Com. v. Swann, J.

J-A26041-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JAMEL SWANN                                :   No. 987 EDA 2020

                 Appeal from the Order Entered March 4, 2020
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0004873-2019


BEFORE:      BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED OCTOBER 15, 2020

        Appellant, the Commonwealth of Pennsylvania, appeals from the March

4, 2020, order entered in the Court of Common Pleas of Delaware County,

which granted the pre-trial suppression motion filed by Appellee, Jamel

Swann.1      Following a careful review, we reverse and remand for further

proceedings.




____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 “The Commonwealth may appeal an interlocutory order suppressing
evidence where, as here, the Commonwealth provides a certification with its
notice of appeal that the order terminates or substantially handicaps the
prosecution.” See Commonwealth v. Williams, 

165 A.3d 994

, 995 n.1
(Pa.Super. 2017) (citing Pa.R.A.P. 311(d)) (other citation omitted).
J-A26041-20


       The relevant facts and procedural history are as follows: Appellee was

arrested and charged with various firearm and drug offenses, as well as

terroristic threats and simple assault.2 On December 4, 2019, Appellee filed

a counseled omnibus pre-trial motion seeking to suppress the evidence seized

by the police on May 18, 2019, from Appellee’s hotel room, which was Room

228 of the Summit Motor Inn in Upper Darby Township.          See Appellee’s

Omnibus Pre-Trial Motion, filed 12/4/19, at 5. Appellee averred the evidence

was the product of an unreasonable search and seizure. Specifically, Appellee

averred the police improperly entered Appellee’s hotel room (Room 228)

absent a warrant and without probable cause or exigent circumstances. See

id. at 5-7.

       On March 3, 2020, the Commonwealth filed a response to Appellee’s

pre-trial suppression motion. Therein, the Commonwealth averred the police

had probable cause, and exigent circumstances existed permitting them to

enter Room 228 without a warrant. On January 21, 2020, the matter

proceeded to a suppression hearing. The defense offered no witnesses while

____________________________________________


2Specifically, Appellee was charged with possession of firearm prohibited, 18
Pa.C.S.A. § 6105(a)(1), firearms not to be carried without a license, 18
Pa.C.S.A. § 6106(a)(1), terroristic threats, 18 Pa.C.S.A. § 2706(a)(1),
possession of weapon, 18 Pa.C.S.A. § 907(b), simple assault, 18 Pa.C.S.A. §
2701(a)(3), two counts of possession of a controlled substance, 35 P.S. 780-
113(a)(16), possession of marijuana for personal use, 35 P.S. § 780-
113(a)(31)(i), possession of drug paraphernalia, 35 P.S. § 780-113(a)(32),
and possession of an instrument of crime, 18 Pa.C.S.A. § 907(a).




                                           -2-
J-A26041-20


the Commonwealth offered the testimony of Upper Darby Township Police

Officers Francis Devine and Michael DeHoratius.3

       Specifically, Officer Devine, who has been an officer since 2008, testified

he was in full uniform at roll call on May 18, 2019, when at approximately

6:00 a.m., the police “received a call from a female who stated she was being

held against her will by a man with a gun in Room 331 of the Summit Motor

Inn[.]” N.T., 1/21/20, at 5-6. Within minutes, Officer Devine and several of

his fellow officers, including Officer DeHoratius, arrived at the hotel, made

contact with the hotel manager, and proceeded up the stairs to the room.

Id. at 6-7.

       Officer Devine testified the police knocked on the door announcing their

presence, and a female opened the door a “crack” to see who was outside.

Id. at 8.

He testified the female appeared to be excited that it was the police,

and after removing a chair that had been propped up against the door as an

apparent barricade, the female permitted the police to enter the room.

Id. Officer Devine noticed

a male and another female hanging outside of a

window onto a balcony or ledge beneath the window, and the police pulled

them back into the room.

Id. The duo reported

they were trying to climb out




____________________________________________


3The suppression court specifically found the testimony of Officers DeHoratius
and Devine to be credible. Suppression Court Order and Opinion, filed 3/4/20,
at 4.

                                           -3-
J-A26041-20


of the window and drop about thirty feet to the ground because they thought

a man with a gun was at the door.

Id. Officer Devine indicated

the officers interviewed the three occupants of

Room 331, as well as employees of the hotel.

