J-A06038-22
2022 PA Super 57
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY DAVID LEHNERD :
:
Appellant : No. 579 WDA 2021
Appeal from the Judgment of Sentence Entered February 18, 2021
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000756-2019
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
OPINION BY COLINS, J.: FILED: April 5, 2022
Appellant, Troy David Lehnerd, appeals from the judgment of sentence
imposed for his convictions for Driving Under the Influence (DUI) General
Impairment Incapable of Driving Safely and DUI Highest Rate of Alcohol,1 and
two summary Vehicle Code offenses, Abandoning Vehicle on a Highway and
Failure to Activate Hazard Lamps.2 For the reasons set forth below, we vacate
Appellant’s DUI convictions and sentence and remand for a new trial.
This case arises out of a one-vehicle accident on March 7, 2019, in
Oakland Township, Pennsylvania at approximately 9:00 p.m. Two
Pennsylvania State Police troopers were dispatched to the scene and found
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S. § 3802(a)(1) and (c).
2 75 Pa.C.S. §§ 3712(a), 4305(a).
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Appellant’s pickup truck overturned. N.T. Suppression Hearing at 4, 20-21;
N.T. Trial at 38-39. When they arrived at the scene, no one was in the truck
and the driver was not in the area. N.T. Suppression Hearing at 4-5, 21; N.T.
Trial at 39. When one of the troopers looked in the truck for registration
documents, he saw empty beer cans in the truck. N.T. Suppression Hearing
at 5, 10; N.T. Trial at 39, 54-55. A neighbor who had come to the scene
shortly after the accident told one of the troopers that the driver had asked to
use a phone to call for a ride and that the driver smelled of alcohol. N.T.
Suppression Hearing at 5-6; N.T. Trial at 39. The troopers determined by
running the truck’s license plate that Appellant was the owner and what
Appellant’s address was. N.T. Suppression Hearing at 21, 24. While the
troopers were finishing their investigation of the scene, Appellant’s parents
arrived and told them that Appellant was the owner of the truck and that they
had driven Appellant home. Id. at 6-7, 21-22; N.T. Trial at 40, 50.
The troopers then drove to Appellant’s house and knocked on the door.
N.T. Suppression Hearing at 7, 14-15, 21-22. No lights were on at Appellant’s
house, and no one came to the door when they knocked. Id. at 7-8, 14-15,
22. While the troopers were waiting at Appellant’s door, Appellant’s parents
arrived at Appellant’s house. Id. at 7-8, 15, 22, 25. Appellant’s mother told
the troopers that she had dropped Appellant off at this house and believed
that he was in the house. Id. at 8, 22. The troopers asked Appellant’s mother
if she could let them in the house and she opened the door and let them in.
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Id. at 8-9, 22-23, 25-26. After Appellant’s mother let them in, the troopers
entered Appellant’s house and escorted him out of the house to perform field
sobriety tests. Id. at 9; N.T. Trial at 41-42. The field sobriety tests showed
intoxication and Appellant was arrested and taken to the local State Police
barracks, where he submitted to a blood alcohol breath test. N.T. Trial at 42-
46. The blood alcohol breath test showed a blood alcohol level of .163%. Id.
at 46-48.
Appellant was charged with DUI General Impairment Incapable of
Driving Safely, DUI Highest Rate of Alcohol, and five summary Vehicle Code
offenses, including Abandoning Vehicle on a Highway and Failure to Activate
Hazard Lamps. On September 12, 2019, Appellant filed a motion to suppress
the evidence obtained after entering Appellant’s house on the ground that the
troopers’ warrantless entry into the house and escorting him out of the house
constituted an illegal seizure. On February 14, 2020, the Court of Common
Pleas of Butler County (trial court) held an evidentiary hearing on Appellant’s
suppression motion at which both troopers and Appellant’s mother testified.
Following the hearing, the trial court denied Appellant’s motion to suppress on
the ground that Appellant’s mother had consented to the troopers’ entry into
Appellant’s house and that she had apparent authority to give that consent.
Trial Court Opinion and Order, 2/18/20.
