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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANDRE YANICK AINA
Appellant No. 417 MDA 2016
Appeal from the Judgment of Sentence December 17, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000688-2015
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED DECEMBER 09, 2016
Appellant, Andre Yanick Aina, appeals from the judgment of sentence
entered December 17, 2015, in the Court of Common Pleas of Centre
County. Aina challenges the denial of his motion to suppress items recovered
in a vehicle search and a search incident to arrest following a traffic stop.
After careful review, we affirm.
The relevant facts and procedural history are as follows. On April 8,
2015, following a traffic stop, Aina was charged through the filing of a
criminal complaint with persons not to possess, use, manufacture, control,
sell, or transfer firearms,1 firearms not to be carried without a license,2
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 6105(A)(1).
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possession of a small amount of marijuana,3 possession of drug
paraphernalia,4 prohibited offensive weapon,5 restrictions on use of limited
access highways,6 and exceeding maximum speed limits.7 Aina moved to
suppress evidence gained from his vehicle and his person during the traffic
stop. The court held a suppression hearing.
At the hearing, the Commonwealth presented the testimony of
Pennsylvania State Police Trooper Luke Straniere. At approximately 1:35
p.m. on April 8, 2015, Trooper Straniere was patrolling Interstate 80 when
he observed a car westbound in the left lane at a high rate of speed. Trooper
Straniere pulled his vehicle within several hundred yards of the car, set his
speedometer to 75 miles per hour, and clocked the vehicle for approximately
half of a mile. The distance between the car and Trooper Straniere’s vehicle
neither increased nor decreased for the duration of the clock. Further,
Trooper Straniere noted that the car failed to yield to the right lane for the
duration of the clock, and for approximately two miles afterwards, despite
_______________________
(Footnote Continued)
2
18 Pa.C.S.A. § 6106(A)(1).
3
35 Pa.C.S.A. § 780-113(A)(31)(I).
4
35 Pa.C.S.A. § 780-113(A)(32).
5
18 Pa.C.S.A. § 908(A).
6
75 Pa.C.S.A. § 3313(D)(1).
7
75 Pa.C.S.A. § 3362(A)(1.1-5)
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multiple opportunities to do so. After a few miles, the car merged into the
right lane, at which point Trooper Straniere activated his lights and siren and
initiated a traffic stop.
Once both vehicles had pulled over onto the right shoulder of the
interstate, Trooper Straniere exited his vehicle and approached the car’s
passenger side window. Trooper Straniere knocked on the window
approximately 8 to 10 times, asking the driver of the white Nissan, later
identified as Aina, to open the window. Aina did not immediately comply with
Trooper Straniere’s request. Rather, he placed his valid California driver’s
license against the window. Trooper Straniere again asked Aina to open the
window, and Aina complied by lowering the window a few inches. Once the
window was opened, Trooper Straniere noticed that the car smelled of
marijuana and that there was “marijuana shake”8 on Aina’s clothing.
Aina informed Trooper Straniere that the car had been leased by his
stepmother, had to be returned in Columbus, Ohio, but that Aina did not
have any documentation relative to the vehicle. Trooper Straniere returned
to his vehicle, requested assistance, and ran Aina’s name through a criminal
background system. Trooper Straniere returned to the car and asked Aina to
step out of the rental vehicle. Aina complied and consented to a pat-down
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8
“The cruddy end bits of a large bag of weed.” Shake, Urban Dictionary,
http://www.urbandictionary.com/define.php?term=shake (last visited
December 1, 2016).
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search for weapons. Trooper Hoy and Corporal Grenci arrived to assist
Trooper Straniere and conducted a search of the white Nissan. The search of
the vehicle produced a rifle, ammunition, a stun gun, $3,000 in U.S.
currency, two knives, and rolling papers. Trooper Straniere testified that he
placed Aina under arrest. A subsequent search of Aina’s person resulted in
the discovery of a small amount of marijuana.
In addition to Trooper Straniere’s testimony, the Commonwealth also
presented the videotape from the traffic stop, and the rental agreement. The
rental agreement indicated that the car had been rented by Tisha Brady. The
contract stated that no one else was permitted to drive the vehicle without
prior written authorization, and that the car was supposed to be returned to
the rental company the day prior to Aina’s traffic stop. Aina did not testify at
the suppression hearing, or present any additional evidence.
On September 18, 2015, the suppression court denied Aina’s motion to
suppress, stating that Aina did not have standing to challenge the search
and seizure because he did not have an “expectation of privacy” in the rental
car. The parties proceeded to a bench trial on November 2, 2015. Following
the presentation of the evidence, the trial court convicted Aina of all charges
except for maximum speed limits.9 This timely appeal followed.
