Summary
In Arrington, this Court determined that an officer's knowledge based on a NCIC search during a traffic stop that the defendant had a revoked firearm permit does not provide reasonable suspicion to search the defendant's vehicle for a firearm.
Summary of this case from Commonwealth v. RossOpinion
No. 1117 WDA 2018
06-09-2020
COMMONWEALTH of Pennsylvania v. William ARRINGTON, Appellant
Steven A. Tehovnik, Public Defender, Pittsburgh, for appellant. Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Steven A. Tehovnik, Public Defender, Pittsburgh, for appellant.
Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
OPINION BY MUSMANNO, J.:
William Arrington ("Arrington") appeals from the judgment of sentence entered following his convictions of one count each of firearms not to be carried without a license, disregard traffic lane, failure to keep right, and possession of drug paraphernalia, and two counts each of possession of a controlled substance and possession with intent to deliver. We affirm in part, reverse in part, and remand for further proceedings.
See 18 Pa.C.S.A. § 6106(a)(1) ; 75 Pa.C.S.A. §§ 3309(4), 3301(a) ; 35 P.S. §§ 780-113(a)(32), (a)(16), (a)(30).
On October 25, 2016, Pittsburgh Police Officers Gino Macioce ("Officer Macioce") and Rob Connors ("Officer Connors") (collectively, "the officers") were on patrol in the Homewood neighborhood of Pittsburgh. At around 2:00 a.m., the officers observed Arrington's vehicle driving towards them in their lane of travel. Arrington's vehicle remained in the incorrect lane of travel for several seconds before returning to the correct side of the road. The officers suspected that Arrington was driving under the influence of drugs or alcohol and conducted a traffic stop.
When the officers approached Arrington's vehicle, they witnessed Arrington exhibit several signs of intoxication, and asked Arrington to step out of the vehicle. Arrington failed to immediately respond, and the officers removed Arrington from the vehicle, conducted a pat down search, and placed him in handcuffs.
Officer Connors supervised Arrington, at the rear of Arrington's vehicle, while Officer Macioce ran Arrington's name through the National Crime Information Center ("NCIC"). The NCIC search revealed that Arrington had a revoked concealed-carry permit. The officers asked Arrington if he was in possession of any weapons, which Arrington denied. Officer Macioce searched the vehicle's passenger compartment, and discovered a handgun in a closed shoe box that was sitting on the vehicle's back seat. Officer Macioce ended his search, and ran the handgun's serial number through the NCIC, which indicated that the weapon was stolen.
The officers placed Arrington under arrest, and conducted a second search of Arrington and the vehicle. Officer Connors discovered U.S. currency and a stamp bag of heroin in Arrington's pockets. Officer Macioce discovered 81 bags of heroin, U.S. currency, and a digital scale in the vehicle's center console, and four cell phones on the driver and passenger seats. A third Pittsburgh Police Officer arrived and transported Arrington to a hospital for a blood draw, which he refused.
Arrington filed a pre-trial suppression Motion, challenging the search of his vehicle, which the trial court denied. Following a non-jury trial, Arrington was found guilty of the above-mentioned offenses. The trial court sentenced Arrington to an aggregate term of fifteen months of probation. Arrington filed a timely Notice of Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
On appeal, Arrington raises the following questions for our review:
I. Whether the police had probable cause of a [M]otor [V]ehicle [C]ode infraction to support initially stopping [ ] Arrington beyond the momentary and minor actions testified to?
II. The government searched [ ] Arrington's vehicle while he was handcuffed behind the vehicle, out of reach. Was the search supported by reasonable, articulable suspicion that [ ] Arrington was dangerous and may have gained immediate control of a weapon in his vehicle?
III. At the time police searched his vehicle incident to arrest, was [ ] Arrington unsecured and within reaching distance of the passenger compartment[,] or was it reasonable to believe the vehicle contained
additional evidence of his possessing a firearm?
IV. Did the trial court err in denying [ ] Arrington's suppression [M]otion[,] because police conducted the search for criminal investigatory, rather than non-criminal inventory, purposes?
V. Given the momentary and minor nature of [ ] Arrington's violation of the [M]otor [V]ehicle [C]ode, was the evidence insufficient to prove his guilt beyond a reasonable doubt?