On January 22, 2021, Appellant was convicted at a bench trial of DUI
General Impairment Incapable of Driving Safely, DUI Highest Rate of Alcohol,
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Abandoning Vehicle on a Highway and Failure to Activate Hazard Lamps and
was acquitted of the three other summary Vehicle Code offenses. N.T. Trial
at 83-84; Non-Jury Verdict. At this trial, the field sobriety tests and blood
alcohol breath test results were admitted in evidence and one of the troopers
testified concerning his observations of Appellant and a statement Appellant
made after he was taken out of his house. N.T. Trial at 42-48. In addition,
witnesses who live where the accident occurred testified that Appellant said
that he had wrecked his truck and asked to use a telephone right after the
accident, that Appellant told them that he had had a few drinks, and that
Appellant had watery eyes, “was slurring his speech a little,” looked “spaced
out,” and smelled of alcohol. Id. at 10-14, 20-21, 23, 28-30, 34, 36.
On February 18, 2021, the trial court sentenced Appellant to 72 hours
to 6 months’ imprisonment, from which he was immediately paroled, and a
$1,000 fine for the DUI convictions and imposed fines of $500 and $25 for the
two summary offense convictions. Sentencing Order. Appellant filed a post
sentence motion seeking a new trial on weight of the evidence grounds, which
the trial court denied on April 23, 2021. This timely appeal followed.3
Appellant presents the following single issue for our review:
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3 Although it appears that Appellant has completed serving his sentence, the
appeal is not moot because the DUI convictions could have further
consequences if Appellant is convicted of DUI in the future and because the
$1,000 fine could still be affected by vacatur of the DUI convictions.
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Whether the trial court erred and/or abused its discretion by failing
to suppress the evidence stemming from the unlawful consent and
search of Defendant’s residence where Defendant was unlawfully
seized?
Appellant’s Brief at 6. Our standard and scope of review of the denial of a
motion to suppress evidence is well established:
Appellate review of a suppression decision is limited to the
suppression record, considering the evidence presented by the
Commonwealth as the prevailing party and any uncontradicted
evidence presented by the defense. This Court is bound by the
facts as found by the suppression court so long as they are
supported by the record, but our review of its legal conclusions is
de novo.
Commonwealth v. Valdivia, 195 A.3d 855, 861 (Pa. 2018) (citations
omitted).
The Fourth Amendment of the United States Constitution4 protects
against unreasonable searches and seizures. Fernandez v. California, 571
U.S. 292, 298 (2014); Commonwealth v. Strader,
931 A.2d 630, 634 (Pa.
2007). Warrantless entry by law enforcement into a home to look for a
suspect is presumptively unreasonable and is constitutionally impermissible
absent an applicable exception to the Fourth Amendment’s general
requirement that a warrant be obtained. Payton v. New York,
445 U.S. 573,
586-603 (1980); Strader,
931 A.2d at 634; Commonwealth v. Hawkins,
257 A.3d 1, 9 (Pa. Super. 2020); Commonwealth v. Berkheimer,
57 A.3d
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4 Appellant argues only that the troopers’ actions violated the Fourth
Amendment and does not raise any issue of violation of his rights under the
Pennsylvania Constitution.
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171, 179 (Pa. Super. 2012) (en banc). “Freedom from intrusion into the home
or dwelling is the archetype of the privacy protection secured by the Fourth
Amendment.” Payton, 445 U.S. at 587 (quoting Dorman v. United States,
435 F.2d 385 (D.C. Cir. 1970)).
No warrant was obtained for Appellant’s arrest or for entry into
Appellant’s house. The trial court did not find, and the Commonwealth does
not argue that the warrantless entry was justified by exigent circumstances.
The sole ground on which the trial court found that the entry was
constitutionally permissible was that Appellant’s mother permitted the
troopers to enter the house. Trial Court Opinion and Order, 2/18/20, at 2-4;
Trial Court Opinion, 6/9/2021, at 2. The Commonwealth does not assert that
there is any other basis that would support the trial court’s denial of
Appellant’s suppression motion.
Voluntary consent is an exception to the warrant requirement.
