Commonwealth v. Moore

310 A.3d 802

COMMONWEALTH of Pennsylvania, Appellant

v.Jonathan Omar MOORE

No. 2510 EDA 2022

Superior Court of Pennsylvania.

Argued December 12, 2023

Filed February 13, 2024

Appeal from the Order Entered August 31, 2022, In the Court of Common Pleas of Delaware County, Criminal Division, at No(s): CP-23-CR-0001996-2021, Anthony D. Scanlon, J.

Kelly B. Wear, Assistant District Attorney, Media, for Commonwealth, appellant.

Coley O. Reynolds, Philadelphia, for appellee.

BEFORE: OLSON, J., STABILE, J., and COLINS, J.^*

OPINION BY OLSON, J.:

The Commonwealth of Pennsylvania appeals from the order entered on August 31, 2022, which granted the suppression motion filed by the defendant, Jonathan Omar Moore ("the Defendant"). We vacate and remand.

On May 13, 2020, the Defendant was arrested and charged with a number of crimes, including possessing a controlled substance with the intent to deliver ("PWID") and criminal conspiracy.¹ The Defendant then filed a pre-trial motion, where he sought to suppress all evidence against him. See The Defendant’s Pre-Trial Motion, 12/17/21, at 1-4.

On July 22, 2022, the trial court held a suppression hearing. The trial court ably summarized the evidence it heard during the hearing:

On May 13, 2020 at approximately 8:30 a.m. Trooper James Nolan of the Pennsylvania State Police was in his fully marked patrol vehicle observing southbound traffic on Interstate 95 in Tinicum Township, Pennsylvania. At the time and place in question, the trooper observed a black Infinity G35 with heavily tinted windows bearing a Virginia license plate and began to follow same. The trooper clocked the vehicle in question at 70 m.p.h. for [0.3] miles with his calibrated police vehicle which was also equipped with a motor vehicle recorder [("MVR")]. The speed limit in this area on Interstate 95 is 55 [miles per hour.]

The trooper testified that although through training and experience it was his belief that a lot of people from out of state come to Philadelphia to obtain large quantities of drugs and take them back to their respective cities he did not know whether this vehicle had actually stopped in Philadelphia or not. After the vehicle in question was stopped Trooper Nolan exited his patrol car and approached [the Defendant’s] vehicle from the passenger side during which time he observed "[a] lot of movement within the vehicle. It looked like people were moving around of [sic] the vehicle and the car was bouncing back and forth as if they switched seats." The [trooper] testi-tied that such movement was unusual in his experience.

During the suppression hearing, the tape of the [MVR] in Trooper Nolan’s vehicle was placed into evidence without objection. All counsel agreed that the court could review the MVR in its entirety at a later date in chambers. The court did, in fact, conduct such review in chambers.

The review revealed that as the Trooper approached [the Defendant’s] vehicle after it [had] been pulled over there was some perceptible movement [in] the vehicle consistent with a person or persons moving around within the interior of said vehicle.

When asked about the movement inside the car, [the Defendant’s co-defendant, Cordell Livingston ("Mr. Livingston"), who was then in the passenger’s seat,] told Trooper Nolan that [he and the Defendant] had switched seats. Upon his initial approach the passenger window was cracked about [four] inches and the trooper immediately smelled a very large odor of marijuana and air fresheners such as cologne along with little trees hanging on the floorboard which Trooper Nolan felt was indicative of a criminal element within the vehicle.

[The Defendant and Mr. Livingston] produced their driver’s licenses upon request. [Mr. Livingston’s] license was suspended, however, [the Defendant’s] license was valid. The vehicle’s registration came back to Sharon Horton. Neither occupant provided any information about Ms. Horton and the vehicle had not been reported stolen. The trooper [did not] recall ever asking the occupants what their relationship may have been to the owner [of the vehicle]. When asked why that issue was not raised, the trooper stated that he made the decision to conduct a probable cause search of the vehicle as soon as he smelled the marijuana.

Although Trooper Nolan told the court he smelled the odor of burnt marijuana he had earlier told defense counsel that he could not recall if the smell was from fresh marijuana or not. Trooper Nolan was told that the occupants had changed seats in the vehicle, although there is no indication in the record that the trooper interrogated the passengers as to the reason for the switch or that either occupant volunteered such information.

Neither of the occupants of the vehicle consented to a search of the car and Trooper Nolan conceded that there was nothing precluding him or his fellow officer from obtaining a search warrant for the vehicle in question.

