwealth Exhibit 2 at 12:03.
Camille testified at the suppression hearing that she only acquiesced to Officer Smith's request because she believed that he had obtained a search warrant, a fact that was corroborated by the body camera footage and Officer Smith's testimony that she asked to see the search warrant after opening the safe. Based on the statements Officer Smith made on the phone, it was reasonable for Camille to conclude that the officers had already obtained a search warrant. Officer Smith had told her that "procedures" required him to either have her sign a consent form or obtain a search warrant to conduct the search in her absence. He never informed her of a third possibility - that another adult who lived in the residence could consent to the search. Camille never signed a consent form but when she arrived home, the search was already in process. Based on Officer Smith's statements, Camille then reasonably concluded that he had obtained a search warrant to begin the search in her absence. Even though Officer Smith did not show Camille a fraudulent or defective search warrant to obtain her consent to open the safe, it was his own statements that led to her conclusion that she did not have a right to refuse to open the safe. Camille was well aware of her right to refuse to consent to a warrantless search based on her earlier conversations with Officer Smith, further indicating that her acquiescence in opening the safe was based on her belief that she was required to do so.
Based on this order of events, Bagley and Woods are inapposite. In both of those cases, the defendants consented to the search after they were told that the officer was in the process of obtaining a search warrant or would obtain a warrant. Thus, the defendants in Bagley and Woods were aware at the time they consented to the searches that the officer did not have a search warrant to conduct the search. Here, Camille believed the officers had already obtained a search warrant by the time that she returned to her home, and it was Officer Smith's own statements that led her to this conclusion. Importantly, the officers made no effort to explain to Camille that Denzell had consented to the search, even though Officer Smith had told Camille earlier that either she would have to sign a consent form personally or they would have to obtain a search warrant.
Thus, we conclude that Camille's consent to open the safe was not "the product of an essentially free and unconstrained choice" as she did not know at the time that she still had the right to ask the officers to obtain a warrant -a right she had attempted to assert during the earlier phone calls. Valdivia, supra. Rather, her consent was based exclusively on her belief that Officer Smith had acted in accordance with his earlier representation that he had to get a search warrant to search the home in her absence. Under these circumstances, Camille's consent was simply acquiescence to a show of lawful authority rather than a free and voluntary choice. White, supra. The trial court erred in denying suppression of the contents of the safe on these grounds.
C.
Moreover, this case does not meet the high burden required for establishing inevitable discovery. In Commonwealth v. Perel, 107 A.3d 185, 195 (Pa. Super. 2014), we analyzed the doctrine under similar facts. Perel concerned a robbery where the defendant and victim knew each other. Id. at 186-87. The victim told police that the defendant had a gun in a leather bag, had entered a specific apartment building and had exited with his girlfriend shortly thereafter. Id. at 187. The police arrested the defendant nearby with his girlfriend and asked her for her consent to search her apartment. Id. The girlfriend granted consent and the police recovered and searched the defendant's leather bag from her apartment. Id. This Court held that the search of the defendant's bag was not supported by valid consent and that the inevitable discovery doctrine did not apply. Id. at 194.
In rejecting the inevitable discovery argument, we emphasized that the doctrine is not "an invitation for appellate courts to overlook patently unconstitutional searches whenever the police could have complied with the Constitution's warrant requirement, but instead consciously disregarded it." Id. at 195. We rejected the proposition that the mere existence of probable cause was sufficient to establish inevitable discovery. Id. at 195 & n.13. "Stated simply, the inevitable discovery doctrine is not a substitute for the warrant requirement. Police must demonstrate that the evidence would have been discovered absent the police misconduct, not simply that they somehow could have lawfully discovered it." Id. at 196 (emphasis in original). The facts of this case are analogous to the facts in Perel. Even if the officers had probable cause to obtain a warrant to search Grimes' safe, they elected not to, despite the fact that Officer Smith told Camille that he would need a warrant to search her home without her consent. To "make a post-hoc determination that sufficient probable cause existed at the time of an otherwise illegal search" would render the strong privacy protections in Article I, Section 8 of the Pennsylvania Constitution illusory. Id.
The concurring and dissenting memorandum cites to Commonwealth v. Price, 244 A.3d 1250 (Pa. Super. 2020), positing that the firearm should not have been suppressed because it would have been inevitably discovered. In Price, a warrant was obtained to secure phone records from the cell phone carrier. Those records were later suppressed because the affidavit did not establish a probability that the phone number for which the police sought records was connected to the phone that was seized or that the phone records probably contained evidence of a crime. On appeal, we reversed because the phone records would have been of inevitably discovered because the officers had possession information when it applied for the warrant for the cell phone records but that information was mistakenly omitted.
