Com. v. Jefferson, T. ( 2021 )

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2021 PA Super 116COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TAYLOR JEFFERSON :
:
Appellant : No. 1119 WDA 2018
Appeal from the Judgment of Sentence Entered June 12, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007306-2017
BEFORE: BENDER, P.J.E., BOWES, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
OPINION BY BENDER, P.J.E.: FILED: JUNE 7, 2021
Appellant, Taylor Jefferson, appeals from the judgment of sentence of
42-84 months’ incarceration, imposed following his conviction of firearms not
to be carried without a license.1 Herein, Appellant challenges the trial court’s
decision to deny his motion to suppress the seized firearm under the Fourth
Amendment to the United States Constitution and, alternatively, under Article
I, Section 8 of the Pennsylvania Constitution. He contends that the police
lacked reasonable suspicion to stop his vehicle based solely on the inference
that the registered owner of the vehicle, who had an outstanding warrant,
would be found in the vehicle. After careful review, we affirm.
The trial court, in disposing of Appellant’s motion to suppress, set forth
the following factual history:
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1 18 Pa.C.S. § 6106(a)(1).
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On April 25, 2017, around 11:00 p.m., Officers Alexandria
Taylor and Nathan Detting with the Pittsburgh Bureau of Police
were patrolling the Homewood area of Pittsburgh. As part of their
routine patrol, the officers ran license plate numbers of various
vehicles through their computer system to check for stolen
vehicles and any [V]ehicle [C]ode violations.
When the officers ran the license plate of a vehicle that was
being driven by [Appellant], the officers learned that there was a
“full extradition warrant out of Pennsylvania” for an individual
named Taylor Jefferson. The officers also learned that Taylor
Jefferson was the registered owner of the vehicle. The [National
Crime Information Center (“NCIC”)] system that the officers used
to run the license plate did not provide the officers with a picture
of Mr. Jefferson, and the officers were not otherwise familiar with
[him] or his name.
As the officers were attempting to validate the warrant, and
before the officers had made any contact with [Appellant’s]
vehicle, [Appellant] pulled over to the side of the road and lawfully
parked the vehicle. Officers Taylor and Detting pulled over behind
[Appellant’s] vehicle and activated a spotlight. The officers’
vehicle did not block [Appellant] from being able to leave the
parking space. The officers pulled over behind [his] vehicle in
order to identify the driver and to investigate whether he was the
registered owner of the vehicle, and thus the person for whom
there was an arrest warrant.
Officer Detting and Officer Taylor simultaneously
approached the vehicle, with Officer Detting approaching the
driver’s side and Officer Taylor approaching the passenger side.
[Appellant] was about to exit the vehicle, with one foot already on
the ground, when the officers approached the car. Officer Detting
told [him] to remain in the vehicle and asked for his identification.
[Appellant] informed Officer Detting that he had left his ID at
home, but he provided his full name to the officer.
As Officer Detting was speaking to [him], Officer Taylor
observed [Appellant] “slowly and deliberately reach into his right
sweat pants pocket” with his right hand. She was able to notice
this movement because the officers had illuminated the inside of
the vehicle with a spotlight. Officer Taylor was about to tell
[Appellant] to remove his hand from his pocket when she saw him
“start to pull his hand out of his pocket.” As he pulled his hand
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out of his pocket, Officer Taylor saw that [Appellant] had a “good
grip” on a firearm. Upon seeing the firearm, Officer Taylor drew
her weapon and yelled “gun, gun, gun.” Officer Detting drew his
weapon, and [Appellant] promptly handed the firearm to Officer
Detting. Officer Detting retrieved [Appellant’s] weapon and asked
[him] to exit the vehicle. [Appellant] was handcuffed, and the
officers ultimately determined that [he] did not have a license to
carry a concealed firearm. [Appellant] was then taken into
custody.
Findings of Fact and Conclusions of Law (“TCO”), 2/8/18, at 1-3 (numbering
and formatting omitted).
The Commonwealth subsequently charged Appellant with firearms not
to be carried without a license, persons not to possess firearms,2 and
possession of a firearm with an altered manufacturer’s number.3 After
Appellant’s preliminary hearing, the trial court dismissed the charge of
possession of a firearm with an altered manufacturer’s number, but held the
remaining charges for trial.
Appellant filed a motion to suppress the firearm. Following a hearing,
the trial court denied the motion, and the case proceeded to a non-jury trial.
The charge of persons not to possess firearms was nolle prossed, and the trial
court convicted Appellant of firearms not to be carried without a license. On
June 12, 2018, the trial court sentenced Appellant to 42-84 months’ (3½-7
years’) incarceration. Appellant filed a timely post-sentence motion for
reconsideration of his sentence, which the trial court denied. He then filed a
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2 18 Pa.C.S. § 6105(a)(1).
3 18 Pa.C.S. § 6110.2(a).
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timely notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The trial court issued a
statement pursuant to Rule 1925(a), indicating its reliance on the Findings of
Fact and Conclusions of Law it issued on February 8, 2018.
A panel of this Court issued a memorandum decision on August 2, 2019,
reversing the trial court’s suppression order and vacating Appellant’s
judgment of sentence. Subsequently, the Commonwealth filed a timely
application for reargument before this Court en banc. We granted the
Commonwealth’s application for reargument on October 4, 2019, and
withdrew the panel memorandum. Appellant filed a substituted brief on
October 15, 2019, and the Commonwealth filed its substituted brief on
November 14, 2019.
While this matter was still pending, the United States Supreme Court
issued its decision in Kansas v. Glover, 140 S.Ct. 1183 (2020). In response,
Appellant promptly filed an application to file a supplemental brief on April 13,
2020. On May 4, 2020, we granted that application. Appellant filed a
supplemental brief on May 18, 2020 (“Appellant’s First Supplemental Brief”),
and the Commonwealth filed its response on May 26, 2020 (“Commonwealth’s
First Supplemental Brief”). Appellant requested oral argument, which we
granted by order dated August 6, 2020.
