The opinion
J-E03003-24 2025 PA Super 129
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DOMINIQUE TASHAWN-TYRELL : No. 1490 MDA 2022
HIGHTOWER :
Appeal from the Suppression Order Entered October 13, 2022
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0005926-2021
BEFORE: LAZARUS, P.J., BOWES, J., OLSON, J., KUNSELMAN, J., NICHOLS,
J., MURRAY, J., KING, J., BECK, J., and LANE, J.
OPINION BY NICHOLS, J.: FILED: JUNE 25, 2025
The Commonwealth appeals from the trial court’s order granting
Appellee Dominique Tashawn-Tyrell Hightower’s motion to suppress.1 The
Commonwealth argues that the trial court erred in concluding that the plain
view doctrine did not apply. We affirm.
Factual and Procedural History
The trial court summarized the underlying facts of this matter as follows:
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1 In its notice of appeal, the Commonwealth certified that the trial court’s
suppression order would terminate or substantially handicap the prosecution
of its case. See Pa.R.A.P. 311(d) (stating that “in a criminal case, under the
circumstances provided by law, the Commonwealth may take an appeal as of
right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution”); see also Notice of Appeal,
10/20/22, at 3 (unpaginated); Commonwealth’s Brief at 1.
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Under docket CP-67-CR-0005926-2021, [Appellee] was charged
with [one] count [of] person not to possess, use, manufacture,
control, sell or transfer firearms under 18 Pa.C.S.[] § 6105(a)(1),
[four] counts [of] manufacture, deliver or possession with intent
to manufacture or deliver under 35 P.S. § 780-113(a)(30), and
[one] count [of] criminal conspiracy to manufacture, deliver or
possession with intent to manufacture or deliver under 18
Pa.C.S.[] § 903(a)(1). Under docket CP-67-CR-0005925-2021,
Saquana Layer (Co-defendant) was charged with four counts of
manufacture, deliver or possession with intent to manufacture or
deliver under 35 P.S. § 780-113(a)(30), and [one] count [of]
criminal conspiracy to manufacture, deliver or possession with
intent to manufacture or deliver under 18 Pa.C.S.[] § 903(a)(1).
The charges stem from an arrest that occurred on November 3,
2021, at 3972 Waverly Court in Springettsbury (the residence).
Trial Ct. Op., 12/22/22, at 1-2 (citations omitted and some formatting
altered).
Appellee filed an omnibus pre-trial motion seeking to suppress the
evidence obtained from the residence, arguing that police improperly searched
the residence and the vehicle without warrants and/or the subsequently
obtained warrants were improper. See Omnibus Pretrial Mot., 2/22/22, at 3-
6. Co-defendant also filed a motion to suppress. The trial court held a
suppression hearing on both motions on April 8, 2022.
At the suppression hearing, the Commonwealth presented testimony
from Detective Kyle Pitts, Officer Adam Nothstein, and Officer Peter Fouad of
the York City Police Department. See N.T., 4/8/22, at 4, 39, 50.
The trial court summarized the evidence presented at the suppression
hearing as follows:
[Detective Pitts testified that York City Police were working with
the U.S. Marshal Fugitive Task Force to execute an arrest warrant
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for Appellee. See N.T., 4/8/22, at 4-6.] Prior to the arrest, law
enforcement surveilled the residence for five days and only viewed
[Appellee], Co-defendant, and their two children entering and
exiting the residence. [Detective Pitts explained that the police
did not observe the back door of the residence during these five
days of surveillance because they did not have the manpower and
were not in a position to do so. See N.T., 4/8/22, at 28, 37.] On
the day of the arrest, police and U.S. Marshalls knocked and
announced their presence to serve the arrest warrant on
[Appellee]. [Officer Nothstein] saw movement in the second-floor
window. There was a slight struggle during the arrest as
[Appellee] came out of the front door of the residence. [After a
brief struggle, officers took Appellee to the ground and placed him
in handcuffs. See N.T., 4/8/22, at 40-42, 52.] It appeared to law
enforcement that there was someone else inside [the residence]
trying to shut the door [after Appellee had gone outside].
Law enforcement then entered the residence to conduct a
protective sweep. Law enforcement located Co-defendant and the
two children on the first floor before proceeding up the stairs to
the second floor. Detective Pitts testified that once law
enforcement had eyes on Co-defendant and the two children, it
was clear they were not a security threat and were not placed in
handcuffs.
The purpose of conducting the protective sweep on the second
floor was to look for individuals who might interfere with the arrest
or create a security threat. As law enforcement conducted the
protective sweep of the second floor, Officer Fouad saw “cherry
gelato, foil bags, a box of sandwich baggies, [and] loose
marijuana” on a dresser in the upstairs bedroom. Additionally,
Officer Fouad testified he saw wads of cash in the top drawer of
the dresser, which was “cracked open.” However, Defense Exhibit
6, a photograph of the dresser, shows the top drawer closed,
whereas Defense Exhibit 4 shows it ajar, with no cash visible [in
the drawer]. The dresser was against the back of the wall where
Officer Fouad agreed that a person could not fit in the drawers or
behind the dresser.
