Lead Opinion
This Cоurt granted review to consider the Commonwealth’s claim that the lower courts improperly ordered the suppression of a firearm that police seized following a warrantless entry into a vehicle in which appellee had no reasonable expectation of privacy. Because we hold that the seizure of the firearm did not violate appellee’s constitutional rights under the Fourth Amendment and/or Article I, Section 8 of the Pennsylvania Constitution, we reverse the order of the Superior Court to the extent that it affirmed the suppression of the firearm in question.
The prosecution in this case arose from appellee’s early morning arrest on September 20, 2000, in West Philadelphia. Appellee was charged with one count each of possession of a controlled substance and possession with intent to deliver a controlled substance (cocaine), and two firearms offenses. Appellee filed a motion to suppress evidence, alleging that the drugs and the firearm which formed the basis for the prosecution were illegally seized, “without ... warrants and without probable cause to do so, and not incident to a lawful arrest and without the consent of [appellee].” A hearing on the motion was held on April 3, 2002 before the Honorable Peter F. Rogers.
At the outset of the suppression hearing, appellee asserted the grounds for suppression as follows: “police were without probable cause to conduct a search of [appellee’s] person ..., and conduct a search of the automobile in which a gun was found.” N.T., 4/3/02, 3. The Commonwealth responded by calling Philadelphia Police Officer Ernest Miller, who testified that on
Officer Miller testified that he then conducted a safety pat down of Brown and also retrieved the discarded plastic bag, which contained five small orange packets of what was later determined to be marijuana and six orange packets of what was later determined to be cocaine. Meanwhile, Officer Abdulhadi patted appellee down and recovered from his person 41 packets containing a white chunky substance which was later determined to be crack cocaine.
Officer Miller then held a now-handcuffed appellee and Brown off to the side of the vehicle, while Officer Abdulhadi retrieved the handgun, which was sitting in plain view inside a large, unzipped, multi-colored duffle bag on the backseat of the Cadillac. The firearm was identified as a .9 millimeter Cobra with 33 live rounds in the magazine and one in the chamber. Officer Miller also testified that there was nothing in the vehicle or gym bag that appeared to belong to or otherwise relate to appellee, that appellee did not have a key to the car, and that a record check of the Vehicle Identification Number revealed that the vehicle was not registered to appellee, but to “Jack somebody and Nancy Ayoub.” N.T., 4/3/02, 11-13, 36-37.
Appellee elected to take the stand and relate his version of the arrest, which differed in significant respects from the police account. Appellee stated that he left his home at 54th and Cedar Streets in West Philadelphia at approximately 2:00 a.m. and met his friend, Darryl Parish, and another male, Kenny Parker, at 55th and Locust Streets, near a brown Cadillac. Shortly thereafter, Steven Brown exited his apartment on Locust Street and joined the others, who had planned to go to an “after hours spot.” Parish and Parker walked up the street, leaving appellee and Brown talking near the Cadillac. Appellee testified that, at that point, a vehicle came around the corner toward them and parked so close that appellee could not go anywhere. Two men exited the vehicle with guns drawn and ordered appellee and
After resting his case, appellee’s counsel began arguing the lawfulness of the police conduct premised upon appellee’s testimony, only to have the suppression court interrupt and state, “You can completely forget [appellee’s] version and deal with the Commonwealth’s evidence.” Counsel complied and framеd his legal argument in terms of the Commonwealth’s evidence contending, with respect to the cocaine, that police lacked probable cause to search his client; and, with respect to the firearm, that police lacked probable cause to search the Cadillac, had no warrant, and lacked consent to search the vehicle. N.T., 4/3/02, 55-56. The Commonwealth responded first by addressing the seizure of the firearm, arguing that when a police officer views an object from a lawful vantage point, and the incriminating nature of that object is immediately apparent, a warrantless seizure is justified; and that, in any event, appellee had failed to show that he had an expectation of privacy in the Cadillac. N.T., 4/3/02, 58-60. In an extended exchange with the prosecutor, the suppression court indicated it was unconvinced with the government’s argument respecting the fireаrm. Judge Rogers then interrupted the prosecutor before he could argue the legality of the personal search, announcing he was granting the motion as to both the cocaine and the firearm. N.T., 4/3/02, 63-64.
