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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
WILLIE SUMPTER : No. 519 EDA 2022
Appeal from the Order Entered February 14, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-001990-2021
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 11, 2023
The Commonwealth appeals from the February 14, 2022 Order1 entered
in the Delaware County Court of Common Pleas granting Appellee Willie
Sumpter’s motion to suppress evidence obtained from a warrantless search of
the vehicle that he was driving. After careful review, we affirm.
The relevant procedural and factual history is as follows. On December
5, 2020, the Commonwealth charged Appellee with Firearms not to be Carried
Without a License, Aggravated Assault, Resisting Arrest, Possession of
Marijuana, Driving an Unregistered Vehicle, Driving Without a License, and
related charges.
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1The Order is dated January 14, 2022, but the trial court did not docket the
Order under February 14, 2022. We have changed the caption accordingly.
See Pa.R.A.P. 108(a).
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On July 8, 2021, Appellee filed an Omnibus Pre-Trial Motion seeking,
inter alia, to suppress physical evidence that the Darby Borough Police
Department recovered from a warrantless search of the vehicle that he was
driving at the time of his arrest. Appellee argued that the police search of his
vehicle violated his constitutional rights pursuant to the 4th Amendment of the
United States Constitution and Article 1, Section 8 of the Pennsylvania
Constitution and should be suppressed. Motion to Suppress, 7/8/21, at ¶ 7.
On October 22, 2021, the trial court held a hearing on Appellee’s
suppression motion. The court heard testimony from Police Officer Michael
Ficchi and Sauia Macey, Appellee’s former paramour.
Officer Ficchi testified that on December 5, 2020, he was employed by
the Darby Borough Police Department and observed Appellee driving a white
2004 Pontiac Vibe (“SUV”) with a partially obstructed, improperly displayed,
and fraudulent temporary registration. Officer Ficchi stopped the vehicle,
approached, and requested identification or documents relating to the vehicle.
Appellee refused to provide identification. Officer Ficchi noticed that Appellee
was nervous and concluded “there might be a further crime afoot other than
the tag itself,” and requested that Appellee exit the vehicle. N.T. Hearing,
10/22/21, at 10. Appellee complied. Officer Ficchi explained that, to this point,
he had not observed any criminal activity, and this was simply a stop for a
motor vehicle violation. Id. at 24. Officer Ficchi performed a pat-down on
Appellee, noticed that Appellee had a wallet in his back pocket, concluded that
Appellee probably had identification in his wallet, and attempted to place
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Appellee in hand restraints. At the same time, Officer Ficchi asked Appellee if
there were any guns in the SUV and Appellee responded, “there’s nothing that
I know of.” Id. at 27. Officer Ficchi then asked Appellee for consent to search
the SUV and Appellee declined.
Before Officer Ficchi could secure the hand restraints, Appellee pushed
him away and ran off. Officer Ficchi ran after Appellee, eventually caught up
to him, and held him at gunpoint until assisting units arrived. Appellee refused
to obey verbal commands and resisted handcuffs, but eventually police were
able to handcuff Appellee. When Appellee spat at and attempted to head-butt
assisting Police Officer Kennedy, Officer Kennedy tasered Appellee. Police
placed Appellee under arrest.
When Officer Ficchi returned to the SUV and began searching it, he saw
an open bag of marijuana in the center console, a second bag of marijuana in
the rear seat inside a sweatshirt, and a Smith and Wesson 380 Special firearm
loaded with three live bullets underneath the driver seat. Eventually the SUV
was towed. Officer Ficchi completed a tow slip and ran the car registration.
Officer Ficchi testified that he conducted an inventory search because the
SUV was stopped in the travel lane, “slightly obstructing the trolley lines.” Id.
at 16. He explained that he completed the search of the vehicle to recover
“valuable items or any contraband[.]” Id. at 17. Officer Ficchi further
explained that at that time there was a verbal police departmental policy
regarding inventory searches, and he believes that a written policy now exists.
Officer Fichhi did not complete an inventory search report. Officer Ficchi
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testified that he could have secured the SUV to get a search warrant, but he
did not. Id. at 32-36.