Subsequently, on December 22, 2020, our Supreme Court issued its
decision in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020)
(overruling Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014)). Appellant
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responded on December 30, 2020, by filing a motion for post-submission
communication, which we granted by order dated January 19, 2021. In that
order, we instructed the parties to submit briefs addressing the impact of
Alexander on this case. Appellant filed a responsive Supplemental Brief on
February 18, 2021 (“Appellant’s Second Supplemental Brief”), and the
Commonwealth replied on March 4, 2021 (“Commonwealth’s Second
Supplemental Brief”).
Appellant has consistently presented the following question for our
review: “Whether the trial court erred in denying [Appellant]’s motion to
suppress evidence because, although the trial court correctly concluded that
the police officers subjected [Appellant] to an investigative detention, the
police officers did not possess reasonable suspicion to justify that seizure?”
Appellant’s Substituted Brief at 4; Appellant’s First Supplemental Brief at 5;
Appellant’s Second Supplemental Brief at 5.
Our standard of review is well-settled:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
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is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (cleaned up).
The law recognizes three distinct levels of interaction between
police officers and citizens: (1) a mere encounter; (2) an
investigative detention, often described as a Terry stop, see
Terry v. Ohio, 392 U.S. 1 … (1968); and (3) a custodial
detention. See Commonwealth v. Jones, 874 A.2d 108, 116
(Pa. Super. 2005).
“A mere encounter can be any formal or informal interaction
between an officer and a citizen, but will normally be an inquiry
by the officer of a citizen. The hallmark of this interaction is that
it carries no official compulsion to stop or respond,”
Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa. Super.
2000) (internal citations and quotations omitted), and therefore
need not be justified by any level of police suspicion.
Commonwealth v. Polo, … 759 A.2d 372, 375 ([Pa.] 2000).
“In contrast, an ‘investigative detention’ … carries an official
compulsion to stop and respond…. Since this interaction has
elements of official compulsion it requires reasonable suspicion of
unlawful activity.” DeHart, 745 A.2d at 636.
***
Finally, “a custodial detention occurs when the nature, duration
and conditions of an investigative detention become so coercive
as to be, practically speaking, the functional equivalent of an
arrest.” [Id.] This level of interaction requires that the police
have probable cause to believe that the person so detained has
committed or is committing a crime.
Commonwealth v. Mackey, 177 A.3d 221, 227 (Pa. Super. 2017).
Here, the trial court determined that Appellant was subjected to an
investigative detention, requiring that the police have reasonable suspicion to
believe that Appellant would be driving the vehicle registered to him when the
police ran its license plate and discovered that Appellant had a warrant out for
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his arrest.4 Appellant contends that, absent any more information connecting
him to the vehicle at that moment in time, their suspicion was not reasonable
under the Fourth Amendment to the Federal Constitution (hereinafter, “Fourth
Amendment”) and Article I, Section 8 of the Pennsylvania Constitution
(hereinafter, “Section 8”), to the extent those provisions are coextensive in
these circumstances. Alternatively, if he is not entitled to relief under the
Fourth Amendment, Appellant maintains that Section 8 provides greater
protection than its federal counterpart.
Fourth Amendment
We first examine whether Appellant is entitled to relief under Fourth
Amendment standards. In determining whether police had reasonable
suspicion to initiate an investigative detention, “the fundamental inquiry is an
objective one, namely, whether the facts available to police at the moment of
the intrusion warrant a man of reasonable caution in the belief that the action
taken was appropriate.” Commonwealth v. Gray, 784 A.2d 137, 142 (Pa.
Super. 2001). Reasonable suspicion is dependent on both the quantity and
quality of the information police possess prior to detaining an individual.
Alabama v. White, 496 U.S. 325, 330 (1990); see also Commonwealth v.
Wiley, 858 A.2d 1191, 1197 (Pa. Super. 2004) (holding that reasonable
suspicion is measured by what the police knew prior to conducting a search
or seizure). In order to assess the facts available to police, we must consider
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4 See TCO at 4.
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the totality of the circumstances. Id. While reasonable suspicion is a less
stringent standard than probable cause, the detaining officer “must be able to
articulate something more than an inchoate and unparticularized suspicion or
hunch.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation
marks and citation omitted).
Appellant first argues that,
[a]ccording to Officer Taylor, the Commonwealth’s only witness at
the suppression hearing, although the driver of the vehicle did not
commit any violations of the Motor Vehicle Code, she learned
through NCIC that the registered owner of the vehicle was
[Appellant], and that [he] may have had an arrest warrant.
However, Officer Taylor admitted that, at the precise moment of
seizure, she still had not confirmed the validity of the arrest
warrant or the identity of the driver. Moreover, Officer Taylor
admitted that both she and her partner, Officer Detting, were not
familiar in the least with [Appellant], they had no idea what he
even looked like, and, indeed, the purpose of the stop was to
verify the validity of the warrant and the identity the driver. In
other words, the police officers merely assumed, or were acting
on an unparticularized hunch, that the driver of the vehicle was
[Appellant].
Appellant’s Substituted Brief at 16-17.
The Commonwealth contends that this matter has been effectively
resolved by the United States Supreme Court’s decision in Glover.5 See
Commonwealth’s First Supplemental Brief at 9-13. In that case, police ran
the license plate of a pickup truck they observed on routine patrol, and
discovered that Glover, the registered owner of the vehicle, had a revoked
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5 Appellant does not dispute that Glover generally applies retroactively to this
case, as Glover was decided during his direct appeal. See Appellant’s First
Supplemental Brief at 16.