The suppression court did not make formal findings of fact on the record, nor did it state which of the divergent factual accounts it credited. With respect to conclusions of law, the court very briefly stated that it was ordering suppression of the drugs found on appellee’s person because “that is a full blown search.” With respect to the firearm, the court ordered suppression because the police searched the car without a warrant and appellee had “no obligation ... or burden to come forth and say that is my car.” N.T., 4/3/02, 61-63.
The Commonwealth timely appealed to the Superior Court
In its legal analysis, the court then noted, with respect to the search of appellee’s person and the seizure of his cocaine, that under the version of the arrest testified to
A unanimous panel of the Superior Court affirmed the suppression of both the drugs and the firearm in a memorandum opinion. The panel first noted that, because the suppression court had largely credited appellee’s testimony, and that testimony suggested that the police cоuld not have seen appellee holding a gun on the street, the police lacked probable cause or reasonable suspicion to arrest and/or search appellee, Brown and the vehicle. The panel next recognized that “under the credited evidence appellee had no expectation of privacy with respect to the vehicle.” Super. Ct. slip op. at 10 n. 3. Nevertheless, the panel determined that it “need not address” the Commonwealth’s preserved foundational argument that appellee’s lack of a reasonable expectation of privacy in the car rendered the suppression of the firearm erroneous. Conflating exclusionary rule issues with proof of the firearm possession charge at trial, the panel concluded that the argument did not have to be addressed because the Commonwealth had fаiled to meet its “initial burden of proof to demonstrate at the suppression hearing, that there was some [possessory] connection between the appellee and the gun.” In the panel’s view, because, under the credited evidence, “[t]he Commonwealth did not establish that the appellee actually put the gun into the bag, nor the bag into the car .... [w]e therefore find it unnecessary to address the argument that the appellee maintained no expectation of privacy in the vehicle or its contents.” Finally, the panel seemed to suggest that the vehicle search was part and parcel of the preceding search of appellee’s person and somehow was “but-for” tainted by that prior illegality:
But for the illegal detention and search of [appellee,] the police would never have searched the vehicle at all. The search of the vehicle was a mere extension of the already illegal search.
Super. Ct. slip op. at 10-11.
The appellate standard of review of suppression rulings is well-settled. This Court is bound by those of the suppression court’s factual findings which find support in the record, but we are not bound by the court’s conclusions of law. E.g. Commonwealth v. Templin,
Although the facts were sharply disputed at the suppression hearing concerning the stop and search of appellee’s person, the relevant facts were undisputed concerning central aspects of the police seizure of the firearm: i.e., it was undisputed that the firearm was seized from the Cadillac, not from appellee’s person, and
The Commonwealth argues that, under this Court’s precedent, appellee hаd the initial burden at the suppression hearing to demonstrate that he had a reasonable expectation of privacy that was infringed by the police entry into the vehicle and the resulting seizure of the firearm. It is only after the defendant shows that the challenged police conduct implicated such a reasonable expectation of privacy that the Commonwealth is required to prove that the police acted lawfully. See Commonwealth v. Peterson,
In contrast, the Commonwealth argues, the Superior Court cited no authority to support the proposition that the Commonwealth has an “initial burden of proof’ to show a connection between the defendant and the firearm before the Peterson question of the defendant’s expectation of privacy need be reached. The Commonwealth recognizes that to convict appellee of a firearms offense at trial, it -will be obliged to prove a possessory connection between appellee and the firearm seized from the Cadillac. However, the Commonwealth emphasizes that this trial burden is not the first order of business at a pre-trial suppression hearing devoted to the question of whether the defendant’s personal rights were violated by a policе search or seizure, such that an exclusionary rule remedy is available.
