Com. v. Almanzar, Y. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
YASSER ALMANZAR :
:
Appellant : No. 1463 EDA 2019
Appeal from the Order Entered April 29, 2019
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005817-2017
BEFORE: LAZARUS, J., KING, J., and STRASSBURGER, J.*
MEMORANDUM BY KING, J.: FILED SEPTEMBER 15, 2020
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, granting the
suppression motion of Appellee, Yasser Almanzar.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
May 22, 2017, Sergeant Brian Myers of the Philadelphia Police Department
conducted surveillance at 3329 Bleigh Avenue, responding to complaints
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* Retired Senior Judge assigned to the Superior Court.
1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice
of appeal that the suppression order substantially handicapped or terminated
the prosecution of the Commonwealth’s case. Accordingly, this appeal is
properly before us for review. See Commonwealth v. Cosnek, 575 Pa. 411,
421, 836 A.2d 871, 877 (2003) (stating Rule 311(d) applies to pretrial ruling
that results in suppression, preclusion or exclusion of Commonwealth’s
evidence).
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about several Hispanic men entering and exiting the property while carrying
packages. (See N.T. Hearing, 4/29/19, at 28). Sergeant Myers observed two
Hispanic men exit the property and enter a white Acura parked out front. (Id.
at 32). The sergeant followed the Acura to 7347 Belden Street, where one of
the occupants entered the house carrying a box of diapers. (Id. at 33). The
same man left the house approximately five minutes later and reentered the
Acura. (Id.) Sergeant Myers followed the Acura back to 3329 Bleigh Avenue,
where the two men parked and went back inside the house. (Id. at 33-34).
Another unidentified male arrived at the house and went inside for
approximately fifteen minutes. (Id. at 34). Then, the three men exited the
house together, entered the Acura, drove to Crispin Street, and pulled over.
(Id.) A white Nissan pulled up behind the Acura. (Id.) Sergeant Myers
recognized the Nissan from a prior investigation. (Id. at 38). The driver of
the Acura exited his vehicle, entered the Nissan, remained there for three to
five minutes, returned to the Acura, and drove off. (Id. at 35).
Sergeant Myers followed the Nissan until it parked at the intersection of
Stanwood and Eastwood Streets. (Id.) A short time later, a white Jeep
Cherokee arrived and parked in front of the Nissan. (Id.) The driver of the
Nissan exited his vehicle and entered the front passenger seat of the Jeep.
(Id. at 36). After five minutes, the Nissan driver exited the Jeep, returned to
the Nissan, retrieved an object, and gave it to the Jeep driver. (Id. at 37).
Following this exchange, both vehicles left the scene and Sergeant Myers
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concluded his surveillance. (Id.) Significantly, Sergeant Myers did not
observe Appellee or his co-defendant, Jose Benitez,2 during the May 22, 2017
surveillance.
On May 24, 2017, Sergeant Myers returned to 3329 Bleigh Avenue to
conduct additional surveillance. (Id. at 43). Sergeant Myers received
assistance from Officer Edward Slater, who was conducting surveillance of the
white Jeep at 2204 Stanwood Street. (Id.) Officer Slater observed Mr.
Benitez exit the property and walk to the Jeep. (Id. at 44). At the same time,
Appellee arrived in a white Chevrolet Malibu, which he “backed up to the white
Jeep, so the trunk of the Chevy was facing the trunk of the” Jeep. (Id.) Mr.
Benitez retrieved a large, green bag from the trunk of the Jeep and transferred
it into the trunk of the Chevrolet. (Id. 44-45). Appellee drove off in the
Chevrolet, and Mr. Benitez subsequently left in the Jeep. (Id. at 49, 59).
Officer Slater followed the Chevrolet, and Sergeant Myers joined the
pursuit. (Id.) Once the Chevrolet pulled over on the 3000 block of Gilford
Street, Sergeant Myers decided to stop the vehicle for further investigation.