Ms. Macey testified that on December 5, 2020, she was romantically
involved with Appellee and living with him. She stated that on that date, she
had owned the SUV for a few months and gave Appellee permission to drive it.
Ms. Macey further explained that, at the time she lent Appellee the SUV, she
did not have the title and registration because she bought the SUV from an
individual who became incarcerated for unrelated reasons during the
transaction. N.T. Hearing, 11/3/21, at 4.
On February 14, 2022, after considering evidence and memoranda of
law, the trial court granted Appellee’s motion to suppress evidence.
The Commonwealth filed a timely appeal2 pursuant to Pa.R.A.P. 311(d).3
Both the Commonwealth and the trial court complied with Pa.R.A.P. 1925.
The Commonwealth raises the following issues for our review:
1. Did the trial court err in suppressing the gun and drugs where
[Appellee] failed to prove that he had a legitimate expectation
of privacy in the SUV where the owner did not give him
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2 As stated above, the Order is dated January 14, 2022, but the trial court did
not docket the Order under February 14, 2022. In the interim, the
Commonwealth filed a Notice of Appeal on February 11, 2022. Pa.R.A.P.
905(a)(5) allows for “a notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5).
Accordingly, the Commonwealth’s notice of appeal is timely.
3 Rule 311(d) provides that “the Commonwealth may take an appeal as of right
from an order that does not end the entire case where the Commonwealth
certifies in the notice of appeal that the order will terminate or substantially
handicap the prosecution.” Pa.R.A.P. 311(d).
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permission to use it and where he fled from the SUV, thereby
abandoning any expectation of privacy in it?
2. Did the trial court err in suppressing the gun and drugs where
the items were properly recovered during a legal inventory
search?
Commonwealth’s Br. at 3.
Our review of a grant of a suppression motion is limited to determining
“whether the record supports the trial court’s factual findings and whether the
legal conclusions drawn from those facts are correct.” Commonweath v.
Carmenates, 266 A.3d 1117, at 1123-24 (Pa. Super. 2021) (en banc) (citation
omitted). “We may only consider evidence presented at the suppression
hearing.” Id. at 1123 (citation omitted). Additionally, “[b]ecause the
defendant prevailed on this issue before the suppression court, we consider
only the defendant’s evidence and so much of the Commonwealth’s evidence
as remains uncontradicted when read in the context of the suppression record
as a whole.” Id. (citation omitted).
This Court is highly deferential to the suppression court’s factual findings
and credibility determinations. Commonwealth v. Batista, 219 A.3d 1199,
1206 (Pa. Super. 2019). “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. The trial 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) (citations omitted). If the
record supports the suppression court’s findings, we may not substitute our
own findings. Bastista, 219 A.3d at 1206. However, we give no such
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deference to the suppression court’s legal conclusions and, instead, review
them de novo. Id. Once a defendant files a motion to suppress, “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, 1047–48 (Pa. 2012)
(citation omitted); see also Pa.R.Crim.P. 581(H).
In the Commonwealth’s first issue, it avers that Appellee did not have a
reasonable expectation of privacy in the SUV where the actual owner did not
give him permission to use it. Commonwealth’s Br. at 12. The Commonwealth
argues that Ms. Macey did not legally own the SUV and was not authorized to
loan it to Appellee. Therefore, the Commonwealth asserts, Appellee did not
have a legitimate expectation of privacy in the SUV. Id.4
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.” Commonwealth v. Bostick, 958
A.2d 543, 550 (Pa. Super. 2008) (citation omitted). In Pennsylvania, a
defendant charged with a possessory offense has “automatic standing” to
pursue a suppression motion under Rule 581. Commonwealth v. Enimpah,
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4 The Commonwealth also argues, for the first time on appeal, that when
Appellee fled from the SUV, he abandoned any expectation of privacy in it.
See Commonwealth Br. at 15. We find this argument to be waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”); Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”).
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106 A.3d 695, 698 (Pa. 2014). However, in addition to standing, “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. (citation omitted).