The Commonwealth also notes that the Pennsylvania Rules of Criminal Procedure corroborate this ordered and settled focus of the suppression hearing. Thus, Rule 581(A) provides that, “the defendant or
Finally, the Commonwealth addresses the Superior Court’s suggestion that the illegal search of appellee’s person tainted the later automobile search. The Commonwealth argues that there is no record support for, or recognized legal relevance arising from, the panel’s statement that “but for” the illegal search of appellee’s person, the police would not have searched the car. The Commonwealth notes that the “ ‘test for excludability is not whether the evidence would have come to light but for the illegal actions of the police, but rather, whether the evidence has been come at by exploitation of that illegality....’” Brief for Appellant, 15 n. 1, quoting Commonwealth v. Butler,
Appellee forwards no substantive response to the Commonwealth’s claims that the suppression record reveals no evidence that he had a reasonable expectation of privacy in the car, and that the Superior Court erred in holding that the Commonwealth had a preliminary burden to show a credible connection between appellee and the firearm, and in holding that the vehicle search was “but-for” tainted by the personal search. Instead, appellee submits that this matter should be remanded to the suppression court for the entry of formal findings of fact because the trial court’s factual findings “are unclear and insufficient.” Appellee notes that the trial court’s statements on the suppression record did not indicate which portions of the conflicting testimony it accepted as true, and its statement in its later opinion that it “accepted the testimony of the defense, in large part” did not clarify matters because the court thereby suggested that there were some portions of appellee’s testimony that it did not accept. Appellee also notes the trial court’s failure to “directly confront” the Commonwealth’s preserved argument regarding appellee’s lack of an expectation of privacy. For these reasons, appellee submits that a remand is necessary to require the suppression court to
In a reply brief, the Commonwealth opposes remand, noting that appellee made no such request in the Superior Court, and arguing that remand would waste judicial resources, since this Court has a settled standard of review (deriving from Commonwealth v. Kichline,
We agree with the Commonwealth that a remand is unnecessary. This Court has reviewed the Superior Court briefs, and the Commonwealth is correct that appellee did not request a remand before that court; thus, the current, belated request arguably is waived. See Pa. R.A.P. 302. On the other hand, the question of the sufficiency of the findings below, and the trial court’s discharge of those duties necessary to ensure effective appellate review, is a matter of practical and supervisory importance which has led this Court to remand in other cases, irrespective of a specific complaint, or request for remand, from the parties. See, e.g., Commonwealth v. DeJesus,
Criminal Rule 581(1) mandates that, at the conclusion of the suppression hearing, “the judge shall enter on the record a statement of findings of fact and conclusions of law.” We recognize that, unfortunately, it is not uncommon for suppression judges to fail to comply with this directive, and the lapse is then belatedly accounted for, if at all, either in the court’s Pa. R.A.P.1925 opinion filed after an appeal is taken by the aggrieved party (which could be months in the case of a Commonwealth appeal or years later in the case of a defense post-verdict appeal) or by the Kichline standard of review — a standard which came into existence precisely because of such lapses. We stress, however, the essential purposes served by the Rule, and we disapprove of non-compliаnce with its unambiguous mandate. A specific and contemporaneous announcement of suppression findings of fact and conclusions of law serves at least two salutary purposes. First, it permits the losing party to make a more intelligent assessment of whether or not to burden the appellate justice system with an appeal of the suppression ruling,
Notwithstanding the trial court’s violation of our Rule, a remand for compliance would not serve the interests of judicial economy or justice. The Commonwealth willingly poses its argument under the version of the facts most harmful to its position, and argues that it is still entitled to relief as a matter of law with respect to the admissibility of the firearm. In such an instance, we agree that the Kichline standard is sufficient to permit meaningful appellate review, and we see no reason to delay this pre-trial matter further.
A proper understanding of the defendant’s preliminary burden at a suppression hearing begins with consideration of this Court’s seminal decision in Commonwealth v. Sell,
We decline to undermine the clear language of Article I, section 8 by making the Fourth Amendment’s amorphous “legitimate expectation of privacy” standard a part of our state guarantee against unreasonable searches and seizures. We do so not only because we find the United States Supreme Court’s analytical distinction between “standing” and “threshold substantive question,” see Rakas, supra439 U.S. at 139 n. 7,99 S.Ct. at 428 n. 7, unhelpful to our interpretation of Article I, section 8’s protection, but also because we believe the United States Supreme Court’s current use of the “legitimate еxpectation of privacy” concept needlessly detracts from the critical element of unreasonable governmental intrusion.
After Sell, some confusiоn arose concerning what burden, if any, the Pennsylvania automatic standing defendant had in a suppression hearing, particularly in light of the U.S. Supreme Court’s focus upon a defendant’s reasonable expectation of privacy in assessing Fourth Amendment claims. The confusion most notably manifested itself in the Superior Court’s decision in Commonwealth v. Peterson,
[I]f the reаsonableness of a governmental intrusion can be evaluated only when the search or seizure implicated the particular defendant’s reasonable expectation of privacy, the Sell rule is identical in all practical respects to the federal approach. I find it hard to believe that Sell stands only for the proposition that, when the court inevitably denies the defendant’smotion to suppress, it is imperative to announce that there is “no reasonable expectation of privacy” rather than no standing. If the Sell Court intended this result, it would have been much easier simply to adopt Salvucci.