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Kansas driver’s license. See Glover, 140 S.Ct. at 1187. The police initiated
a traffic stop and quickly discovered that Glover was driving the vehicle, which
led to his arrest for driving with a revoked license. Glover sought suppression
based on the contention, which appears nearly identical to Appellant’s
argument in this case, that the police did not possess reasonable suspicion to
stop his vehicle based only on the inference that the registered owner of a
vehicle would be driving it. Glover was initially successful in the trial court,
and the Supreme Court of Kansas ultimately affirmed the trial court’s
suppression order. The Kansas Court held that “the officer lacked an
articulable and reasonable suspicion that the unidentified driver did not have
a valid driver’s license; the officer’s assumption was only a hunch and was
unsupported by a particularized and objective belief.” State v. Glover, 422
P.3d 64, 66 (Kan. 2018), cert. granted, 139 S.Ct. 1445 (2019), and rev’d and
remanded, 140 S.Ct. 1183 (2020).
The United States Supreme Court reversed the Kansas Court’s decision,
holding that “when the officer lacks information negating an inference that the
owner is the driver of the vehicle, the stop is reasonable.” Glover, 140 S.Ct.
at 1186. Writing for the Majority, Justice Thomas reasoned that,
[b]efore initiating the stop, [the police officer] observed an
individual operating a … pickup truck with [a] Kansas plate…. He
also knew that the registered owner of the truck had a revoked
license and that the model of the truck matched the observed
vehicle. From these three facts, [the officer] drew the
commonsense inference that Glover was likely the driver of the
vehicle, which provided more than reasonable suspicion to initiate
the stop.
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The fact that the registered owner of a vehicle is not always the
driver of the vehicle does not negate the reasonableness of [the
officer]’s inference. Such is the case with all reasonable
inferences. The reasonable suspicion inquiry “falls considerably
short” of 51% accuracy, see United States v. Arvizu, 534 U.S.
266, 274 … (2002), for, as we have explained, “[t]o be reasonable
is not to be perfect,” Heien v. North Carolina, 574 U.S. 54, 60
… (2014).
Id. at 1188.
Appellant now contends that the Fourth Amendment standard
articulated in Glover does not apply to the circumstances of this case. In this
regard, he first argues that:
A careful review readily reveals that Glover is factually
distinguishable from [Appellant]’s case. In Glover, the basis of
the stop was a revoked driver’s license, [i]d. at 1187, and Kansas
law itself “reinforces that it is reasonable to infer that an individual
with a revoked license may continue driving.” Id. at 1188. In
sharp contrast, Pennsylvania law does not presume the identity of
a vehicle’s driver under any circumstances, including revoked-
license situations. As this Honorable Court held in
Commonwealth v. Andersen, 753 A.2d 1289 (Pa. Super. 2000),
“the knowledge a vehicle is owned by an individual whose driving
privileges are suspended coupled with the mere assumption that
the owner is driving the vehicle, does not give rise to articulable
and reasonable grounds to suspect that a violation of the Vehicle
Code is occurring every time this vehicle is operating during the
owner’s suspension.” [Id.] at 1294 (emphasis in original).
Moreover, the stop in [Appellant]’s case was not even premised
on a revoked driver’s license, which was critical to the Glover
Court’s analysis, but, instead, on a potential arrest warrant.
Appellant’s First Supplemental Brief at 21.
We disagree with Appellant’s attempt to distinguish Glover on this
basis. As noted by the Commonwealth, the Glover Court’s discussion of the
presumption under Kansas law is not applicable to the facts in this case. See
Commonwealth’s First Supplemental Brief at 12. In Glover, the Court
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considered whether it was “reasonable to infer that an individual with a
revoked license may continue driving.” Glover, 140 S.Ct. at 1188. The Court
suggested that the Kansas law explicitly made the inference reasonable, but
also that “common sense suffices to justify this inference.” Id. Thus, the
Court determined that the additional fact known to the police in Glover—that
Glover’s license was revoked—did not make it less likely that he was driving
the vehicle registered under his name, at least not to the extent sufficient to
undermine the inference that the owner is the driver of a vehicle.
Here, by contrast, the police had no reason to believe Appellant was
unlicensed and, therefore, that factor is essentially irrelevant to the
reasonableness of their belief that Appellant was driving the vehicle registered
to him. Glover clearly dictates that the inference that the owner is the driver
of a vehicle by itself provides reasonable suspicion to permit a Terry stop
under the Fourth Amendment, assuming, of course, that the police have
reason to believe that the registered owner is involved in criminal conduct.
See id. at 1186. Consequently, we disagree with Appellant’s attempt to
distinguish Glover.
Moreover, we observe that the suspicion of criminal activity in this case
stemmed from a warrant, and was not contingent upon the discovery of
Appellant’s driving the vehicle. In Glover, the police only knew that the
registered owner was not legally permitted to drive. Here, the only necessary
inference was that Appellant would be found in the vehicle registered in his
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name, not the less-likely assumption that he would be discovered driving it.6
Thus, we conclude that the quantum of evidence supporting a finding of
reasonable suspicion was at least nominally greater than the facts considered
in Glover.
Appellant also attempts to distinguish Glover by suggesting that the
scope of that decision did not extend to the instant case, ostensibly because,
the police officer in Glover confirmed, prior to conducting the
stop, that [Glover]’s driver’s license had, in fact, been revoked.
In [Appellant]’s case, on the other hand, Officer Taylor admitted
that, at the precise moment in which [Appellant] was seized, she
still had not confirmed the validity of the arrest warrant (or the
identity of the driver). In fact, Officer Taylor admitted that the
entire purpose of the stop was to verify the validity of the warrant
(and the identity the driver).
