J-A09007-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CHARLES BUSSEY,
Appellee No. 1039 EDA 2013
Appeal from the Order March 11, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002095-2012
BEFORE: BOWES, OTT, and JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 16, 2014
The Commonwealth appeals from the order entered March 11, 2013,
Pennsylvania State Trooper Tyron Bradford was on patrol in a marked
vehicle in Philadelphia on January 26, 2012. At approximately 4:45 p.m.,
Trooper Bradford observed a car run a red light. Accordingly, the trooper
effectuated a traffic stop. While radioing in the traffic stop, Trooper Bradford
noticed that the four occupants inside the vehicle were moving. Specifically,
he witnessed two individuals in the front seat make furtive movements
toward the glove compartment and the two backseat passengers repeatedly
turned and looked in his direction. Trooper Bradford remained in his vehicle
for approximately five minutes before approaching. The trooper walked to
the passenger side of the vehicle. After a window was lowered,
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Trooper Bradford detected the smell of marijuana. Trooper Bradford then
returned to his car and called for backup. Once an additional officer arrived
at the scene, Trooper Bradford removed the occupants of the car one at a
time. After removing each individual, Trooper Bradford conducted a brief
frisk and handcuffed each individual before placing them in the rear of his
patrol car. One of the individuals admitted to having a small amount of
marijuana in his jacket.
Trooper Bradford then returned to the stopped vehicle. He lifted up
the rear seat of the car and located a .22 caliber handgun. As a result of
this dis
Appellee was the rear seat passenger. The gun was retrieved from the area
under his seat.
Appellee filed a motion to suppress the weapon. Accordingly, the
court conducted a suppression hearing. Appellee did not testify, and the
only testimony introduced was that of Trooper Bradford. In support of his
suppression motion, Appellee argued that his movement in the car
amounted to nothing but mere nervousness, and that the trooper did not
have reasonable suspicion to conduct a search. In addition, Appellee
him, placing him in handcuffs and then putting him in the rear of the
l arrest. The Commonwealth
rejoined that Trooper Bradford had reasonable suspicion to search the car
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based on the furtive movements of the individuals, the smell of marijuana,
that the trooper did not arrest Appellee and that the individuals were going
to be allowed to return to the car. The Commonwealth did not allege that
Appellee did not have a reasonable expectation of privacy. The suppression
court concluded immediately following the hearing that the vehicle search
was illegal because no exigent circumstances existed.
The Commonwealth sought reconsideration and, for the first time,
argued that Appellee failed to establish a reasonable expectation of privacy
in the area searched. The court declined to reconsider the matter. This
timely appeal ensued. The suppression court directed the Commonwealth to
file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. The Commonwealth complied, and the court authored its opinion.
Therein, it found that Appellee established a reasonable expectation of
privacy on the basis that he had automatic standing to challenge the search.
In addition, although initially finding that probable cause existed to search
the car, but that no exigent circumstances existed, the suppression court
ultimately opined that the trooper lacked both probable cause or exigent
circumstances to conduct the search. The court added that a Terry frisk of
the vehicle pursuant to Michigan v. Long, 463 U.S. 1032 (1983), and
Commonwealth v. Morris, 644 A.2d 721 (Pa. 1994), was unwarranted
because Trooper Bradford did not possess specific and articulable facts that
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safety.
handgun found pursuant to a Terry frisk of a lawfully stopped car in which
defendant failed to prove any reasonab
We evaluate the denial of a suppression motion under well-established
principles. We consider the evidence of the defendant, as the prevailing
party below, and any evidence of the prosecution that is uncontradicted
when examined in the context of the record. Commonwealth v. Peterson,
17 A.3d 935, 937 (Pa.Super. 2012).1 This Court is bound by the factual
findings of the suppression court where the record supports those findings
and may only reverse when the legal conclusions drawn from those facts are
in error. Id. Importantly, we are not bound by the legal conclusions of the
suppression court. In re T.B., 11 A.3d 500, 505 (Pa.Super. 2010).