Based on the evidence found during the protective sweep, Officer
Fouad obtained a search warrant for the residence [(the house
warrant)]. Within the residence, law enforcement utilized the
[house] warrant to seize “quantities of marijuana, numerous
individual packages of crack/powder cocaine, [] fentanyl packed
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for sale[,] a significant sum of cash, packaging material, digital
scales, and new/used packaging material.”
Furthermore, a key fob was found inside a black hoodie law
enforcement previously saw [Appellee] wearing. Law
enforcement did not know which vehicle went with the key fob, so
the alarm locator was utilized to find it. After realizing the key fob
went to a Honda Accord, Officer Fouad then peered into the vehicle
and saw the bottom grip of a handgun sticking out from under the
driver’s seat of the Honda Accord. The handgun was then seized
and cleared. After K-9 Khan, a certified narcotics dog, alerted to
the vehicle, Officer Fouad applied for and received a search
warrant of that vehicle [(the vehicle warrant)]. The evidence
seized from the Honda Accord with New Jersey license plate
L76LXJ, included a black Glock 22 .40 caliber handgun with serial
number BFAW862, a magazine containing live .40 caliber rounds
and one ejected live .40 caliber round.
Trial Ct. Op., 12/22/22, at 2-4 (citations omitted and some formatting
altered).
On October 13, 2022, the trial court issued an order and opinion setting
forth its findings of fact and conclusions of law. The trial court explained that
the Commonwealth had presented sufficient articulable facts to support a
belief that there were additional individuals inside the residence who could
pose a threat to the officers’ safety. See Trial Ct. Op. & Order, 10/13/22, at
7-8. Therefore, the trial court concluded that a protective sweep of the entire
residence was proper. See id. The trial court also concluded that the police
exceeded the scope of a protective sweep by searching the dresser in the
bedroom because it was not an area where a person could reasonably be
expected to hide. See id. at 8-9. The trial court further explained that
because the house warrant was invalid, the vehicle warrant was not supported
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by probable cause. See id. at 10. Therefore, the trial court granted Appellee
and Co-defendant’s suppression motions. See id.
The Commonwealth filed a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion
addressing the Commonwealth’s claims.
Analysis
On appeal, the Commonwealth raises the following issues:
1. The trial court erred by misapplying the plain view doctrine,
having previously found that the protective sweep of the
second floor was found to have been justified by specific and
articulable facts. Because the protective sweep of the second-
floor master bedroom was valid, law enforcement had a lawful
vantage point to see items in plain view in the bedroom.
2. The trial court further erred in finding that the search warrant
for the home lacked probable cause and was therefore invalid.
More specifically, the trial court erred in finding that the loose
marijuana, cherry gelato foil bags, and sandwich baggies,
found on top of the dresser, in plain view, during the protective
sweep, did not constitute probable cause for a search warrant
of the residence.
Commonwealth’s Brief at 4.2
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2 We note that in its Rule 1925(b) statement, the Commonwealth also argued
that the trial court erred by suppressing a key fob recovered during the
execution of the house warrant and the evidence seized pursuant to the
vehicle warrant as fruits of the poisonous tree. See Rule 1925(b) Statement,
11/10/22, at 2 (unpaginated). However, the Commonwealth and the trial
court acknowledge that the issue of the legality of the warrants is controlled
by this Court’s disposition of the arguments concerning the protective sweep
and plain view doctrine. See Commonwealth’s Brief at 4, 8-9, 27-28; Trial
Court Op., 12/22/22, at 10; see also Commonwealth v. Williams, 2 A.3d
611, 619 (Pa. Super. 2010) (en banc) (explaining that “[t]he exclusionary rule
(Footnote Continued Next Page)
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The Commonwealth’s issues are interrelated; therefore, we address
them together. The Commonwealth contends that the trial court erred in
granting the suppression motion because Officer Fouad had a lawful vantage
point in the bedroom because he was performing a protective sweep, Officer
Fouad observed unused packaging material and pieces of marijuana atop the
dresser in plain view, and Officer Fouad did not open or manipulate the dresser
to view them. Id. at 15. The Commonwealth argues that although the
purpose of the protective sweep is to ensure officer safety, there is no
restriction on the length of time an officer may observe an item in plain view
during a protective sweep. Id. at 16-18 (citing, inter alia, Arizona v. Hicks,
480 U.S. 321 (1987); Commonwealth v. Pine, 536 A.2d 811 (Pa. Super.
1988); Commonwealth v. Marsicano, 1047 MDA 2014, 2015 WL 7282745
(Pa. Super. filed May 6, 2015) (unpublished mem.)).3 The Commonwealth
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also applies to any evidence discovered as a result of the original illegal police
conduct; such evidence is termed ‘fruit of the poisonous tree’” (citation
omitted)). For the reasons set forth below, we conclude that the search of
the dresser was illegal; therefore, it could not serve a basis for the subsequent
application for the house warrant. See Williams, 2 A.3d at 619. Further, as
stated above, the police relied on the key fob that they had found during the
execution of the house warrant in the application for the vehicle warrant.