(Id. at 50). A search of the trunk revealed 1,150 bundles of heroin inside the
green bag. (Id. at 53). Sergeant Myers contacted a back-up officer and
ordered him to conduct a stop of Mr. Benitez in the Jeep. (Id. at 59). The
back-up officer stopped the Jeep, but did not discover any drugs. (Id. at 59).
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2 Mr. Benitez is the appellee in a related appeal, docketed at 1462 EDA 2019.
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An additional search of the residence at 2204 Stanwood Street yielded
cellphones and cash, but no drugs or drug paraphernalia. (Id. at 18).
The Commonwealth charged Appellee and Mr. Benitez with possession
of a controlled substance, possession of a controlled substance with intent to
deliver, possession of drug paraphernalia, and criminal conspiracy.3 On July
26, 2017, Appellee filed an omnibus pretrial motion to suppress all evidence
obtained as a result of the warrantless vehicle search. Mr. Benitez filed his
own suppression motion on September 14, 2018. On April 29, 2019, the court
conducted a joint suppression hearing.
At the hearing, Sergeant Myers testified that he had been involved with
“[o]ver a thousand” narcotics investigations in the past eighteen years. (N.T.
Hearing at 23). Sergeant Myers explained that the property subject to the
initial complaints, 3329 Bleigh Avenue, had iron bars covering the windows
and doors on the first floor. (Id. at 29). Sergeant Myers claimed he had seen
a similar setup “one other time, probably a year before” in a previous narcotics
investigation in the same neighborhood. (Id. at 30).
Ultimately, Sergeant Myers provided the reasons for his decision to stop
Appellee in the Chevrolet. Sergeant Myers “believed a large amount of
narcotics were in the trunk of” the Chevrolet. (Id. at 50). Sergeant Myers
based his decision on the following:
Based on the observations that we [saw] on Stanwood
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3 35 P.S. § 780-113(a)(16), (30), (32), and 18 Pa.C.S.A. § 903, respectively.
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Street on the 22nd [of May] and quick meetings between
different people in different vehicles, leaving the area, the
bag being transferred from the Jeep to the Chevy, my past
investigations, being familiar with the cars being utilized,
again, the Chevy[4] and Nissan.
(Id. at 51).
Officer Slater testified that he had served as a police officer for twelve
years with two-and-a-half years of narcotics work. (Id. at 73). Officer Slater
had conducted approximately ten narcotics investigations in the neighborhood
at issue, “usually pertaining to bag houses of heroin.” (Id. at 72). Although
Officer Slater observed Mr. Benitez retrieve the bag from the trunk of the Jeep
and transfer it to the Chevrolet, he did not observe any drugs or the exchange
of money. (Id. at 86-89).
Appellee also testified, stating he had received permission to drive the
Chevrolet from a man named “Jose.” (Id. at 92). Although Jose was “not
really a close friend,” Appellee asked to borrow the Chevrolet after seeing Jose
“one day at the barbershop.” (Id. at 92, 94). Appellee told Jose he “needed
to pick up baby clothes,” and Jose agreed that he could use the car for the
____________________________________________
4 Earlier in his direct examination, Sergeant Myers stated that he had seen the
same Chevrolet during a prior investigation. (N.T. Hearing at 47). Defense
counsel objected, the court sustained the objection, the parties discussed the
matter further, and defense counsel withdrew his objection. (Id. at 47-48).
Following the withdrawal of the objection, the prosecutor did not immediately
resume her line of questioning concerning Sergeant Myers’ prior encounter
with the Chevrolet. (Id. at 49). When Sergeant Myers subsequently
reiterated that his prior encounter with the Chevrolet contributed to his
decision to stop the vehicle on this occasion, defense counsel did not object
to the testimony. (Id. at 51).
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day. (Id. at 98).
Immediately following the hearing, the court found “the evidence to be
insufficient to meet probable cause for stopping” the Chevrolet, and it
suppressed the drugs obtained as a result of the vehicle search. (Id. at 119).