Id. at 9.

Specifically, while

Officer Devine’s fellow officer, Officer DeHoratius, interviewed the three

occupants of Room 331, Officer Devine spoke with the hotel manager.

Id. at 27.

      The manager informed Officer Devine that the employees who had

worked the overnight shift had problems with a male roaming the hallways

and approaching hotel patrons in “an aggressive confrontational manner.”

Id. at 10.

The description of this male matched the description of the male, who

had apparently threatened one or more of the occupants of Room 331.

Id. The overnight shift

hotel employees were so concerned that they informed the

manager “of where [the male] was located, what he was wearing, and his

behavior that went on the night before.”

Id. Specifically, the employees

told

the manager, who in turn told the police, that the man in question could be

found in Room 228.

Id. Officer Devine testified

that, given all of the information provided to him,

he “had a legitimate concern that there may be potential victims being held

against their will at gunpoint in Room 228.”

Id. at 11.

Accordingly, Officer

Devine took a key, which he received from the hotel manager, proceeded to

Room 228, and opened the door.

Id. Inside, he saw

a black male, later


                                      -4-
J-A26041-20


identified as Appellee, lying on the bed.

Id. at 12.

Officer Devine remained

in the hall and ordered Appellee to exit the room.

Id. As Appellee got

off of

the bed, Officer Devine observed a black firearm and a pile of drug

paraphernalia on the bed next to where Appellee had been lying.

Id. Officer Devine testified

the police escorted Appellee to a common area

in the hallway, and the three occupants of Room 331 positively identified

Appellee.

Id. Officer Devine indicated

the occupants appeared to be scared

because they would not come into the common area; but rather, they “peeked

their heads around [the] corner” to view Appellee.

Id. at 13.

     On cross-examination, Officer Devine confirmed that, while he was

speaking with the hotel employees and management, Officer DeHoratius was

speaking with the occupants of Room 331.

Id. at 27.

    Officer Devine

explained:

            [S]o again I arrive on location. We made contact with the
     night manager. We also made contact with three individuals. The
     night manager tells me himself as well as tells me that his previous
     shift had told him about a black male fitting the description that
     the victim and the witnesses also described that is confrontational,
     approaching people, causing issues all night long to the point
     where he is made aware of it. He was present when we went to
     Room 331. And he advises us that the male and that the victim
     and the witnesses were describing matched the male that was
     described to him that was being confrontational and approaching
     other people. He tells us he is in Room 228. I leave to go to the
     other side of the hotel while Sergeant DeHoratius stays on location
     and has his conversation with the victim and the two witnesses.
     Okay, so we are on two separate sides of the building. He relays
     to me over the radio that there is a concern and that we should
     probably look into Room 228. After hearing what the manager
     said, after the manager telling me that previous people that were
     employed there before were concerned as well, an officer I work

                                    -5-
J-A26041-20


      with on a daily basis who is having a more descriptive
      conversation than I was present for, after having walked into a
      room and seen people hanging out of a window, that is when I
      deducted that maybe there could be possibl[y] other victims and
      we should possibly go in there to make sure everybody is okay.

Id. at 28.

      Officer Devine clarified that, prior to opening the door to Room 228,

Officer DeHoratius stated on the radio that there might be other victims,

including ones being held in Room 228.

Id. at 29-30.

Officer Devine could

not state with certainty whether he had already secured the key for Room 228

and was on his way to Room 228, or if he had not yet done so prior to receiving

this information from Officer DeHoratius.

Id. at 31.

  He testified that the

events were unfolding quickly and simultaneously.

Id. However, he stated

with certainty that he did not open the door to Room 228 until after Officer

DeHoratius stated on the radio that there might be other victims in Room 228.

Id. Officer Devine admitted

he did not knock and announce prior to opening

the door of Room 228 with the key.

Id. He explained he

did not enter the

room after he opened the door, but he ordered Appellee to exit the room, at

which time he saw the gun and drug paraphernalia on the bed.

Id. at 32.

He

testified he never entered Room 228, but other officers seized contraband,

including a gun, drug paraphernalia, and controlled substances from the bed.