The Commonwealth argues that because Appellee, a back-seat
passenger, did not demonstrate a reasonable expectation of privacy in the
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1
Recently, in In re L.J., 79 A.3d 1073 (Pa. 2013), our Supreme Court
applied prospectively a new rule regarding the scope of review in
of review in suppression matters includes the suppression hearing record,
but not evidence elicited at trial. As this case commenced prior to L.J. and
no trial occurred, it has no bearing on the instant case.
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vehicle, the suppression court erred.2 It continues that the suppression
court conflated the doctrine of standing with App
that he had a reasonable expectation of privacy. The Commonwealth
correctly argues that the two concepts are distinct, and we agree that the
suppression court clearly failed to appreciate the difference between
automatic standing and a reasonable expectation of privacy.
The suppression court utilized the automatic standing factors to decide
whether Appellee had an expectation of privacy. That test provides that a
defendant has automatic standing if he is present on the premises at the
time of the search and seizure, has a possessory interest in the item seized,
is charged with a possessory offense relative to the seized contraband, or
has a proprietary or possessory interest in the searched area.
Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998). According to
____________________________________________
2
We are cognizant that the Commonwealth failed to articulate this position
an expectation of privacy after the suppression court granted his motion.
Ordinarily, issues that are not raised at the first opportunity are waived.
Nonetheless, in Commonwealth v. Santiago, 822 A.2d 716 (Pa.Super.
the case doctrine in resp
suppression hearing did not waive the issue where it presented the
argument in a motion to reconsider. Further, in Commonwealth v.
Hawkins, 718 A.2d 265, 268 n.3 (Pa. 1998), our Supreme Court stated,
e, however, our cases place the burden squarely upon the defendant
seeking suppression to establish a legitimate expectation of privacy as an
Commonwealth did not waive this position in neglecting to raise the issue at
the suppression hearing.
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the suppression court, Appellee met three of the four standing factors and
therefore had an expectation of privacy in the area searched. This was
error. Pennsylvania constitutional jurisprudence requires a separate analysis
of standing and an expectation of privacy. See Hawkins, supra. In this
expectation of privacy is a component of the merits analysis of the
Commonwealth v. Millner, 888 A.2d 680, 691 (Pa.
2005).
Admittedly, the interplay between standing and the test for a
reasonable expectation of privacy, along with what party bears the ultimate
burden of proof at a suppression hearing, has caused confusion. Millner,
supra at 690; see also Commonwealth v. Enimpah, 62 A.3d 1028
(Pa.Super. 2013), allowance of appeal granted, 78 A.3d 613 (Pa. 2013).
fact that our criminal procedural rules place the burden of proof, which the
Pennsylvania High Court has defined as including a burden of production and
a burden of persuasion, on the Commonwealth. Pa.R.Crim.P. 581(H).
he demonstrates that the challenged police conduct violated his own,
Millner, supra at 692.
The Pennsylvania Supreme Court and this Court, in turn, have thus
expressed that a defendant bears a threshold evidentiary burden of
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demonstrating a reasonable expectation of privacy. Millner, supra at 691
Appellant's automatic standing does not divest him of the evidentiary
responsibility to show that . . . . the police conduct at issue violated a
reasonable and legitimate expectat Hawkins, supra at 267;
Commonwealth v. Carlton, 701 A.2d 143, 145-146 (Pa. 1997);
Commonwealth v. Gordon, 683 A.2d 253, 256 (Pa. 1996);
Commonwealth v. Peterson, 636 A.2d 615, 618 (Pa. 1993);
Commonwealth v. Brown, 64 A.3d 1101 (Pa.Super. 2013);
Commonwealth v. Caban, 60 A.3d 120 (Pa.Super. 2012);
Commonwealth v. Maldonado, 14 A.3d 907 (Pa.Super. 2011);
Commonwealth v. Powell, 994 A.2d 1096 (Pa.Super. 2010);
Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc);
Commonwealth v. Boulware, 876 A.2d 440, 442-443 (Pa.Super. 2005);
Commonwealth v. Black, 758 A.2d 1253, 1256 (Pa.Super. 2000);
Commonwealth v. Strickland, 707 A.2d 531, 534 (Pa.Super. 1998).
