Commonwealth v. Ginnery

1

COMMONWEALTH OF PENNSYLVANIA v. KARL JOSEPH GINNERY Appellant

No. 322 WDA 2022

No. J-S36040-22

Superior Court of Pennsylvania

February 17, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered February 24, 2022 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000442-2020

BEFORE: STABILE, J., KING, J., and COLINS, J. ^[*]

MEMORANDUM

COLINS, J.

Appellant Karl Joseph Ginnery, appeals from the aggregate judgment of sentence of three to six years' incarceration imposed by the Court of Common Pleas of McKean County following a jury trial at which he was convicted of possession with intent to deliver (PWID) methamphetamine, possession of an instrument of crime, possession of marijuana, possession of methamphetamine, possession of benzodiazepine, and two counts of possession of drug paraphernalia.^[1] For the reasons set forth below, we hold that the trial court erred in denying a portion of Appellant's motions to suppress evidence and therefore vacate the judgment of sentence and remand.

This case arises out of a traffic stop that occurred on the morning of September 3, 2020 and an ensuing warrantless search of the car that included a search of a backpack that was in the car. The facts found by the trial court in its decision on Appellant's motions to suppress are as follows:

On September 3, 2020, Officer Joshua Frederoski of the Bradford City Police Department was in full uniform in a marked police vehicle and on routine patrol in the City of Bradford. He was watching a silver Toyota Camry. He radioed Chief Ward (then Assistant Chief) and advised him that the occupants were "acting suspicious." He watched the vehicle and the two occupants in it with binoculars. The vehicle was parked. He then drove past the silver Toyota and made a U-turn. When he went back he observed that the vehicle had moved and he observed it traveling. He observed: 1) the windows of the Toyota to be heavily tinted; 2) the vehicle had a Pennsylvania registration but a New York inspection sticker; and, he did not observe a "tag" for the vehicle in the back window. He initiated his lights and sirens and stopped the Toyota.

After the Toyota pulled to the side of the roadway Officer Frederoski approached the driver's side window. He asked the driver, Megan Sena, for her driver information. [Appellant] was in the passenger seat. A discussion occurred about that lack of a tag in the window. Ms. Sena indicated that she was borrowing the vehicle and it was just purchased by the owner. There is nothing in the record regarding how [Appellant] came to be a passenger in the vehicle. … While they were having this discussion Officer Frederoski smelled an odor of burnt marijuana. He also noticed a cut cigar wrapper (the outside of the cigar) that was empty. He testified that it is common for individuals smoking marijuana to cut open a cigar, remove the tobacco and place the marijuana in it to smoke it. He also noticed "multiple bags of [Q-]tips[,]" [which he believed] are often utilized to filter illegal controlled substances before use. … Based on the smell of burnt marijuana and seeing the cut cigar wrapper and [Q-]tips, Officer Frederoski suspected that Ms. Sena may have been driving under the influence of a controlled substance. Therefore, he asked her to exit the vehicle to continue his investigation into a potential DUI.

Chief Ward heard Officer Frederoski's radio announcement that he was stopping the Toyota. He arrived at the scene shortly after the stop. When Officer Frederoski advised him of the [Appellant's name, Chief Ward recognized it. [Appellant] had worked as a confidential informant in the past regarding a firearms investigation. … Chief Ward advised Officer Frederoski that he had worked with [Appellant] in the past.

After he asked Ms. Sena to step out of the Toyota, Officer Frederoski asked [Appellant] if [he] would step out of the vehicle to speak to Chief Ward. … Officer Frederoski … asked [Appellant] to exit the vehicle because he had made the decision to search the vehicle and it was a "safety issue having him in the vehicle while I searched." … [In addition,] Officer Frederoski and Chief Ward suspected that Ms. Sena and [Appellant] were involved in drug activity and they wanted to obtain further information from them.