Id. -6-

J-A26041-20


      Officer DeHoratius, a sixteen year veteran of the police force, testified

he was also in uniform and at roll call on May 18, 2019, when the police

received a dispatch at approximately 6:00 a.m. indicating “a subject with a

gun at the Summit Motor Inn. The information provided was that a female

was being held against her will at gunpoint.”

Id. at 41.

He clarified the caller

indicated she was in Room 331.

Id. at 42.

      Officer DeHoratius testified he and several officers immediately

proceeded to the scene and went to Room 331.

Id. Initially, when the

police

knocked on the door, no one answered, and, therefore, Officer DeHoratius

called the dispatcher, who in turn contacted the caller to inform her the police

were at the door.

Id. Officer DeHoratius confirmed

that, after the female

opened the door and the police entered the room, two people, including Jared

Dill, were outside a window standing on a small ledge.

Id. at 43.

The police

confirmed the gunman was not inside of the room and questioned the three

occupants.

Id. Mr. Dill informed

Officer DeHoratius that he had been threatened with a

gun by a black male with a muscular build wearing a black tee-shirt and black

sweatpants.

Id. This man, later

identified as Appellee, was in Room 228.

Id. at 47.

Mr. Dill told the officer he initially had contact with Appellee in the

lobby, and Mr. Dill loaned him his cell phone charger.

Id. at 44.

Later in the

night, Mr. Dill went to Appellee’s room to retrieve his cell phone charger;

however, Appellee “took a gun off the bed [and] walked towards him.”

Id. -7-

J-A26041-20


Mr. Dill reported to the officer that Appellee threatened to shoot Mr. Dill, and

as Appellee was taking the safety off of the gun, Mr. Dill ran out of Appellee’s

room.

Id. He told Officer

DeHoratius that he believed Appellee was going to

shoot him.

Id. at 45.

Officer DeHoratius confirmed Mr. Dill told him that

these events did not occur in Room 331, but in Appellee’s room.

Id. at 44.

       Officer DeHoratius immediately broadcasted the information he received

from Mr. Dill to his fellow officers and provided a description of Appellee.

Id. Officer DeHoratius confirmed

Officer Devine would have received his

broadcast.

Id. He testified that,

based on all of the information provided to

the police, it was the officers’ belief that the man who had threatened Mr. Dill

was still somewhere in the hotel armed with a gun and, more specifically, the

officers believed the man was in Room 228.

Id. at 46, 49.

       Officer DeHoratius confirmed that, after Appellee was taken into

custody, Mr. Dill and the two female occupants of Room 331 positively

identified Appellee.4

Id. at 47.

       On cross-examination, Officer DeHoratius admitted the police did not

check “to see who was registered to Room 228[.]”

Id. at 49-50.

He also

admitted that, soon after arriving at Room 331, the police determined no one

was being held against their will or possessed a gun in that specific room. Id.



____________________________________________


4 The two female occupants of Room 331 told the officers they recognized
Appellee from the lobby; however, they were not present when Appellee
allegedly drew a gun on Mr. Dill in Room 228.

Id. at 56. -8-

J-A26041-20


at 50. Moreover, Officer DeHoratius admitted that all three occupants of Room

331, who were in a “state of panic,” were in the room when the police arrived.

Id. at 50, 54.

  However, he testified the police had reason to believe the

armed gunman was still at the hotel and could be holding victims beyond those

occupying Room 331.

Id. at 51.

      Based on the aforementioned, the suppression court granted Appellee’s

motion to suppress the physical evidence seized by the police from Room 228.

Specifically, while the suppression court found the officers’ testimony to be

credible, the court concluded the testimony did not support the legal

conclusion that the police had probable cause to enter Room 228. Suppression

Court Order and Opinion, filed 3/4/20, at 4-5. In this vein, the suppression

court relevantly held the following:

             At the time that Officer Devine made the decision to make
      the intrusion into Room 228 without a warrant, the information
      that he possessed did not rise to the level of probable cause. That
      information, from what [the suppression] can decipher from the
      testimony, may have amounted to reasonable suspicion, at best.
      It is entirely unclear what occurred in Room 331. What is clear is
      that there was no woman, no man, being held against their will;
      the [sic] was no gunman in the room; the description of a black,
      muscular male is vague; there [sic] information provided that
      multiple hours before the dispatch was received, there was a black
      man annoying patrons does not help justify the warrantless
      search. That information is too far attenuated from the situation
      to conclude that the man who was allegedly holding the occupants
      of Room 311 hostage was also the man staying in Room 228, and
      that the man staying in Room 228 had hostages with him. It is
      not clear from the testimony whether or not Officer Devine knew
      the story of the phone charger situation at the time he entered
      Room 228. There was no testimony that the situation was radioed
      to him; only that Room 228 may be where this alleged gunman
      was staying. However, even if Officer Devine knew the story Mr.