Additional confusion surrounding the distinct concepts of automatic
standing and whether a defendant possesses a reasonable expectation of
privacy is the differing constitutional jurisprudence relative to the Fourth
Under federal law, there is no automatic standing. See Rakas v. Illinois,
439 U.S. 128 (1978); United States v. Salvucci, 448 U.S. 83 (1980).
Rather, pursuant to federal constitutional jurisprudence, the preliminary
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inquiry is whether the defendant has a reasonable expectation of privacy in
the area searched or the item seized. In Commonwealth v. Sell, 470 A.2d
457 (Pa. 1983), the Pennsylvania Supreme Court declined to jettison the
automatic standing rule in Pennsylvania.
In Sell, police executed a search warrant at an amusement arcade,
seeking stolen firearms. Police found guns located on open shelves on a
counter in the arcade where all employees had access. Sell was a partner in
the business, but was not present when police conducted their search. He
sought to suppress the firearms, alleging that the search warrant was
defective. The suppression court determined that Sell had automatic
standing, and found the warrant defective. This Court reversed, relying
principally on Salvucci, supra, and Rakas, supra, holding that automatic
standing was no longer a viable concept. On appeal, the Pennsylvania
Supreme Court disagreed.
The High Court began by tracing the development of Fourth
Amendment standing jurisprudence, concluding that the automatic standing
the context of capacity to
Sell, supra at 462.
The Pennsylvania Supreme Court continued by discussing the legitimate
expectation of privacy test first suggest by Justice Harlan in Katz v. United
States, 389 U.S. 347 (1967), and subsequently adopted by a majority of
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the United States Supreme Court. See Smith v. Maryland, 442 US. 735
(1979).
It then engaged in a discussion and criticism of Rakas, supra. The
Rakas decision had eliminated a part of the automatic standing rule for
Fourth Amendment purposes. Therein, the defendants were passengers in a
vehicle owned by the driver. Police conducted a traffic stop after being
notified of a robbery and receiving a description of the getaway car. The
defendants, as well as the driver, and two female companions were directed
to exit the vehicle. Two police officers then searched the interior of the car.
They found a box of rifle shells in a locked glove compartment and a sawed-
off rifle underneath the front passenger seat. The defendants filed a
suppression motion. The prosecution asserted that the defendants did not
have standing because they did not own the vehicle, or assert an ownership
interest in the rifle or shells. The suppression court agreed.
The majority in Rakas concluded that automatic standing based on a
party being legally on the premises, i.e., in the car, at the time of the
search, was no longer a valid paradigm. Instead, it held that a defendant
must establish a legitimate expectation of privacy. It then ruled that the
defendant passengers did not have a legitimate expectation of privacy in the
glove box or under the seat. Justice White in dissent recognized that the
decision in Rakas effectively prohibited a passenger without a possessory or
ownership interest in a car from contesting a vehicle search under the Fourth
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Amendment. In his view, while the interior of cars are accorded less
Rakas, supra at 157 (White, J., dissenting).
According to Justice White, the cornerstone of Fourth Amendment analysis
area was
one in which there was a reasonable expectation of freedom from
Id. at 162 (quoting Mancusi v. DeForte, 393
U.S. 364 (1968)).
The Sell Rakas, joined
by three other Justices,
Sell, supra at
465. Ultimately, the Sell Court opined,
We decline to undermine the clear language of Article I,
section 8 by making the Fourth Amendment's amorphous
guarantee against unreasonable searches and seizures. We do so
not only because we find the United States Supreme Court's
old
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
expe
critical element of unreasonable governmental intrusion.
Article I, section 8 of the Pennsylvania Constitution, as
consistently interpreted by this Court, mandates greater
recognition of the need for protection from illegal governmental
conduct offensive to the right of privacy.
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Id
as private, even if they are accessible to others, they are constitutionally
protected. Stated differently, a person must maintain the privacy of his
possessions
Id. at 468-469 (quoting
Commonwealth v. White, 327 A.2d 40, 42 (Pa. 1974)) (italic in original).
