COMMONWEALTH оf Pennsylvania, Appellant v. Jason MILLNER, Appellee.
888 A.2d 680
Supreme Court of Pennsylvania.
Submitted Oct. 7, 2004. Decided Dec. 28, 2005.
241 Pa. Super. 237
I would hold the Commonwealth Court did not err in finding McCreesh failed to act in good faith as required by Lamp and Farinacci. Lamp does not excuse inertia simply because there is no intent to stall the process it requires the moving party to move, and failure to do so properly and promptly has consequences even for the unintentionally inert. Lamp looks to the moving party‘s actions, and does not excuse inaction simply because there is no affirmative showing of prejudice to the non-moving party. Thus, I would affirm the decision that the statute of limitations barred McCreesh‘s claim.
Justice NIGRO joins this dissenting opinion.
BEFORE: CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice CASTILLE.
This Court 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.1
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 controllеd 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
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.2 A search incident to appellee‘s arrest resulted in the seizure of $449 in cash from appellee‘s person. Officer Miller testified that, when asked to whom the narcotics belonged, appellee and Brown each named the other.
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 Brown to lay face-down on the ground. Appellee testified that the men, who did not immediately identify themselves as police offiсers, searched his person while he lay in the street and retrieved money and narcotics from his pockets. The officers then handcuffed appellee and ultimately placed him in the police vehicle. It was only at that point that appellee saw Officer Abdulhadi remove the duffle bag from the back seat of the Cadillac, unzip the bag, pull out the handgun, and say, “Look what we have here.” On cross-examination, appellee testified that the Cadillac was not his, and that it belonged to Parker. N.T., 4/3/02, 43-52.
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 Court3 and filed a timely statement of matters complained of on
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 by appellee, the police “had no lawful basis for even an ‘investigative detention’ because there were no facts that would give rise to the level of a ‘reasonable suspicion.‘” In the alternative, the court concluded that, under the Commonwealth‘s evidence, there was neither probable cause nor reasonable suspicion to support the pоlice officers’ actions. With respect to the seizure of the firearm from the Cadillac, the court discussed its understanding of warrantless vehicle searches, ultimately concluding that no exception to the warrant requirement applied. The court failed to address the Commonwealth‘s argument that appellee lacked an expectation of privacy in the Cadillac. Trial court slip op. at 14-17.
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 could 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 vehiclе. 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
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, 568 Pa. 306, 795 A.2d 959, 961 (2002). When the suppression court‘s specific factual findings are unannounced, or there is a gap in the findings, the appellate court should consider only the evidence of the prevailing suppression party (here, appellee) and the evidence of the other party (here, the prosecution) that, when read in the context of the entire record, remains uncontradicted. E.g. Commonwealth v. Mendenhall, 552 Pa. 484, 715 A.2d 1117, 1118-19 & n. 1 (1998).
The Commonwealth argues that, under this Court‘s precedent, appellee had 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 expeсtation of privacy that the Commonwealth is required to prove that the police acted lawfully. See
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 quеstion 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 police 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,
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” thе 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, 729 A.2d 1134, 1138 (Pa.Super.1999), appeal denied, 560 Pa. 668, 742 A.2d 167 (1999), citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Under either version of events testified to at the suppression hearing, the Commonwealth asserts, the search of the vehicle was not causally related to the search of appellee, much less tainted by the personal search: Police testified that they searched the car because they saw appellee place a gun in it even before they approached him; while appellee said police searched the car for no reason apparent to him, and certainly for no reason which derived from their search of his person. The Commonwealth concludes that, because the police did not exploit evidence obtained from the search of appellee‘s person in order to develop suspicion concerning, or gain access to, the vehicle, the mere fact that appellee was seized (whether lawfully or unlawfully) before the police entered the vehicle provides no rational basis for suppressing the fruits of the separate vehicle search.
Appellee forwards no substantive response to the Commonwealth‘s claims that the suppression record reveals no
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, 468 Pa. 265, 361 A.2d 282, 290 (1976)), which encompasses situations where a suppression court fails to issue specific findings of fact or there is a “lacunae among the findings.” See Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264, 1271-72 (1989) (court‘s review role is to determine whether record supports suppression court‘s factual findings; however, where there are no explicit findings, or there is lacunae among findings, Kichline standard applies and appellate court will consider evidence presented by prevailing party and so much of evidence for other side, as fairly read in context of record as whole, remains uncontradicted); see also Commonwealth v. Willis, 483 Pa. 21, 394 A.2d 519, 521 (1978).
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
Criminal
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
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, 504 Pa. 46, 470 A.2d 457 (1983). In Sell, we held that, under Article I, Section 8 of the Pennsylvania Constitution, a criminal defendant charged with a possessory offense has “automatic standing” to pursue a motion to suppress evidence where that evidence (most typically, contraband or firearms) forms the very basis for the possessory crime, and the claim is that the evidence was the fruit of an unlawful seizure. The Sell Court viewed its automatic standing holding as significantly more protective of privacy rights than then-emerging Fourth Amendment jurisprudence from the U.S. Supreme Court, which had moved away from a preliminary standing analysis and adopted a substantive aрproach which analyzed Fourth Amendment claims by focusing on whether the challenged search or seizure implicated a reasonable and legitimate privacy expectation that was personal to the defendant. See, e.g., Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). The Sell Court noted that, under Rakas, Salvucci and Rawlings, the “sole determinant of the scope of protection afforded” under the Fourth Amendment was the defendant‘s “ability to prove a ‘legitimate expectation of privacy’ by the ‘totality of the circumstances.‘” 470 A.2d at 466.