This Court granted further review in Peterson and specifically addressed the interplay of standing principles and the role of the substantive “reasonable expectation of privacy” analysis. Our unanimous opinion rejected the Supеrior Court concurrence’s construction of Sell and made it explicitly clear that Sell’s automatic standing holding did not absolve the suppression defendant of his obligation to demonstrate that the challenged police conduct implicated a reasonable expectation of privacy that he personally possessed:
Standing denotes the existence of a legal interest. In the context of this case, the term refers specifically to appellant’s right to have the merits of his suppression motion adjudicated without a preliminary showing of ownership or possession in the premises or effects seized. Sell, supra, established the existence of this light unequivocally, holding that a charge of possessory offenses is sufficient, without more, to confer standing.... [A]t no time was appellant’s standing in this matter contested. However, having had his standing acknowledged, appellant is then required to establish that the challenge he has withоut question legitimately raised is itself legitimate. In order to do so, he must demonstrate that he held such a privacy interest which was actual, societally sanctioned as reasonable, and justifiable in the place invaded that the warrantless entry of the police violated his right under the Constitution of this Commonwealth, Article 1, Section 8, to be “secure ... against unreasonable searches and seizures.” See, Commonwealth v. Brundidge,533 Pa. 167 , 170,620 A.2d 1115 , 1118 (1993); Commonwealth v. Oglialoro,525 Pa. 250 , 256,579 A.2d 1288 , 1290-1 (1990). He must, in short, having brought his claim, demonstrate its merits by a showing of his reasonable and legitimate expectation of privacy in the premises. See, Commonwealth v. Cameron,385 Pa.Super. 492 ,561 A.2d 783 (1989) alloc. denied,525 Pa. 576 ,575 A.2d 108 (1989 [1990]). The Superior Court concurrence failed to distinguish between the necessity for a preliminary demonstration of proprietary or possessory interest, a necessity which does not exist in Pennsylvania, and the necessity of demonstrating the merits of a suppression claim. Appellant’s automatic standing does not divest him of the evidentiary responsibility to show that the warrantless entry into the storefront by law enforcement personnel [the police conduct at issue] violated a reasonable and legitimate expectation of privacy.
As we have noted above, in the case sub judice, appellee offered no evidence to demonstrate a personal privacy interest in the vehicle, the search of which formed the basis for his claim that the firearm should be excluded. Appellee produced no evidence that he owned the vehicle, nor did he produce evidence which remotely suggested that he had any other connection to the vehicle which could form the basis for so much as a subjective expectation of privacy. In addition, there was nothing in the Commonwealth’s evidence upon which appellee could rely to prove that he had an expectation of privacy in the Cadillac in question. The police testimony established that nothing was found in the vehicle, on appellee’s person, or through a record search, to suggest any lawful connection to the car. Finally, the fact that police testified to seeing appellee put the firearm in the vehicle — a fact appellee denied — alone does not establish both a subjective and reasonable expectation of privacy in a vehicle to which he had no other legitimate connection. Cf. Commonwealth v. Copenhefer,
In short, appellee failed to establish a subjective expectation of privacy in this particular vehicle, much less one that society would accept as reasonable, such that the warrantless police entry implicated his own personal privacy rights. In such a circumstance, there was no need for the Commonwealth to establish the lawfulnеss of the police entry into the vehicle and the seizure of the firearm, and there was no basis upon which the lower courts could properly order its suppression. E.g. Peterson,
The Superior Court panel recognized that appellee proved no reasonable expectation of privacy in the vehicle, and yet deemed it unnecessary to pass upon the Commonwealth’s substantive argument. The panel cited two reasons for this conclusion:
The panel cited no authority for its conclusion that the Commonwealth had a preliminary suppression burden to “connect” appellee to the firearm before appellee had to show that his own rights were implicated by its seizure; appellee has cited none; and our research has revealed none. Given the purpose of a motion to suppress, we reject the innovative burden the panel would impose upon the Commonwealth. Absent a successful motion to suppress, or its equivalent, the Commonwealth like any other party is entitled to attempt to introduce at trial any and all relevant evidence. The point of a motion to suppress physical evidence is to eliminate certain tangible evidence from the Commonwealth’s trial armamentarium, on grounds that the manner of the government’s acquisition of that evidence involved a violation of the defendant’s constitutional rights. Whether that evidence is to be suppressed does not depend upon whether the Commonwealth has committed itself to introduce the evidence at trial, or how important it is to the Commonwealth’s case, or how strong the evidence is, or whether it is subject to trial contradiction, explanation or rebuttal; the focus is upon its manner of acquisition, and how that manner of acquisition implicated the defendant’s constitutional rights. By the same token, an unsuccessful motion to suppress does not restrict the defendant from arguing at trial that the evidence should be excluded, or discounted by the factfinder, on grounds unrelated to the constitutionality of its acquisition. See Pa.R.Crim.P. 581(J). Thus, the defendant is free to argue that the evidence is irrelevant (e.g., because not sufficiently “connected” to him or to a material issue), or that its prejudicial effect outweighs its probative value, etc.
