Commonwealth v. Joseph Newman

84 A.3d 1072

2014 PA Super 2

COMMONWEALTH of Pennsylvania, Appellant

v.Joseph NEWMAN, Appellee.

Superior Court of Pennsylvania.

Submitted July 23, 2013.

Filed Jan. 6, 2014.

Reargument Denied March 11, 2014.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Joseph C. Santaguida, Philadelphia, for appellee.

BEFORE: BENDER, J., PANELLA, J., and FITZGERALD, J.^*

OPINION BY BENDER, J.:

The Commonwealth appeals from the order of the trial court granting Appellee's suppression motion and denying the Commonwealth's motion for reconsideration of the same. After careful review, we affirm.

The trial court summarized the facts adduced at the suppression hearing as follows:

The facts of this case were long and drawn out as it involved police surveillance of numerous drug transactions in a known drug area over an hour and a half time period prior to the [Appellee]'s arrival at the scene. The testifying officers admitted that [Appellee] was not observed in any of the money for drugs transactions, but was stopped after he was seen receiving a black plastic bag from a person under police watch. [Appellee] was the only occupant of the vehicle at all times relevant.

The Commonwealth first presented the testimony of Police Officer Warren who stated that on August 31st, 2011, at approximately 11:00 a.m., he was conducting narcotics surveillance in the 5500 block of Blakemore Street in the City of Philadelphia. He specified an area in front of 5536 Blakemore Street as the area he was surveilling at that time. He testified that he observed numerous black males, later identified as Messrs. Tarpley, Taylor, Butts and Whiley, in addition to an unknown black male, conduct what he believed to be several narcotics transactions at that location. He described each of the narcotics transactions that he observed during the time in detail.

Some of the individual buyers involved in those transactions were stopped by various back-up/take down police officers and were found to be in possession [of] crack cocaine. The buyers were both on foot and in motor vehicles.

At approximately 12:30 p.m. on that date, all of the males previously identified left the area of 5536 Blakemore Street and proceeded to walk to an area on Woodlawn Street. Officer Warren testified that he received information from another member of his take down team that the officer observed Mr. Whiley walk out of an alley with a black plastic bag. [Appellee] then pulled up to Mr. Whiley on the 5500 block of Blakemore Street in a gray Grand Marquis motor vehicle.

Police Officer Warren testified that he observed Mr. Whiley put the black bag in [Appellee]'s car and then watched the [Appellee] as he left the area. He further testified that he relayed this informationto a member of his backup team, specifically, Police Officer Ellis.

Another Police Officer's testimony was stipulated to between counsel. It was entered on the record that if Police Officer Nosik were called to testify, he would have stated that he had observed Mr. Tarpley, another of this group of males previously mentioned, enter a rear alley on Woodlawn Street and exit the alley with a black plastic bag which he gave then to Mr. Whiley. This was the bag that Mr. Whiley gave to [Appellee]. This bag went from Mr. Tarpley to Mr. Whiley to the [Appellee].

The Commonwealth next called Police Officer Ellis. He testified as to his experience and training, including conducting over 1,000 vehicle stops. He indicated he was part of the take down team for the 14th District Narcotics Enforcement Team on August 31st, 2011. He further testified that based on information received from Police Officer Warren, he stopped [Appellee]'s vehicle after he activated his lights and sirens.

According to Officer Ellis, [Appellee] did not immediately pull over, but did so after approximately 20 to 30 seconds. He also said he followed [Appellee]'s vehicle for approximately one to one and a half blocks before he attempted to stop him. He did not testify to any unusual movements or actions by [Appellee] during the entire time that he was able to observe him.

After [Appellee] pulled over and stopped, Officer Ellis testified he exited his vehicle and approached [Appellee]'s driver's side, identifying himself as a police officer. He then told [Appellee] to shut off the vehicle's engine and to exit his vehicle. He further testified that [Appellee] was initially belligerent and yelled at him, but did eventually comply with his directives.