When asked by the [trial court] why the ownership issue was not pursued, Trooper Nolan [testified]:

I think at that point, again, pre-Alexander,² I knew that I was going to search the vehicle anyway … I kind of was just trying to get straight to the point.

[As Trooper Nolan testified: "in the rear seat of the vehicle, I noticed the armrest was down, which then has a little lever door that you can gain entry to the trunk. I opened that [little lever] door, and there were two pounds of marijuana vacuum-sealed sitting right there."]

Trial Court Opinion, 1/5/23, at 3-5 (citations omitted).

On August 31, 2022, the trial court granted the Defendant’s motion and suppressed all evidence against the Defendant. See Trial Court Order, 8/31/22, at 1-6. Regarding the Commonwealth’s claim that the Defendant failed to demonstrate an expectation of privacy in the vehicle, the trial court declared: "[i]n the instant matter the Commonwealth failed to establish [the Defendant’s] lack of privacy interest. Accordingly, the burden never shifted to the [Defendant] and the Commonwealth’s argument must fail." Trial Court Statement of Facts, 8/31/22, at 5.

The Commonwealth filed a timely notice of appeal and, within its notice, the Commonwealth properly certified that the trial court’s order "will terminate or substantially handicap the prosecution." Commonwealth’s Notice of Appeal, 9/29/22, at 1; see also Pa.R.Crim.P. 811(d). The Commonwealth raises one claim to this Court:

Did the lower court err in granting [the Defendant’s] motion to suppress where: (1) the evidence that [the Defendant] had been driving an out-of-state car registered to someone else was sufficient to meet the Commonwealth’s initial burden of production; and (2) [the Defendant] did not even attempt to establish a reasonable expectation of privacy in the car?

Commonwealth’s Brief at 4.

[1–4] "Once a motion to suppress evidence has been filed, it is the Commonwealth’s burden to prove, by a preponderance of the evidence, that the challenged evidence was not obtained in violation of the defendant’s rights." Commonwealth v. Wallace, 615 Pa. 895, 42 A.3d 1040, 1047–1048 (2012) (en banc); see also Pa. R.Crim.P. 581(H). If the defendant prevails in the underlying proceeding, "[w]e review a trial court’s order suppressing evidence for an abuse of discretion and our scope of review consists of only the evidence from the defendant’s witnesses [during the suppression hearing,] along with the Commonwealth’s evidence that remains uncontroverted." Commonwealth v. Miller, 186 A.3d 448, 450 (Pa. Super. 2018) (quotation marks and citations omitted). "Where the [trial] court’s factual findings are supported by the record, we are bound by these findings and may reverse only if the [trial] court’s legal conclusions are erroneous." Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016) (quotation marks and citations omitted). Relatedly, "[i]t is within the suppression court’s sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006) (quotation marks and citations omitted). However, "we maintain de novo review over the suppression court’s legal conclusions." Commonwealth v. Korn, 139 A.3d 249, 253 (Pa. Super. 2016) (quotation marks and citations omitted).

[5–7] "Generally, to have standing to pursue a suppression motion under Pa. R.Crim.P. 581, the defendant’s own constitutional rights must have been infringed." Commonwealth v. Enimpah, 630 Pa. 357, 106 A.3d 695, 698 (2014). "However, it is well settled that a defendant charged with a possessory offense in this Commonwealth has ‘automatic standing’ because the charge itself alleges an interest sufficient to support a claim under Article I, § 8." Id. (brackets and some quotation marks and citations omitted). "This rule entitles a defendant to a review of the merits of his suppression motion without a preliminary showing of ownership or possession in the premises or items seized." Id. [8, 9] In order to prevail on a suppression motion, however, "a defendant must show that he had a privacy interest in the place invaded or thing seized that society is prepared to recognize as reasonable." Id. at 699. "The expectation of privacy is an inquiry into the validity of the search or seizure itself; if the defendant has no protected privacy interest, neither the Fourth Amendment nor Article I, § 8 is implicated." Id.

[10–13] Although "the defendant bears the burden of persuasion with respect to his privacy interest," the Commonwealth bears the initial burden of production "to present evidence that the defendant’s constitutional rights were not infringed." Id. at 701. Thus, in cases where the Commonwealth contests the defendant’s expectation of privacy in an object or an area, the Commonwealth bears the initial burden of coming forward with sufficient evidence "show[ing that] the defendant lacked such a privacy interest." Id. If the Commonwealth satisfies this initial burden, "it need do no more, absent...