J-S37041-18
2018 PA Super 233
IN THE INTEREST OF: M.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: M.W. :
:
:
:
: No. 1784 EDA 2017
Appeal from the Dispositional Order May 9, 2017
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-JV-0000662-2017
BEFORE: OLSON, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED AUGUST 27, 2018
Appellant M.W. appeals from the dispositional order entered by the
Court of Common Pleas of Philadelphia County Juvenile Division. Appellant
asserts that the lower court erred in denying his suppression motion. After
careful review, we affirm.
On April 5, 2017, at approximately 1:40 p.m., Philadelphia Police Officer
Thomas Seymour and his partner, Officer Harris, were on patrol in the 14th
District when they observed a 2004 Chevrolet Impala drive through a stop
sign at the intersection of Walnut Lane and McCallum Street. The driver
continued to travel above the posted speed limit on Walnut Lane and made a
quick turn onto Green Street. After the officers followed the vehicle and were
unable to search the license number, the officers initiated a traffic stop.
Once Officer Seymour and Officer Harris exited the patrol car, Officer
Seymour approached the driver’s side of the vehicle with his hand on his
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* Former Justice specially assigned to the Superior Court.
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weapon and Officer Harris approached the passenger side with her weapon
drawn. The driver of the vehicle, seventeen-year old Appellant, complied with
the officers’ direction to stick his hands out of the window. The officers
described Appellant as being cooperative with their requests.
Upon further investigation, Appellant admitted he did not have a driver’s
license and did not produce registration for the vehicle. Thereafter, the
officers asked Appellant to exit the vehicle and patted him down; the frisk did
not reveal any weapons. While Officer Harris searched the vehicle’s
information on the computer database, Officer Seymour restrained Appellant
in handcuffs and placed him in the back of the patrol car. Officer Seymour
asserted that he told Appellant that he was being detained so the officers could
determine the ownership of the car.
Thereafter, the officers learned through a computer database search
that the license plate on the 2004 Impala had been last issued to a 1992
Chevrolet; they also noticed that the VIN number on the dashboard of the
Impala did not match the VIN number on the inside driver’s door. Appellant
gave Officer Harris a false name and a false birthdate, and denied having any
identification on his person. Appellant informed Officer Harris that the
vehicle’s documentation was in the glove compartment of the vehicle.
Officer Seymour subsequently opened the glove compartment, in which
he discovered a Ziploc bag containing fourteen plastic jars of marijuana. The
officers also determined that the vehicle was not registered but the title was
in the name of Ms. Evelyn Jackson who lived in the 14th District. Appellant
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stated that he was not related to Ms. Jackson and did not provide any
explanation as to why he was driving this vehicle. At that point, the officers
informed Appellant that he was under arrest.
As a result, Appellant was charged with intentionally possessing a
controlled substance and driving without a license. Appellant sought to
suppress the marijuana seized from the vehicle as he asserted it was fruit of
an unlawful detention unsupported the requisite suspicion. After a hearing on
April 17, 2017, the lower court denied Appellant’s suppression motion. The
trial court stated its factual findings on the record, essentially accepting the
testimony of the officers; however, the trial court offered no legal analysis on
the issues raised in the suppression motion. At the conclusion of the hearing,
the lower court adjudicated Appellant delinquent, entered a dispositional order
for Appellant to remain in secure detention at the Philadelphia Juvenile Justice
Center, and directed that Appellant be placed in residential facility best suited
to his treatment, supervision, rehabilitation, and welfare.
After Appellant filed a timely appeal, the trial court did not order
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), but instead filed a short opinion in which it
suggested it should have granted Appellant’s suppression motion and asked
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this Court to remand the case accordingly.1 The trial court did not give any
explanation as to why it believed its prior decision was in error.
The sole issue on appeal is whether the trial court erred in denying
Appellant’s motion to suppress the marijuana that the officers seized from the
vehicle that Appellant was driving. Our standard of review is as follows:
This Court is bound by those of the suppression court's factual
findings which find support in the record, but we are not bound by
the court's conclusions of law. When the suppression court's
specific factual findings are unannounced, or there is a gap in the
findings, the appellate court should consider only the evidence of
the prevailing suppression party ... and the evidence of the other
party ... that, when read in the context of the entire record,
remains uncontradicted.
Commonwealth v. Millner, 585 Pa. 237, 246, 888 A.2d 680, 685 (2005)
(citations omitted).