Therefore, Commonwealth is not entitled to relief regarding these items under
the fruits of the poisonous tree doctrine. See id.
3 We note that Marsicano is an unpublished decision by this Court that was
filed prior to May 1, 2019. Therefore, that case is not only non-precedential,
but it may not be cited or relied upon even for its persuasive value. See
Pa.R.A.P. 126(b); see also Commonwealth v. James, 297 A.3d 755, 767
n.8 (Pa. Super. 2023), appeal denied, 309 A.3d 691 (Pa. 2023).
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further claims that “[t]he suppression court’s finding that the protective sweep
of the [bed]room was validly conducted” is not before this Court because
Appellee did not appeal this determination. Id. at 13 (some formatting
altered).
Additionally, the Commonwealth argues that although Officer Fouad
only observed the items atop the dresser for a few seconds, he immediately
concluded, based on his training and experience, that the unused packaging
materials and loose marijuana was evidence of possible drug crimes. Id. at
18-19. The Commonwealth concludes that the trial court erred in its
application of the protective sweep and plain view doctrines by concluding that
the officer may not consider items in plain view if they are not relevant to the
purpose of the protective sweep, i.e., to locate individuals who may pose a
danger to the police who applying an overly technical standard to determine
whether the officer recognized the marijuana and packaging materials as
evidence of a crime. Id. at 22-23.
Lastly, the Commonwealth argues that the trial court erred by
concluding that Officer Fouad’s application for the house warrant was not
supported by probable cause. Id. at 23-27. Specifically, the Commonwealth
contends that even if Officer Fouad’s observations regarding the cash in the
top drawer of the dresser were excluded from the affidavit of probable cause,
the presence of marijuana and materials used to package and sell marijuana
established probable cause for the magistrate to issue the house warrant. Id.
at 26-27.
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Appellee responds that the protective sweep of the residence “was not
justified by a reasonable suspicion of danger to the officers that performed
the arrest. The police did not observe any weapons or hear or see anything
that would lead them to believe other people were present on the second
floor.” Appellee’s Brief at 15. Appellee argues that this Court should affirm
the trial court’s suppressing the officers’ “observations that were made from
an unlawful vantage point” and all evidence recovered pursuant to the house
warrant “because they were all the fruit of the initial illegal entry.” Id. at 15-
16.
We begin with our well established standard of review:
When reviewing the propriety of a suppression order, an appellate
court is required to determine whether the record supports the
suppression court’s factual findings and whether the inferences
and legal conclusions drawn by the suppression court from those
findings are appropriate. [Where the defendant] prevailed in the
suppression court, we may consider only the evidence of the
defense and so much of the evidence for the Commonwealth as
remains uncontradicted when read in the context of the record as
a whole. Where the record supports the factual findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
However, where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s conclusions of law are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts.
Commonwealth v. Cartagena, 63 A.3d 294, 298 (Pa. Super. 2005) (en
banc) (citations omitted); see also Commonwealth v. Brown, 996 A.2d
473, 476 (Pa. 2010) (explaining that an appellate court conducts de novo
review over the suppression court’s legal conclusions (citation omitted)).
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This Court has explained that it is the sole province of the suppression
court to weigh the credibility of the witnesses. Further, the suppression court
judge is entitled to believe all, part or none of the evidence presented.
Commonwealth v. Heidelberg, 267 A.3d 492, 499 (Pa. Super. 2021) (en
banc) (citation omitted). Moreover, the law is well settled that if the record
supports the result reached by the suppression court, we may affirm on any
ground. Cartagena, 63 A.3d at 301 (citation omitted).
Additionally, it is well established:
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. As
a general rule, a [search] warrant stating probable cause is
required before a police officer may search for or seize evidence.
Absent the application of one of a few clearly delineated
exceptions, a warrantless search or seizure is presumptively
unreasonable.
Heidelberg, 267 A.3d at 502 (citations omitted and formatting altered).
Further, “[t]he remedy for illegal searches and seizures is exclusion of the
evidence[.]” (citation omitted)). Id. at 499.
This Court has explained:
Police may perform a protective sweep as an incident to a lawful
arrest, in order to protect the safety of police officers and others.
See [Maryland v. Buie], 494 U.S. 325, 327 (1990). In such
circumstances, officers may look into “spaces immediately
adjoining the place of arrest from which an attack could be
immediately launched” without any degree of suspicion other than
that necessary to support the arrest. Buie, 494 U.S. at 327. A
protective sweep beyond such immediately adjoining areas is
proper if police can articulate specific facts to justify a reasonable
fear for the safety of police officers or others. We consider the
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information available to police at the time of the sweep from the
perspective of a reasonably prudent police officer.