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9
Prior to trial, upon agreement of the parties, the trial court dismissed
Count 1- persons not to possess, use, manufacture, control, sell, or transfer
firearms.
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On appeal, Aina raises the following questions for our review.
I. Whether the trial court erred in failing to suppress all evidence
derived from the illegal traffic stop and subsequent search of the
vehicle.
II. Whether the trial court erred in denying [Aina’s] motion to
suppress evidence obtained as a result of the illegal search of
[Aina’s] person.
Appellant’s Brief, at 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, 42 A.3d 1040, 1047-1048 (Pa. 2012)
(citations omitted).
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When reviewing
the ruling of the suppression court, we must consider only the
evidence of the prosecution and so much of the evidence of the
defense as remains uncontracted when read in the context of the
record as a whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citation
omitted).
“It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given to their testimony.
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The suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003) (citation omitted).
First, Aina argues that the trial court erred in failing to suppress the
evidence obtained from the car he was driving at the time of his traffic stop.
See Appellant’s Brief, at 4. Aina contends that the trial court erred in
determining that he did not have standing to contest the vehicle search
because he did not have a privacy interest in the vehicle at the time of his
traffic stop. See id., at 9-13. We disagree.
Both the Fourth Amendment of the United States
Constitution and Article 1, Section 8 of the Pennsylvania
Constitution guarantee individuals freedom from unreasonable
searches and seizures. The concept of standing in a criminal
search and seizure context empowers a defendant to assert a
constitutional violation and thus seek to exclude or suppress the
government’s evidence pursuant to the exclusionary rules under
the Fourth Amendment of the United States Constitution or
Article 1, Section 8 of the Pennsylvania Constitution.
Commonwealth v. Bostick, 958 A.2d 543, 550-551 (Pa. Super. 2008)
(internal citations and quotation marks omitted). We have generally
recognized that a defendant charged with a possessory offense has
automatic standing to challenge a search. See Commonwealth v. Perea,
791 A.2d 427 (Pa. Super. 2002). However, “[a] defendant moving to
suppress evidence has the preliminary burden of establishing standing and a
legitimate expectation of privacy.” Commonwealth v. Burton, 973 A.2d
428, 435 (Pa. Super. 2009) (en banc).
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An expectation of privacy is present when the individual, by his
conduct, exhibits an 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. Jones, 874 A.2d 108, 117-118 (Pa. Super. 2005)
(internal quotations and citation marks omitted).
We have previously examined the same issue in Commonwealth v.
Maldonado, 14 A.3d 907 (Pa. Super. 2011).
In that case, Maldonado was pulled over while driving a car
owned by his paramour Vasquez. Id. at 911. From a subsequent
search of the vehicle, police recovered drugs and guns and
charged Maldonado with crimes related to his possession of
each. Id. at 909. At the suppression hearing, which Vasquez
attended without testifying, the Commonwealth presented
evidence that the vehicle was owned by Vasquez and that
Maldonado lived with her at the address at which the vehicle was
registered. Id. at 911. However, Maldonado offered no evidence
that he had permission to drive the car on the day in question.
This Court concluded that the suppression court erred in granting
Maldonado’s suppression motion, stating as follows.
The fact that Maldonado and Vasquez might have lived
together and had a romantic relationship does not
foreclose the possibility that Maldonado was driving
Vasquez’s vehicle without her knowledge or permission.
For that reason, we conclude that Maldonado failed to
establish an expectation of privacy in the vehicle he was
driving, which “he did not own, that was not registered to
him, and for which he has not shown authority to
operate.”
Commonwealth v. Brown, 64 A.3d 1101, 1107 (Pa. Super. 2013) (quoting
Maldonado, 14 A.3d at 911) (additional citation omitted).
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At the suppression hearing, Aina bore the burden of establishing that
he had a reasonable expectation of privacy in the vehicle. See Burton, at
435. He did not meet this burden. While the Commonwealth presented
evidence at the suppression hearing in the form of the testimony of Trooper
Straniere, Aina did not present any witnesses.
The evidence produced at the suppression hearing establishes that the
vehicle was a rental car leased by Tisha Brady. Trooper Straniere testified,
on cross-examination, that Aina told him that Brady was his stepmother.
However, contrary to Aina’s assertion there was no evidence presented at
the suppression hearing that Aina had permission from his stepmother to
drive the car. The fact that Brady was Aina’s stepmother does not eliminate
the possibility that Aina was driving the rental vehicle without her knowledge
or permission.