Appellant does not contest the legality of the stop of his vehicle, but
argues that the marijuana obtained from the vehicle must be suppressed as
the fruit of an illegal search and seizure. Specifically, Appellant challenges the
officers’ protective frisk of his person and their decision to place him in
handcuffs in the back of the patrol vehicle once they discovered he was driving
without a license in an unregistered vehicle. Appellant asserts that the
officers did not have the authority to place him under arrest for the conduct
of driving without a license, which is a summary offense.
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1 We note that “a trial court can only speak through its orders—and that any
reasoning contained in a Rule 1925(a) opinion is advisory, and for the benefit
of this Court only.” Youst v. Keck's Food Serv., Inc., 94 A.3d 1057, 1079
(Pa.Super. 2014) (emphasis in original) (citation omitted).
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The Commonwealth argues that Appellant cannot successfully challenge
the search of the vehicle as he failed to show a legitimate expectation of
privacy in the area searched. Alternatively, the Commonwealth contends that
the officers had probable cause to seize the vehicle after initiating a lawful
stop, learning that Appellant had no driver’s license, and discovering that the
vehicle was unregistered and had a mismatched license plate and differing
VIN numbers on the driver’s door and dashboard. Thus, the Commonwealth
argues that the officers had probable cause to seize the vehicle and to conduct
a reasonable inventory search, which included opening the vehicle’s glove
compartment to find documents that could help the officers determine who
owned the vehicle.
In his reply brief, Appellant argues that he was not required to
demonstrate a reasonably cognizable expectation of privacy in the vehicle as
the officer’s discovery of marijuana in the vehicle constituted the fruit of an
illegal seizure of his person. Appellant cites Commonwealth v. Shabezz,
___Pa.___, 166 A.3d 278, 287 (2017), in which our Supreme Court held that
“evidence derived from an illegal automobile search constitutes fruit of the
poisonous tree as a result of the illegal seizure (unless the taint is removed),
and that no further demonstration of a privacy interest in the area from which
the evidence was seized is required by the Fourth Amendment.” Appellant
asserts the marijuana seized from the vehicle in this case was a direct product
or exploitation of an illegal seizure of his person and must be suppressed.
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Even assuming, arguendo, that Appellant was not required to
demonstrate an expectation of privacy in the vehicle, we cannot find Appellant
was entitled to the suppression of the marijuana found in the glove
compartment as Appellant failed to show that he was subjected to an illegal
search or seizure.
Appellant concedes that the officers were justified in stopping his vehicle
as they observed Appellant drive through a stop sign, which is a violation of
the Motor Vehicle Code. Appellant also admits that that he told the officers
that he did not have a driver’s license and could not produce any personal
identification or registration for the vehicle. See 75 Pa.C.S.A. § 6308(a) (“The
operator of any vehicle or any pedestrian reasonably believed to have violated
any provision of this title shall stop upon request or signal of any police officer
and shall, upon request, exhibit a registration card, driver's license and
information relating to financial responsibility, or other means of
identification”).
Moreover, Appellant does not dispute that the officers had the authority
to ask Appellant to get out of the vehicle and to detain him to continue to
investigate the ownership of the vehicle. “As a matter of precaution, a police
officer is entitled to ask occupants of a vehicle to step from the vehicle during
a traffic stop.” Commonwealth v. Van Winkle, 880 A.2d 1280, 1285
(Pa.Super. 2005) (citing Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d
903 (2000) (citing Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54
L.Ed.2d 331 (1977))). See also Commonwealth v. Moser, 757 A.2d 377,
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379 (Pa.Super. 2000) (finding officers who had initially stopped a vehicle for
a traffic violation, were entitled to continue to detain the occupants to see if
the vehicle was stolen given that neither the driver nor the passenger could
show that they owned or had permission to drive the vehicle).
In claiming that he was subsequently subjected to an illegal search and
seizure when he was frisked, handcuffed, and placed in the back of the police
cruiser, Appellant suggests that there is a bright line rule that an individual
has been arrested at the moment he is placed in handcuffs or any restraint.
However, Appellant does not address our precedent that suggests otherwise.
This Court has held that an officer’s use of handcuffs to detain an
individual during an investigative detention for his or her safety does not
necessarily escalate the encounter into a custodial arrest. Commonwealth
v. Rosas, 875 A.2d 341 (Pa.Super. 2005), appeal denied, 587 Pa. 691, 875
A.2d 341 (2006) (citing Commonwealth v. Guillespie, 745 A.2d 654, 660-
61 (Pa.Super. 2001) (finding the officer’s decision to handcuff suspects during
an investigatory detention “was merely part and parcel of ensuring the safe
detaining of the individuals during the lawful Terry stop” and did not
constitute an arrest). Our Supreme Court has also declined to hold that an
arrest occurs every time the police place an individual in handcuffs.