Commonwealth v. Hall, 199 A.3d 954, 959 (Pa. Super. 2018) (footnote and
some citations omitted and some formatting altered).
In Commonwealth v. Potts, 73 A.3d 1275 (Pa. Super. 2013), this
Court reiterated that there are two levels of protective sweep under Buie: the
first level is limited to spaces immediately adjacent to the place of arrest that
could conceal an assailant and does not require any separate reasonable
suspicion. The second level is a search for potential attackers further away
from the place of arrest, which requires that the officer(s) conducting the
sweep identify specific facts to justify a reasonable fear for the safety of the
officer(s) and others. Potts, 73 A.3d at 1281-82; see also Commonwealth
v. Crouse, 729 A.2d 588, 598 (Pa. Super. 1999) (stating that a protective
sweep must be supported by articulable facts and inferences giving rise to
reasonable suspicion that the area to be swept harbors an individual posing a
danger to the police). Further, it is well established that “even a combination
of innocent facts, when taken together” may give rise to reasonable suspicion.
Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004) (citation
omitted and formatting altered).
This Court has further explained that a protective sweep “is for persons.
It cannot be used as a pretext for an evidentiary search. It cannot be lengthy
or unduly disruptive. It must be swift and target only those areas where a
person could reasonably be expected to hide.” Crouse, 729 A.2d at 598.
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Another exception to the warrant requirement is the plain view doctrine.
See Commonwealth v. Saunders, 326 A.3d 888, 893 n.2 (Pa. 2024).
Recently, our Supreme Court reiterated:
The plain view doctrine is wholly applicable to seizure issues under
both the Fourth Amendment and Article I, Section 8. Under the
plain view doctrine, the police may effectuate a warrantless
seizure of an item if: (1) the police view the item from a lawful
vantage point; (2) the incriminating nature of the item is
immediately apparent; and (3) the police have a lawful right of
access to the item.
Saunders, 326 A.3d at 897 (citations omitted and some formatting altered);
see also Potts, 73 A.3d at 1282 (stating that “[i]f, while conducting a
[protective sweep], the officer should, . . . discover contraband other than
weapons, he clearly cannot be required to ignore the contraband” (citation
omitted)).
The Saunders Court further explained:
The immediately apparent requirement is coextensive with
probable cause. . . . Probable cause 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. Probable cause is a
practical, non-technical concept that is evaluated under a
traditional totality-of-the-circumstances test.
Saunders, 326 A.3d at 897 (citations and quotation marks omitted).
“In determining whether the incriminating nature of an object [is]
immediately apparent to the police officer, we look to the totality of the
circumstances. An officer can never be one hundred percent certain that a
substance in plain view is incriminating, but his belief must be supported by
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probable cause.” Commonwealth v. Liddie, 21 A.3d 229, 236 (Pa. Super.
2011) (en banc) (citations omitted and some formatting altered).
“A police officer’s experience may fairly be regarded as a relevant
factor in determining probable cause.” Commonwealth v.
Thompson, 985 A.2d 928, 935 (Pa. 2009). An officer, however,
cannot simply reference “training and experience abstract from an
explanation of their specific application to the circumstances at
hand.” Id. “A court cannot simply conclude that probable cause
existed based upon nothing more than the number of years an
officer has spent on the force. Rather, the officer must
demonstrate a nexus between his experience and the search,
arrest, or seizure of evidence.” Id. Indeed, a factor becomes
relevant only because it has some connection to the issue at hand.
Commonwealth v. Randolph, 151 A.3d 170, 183 (Pa. Super. 2016) (citation
and footnote omitted).
In Randolph, this Court held that a state trooper failed to establish
probable cause to search a steel box welded to the interior of the defendant’s
vehicle because the trooper “failed to explain how his training and experience
led him to recognize that the [box] was commonly used to transport guns,
drugs and U.S. currency.” Id. at 184 (some formatting altered). The
Randolph Court further observed that the trooper “neglected to list what
classes he has attended or certifications he has received on this subject, the
number or type of cases he has participated in where officers discovered
hidden compartments containing drugs or weapons, or even how long he has
been a law enforcement officer.” Id. Therefore, this Court concluded that the
trooper’s “claim of knowledge and experience was an empty phrase that failed
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to tilt the scales toward probable cause.” Id. (citation omitted and some
formatting altered).
In Potts, this Court affirmed the trial court’s order denying the
defendant’s motion to suppress marijuana found in an open suitcase which
the police observed while conducting a protective sweep incident to their
response to a domestic disturbance 911 call. Potts, 73 A.3d at 1278-79. The
Potts Court explained “the officers were not required to ignore the marijuana
they saw in [the defendant’s] bedroom while conducting the [protective]
sweep.” Id. at 1282 (citation omitted).