VI. Where a gun was found within a shoebox on the back seat, and drugs were found in the center console of a rental vehicle, was the evidence insufficient to prove [ ] Arrington possessed these items beyond a reasonable doubt[,] without any evidence of [ ] Arrington's knowledge of, or intent to possess, these items?
Brief for Appellant at 6-7 (issues renumbered).
Arrington's first four claims challenge the trial court's denial of his pretrial Motion to suppress evidence.
We review the trial court's denial of a motion to suppress to determine whether the record supports the trial court's factual findings and whether it reached its legal conclusions in error. If the record supports the trial court's findings of fact, we will reverse only if the trial court's legal conclusions are incorrect.
Commonwealth v. Fleet , 114 A.3d 840, 843 (Pa. Super. 2015) (citations and quotation marks omitted).
In his first claim, Arrington alleges that the officers lacked probable cause to stop his vehicle. See Brief for Appellant at 53-56. Citing Commonwealth v. Garcia , 859 A.2d 820 (Pa. Super. 2004), Arrington argues that his violation of the Motor Vehicle Code was "minor and momentary." Brief for Appellant at 55. Arrington directs us to Officer Macioce's testimony that Arrington's vehicle crossed the centerline for "seconds," and posed no safety hazard to other vehicles. Id. Arrington claims that he did not swerve, fishtail, or otherwise violate the Motor Vehicle Code, beyond momentarily crossing the centerline. Id. at 55-56.
Section 3301(a) of the Motor Vehicle Code provides, in relevant part, that "a vehicle shall be driven upon the right half of the roadway...." 75 Pa.C.S.A. § 3301(a). This Court has previously held that a police officer has probable cause to believe that Section 3301(a) has been violated where the officer witnesses a driver's vehicle cross the double-yellow centerline into the oncoming lane, and remain there for approximately 2-3 seconds, while another vehicle is approaching in the oncoming lane. Commonwealth v. Enick , 70 A.3d 843, 847-48 (Pa. Super. 2013). But see id. at 848 (stating that "[o]ur analysis here does not foreclose the possibility that a momentary and minor violation of § 3301 might, in a different case, be insufficient to establish probable cause for a vehicle stop.").
Here, Officer Macioce testified that Arrington's vehicle crossed the double-yellow centerline, into the oncoming lane, and the entirety of Arrington's vehicle travelled in the oncoming lane for more than two seconds. See N.T., 2/14/18, at 7-8, 35. Additionally, Arrington's vehicle was in the wrong lane as he approached the officers’ vehicle, which was less than a city block away. Id. at 8. Officer Macioce testified that the officers’ vehicle would not have been able to continue in their direction of travel had Arrington maintained his vehicle's position in the wrong lane. Id. Therefore, we conclude that the officers had probable cause to believe that Arrington was in violation of Section 3301(a). See Enick , supra .
We acknowledge Arrington's citation to Garcia , 859 A.2d 820, and find it inapposite to Arrington's case. In Garcia , this Court held that a defendant's "momentary and minor" crossing of a traffic line does not give an officer probable cause to conduct a traffic stop under Section 3309(1) of the Motor Vehicle Code. Id. at 823. Here, Arrington was stopped under Section 3301 of the Motor Vehicle Code. In Enick , we explained that
[Section] 3309(1) of the Vehicle Code requires motorists to maintain a single lane "as nearly as practicable." Thus, the statutory language does not foreclose minor deviations. In comparison, § 3301 provides that "a vehicle shall be driven on the right half of the roadway" subject to exceptions that are not implicated in this case. ... Since the language of § 3301 does not include language allowing for unspecified deviations from the rule, we need not analyze whether [the defendant] complied with § 3301 "as nearly as practicable."
Enick , 70 A.3d at 847-48 (citations omitted).
In his second claim, Arrington alleges that the officers’ initial search of his vehicle was unconstitutional, and any evidence found during the search should have been suppressed at trial. See Brief for Appellant at 26-42. Arrington argues that his initial interaction with the officers was an investigatory stop, and the officers lacked reasonable suspicion that he was dangerous and able to gain control of a weapon. Id. at 27-42. Arrington points out that he made no furtive movements, was not overtly nervous, and did not make any actions, or display any characteristics, that would indicate he was armed and dangerous. Id. at 31-39. Arrington states that after he was removed from the vehicle, he was immediately handcuffed, moved to the rear of his vehicle, out of reach of the passenger compartment, and supervised by Officer Connors. Id. at 39-41.