Price does not apply for several reasons. First, the officers in Price first obtained a search warrant for the phone records but made a mistake in not including information that would have established probable cause. In this case, no warrant was ever sought. Second, while Price involved phone records in the possession of a third party, what was involved here was the unlawful search of someone's home. Searches and seizures occurring in a home are treated from search and seizures in other places. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371 (1980). "[T]the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion stands at the 'very core' of the Fourth Amendment" Id. at 445 U.S. at 589-90, 100 S.Ct. at 1382 (1980), quoting from Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 683 (1961). See also Commonwealth v. Romero, 183 A.3d 364 (Pa. 2018). Moreover, under the concurring and dissenting memorandum's position, the warrant requirement for a home could be circumvented entirely if the officers had a good faith belief that they had probable cause to search and, if something was found, justify the search as being inevitably discovered. Absent obtaining permission or exigent circumstances, a search of home in such circumstances compels the suppression of that evidence.
D.
Finally, we conclude that the denial of suppression was not harmless error. An error is harmless if
Grimes argued preemptively in his brief on appeal that the admission of the firearm was not harmless. Even though it is well-settled that the Commonwealth bears the burden of proving harmlessness beyond a reasonable doubt on appeal, the Commonwealth declined to respond to Grimes's harmlessness argument in its brief. Commonwealth v. Hamlett, 234 A.3d 486, 488 (Pa. 2020). However, the firearm was only one part of the evidence against Grimes at trial. Thus, we consider his arguments regarding harmlessness. Id. at 493.
(1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error so insignificant by comparison that the error could not have contributed to the verdict.Commonwealth v. Green, 162 A.3d 509, 519 (Pa. Super. 2017) (en banc) (emphasis omitted) (quoting Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa. Super. 2004)). "An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict." Id. (citation omitted).
Here, the firearm was a central component of the Commonwealth's case. The Commonwealth first relied on the firearm in its opening argument while describing the search of Camille's home:
In that house they found what really ties this case together. They found that gun. It was a 9 millimeter handgun. The shell casings that were found out in the street beside the car that had been shot up and also in front of the house were 9 millimeter shell casings.
They found that handgun in a safe. The safe was one that Mr. Grimes was the only one who used it. His papers were in there, his gun was in there.
Now, how are we going to prove to you that it's his gun? It's his gun because we're going to provide DNA evidence to you that the gun was swabbed. His DNA was on the gun.Notes of Testimony, 7/6-8/2020, at 90-91.
DeShields testified as the only witness to the shooting incident. She testified that she was dating Grimes at the time of the shooting and the two had gotten into an argument at approximately 5 AM. Id. at 145-46. Grimes was intoxicated and agitated and one of DeShields' adult children called the police. The police responded to the call at that time and Grimes left the house. Id. at 147. At approximately 8:30 AM, DeShields heard gunshots outside of her home. Id. at 149-50. The police returned to the scene and discovered damage from bullet holes in her front door, inside her home and in her car outside. Id. at 151-53. She did not see the shooting or see Grimes in possession of a gun. Id. at 158.
After the shooting, while DeShields was speaking with Officer Smith, Grimes called her on the phone and said, inter alia, "I did what I did. They had it coming." Id. at 210-11. As described supra, Grimes was arrested shortly thereafter leaving Camille's house. In their initial search, officers recovered a pair of green pants that Grimes had been wearing earlier when he was at DeShields' home.
The Commonwealth then called Camille and Officer Christopher Thompson (Officer Thompson) to testify regarding the search of Camille's home and the discovery of the firearm in the safe. Camille testified that the safe and gun belonged to Grimes. Officer Thompson testified that in addition to the gun, the safe contained several pieces of mail addressed to Grimes and his expired New York driver's license. Id. at 172, 177-78.
The Commonwealth then presented testimony from a criminal forensics laboratory technician who analyzed a gunshot residue test taken from four samples of Grimes's hands after his arrest. She concluded that each sample showed the presence of gunshot residue. Id. at 196. She also conceded that she could not tell based on the test results when the residue was deposited on Grimes's hands, how long it had been there or even if he had fired the weapon that deposited the residue. Id. at 201-02.