Appellant’s First Supplemental Brief at 22 (citations omitted).
We disagree, and instead adopt the Commonwealth’s assessment that
“the deputy in Glover did not confirm the registered owner’s revoked license
to any greater degree than Officer Taylor confirmed the arrest warrant [in this
case], as both officers merely ran computer checks. See [Glover,] 140 S.Ct.
at 1186.” Commonwealth’s First Supplemental Brief at 13 n.9. There is no
indication in the Glover decision that the issue of reasonable suspicion turned
on whether the computer check had been ‘verified’ through some other
source. Moreover, certainty about individual factors has never been a
prerequisite for reasonable suspicion. “It is well[-]settled that to justify their
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6 It is a simple exercise in logic to conclude that the number of instances in
which a particular person is driving a vehicle is a subset of the number of
instances in which they are inside that vehicle.
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decision to stop and briefly detain [an individual], the police need not establish
their suspicions to a level of certainty, a preponderance, or even a fair
probability.” Commonwealth v. Epps, 608 A.2d 1095, 1096 (Pa. Super.
1992).
We are also unpersuaded by Appellant’s argument concerning the
Glover Court’s emphasis on “the narrow scope” of its holding. Glover, 140
S.Ct. at 1191. In that regard, the Supreme Court remarked that “the presence
of additional facts might dispel reasonable suspicion. For example, if an officer
knows that the registered owner of the vehicle is in his mid-sixties but
observes that the driver is in her mid-twenties, then the totality of the
circumstances would not raise a suspicion that the particular individual being
stopped is engaged in wrongdoing.” Id. (cleaned up). Here, there were no
additional circumstances known to police tending to dispel the reasonableness
of the inference that the owner of a vehicle was likely to be the driver.
Consequently, we conclude that Glover controls and, therefore, Appellant is
not entitled to relief under the Fourth Amendment.7
Section 8
Appellant alternatively contends that, to the extent “that Glover is
applicable in [his] case, because Glover is manifestly inconsistent with the
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7 We note that inconsistent prior cases of this Court, such as Andersen, have
been effectively overruled by Glover, insofar as they held that it is not
reasonable under the Fourth Amendment for an officer to assume that a
registered owner will likely be driving the registered vehicle, unless other facts
are known to the officer that tend to undermine that inference.
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strong notion of safeguarding individual privacy embodied by … Section 8, the
Pennsylvania Constitution should provide an independent basis for relief.”
Appellant’s First Supplemental Brief at 23. Appellant argues that under
Section 8, it is not reasonable for an officer to conclude that a driver is the
owner of a vehicle for purposes of establishing reasonable suspicion to conduct
a Terry stop.
The Commonwealth maintains that Appellant waived this issue by
presenting it for the first time on appeal. See Commonwealth’s Supplemental
Brief at 14-17; see also 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.”). However, it
is clear that Appellant invoked Section 8 in his motion to suppress. See
Suppression Motion, 11/6/17, at 1 ¶ 3 (“[Appellant] requests that this Court
suppress the firearm as the fruit of an unlawful seizure under both … Section
8 of the Pennsylvania Constitution and the Fourth Amendment….”) (emphasis
added). Nevertheless, the Commonwealth claims that Appellant did not
sufficiently develop that claim in the lower court beyond his nominal invocation
of it in the suppression motion.
It is true that “issues, even those of constitutional dimension, are waived
if not raised in the trial court[,]” and that a “new and different theory of relief
may not be successfully advanced for the first time on appeal.”
Commonwealth v. Haughwout, 837 A.2d 480, 486 (Pa. Super. 2003)
(cleaned up). However, given the unique circumstances of this case, the
Commonwealth’s suggested waiver standard is too harsh.
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Appellant invoked Section 8 in his suppression motion, and again in his
Rule 1925(b) Statement. His theory of relief remains unaltered—that it is not
reasonable for police to believe the owner of a vehicle is driving it for purposes
establishing reasonable suspicion to conduct a Terry stop where, as here, the
owner is the subject of a warrant. While Appellant did not focus on the
potential for additional protections under Section 8 beyond that provided by
the Fourth Amendment, there was no reason to believe that the Fourth
Amendment and Section 8 were not coextensive, as applied to the facts of this
case, until Glover was decided during appellate review. In his First
Supplemental Brief, Appellant now presents substantial analysis of why
Glover ostensibly departs from long-held standards under Pennsylvania law,
an argument that he could not have reasonably made in the lower court before
Glover was decided.
Furthermore, we find the cases cited by the Commonwealth
unpersuasive, given the somewhat unique procedural posture of this case. In
Commonwealth v. Santiago, 980 A.2d 659 (Pa. Super. 2009),
Santiago argued on direct appeal that the trial court had erred in
failing to suppress the fruits of his statement to police made
without the required Miranda[8] warnings. [Id.] at 664. This
Court, relying in part on the U.S. Supreme Court’s decision in
United States v. Patane, 542 U.S. 630 … (2004) (plurality
opinion), ruled that the physical evidence obtained subsequent to
Santiago’s statement was not the fruit of the poisonous tree and
that, therefore, the trial court did not err in permitting its
admission. [Santiago,] 980 A.2d at 665-66. In his appellate
brief, Santiago, in an attempt to avoid the dictates of Patane, had
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8 Miranda v. Arizona, 384 U.S. 436 (1966).
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tried to claim that the law set forth therein was inapplicable in
Pennsylvania because Article I, Section 9 of the Pennsylvania
Constitution affords greater protection than do the provisions in
the federal constitution relied upon by the Supreme Court in
Patane. Id. at 666-67 n.6. This Court deemed the claim to be
waived, noting that even issues of constitutional dimension can be
waived if not raised in the trial court; that new and different
theories of relief cannot be advanced for the first time on appeal;
and that Santiago had failed to specifically raise his Article I,
Section 9 claim prior to the time of direct appeal. Id.Commonwealth’s First Supplemental Brief at 17.