                                       -9-
J-A26041-20


       Dill was telling Officer DeHoratius, there is no reasonable jump to
       conclude that the male in Room 228 was holding people hostage;
       the people having an issue with the male in Room 228 were all
       inside of Room 331 when police arrived.

Suppression Court Order and Opinion, filed 3/4/20, at 5.

       Moreover, the suppression court summarily held that “[w]ithout the

existence of probable cause, exigent circumstances standing alone cannot

justify a warrantless entry into Room 228. However, even assuming probable

cause existed, the exigent circumstance factors do not weigh in the favor of

the Commonwealth.”5

Id. at 5.

       On    March     5,   2020,    the       Commonwealth   filed   a   motion   for

reconsideration. On March 11, 2020, the suppression court denied the motion

for reconsideration, and the Commonwealth filed a notice of appeal to this

Court on April 2, 2020. The trial court did not order the Commonwealth to file

a Pa.R.A.P. 1925(b) statement, and consequently, the Commonwealth did not

file such a statement. The suppression court filed a brief opinion on April 20,

2020, referring this Court to its earlier opinion.


____________________________________________


5While the suppression court set forth the factors used in determining whether
exigent circumstances exist

, id. at 5,

the suppression court did not analyze
these factors specifically as it relates to the instant matter.
      Moreover, we note that in his pre-trial suppression motion Appellee
sought to suppress the pre-trial identifications made by the three occupants
of Room 331 based on the theories the identifications were fruit of the
poisonous tree and/or unduly suggestive. The suppression court concluded
the identifications were fruit of the poisonous tree, and therefore, the court
declined to make factual findings or rule on Appellee’s claim the identifications
were unduly suggestive.


                                           - 10 -
J-A26041-20


     Initially, we note:

           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
     …record, remains uncontradicted. The suppression court’s findings
     of fact bind an appellate court if the record supports those
     findings. The suppression court’s conclusions of law, however, are
     not binding on an appellate court, whose duty is to determine if
     the suppression court properly applied the law to the facts.
     Commonwealth v. Miller, 

56 A.3d 1276

, 1278–79 (Pa.Super.
     2012) (citations omitted). “Our standard of review is restricted to
     establishing whether the record supports the suppression court’s
     factual findings; however, we maintain de novo review over the
     suppression court’s legal conclusions.” Commonwealth v.
     Brown, 

606 Pa. 198

, 

996 A.2d 473

, 476 (2010) (citation
     omitted).

Commonwealth v. Korn, 

139 A.3d 249

, 252–53 (Pa.Super. 2016).

     “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given their testimony.”

Commonwealth v. Gallagher, 

896 A.2d 583

, 585 (Pa.Super. 2006).

Moreover, our scope of review from a suppression ruling is limited to the

evidentiary record that was created at the suppression hearing. In re L.J.,

622 Pa. 126

, 

79 A.3d 1073

, 1087 (2013).

     “Both the Fourth Amendment of the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.” Commonwealth v.

Bostick, 

958 A.2d 543

, 550 (Pa.Super. 2008) (quotation marks and quotation

omitted).   “[W]arrantless searches and seizures are…unreasonable per se,

unless conducted pursuant to a specifically established and well-delineated

                                   - 11 -
J-A26041-20


exception to the warrant requirement.”

Id. at 556.

One exception to the

warrant requirement is when probable cause and exigent circumstances are

present. “Absent probable cause and exigent circumstances, warrantless

searches and seizures in a private home violate both the Fourth Amendment

[of the United States Constitution] and Article I[,] § 8 of the Pennsylvania

Constitution.”    Commonwealth           v.    Bowmaster,   

101 A.3d 789

,   792

(Pa.Super. 2014) (citation omitted). These constitutional protections have

been extended to include a person’s hotel room.6 See Commonwealth v.