After analyzing Article I, Section 8, and recognizing this Court‘s authority to find greater protection of privacy rights under our state charter, the Sell Court noted:
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 analytiсal distinction between “standing”
and “threshold substantive question,” see Rakas, supra 439 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 expectation of privacy” concept needlessly detracts from the critical element of unreasonable governmental intrusion.
470 A.2d at 468. Notwithstanding the Sell Court‘s rather broad criticism of the substance of the Rakas/Salvucci/Rawlings approach to search and seizure questions, its holding was very narrow. The Sell case came to this Court as an appeal from a Superior Court ruling which held that the defendant, who was charged with receiving stolen property, but who was not present when police executed the search warrant which led to the seizure of the stolen firearms at his place of business, lacked standing even to challenge the constitutionality of the search. Sell held that the “automatic standing” doctrine remained viable in Pennsylvania; and, since receiving stolen property is a possеssory offense, Sell remanded to the Superior Court for consideration of the merits of the defendant‘s challenge to the constitutionality of the search. 470 A.2d at 469.
After Sell, some confusion 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, 408 Pa.Super. 22, 596 A.2d 172 (1991).5 Citing to a number of this Court‘s post-Sell decisions, the lead opinion by Judge Beck noted that, in order to prevail upon a suppression motion, the defendant has a preliminary burden to show that the challenged police conduct implicated a reasonable expectation of privacy he had in the area searched or item seized. 596 A.2d at 174-76 & nn. 2-4
[I]f the reasonableness 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‘s motion 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.
596 A.2d at 187 (Hoffman, J., concurring) (emphases original). The concurrence thus construed Sell as permitting automatic standing defendants to vicariously assert the privacy rights of others in some instances.
This Court granted further review in Peterson and specifically addressed the interplay of standing principles and the rolе of the substantive “reasonable expectation of privacy” analysis. Our unanimous opinion rejected the Superior 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 right 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 hаd his standing acknowledged, appellant is then required to establish that the challenge he has without 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 I, 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 (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.
636 A.2d at 617-18. Later decisions from this Court have reaffirmed Peterson‘s approach to the suppression defendant‘s burden without qualification. E.g. Commonwealth v. Hawkins, 553 Pa. 76, 718 A.2d 265, 267 (1998) (“essential effect” of automatic standing doctrine “is to entitle a defendant to an adjudication of the merits of a suppression motion.... In order to prevail on such a motion, however, a defendant is required to separately demonstrate a personal privacy interest in the area searched or effects seized, and that such interest
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, 526 Pa. 555, 587 A.2d 1353, 1356 (1991) (“A defendаnt‘s attempt to secrete evidence of a crime is not synonymous with
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 nо need for the Commonwealth to establish the lawfulness 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, 636 A.2d at 619 (in light of defendant‘s failure to prove legitimate expectation of privacy, no need to address defendant‘s claim of illegal police conduct).
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: (1) that the Commonwealth “did not meet its initial burden of proof to demonstrate ... that there was some connection between the appellee and the gun;” and (2) that the vehicle search was “but-for” tainted by the search of appellee‘s person. Neither reason is persuasive.
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
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
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 search was tainted by the preceding search of appellee‘s person is equally faulty. As the Commonwealth has accurately noted, under both versions of events testified to below, the firearm made its way into the car before police approached appelleе, and independently of that confrontation. Whether police entered the car because they saw appellee place the firearm there before the encounter (police version) or for no apparent reason (appellee‘s version), the search of the vehicle in which appellee had no expectation of privacy was not the “poisoned fruit” of the search of appellee‘s person. Accordingly, there was no basis for suppression.
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.
Justices SAYLOR, EAKIN and BAER join the opinion.
Justice NIGRO did not participate in the consideration or decision of this case.
Chief JUSTICE CAPPY files a concurring opinion in which Justices NEWMAN and BAER join.
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, 543 Pa. 164, 670 A.2d 128, 131 (1995); Commonwealth v. Tarbert, 517 Pa. 277, 535 A.2d 1035, 1038 (1987) (indicating that “the driver and passengers do not forfeit all reasonable expectation of privacy, and may not be subjected to unfettered governmental intrusion“); see also Wyoming v. Houghton, 526 U.S. 295, 303, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (noting that passengers possess the same “reduced expectation of privacy” in vehicles as drivers). Indeed, we have repeatedly indicated that the focus of the inquiry in such situations is not whether the person has a property right in the area searched, but rather, focuses on the person‘s legitimate expectation of privacy in the place searched. Commonwealth v. Ardestani, 558 Pa. 191, 736 A.2d 552 (1999). Read in this light, this case stands for the limitеd proposition that, similar to Appellant Williams in Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 543 (2001), Appellant did not establish a subjective expectation of privacy in the vehicle. Thus, he is not entitled to relief on his suppression motion.
Justices NEWMAN and BAER join this concurring opinion.