Commonwealth v. Berkheimer, 2012 PA Super 253, November 21, 2012 (37 pages)
Looking to execute a probation detainer on one Ryan Lecroy, two inexperienced state troopers sought the help of some more experienced colleagues. Those colleagues in turn spoke to Lecroy’s stepfather, who opined he was staying at an address that had two residences, one of which was a mobile home rented by the defendants. Approaching the darkened mobile home at 11:30 p.m., and lacking any indicia that the tip about Lecroy’s whereabouts was reliable, the troopers determined it was necessary to talk to the occupants of the mobile home. One of them knocked and, three seconds later, pushed it open, allowing the smell of burned marijuana to waft outside. The trooper who entered first saw, with his flashlight, Brady Berkheimer and her sister, Lecory’s wife Natasha Lighter, asleep on separate sofas. The trooper announced himself. Berhkheimer explained her sister was in the home because she was terrified of Lecroy, who was abusive. The trooper announced his purpose and said he was going to search the house on account of the smell of marijuana. In response to his question, Berkheiner told the trooper her husband Kent Berkheimer was also in the house, whereupon the trooper went out and found him in the bedroom standing next to two of the Berkheimers’ sleeping four year old daughter. He also saw several marijuana pipes, and vessels containing marijuana. Escorting Kent to the living room, the trooper said that they were not free to leave while he applied for a search warrant. In the meantime two troopers went to the other residence on the property in search of Lecroy. The four occupants of the house were taken to a neighbor’s home to await the arrival of the search warrants a few hours later, as well as the subsequent search of both properties. The troopers did not wait for the warrants to arrive to go into the other house, where they found marijuana too. When the warrants arrived, a more thorough search ensued. In addition to the aforementioned pipes and marijuana, the troopers seized a box from a basement with evidence of marijuana cultivation and a scale from a car whose door they jimmied. The total amount of the marijuana seized totaled less than 30 grams— a small amount under 35 P.S. §780-113(a)(31).
At the suppression hearing, no one could explain why the quest for Lecroy and the ensuing search of the Berkheimers’ home had to occur in the middle of the night. The suppression court found the troopers’ actions illegal, but did not suppress the evidence because the smell of the marijuana provided probable cause for the search, and therefore the marijuana would have been discovered anyway. The Berkheimers were convicted and appealed. A Superior Court panel affirmed, by the Court grated reargument en banc. The question the Court considered on reargument was:
[Whether] [t]he Trial Court committed an error of law by holding that the independent source doctrine is applicable to a situation where a police team a) illegally obtained evidence through a warrantless, nighttime, non-peaceful entry into a private home in the absence of exigent circumstances, and b) this police team is the very same police team claiming to have legally obtained sufficient evidence to form the basis of a search warrant, through an independent source, prior to conducting a warrantless home invasion[?]
The Court first expressed its concern about the warrantless entry and the nighttime search, both in the absence of any exigent circumstances. Both criticisms were based on United States Supreme Court decisions grounded in the Fourth Amendment. The Court also noted the absence of any justification for a nighttime search.
To save the search, the Commonwealth invoked the “inevitable discovery ”exception to the exclusionary rule. The Court though found this use of the exception inconsistent with Article I, §8 of the Pennsylvania Constitution. The Court set forth a lengthy exigesis on Article I, §8 and its history of protecting Pennsylvania’s citizens from unwarranted government intrusions, those protections being more extensive than those afforded by the Fourth Amendment as interpreter by the United State Supreme Court. While the Pennsylvania Supreme Court at first adopted the inevitable discovery exception to the Fourth Amendment’s warrant requirement, it later retreated, holding that the exclusionary rule that enforces Article I, §8 not only exists to deter police misconduct, but to protect the privacy rights of citizens. Nor did the recent case of Commonwealth v Henderson, 47 A.3d 797 (Pa. 2012) aid the Commonwealth. In that case the use of illegally obtained evidence by police officers was unwitting: they had no way of knowing that the information used to obtain their warrant was illegally obtained from other officers— a distinction the Supreme Court relied upon in ruling the evidence admissible. In this case, the police officers who obtained the warrant knew their conduct was illegal.
The Court in the end reversed the decision of the panel and ordered the appellants discharged.
The case may be found here.