[I]t is hornbook law that the Fourth Amendment to the United States Constitution[,] as well as Article I, § 8 of the Pennsylvania Constitution [,] protect citizens from unreasonable searches and seizures. Warrantless searches and seizures ... are unreasonable per se , unless conducted pursuant to specifically established and well-delineated exceptions to the warrant requirement. Katz v. United States , 389 U.S. 347, 357 ... (1967). One such exception, the Terry [ v. Ohio , 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968),] "stop and frisk," permits a police officer to briefly detain a citizen for investigatory purposes if the officer "observes unusual conduct which leads him to reasonably conclude, in light of his experience, that criminal activity may be afoot." ... Terry [, 392 U.S. at 30, 88 S.Ct. 1868 ].
Terry further held that "when an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others[,]" the officer may conduct a pat down search "to determine whether the person is in fact carrying a weapon." Terry , 392 U.S. at 24, 88 S.Ct. 1868.... "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." Adams v. Williams , 407 U.S. 143, 146 ... (1972).
In order to conduct an investigatory stop, the police must have reasonable suspicion that criminal activity is afoot. Terry , 392 U.S. at 30, 88 S.Ct. 1868. In order to determine whether the police had reasonable suspicion, the totality of the circumstances—the whole picture—must be considered. United States v. Cortez , 449 U.S. 411, 417 ... (1981). "Based upon that whole picture[,] the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of
criminal activity." Id. at 417-[18].... To conduct a pat down for weapons, a limited search or "frisk" of the suspect, the officer must reasonably believe that his safety or the safety of others is threatened. If either the seizure (the initial stop) or the search (the frisk) is found to be unreasonable, the remedy is to exclude all evidence derived from the illegal government activity. The Terry totality of the circumstances test applies to traffic stops or roadside encounters in the same way that it applies to typical police encounters.
Commonwealth v. Simmons , 17 A.3d 399, 402-03 (Pa. Super. 2011) (some citations and quotation marks omitted; paragraph break and brackets omitted). Our decision is guided by several notable cases from this Court that contain similar factual patterns to the case sub judice .
In Commonwealth v. Rosa , 734 A.2d 412 (Pa. Super. 1999), a Philadelphia police officer stopped a vehicle containing three adult males. When the officer pulled the vehicle over, "he observed [one of the men] ‘looking back, and moving around, moving forward, and looking back—just moving around a lot.’ " Id. at 413. After approaching the vehicle, he observed, in plain view, two knives, and several crossbow arrows. Id. The officer directed the men to step out of the car, and discovered two handguns under the backseat of the vehicle. Id.
The officer discovered a third knife after the men had exited the vehicle. Rosa , 734 A.2d at 413.
This Court held that the officer was justified in his search, because (1) the traffic stop occurred late at night; (2) the driver could not produce his driver's license, vehicle registration, and proof of insurance; (3) the vehicle's occupants possessed three knives and several crossbow arrows; and (4) the man in the back seat was "extremely active ... as [the officer] approached the vehicle." Id. at 416.
Similarly, we have held that a defendant's "furtive movement of leaning forward and appearing to conceal something under his seat, along with his extreme nervousness and [a] night time stop, was sufficient to warrant a reasonable police officer to believe that his safety was in danger and that [the defendant] might gain immediate control of a weapon." Buchert , 68 A.3d at 916-17 ; see also Commonwealth v. Simmons , 17 A.3d 399, 401 (Pa. Super. 2011) (finding reasonable suspicion where the traffic stop was conducted at night, in a high-drug and high-crime area, and the officer witnessed the defendant make the furtive movement of reaching under his seat and then towards his chest, consistent with concealing a weapon); In re O.J. , 958 A.2d 561, 566 (Pa. Super. 2008) (finding reasonable suspicion where the traffic stop occurred at night, the defendant initially failed to stop his vehicle when signaled by police, and the defendant made "rapid and furtive hand movements over the [vehicle's] console," which had been left partially opened); Commonwealth v. Murray , 936 A.2d 76, 80 (Pa. Super. 2007) (finding reasonable suspicion where the traffic stop occurred at night and in a high-narcotics area, the defendant's vehicle had tinted windows, and the defendant made "a lot of movement in the vehicle" as the officer was approaching).
