OPINION BY BENDER, J.
Appellant, Terrance Waddell, represented by Attorney Gary B. Zimmerman,
Appellant was arrested following the warrantless entry into his home, ostensibly justified upon the presence of exigent circumstances, resulting in the discovery of approximately ten pounds of marijuana and several firearms. The Commonwealth charged Appellant with three counts of person not to possess a firearm (PNPF), 18 Pa.C.S. § 6105; two counts of receiving stolen property (also related to the firearms), 18 Pa.C.S. § 3925; one count of possession with intent to deliver (PWID) (marijuana), 35 P.S. § 780-113(a)(30); one count of possession of a controlled substance (marijuana), 35 P.S. § 780-113(a)(16); and one count of possession of drug paraphernalia, 35 P.S. § 780-113(a)(32).
Appellant filed a pre-trial motion seeking suppression of the seized contraband, and another seeking dismissal of the drug charges premised upon the argument that marijuana was no longer a Schedule I controlled substance within the meaning of The Controlled Substance, Drug, Device and Cosmetic Act (hereinafter the "Drug Act"). The trial court denied both motions. A stipulated non-jury trial was held and the trial court found Appellant guilty of all the charged offenses.
In compliance with the applicable mandatory minimum sentences, the trial court sentenced Appellant to 5-10 years' incarceration for one count of PNPF, a concurs
Appellant now raises the following issues for our consideration:
Appellant's Brief, at 9.
We begin with Appellant's first claim that marijuana no longer fits the definition of a Schedule I controlled substance as set forth in 35 P.S. § 780-104.
Commonwealth v. Lopez, 444 Pa.Super. 206, 663 A.2d 746, 748 (1995).
Furthermore, when addressing the constitutionality of a statute, we are guided by the following standards:
DePaul v. Commonwealth, 600 Pa. 573, 969 A.2d 536, 545-46 (2009).
Appellant posits that because there are a growing number of states and scientific authorities that recognize medical uses for marijuana, the intoxicating herb can no longer be classified as a Schedule I controlled substance, as Schedule I controlled substances are defined as such, in part, by the absence of recognized medical uses. Thus, Appellant claims that principles of due process demand that prosecution under the provisions of the Drug Act which prohibit various activities relating to controlled substances (in this case the possession and the possession with intent to deliver controlled substances), is barred with respect to marijuana as marijuana ostensibly has ceased to qualify as a Schedule I controlled substance under the Drug Act. Appellant contends that our long-held principle that criminal statutes are to be strictly construed supports this interpretation. We disagree.
Appellant was charged under the following provisions of the Drug Act:
35 P.S. § 780-113(a)(16), (30).
The schedules of controlled substances are defined by 35 P.S. § 780-104. That statute begins by stating that "[t]he following schedules include the controlled substances listed
Id.
We first analyze Appellant's claim that marijuana has some accepted medical use in the United States. At a hearing held pursuant to Appellant's motion to dismiss, the Appellant offered evidence demonstrating that fourteen of our sister states have passed legislation legalizing the use of marijuana for medical purposes.
Marijuana's recent resurgence as a maligned-substance-turned-cure-all is not surprising. Four-thousand years ago, ancient Egyptians were using marijuana to treat everything from sore eyes to hemorrhoids. Chinese culture has recognized marijuana's medicinal properties for thousands of years, and it remains one of the fifty fundamental herbs used in traditional Chinese medicine.
Yet, history is replete with folk remedies that scientific study has ultimately proven to be ineffective or even harmful. For instance, barely a century has passed since heavily toxic mercury compounds were routinely relied upon for the treatment of syphilis and other ailments. We now know that mercury did nothing to cure syphilis or alleviate its symptoms. The ill-conceived treatment instead may have led to countless cases of mercury poisoning (which was often indistinguishable from the disease being treated). Mercury is known to have some antiseptic properties, and that attribute likely led to mercury and related compounds being used as common ingredients in numerous elixirs and potions offered to treat every ailment known to man,
The use of butter as treatment for burns is another illustrative example. While not intrinsically toxic like mercury, butter turned out to be a counterproductive home remedy for the treatment of burns. The American Red Cross now discourages the treatment because butter can actually lead to trapping the heat of a burn, which in turn can lead to an increased risk of infection as well as inhibiting future treatment of the injury.