However, unlike here, there is no indication in the Santiago decision
that the appellant had ever invoked Article I, Section 9 in the lower court.
Moreover, Patane was decided in 2004, whereas Santiago was convicted in
2007 (for conduct that occurred in 2006). Thus, Santiago could have
presented the argument that the Pennsylvania Constitution provided greater
protection than Patane in the trial court, but failed to do so. Here, Appellant
could not have made an analogous claim with respect to Section 8 until Glover
was decided while Appellant was awaiting review in this Court.
The Commonwealth also cites Commonwealth v. Laney, 729 A.2d 598(Pa. Super. 1999), for the proposition that Appellant has waived this claim by
only nominally invoking Section 8 in the lower court. However, in Laney, the
appellant offered “neither caselaw nor reason to hold that [Article 9] offers
protection different from the federal constitution[,]” as Laney had only
“nominally” invoked such a claim in his appellate brief. Laney, 729 A.2d
at 601 n.1. Here, in Appellant’s Supplemental Brief, he has provided
substantial analysis and supporting caselaw contending that Section 8 should
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provide greater protection than the Fourth Amendment under Glover,
arguments that were not conceivable before Glover was decided.
Accordingly, we conclude that application of waiver is neither required nor
appropriate in the circumstances of this case. Appellant has adequately
preserved this issue for our review.
Turning to the merits of Appellant’s claim, the Supreme Court of
Pennsylvania “has long emphasized that, in interpreting a provision of the
Pennsylvania Constitution, we are not bound by the decisions of the United
States Supreme Court which interpret similar (yet distinct) federal
constitutional provisions.” Commonwealth v. Edmunds, 586 A.2d 887, 894
(Pa. 1991). The “federal constitution establishes certain minimum levels
which are equally applicable to the analogous state constitutional provision.”
Id. (cleaned up). “However, each state has the power to provide broader
standards, and go beyond the minimum floor which is established by the
federal Constitution.” Id. The Supreme Court of Pennsylvania has
stated with increasing frequency that it is both important and
necessary that we undertake an independent analysis of the
Pennsylvania Constitution, each time a provision of that
fundamental document is implicated. Although we may accord
weight to federal decisions where they are found to be logically
persuasive and well reasoned, paying due regard to precedent and
the policies underlying specific constitutional guarantees, we are
free to reject the conclusions of the United States Supreme Court
so long as we remain faithful to the minimum guarantees
established by the United States Constitution.
Id. at 894–95 (cleaned up).
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In Edmunds, our Supreme Court established a four-part inquiry for
determining whether a provision of the Pennsylvania Constitution provides
greater protection than does its federal counterpart. We must consider “1)
[the] text of the Pennsylvania constitutional provision; 2) [the] history of the
provision, including Pennsylvania case-law; 3) related case-law from other
states; [and] 4) policy considerations, including unique issues of state and
local concern, and applicability within modern Pennsylvania jurisprudence.”
Id. at 895.
Text of Section 8
Appellant correctly acknowledges that the texts of Section 8 and the
Fourth Amendment are quite similar. Appellant’s Supplemental Brief at 26;
see also Edmunds, 586 A.2d at 895 (recognizing “the wording of the
Pennsylvania Constitution is similar in language to the Fourth Amendment of
the United States Constitution”).9 Thus, there is nothing in the text of Section
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9 Section 8 provides:
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no
warrant to search any place or to seize any person or things shall
issue without describing them as nearly as may be, nor without
probable cause, supported by oath or affirmation subscribed to by
the affiant.
Pa. Const. Art. I, Section 8.
Similarly, the Fourth Amendment states:
(Footnote Continued Next Page)
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8 itself that suggests a departure from the Fourth Amendment standard
articulated in Glover.
Pertinent History of Article 8
Nevertheless, the Edmunds Court recognized that the similarity
between Section 8 and the Fourth Amendment does not mean we are required
“to interpret the two provisions as if they were mirror images,” and that we
must instead “examine the history of … Section 8, in order to draw meaning
from that provision and consider the appropriateness” of departing from
Fourth Amendment jurisprudence. Edmunds, 586 A.2d at 895–96. In this
regard, Appellant maintains that our Supreme Court has consistently held that
Section 8 provides greater protection than the Fourth Amendment. As this
Court has stated:
Both the United States Constitution and the Pennsylvania
Constitution help shield citizens from improper behavior by the
government. The main thrust of protection under the U.S.
Constitution is to prevent police misconduct. The Pennsylvania
Constitution affords that protection and a heightened protection
of an individual’s privacy.
Commonwealth v. Dunnavant, 63 A.3d 1252, 1257 (Pa. Super. 2013)
(citation omitted). Appellant urges that he is entitled to relief under Section
____________________________________________
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to
be seized.
U.S. Const. amend. IV.
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8 because of its heightened protection for privacy, whereas the Fourth
Amendment only countenances the goal of deterring police misconduct for
purposes of suppression.
Appellant cites three, pre-Glover decisions by this Court in support of
his assertion that we should find that Section 8 and the Fourth Amendment
are not coextensive in the circumstances of this case. He argues:
With respect to vehicle stops, this Honorable Court made clear in
Commonwealth v. Andersen, [753 A.2d 1289 (Pa. Super.