Despite criticism of the United States Supreme Court decisions
that eliminated the federal automatic standing rule, the Pennsylvania
Supreme Court has since adopted a form of the federal reasonable
expectation of privacy test. Millner, supra at 691; Hawkins, supra;
Peterson, 636 A.2d 615; see also Commonwealth v. Rekasie, 778 A.2d
624, 629 (Pa. 2001). Further, this Court has stated that our Supreme Court,
respect
in a searched vehicle with federal jurisprudence such [as] Rakas, supra,
Salvucci, supra; and Rawlings [v. Kentucky
Powell, supra at 1107.
gitimate expectation of privacy is present when
there is both a subjective privacy expectation coupled with objective
Hawkins, supra at 267 n.1. The method of proving this
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evidence can establish that a defendant has a reasonable expectation of
privacy. See Burton, supra.
Our Supreme Court has concluded that a defendant, standing outside
establish an expectation of privacy in that automobile. Millner, supra. In
yet another case, this Court has determined that a driver of a car registered
to his girlfriend did not prove a reasonable expectation of privacy in his
nor his girlfriend testified that he had
permission to use the car. Maldonado, supra.
Similarly, we have held that a driver of a rental car did not
demonstrate an expectation of privacy in that vehicle where he was not the
lessee, the named lessee was not in the automobile, and no evidence
n to the lessee. Burton,
supra. In an additional case, we held that a driver of a truck did not meet
his burden where he did not own the truck or introduce evidence showing
that the owner granted him authority to utilize the vehicle. Brown, supra.3
In Commonwealth v. Cruz, 21 A.3d 1247 (Pa.Super. 2011), this Court
concluded that a defendant could not succeed on a suppression motion
____________________________________________
3
Judge Strassburger, the author of Commonwealth v. Brown, 64 A.3d
1101 (Pa.Super. 2013), speaking solely for himself, asserted that a driver in
a vehicle should be presumed to have an expectation of privacy in the
vehicle. He did not extend his position to non-possessory interested
passengers, though that question was not before the Court.
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where he did not present any evidence that he owned the vehicle, that it
was registered in his name, or that he was using it with the permission of
the registered owner. Id. at 1251.
In Commonwealth v. Viall, 890 A.2d 419 (Pa.Super. 2005), we held
that a passenger did not have an expectation of privacy in a common area of
the backseat. Therein, police pulled over a vehicle for a burned-out taillight.
Inside the vehicle were the driver, his wife, and three additional passengers
in the back seat. The driver had an expired license and only one passenger
consent
to search the vehicle from the driver. The driver consented, and police
found cocaine in a common area in the backseat.
subjective expectation of privacy in locations of common access to all
Id
[a]ppellant to have expected to maintain a privacy interest in objects which
were placed inside the car and not shielded from the view of the many
others occupying t Id.
We have also held that a passenger did not have a reasonable
husband. Powell, supra. In Powell, we considered a Commonwealth
appeal where the suppression court had suppressed drugs found in the trunk
of a car with a New York license plate in which the two appellees were riding.
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State police had stopped the car due to large objects hanging from the
rearview mirror. The Powell Court affirmed the suppression order as to the
driver of the car, whose wife was the registered owner of the vehicle, finding
that he did not give consent to search the trunk. However, with respect to
the passenger in the vehicle, it reversed, finding that the passenger did not
establish a reasonable expectation of privacy in the trunk. In doing so, the
court in Powell relied on Millner, supra, and Rakas, supra.
In contrast, this Court has determined that a passenger in a vehicle,
which the passenger borrowed from his father, did have a reasonable
distinction between automobile drivers and passengers plays any important
role in determining whether a reasonable expectation of privacy exists in a
Caban, supra at 130.4
In Commonwealth v. Newman, 84 A.3d 1072 (Pa.Super. 2014), we
a reasonable expectation of privacy where he was the driver and sole
occupant of the vehicle, and no evidence indicated that he did not have an
expectation of privacy in the car. The Newman Court distinguished
____________________________________________
4
The panel in Commonwealth v. Caban, 60 A.3d 120 (Pa.Super. 2012),
determined that the defendant established an expectation of privacy based
on evidence introduced at trial. Such an analysis would no longer be
permitted in cases arising after In re L.J., 79 A.3d 1073 (Pa. 2013), which
d at the
suppression hearing unless the evidence was unavailable at that time.