Still, some studies suggest there are increased risks of cancer from marijuana usage unrelated to the method of delivery. A recent study found that men who use marijuana recreationally are twice as likely to be diagnosed with a particular sub-type of testicular cancer, nonseminoma.
Nonetheless, recognition that there is at least some acceptance of marijuana as medicine in the United States does not, ipso facto, excise marijuana from the list of Schedule I substances enumerated in 35 P.S. § 780-104. Consistent with our obligation to effectuate the intent of the legislature and give full effect to each provision of the statute, we instead conclude that Appellant's strained interpretation of 35 P.S. § 780-104 is itself the genesis of Appellant's due process concerns, not the plain language of the statute. A narrow and fair reading of the plain language of the statute alleviates any of Appellant's due process concerns.
The first sentence of 35 P.S. § 780-104 reads: "[i]n determining that a substance comes within this schedule, the secretary shall find: a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision." Standing alone, the phrase "comes within this schedule" might be interpreted to establish that all Schedule I substances must continuously meet the subsequently listed conditions regarding potential for abuse and current medical use in order to retain their `status' as a Schedule I substance. Alternatively, however, this provision can be read to mean that the conditions set forth in 35 P.S. § 780-104(1) apply only to future additions to Schedule I by "the secretary" who "shall find" that the substance under consideration meets those conditions prior to its addition to Schedule I. This latter interpretation is buttressed by the subsequent sentence, which reads: "[t]he following controlled substances are included in this schedule:...." The second sentence of 35 P.S. § 780-104(1) is most logically read to act independently of the first, establishing a list of Schedule I controlled substances that are not dependent on the criteria set forth allowing additions to Schedule I by "the secretary" that is set forth in the first sentence. Thus, the listed substances "
Appellant's interpretation would require that each of the Schedule I substances listed under 35 P.S. § 780-104(1) continuously meet the conditions that there be "a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision." Id. Apart from the fact that it is not a rational reading of the plain text, that interpretation is perceptibly untenable with respect to many of the substances listed under the statute. For instance, heroin,
It is clear that a narrow reading of the express and plain meaning of the statute indicates that there is no requirement that the Schedule I substances listed under 35 P.S. § 780-104 continuously conform to the standard that there be "a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision." 35 P.S. § 780-104(1). Accordingly, we reject Appellant's suggested interpretation and conclude that his due process claim lacks merit. Regardless of whether there are accepted medical uses for marijuana in the United States, marijuana remains a Schedule I substance under the Drug Act.
Appellant next contends that the trial court abused its discretion in denying the motion to suppress the seized contraband. Appellant argues the police lacked the requisite exigent circumstances justifying an intrusion into his home without a warrant. The trial court denied the motion on the basis that the intrusion was justified in order to secure evidence the police believed might be destroyed before they could obtain a warrant. Our standard of review of a trial court's denial of a suppression motion is well-settled:
Commonwealth v. Dixon, 997 A.2d 368, 372-73 (Pa.Super.2010) appeal denied, 611 Pa. 654, 26 A.3d 482 (2011) (quoting Commonwealth v. Thompson, 604 Pa. 198, 985 A.2d 928, 931 (2009)).
First to testify at the suppression hearing for the Commonwealth was Jeffrey DeSimone, Chief of the Homestead Borough Police Department. Chief DeSimone had twenty-one years of police experience including six years as Chief of Police with the Homestead Borough. Chief DeSimone had extensive experience in drug interdiction; he served for eight years as a canine officer with his department. As is evident from the facts of this case, he continued to
In April of 2010, Chief DeSimone received information from a police officer from a neighboring police department that large quantities of marijuana were being distributed from a house at 314 West 12th Avenue in the Borough of Homestead. The unnamed police officer informed DeSimone that there were numerous people carrying book bags, purportedly containing marijuana, coming and going from the residence.