[Appellant] agreed to exit the vehicle and speak to Chief Ward. [Appellant] walked behind the Toyota and spoke to Chief Ward at the front of Chief Ward's patrol vehicle. … Chief Ward … started the conversation with [Appellant] by asking him about his health and how he was doing. He then advised [Appellant] that he was not under arrest. Chief Ward then stated [,] "I am just asking you for your honesty, what have you guys been using today." [Appellant] responded: "just smoking." Chief Ward took this statement as meaning that [Appellant] and Ms. Sena had smoked [m]arijuana only (as opposed to other illegal substances). Chief Ward then read [Appellant] his Miranda^[2] rights. Shortly after [Appellant] was read his Miranda rights, Officer Frederoski removed illegal narcotics and items from the Toyota and placed them on the hood of the vehicle. Many of the items were found in a backpack that was in the back seat of the vehicle. When [Appellant] saw the drugs and paraphernalia that Officer Frederoski had found, he told Chief Ward that he was "responsible for all of that," that they were his and not Ms. Sena's. He also made other incriminating statements.

After Ms. Sena and [Appellant] were arrested an issue arose regarding the silver Toyota Camry. Officer Frederoski was concerned about it remaining where it was because "it is a busy area with a lot of traffic." When Officer Frederoski indicated that the vehicle had to be moved, [Appellant] indicated that he would try and call the owner. [Appellant unsuccessfully] tried to call the owner to come and move the vehicle …. Arrangements were then made by Officer Frederoski to have the vehicle towed and impounded.

Trial Court Opinion and Order, 3/17/21, at 1-5 (footnotes omitted).

Appellant was charged with PWID marijuana, PWID methamphetamine, PWID benzodiazepine, possession of marijuana, possession of methamphetamine, possession of benzodiazepine, three counts possession of drug paraphernalia, and possession of an instrument of crime. On December 11, 2020, Appellant filed a motion to suppress in which he sought to suppress evidence seized in the search that Officer Frederoski conducted and statements that he made following that search on the grounds that the traffic stop and the direction that Appellant exit the vehicle for questioning were constitutionally invalid and that Appellant was not given Miranda warnings prior to questioning. A hearing on this suppression motion was held on January 22, 2021.

On February 4, 2021, Appellant filed an amended motion to suppress in which he sought leave to raise as an additional ground for suppression that Officer Frederoski's search was conducted without a warrant and therefore violated Article I, Section 8 of the Pennsylvania Constitution under Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), which was decided on December 22, 2020, after Appellant filed his initial suppression motion. The trial court granted Appellant leave to assert this ground for suppression and held a second suppression hearing on March 12, 2021, at which the Commonwealth and Appellant had the opportunity to present further evidence necessary to address this additional issue. Trial Court Order, 2/8/21. Following this second suppression hearing, the trial court denied Appellant's suppression motions. N.T. 3/12/21 Suppression Hearing at 32-37; Trial Court Opinion and Order, 3/17/21. On the issue of whether the warrantless search violated Article I, Section 8 of the Pennsylvania Constitution, the trial court found that the Commonwealth had not shown that the warrantless search of the car and backpack was justified by exigent circumstances, but denied Appellant's motion to suppress on the ground that Appellant had no reasonable expectation of privacy because he was only a passenger in the car, was not the car's owner, and had not shown that he had the owner's permission to be in the car. N.T. 3/12/21 Suppression Hearing at 32-37; Trial Court Opinion and Order, 3/17/21 at 5-10, 16-18 & n.4.^[3] At Appellant's jury trial on January 3 and 4, 2022, drugs, drug paraphernalia, and other items seized in the search, some of which were found in the backpack, were introduced in evidence. N.T. Trial, 1/3/22, at 86-105. On January 4, 2022, the jury convicted Appellant of PWID methamphetamine, possession of an instrument of crime, possession of marijuana, possession of methamphetamine, possession of benzodiazepine, and two counts of possession of drug paraphernalia, and acquitted him of the other three charges. On February 24, 2022, the trial court sentenced Appellant to three to six years' incarceration for the PWID conviction and concurrent terms of incarceration of one to three years for possession of an instrument of crime, six months to one year for each of the drug possession convictions, and three months to one year for each of the possession of drug paraphernalia convictions. This timely appeal followed.

Appellant presents the following single issue for our review:

Did the lower Court err in denying the defendant's suppression motion when it determined that the defendant lacked standing and/or a privacy interest in the contents of a backpack found on the back seat of a vehicle such that he was precluded from raising a Constitutional claim under Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020)?

Appellant's Brief at 6. Our standard of review on this issue is well-settled:

Our standard of

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