The Commonwealth timely filed a notice of appeal on May 21, 2019. On May
23, 2019, the court ordered the Commonwealth to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The Commonwealth
timely filed its Rule 1925(b) statement on June 12, 2019.
The Commonwealth raises three issues on appeal:
Did the suppression court err in concluding that the search
of a vehicle violated [Appellee’s] Fourth Amendment rights
despite his failure to establish a reasonable expectation of
privacy and where, in any event, there was probable cause
to search?
Did the suppression court err in precluding the
Commonwealth from entering evidence of the officers’ prior
observation and experiences that was directly relevant to
the totality of the circumstances supporting probable cause?
Did the suppression court err in failing to consider the
officer’s extensive experience where a nexus existed
between the experience and the observations made in this
case?
(Commonwealth’s Brief at 4).
The Commonwealth’s arguments are related, and we address them
together. Initially, the Commonwealth argues Appellee provided “vague and
inconsistent testimony that he borrowed the car from a friend,” which was
insufficient to establish that Appellee possessed a reasonable expectation of
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privacy in the Chevrolet. (Id. at 14). The Commonwealth claims Appellee
needed to present additional evidence to corroborate his own, self-serving
testimony that he received permission from the vehicle’s owner.
Even if Appellee had established a reasonable expectation of privacy,
the Commonwealth asserts the police had probable cause to search the
vehicle. The Commonwealth emphasizes that the officers observed a “series
of transactions involving multiple actors using various vehicles,” which were
factors giving rise to probable cause. (Id. at 22). The Commonwealth argues
that the officers’ “past experiences, combined with the suspicious series of
transactions that took place, were enough to establish at least probable cause
that [Appellee] was transporting narcotics.” (Id. at 24).
Further, the Commonwealth complains the suppression court precluded
it “from presenting a significant quantum of evidence of the officers’ prior
narcotics investigations involving the same vehicles and area at issue here.”
(Id.) Although the Commonwealth concedes that the court permitted some
information about the officers’ prior observations, the court “denied the
Commonwealth the opportunity to develop the type of record that would
explain why these officers, in this neighborhood, would have had a basis to
make inferences about probable cause with regard to their specific
observations in the current investigation.” (Id. at 27).
The Commonwealth also relies on Commonwealth v. Thompson, 604
Pa. 198, 210, 985 A.2d 928, 935 (2009), for the proposition that an officer’s
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experience is relevant where he can “demonstrate a nexus between his
experience and the search, arrest, or seizure of evidence.” The
Commonwealth contends such a nexus existed here, where the officers had
significant experience conducting narcotics investigations in this
neighborhood, and they had observed other drug dealers engaging in behavior
similar to Appellee. Based upon the foregoing, the Commonwealth concludes
this Court must reverse the order granting Appellee’s suppression motion. We
disagree.
When the Commonwealth appeals from a suppression order, the
relevant scope and standard of review are well-settled:
[We] consider only the evidence from the defendant’s
witnesses together with the evidence of the prosecution
that, when read in the context of the entire record, remains
uncontradicted. The suppression court’s findings of fact
bind an appellate court if the record supports those findings.
The suppression court’s conclusions of law, however, are not
binding on an appellate court, whose duty is to determine if
the suppression court properly applied the law to the facts.
Our standard of review is restricted to establishing whether
the record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression
court’s legal conclusions.
Commonwealth v. Korn, 139 A.3d 249, 252-53 (Pa.Super. 2016), appeal
denied, 639 Pa. 157, 159 A.3d 933 (2016) (internal citations and quotation
marks 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. The suppression court is free to believe all, some or none of
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the evidence presented at the suppression hearing.” Commonwealth v.
Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003), appeal denied, 577 Pa. 701,
847 A.2d 58 (2004) (internal citations omitted).
“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. Powell,
994 A.2d 1096, 1103 (Pa.Super. 2010), appeal denied, 608 Pa. 665, 13 A.3d
477 (2010) (quoting Commonwealth v. Hawkins, 553 Pa. 76, 80, 718 A.2d
265, 266 (1998)). “A defendant moving to suppress evidence has the
preliminary burden of establishing standing and a legitimate expectation of
privacy.” Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa.Super.
2011) (quoting Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.Super.
2009) (en banc)).
Standing requires a defendant to demonstrate one of the
following: (1) his presence on the premises at the time of
the search and seizure; (2) a possessory interest in the
evidence improperly seized; (3) that the offense charged
includes as an essential element[,] the element of
possession; or (4) a proprietary or possessory interest in
the searched premises. A defendant must separately
establish a legitimate expectation of privacy in the area
searched or thing seized. Whether [a] defendant has a
legitimate expectation of privacy is a component of the
merits analysis of the suppression motion. The
determination whether [a] defendant has met this burden is
made upon evaluation of the evidence presented by the
Commonwealth and the defendant.
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Powell, supra at 1103-04 (quoting Commonwealth v. Burton, 973 A.2d
428, 435 (Pa.Super. 2009) (en banc)) (internal citations omitted).
Regarding challenges to the search of an automobile, we note:
[G]enerally under Pennsylvania law, a defendant charged
with a possessory offense has automatic standing to
challenge a search. However, in order to prevail, the
defendant, as a preliminary matter, must show that he had
a privacy interest in the area searched.
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.
Burton, supra at 435 (internal quotation marks omitted). See also
Commonwealth v. Brown, 64 A.3d 1101, 1106-07 (Pa.Super. 2013), appeal
denied, 622 Pa. 747, 79 A.3d 1096 (2013) (holding defendant failed to
establish reasonable expectation of privacy in vehicle where he offered no
evidence of permission to drive from vehicle owner). “[T]he mere fact that a
defendant is operating a motor vehicle will not, without more, sustain a finding
that the operator had a reasonable expectation of privacy in the operated
vehicle where other evidence suggests he … had no such reasonable
expectation of privacy.” Commonwealth v. Newman, 84 A.3d 1072, 1078
(Pa.Super. 2014), appeal denied, 627 Pa. 757, 99 A.3d 925 (2014).
In Newman, officers conducting surveillance observed an individual exit
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an alley and pass a black plastic bag to the defendant. Id. at 1075. Although
police did not witness the defendant exchange any money for the bag, an
officer tailed the defendant and conducted a vehicle stop. Id. A search of the
vehicle revealed vials of crack cocaine in the black bag. Id. The defendant
filed a motion to suppress the evidence found as a result of the search. At
the suppression hearing, the Commonwealth did not present any evidence
that the defendant did not own or have permission to use the vehicle, and the
court granted the defendant’s motion to suppress. Id. On appeal, this Court
affirmed. Significantly, this Court determined that the defendant had a
reasonable expectation of privacy in the vehicle he was driving where (1) he
was alone in the vehicle at the time of the stop; (2) he vigorously objected to
the stop; and (3) he made no attempt to flee. Id. at 1076-78.
In making a determination regarding probable cause, courts should
consider “whether the facts and circumstances which are within the knowledge
of the officer at the time of the arrest, and of which he has reasonably
trustworthy information, are sufficient to warrant a [person] of reasonable
caution in the belief that the suspect has committed or is committing the
crime.” Commonwealth v. Toro, 638 A.2d 991, 1002-03 (Pa.Super. 1994)
(quoting Commonwealth v. Rodriguez, 526 Pa. 268, 272-73, 585 A.3d 988,
990 (1991)).
The question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require
only a probability, and not a prima facie showing, of criminal
activity. In determining whether probable cause exists, we
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apply a totality of the circumstances test.