Chief DeSimone relayed this information to his officers on the street. He then made a phone call to an informant to confirm the suspicions relayed by the neighboring police department. Regarding the informant's reliability, DeSimone stated: "I'm not going to say that they [sic] are a reliable confidential informant. I'm just going to call them an informant at this time, because I could not verify the reliability." N.T., 5/23/11, at 6. Upon further questioning, DeSimone stated that he found prior information obtained from the informant concerning criminal activity to be accurate. However, when asked if any prior information from the informant had resulted "in arrests or seizures of drugs[,]" Chief DeSimone replied "[a]t that time, no. It led more to surveillance activities...." Id. at 7. Those surveillance activities, he indicated, did ultimately reveal drug activity. During cross-examination, however, DeSimone agreed that the informant's information was unreliable, because the informant was "unproven." Id. at 20. He also agreed that the informant's information was the functional equivalent of a guess that criminal activity was going on at 314 West 12th Avenue. DeSimone could not, or would not, provide any specific prior instance in which the informant's shared information turned out to be correct or otherwise led to an arrest.
Reliability aside, the informant confirmed to Chief DeSimone the information conveyed by the unnamed police officer. Additionally, the informant indicated that the drug activity at 314 West 12th Avenue had been going on for some time. He also indicated during the phone call that two black males were currently transporting marijuana from the house and he gave a description of their car. DeSimone also indicated that the informant told him that there were two individuals in the house at 314 West 12th Avenue.
Chief DeSimone communicated the car's description to Officer Fusco. Soon thereafter, Fusco initiated a traffic stop on the suspect vehicle a few blocks away from 314 West 12th Avenue. The traffic stop culminated in an arrest during which thirteen pounds of marijuana and a firearm were seized from the occupants of the vehicle.
The arrestees were transported to the Homestead Police Department. One of those individuals, Mr. Knight, after being mirandized, gave a brief oral statement to DeSimone. Knight refused to give a written
Chief DeSimone stated that because he could not get Knight to commit his statement to paper, evidence he would have used to obtain a search warrant, he "felt we had to get up there, [and] possibly do a knock and talk."
Officer Fusco approached the home from the rear alley as DeSimone and the Munhall officers approached the front door. DeSimone indicated that as he approached the home, "the odor of raw marijuana was prevalent. And the closer we drew to the house, the stronger the odor got." Id. at 11. DeSimone believed the odor was emanating from an open window near the front door.
Chief DeSimone knocked on the door, receiving no response. He knocked again, following which he heard the sound of "slight movement." Id. at 12. Still, no one answered the door. DeSimone then knocked a third time and announced, "police, please open the door[,]" at which time "the movement got more profound." Id. DeSimone stated: "[a]t that point in time, with the loud movement, having the information that narcotics was [sic] involved, two suspects on the inside, we had no idea what at this point was transpiring on the other side of that door, really." Id. at 12-13.
Simultaneously, Fusco radioed from the back of the house. DeSimone described the transmission as "excited" but "garbled." Id. at 13. DeSimone did not understand what was being said. Fusco radioed DeSimone again, saying that there was some activity involving a person opening a window and jumping out at the rear of the residence.
At this time, Chief DeSimone kicked the door open and entered the home. He stated his reasoning for doing so as follows:
Id. at 14-17.
When Chief DeSimone entered the residence, he discovered that Appellant had jumped out the rear window, injuring himself, and had been detained by Officer Fusco in the rear alley. No one was found inside the house. While searching for the nonexistent second individual, DeSimone observed the butts of two handguns, an AK-47 magazine, and marijuana in plain view on a table. DeSimone and the other officers secured the residence while they obtained a search warrant. Once the search warrant was obtained, the officers conducted a thorough search of the house, discovering several firearms and approximately ten pounds of marijuana.