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Burton, supra and Cruz, supra
e cast serious doubt that the defendants in those cases had a
legi Id.
at 1078.
Appellee maintains that under Article I, § 8, he had a reasonable
expectation of privacy in the gun placed beneath his seat and away from the
view of others. He highlights that in certain areas Article I, § 8 provides
broader protections than does the Fourth Amendment because of this
sions are
does have an expectation of privacy in the portion of the car under his seat
distinguishes this case from Viall, supra, and Powell, supra.
With respect to Viall, Appellee posits that the Court held that the
passenger did not have a privacy interest in the entire passenger
compartment of the car or where the object was not shielded from the view
of the other occupants. Instantly, he submits that he is not seeking a
privacy interest in the entire car and that he did shield the object from the
view of others. He adds that the area under his seat is distinct from the
trunk, which was at issue in Powell. Accordingly, he contends that he had a
subjective expectation of privacy.
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In addition, Appellee argues that his expectation of privacy is
equate an intrusion into his personal space, including the seat that he is
sitting upon, as a search and invasion of
He further suggests that failing to recognize an expectation of privacy in this
matter results in major inconsistencies in the law. First, he argues that an
illogical distinction between illegal stops and illegal searches is created. In
this respect, he asserts that if a car is illegally stopped and seized, then
items recovered from the vehicle may be suppressed. See Brendlin v.
California, 551 U.S. 249 (2007). However, if the car is illegally searched, a
non-possessory interested passenger, under Fourth Amendment law, has no
expectation of privacy and cannot succeed on a suppression motion.
law between motions to suppress raised by passen
interest in a car will not be able to succeed on a suppression motion while a
driver will. See also Powell, supra. Thus, a passenger can be successfully
prosecuted but a driver can escape prosecution based on the driver
possessing an expectation of privacy in the vehicle. In his view, this would
allow police to illegally search vehicles with more than one occupant knowing
that not all of the occupants have an expectation of privacy.
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-owner passengers
who are illegally stopped may succeed on a suppression motion where items
are recovered from a vehicle. See Brendlin, supra; Commonwealth v.
Houston, 689 A.2d 935 (Pa.Super. 1997). In contrast, a blanket holding
expectation of privacy in a car by a non-possessory interested occupant
would preclude suppression where a car is lawfully stopped, but searched
without either reasonable suspicion or probable cause. See Rakas, supra.
However, we do not read Pennsylvania case law as absolutely
prohibiting a finding of an expectation of privacy by a non-possessory
interested passenger. Millner, supra at 694 (Cappy, C.J., concurring,
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
cf. Houston, supra; but see Powell, supra.
Pointedly, the issue in this case is more narrow. That is, did Appellee or the
Commonwealth actually provide evidence that, based on the totality of the
circumstances, supports the legal conclusion that Appellee possessed a
reasonable expectation of privacy in the car?
Since Appellee presented no evidence nor argued that he had an
expectation of privacy at the suppression hearing, we must look to the
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evidence demonstrate that Appellee had both a subjective privacy
expectation in the area underneath the seat he was occupying where others
were seated in the backseat and that his expectation was objectively
reasonable?
Appellee has not established a possessory interest in the vehicle nor
did he claim to be the owner of the weapon, i.e., the effect in question.5
Further, no evidence was introduced to show that the driver owned the car
or had permission to use that vehicle, which could have inferentially
decisions, legitimate presence in a car is insufficient to establish a subjective
expectation of privacy in places where others could have access to the item
at the same time. See Viall, supra; but compare, Sell, supra at 468
are accessible to others, th
that the gun was hidden does not on its face warrant the conclusion that an
objective expectation of privacy existed. Millner, supra at 692 (
defendant's attempt to secrete evidence of a crime is not synonymous with a
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5
If Appellee testified to owning the gun, his statement could not be used
against him at trial for substantive purposes. See United States v.