2000)], that knowing the identity of the driver is “patent” to a
finding of reasonable suspicion:
Holding otherwise would subject drivers who lawfully
operate vehicles owned or previously operated by a person
with a suspended license to unnecessary traffic stops. The
example of the family car demonstrates this point. Although
a family car may be registered in the name of one individual,
numerous additional drivers may be licensed and insured to
operate the same vehicle. If we allow the police to stop any
vehicle for the mere fact that it is owned or once operated
by an individual whose operating privileges are suspended,
then each additionally insured driver of the family car could
be subject to traffic stops while lawfully operating the family
car simply because the license or another operator of the
vehicle is suspended. The lack of articulable and reasonable
grounds to suspect a violation of the Vehicle Code when
such a stop occurs without knowing the identity of the driver
is patent.
[Id.] at 1294. Similarly, in Commonwealth v. Bailey, 947 A.2d
808 (Pa. Super. 2008), this Honorable Court held that “Officer
Wall’s hunch that the TransAm’s driver may have been operating
the vehicle with a suspended license was insufficient to establish
a reasonable suspicion that would have justified stopping the
vehicle.” [Id.] at 812. And in Commonwealth v. Hilliar, 943
A.2d 984 (Pa. Super. 2008), this Honorable Court found the police
officer’s suspicion that the driver of the vehicle was the owner to
be “a reasonable one because the driver matched the description
of the owner as a middle aged man[,]” distinguishing Andersen
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because “there [was] no mention of the police officer making any
observation of the physical characteristics of the driver.” [Id.] at
990 n.1.
Appellant’s First Supplemental Brief at 32-33.
While we agree with Appellant’s interpretation of these cases insofar as
they stand at odds with the inference at issue in Glover, they do not support
his argument that Section 8 is incompatible with the reasonableness of that
inference. Appellant fails to cite any pertinent language or analysis from
Andersen, Bailey, or Hilliar demonstrating this Court’s reliance on Section
8’s heightened privacy protections.
In Andersen, after responding to a disturbance at a tavern, the police
encountered Anderson while he was sitting in a black Camaro in the parking
lot. See Andersen, 753 A.2d at 1291. The police learned that the Camaro
was registered to Andersen, but that his license was suspended. Andersen
was allowed to walk home after the police advised him that he was not
permitted to drive. Id. at 1292. The following night, the same officers
observed the same black Camaro, and initiated a stop. As the Andersen
Court observed, “the only relevant information possessed by [the officers]
prior to the traffic stops was that [Anderson]’s driving privileges were
suspended and that the Camaro registered to [him] was being operated.
Thus, [the] traffic stop[] w[as] based on the mere assumption that [Anderson]
was driving the black Camaro.” Id. at 1293. Thus, Andersen is analogous
to the instant case, with the caveat that the inference here is at least nominally
stronger. See note 6, supra.
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Andersen specifically raised the question of whether Section 8 provided
greater protection than the Fourth Amendment. Andersen, 753 A.2d at
1291. However, the Andersen Court never reached that specific claim. As it
granted relief under the Fourth Amendment, it was unnecessary for the Court
to consider whether greater protection existed under the Pennsylvania
Constitution. As Andersen can only be understood to reflect this Court’s
interpretation of Fourth Amendment standards, we must conclude that it has
been overruled by Glover, and provides no support for the notion that Section
8 provides greater protection than the Fourth Amendment in these
circumstances.
Hilliar involved a similar fact pattern with one notable difference. In
that case:
The police officer ran [Hilliar]’s license plate, and determined that
the owner of the vehicle’s license was under suspension. The
officer also discovered the owner’s age and that he was a male.
From his observation of the driver[,] the officer believed that
[Hilliar] was male, and was about the same age as the owner.
Hilliar, 943 A.2d at 987–88. The Hilliar Court determined that “the officer
formed a reasonable suspicion to conclude that [Hilliar] was driving under
suspension….” Id. at 992. In doing so, it distinguished Hilliar’s reliance on
Andersen, because police had the opportunity to observe the driver and
match his description to the vehicle’s owner. Id. at 990 n.1. However, there
is no discussion in Hilliar expressing any distinction between Section 8 and
the Fourth Amendment.
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In Bailey, this Court acknowledged that Andersen dictated that “a
hunch that [a vehicle’s] driver may have been operating the vehicle with a
suspended license was insufficient to establish a reasonable suspicion that
would have justified stopping the vehicle.” Bailey, 947 A.2d at 812.
However, in that case, the police officer stopped Bailey based on that
inference, “and because he had a reasonable suspicion” that the vehicle “had
a faulty exhaust system.” Id. (emphasis in original). Thus, as had occurred
in Hilliar, the Bailey Court distinguished itself from Andersen. Again, there
was no discussion of Section 8.
While we agree with Appellant that Andersen conflicts with Glover, we
disagree that the conflict reflects a distinction between Section 8 and the
Fourth Amendment, because the Andersen rule was neither explicitly nor
implicitly premised upon the additional privacy protections provided by
Section 8. Rather, we conclude that Andersen’s interpretation of the at-issue
Fourth Amendment standard has necessarily been overruled by Glover.
Related Caselaw from Sister Jurisdictions
Appellant states that he “is unaware of any caselaw from other states
interpreting their own constitutions in light of Glover.” Appellant’s First
Supplemental Brief at 35. We reach the same conclusion. Although there are
now numerous jurisdictions wherein Glover has been applied, we cannot find
any instance in which a court considered a challenge to Glover on state
constitutional grounds. Because Glover was decided so recently, this may
change. At this moment, however, there is no persuasive authority from our
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sister jurisdictions that would tend to support an exception to, or departure
from, the Glover rule pursuant to Section 8.
Policy Considerations
Appellant presents a series of arguments in support of his contention
that Glover “is inconsistent with important policy considerations relevant to
Pennsylvania criminal procedure and … Section 8[,]” which we consider
seriatim. Id. at 40. First, he offers Justice Sotomayor’s dissent in Glover, in
which she generally criticizes the majority decision for its ostensible deviation
from Fourth Amendment principles related to the burden of proof at
suppression, including the requirement of individualized suspicion. Id. at 37-
38 (quoting Glover, 140 S.Ct. at 1195 (Sotomayor, J., dissenting)). However,
Justice Sotomayor’s dissent does not purport to speak to policy considerations
specific to Pennsylvania and/or Section 8, or even to the potential for greater
protection under state constitutions generally. Thus, we do not find it to be
persuasive authority with regard to the question before us.