The Commonwealth additionally presented expert testimony from Corporal Nicholas Scianna, a firearm and tool mark examiner with the Pennsylvania State Police. Corporal Scianna described the process of test-firing bullets from a weapon and comparing the test cartridges to discharged cartridges recovered from the scene. Id. at 228-40. Based on his analysis, he concluded that the cartridges recovered from DeShields' home were fired from the gun recovered from Grimes's safe. Id. at 240-42, 249.
Finally, the Commonwealth presented testimony from a forensic DNA scientist who analyzed a DNA sample taken from Grimes and compared it to three swabs taken from the firearm. Id. at 276-78. She explained the process of analyzing a sample taken from a known suspect and comparing it to samples recovered during an investigation. Id. at 282-87. She concluded that the swabs taken from the firearm contained a mixture of DNA from at least two individuals, one of whom matched the DNA sample taken from Grimes. Id. at 287-88. She was not able to determine when the DNA was deposited on the firearm or how long it had been there. Id. at 297.
In its closing argument, the Commonwealth once again relied heavily on the gun and the forensic evidence derived from it. The Commonwealth argued that the "gun is the most important piece of evidence in this case. Because that gun is what ties Mr. Grimes definitely back to the gunfire at [DeShields'] house." Id. at 321. It further argued that the indicia in the safe all belonged to Grimes as well, proving that the safe and its contents belonged only to him. Id. Finally, it summarized the firearm identification and tool mark evidence linking the gun to the shooting and the DNA evidence linking the gun to Grimes. Id. at 323-25.
It is clear from the record that the Commonwealth relied heavily on the firearm as well as the DNA and ballistics evidence in prosecuting its case against Grimes, and we cannot conclude beyond a reasonable doubt that it did not contribute to the jury's verdict. Green, supra. The firearm and related evidence could have allowed the jury to overcome any holes in DeShields' testimony to place Grimes at the scene of the shooting. Because this evidence could have contributed to the jury's conclusion that the Commonwealth had proven that Grimes was the shooter beyond a reasonable doubt, its admission at trial was not harmless.
Judgment of sentence affirmed in part and reversed in part. Case remanded for further proceedings. Jurisdiction relinquished.
Judge McLaughlin concurs in the result.
Judge Murray files a concurring and dissenting memorandum.
Judgment Entered.
CONCURRING AND DISSENTING MEMORANDUM
MURRAY, J.
After carefully reviewing the record, I agree with the Majority's determination that "Denzell had apparent authority to consent to the search of the home in Camille's absence," but lacked authority to consent to the search of the safe. Maj. at 13 and 18 n.12. However, even if I were to agree with the Majority's additional finding that Camille's consent to the search was involuntary, I cannot agree with the Majority's determination that "the denial of suppression was not harmless error." Id. at 25 (footnote omitted). The Majority appears to engage in fact-finding in reaching this conclusion; further, the record indicates that the gun would have been admissible under the doctrine of inevitable discovery. For these reasons, I would affirm the denial of suppression, but on a basis different from that of the trial court. See Rosiecki v. Rosiecki, 231 A.3d 928, 933 (Pa. Super. 2020) ("[W]e are not limited by a trial court's rationale, and we may affirm its decision on any basis.").
The Rules of Criminal Procedure provide:
At the conclusion of the [suppression] hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant's rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.Pa.R.Crim.P. 581(I).
However, as our Supreme Court observed, compliance has been less than optimal:
We recognize that, unfortunately, it is not uncommon for suppression judges to fail to comply with this directive, and the lapse is then belatedly accounted for, if at all, either in the court's Pa.R.A.P. 1925 opinion filed after an appeal is taken by the aggrieved party (which could be months in the case of a Commonwealth appeal or years later in the case of a defense post-verdict appeal) or by the [Commonwealth v.] Kichline[, 361 A.2d 282, 290 (Pa. 1976)] standard of review-a standard which came into existence precisely because of such lapses. We stress, however, the essential purposes served by the Rule, and we disapprove of non-compliance with its unambiguous mandate. A specific and contemporaneous announcement of suppression findings of fact and conclusions of law serves at least two salutary purposes. First, it permits the losing party to make a more intelligent assessment of whether or not to burden the appellate justice system with an appeal of the suppression ruling, particularly in cases of contested evidence. A defensible credibility-based decision may dissuade an appeal, whereas a purely legal ruling may make clear that further review is appropriate. Second, it is often the case (for example, where a waiver trial occurs) that the suppression judge is different from the trial judge yet, if there is a conviction, it will be the trial judge who will be responsible for preparation of the Rule 1925 opinion for appeal. Thus, in cases where suppression is denied, a trial occurs, and a conviction ensues, and the defendant seeks to challenge the suppression ruling, the timely and specific ruling the suppression judge is required to enter under Rule 581(I) is essential to ensuring that the trial judge and the appellate courts will have a record upon which they can timely and meaningfully discharge their responsibilities.Commonwealth v. Millner, 888 A.2d 680, 688-89 (Pa. 2005) (footnote omitted).