Similarly, in Crouse, this Court held that state police troopers properly
seized a pipe used to smoke marijuana, which the troopers observed while
conducting a protective sweep in connection with the execution of an arrest
warrant. Crouse, 729 A.2d at 593, 598. In that case, the state police were
executing an arrest warrant for the defendant’s father when they heard the
defendant’s mother yelling upstairs. Id. at 590. The troopers went to the
second floor and found the defendant in one of the bedrooms. Id. One of the
troopers then quickly looked around the defendant’s bedroom for any weapons
and saw the marijuana pipe on a nightstand next to the bed. Id. at 590-91.
This Court explained that the state troopers lawfully entered the defendant’s
bedroom while conducting a protective sweep and properly seized the
marijuana pipe because it was in plain view. Id. at 593, 598.
Here, the trial court explained:
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Initially, this court holds there were just enough “articulable
facts” to support the second of prong of Buie, showing the
need for a protective sweep. See Maryland v. Buie, 494
U.S. 325, 327 (1990). Because law enforcement could not
see the back of the house, there could have been more
occupants in the residence, which posed a safety threat to
the officers. The movement in the upstairs window blind[s],
resistance at the front door during the arrest, and someone
pushing the front door shut, provided the need for a
protective sweep to help ensure officer safety while the
arrest was completed.
* * *
Although the movement of the window blinds supported a
protective sweep of the upstairs, this court holds the
protective sweep exceeded the cursory inspection allowed
under such conditions as there were not enough “articulable
facts and inferences [to give] rise to reasonable suspicion”
to conduct a more thorough search of the dresser area.
Officer Fouad saw loose marijuana and circled several
specks of loose marijuana he saw on top of that dresser
when shown a picture of the dresser on cross-examination.
[See Defendant’s Ex. 1, 3, 5.] Officer Fouad testified that
no person could fit either behind the dresser or in the
dresser drawers. Therefore, a “swift” search of that area
would not have led a reasonably prudent officer to see tiny
specks of marijuana on top of the dresser nor to make out
the specificity of the items listed in the [house] search
warrant for the residence, namely the “Lemon Cherry
Gelato[] resealable bags[] and a box of clear sandwich
baggies.” Although Officer Fouad’s training and experience
led him to believe that the “lemon cherry gelato[] foil bags[]
and a box of sandwich baggies” were indicative of a drug
sale when combined, those items are not illegal to own.
Additionally, this court finds Officer’s Fouad’s testimony
regarding the wads of cash in the top drawer of the dresser
to be inconsistent with the evidentiary photographs of the
dresser. Defendant’s Exhibit 6[.]
[Trial Ct. Op. & Order, 10/13/22, at 7-9.]
* * *
This court recognizes that the protective sweep in this situation
put the officer in a lawful vantage point in the second-floor
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bedroom. Therefore, the first prong of the plain view doctrine was
met in this case.
However, this court contends that the second prong of the plain
view doctrine has not been met. For that analysis, this court
analyzed the series of events under both the protective sweep and
the plain view doctrine in conjunction. Simply because law
enforcement was in a lawful position does not mean the bounds
of the protective sweep no longer apply. Looking at the
evidentiary photographs in conjunction with Officer Fouad’s
testimony, this court does not find that a reasonably cautious man
conducting a protective sweep to search for persons, would have
spotted tiny specks of loose marijuana sitting amongst a variety
of items on top of a dresser. Based on the small size of the specks,
a person swiftly looking for a person behind a door that has a
dresser behind it would not have a need to closely look on top of
said dresser and would therefore, not see such small specks in
amongst a variety of other items.
Trial Ct. Op., 12/22/22, at 6-9 (some citations omitted and some formatting
altered).
Based on a review of the record, we conclude that the trial court’s factual
findings are supported by the record and are binding on this Court. See
Heidelberg, 267 A.3d at 498-99. Particularly, the trial court found that
Officer Fouad’s testimony concerning the open drawer was not credible
because crime scene photos revealed that the drawer was closed. See Trial
Ct. Op. & Order, 10/13/22, at 4-5, 9. Because the house warrant was based,
in part, on the money in the drawer that Officer Fouad allegedly saw during
the protective sweep, and because the trial court did not credit this testimony,
the only remaining information supporting the house warrant were specks of
suspected marijuana and the gelato bags Officer Fouad characterized as drug
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packaging materials that he also observed during the protective sweep. 4 See
id. at 8.
