Com. v. Enos, S.
1131 EDA 2016
Pa. Super. Ct.Dec 8, 2017Background
- A confidential informant (CI) arranged to buy $20 of cocaine from "Stew" (Appellee Stewart Enos) while wearing a concealed silent camera; the CI entered Enos’s tinted‑window Toyota, rode ~½ block, completed the buy, and returned the drugs to police. Police could not see into the vehicle from their vantage point. The vehicle left and Enos was arrested about a year later after identification from the video.
- Charges: possession with intent to deliver, possession, and possession of paraphernalia. Pretrial, various motions were filed; on March 21 the court denied a motion in limine to exclude the video and a motion to reveal the CI’s identity; a jury was selected and sworn.
- On March 22 (after jury sworn) Enos filed a suppression motion to exclude the CI video; the trial court, citing Commonwealth v. Dunnavant, suppressed the video and declared a mistrial based on manifest necessity; the Commonwealth appealed.
- The Superior Court reviewed whether Dunnavant (covert video in a residence) should be extended to bar warrantless covert video recorded inside a car and also whether the trial court abused its discretion by hearing an untimely suppression motion after the jury was sworn.
- The Superior Court held suppression was erroneous: Blystone (no expectation of privacy in information voluntarily disclosed to an informant) controls for a vehicle, and an invitee may record inside a car; but the court also held the trial court abused its discretion in entertaining the untimely mid‑trial suppression motion after jeopardy attached.
Issues
| Issue | Commonwealth (Plaintiff) Argument | Enos (Defendant) Argument | Held |
|---|---|---|---|
| Whether Dunnavant (warrantless covert video) applies to a vehicle recording | Dunnavant should not extend to cars; vehicles have diminished privacy and Blystone controls; Enos forfeited privacy by inviting CI into car | Warrantless covert video is per se unreasonable; Dunnavant protects against government‑directed secret recording even in car | Reversed suppression: Dunnavant does not extend to vehicles; Blystone governs and Enos forfeited his diminished privacy by inviting CI into car |
| Whether the trial court abused discretion by hearing and granting an untimely suppression motion after jury sworn | Trial court should not have entertained mid‑trial suppression; grounds existed earlier and interests of justice did not require hearing | Court should allow late filing to avoid later PCRA ineffective‑assistance claims | Trial court abused discretion: neither Rule exceptions applied; motion was untimely and not so obviously meritorious to require hearing after jeopardy attached |
Key Cases Cited
- Commonwealth v. Dunnavant, 63 A.3d 1252 (Pa. Super. 2013) (suppression of warrantless covert silent video taken inside defendant’s home)
- Commonwealth v. Dunnavant, 107 A.3d 29 (Pa. 2014) (Supreme Court equally divided—result affirms Superior Court judgment regarding in‑home covert video)
- Commonwealth v. Blystone, 549 A.2d 81 (Pa. 1988) (no reasonable expectation of privacy in information voluntarily disclosed to an informant)
- Commonwealth v. Kean, 556 A.2d 374 (Pa. Super. 1989) (distinguishing Blystone for uniquely invasive covert video in home/bedroom)
- Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994) (Blystone does not extend to surreptitious electronic surveillance inside a private residence)
- Commonwealth v. McCree, 924 A.2d 621 (Pa. 2007) (heightened privacy concerns for person differ from diminished privacy expectations for vehicles)