Commonwealth v. Carter, 537 Pa. 233, 247, 643 A.2d 61, 67, n.2 (1994).
Rather, this Court has defined an arrest as:
[a]ny act that indicates an intention to take the person into
custody and subjects him to the actual control and will of the
person making the arrest.... The test is an objective one, i.e.,
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viewed in the light of the reasonable impression conveyed to the
person subjected to the seizure rather than the strictly subjective
view of the officers or the persons being seized.
Rosas, 875 A.2d at 348–49.
In Rosas, this Court concluded that the officers did not subject Rosas
to a custodial arrest when they ordered him out of his vehicle and placed him
in handcuffs. Based on the totality of the circumstances, this Court found
Rosas could not have reasonably believed that he was under arrest after the
valid traffic stop given that the officers expressly told him that he was being
detained to find out Rosas’s true identity and to determine his connection to
the vehicle when Rosas did not have a driver’s license, any form of
identification, insurance, or registration for the vehicle.
Likewise, in this case, after the officers discovered Appellant was driving
without a driver’s license or any form of identification in an unregistered
vehicle, the officers did not indicate that Appellant was under arrest but
instead informed Appellant he was being detained at that point for the purpose
of discovering who owned the vehicle Appellant was driving or whether the
vehicle was stolen. N.T. 4/21/17, at 11, 30. Although Appellant was
subjected to a protective frisk for the officers’ safety, placed in handcuffs, and
detained in the back of the police vehicle, we cannot conclude that M.W.
reasonably believed that he had been placed in custodial arrest when the
officers were attempting to determine his true identity and his connection to
the vehicle he was driving.
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After further investigation, the officers discovered that (1) the license
plate on the 2004 Chevrolet Impala that Appellant was driving was last issued
to a 1992 Chevrolet and (2) the Vehicle Identification Number (VIN) on the
vehicle’s dashboard did not match the VIN number on the inside driver’s door
of the vehicle.2 At that point, the officers were justified in seizing the vehicle
due to the tampered VIN number. Section 7105 of the Vehicle Code provides
the following:
(a) Duty of police.--Every police officer having knowledge of a
vehicle on which the vehicle identification number has been
removed or falsified shall immediately seize and take possession
of the vehicle and arrest or file a complaint for the arrest of the
suspected owner or custodian. In all actions involving seizure or
possession of such vehicles, vehicle identification information shall
be transmitted to the Federal or other agencies involved in
recovery of stolen vehicles.
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2 Appellant does not challenge the officers’ authority to inspect the vehicle to
determine the VIN numbers located on the dashboard and the driver’s door of
the vehicle he was driving. We need not review the propriety of this action as
any such challenge is waived. Pa.R.A.P. 302 (“[i]ssues not raised in the lower
court are waived”).
However, this Court has acknowledged precedent from other
jurisdictions finding that “the examination of a vehicle for the purpose of
inspecting the VIN plates or identification-number inscriptions is not a search
for purposes of the Fourth Amendment,” provided there are “legitimate
reasons to suspect criminal activity [is] afoot.” Commonwealth v.
Grabowski, 452 A.2d 827, 831–32 (Pa.Super. 1982) (quoting United States
v. Forrest, 620 F.2d 446, 454-55 (5th Cir. 1980)). See also People v. Wolf,
60 Ill.2d 230, 326 N.E.2d 766, cert. denied, 423 U.S. 946, 96 S.Ct. 361, 46
L.Ed.2d 280 (Ill. 1975) (if an officer has reasonable suspicion of criminal
activity, his examination of a VIN, by opening a door is a reasonable search,
if a search at all); Wood v. State, 632 S.W.2d 734 (Tex.Cr.App. 1982)
(finding officer’s act of opening a car door to view a VIN, when the officer is
legitimately on the property where the car is parked, is not a search within
the Fourth Amendment; and if it were a search, it would be a reasonable one).
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75 Pa.C.S.A. § 7105.
As the officers were permitted to “immediately seize and take
possession of the vehicle” and arrest or file a complaint against Appellant as
the suspected custodian, their subsequent search of the glove compartment
to find documents pertaining to the ownership of the vehicle was part of a
valid inventory search. Our courts have thoroughly summarized the law
relevant to inventory searches as follows:
inventory searches are a well-defined exception to the warrant
requirement of the Fourth Amendment and are a recognized part
of our law:
it is reasonable for police to search the personal effects of a
person under lawful arrest as part of the routine
administrative procedure at a police station house incident
to booking and jailing the suspect. The justification for such
searches does not rest on probable cause, and hence the
absence of a warrant is immaterial to the reasonableness of
the search. Indeed, we have previously established that the
inventory search constitutes a well-defined exception to the
warrant requirement. See South Dakota v. Opperman,
[428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976)].