Fernandez, 571 U.S. at 298; Illinois v. Rodriguez,
497 U.S. 177, 181
(1990); Valdivia,
195 A.3d at 861-62; Hawkins,
257 A.3d at 9. Warrantless
entry and search of a house is constitutionally permissible where an occupant
with authority over the premises consents to the entry and search.
Fernandez,
571 U.S. at 298-300; Rodriguez,
497 U.S. at 181;
Commonwealth v. Hawkins,
257 A.3d 1, 9-10 & n.6 (Pa. Super. 2020);
Commonwealth v. Basking,
970 A.2d 1181, 1188 (Pa. Super. 2009). In
addition, even if the individual who consents lacks such authority, apparent
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authority exists and the warrantless entry and search are constitutionally
permissible if the facts known to the law enforcement officers at the time
would lead a reasonable person to believe that person who consented has
authority to allow others to enter the premises. Rodriguez, 497 U.S. at 186-
89; Strader,
931 A.2d at 634; Basking,
970 A.2d at 1190-91. Apparent
authority, however, does not exist and the warrantless entry violates the
Fourth Amendment if the officers knew at the time facts that negate the
individual’s claim of authority over the premises. Rodriguez,
497 U.S. at
188-89; Basking,
970 A.2d at 1191.
Apparent authority to consent to search of a dwelling has been found
where the individual is at the dwelling when the officers arrive and tells the
officers that he or she lives in or is currently staying at the dwelling. Strader,
931 A.2d at 632, 634-35 (denial of suppression motion affirmed where
individual who consented to search of apartment was inside the apartment
and answered the door when police detective knocked, told detective that he
was staying in the apartment temporarily, and told detective that he was in
charge of the apartment); Commonwealth v. Rosario,
248 A.3d 599, 608-
10 (Pa. Super. 2021) (denial of suppression motion affirmed where individual
who consented to search was standing in front of defendant’s house when
police arrived and told them that he was house-sitting at the house and
watching defendant’s dog); Basking,
970 A.2d at 1185-86, 1191 (reversing
grant of suppression motion where individual who consented to search of
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house was the owner the house and resided there, was defendant’s mother,
and did not tell police that defendant’s room was separately rented out to him,
and there was no indication that mother did not have full access to defendant’s
room); see also Commonwealth v. Hunter, 963 A.2d 545, 549-54 (Pa.
Super. 2008) (denial of suppression motion affirmed where individual who
consented to search was inside the house and greeted police at the door and
police had determined that the house was her residence, search was also
subject to parolee reduced expectation of privacy). Even if the consenting
party is not at the residence when the police arrive, apparent authority can be
found where the consenting party identifies the dwelling as her residence and
has a key to the dwelling and the police have no knowledge that she does not
live there. Rodriguez,
497 U.S. at 179-80, 186-89 (individual who consented
to search of apartment referred to defendant’s apartment as “our” apartment,
had a key to the apartment, went with the police to the apartment, and let
them in with her key).
Apparent authority to consent to search of a dwelling has also been
found where the police do not know the consenting party’s relationship to the
dwelling, if the consenting party is inside the dwelling when the police arrive,
responds when the police knock on the door, and invites the police in.
Commonwealth v. Quiles, 619 A.2d 291, 293-97 (Pa. Super. 1993) (en
banc) (reversing grant of suppression motion where individual who consented
to search of house was inside the house when officer knocked on the door and
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told the officer to “come in”); Commonwealth v. Blair, 575 A.2d 593, 596-
99 (Pa. Super. 1990) (denial of suppression motion affirmed in DUI case
involving arrest of defendant in her home where individual who consented to
police entry, a neighbor who did not live there, was inside the house and
answered the door when police knocked and police had no information on
whether or not she lived there). In that circumstance, apparent authority has
been held to exist because “it is reasonable for police officers to assume that
a person who answers the door at a residence has authority to consent to their
entry into the residence.” Blair,
575 A.2d at 598 (emphasis omitted).
In contrast, apparent authority to consent to a search of a dwelling does
not exist where the person giving consent is not inside the dwelling when the
police arrive and the police do not have reason to believe that she is at least
temporarily living in the dwelling. In Commonwealth v. Hughes, 836 A.2d
893 (Pa. 2003), a majority of our Supreme Court held that police did not have
apparent authority under the Fourth Amendment for a warrantless entry based
on consent given by teenage girls standing on the front porch of the
defendant’s house who opened the door for the police, where the police had
no information on whether they lived in or were staying in the house.