Although the question of the defendant’s “connection” to a piece of incriminating evidence may be relevant to his establishing an expectation of privacy relating to the seizure of the item, the defendant’s connection is not ineluctably essential to the Commonwealth’s role at a suppression hearing. By filing the suppression motion and identifying the items he seeks to have suppressed, it is the defendant, not the Commonwealth, who places the evidence, and the lawfulness of its seizure vis a vis his personal rights, at issue. In a case involving a possessory charge such as this one, it is true that the Commonwealth will not prevail at trial unless it can prove that appellee possessed the firearm. It may also be that appellee will challenge whatever evidence the Commonwealth musters at trial to prove appellee’s “connection” to the firearm. But, nothing in existing jurisprudence, law, or even logic obliged the Commonwealth to “prove” that fact at the outset of the suppression hearing, before it could object to appellee seeking the suppression of a firearm based upon a seizure which did not implicate his own constitutional rights. The Superior Court erred in sua sponte manufacturing such a requirement. We remind the Superior Court that its jurisprudential task “is to effectuate the decisional law of this Court, not to restrict it through curtailed readings of controlling authority.” Behers v. Unemployment Compensation Bd. of Review,
The panel’s suggestion (also unsupported by citation to authority) that it did not have to pass upon the Commonwealth’s argument because the vehicle
For the foregoing reasons, the order of the Superior Court is reversed to the extent it affirmed the suppression of the firearm seized, and this matter is remanded to the trial court for proceedings consistent with this Opinion.
Notes
. As detailed infra, the suppression court also excluded cocaine which the court deemed to be the fruit of an illegal search of appellee’s person. The Commonwealth does not challenge Superior Court's affirmance of the suppression of the cocaine.
. Officer Abdulhadi testified and confirmed Officer Miller’s testimony that, during the course of a safety pat-down of appellee, he retrieved numerous small items that he believed to be crack cocaine in appellee’s front jacket pocket. N.T., 4/3/02, 40.
. In its notice of appeal, the Commonwealth certified that the suppression order effectively terminated or substantially handicapped the prosecution, thus perfecting its right to appeal the pretrial order. Pa. R.A.P. 311(d); Commonwealth v. Templin,
. The disservice attending the failure to make timely findings is illustrated by this case, where the facts were contested. The Cоmmonwealth, which lost at the suppression level, was given no indication that the trial court’s decision was at least partly credibility-based until months after it had already filed its notice of appeal, and that belated credibility finding was in the face of a suppression hearing exchange where the trial court told defense counsel to "completely forget [appellee's] version and deal with the Commonwealth's evidence.” In its allocatur petition, the Commonwealth abandoned its claim respecting the suppression of the drugs, no doubt because of the effect of the court’s credibility announcement, and concentrated solely on the question of the suppression of the firearm, which it believed was controlled by legal, rather than factual, considerations.
. See also Commonwealth v. Govens,
Concurrence Opinion
concurring.
I join the majority opinion. I write separately only to note that our decision today should not, in any way, be interpreted to represent support for the broad proposition that passengers in a vehicle or those with something other than ownership interests in a vehicle cannot establish a legitimate expectation of privacy in the vehicle searched. Cf. Commonwealth v. Shiflet,