Com. v. Wright, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
DWAYNE WRIGHT :
:
Appellant : No. 1468 MDA 2019
Appeal from the Judgment of Sentence Entered July 10, 2019
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004113-2018
BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED OCTOBER 26, 2020
I join the Majority to the extent that it finds that the inventory search
of the vehicle was illegal. There was no basis to tow the vehicle, thus an
inventory search was inappropriate. However, unlike the Majority, I do not
agree that the illegally-seized evidence is admissible pursuant to the inevitable
discovery doctrine. Accordingly, I dissent.
As the Majority aptly recites, the inevitable discovery rule allows for the
admission of evidence recovered as a result of an illegal search, if the
Commonwealth demonstrates that it would still have legally discovered the
evidence despite the initial illegality. See Majority Memorandum at 15 (citing
Commonwealth v. Gonzalez, 979 A.2d 879, 890 (Pa.Super. 2009)). Here,
the question is whether the operation of 75 Pa.C.S. § 6309.2 would have
inevitably led to impoundment and a subsequent valid inventory search. As
the Majority properly notes, that statute provides that, “in the case of
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immobilization, the operator must produce the necessary paperwork (i.e.,
registration and proof of insurance), before an appropriate judicial authority
within 24 hours of the vehicle’s immobilization” to avoid impoundment.” Id.
(citing 75 Pa.C.S. § 6309.2(b)(1)). Accordingly, for the Commonwealth to
satisfy the inevitable discovery doctrine in this case, it needed to demonstrate
by a preponderance of the evidence that Bruce Dates, the owner of the
immobilized vehicle, would not or could not have renewed the registration and
that Dates or Appellant would not or could not have then appeared before the
appropriate judicial authority with the renewed registration within twenty-four
hours. The Majority concludes that the Commonwealth met this burden. Id.
at 15-16. I disagree.
At the suppression hearing, Officer Jacob Bingham testified that he
placed Appellant under arrest and immediately conducted an inventory search
of the vehicle. See N.T. Suppression Hearing, 11/15/18, at 12. Before
beginning the inventory search, he made no attempt to locate or communicate
with Dates. Id. at 22. It was not until a “later stage” in the investigation that
Officer Bingham sought contact with Dates when he went to the registered
address and spoke with an unnamed individual. Id. at 3. This unknown
person told him that Dates had moved to Alabama, but Officer Bingham never
independently confirmed that Dates moved there. Id. at 3, 24. Perhaps
because the Commonwealth did not assert the inevitable discovery exception
until after the suppression hearing concluded, this constitutes the entirety of
the factual record surrounding Dates’s location and availability.
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The evidence before the suppression court does not support a finding
that it was more likely than not that Dates would not have renewed the
vehicle’s registration and reclaimed the vehicle within twenty-four hours.
Instead, it reflects that Dates was never notified or given the opportunity to
complete the steps to retrieve his vehicle. We do not know what would have
happened if he had been notified. Notably, vehicle registration renewal in
Pennsylvania is a relatively simple process that can be completed remotely.
Accordingly, a conclusion that Dates would not or could not have retrieved his
vehicle is pure speculation.
Since I would find that the Commonwealth did not meet its burden of
proof for the inevitable discovery exception to apply, I would reverse the
suppression court order and remand for a new trial without the illegally
obtained evidence. Therefore, I respectfully dissent.
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