Id. at
896-97, 905-08. Although the Court in Hughes upheld the search, only three
of the justices held that it was permissible as an apparent authority consent
search; the other two justices who upheld the search did so based on the
reduced expectation of privacy for parolees and expressly agreed with the two
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dissenting justices who concluded that the police did not have apparent
authority. Id. at 900-01, 905-06.
Moreover, where the police in fact know that the consenting party is not
a current occupant of the defendant’s dwelling, a warrantless entry violates
the Fourth Amendment, even though the consenting party has access to the
dwelling and willingly lets the police enter. Commonwealth v. Davis, 743
A.2d 946, 951-53 (Pa. Super. 1999) (suppression of evidence found in
warrantless entry into apartment was required even though apartment
building manager unlocked the apartment for police and let them in).
Here, the uncontradicted evidence at the suppression hearing precluded
any finding that the troopers could reasonably believe that Appellant’s mother
had authority to let them into Appellant’s house. Appellant’s mother was not
at Appellant’s house, let alone inside, when the troopers arrived and knocked
on the door and no one came to the door to permit them to enter in response
to their knocking or invited them in from inside the house. N.T. Suppression
Hearing at 7-8, 15, 22, 25-26. While one of the troopers testified that
Appellant’s mother told him that she was allowed in the house and could let
them in, the troopers knew that she did not live there and that the house was
Appellant’s separate residence and testified that Appellant’s mother did not
tell them that she was staying at Appellant’s house. Id. at 8-9, 15-16, 22-
26. No other testimony provided any support for a belief that she had
authority to let them in. Appellant’s mother testified that she did not own or
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live in Appellant’s house and does not go into Appellant’s house without
knocking and being let in. Id. at 30-34. In addition, there was no evidence
that Appellant’s mother even had a key to Appellant’s house, as the troopers
testified that she did not use a key to let them in and Appellant’s mother
denied that she had a key to Appellant’s house. Id. at 18, 26, 34-35. The
fact that the consenting party was Appellant’s mother cannot create apparent
authority, as a parent of an adult child does not have authority to consent to
entry of a separate dwelling that is not part of the parent’s residence.
Basking, 970 A.2d at 1189-90 (parent did not have actual authority to
consent to search of part of her house that was separately leased to her son
and occupied solely by her son).
Because Appellant’s mother lacked actual or even apparent authority to
permit entry into Appellant’s house, the troopers’ warrantless entry violated
Appellant’s Fourth Amendment rights and the trial court erred in failing to
grant Appellant’s motion to suppress the blood alcohol breath test results,
evidence of Appellant’s performance on the field sobriety tests, and other
evidence obtained solely as a result of the entry into Appellant’s house.
Commonwealth v. Santiago, 209 A.3d 912, 928 (Pa. 2019);
Commonwealth v. Fulton,
179 A.3d 475, 489-90 (Pa. 2018); Berkheimer,
57 A.3d at 190. The blood alcohol breath test results and Appellant’s
performance on the field sobriety tests were admitted at trial, N.T. Trial at 42-
48, and were a substantial portion of the evidence supporting the DUI charges
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against Appellant. Accordingly, we vacate Appellant’s DUI convictions and
sentence, reverse the order denying suppression, and remand for a new trial
on the DUI charges.5
Judgment of sentence vacated. Case remanded with instructions to
grant Appellant’s motion to suppress and for new trial. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2022
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5 None of the evidence obtained as a result of the illegal entry into Appellant’s
house had any possible effect of the summary offense convictions, however.
Those convictions were based on the fact that Appellant’s truck was left lying
upside down on the roadway and its hazard lights were not on, which the
troopers learned before the entry into Appellant’s house, and whether or not
Appellant was intoxicated was irrelevant to those offenses. The denial of the
suppression motion therefore was harmless error with respect to the summary
offense convictions, and we do not vacate those convictions or the fines
imposed for those convictions.
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