Police Officer Ellis testified as he was concerned about the presence of a firearm in [Appellee]'s vehicle, as he is with all vehicles that he stops in this type of situation. His concern for officer safety was the reason that he had [Appellee] exit the vehicle.

Officer Ellis immediately saw the black plastic bag on the floor of [Appellee]'s vehicle. He then felt that bag for the presence of a firearm but did indicate he felt what he described as glass vials in the bag, which he believed to be crack cocaine, as that is the manner that this drug was sold in this area. He then testified he immediately put [Appellee] in handcuffs. No weapon was found on [Appellee] or in the car.

Trial Court Opinion (TCO), 10/12/13, at 1–4.¹

The Commonwealth charged Appellee with possession, possession with intent to deliver (PWID), and conspiracy (to PWID). Appellee filed a motion to suppress the physical evidence (the vials of crack cocaine), alleging the contraband was seized in violation of his Fourth Amendment rights. A suppression hearing was held on June 28, 2012, where Officer Ellis and Officer Warren were the only testifying witnesses. At the conclusion of that hearing, the trial court granted Appellee's motion to suppress. Although it determined that police had probable cause to stop Appellee's vehicle, the trial court nevertheless ruled that Officer Ellis' warrantless search which uncovered the crack vials was conducted in the absence of exigent circumstances.

The Commonwealth filed a motion for reconsideration of the order granting suppression, arguing that Appellee failed to establish a legitimate expectation of privacy in the searched vehicle and, in any event, that the seizure fit within a recognized exception to the warrant requirement. On July 13, 2012, the trial court held a reconsideration hearing to consider the Commonwealth's motion. The reconsideration motion was denied, upholding the previous order granting suppression.

The Commonwealth filed a timely notice of appeal and a timely Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The Commonwealth now presents the following question for our review:

Did the lower court err in suppressing a bag of crack cocaine a police officer saw in plain view in the car defendant was driving, where defendant failed to establish a legitimate expectation of privacy in the car and the seizure was, in any event, proper?

Commonwealth's Brief at 4.

The nature of the Commonwealth's claim is, in fact, three distinct alternative claims; however, all of the three claims assert the trial court abused its discretion in granting Appellee's suppression motion. The Commonwealth first alleges that Appellee failed to establish a legitimate privacy interest in the vehicle he was driving and, therefore, Appellee could not contest the warrantless search that exposed the contraband. Alternatively, the Commonwealth alleges the applicability of one or two exceptions to the warrant requirement: 1) the plain view exception; and/or 2) the limited automobile exception. We will address these claims ad seriatim.

The applicable standard of review when the Commonwealth appeals from a suppression order is as follow:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Baker, 946 A.2d 691, 693 (Pa.Super.2008) (quoting Commonwealth v. Barber, 889 A.2d 587, 592 (Pa.Super.2005)).

Expectation of Privacy

Whether a defendant has a legitimate expectation of privacy in the property searched is a component of the merits analysis of the suppression motion. Commonwealth v. Millner, 585 Pa. 237, 888 A.2d 680, 691 (2005); see also Commonwealth v. Enimpah, 62 A.3d 1028, 1032–33 (Pa.Super.2013) (distinguishing the Commonwealth's burden of production at the merits phase of a suppression hearing with the defendant's burden of persuasion regarding his privacy interest in the property searched). “The determination whether defendant has met this burden is made upon evaluation of the evidence presented by the Commonwealth and the defendant.” Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.Super.2009).

Whether a defendant has a legitimate expectation of privacy in an area subjected to a search by police is a composite test of the defendant's subjective expectation and the objective reasonableness of that expectation:

An expectation of privacy is present when the individual, by his conduct, exhibitsan actual (subjective) expectation of privacy and that the subjective expectation is one that society is prepared to recognize as reasonable. 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.

Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115, 1118 (1993) (internal citations and quotation marks omitted).

The Commonwealth argues that Appellee

failed to satisfy his burden of...