Here, the suppression court did not detail its findings of facts and conclusions of law. The court briefly stated:
. . . I don't believe that the fact that one of - at least two adults who lived in that premises and had lived there for an extended period of time both have to give their consent to search. I think the consent of one is sufficient and I also believe that the fact that one has indicated that they don't give consent, that does not preclude somebody else from giving consent.N.T., 10/03/19, at 70-71; see also id. at 75. In addition, the trial judge in this case did not preside at the suppression hearing, but citing the notes of testimony from the suppression hearing, referenced both facts of record and prevailing legal authority in opining that suppression was not warranted. Trial Court Opinion, 11/17/20, at 1-2, 5-8. In contrast, the Majority makes independent and discrete factual findings to reach its legal conclusions. See e.g., Maj. at 4 n.3; 10, 14-15, 20 n.13, 21, 23-24.
It is well-settled that as an appellate court, our scope of review is limited to the evidence presented at the suppression hearing. In the interest of L.J., 79 A.3d 1073, 1088-89 (Pa. 2013). Moreover, "it is well-established that an appellate court does not make findings of fact or conclusions of law." Commonwealth v. Sharaif, 205 A.3d 1286, 1289 (Pa. Super. 2019) (citation omitted).
In instances when an appellate court perceives the suppression court's findings of fact and conclusions of law to be lacking, the appropriate remedy is either remand for a new opinion by the judge who presided at the suppression hearing, or, if that is not feasible, remand for a new suppression hearing. See Millner, 888 A.2d at 688 (citing cases). See also Sharaif, 205 A.3d at 1289-90 (remanding for new suppression hearing where suppression court failed to comply with Pa.R.Crim.P. 581(I) and judge who presided over hearing was no longer on bench); Commonwealth v. Grundza, 819 A.2d 66, 68 (Pa. Super. 2003) (remanding for new suppression hearing and holding an "appellate court does not in the first instance make findings of fact and conclusions of law. . . . Due to the suppression court's failure to comply with Rule 581(I), we are precluded from our appellate function of determining whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error." (citation and internal quotation marks omitted)); Cf Commonwealth v. Stock, 2020 WL 553900, at *3 (Pa. Super. Feb. 4, 2020) (finding suppression court did not comply with Pa.R.Crim.P. 581(I) but declining to remand where trial court cited notes of testimony from suppression hearing in recital of facts and made conclusions of law in its Pa.R.A.P. 1925(a) opinion).
See Pa.R.A.P. 126(b) (unpublished decisions of the Superior Court filed after May 1, 2019 may be cited for persuasive value).
It is not this Court's role to act as a proxy for the suppression or trial court. If the Majority viewed the record as inadequate, the appropriate remedy was remand; at this writing, the Honorable Gregory M. Snyder, who presided at the suppression hearing, continues to serve on the bench in York County, and is presumably available to author a new opinion. See Millner, supra; Sharaif, supra.
I do not believe remand is necessary because the suppression record, which the trial court cited in its 1925(a) opinion, is sufficient for meaningful appellate review.
The Majority concluded that Camille's consent to the search of the safe was involuntary and that the denial of suppression was not harmless error. Maj. at 24-29. Even if I agreed with the Majority that Camille's consent was involuntary, the evidence would have been admissible under the doctrine of inevitable discovery.
The Majority determined Camille's consent to the search was involuntary based on her testimony that she believed the officers had obtained a search warrant and they did not tell her otherwise. Maj. at 24. However, this finding disregards our standard of review. Also, Camille's testimony was much more equivocal than the Majority acknowledges. Camille testified that immediately upon arriving home, she indicated to Denzell she was angry with him for letting police in her home. N.T., 10/03/19, at 17, 21. If Camille believed the police had a warrant, Denzell's consent would not be an issue, and Camille would be angry with police - not Denzell.