Protective Sweep
We begin with the trial court’s conclusion that the Commonwealth
presented sufficient articulable facts to justify that the police officers had a
reasonable fear for their safety or of the safety of others. The Commonwealth
opines that the legality of the protective sweep is not at issue here. However,
it is axiomatic that an appellate court’s scope of review of the legal conclusions
supporting a trial court’s suppression order is plenary and de novo; therefore,
the trial court’s conclusions are not binding on this Court in its determination
as to whether the trial court committed legal error. See Brown, 996 A.2d at
476; Cartagena, 63 A.3d at 298. Here, the trial court made several factual
findings relevant to the protective sweep including its determination that the
police observed movement at an upstairs window after knocking on the front
door of the residence, and that a person pulled the front door shut when
officers were attempting to enter. See Trial Ct. Op., 12/22/22, at 6. The trial
court concluded that when Appellee exited the residence, he physically
resisted arrest, and that someone inside the residence was attempting to close
the front door, and further, officers did not surveil nor observe the back of the
residence. See id.
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4 Further, the Commonwealth is not arguing that the money inside the dresser
drawer should be considered in determining probable cause to support the
house warrant. See Commonwealth’s Brief at 10 n.1.
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Based on these facts, the trial court determined that the police had
reasonable suspicion to conclude that unknown individuals could be inside the
residence, other than Co-defendant Layer and the two children, that could
pose a threat to officer safety, which justified a protective sweep of the entire
residence. See id. at 6-7. We agree. Accordingly, the second level of
protective sweep is triggered, as the police possessed specific articulable facts
that support a reasonable fear that there were one or more unknown
individuals in the residence who could pose a safety risk to the officers. See
Hall, 199 A.3d at 959; Potts, 73 A.3d at 1281-82; Crouse, 729 A.2d at 598.
Here, similar to Crouse, the police were serving an arrest warrant when they
became aware of the apparent presence of an unidentified individual on the
second floor of the residence. Compare Crouse, 729 A.2d at 590 (explaining
that the state troopers were executing an arrest warrant for the defendant’s
father when they heard the defendant’s mother yelling upstairs) with N.T.,
4/8/22, at 40 (reflecting that Officer Nothstein testified that he saw movement
in the second-floor window).5 Based on a totality of the circumstances,
including, the movement at the window, the attempt by an unidentified person
to shut the front door while Appellee was being arrested, and the inability of
the police to observe the back door of the residence support a reasonable
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5 As we have noted, movement in the second-floor window supported a
reasonable suspicion that there may have been one or more unidentified
individuals in the residence who posed a safety risk to the police. See
generally Rogers, 849 A.2d at 1189 (describing how innocent facts, when
examined together, can establish reasonable suspicion).
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inference that an unknown individual could have entered the residence
through the back door that could pose an articulable safety risk to officer
safety. For these reasons, we conclude that the second-floor protective sweep
was proper.
Search of the Top of the Dresser
Next, the trial court reasoned that because the protective sweep
included the second floor of the residence, Officer Fouad viewed the contents
of the master bedroom from a lawful vantage point for the purposes of the
plain view doctrine. See Trial Ct. Op., 12/22/22, at 8-9. However, the trial
court determined that Officer Fouad merely observed the tiny, de minimis
specks of purported loose marijuana and lemon cherry gelato foil bags among
a clutter of items on the dresser that did not satisfy the second prong of the
plain view doctrine requiring the incriminating nature of an item to be
immediately apparent. See Trial Ct. Op., 12/22/22, at 9-10.
Based on our review of the record, we agree with the trial court that the
search of the top of the dresser exceeded the scope of a quick, cursory
inspection for harmful items. The record reflects that Officer Fouad testified
that the door to the master bedroom on the second floor was open. See N.T.,
4/8/22, at 53-54, 60, 70. Upon entering the master bedroom, Officer Fouad
checked to see if anyone was hiding behind the door. See id. at 63-64. The
officer testified that there was a dresser partially open behind the master
bedroom door with its back against the bedroom wall. See id. at 54, 62; see
also Defendant’s Ex. 6. Officer Fouad testified that on top of the dresser there
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were “cherry gelato[] foil bags, a box of sandwich baggies, [and] loose
marijuana. The top drawer of the dresser was cracked open, and I could see
inside the drawer wads of cash in plain view.” N.T., 4/8/22, at 54. The trial
court determined that Officer Fouad merely observed tiny specks of what he
thought could be loose marijuana on the top of the dresser. See Trial Ct. Op.,
12/22/22, at 9; see also N.T., 4/8/22, at 54, 64-65; Defendant’s Ex. 5
(photograph of the top of the dresser depicting a plastic bag containing dollar
bills and coins next to three barely visible circled specks of green material).6
Officer Fouad then applied for the house warrant based on these observations.
See N.T., 4/8/22, at 55.