Dean, 

940 A.2d 514

, 521 (Pa.Super. 2008) (stating “[w]arrantless searches

and seizures inside a…hotel room are presumptively unreasonable unless the

occupant consents or probable cause and exigent circumstances exist to

justify intrusion”) (citations and parentheses omitted)). Thus, prior to the

police making a warrantless entry into the hotel room in the instant case, the

police needed (1) probable cause and (2) exigent circumstances.

       The Commonwealth initially contends the suppression court erred in

concluding the police did not have probable cause to enter Room 228.

            The well-established standard for evaluating whether
       probable cause exists is the “totality of the circumstances” test.
____________________________________________


6 We shall assume, arguendo, Appellee established that he had a legitimate
expectation of privacy in the hotel room (Room 228). See Commonwealth
v. Enimpah, 

630 Pa. 357

, 

106 A.3d 695

, 702 (2014) (holding that although
a defendant charged with a possessory offense has automatic standing to
challenge the suppression of the items seized, he must additionally
demonstrate that he had a reasonable expectation of privacy in the place
searched).


                                          - 12 -
J-A26041-20


      This test allows for a flexible, common-sense approach to all
      circumstances presented. Probable cause typically exists where
      the facts and circumstances within the officer’s knowledge are
      sufficient to warrant a person of reasonable caution in the belief
      that an offense has been or is being committed. The evidence
      required to establish probable cause for a warrantless search must
      be more than a mere suspicion or a good faith belief on the part
      of the police officer.

Commonwealth v. Runyan, 

160 A.3d 831

, 837 (Pa.Super. 2017) (citation

omitted). “[W]hen we examine a particular situation to determine if probable

cause exists, we consider all the factors and their total effect, and do not

concentrate on each individual elements. We also focus on the circumstances

as seen through the eyes of the trained officer….” Commonwealth v. Ford,

175 A.3d 985

, 990 (Pa.Super. 2017) (quotation marks and quotation

omitted). “The question we ask is not whether the officer’s belief was correct

or more likely true than false. Rather, we require only a probability, and not

a prima facie showing, of criminal activity.”

Id. (citation omitted) (bold

omitted).

      In the case sub judice, we conclude that, given the totality of the

circumstances, the police had probable cause to believe that an offense was

and/or was being committed, and the person committing the offense was in

Room 228.     For instance, there is no dispute that, on May 18, 2019, at

approximately 6:00 a.m., the police received a dispatch for a female being

held at gunpoint against her will at the Summit Motor Inn. The caller indicated

she was in Room 331, and accordingly, the police immediately proceeded to

the room upon arrival at the hotel. Inside of Room 331, the police discovered

                                    - 13 -
J-A26041-20


three occupants, all of whom appeared to be in a state of panic. In fact, two

of the occupants had climbed out of a third story window and were standing

on a ledge in an apparent attempt to flee the room.

      The police questioned the occupants and discovered that, during the

night, the male occupant of Room 331, Mr. Dill, had been threatened in Room

228 by a black male with a muscular build wearing a black tee-shirt and black

sweatpants.   Specifically, Mr. Dill informed the police that, earlier in the

evening, the male had borrowed a cell phone charger from Mr. Dill and, when

he did not return it, Mr. Dill went to the male’s room only to be threatened

with a gun. Mr. Dill escaped the room and fled back to Room 331 when the

male released the safety on the firearm.

      In addition to this information, the police were informed by the hotel

manager that, during that same evening, the male in Room 228, who matched

the general description provided by Mr. Dill, had approached other hotel

patrons in “an aggressive confrontational manner.” N.T., 1/21/20, at 10.

      Based on the totality of the circumstances, we conclude the facts and

circumstances within the officers’ knowledge were sufficient to warrant a

person of reasonable caution to believe that an offense had been or was being

committed in Room 228. See 

Runyan, supra

(setting forth probable cause

standard). Based on Mr. Dill’s report, the police had reason to believe a male

inside of Room 228 was in possession of a gun, which he had used to threaten

Mr. Dill. Also, inasmuch as the male staying in Room 228 had also purportedly


                                    - 14 -
J-A26041-20


approached other patrons during the evening in an unusually aggressive and

confrontational manner so as to alarm hotel employees, the police, based on

their training and experience, had probable cause to suspect the male staying

in Room 228 was holding or threatening other hotel patrons in his hotel room.