We recently explained:
The doctrine [of inevitable discovery] allows into evidence materials the police obtained improperly if they would have inevitably discovered the evidence by lawful means. If police misconduct enabled the police to obtain evidence improperly, the doctrine permits the admission of the evidence only if the police who would have inevitably discovered the evidence were "truly independent" of the officers who committed the misconduct.Commonwealth v. Price, 244 A.3d 1250, 1254 (Pa. Super. 2020) (citations omitted).
In this case, there is no evidence of police misconduct. The situation was fluid, and at most, the police failed to advise Camille that instead of getting a warrant, they obtained Denzell's consent, which they believed included the search of the safe. Thus, the police would have inevitably discovered the gun by lawful means.
When the police asked Camille to open the safe, they were already in possession of lawfully obtained evidence which gave them probable cause to obtain a warrant to search the safe. This evidence included the victim's statement that Appellant fired shots at her home, along with information that Appellant was at Camille's home. N.T., 10/03/19, at 26. When police arrived at Camille's home, they saw Appellant leaving. Id. at 27. Denzell told police which room Appellant had used, and when they looked inside that room, they saw in plain view a pair of pants matching both the description given by the victim, and what they saw in the surveillance video. Id. at 31. The police also saw a shell casing on top of a dresser. Id. Lastly, Camille told them the safe was Appellant's and she did not use it. Id. at 7. Consequently, if Camille had not given police information regarding the combination of the safe, they would have done what they planned previously - secured the room and obtained a search warrant - and would have found the gun. See Commonwealth v. Gonzalez, 979 A.2d 879, 891 (Pa. Super. 2009) (holding warrantless search of appellant's room was product of coercion but because police had probable cause to obtain a search warrant, evidence was admissible as inevitable discovery).
In sum, I believe the Majority failed to adhere to our standard of review, and even if, arguendo, Camille's consent to the search the safe was the product of police misconduct, I would affirm the denial of suppression under the doctrine of inevitable discovery. [*] Retired Senior Judge assigned to the Superior Court.
determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. [Because] the prosecution prevailed in the suppression court, we 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 factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.Commonwealth v. Postie, 110 A.3d 1034, 1039 (Pa. Super. 2015) (citation omitted).
Here, Camille was not physically present to object to the search. Moreover, even if she did object over the phone, we must credit Officer Smith's testimony that he could not hear her objections. In addition, the Randolph Court expressly noted that it was not addressing the situation presented here, where a defendant who was not present for the search challenges a search based on non-consent of a third-party rather than on his own refusal to consent to the search. Id. at 120 n.8. Finally, while Randolph did in dicta recognize that a parent might have superior authority over a home compared to a child, the Court was clearly referring to minor children when making this distinction. Id. at 112 (stating that no reasonable officer would believe an 8-year-old would "be in a position to authorize anyone to rummage through his parents' bedroom"). While society would readily recognize that a parent has authority superior to that of an 8-year-old child, the same does not hold for two adults who share a home without a leasor-lessee relationship, even if they are related to each other. See Basking, supra (holding mother had apparent authority but not common authority over son's area of their shared home when he paid rent for the space and excluded her from it).
Further, in addressing this claim at the suppression hearing, the trial court determined that Denzell's consent to the search of the home was valid as to the search of the safe. See Notes of Testimony, 10/3/19, at 57-60, 70-71. This was error. Commonwealth v. Perel, 107 A.3d 185 (Pa. Super. 2014). A resident of a home may have authority over the premises, but not over a third party's belongings in the home when the third party has taken steps to maintain the privacy of those belongings. Id. at 191 ("It is well-settled that a homeowner who lacks access to, or control over, a guest's private closed containers also lacks the authority to consent to a search of them."). There was no testimony at the suppression hearing that Denzell knew the combination to the safe, had ever used the safe or even knew the safe was in the closet prior to its discovery by the police. To the contrary, the officers were unable to open the safe until Camille returned home, indicating that Denzell was not able to access it himself. Therefore, the record does not support the conclusion that Denzell had either actual or apparent authority to consent to the search of the safe. Finally, in its opinion pursuant to Pa.R.A.P. 1925(a), the trial court concluded that Camille had apparent authority to consent to the search of the safe but did not address Grimes's argument regarding the voluntariness of her consent. See Trial Court Opinion, 11/17/20, at 8-9.