An inventory search is not designed to uncover criminal evidence.
Rather, its purpose is to safeguard the seized items in order to
benefit both the police and the defendant. We have recognized
inventory searches in the two areas of automobiles and booking
procedures. See [Commonwealth v. Scott, 469 Pa. 258, 365
A.2d 140, 144 (1976)]; Commonwealth v. Daniels [474 Pa.
173], 377 A.2d 1376 (Pa. 1977).
Four goals underlie such searches. First, they protect the
defendant's property while he is in custody; second, police are
protected against theft claims when defendants are given their
property upon release; third, they serve to protect the police from
physical harm due to hidden weapons; and fourth, when
necessary they ascertain or verify the identity of the
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defendant. Intrusions into impounded vehicles or personal
effects taken as part of the booking process are reasonable where
the purpose is to identify and protect the seized items.
As long as the search is pursuant to the caretaking functions
of the police department, the conduct of the police will not be
viewed as unreasonable under the Constitution. See Scott, 365
A.2d at 144.
Commonwealth v. Gatlos, 76 A.3d 44, 55–56 (Pa.Super. 2013) (quoting
Commonwealth v. Nace, 524 Pa. 323, 571 A.2d 1389, 1391 (1990))
(emphasis in original)).
Moreover,
[this] Court has observed that “two factors must be present in
order to justify the reasonableness of an inventory search in the
absence of probable cause. The Commonwealth must show: (i)
that the vehicle in question was lawfully within the custody of the
police, and (2) that the search was in fact an inventory search
pursuant to the objectives laid down in [Opperman]”
Commonwealth v. Germann, [423 Pa.Super. 393], 621 A.2d
589, 594 (Pa.Super. 1993), citing Commonwealth v. Brandt
[244 Pa.Super. 154], 366 A.2d 1238 (Pa.Super. 1976). The
Court, in Commonwealth v. Germann, supra, observed further
that “‘motive’ is the sole factor which distinguishes a criminal
investigatory search from a noncriminal inventory search of an
automobile.” Id. at 595, citing United States v. Abbott, 584
F.Supp. 442 (W.D.Pa. 1984).
Gatlos, 76 A.3d at 55–56 (quoting Commonwealth v. Collazo, 654 A.2d
1174, 1177 (Pa.Super. 1995)).
In Collazo, officers placed the appellant under arrest for possessing a
controlled substance with intent to distribute after they observed the appellant
sell a confidential informant sixteen packs of heroin in exchange for
prerecorded buy money. After arresting the appellant, the officers sought to
impound his vehicle. Although the appellant asserted he owned the vehicle,
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it was registered to another individual and the vehicle’s VIN number was
illegible. The officers then searched the vehicle’s glove compartment for the
registration papers of the owner and discovered a packet of heroin with the
same label that appeared on the heroin that the appellant had sold the
informant.
On appeal, this Court found the officers had conducted a valid inventory
search when they opened the vehicle’s glove compartment:
It is clear that the vehicle which had been operated by appellant
was lawfully seized and impounded by police. Under 75 Pa.C.S. §
3352(c)(3), police could remove to a garage or place of safety any
vehicle found after “the person driving or in control of the vehicle
is arrested for an alleged offense for which the officer is required
by law to take the person arrested before the issuing authority
without unnecessary delay.” 75 Pa.C.S. § 3352(c)(3). Here, the
vehicle had been seized by police after appellant's arrest for selling
heroin to the informant. The motive for the subsequent search of
the vehicle was solely to identify its owner and not to uncover
evidence of crime. The search, therefore, was within the
caretaking function of the police, and, as such, was properly
conducted without a warrant.
Collazo, 654 A.2d at 1177.
Likewise, in the instant case, the officers lawfully seized Appellant’s
vehicle pursuant to 75 Pa.C.S.A. § 7105 as they had reason to believe that
the vehicle’s VIN number had been altered after observing differing VIN
numbers on the vehicle’s dashboard and driver’s door. Similar to Collazo,
the officers’ motive for searching the glove compartment was solely to identify
the owner of the vehicle and not to uncover evidence of a crime. As a result,
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the officers lawfully conducted a proper inventory search in opening the glove
compartment.