“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. at 699.
This Court has found that an expectation of privacy will exist when the
individual exhibits an actual or subjective expectation of privacy and that
expectation is one that society is prepared to recognize as reasonable.
Commonwealth v. Jones, 874 A.2d 108, 118 (Pa. Super. 2005). In
determining whether a person’s expectation of privacy is legitimate or
reasonable, we must consider the totality of the circumstances and the
determination “ultimately rests upon a balancing of the societal interests
involved.” Commonwealth v. Peterson, 636 A.2d 615, 619 (Pa. 1993)
(citations omitted). “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. Viall, 890 A.2d 419, 422 (Pa. Super.
2005) (citation omitted).
In Byrd v. United States, 138 S.Ct. 1518 (2018), the United States
Supreme Court held that a driver in otherwise legal possession and control of
a rental car had a reasonable expectation of privacy in that car even when the
rental agreement did not list him or her as an authorized driver. Id. at 1531.
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The Court explained, “[o]ne who owns and possesses a car, like one who owns
and possesses a house, almost always has a reasonable expectation of privacy
in it. More difficult to define and delineate are the legitimate expectations of
privacy of others.” Id. at 1527. “[I]t is by now well established that a person
need not always have a recognized common-law property interest in the place
searched to be able to claim a reasonable expectation of privacy in it.” Id.
Indeed, “[o]ne of the main rights attaching to property is the right to exclude
others [and] one who owns or lawfully possesses or controls property will in all
likelihood have a legitimate expectation of privacy by virtue of the right to
exclude.” Id. (citations omitted).
Instantly, the trial court found Ms. Macey’s testimony credible that she
owned the SUV and allowed Appellee to drive the SUV. Order, 2/14/22, at 3.
When the trial court concluded that Appellee had a reasonable expectation of
privacy in the SUV, the court considered the totality of the circumstances and
placed great weight on Ms. Macey’s testimony as well as the fact that Officer
Ficchi asked Appellee for permission to search the SUV. The trial court opined:
Appellee’s witness Sauia Macey testified at the suppression hearing
she authorized Appellee to drive her car. Additionally, [Officer]
Ficchi recognized Appellee’s expectation of privacy in the vehicle
when he specifically asked Appellee if he would provide consent to
a search of his vehicle. Appellee in this case exhibited an
expectation of privacy when he declined to provide consent to a
search of the vehicle. This court concluded the Commonwealth
conceded Appellee’s expectation of privacy in the vehicle when
[Officer] Ficchi at the suppression hearing asked Appellee to
consent to a search, and based on Ms. Macey’s testimony and the
testimony concerning Appellee’s refusal to consent to a search,
Appellee exhibited an expectation of privacy in the vehicle.
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Contrary to [the Commonwealth]’s assertion, this court
determined, based on the evidence provided by the witnesses at
the suppression hearing [and the] totality of circumstances set
forth in the record, Appellee established he exhibited an
expectation of privacy in the vehicle.
Trial Ct. Op., filed 4/18/22, at 6 (party titles amended).
In light of the trial court’s findings of fact, which the record supports, we
discern no error of law in the trial court’s conclusion that Appellee had a
reasonable expectation of privacy in the SUV. Appellee had permission from
the putative owner of the SUV to drive it and attempted to exclude Office Ficchi
from searching it, facts which support the trial court’s conclusion that Appellee
had a reasonable expectation of privacy in the SUV.
The Commonwealth cites Commonwealth v. Burton, 973 A.2d 428
(Pa. Super. 2009), Commonwealth v. Cruz, 21 A.3d 1247 (Pa. Super. 2011),
and Commonwealth v. Brown, 64 A.3d 1101 (Pa. Super. 2011), to support
its argument that Appellee did not establish a reasonable expectation of privacy
in the borrowed SUV. All of these cases are easily distinguished because,
unlike in the instant case, none of the cases contained testimony that the
defendant had permission to drive the vehicle.5 Accordingly, we remain
unpersuaded by the Commonwealth’s argument.