Munhall Officer Trout also testified at the suppression hearing. Trout was present with Chief DeSimone and Officer Caterino on the front porch during the "knock and talk." Trout recalled DeSimone knocking on the door when the radio transmission from Fusco came through. Unlike DeSimone, Trout did hear the first transmission from Fusco clearly. He heard Fusco say that someone had jumped out the rear window of the residence. DeSimone ordered Trout to go the rear of the house and assist Officer Fusco, and Trout complied with that order. When Trout left the front of the home to assist Fusco, DeSimone had not yet kicked open the front door.
Officer Fusco also testified. He affirmed that he went to the rear of 314 West 12th Avenue as ordered by DeSimone. A few seconds after he heard DeSimone knocking at the front door, he observed Appellant free fall from a second story window of the house, landing right at Fusco's feet. Fusco first radioed for medics, seeing that Appellant had landed "essentially on the front of his face" and had also sustained an injury to his left arm. N.T., 8/4/11, 10. Fusco opined that the garbled message heard by DeSimone was the initial call he made to get medical assistance for Appellant. Soon thereafter, he saw Officer Trout come around the building to assist him.
Appellant testified that on the day in question, the only other person who had been present in his home was "Mr. Knight."
The Fourth Amendment provides that:
U.S. Const. amend. IV.
"It is axiomatic that the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.'" Welsh v. Wisconsin, 466 U.S. 740, 748, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). Accordingly, the Supreme Court of the United States has long recognized that "searches and seizures inside a home without a warrant are presumptively unreasonable." Id. at 749, 104 S.Ct. 2091 (quoting Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)).
Accordingly, "[a]bsent probable cause and exigent circumstances, the entry of a home without a warrant is prohibited under the Fourth Amendment." Commonwealth v. Roland, 535 Pa. 595, 637 A.2d 269, 270 (1994). In determining whether exigent circumstances exist, the following factors are to be considered:
Id. at 270-71 (quoting Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026, 1031 (1979)). We may also consider "whether there is hot pursuit of a fleeing felon, a likelihood that evidence will be destroyed if police take the time to obtain a warrant, or a danger to police or other persons inside or outside the dwelling." Id. at 271. When considering these factors, we must remain cognizant that "police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Id. (quoting Welsh, 466 U.S. at 749-50, 104 S.Ct. 2091).
In its opinion, the suppression court determined that:
Trial Court Opinion (TCO), 12/14/2011, at 4.
Appellant contends that the police fell far short of establishing the existence of
The Commonwealth argues that "exigency arose with regard to the possibility that Appellant and/or other persons inside the residence would destroy incriminating evidence." Commonwealth's Brief, at 23. The Commonwealth contends that a finding of exigency in this case is concordant with this Court's findings of exigency in Commonwealth v. Walker, 836 A.2d 978 (Pa.Super.2003), Commonwealth v. Bostick, 958 A.2d 543 (Pa.Super.2008), and Commonwealth v. Griffin, 785 A.2d 501 (Pa.Super.2001). Accordingly, we review those decisions for comparison with the instant case.
In Griffin, Police arrested the appellant (Griffin) for selling crack cocaine to an undercover officer. The Philadelphia Police, while conducting drug surveillance, observed several individuals engage in apparent drug transactions on a street in Philadelphia. The undercover officer asked one the individuals, Simmons, for a quarter ounce of crack cocaine. Simmons went into a nearby house and came out again with Griffin and another man, Thomas. Griffin left in a vehicle with Thomas, returned shortly thereafter, and was observed handing Simmons a baggie. Simmons gave the baggie to the undercover officer in exchange for $225 in cash. Simmons was then seen giving the cash to Thomas, who was standing next to Griffin.
The undercover officer radioed for backup, and shortly thereafter two police officers arrived at the scene. Thomas and Griffin saw the police approach and quickly retreated into the house. During the retreat, the police observed Griffin handling a firearm. When the police arrived at the doorstep, they could see Griffin, through a window, secreting the firearm beneath a cushion. Police immediately entered the residence without a warrant, arresting Griffin and securing the firearm.