The Court also noted one officer's testimony that the area of the stop was a "high narcotics area," and that the defendant was so nervous that the officer could see the defendant's "heavy breathing and rapid heartbeat." Commonwealth v. Buchert , 68 A.3d 911, 912 (Pa. Super. 2013).
In contrast, this Court in Commonwealth v. Cartagena , 63 A.3d 294 (Pa. Super. 2013), found that an officer lacked reasonable suspicion to conduct a warrantless search of a vehicle where (1) the stop occurred at night, (2) the defendant's vehicle had tinted windows, and (3) the defendant appeared "extremely nervous." Id. at 304. The Cartagena court noted that there was no testimony indicating that the defendant had made furtive movements, that the stop occurred in a high-crime area, or that the police saw any weapons in the vehicle prior to conducting the search. Id. at 304-06 ; see also Commonwealth v. Moyer , 954 A.2d 659, 669-70 (Pa. Super. 2008) (holding that evidence that a vehicle's occupants engaged in furtive movements and appeared nervous was insufficient to establish reasonable suspicion); Commonwealth v. Reppert , 814 A.2d 1196, 1206 (Pa. Super. 2002) (same).
The circumstances that supported reasonable suspicion in Rosa , Buchert , Simmons , In re O.J. , and Murray are mostly absent here. The facts before us align more closely with those in Cartagena , Moyer , and Reppert . Although the stop occurred late at night and in a high-crime area, Arrington was able to produce his driver's license and the car's rental agreement; the officers did not observe any weapons in plain view; Arrington did not display extreme nervousness; and Arrington made no furtive movements. Indeed, the sole factors in support of reasonable suspicion were that the stop occurred at night, and in a high-crime neighborhood.
In support of its Order denying Arrington's Motion, the trial court set forth several additional factors which, in its view, supported the officers having reasonable suspicion to search Arrington's vehicle for a weapon. See "Findings of Fact and Order of Court," 3/22/18, 6-7. The trial court pointed out that (1) Arrington's vehicle was not in park when the officers approached; (2) Arrington did not immediately comply when the officers asked him to place his vehicle in park; (3) Arrington was "staring around" and was non-responsive to commands; (4) Arrington was "reaching around" in the vehicle in a slow and deliberate manner; and (5) Officer Macioce testified that Arrington's actions were indicative of intoxication or nervousness. See id.
We disagree that these factors support reasonable suspicion that Arrington was in possession of a firearm. While Officer Macioce testified that Arrington made some actions that were "consistent with nervousness," he also testified that other actions "were consistent with a DUI," and that "the first thing [he] was thinking about was DUI." N.T., 2/14/18, at 16. Additionally, Officer Macioce testified that Arrington's movements were "slow and deliberate." Id. at 23. The Commonwealth presented no evidence that Arrington's movements were sudden, indicative of reaching for a weapon, or "furtive." See id. at 11-31. Although Arrington's actions may have indicated that he was nervous, the nature of Arrington's actions does not support a conclusion that he was in possession of a weapon. See, e.g. , Cartagena , 63 A.3d at 305-06 (stating that "[i]t is the rare person who is not agitated to some extent when stopped by police, even if the driver is a law-abiding citizen who simply failed to notice or repair a broken taillight or was unaware that he or she was driving above the speed limit. Whether described as nervousness, apprehension, concern or otherwise, forced interaction with a police officer is not an everyday occurrence for the average citizen.").
Moreover, "[w]e are ... mindful of the legal standard requiring that we view facts not in isolation but in light of the totality of the circumstances when determining whether the police officers here had reasonable suspicion to have concern for their safety ." Cartagena , 63 A.3d at 304 (emphasis added). Here, Arrington was in handcuffs, positioned at the rear of his vehicle, out of reach of the passenger compartment, and being supervised by Officer Connors, with Officer Macioce nearby. Therefore, Arrington posed no threat to the officers’ safety.