Second, Appellant contends that while both the Fourth Amendment and
Section 8 recognize a diminished expectation of privacy in motor vehicles with
respect to searches, “there is no diminished expectation of privacy in the stop
of motor vehicles.” Id. at 38 (emphasis in original). However, there is no
dispute here that Appellant was subjected to an investigative detention
requiring reasonable suspicion. Glover has not altered that standard.
Instead, Glover delves deeper into the weeds regarding a common inference
in police-citizen interactions involving motor vehicles—that there is a
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reasonable chance that the person driving a motor vehicle is the person under
whose name it is registered. The Glover Court deemed that inference
reasonable. While any traffic stop initiated by police has privacy implications,
even a temporary one to briefly confirm the identity of a driver, it does not
follow that any inference sanctioned by the United States Supreme Court as
reasonable under the Fourth Amendment necessitates rejection of the same
inference under Section 8 in order to vindicate Section 8’s greater concern for
privacy. As Appellant acknowledges, “there currently is no distinction between
the federal and state constitutions regarding the definition of reasonable
suspicion….” Id. at 36. Yet, virtually any decision by the United States
Supreme Court on what constitutes reasonable suspicion in a particular case
will implicate some degree of privacy concerns. It does not follow that every
such case necessarily gives rise to a distinct standard under Section 8.
Third, Appellant cites Commonwealth v. Matos, 672 A.2d 769 (Pa.
1996), wherein our Supreme Court stated:
[T]here exists clear precedent in Pennsylvania defining the
appropriate standards to be used when considering whether an
individual has been seized. The long-standing definition of what
constitutes a seizure applied by the Courts of this Commonwealth
cannot be ignored, particularly when viewed in tandem with this
Court’s recognition of the privacy rights embodied in Article I,
Section 8.
Id. at 774.
In Matos, the Supreme Court considered the United States Supreme
Court’s ruling in California v. Hodari D., 499 U.S. 621 (1991), where the
defendant failed to comply with an order by police to stop, and then
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abandoned contraband during his flight. The Hodari D. Court determined
that a seizure did not occur for Fourth Amendment purposes until the
defendant was tackled by police. Hodari D., 499 U.S. at 629. The Matos
Court held that there were “ample policy reasons to reject the decision of the
United States Supreme Court in Hodari D. as being inconsistent with the
constitutional protections afforded under Article I, Section 8 of the
Pennsylvania Constitution.” Matos, 672 A.2d at 776.
However, we disagree that Matos suggests a similar analysis here. In
that case, the Court considered whether a seizure occurred, not whether a
particular inference from a common set of facts was sufficient to establish
reasonable suspicion. As noted above, there is no dispute in this case as to
whether a seizure occurred. It is also uncontested that a showing of
reasonable suspicion is the appropriate standard to justify that seizure. The
only question here is whether the reasonable suspicion standard was satisfied
by a particular set of facts known to police at the time they initiated the
temporary detention. Under the Fourth Amendment, the Glover Court said
those facts are enough.
In conducting its analysis pursuant to Edmunds, the Matos Court
recognized that Pennsylvania jurisprudence had a “long-standing definition of
what constitutes a seizure” under Section 8, a definition at odds with the
Hodari D. decision. Matos, 672 A.2d at 774. We ascertain no similar history
in Pennsylvania with respect to the Glover rule. While Andersen and its
progeny came to a different conclusion under their analysis of the Fourth
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Amendment, they did not do so premised upon Section 8. Additionally, our
Supreme Court has never had occasion to address the Andersen rule. By
contrast, in Matos, the Pennsylvania Supreme Court recognized a significant
history of its own decisions that ran contrary to the rule announced in Hodari
D.:
Through our decisions in Commonwealth v. Hicks, 253 A.2d 276(Pa. 1969), Commonwealth v. Jeffries, 311 A.2d 914 (Pa.
1973), Commonwealth v. Jones, 378 A.2d 835 (Pa. 1977), and
Commonwealth v. Barnett, 398 A.2d 1019 (Pa. 1979), this
Court, both in coordination with and independent of the federal
courts, has set forth the standards to be applied in determining
whether an individual is seized….
Matos, 672 A.2d at 773 (citations reformatted). There is no similar history
of Pennsylvania Supreme Court decisions closely on point in this case.
Furthermore, in Matos, the Court recognized a significant split in other
jurisdictions with regard to whether state constitutions provided greater
protections than the Fourth Amendment standard articulated in Hodari D.
See id. at 775. As noted above, Appellant concedes he cannot offer, and we
cannot otherwise find, any decisions by our sister jurisdictions that have
addressed the matter either way.
Finally, in his second supplemental brief, Appellant posits that our
Supreme Court’s recent decision in Alexander, overruling Gary, supports his
contention that Section 8 provides greater protection Glover. We disagree.
In Gary, our Supreme Court adopted the federal automobile exception
to the warrant requirement, “which allows police officers to search a motor
vehicle when there is probable cause to do so and does not require any
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exigency beyond the inherent mobility of a motor vehicle.” Gary, 91 A.3d at
104. As such, the Gary Court determined that Section 8 “affords no greater
protection than the Fourth Amendment” with respect to a warrantless search
of an automobile “that is supported by probable cause….” Id. Just six years
later, in Alexander, our Supreme Court reversed Gary, holding that Section
8 “affords greater protection to our citizens than the Fourth Amendment,” and
reaffirming its prior decisions that “the Pennsylvania Constitution requires
both a showing of probable cause and exigent circumstances to justify a
warrantless search of an automobile.” Alexander, 243 A.3d at 181.