Salvucci, 448 U.S. 83 (1980). This calls into question portions of this
Commonwealth v. Enimpah, 62 A.3d 1028 (Pa.Super.
2013), allowance of appeal granted, 78 A.3d 613 (Pa. 2013).
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legally cognizable expectation of privacy. A mere hope for secrecy is not a
expectation of privacy underneath the seat he occupied or in his effects
placed in th
that he had both a subjective expectation of privacy and that his expectation
was objectively reasonable. This, however, does not end our inquiry. A
suppression court may be affirmed on any basis as long as there is support
in the record. In re T.P., 78 A.3d 1166, 1170 (Pa.Super. 2013).
Appellee has alternatively argued, and asserted below, that he was
subjected to an illegal custodial arrest prior to the search of the car. Since
his arrest was illegal, he maintains that the gun found as a result of the
search of the car must be suppressed as fruit of the tainted arrest. Appellee
contends that, based on Commonwealth v. Lovette, 450 A.2d 975 (Pa.
1982), a custodial arrest occurs where police i
the person into custody and subjects him to the actual control and will of the
-8 (quoting Lovette, supra
at 978). Viewing the totality of the circumstances, Appellee recites that he
was ordered out of the car, frisked, handcuffed, and then placed in the back
the act of handcuffing him and placing him into the police car resulted in a
custodial detention because no reasonable person would not believe he was
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at 8-9 (citing Wong Sun v. U.S., 371 U.S. 471 (1963)).
In determining whether a custodial arrest has occurred, our standard
is an objective one, with consideration given to the reasonable impression
conveyed to the person being detained rather than the subjective view of
the police or the detainee. Commonwealth v. Edmiston, 634 A.2d 1078,
1085-
totality of the circumstances, the conditions and/or duration of the detention
become so coercive as to become the functional equivalen
Commonwealth v. Turner, 772 A.2d 970, 974 (Pa.Super. 2001) (en banc).
indicates an intention to take the person into custody and that subjects the
person to the wil
Commonwealth v. Butler, 729 A.2d 1134 (Pa.Super. 1999) (quoting
Commonwealth v. Rodriguez, 614 A.2d 1378, 1384 (Pa. 1992)); see
also Lovette, supra at 978; Commonwealth v. Douglass, 539 A.2d 412
(Pa.Super. 1988).6 Of course, police need not use actual force or provide a
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6
Pennsylvania courts have also utilized a similar but not identical standard
for
act that indicates an intention to take that person into custody or subjects
him to the actual control and will of the person making the arrest.
Commonwealth v. Turner, 772 A.2d 970, 974 (Pa.Super. 2001) (en banc)
(emphasis added) (quoting Commonwealth v. Gwynn, 723 A.2d 143, 148
(Pa. 1998) (OAJC)); Commonwealth v. Guillespie, 745 A.2d 654, 660
(Footnote Continued Next Page)
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formal statement of arrest for the detention to be considered an arrest.
Douglass, supra at 419 (citing Commonwealth v. Daniels, 317 A.3d 237
(Pa. 1974)).7
Pennsylvania courts have consistently noted that the act of placing a
person in handcuffs is not per se sufficient to constitute an arrest. See
Butler, supra at 1138 n.6; Commonwealth v. Carter, 643 A.2d 61, 67
n.2 (Pa. 1994). Concomitantly, the placing of an individual into the backseat
of a police car does not automatically result in an arrest having taken place.
Commonwealth v. Revere, 888 A.2d 694 (Pa. 2005). In Revere, our
Supreme Court concluded that placing a defendant and his companion into
the backseat of an unmarked police cruiser without handcuffing them or
frisking them, and transporting them briefly, did not constitute a custodial
detention. In contrast, in Commonwealth v. Sepulveda, 855 A.2d 783
(Pa. 2004) (OAJC), a majority of judges agreed that handcuffing the
defendant, placing him in the back of a patrol car, and locking the door
_______________________
(Footnote Continued)
(Pa.Super. 2000). This Court has previously noted the distinction between
the two definitions. Commonwealth v. Hannon, 837 A.2d 551 (Pa.Super.