Based on the totality of the circumstances, we conclude that the officers lacked reasonable suspicion to conduct a protective weapons search of Arrington and the passenger compartment of his vehicle. See Simmons , supra . Therefore, the officers’ first search was illegal, and the handgun should have been suppressed. Simmons , 17 A.3d at 403. Moreover, without this evidence, the officers would not have conducted the second search, and discovered the U.S. currency, drugs, and drug paraphernalia. In accordance with the exclusionary rule, all evidence obtained from this second search of Arrington and his vehicle (i.e. , the U.S. currency and stamp bag of heroin discovered on Arrington, and the handgun, 81 bags of heroin, U.S. currency, digital scale, and four cell phones discovered in Arrington's vehicle) should also have been suppressed. Id. Accordingly, we reverse Arrington's judgment of sentence for firearms not to be carried without a license, possession of drug paraphernalia, possession of a controlled substance, and possession with intent to deliver. Further, we order suppression of the U.S. currency and stamp bag of heroin discovered on Arrington, and the handgun, 81 bags of heroin, U.S. currency, digital scale, and four cell phones discovered in Arrington's vehicle, and remand for further proceedings. ,
My learned colleague states in the dissent that we failed to address the issue of whether Arrington had a privacy interest in the area searched. As aptly noted in the dissent, since Arrington was charged with a possessory offense, he automatically has standing to challenge suppression of the items seized, but Arrington must also have a reasonable expectation of privacy in the vehicle's contents. See Commonwealth v. Viall , 890 A.2d 419, 421 (Pa. Super. 2005). Nevertheless, we did not address this issue, because it is not properly before us. See Commonwealth v. Johnson , 33 A.3d 122 (Pa. Super. 2011) (stating that "claims not raised in the trial court may not be raised for the first time on appeal.").
At the suppression hearing, the Commonwealth bore the initial burden of production – i.e. , the burden of producing evidence that Arrington lacked a protected privacy interest in the vehicle. See Commonwealth v. Enimpah , 630 Pa. 357, 106 A.3d 695, 700-01 (2014) (holding that before the defendant must prove a privacy interest in the area searched, the Commonwealth must initially satisfy its burden of production by presenting evidence showing that the defendant lacked any protected privacy interest; where the Commonwealth fails to bear this initial burden, the burden never shifts to the defendant to prove his privacy interest).
Here, because the Commonwealth never produced evidence showing that Arrington lacked a protected privacy interest, the burden never shifted to Arrington to rebut that evidence. See Enimpah , supra . To be sure, and as noted in the dissent, the Commonwealth presented evidence that Arrington's vehicle was a rental, and Officer Macioce was not sure who had rented the vehicle. See N.T., 2/14/18, at 15, 34-35, 37, 39-40. However, Officer Macioce did not state that the vehicle was not rented by Arrington, or that Arrington otherwise lacked the authority to operate the vehicle. See , e.g. , Commonwealth v. Maldonado , 14 A.3d 907, 911-12 (Pa. Super. 2012). Nor did the Commonwealth challenge Arrington's privacy interest in the vehicle. See Enimpah , supra at 701 (stating that "[t]he Commonwealth may concede the privacy interest, choosing to contest only the legality of police conduct; if it does so, the defendant's ‘reasonable expectation of privacy’ need not be established."). As a result, Arrington's burden of persuasion was never triggered, see id. ; this issue was never raised; and it would be improper for us to address it on appeal. See Johnson , supra .
In light of our disposition, we need not address Arrington's third and fourth claims.
Arrington's fifth and sixth issues challenge the sufficiency of the evidence to support each of his convictions. We apply the following standard of review when considering a challenge to the sufficiency of the evidence:
We will limit our analysis to Arrington's convictions for the traffic offenses, as we have already reversed the remaining sentences.
[W]hether[,] viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, or part or none of the evidence.
Commonwealth v. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted).
Arrington alleges that the evidence was insufficient to support his convictions for disregard traffic lane and failure to keep right. See Brief for Appellant at 57. In support of this claim, Arrington restates the argument he set forth in his first claim, i.e. , that his "momentary and minor" crossing of the centerline did not constitute a violation of Sections 3301(a) or 3309(4) of the Motor Vehicle Code. Id.