Appellant argues that Alexander has reaffirmed the principle that,
while the Fourth Amendment’s focus is on effective law enforcement and
deterring police misconduct, Section 8 prioritizes privacy over the needs of
law enforcement. Appellant’s Second Supplemental Brief at 14-15, 19. He
further argues that Alexander reaffirms Edmunds in that there is no good
faith exception in Pennsylvania, which flows from the first argument—that the
good faith exception is consistent with the Fourth Amendment’s goal of
deterring police misconduct—but it is inconsistent with Section 8’s focus on
the violation of the privacy rights of the individual. Id. at 19. Moreover,
Appellant avers that Alexander stands strongly for the proposition that
Section 8 is designed to curtail, not to assist, the investigative power of police,
id. at 19-20, and that privacy rights do not, therefore, evaporate in a motor
vehicle, id. at 20. Appellant then argues, relying in part on Andersen, that:
Glover, a Fourth Amendment case, is manifestly inconsistent with
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the strong notion of safeguarding individual privacy embodied by
Article 1, Section 8. If that fact was not obvious prior to
Alexander, it certainly must be obvious now in light of
Alexander. The Pennsylvania Constitution must provide an
independent basis for relief by requiring the police, in order to
establish reasonable suspicion, to investigate the identity of the
driver before conducting a vehicle stop.
Id. at 20-21.
While we do not disagree with Appellant’s understanding that Section
8’s prioritization of privacy rights over the needs of law enforcement was
strongly expressed in Alexander, following the brief diversion from that
principle in Gary, it does not follow that the Glover decision is incompatible
with Section 8. Indeed, we conclude that Alexander neither demands, nor
even suggests, that a departure from the Glover rule is required under
Section 8.
First, Alexander is not on point. Alexander and, relatedly, Gary,
involved searches requiring probable cause, and whether the inherent mobility
of automobiles satisfied the exigency exception to the warrant requirement.
The instant case does not involve a search or a seizure that would require
probable cause, as Appellant has consistently conceded. Instead, the question
before us concerns the lower standard of reasonable suspicion, and the
quantum of evidence sufficient to justify further investigation through a
temporary detention pursuant to Terry. Alexander does not speak to this
issue at all.
Second, the Alexander Court’s Edmunds analysis is also
distinguishable from the case at hand, particularly with regarding the history
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of the automobile exception and its relationship to Section 8. Our Supreme
Court held in Commonwealth v. White, 669 A.2d 896 (Pa. 1995), that the
automobile exception to the warrant requirement did not apply in
Pennsylvania due to the heightened privacy protection provided by Section 8,
and relied on that decision in deciding Commonwealth v. Labron, 669 A.2d
917 (Pa. 1995). See Alexander, 243 A.3d at 183. The Court further noted
that “a number of our decisions garnering clear majorities cited Labron and
White for the proposition that … Section 8 offered greater protections than
the Fourth Amendment.” Id. at 184. When the Pennsylvania Supreme Court
adopted the Fourth Amendment’s automobile exception in Gary, the “Court
did not dispute that [its] cases eventually broke from the federal model, and
both the lead opinion and the dissent identified the mid-1990s as the relevant
timeframe.” Id. at 183.
Thus, in Alexander, there was a significant history of cases, spanning
two decades, demonstrating divergence from the federal automobile
exception under Section 8 before the Gary decision temporarily reversed that
trend. Here, as discussed above, none of the cases at odds with Glover cited
by Appellant were grounded in Section 8, and none of those cases were
decided by our Supreme Court. Accordingly, we conclude that Alexander
does not compel rejection of Glover under Section 8, and there is no
significant history of Pennsylvania case law that would suggest that the
Glover inference is incompatible with Section 8’s heightened concern for
privacy.
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Conclusion
In sum, Appellant has failed to meet his burden under Edmunds. A
textual comparison between the Fourth Amendment and Section 8 does not
provide any guidance on the question before us. While we acknowledge that
there exists a significant history of interpreting Section 8 to provide greater
privacy protections than the Fourth Amendment, Appellant cannot cite any
cases where our Supreme Court distinguished Section 8 from the Fourth
Amendment on what constitutes reasonable suspicion generally, much less on
the more specific factual inference addressed by Glover. Although Glover
contradicts this Court’s decision in Andersen, the rule in Andersen was never
specifically addressed by our Supreme Court and does not appear to have
been grounded in Section 8 jurisprudence. Moreover, as of yet, we are
unaware of any cases from sister jurisdictions rejecting the Glover rule on
state constitutional grounds. Finally, it can certainly be said that Pennsylvania
has a strong policy favoring privacy rights over the needs of law enforcement
under Section 8, as articulated by our Supreme Court in Edmunds, Matos,
and most recently, Alexander. However, we are far from convinced that any
new Fourth Amendment decision by the United States Supreme Court that
affects privacy rights—as such decisions inevitably will do—necessitates
greater protections under Section 8 merely because privacy rights are
implicated. The Fourth Amendment and Section 8 have thus far remained
coextensive as to the quantum of evidence necessary to establish reasonable
suspicion, and we see no reason to depart from that history today.
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Accordingly, we conclude that the Fourth Amendment standard
established in Glover is coextensive with Section 8 and, therefore, Appellant
is also not entitled to relief under that provision.
Judgment of sentence affirmed.
Judges Lazarus, Dubow, Murray and McCaffery join this opinion.
Judge Bowes files a concurring opinion in which Judges Shogan, Olson
and Kunselman join.
Judges Shogan, Olson and Kunselman concur in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/07/2021
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