For that reason, we find that Aina failed to meet his burden of
establishing an expectation of privacy in the vehicle he was driving, which
“he did not own, that was not registered to him, and for which he has not
shown authority to operate.” Burton, 973 A.2d at 436. Therefore, because
Aina did not have standing to challenge the search of the vehicle, Aina’s
motion to suppress the evidence was properly denied.
Lastly, Aina contends that the trial court erred in denying his motion to
suppress the evidence removed from Aina’s person following his arrest. See
Appellant’s Brief, at 18. Aina’s sole argument for suppression here is that,
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but for the illegal stop of the rental vehicle, there would not have been
probable cause to arrest Aina, and therefore all evidence collected in the
search incident to arrest should be suppressed.10 See id. Aina’s argument
fails. The traffic stop was lawful.
“While warrantless seizures such as a vehicle stop are generally
prohibited, they are permissible if they fall within one of a few well-
delineated exceptions.” Commonwealth v. Brown, 996 A.2d 473, 476 (Pa.
2010) (citation omitted). For purposes of this case, a pertinent exception is a
traffic stop authorized by 75 Pa.C.S.A. § 6308(b).
Under § 6308(b),
when considering whether reasonable suspicion or probable
cause is required constitutionally to make a vehicle stop, the
nature of the violation has to be considered. If it is not necessary
to stop the vehicle to establish that a violation of the Vehicle
Code has occurred, an officer must possess probable cause to
stop the vehicle. Where a violation is suspected, but a stop is
necessary to further investigate whether a violation has
occurred, an officer need only possess reasonable suspicion to
make the stop.
Commonwealth v. Salter, 121 A.3d 987, 993 (Pa. Super. 2015).
The Motor Vehicle Code defines the offense of maximum speed limits
as follows:
§ 3362. Maximum speed limits
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10
We note that, while Aina challenges the validity of the traffic stop, he does
not challenge whether Trooper Staniere had the probable cause necessary to
lawfully arrest Aina once the stop occurred. Therefore, we will not analyze
the legality of Aina’s arrest.
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(a) General rule. – Except when a special hazard exists that
requires lower speed for compliance with section 3361 (relating
to driving vehicle at safe speed), the limits specified in this
section or established under this subchapter shall be maximum
lawful speeds and no person shall drive a vehicle at a speed in
excess of the following maximum limits:
* * *
(1.1) 65 miles per hour or 70 miles per hour for all vehicles on
freeways where the department has posted a 65-miles-per-hour
or 70 miles-per-hour speed limit.
75 Pa.C.S.A. § 3362(a)(1.1). The Motor Vehicle Code also defines the
offense of restriction on use of limited access highways as follows:
§ 3313. Restrictions on use of limited access highways
* * *
(d) Driving in right lane. –
(1) Except as provided in paragraph (2) and unless
otherwise posted, upon all limited access highways having
two or more lanes for traffic moving in the same direction,
all vehicles shall be driven in the right-hand lanes when
available for traffic except when any of the following
conditions exist:
(i) When overtaking and passing another vehicle
proceeding in the same direction.
(ii) When traveling at a speed greater than the traffic
flow.
(iii) When moving left to allow traffic to merge.
(iv) When preparing for a left turn at an intersection,
exit or into a private road or driveway when such left
turn is legally permitted.
(2) Unless otherwise posted, no vehicle or combination
over 10,000 pounds may be driven in the left-hand lane of
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a limited access highway having three or more lanes for
traffic moving in the same direction except when preparing
for a left turn at an intersection, an exit or into a private
road or driveway when such left turn is legally permitted.
75 Pa.C.S.A. § 3313(d).
Trooper Straniere testified that he clocked Aina for over half of a mile
going 75 miles per hour in a 70 miles per hour zone. Further, Trooper
Straniere observed that Aina drove for over 2.5 miles in the left hand lane,
despite light traffic and having multiple opportunities to cross into the right-
hand lane. Trooper Straniere had probable cause to initiate a valid traffic
stop as the un-contradicted evidence provides that he observed Aina violate
the Vehicle code by speeding and failing to yield to the right lane. See 75
Pa.C.S.A. §§ 3362, 3313.
As noted, Aina has not challenged the validity of his arrest. “It is well
established that a warrantless search incident to a lawful arrest is
reasonable, and no justification other than that required for the arrest itself
is necessary to conduct such a search.” In re. R.P., 918 A.2d at 1283
(citation omitted). “Consequently, any evidence seized as a result of a
search incident to a lawful arrest is admissible in later proceedings.” Id.
(citation omitted). Thus, Aina’s final argument on appeal fails.
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Judgment of Sentence affirmed.
Judge Platt joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2016
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