      Additionally, we note that, given the fact the aforementioned incidents

occurred during the evening, and it was approximately 6:00 a.m. when police

received the dispatch and arrived on scene, there was a high probability that

the male was still in Room 228. See 

Runyan, supra

. Thus, we conclude the

police had probable cause to suspect that an offense had been or was being

committed, and the male staying in Room 228 was the perpetrator.

      We note the suppression court concluded that since no person was being

held against their will in Room 331 when the police arrived on the scene, there

was no probable cause to conclude a crime had been or was being committed.

See Suppression Court Order and Opinion, filed 3/4/20, at 5. However, this

holding ignores Officer DeHoratius’ undisputed testimony that Mr. Dill

informed the officer that the crime against him occurred in the room where

Appellee was located (Room 228), and Mr. Dill escaped and fled back to his

Room (Room 331).

      Moreover, we note the suppression court concluded there was no

probable cause for the police to conclude a crime was committed or that the

perpetrator was in Room 228 because “[i]t is not clear from the testimony

whether or not Officer Devine knew the story of the phone charger situation


                                    - 15 -
J-A26041-20


at the time he entered Room 228.” Suppression Court Order and Opinion,

filed 3/4/20, at 5.

      Initially, we note that the suppression court’s conclusion ignores Officer

DeHortius’ undisputed testimony that after Mr. Dill reported the story to him

at the scene he immediately dispatched the information to his fellow officers,

and Officer Devine would have received the dispatch. Furthermore, Officer

Devine testified that he received dispatches from Officer DeHortius from which

he concluded a crime was or had been committed in Room 228 prior to

opening the door to Room 228. In any event, inasmuch as one officer had

the information, it is imputed to the other officers, including Officer Devine.

See Commonwealth v. Young, 

644 Pa. 613

, 

177 A.3d 876

(2018) (holding

that where there is evidence officers are working as a team, and one of them

has probable cause, that knowledge can be imputed to the other officers, even

without evidence that it was actually conveyed).

      Next, the Commonwealth contends the suppression court erred in

concluding exigent circumstances did not exist to justify the police making a

warrantless entry into Room 228.

             This Court addressed the issue of police entry without a
      warrant and exigent circumstances in Commonwealth v.
      Demshock, 

854 A.2d 553

(Pa.Super. 2004). We observed there
      that various factors need to be taken into account to assess the
      presence of exigent circumstances; for example: (1) the gravity
      of the offense; (2) whether the suspect is reasonably believed to
      be armed; (3) whether there is a clear showing of probable cause;
      (4) whether there is a 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;

                                    - 16 -
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      (6) whether the entry is peaceable; (7) the timing of the entry;
      (8) whether there is hot pursuit of a fleeing felon; (9) whether
      there is a likelihood that evidence will be destroyed if police take
      the time to obtain a warrant; and (10) whether there is a danger
      to police or other persons inside or outside of the dwelling to
      require immediate and swift action. 

Demshock, 854 A.2d at 555

–
      56.

Dean, 940 A.2d at 522

.

      “An inquiry to determine whether exigent circumstances exist involves

a balancing of the individual’s right to be free from unreasonable intrusions

against the interest of society in investigating crime quickly and adequately.”

Commonwealth v. Caple, 

121 A.3d 511

, 518 (Pa.Super. 2015) (quotation

marks and quotations omitted). See Commonwealth v. Williams, 

602 A.2d 350

, 354 (Pa.Super. 1992) (“Essentially, the exigent circumstances exception

involves balancing the needs of law enforcement against individual liberties

and/or rights.   Some factors will outweigh others in a given case.”). “It

requires an examination of all of the surrounding circumstances in a particular

case.” 

Caple, 121 A.3d at 518

. “It is well established that police cannot rely

upon exigent circumstances to justify a warrantless entry where the exigency

derives from their own actions.” Commonwealth v. Waddell, 

61 A.3d 198

,

214 (Pa.Super. 2012).