Section 3301(a) provides that "[u]pon all roadways of sufficient width, a vehicle shall be driven upon the right half of the roadway," except for when one of six enumerated exceptions applies. 75 Pa.C.S.A. § 3301(a). An officer's testimony that the defendant's vehicle crossed the double-yellow centerline into the oncoming lane, and remained there for approximately 2-3 seconds, while another vehicle approached in the oncoming lane, is sufficient to support a conviction under Section 3301(a). See Enick , 70 A.3d at 846.
Section 3309(4) provides that "[o]fficial traffic-control devices may be installed prohibiting the changing of lanes on a section of roadway and drivers of vehicles shall obey the directions of every such device." 75 Pa.C.S.A. § 3309(4).
Here, Officer Macioce testified that Arrington's entire vehicle crossed the double-yellow centerline, into the oncoming lane, and remained there for at least two seconds. N.T. (suppression), 2/14/18, at 7-8, 35. Arrington has not alleged that the roadway was of insufficient width, or that his actions complied with one of the six exceptions. Additionally, the solid double-yellow pavement marking is a "traffic control device" that prohibits the changing of lanes. See PennDOT, Bureau of Driver Licensing, Pennsylvania Driver's manual , https://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDL%20Manuals/Manuals/PA%20Drivers%20Manual%20By%20Chapter/English/PUB%2095.pdf, page 22. Accordingly, the evidence was sufficient to support Arrington's convictions under Section 3301(a) and 3309(4). See Enick , supra .
The transcript of testimony from the February 14, 2018 suppression hearing was incorporated into the non-jury trial record as Commonwealth Exhibit 4. See N.T., 4/12/18, at 7.
Judgment of sentence affirmed in part and reversed in part. Case remanded for further proceedings. Jurisdiction relinquished.
Judge Nichols joins the opinion.
Judge Bowes files a dissenting opinion.
DISSENTING OPINION BY BOWES, J.:
I join the Majority to the extent that it affirms the trial court's rulings. However, unlike the Majority, I would also affirm the trial court's findings that the protective search of the vehicle, and resulting inventory search, were lawful. As such, I dissent to the portion of the Majority Opinion that concludes that the handgun recovered, along with any other evidence derived from the later inventory search, should have been suppressed.
First, I disagree with the Majority's decision to reach the substantive suppression issues without first considering whether Appellant had established a reasonable expectation of privacy in the contents of the vehicle. It is well-established that before we may proceed to a determination of an appellant's substantive suppression claim, we must first discern whether Appellant has established standing to challenge the search and a privacy interest in the area searched. See Commonwealth v. Burton , 973 A.2d 428, 434-35 (Pa.Super. 2009).
Our Supreme Court has emphasized that these are distinct analyses:
While curiously similar, standing and privacy interest are different concepts serving different functions. Standing is a legal interest that empowers a defendant to assert a constitutional violation and thus seek to exclude or suppress the government's evidence pursuant to the exclusionary rules under the Fourth Amendment of the United States Constitution or Article 1, Section 8 of the Pennsylvania Constitution. It ensures a defendant is asserting a constitutional right of his own. The expectation of privacy is an inquiry into the validity of the search or seizure itself; if the defendant has no protected privacy interest, neither the Fourth Amendment nor Article I, § 8 is implicated. In essence, while a defendant's standing dictates when a claim under Article I, § 8 may be brought, his privacy interest controls whether the claim will succeed – once a defendant has shown standing, he must, in short, have brought his claim, demonstrate its merits by a showing of his reasonable and legitimate expectation of privacy in the premises.
See Commonwealth v. Enimpah , 630 Pa. 357, 106 A.3d 695, 698-99 (2014) (citations and quotations omitted).
Since Appellant was charged with a possessory offense, he automatically had standing to challenge the suppression of the items seized. See Commonwealth v. Viall , 890 A.2d 419, 421 (Pa.Super. 2005). However, the Commonwealth contends that Appellant failed to establish a legitimate expectation of privacy in the vehicle's contents. See Commonwealth's brief at 5. I agree.