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5 In Burton, this Court held that the defendant, the driver and lone occupant
of the vehicle, failed to demonstrate that he had a reasonable expectation of
privacy in a vehicle that he did not own, that was not registered to him, and
for which he did not show authority to operate. 973 A.2d 436. In Brown, this
Court held that the defendant failed to establish a reasonable expectation of
privacy in a vehicle where defendant failed to present a connection to the
owner or permission to operate the vehicle. 64 A.3d 1107. In Cruz, this Court
(Footnote Continued Next Page)
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In its second issue, the Commonwealth asserts that even if Appellee had
a reasonable expectation of privacy in the SUV, the trial court erred when it
granted Appellee’s suppression motion because the police found the evidence
pursuant to a valid inventory search. Commonwealth Br. at 19.
Inventory searches are a well-defined exception to the warrant
requirement of the Fourth Amendment. Commonwealth v. Nace, 571 A.2d
1389, 1391 (Pa. 1990). Upon lawfully impounding a vehicle, the police may
conduct an inventory search of the vehicle pursuant to reasonable, standard
protocols. Commonwealth v. Hennigan, 753 A.2d 245, 255 (Pa. Super.
2000). Because the search is intended to safeguard seized items, and not for
investigatory purposes, the search does not need to be authorized by a warrant
or supported by probable cause. Id.
“In determining whether a proper inventory search has occurred, the first
inquiry is whether the police have lawfully impounded the automobile, i.e.,
have lawful custody of the automobile.” Commonwealth v. Henley, 909 A.2d
352, 359 (Pa. Super. 2006) (citation omitted). “The second inquiry is whether
the police have conducted a reasonable inventory search.” Id. (citation
omitted).
“An inventory search is reasonable if it is conducted pursuant to
reasonable standard police procedures and in good faith and not for the sole
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held that the defendant did not have a reasonable expectation of privacy in a
vehicle where he presented no evidence that he owned the vehicle, that it was
registered in his name, or that he was using it with permission of the owner.
21 A.3d 1251.
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purpose of investigation.” Id. The inventory search is not a substitute for a
warrantless investigatory search. Id.
Here, the trial court found that the police failed to conduct a good faith
search that was reasonable pursuant to standard police procedures. The trial
court emphasized Officer Ficchi’s testimony that he searched the SUV for
“valuable items or any contraband” prior to towing the vehicle, revealing that
the search was—at least in part—for investigatory purposes. Order, 2/14/22,
at 2 (citing N.T. Hearing, 10/22/21, at 17). The trial court also found that the
Commonwealth failed to establish that the police were acting according to an
established police protocol, opining:
[Officer] Ficchi testified law enforcement could have secured
the vehicle and obtained a warrant, but they did not.
[Officer] Ficchi also testified: the police department had an
unwritten policy for the conduct of inventory searches; he
did not complete an inventory search report; he did not
mention the search he conducted was an inventory search in
any of the reports he prepared, including the affidavit of
probable cause[.] In view of the record established at the
suppression hearing, this court concluded the
Commonwealth failed to show the search was within the
police department’s standard policy of routinely censuring
and inventorying contents of impounded vehicles, the
Commonwealth did not establish the inventory search of the
vehicle was proper.
Trial Ct. Op. at 7-8.
Upon review, the record supports the trial court’s factual findings and we
discern no error in the trial court’s legal conclusions. In light of Officer Ficchi’s
testimony that he was searching for contraband, it was reasonable for the trial
court to conclude that the search was for investigative purposes and, therefore,
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improper. See Commonwealth v. Casanova, 748 A.2d 207, 212 (Pa. Super.
2000) (“Once the police suspected that there was contraband in the vehicle,
they could no longer classify their search as one done for inventory
purposes.”). Accordingly, we conclude that the trial court did not err when it
granted Appellee’s suppression motion.
In conclusion, we affirm the trial court’s order granting Appellee’s motion
to suppress evidence derived from Officer Ficchi’s search of the SUV.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2023
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Com. v. Sumpter, W.
Combined Opinion