This Court emphasized in Crouse that the purpose of a protective sweep
is to look for individuals who might pose a danger to police, and “[i]t must be
swift and target only those areas where a person could reasonably be
expected to hide[,]” and “[i]t cannot be used as a pretext for an evidentiary
search.” Crouse, 729 A.2d at 598 (emphasis added). Clearly, officers are
“not required to ignore” contraband in plain view while conducting a protective
sweep. See Potts, 73 A.3d at 1282. In Potts and Crouse, the police officers
readily observed objects of an immediately apparent incriminating nature,
including an open suitcase full of marijuana on the floor and a marijuana pipe
on a nightstand in the same room as the defendant, respectively. See Potts,
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6 We have attached Defendant’s Exhibits 4 and 5 to this Opinion as “Appendix
A.” Additionally, we note that Officer Fouad used a pen to circle the objects
in Defendant’s Exhibit 5 that he asserted was loose marijuana. See N.T.,
4/8/22, at 54, 64; Trial Ct. Op. & Order, 10/13/22, at 8.
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73 A.3d at 1278-79; Crouse, 729 A.2d at 590. Additionally, in Crouse, the
defendant was present in the room with the marijuana pipe, which the trooper
observed while looking for weapons in plain view. See Crouse, 729 A.2d at
590.
On this record, including the evidentiary photographs, we agree with the
trial court that a reasonably prudent police officer conducting a protective
sweep for persons and harmful items that could pose threats to officer safety,
which included the swift and cursory search of the top of the dresser, would
not have led a reasonable officer to see such tiny, de minimis specks of
contraband, nor would it justify the utilization of lemon cherry gelato
resealable bags and a box of clear sandwich bags, which are not illegal to own,
as the basis for Officer Fouad’s application for the house warrant. Compare
Trial Ct. Op., 12/22/22, at 9-10 with Crouse, 729 A.2d at 590-91 (the officer
properly seized a marijuana pipe he observed while looking around the room
for any weapons that the defendant could use). For these reasons, we agree
with the trial court that the Commonwealth failed to establish the immediately
apparent prong of the plain view doctrine in the context of a protective sweep.
Incriminating Nature of the Items on Top of the Dresser
On this record, Officer Fouad did not identify any incriminating
characteristics of the de minimis specks pictured on the top of the dresser,
such as an odor or color, that would have led him to believe that the tiny
specks were loose marijuana. He baldly testified to observing foil bags with
lemon cherry gelato written on them and asserted that they were used as
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packaging materials for marijuana without further explanation. See N.T.,
4/8/22, at 54-55; Defendant’s Ex. 2, 4 (photograph of the top of the dresser
depicting the gelato foil bags). Officer Fouad then applied for the house
warrant based on these observations. See N.T., 4/8/22, at 55.
Accordingly, the trial court properly concluded that the Commonwealth
failed to prove that the criminality of the items observed on top of the dresser
was immediately apparent, a necessary prong of the plain view doctrine.
Officer’s Training and Experience
At the suppression hearing, Officer Fouad testified that he had been
working for the York City Police Department for four years. See N.T., 4/8/22,
at 50. He simply testified that “[i]n my training and experience, [the gelato
foil bags are] packaging for” marijuana without further explanation. Id. at
65. Officer Fouad did not provide any additional testimony about his training
about and/or experience with illicit narcotics or how his training and
experience led him to recognize either the tiny specks as loose marijuana or
the gelato foil bags as contraband.
The Commonwealth did not present any evidence regarding Officer
Fouad’s training and experience regarding the identification of illegal drugs or
the packaging and trafficking of illegal drugs. Therefore, the Commonwealth
failed to establish how it was immediately apparent to Officer Fouad that the
barely visible specks were marijuana and that the gelato foil bags were drug
packaging materials based on the officer’s police training. See Thompson,
985 A.2d at 935 (explaining that while an officer’s training and experience is
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relevant to evaluating probable cause, but an officer cannot “simply reference
training and experience abstract from an explanation of their specific
application to the circumstances at hand” (citation omitted)); Randolph, 151
A.3d at 183-84 (explaining the officer must demonstrate a nexus between his
training and/or experience and the item at issue to establish probable cause
to conduct a search); see also Saunders, 326 A.3d at 897 (explaining that
the immediately apparent requirement of the plain view doctrine is
“coextensive with probable cause” (citations omitted)).
Additionally, the Commonwealth’s reliance on Hicks and Pine to
support its argument that the trial court erred by concluding that Officer Fouad
exceeded the permissible scope of a cursory examination of the top of the
dressers for harmful items is misplaced. Both of those cases involved officers
moving objects in plain view to examine nonvisible parts of the objects for
purposes of criminal investigation. In Pine, the officer moved a television,
believed to be stolen, to examine its serial numbers. See Pine, 536 A.2d at
816-18. In Hicks, the officers moved stereo equipment to examine and
record serial numbers to determine if the equipment was stolen during an
armed robbery. See Hicks, 480 U.S. at 323-29. Instantly, Officer Fouad was
conducting a cursory protective sweep of the top of the dresser for officer
safety, not an examination of equipment to examine its serial numbers as part
of an investigation to determine if the personal property was stolen.
Therefore, Hicks and Pine are distinguishable from the case sub judice. For
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these reasons, we conclude that the marijuana and the gelato foil bags are
inadmissible.