In Griffin, the appellant challenged the legality of the warrantless entry that occurred. We first found that police had "ample information amounting to probable cause" and that there was drug-related activity at the house that "was felonious in nature." Id. at 506.
Id. (footnote omitted, emphasis added).
Thus, in Griffin, police directly observed the underlying illegal activity, sought to effectuate an arrest, but were thwarted when the suspects retreated into a home. Further observations established that the suspects, who had just evaded police, were armed and were witnessed attempting to secrete evidence. Exigent circumstances were found to exist justifying a warrantless entry for the purpose of securing the suspects and the observed firearm while a warrant was obtained.
In Walker, a police officer received a radio call that drug activity was occurring at a motel, a location familiar to the officer due to prior drug investigations there that had resulted in arrests. Upon his arrival at the motel, the officer observed the appellant (Walker) smoking from what was instantly identifiable as a glass crack pipe. Walker made eye contact with the officer, turned around, entered a motel room, and then closed the door. The officer exited his vehicle and followed Walker into the motel room. Once inside, the officer saw Walker attempt to hide the crack pipe in a drawer. Walker was arrested and found to be in possession of more than 24 grams of crack cocaine.
In justifying finding exigency in Walker, a panel of this Court explained:
Id. at 981 (some internal citations omitted).
Finally, in Bostick, police conducting plainclothes surveillance observed several apparent hand-to-hand narcotics transactions occurring on the street just outside of the subsequently targeted house. Following each observed transaction, police stopped the suspected recipient of narcotics a few blocks away, ultimately finding on those persons packets of heroin labeled with a particular brand name. At one point, the appellant (Bostick) exited the house and also engaged in suspected hand-to-hand narcotics transactions. When each recipient was subsequently stopped, police recovered the same `brand' of heroin they had observed earlier. This same sequence of events was repeated several times. During the course of these transactions, Bostick would approach a vehicle located near the house, access the center console, return into the house, and then reemerge prior to completing a transaction.
At some point, Bostick became aware of the police presence and attempted to flee,
In Bostick, we held that exigency existed, largely relying on Walker, because:
Id. at 558.
A common circumstance in Bostick, Griffin, and Walker was that police directly observed illegal activity within the immediate vicinity of the residence that was subsequently searched, and those observations were made immediately prior to the warrantless entry. Also common to each of those cases was the fact that a suspect had spotted and then immediately attempted to evade police by fleeing into a residence, creating an immediate risk that an attempt to destroy evidence was impending. Another commonality was that police had not created the exigency justifying the warrantless entry. These circumstances are conspicuously absent in the instant case. "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. Demshock, 854 A.2d 553, 557 (Pa.Super.2004).
In Demshock, we rejected the Commonwealth's claim of exigency because it had been manufactured by the police. In that case, police were patrolling an apartment complex that had been subjected to several bouts of theft and vandalism. While walking down a walkway between apartments, a police officer observed what he believed to be teenagers consuming beer inside one of the apartments. He made the observation through a sliding glass door. The officer called for backup, and the residence was soon surrounded by police.
Police knocked on the door, and someone responded, "who is there?" An officer responded, "hey man, it is me." Someone then opened the door partway and peered out. After observing the police officer, the person backed away from the door, and the police followed him inside, pushing the door open as they entered. The police observed that the odor of marijuana was detectable as soon as the door was opened.
Once inside, the police observed marijuana in plain view on a table. The officer asked for identification from the partygoers, and told the crowd that if they had marijuana on them, they should place it on the table. The appellant then pulled a bag of marijuana out of his pocket and placed it on the table. In rejecting the Commonwealth's claim that exigent circumstances excused the warrantless entry that occurred in Demshock, we concluded that "if there were an exigency, it was created by the officers' choice to attempt a warrantless entry rather than taking steps to secure a search warrant." Id. at 559.