      Here, in balancing the relevant factors, we note the gravity of the

offense was serious. For example, Appellee was charged with several felonies

related to possession of the gun. See 18 Pa.C.S.A. § 6105(a.1)(1.1)

(possession of firearm prohibited graded as first-degree felony); 6106(a)(1)


                                     - 17 -
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(firearms not to be carried without a license graded as third-degree felony).

Furthermore, the police reasonably believed Appellee was in possession of a

firearm in that Mr. Dill informed them Appellee had threatened him with a

firearm while he was in Appellee’s room. See 

Dean, supra

(setting forth

factors to consider in analyzing whether exigent circumstances existed).

      Moreover, as 

indicated supra

, under the totality of the circumstances,

there was a clear showing of probable cause to believe a crime had been or

was being committed. Additionally, given that the events with regard to Mr.

Dill allegedly occurred during the evening, and it was approximately 6:00 a.m.

when the police responded to the Summit Motor Inn, the police had a strong

reason to believe that Appellee was in Room 228. See

id. The hotel manager

gave the police the key to Room 228, and there is no evidence the overnight

occupant had checked out of the room.

      Further, a prudent police officer would have believed that there was a

likelihood the suspect within Room 228 would have escaped if not swiftly

apprehended. See

id. The police could

not be sure when Appellee would

attempt to leave his hotel room, and, additionally, the record reveals the

Summit Motor Inn rooms had windows that opened to permit escape.

      Moreover, the police entry of Room 228 was peaceable in that the police

obtained a key to the room prior to entering so as to minimize the need for a

violent or forced entry. Further, the police entered the room shortly after 6:00

a.m. See cf. Commonwealth v. Berkheimer, 

57 A.3d 171

, 179 (Pa.Super.


                                     - 18 -
J-A26041-20


2012) (en banc) (stating that “the fact that an entry is made at night raises

particular concern over its reasonableness[.]”) (citation omitted)).

       There was no evidence presented that the police were in hot pursuit of

a fleeing felon or that the firearm would be destroyed if the police took the

time to obtain a warrant.7 See 

Dean, supra

. However, inasmuch as the

police had probable cause to believe that Appellee, who was reported to have

been acting aggressively and confrontationally towards hotel patrons during

the night, was inside of Room 228 with a firearm, we have no difficulty

concluding there was danger to the police and the public if the police had

delayed action until a search warrant was obtained. See Commonwealth v.

Hinkson, 

461 A.2d 616

, 619 (1983) (holding exigent circumstances exist to

enter house where police acted properly in order to protect the safety of the

troopers and the public).

       In balancing the factors set 

forth supra

, we conclude the police’s entry

into Room 228 was justified by exigent circumstances.8 See Bostick, 958 at

556 (“The law of search and seizure remains focused on the delicate balance

of protecting the right of citizens to be free from unreasonable searches and


____________________________________________


7 Although the police seized controlled substances and drug paraphernalia
from Room 228, the Commonwealth presented no evidence that the police
knew or suspected such items were in the room prior to the police’s entry.

8 We note there is no evidence the exigency in this case derived from the
officers’ own actions. See Waddell, supra.



                                          - 19 -
J-A26041-20


seizures and protecting the safety of our citizens and police officers by allowing

police to make limited intrusions on citizens while investigating crime.”)

(quotation marks and quotation omitted)).9         Accordingly, the suppression

court erred in granting Appellee’s motion to suppress the physical evidence

seized from his hotel room (Room 228).10

       For all of the foregoing reasons, we reverse the suppression court’s

March 4, 2020, order and remand for further proceedings.

       Order Reversed; Case Remanded; Jurisdiction Relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/15/2020




____________________________________________


9  There is no dispute that if the police had probable cause and exigent
circumstances to enter Appellee’s hotel room the police could seize the
evidence lying in plain view on the bed. See Commonwealth v. Luczki, 

212 A.3d 530

, 547 (Pa.Super. 2019) (holding the plain view doctrine permits “the
warrantless seizure of an object when: (1) an officer views the object from a
lawful vantage point; (2) it is immediately apparent to him that the object is
incriminating; and (3) the officer has a lawful right of access to the object”).

10Moreover, assuming, arguendo, the “fruit of the poisonous tree” doctrine is
applicable to pre-trial identifications made by victims, for the reasons 

stated supra

, the suppression court erred in relying on the doctrine in suppressing
the pre-trial identifications in this case.

                                          - 20 -
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