Moreover, even if we were to accept Appellant’s claim that the officers
did not have the authority to frisk Appellant and place him in the back of the
patrol car after discovering he was driving without a license in an unregistered
vehicle, we reject Appellant’s suggestion that the marijuana seized from the
vehicle should have been suppressed as fruit of the poisonous tree. Our
Supreme Court has fully summarized the relevant law as follows:
Evidence of any kind obtained by police through an unlawful
search may not be used in any respect, including as evidence at
trial against the subject of the search. [Wong Sun v. United
States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 9 L.Ed.2d 441
(1963));] Silverthorne Lumber Co. v. United States, 251 U.S.
385, 392, 40 S.Ct. 182, 64 L.Ed. 319 (1920). Such evidence may
only be used against the defendant “[i]f knowledge of [the
evidence] is gained from an independent source,” Silverthorne
Lumber Co., 251 U.S. at 392, 40 S.Ct. 182, or “the evidence in
question would inevitably have been discovered without reference
to the police error or misconduct,” Nix v. Williams, 467 U.S.
431, 448, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The burden of
proof is on the prosecution to establish by a preponderance of the
evidence that the evidence illegally obtained would have
ultimately or inevitably been discovered by legal means. Id. at
444, 104 S.Ct. 2501.
“The exclusionary remedy for illegal searches and seizures
extends not only to the direct product of the illegality, the primary
evidence, but also to the indirect product of the search or seizure,
the secondary or derivative evidence.” Tainted evidence subject
to exclusion—Secondary or derivative evidence: Fruit of poisonous
tree, Searches and Seizures, Arrests and Confessions § 3:4 (2d
ed.). The test to determine whether derivative evidence
constitutes the fruit of an illegal search is not simply whether
police would not have discovered the information but for the
search, as derivative evidence may nonetheless be usable and
admissible if the connection between the information obtained was
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sufficiently attenuated from the illegal search, thus removing the
taint of the original illegality. Wong Sun, 371 U.S. at 487–88, 83
S.Ct. 407; United States v. Crews, 445 U.S. 463, 471, 100 S.Ct.
1244, 63 L.Ed.2d 537 (1980). To determine whether evidence
must be excluded as the fruit of an unlawful search, courts must
consider “whether, granting establishment of the primary
illegality, the evidence to which instant objection is made has been
come at by exploitation of that illegality.” Wong Sun, 371 U.S.
at 488, 83 S.Ct. 407 (quoting Maguire, Evidence of Guilt, 221
(1959) ); quoting Shabezz, 166 A.3d at 289 (“The inquiry simply
is whether the evidence was obtained via exploitation of the initial
illegality”); see also Nix, 467 U.S. at 443, 104 S.Ct. 2501 (“the
prosecution is not to be put in a better position than it would have
been in if no illegality had transpired” but “the derivative evidence
analysis ensures that the prosecution is not put in a worse position
simply because of some earlier police error or misconduct”). “In
applying this test, a court must evaluate whether the illegal search
or any leads gained from the search tended to significantly direct
the government toward discovery of the specific evidence being
challenged.” Searches and Seizures, Arrests and Confessions §
3:4.
Commonwealth v. Fulton, ___Pa.___, 179 A.3d 475, 489–90 (2018).
In this case, even if we assume that the officers subjected Appellant to
an illegal frisk and arrest, the officers did not recover the marijuana from the
glove compartment by exploiting the initial illegality as the officers were
justified in continuing to detain Appellant to determine the vehicle’s
ownership. Appellant admitted he did not have a driver’s license, failed to
produce any form of personal identification or registration for the vehicle, and
the vehicle itself had a mismatched license plate and conflicting VIN numbers.
Thus, as discussed above, once the officers discovered the conflicting
VIN numbers, they had the right to seize the vehicle and conduct a reasonable
inventory search of the glove compartment. This search would have led to
the discovery of the marijuana regardless of whether the illegal frisk and arrest
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had occurred. Appellant has not demonstrated how the officers’ frisk and
action in handcuffing Appellant and placing him in the patrol car necessarily
yielded the evidence in question. Based on the foregoing reasons, we find no
error in the lower court’s decision to deny Appellant’s suppression motion.3
Dispositional order affirmed.
Judge McLaughlin joins the Opinion.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/27/18
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3 Appellant also suggests that his adjudication of delinquency was unlawful as
the charge of driving without a license is a summary offense that does not
qualify as a “delinquent act” under the Juvenile Act. See 42 Pa.C.S.A. § 6302.
However, as the lower court properly denied Appellant’s suppression motion
and found Appellant had committed the offense of simple possession of a
controlled substance, which does qualify as a “delinquent act,” the
adjudication of delinquency was proper.
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