A reasonable expectation of privacy exists when an individual exhibits an actual subjective expectation of privacy and that expectation is one that society is prepared to recognize as legitimate. See Commonwealth v. Jones , 874 A.2d 108, 118 (Pa.Super. 2005). In order to discern whether an expectation of privacy is reasonable, the totality of the circumstances must be considered and the societal interests involved must be balanced. Id . at 118 ("The constitutional legitimacy of an expectation of privacy is not dependent on the subjective intent of the individual asserting the right but on whether the expectation is reasonable in light of all the surrounding circumstances.").
The Commonwealth relies on Commonwealth v. Maldonado , 14 A.3d 907 (Pa.Super. 2012), as support for its position that Appellant did not have a reasonable expectation of privacy in the vehicle. See Commonwealth's brief at 7. In Maldonado , the defendant was pulled over while driving a car owned by his paramour. Maldonado , supra at 911. Police searched the vehicle and recovered drugs and guns. The defendant challenged the search in a pretrial motion. At the resulting suppression hearing, the Commonwealth adduced evidence that the vehicle was owned by the defendant's girlfriend and that they both lived at the address where the vehicle was registered. Id . However, the defendant did not testify or offer any evidence that he had permission to drive the vehicle. Id . The suppression court granted the defendant's suppression motion. On appeal we reversed, finding that Appellant had not established a reasonable expectation of privacy in the vehicle since he did not own the vehicle, it was not registered to him, and he had not shown authority to operate it. Id . at 911-12.
Here, at the suppression hearing, the Commonwealth established that the automobile was a leased vehicle. See N.T. Suppression Hearing, 2/14/18, at 15, 34-35, 37. However, it was never revealed to whom the vehicle was leased. Appellant did not testify or otherwise offer any evidence establishing that he was the lessee of the vehicle or that he had the lessee's permission to operate it. Instead, the sole testimony about the ownership of the car came from Pittsburgh Police Officer Gino Macioce, who explained that the vehicle was a leased car, but that he did not know to whom the vehicle was leased. Id . at 39-40.
In its brief, the Commonwealth correctly points out that although testimony at trial revealed that Appellant had rented the vehicle, we cannot examine evidence beyond the suppression hearing when reviewing a pretrial suppression issue, unless it is established that such evidence was unavailable during the suppression hearing. See Commonwealth's brief at 5 n.1. Appellant has leveled no such contention.
Accordingly, as in Maldonado , I would conclude that Appellant has failed to establish a legally cognizable expectation of privacy in the vehicle. See , Maldonado , supra at 911-12 ; see , e.g. , Commonwealth v. Perea , 791 A.2d 427, 429 (Pa.Super. 2002) (finding that an appellant had not established a privacy interest in a vehicle where he merely possessed the keys needed to unlock it, without any paperwork to show ownership or any other legitimate connection to it). Since we may affirm on any basis supported by the record, I would affirm the trial court's denial of the suppression motion on the ground that Appellant did not establish a reasonable expectation of privacy in the vehicle and its contents.
Although my proposed disposition would obviate the need to reach the substantive suppression issue addressed by the Majority, I will briefly explain why I also disagree with this portion of my colleagues’ analysis. In short, our differing conclusion on the substantive suppression issue stems from the Majority's failure to apply the proper standard of review. See Majority Opinion at 914. In its summation, the Majority reviewed the facts elicited at the suppression hearing de novo . It is well-settled that where "the Commonwealth prevail[s] before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole." Commonwealth v. Smith , 164 A.3d 1255, 1257 (Pa.Super. 2017). Therefore, while the trial court's conclusions of law are subject to plenary review, we are bound by the trial court's factual findings when they are supported by the record. Id .
The Majority summarized the factual findings that the suppression court made that led it to determine that the officers were justified in performing a protective sweep of the vehicle as follows:
In its factual findings, the suppression court credited Officer Macioce's testimony that: (1) the stop occurred in the dark at 2:00 a.m. in a high crime area; (2) Appellant exhibited signs of intoxication and nervousness when he was staring off and failing to comply with the officer's requests and demands; (3) Appellant was observed moving slowly and deliberately inside of the vehicle, raising concerns that Appellant could have access to a weapon; (4) Appellant's concealed carry permit had been revoked; and (5) that the DUI investigation was ongoing such that officers were going to have to release Appellant from the handcuffs in order for him to do field sobriety testing.