Search of the Inside of the Dresser
Further, we agree with the trial court that the search of the inside of the
dresser was illegal. First, the trial court did not credit Officer Fouad’s
testimony regarding the “wads of cash” because the trial court concluded that
drawer was not open. See Trial Ct. Op. & Order, 10/13/22, at 7. That
credibility determination is binding on this Court because it is consistent with
the record. See Heidelberg, 267 A.3d at 498-99. Next, Officer Fouad
conceded that a person could not hide behind the dresser because it was
backed up to a wall, and that a person could not hide inside the dresser
drawers. See N.T., 4/8/22, at 62; see also Defendant’s Ex. 6. Officer Fouad
explained that a person could not fit inside any of the dresser drawers and
that no one could hide behind the dresser because it was against the wall.
See N.T., 4/8/22, at 62.
Therefore, searching inside the drawers would exceed the parameters
of a protective sweep for persons that could be hiding. See Trial Ct. Op. &
Order, 10/13/22, at 8; Trial Ct. Op., 12/22/22, at 9; see also Defendant’s
Ex. 6 (photograph of the dresser which is positioned in a corner of the room
with the door to the right of the dresser). On this record, the trial court
properly determined that Officer Fouad lawfully entered the bedroom to
perform a protective sweep for persons hiding on the second floor, and that
the officer exceeded the scope of that protective sweep for persons by
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conducting an impermissible evidentiary search inside of the dresser because
the dresser was not a place where a person could reasonably be expected to
hide. See Crouse, 729 A.2d at 598; see also Trial Ct. Op., 12/22/22, at 7
(instantly, the trial court found the officer’s testimony that the drawer was
ajar and that a large amount of money was in the drawer not credible). For
these reasons, we conclude that the Commonwealth has failed to establish
that the officer observed the money inside the dresser drawer from a lawful
vantage point for the purposes of the plain view doctrine. 7 See Saunders,
326 A.3d at 897.
Conclusion
In conclusion, we hold that the Commonwealth established that the
police had reasonable suspicion that unknown individuals could be inside the
residence, other than Co-defendant and the two children, that could pose a
threat to officer safety, and that the protective sweep of the entire residence
was legal.
However, the police exceeded the scope of that protective sweep by
conducting an evidentiary search inside the dresser of the master bedroom,
which was not a location behind or inside of which a person could be
____________________________________________
7 As noted above, the Commonwealth does not argue that the money inside
the dresser drawer should be considered in determining probable case for the
subsequent house warrant. See Commonwealth’s Brief at 10 n.1. However,
because we conduct a de novo review of suppression orders, we addressed
the trial court’s conclusions about the money in the dresser drawer. See
Brown, 996 A.2d at 476.
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reasonably expected to hide. As such, the money inside the dresser is not
admissible under the plain view doctrine because the officer did not observe
them from a lawful vantage point.
Further, the search of the top of the dresser exceeded the allowable
scope of the protective sweep because Officer Fouad’s observation of several
tiny, de minimis specks of material and foil gelato bags amidst the cluttered
contents on the top of the dresser was inadequate to draw the bald conclusion
that these materials were loose marijuana and that the foil bags were drug
packaging material. This examination exceeded the swift search for persons
and weapons permitted in a protective sweep. Additionally, the
Commonwealth failed to establish that the incriminating nature of the tiny
specks of material or the gelato foil bags on the top of the dresser was
immediately apparent because the Commonwealth did not present any
evidence regarding Officer Fouad’s training and experience and connecting
that training and experience to the identification of the items as contraband.
Therefore, this evidence is not admissible under the plain view doctrine.
Accordingly, the improper search of the top of the dresser that exceeded
the allowable scope of the protective sweep cannot serve as a basis for the
probable cause to support the subsequent applications for the house and
vehicle warrants.8 See, e.g., Williams, 2 A.3d at 619. For these reasons,
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8 As noted, the Commonwealth and trial court agree that this Court’s
disposition of this issue controls the legality of the subsequently obtained
(Footnote Continued Next Page)
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the Commonwealth is not entitled to relief, and we affirm the trial court’s order
granting Appellee’s motion to suppress. See Cartagena, 63 A.3d at 301
(explaining that this Court may affirm a suppression order on any ground if
the record supports the result that the trial court reached).
Order affirmed. Jurisdiction relinquished.
Judge Kunselman, Judge Murray, and Judge Lane join the Opinion.
Judge Bowes files a Dissenting Opinion which P.J. Lazarus, Judge
Olson, Judge King and Judge Beck join.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 6/25/2025
____________________________________________
house and vehicle warrants under the fruit of the poisonous tree doctrine.
See Commonwealth’s Brief at 4, 8-9, 27-28; Trial Court Op., 12/22/22, at 10.
The claims concerning the house and vehicle warrants are rendered moot by
our disposition affirming suppression.
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Appendix A
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