Chief DeSimone and the other police officers lacked any specific evidence that anyone inside the home was armed. Rather, DeSimone's suspicion that firearms or other weapons might be found within the home was premised upon generalized experience with those that traffic in narcotics, not any particular evidence derived from the investigation in this case. In contrast, in Griffin, police directly observed a firearm. In this case, DeSimone was only speculating regarding the presence of firearms.
Chief DeSimone indicated that the reason he approached Appellant's home to conduct a `knock and talk' was precisely because he felt that the investigation had yet to arrive at sufficient probable cause to allow him to obtain a search warrant. While DeSimone's subjective belief at that time is not dispositive as to the question of whether probable cause existed, it was, even if incorrect, a prudent disposition at the time. As DeSimone acknowledged, the evidence compiled prior to the decision to conduct a `knock and talk' consisted of speculation by an unnamed officer, reinforced by an unproven informant, and the statement of Mr. Knight, who was unwilling to commit his admission to writing. The police never directly observed any transactions, nor did they have any other strong evidence that marijuana was being distributed from 314 West 12th Avenue. Nonetheless, the confluence of circumstances establishing probable cause to search the residence was mounting.
The evidence certainly surpassed the threshold necessary to establish probable cause after DeSimone detected the smell of marijuana emanating from Appellant's house. DeSimone testified that the odor of marijuana was noticeable long before he arrived at the front door. In fact, he stated that he detected the odor halfway down the walkway leading from the street to the front porch of the house. N.T., 5/23/11, at 11, 32. Once the odor of marijuana was detected emanating from the residence, the threshold necessary to establish probable cause to obtain a search warrant was met, but to say that the factors establishing probable cause were overwhelming would be an exaggeration.
Once Appellant dove out of the window, the police could only speculate as to whether anyone else remained in the residence. As Chief DeSimone admitted, he did not conduct any surveillance on 314 West 12th Avenue to determine if anyone other than Appellant resided there. The only evidence that another person might be present was information garnered from the unproven informant. Nothing was observed
DeSimone could not say how the informant arrived at the conclusion that anyone other than Appellant was in the house. The informant only told DeSimone about "a person who had gone into the house earlier." N.T., 5/23/11, at 24. DeSimone did not know how much time had transpired between the informant's observation and DeSimone's arrival at the home. DeSimone also admitted that the informant may have been unable to see if anyone had exited from the rear of the house. It was also unknown whether the informant was referring to Mr. Knight when he told DeSimone that a second person had entered the house earlier in the day. In any event, at the time of the `knock and talk', the house was surrounded by police, and Appellant's attempt at escape was an unmitigated failure. There was no evidence presented that there was any serious risk that a person remaining in the house could escape.
The risk that evidence would be destroyed is directly related to the possibility that a second person was in the house, and nothing occurred while police surrounded the home to indicate the presence of more than one individual inside. While the police heard hurried movement inside the house prior to Appellant's bizarre exit, there was nothing to indicate or suggest that evidence was being destroyed. Hurried movement does not provide a strong inference that evidence was being destroyed, and, in any event, nothing was heard after Appellant's exit from the house. Chief DeSimone's hasty entrance immediately thereafter prevented any further observations. Still, because the risk that evidence would be destroyed was the primary factor asserted by the Commonwealth to advance their claim of exigent circumstances, we will discuss this issue in more detail below.
The warrantless entry was not `peaceable.' Chief DeSimone kicked in the front door to gain entry into the residence. Unfortunately, the record does not indicate at what time of day these events occurred. Although we are aware that several events transpired earlier in the day, we do not know when the series of events commenced. It appears that a search warrant was obtained quickly following the warrantless entry (a fact that might support the conclusion that the entry occurred in daylight, applying the presumption that it would be easier to find a magistrate to sign a warrant during the day). That same fact, however, also demonstrates that there is little reason to believe that it would have taken a significant amount of time to obtain a search warrant had one been sought prior to the `knock and talk' attempt.