2003). As Turner relies on Gwynn and Gwynn cited to Commonwealth
v. Lovette, 450 A.2d 975 (Pa. 1982), we have utilized the Lovette
standard, which uses the conjunctive test.
7
We are aware that the decision in Commonwealth v. Douglass, 539
A.2d 412 (Pa.Super. 1988), was decided by a three judge panel with two
judges concurring in result. Therefore, it is not precedential standing alone.
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constituted a custodial detention.8 The Sepulveda Court dismissed its
earlier non-precedential decision of Commonwealth v. Gwynn, 723 A.2d
143 (Pa. 1999) (OAJC), as not controlling on this issue.
The Gwynn plurality ruled that a defendant who was initially placed
without handcuffs into the rear of a police vehicle, and only handcuffed after
being observed attempting to escape, was not arrested. The Sepulveda
Court set forth that Gwynn was both factually distinguishable and to the
any purpose, this Court has clearly taken a contrary position in this opinion
Sepulveda, supra at 791 n.12.
In our en banc Turner decision, this Court determined that the placing
of an intoxicated individual, without handcuffs, into the backseat of a police
car and closing
Turner, supra at 974. However, in Guillespie, supra, we ruled that
putting an individual in handcuffs after conducting a pat-down frisk was not
an arrest, where police told the defendant that he was being handcuffed
because he matched the description of a robbery suspect and they were
waiting for the victim to arrive. The victim did not identify the defendant,
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8
In Sepulveda, four justices authored concurring opinions, with one justice
dissenting. However, three of the concurring justices agreed with the lead
author that the defendant was in custody.
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and the Guillespie Court expressly noted that the record did not establish
that the defendant was placed in a police car. Id. at 661. This Court in
Butler, supra, found an arrest occurred where police ordered the defendant
to put his hands up and exit a storm door of a residence, frisked him, and
then handcuffed him and put him into the back seat of an unmarked police
car.
Instantly, based on the totality of circumstances, we agree that an
objectively reasonable person would believe that he was arrested where
police took the individual and three of his companions out of the car, frisked
each of them, and then handcuffed each person, before putting them into
the backseat of a police car. See Sepulveda, supra; Butler, supra. Since
Appellee was in custodial detention, police were required to demonstrate
probable cause. Probable cause exists where the facts and circumstances
within the knowledge of the officer are based upon reasonably trustworthy
information and are sufficient to warrant a man of reasonable caution in the
Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa.Super. 2013). Here,
The dissent opines that it is immaterial whether Appellant was
unlawfully arrested because he did not establish an expectation of privacy in
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the vehicle. It reads Millner, supra, as holding that an unlawful arrest will
not warrant suppression where a defendant does not establish an
expectation of privacy in the area searched. We disagree that Millner is
controlling on the precise question here, as the facts are wholly dissimilar.
authorize police to illegally arrest multiple persons and search a vehicle
following a traffic stop because at least one individual would be unable to
show an expectation of privacy in the vehicle.
Unlike Millner, the search of the car herein flowed from the unlawful
arrest and was incident to that illegal detention. In Millner, the defendant
was not a passenger in the vehicle nor ever observed traveling inside the
car. The case did not involve a traffic stop. Rather, police witnessed the
defendant therein, a pedestrian, dispose of a weapon inside the car. Police
then observed the firearm in the car in plain view. Whether the defendant
was illegally arrested was immaterial to the observation of the gun inside the
car. We find this case more analogous to the situation where police
unlawfully stop a vehicle and search the car. In that situation, the fact that
a person does not have an expectation of privacy in the car does not
automatically preclude suppression. See Brendlin, supra. In both the
unlawful stop of a car and the lawful stop but illegal arrest scenario, police
have illegally seized the passengers in the car. The subsequent search is
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J-A09007-14
directly related to the illegal seizure in both instances. Accordingly, we find
that the suppression court did not err in suppressing the evidence.
Order affirmed.
Judge Ott joins the Memorandum.
Judge Jenkins files a Dissenting Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2014
- 25 -
Com. v. Bussey, C.
Combined Opinion