POLICE ENTRY INTO HOME WHILE WAITING FOR SEARCH WARRANT TO ARRIVE WAS LAWFUL (Defendant’s girlfriend consented to the entry).

The Superior Court has decided the case of Commonwealth v. Davis, No. 3432 EDA 2014
(March 04, 2016), holding that (1) police did not conduct an illegal entry into Davis’ residence while waiting for a search warrant and (2) the trial court did not improperly require that the jury answer special verdict slips related to the drugs and gun found during the search.

FACTS

On February 24, 2014, Detective Maczko worked with a confidential informant, who went to Davis’ residence to purchase heroin. This was one of Detective Maczko’s five controlled purchases from Davis using a confidential informant. The fifth controlled purchase occurred on March 3, 2014, after which Detective Maczko “went into headquarters to try to obtain a search warrant.” While Detective Maczko was pursuing the search warrant, Davis exited his residence and was taken into police custody.

Detective Maczko attempted to procure the warrant at 3:20 p.m., but it took him almost two hours. The nearly two-hour delay was the result of what sounded like an Abbot and Costello routine as the Detective first attempted to reach the local Magisterial Judges who had already left for the day to go play racquetball and was subesequently refused by another Judge who was unwilling to do the work of the Judge at the racquetball court.

When Detective Maczko finally received the signed warrant, he “immediately got in his car and drove as fast as he could to Davis’ house.” He testified that he was in constant communication with other officers at the home. While he was trying to procure the warrant, one of the officers at the home suggested that the officers at the home knock on the door and try to make contact with Davis’ girlfriend to ask for consent.

Detective Hammer explained that he and his partner were at Davis’ home while Detective Maczko was procuring the warrant. They knocked on the door and entered after Davis’ girlfriend answered the door and left them inside. The detectives told Davis’ girlfriend that Davis was in custody and they were obtaining a search warrant for the residence for drugs. They asked her for permission to search the residence and she declined. One of the detectives conducted a sweep of the home to check the rooms to make sure nobody else was inside.

The warrant ultimately arrived and the home was searched. Although the case facts never actually explain what happened after the search, we can assume that after the property was searched pursuant to the warrant, heroin and a shotgun were found inside Davis’ home.

Davis was charged with and tried on two counts of possession with intent to deliver (heroin and marijuana) and one count of possession of drug paraphernalia. At the time of trial, a verdict slip was provided to the jury which included two interrogatories: (1) requiring that the jury determine the weight of the heroin possessed and (2) to deliberate as to whether or not Davis possessed or controlled a firearm, the 12 gauge shot gun. Davis was found guilty on all charges.

ISSUES

Whether the trial court erred when it denied Davis’ motion to suppress after police secured and searched Davis’ residence without consent, without a warrant and without a valid exception to the requirement for a warrant.

Whether the trial court erred with its use of a special verdict slip with questions on the weight of the drugs and presence of a firearm?

HOLDING

The trial court properly denied the motion to suppress.

The trial court’s use of a special verdict slip regarding the questions on the weight of the drugs and presence of a firearm was not improper.

REASONING

THE TRIAL COURT PROPERLY DENIED SUPPRESSION

Davis argued that the police conducted an illegal entry into his residence while waiting for a search warrant to be obtained by Detective Maczko.

It is undisputed that Davis’ girlfriend was a co-occupant of the residence. She was therefore permitted under the Fourth Amendment to consent to the warrantless entry, since Davis was not present to object to the entry. As a result, Davis’ Fourth Amendment rights were not violated by the police’s warrantless entry.

Additionally, no contraband was recovered as a result of the police action in securing – not searching – Davis’ residence while waiting for the warrant. Detective Hammer testified that there was no search prior to receipt of the warrant and he did not “observe,” “seize,” “collect,” or “convey to Detective Maczko” anything of evidentiary value during the sweep. Accordingly, the Superior Court found no error by the trial court in denying Davis’ suppression motion.

THE TRIAL COURT’S DECISION TO USE SPECIAL VERDICT SLIPS WAS APPROPRIATE

Davis argued that the trial court acted improperly by providing the jury with a verdict slip that included questions regarding the weight of the drugs and the presence of a firearm recovered from Davis’ residence. Further, Davis claimed that the special verdict slip in this case was not done for his benefit; rather, it was done so that his sentence could be increased. He also argued that the use of the verdict slip was contrary to law and an abuse of discretion and he was prejudiced by the presence of the special verdicts. Notably, the Superior Court found that Davis failed to explain how he was prejudiced.

The Commonwealth conceded that it was improper for the trial court to include questions on the verdict slip related to possible mandatory minimum sentences although it further acknowledged that, at the time of trial, the mandatory sentencing provisions at issue had not yet been declared unconstitutional so, it was understandable why the trial court opted to use the special verdict slips. Additionally, the Commonwealth countered that the trial court’s special verdict slip in this case was “harmless” because – although it asked the jury two questions relating to the drug weight and firearm mandatory minimums – the trial court did not impose any mandatory minimum sentences when sentencing Davis.

The Superior Court noted that in Davis’ case, the trial court sentenced him without applying the mandatory minimums. And, there was no evidence that the questions on the verdict slip affected the jury’s deliberation as to Davis’ guilt or innocence on the underlying charges in any way. Therefore, the Superior Court concluded that there was no merit to Davis’ argument that the verdict slip was contrary to law and an abuse of discretion.

http://www.pacourts.us/assets/opinions/Superior/out/J-A03030-16o%20-%201025711286608238.pdf?cb=1

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