Balancing all of these factors, we conclude that although probable cause existed at the time of the warrantless entry, the Commonwealth failed to demonstrate exigent circumstances sufficient enough to overcome the strong presumption that the warrantless invasion of Appellant's home was illegal. Contrary to the Commonwealth's arguments, the Bostick, Griffin, and Walker rulings fail to support a finding of exigency in these circumstances. Appellant was not directly observed by
Also common to Bostick, Griffin, and Walker were facts that the appellants in those cases had observed the presence of police and reacted by retreating into the residences that were ultimately searched. Their knowledge of the presence of police greatly elevated the risk that evidence would be destroyed if police were to wait to obtain a search warrant. These are facts conspicuously absent from Demshock and the instant case. Here, the risk that Appellant, or anyone else within the house, would destroy evidence was largely created by the police who approached a home that was the target of an investigation to do a `knock and talk.' It is hard to envision a purpose for this particular `knock and talk' other than an intent to manufacture exigency and bypass the warrant requirement.
As in Demshock, "[t]his was not a case where officers stumbled directly upon a crime in progress and had no time to secure a warrant." Demshock, 854 A.2d at 557. The police in this case approached a home that was the sole target of the criminal investigation they were conducting; they were not confronted with unforeseen circumstances requiring immediate action. Given that their suspicions of illegal activity within the house had developed over the course of the day, rather than mere minutes or seconds preceding the warrantless entry, the risk that there might be an attempt to flee or destroy evidence on the part of the occupant of the house should have been at the forefront of Chief DeSimone's mind when he decided to conduct a `knock and talk.'
The likelihood that Chief DeSimone, no amateur in the field of drug interdiction, simply failed to contemplate the likelihood that a `knock and talk' would run the risk that the occupant or occupants would destroy evidence when confronted with the presence of police at the front door would have been quite an oversight for such a highly trained and experienced officer of the law. A far more reasonable interpretation was that this `knock and talk' was conducted with the hope that events would transpire in such a fashion as to obviate the warrant requirement altogether. Not surprisingly, that is exactly what happened. However, if the "chief evil against which the wording of the Fourth Amendment is directed" can be so easily circumvented by design rather than circumstance, we would be forced to accept that the exception is permitted to swallow the rule. See Welsh, 466 U.S. at 748, 104 S.Ct. 2091. To prevent dilution of the sanctity of a citizen's home, the core element of the Fourth Amendment, we must remain vigilant against attempts by police to actively seek out exigency, no matter how well-intentioned their efforts might be.
Nevertheless, the probability that evidence would be destroyed in this case, independent of whether the exigency was manufactured, is exaggerated. Police suspected 314 West 12th Avenue to be the locus of distribution for significant quantities of marijuana. Large quantities of marijuana cannot be easily disposed of in the same manner as most other controlled substances. It does not take an expert to know that one cannot flush multiple pounds of marijuana down a toilet quickly, nor with the ease that one could flush heroin, cocaine, or other common controlled substances.
Furthermore, unlike what had occurred in Bostick, Griffin, and Walker, the reaction that occurred in response to the presence of police in this case occurred after the police knocked on the door. This strongly supports our conclusion that the exigency that occurred was created by police in this instance. Prior to when the police arrived at Appellant's door and announced their presence, there was no indication that there was an attempt to destroy evidence underway and, thus, no exigency. Thus, the exigency encountered by police was of their own making, a circumstance easily avoided had the police simply sought to acquire a search warrant.
Hence, we conclude that the risk that evidence would be destroyed was principally a manufactured exigent circumstance and also objectively unrealistic in the circumstances of this case. Both exigent circumstances and probable cause are required to justify a warrantless entry into a home. Lacking sufficient and valid exigent circumstances, the warrantless intrusion in this instance was conducted in contravention of the Fourth Amendment and was, therefore, illegal. Consequently, we conclude that the trial court abused its discretion in denying the motion to suppress the seized contraband.
Judgment of sentence reversed.
Stack & Suddath, A Brief History of Medical Marijuana, Time, 10/21/09, http://www.time.com/time/health/article/0,8599,1931247,00.html.