See Majority Opinion at 917. However, instead of accepting the foregoing facts as true, and discerning whether the law supported the suppression court's ultimate legal conclusion, the Majority substituted in its own evaluation of the credibility of Officer Macioce's testimony. Specifically, the Majority concluded that Officer Macioce's testimony did not support a finding that Appellant engaged in furtive movements or appeared nervous, facts that the suppression court plainly found when it credited Officer Macioce's testimony. See Majority Opinion at 917. Such a conclusion runs counter to our standard of review.
When viewing the evidence through the lens that our standard of review mandates, and applying the legal standard required for a wingspan search as articulated by the Majority, I would find that the protective sweep was legally justified. The stop occurred shortly after midnight in an "extreme high crime area," creating a heightened danger that the officers would not be able to view Appellant if he did reach for a weapon. See Commonwealth v. Jackson , 907 A.2d 540, 545 (Pa.Super. 2006) (recognizing that frisks for weapons can be appropriate when police confront a suspect in an area known for guns and violence). Appellant had been driving dangerously and initially failed to comply with basic commands to put his vehicle in park. Appellant also exhibited nervousness, had a revoked gun permit, and was observed "reaching around" while in the vehicle. This evasive behavior supported the officers’ concerns for their safety. Commonwealth v. Tuggles , 58 A.3d 840, 844 (Pa.Super. 2012) ("Where a person performs an activity that is indicative of an attempt to secrete a weapon, that movement, regardless of whether it is singular or multiple, can support a belief that the person has a gun.").
Given the totality of the facts at Officer Macioce's disposal, I agree with the trial court that the officer reasonably believed that a weapon may have been secreted within Appellant's wingspan, such that the resulting search was not unconstitutional. See, e.g. , Commonwealth v. In re O.J. , 958 A.2d 561, 566 (Pa.Super. 2008) (finding reasonable suspicion where the traffic stop occurred at night, the defendant initially failed to stop his vehicle when signaled by police, made furtive movements inside the vehicle, and was going to be released back to his vehicle).
In arriving at its contrary conclusion, the Majority views as dispositive the fact that, at the time of the protective sweep, Appellant had already been removed from the vehicle and handcuffed. See Majority Opinion at 917–18 ("Arrington was in handcuffs, positioned at the rear of his vehicle, out of reach of the passenger compartment. ... Therefore, Arrington posed no threat to the officers’ safety."). However, reaching such a definitive conclusion based solely on the fact that Appellant had been temporarily removed from the vehicle is not supported by our precedent or the testimony elicited at the suppression hearing.
It is well-established that a protective search of the interior of a vehicle is not unreasonable simply because the person is under police supervision outside of the vehicle. See Commonwealth v. Morris , 537 Pa. 417, 644 A.2d 721 (1994) (adopting Michigan v. Long , 463 U.S. 1032, 1051, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (rejecting the contention that a protective search of the interior of a car is unreasonable where the person is under police supervision outside of the vehicle)). Instead, a proper analysis focuses on whether a danger remains that the suspect could access weapons inside of the vehicle. See , e.g. In re O.J. , supra at 563 ("Even though Appellee and the passenger were secure at that point, a brief search of the car was necessary because Appellee and the passenger were not going to be placed under arrest for the Motor Vehicle Code violations but were going to be allowed to return to their car."); see also Long , supra at 1051, 103 S.Ct. 3469 (upholding a protective sweep where the police intended to release the suspect from his handcuffs, because once the suspect reentered his automobile, he would regain access to any weapons that might have been located in the vehicle).
Here, the officers intended to remove the handcuffs from Appellant so that he could engage in field sobriety testing. N.T. Suppression Hearing, 2/14/18, at 40. Further, Officer Macioce explained that, if Appellant had succeeded on the field sobriety testing, he would have been released back to his vehicle because he would have only been charged with a Motor Vehicle Code violation. Id . Therefore, the danger that Appellant could have accessed a weapon secreted inside the vehicle had not been extinguished at the time that the officers conducted the protective sweep.
Based on the foregoing discussion, I would affirm the trial court's denial of Appellant's suppression motion and respectfully dissent from the Majority's decision to reverse the judgment of sentence on Appellant's firearms not to be carried without a license, possession of drug paraphernalia, possession of a controlled substance, and possession with intent to deliver convictions.