Commonwealth v. Brogdon, 220 A.3d 592, 599 (Pa.Super. 2019), appeal
denied, ___ Pa. ___, 226 A.3d 967 (2020) (internal citation omitted). See
also Commonwealth v. Banks, 540 Pa. 453, 455, 658 A.2d 752, 753 (1995)
(holding probable cause did not exist where there was “a single, isolated
exchange of currency for some unidentified item or items, taking place on a
public street corner at midday, and where [the defendant] fled when
approached by the officer”); Commonwealth v. Lawson, 454 Pa. 23, 309
A.2d 391 (1973) (explaining probable cause existed where officers observed
husband and wife engage in three, separate cash-for-item exchanges with
buyers, at night, on street, and wife kept unidentified items secreted on her
person between transactions).
Instantly, Appellee testified that the owner of the Chevrolet gave him
permission to use the vehicle. Appellee’s testimony explained when and why
the owner provided permission. Moreover, Appellee, the sole occupant of the
vehicle, made no attempt to flee when stopped. Although the Commonwealth
attacks the veracity of Appellee’s testimony, it did not actually present
evidence to contradict Appellee’s claim of permission. Absent any evidence to
the contrary, Appellee demonstrated a reasonable expectation of privacy in
the vehicle he was driving at the time of the stop. See Burton, supra;Newman, supra.Regarding its probable cause determination, the court admitted
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significant evidence regarding the officers’ prior investigations and
experiences. The court recognized Sergeant Myers’ testimony that he had
seen iron gates covering doors and windows of a home in a prior drug
investigation. The court acknowledged Sergeant Myers’ claim that he had
seen drug dealers park in a “trunk-to-trunk” formation to transfer contraband.
(N.T. Hearing at 118). The court also accepted that Sergeant Myers’
observations were informed by a “prior drug investigation” involving similar
vehicles. (Id. at 119; see also Suppression Court Opinion, filed August 2,
2019, at 2).5
Despite this evidence, the court emphasized that the officers did not
observe any “hand-to-hand transactions” indicative of drug sales. (Id.) The
court determined the officers’ observations did not create probable cause
under the circumstances, even in light of the officers’ prior investigations and
experiences:
[N]either the complaints from neighbors of Hispanic men
entering 3329 Bleigh Avenue two days before, nor in any of
the subsequent interactions of the unidentified men driving
and meeting others provided officers with probable cause to
search the Chevy. During the May 22 investigation, [an
officer] observed separate encounters that involved no
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5 Regarding the Commonwealth’s assertion that it did not have the opportunity
to develop the record with more details regarding the officers’ prior
observations and experiences, our review confirms the Commonwealth did
present evidence to establish the nexus between the officers’ experiences and
the search of the Chevrolet. To the extent certain evidentiary rulings were
not in favor of the Commonwealth, the suppression court merely “required the
Commonwealth to more narrowly and precisely present its questions to
witnesses.” (Suppression Court Opinion at 7).
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money, but only the transfer of a box of diapers and an
“object.” Lacking the specificity to determine whether drugs
were actually being moved, police officers had no objective
basis to distinguish such transactions from ordinary,
innocuous activity.
* * *
Applying a totality of the circumstances test, the [c]ourt did
not find that the single, midday transfer of a bag, whose
contents were unknown, from the trunk of one car to
another between two unidentified individuals provided
officers with probable cause to search the vehicle Appellee
was driving.
(Suppression Court Opinion at 6) (internal record citations omitted).
While the Commonwealth likens the instant circumstances to the
“multiple, complex, suspicious transactions” at issue in Lawson, supra, the
record supports the suppression court’s finding that Appellee and Mr. Benitez
conducted one, daytime, trunk-to-trunk transfer of a bag. As a result, the
court correctly determined that Appellee’s case is more akin to the
circumstances in Banks, supra. On this record, we agree that the officers
lacked facts sufficient to warrant a person of reasonable caution in the belief
that Appellee was committing a crime. See Toro, supra. Accordingly, we
affirm the order granting Appellee’s motion for suppression of the evidence
obtained as a result of the illegal vehicle search.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2020
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