Com. v. McNeely, J.

J-A05040-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
JAMES MCNEELY :
: No. 1796 EDA 2017
Appellant
Appeal from the Judgment of Sentence April 27, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004619-2016
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MARCH 26, 2018
Appellant James McNeely appeals the judgment of sentence entered by
the Court of Common Pleas of Delaware County after a jury convicted
Appellant of tampering with physical evidence, resisting arrest, possession of
cocaine, and possession of drug paraphernalia. Appellant challenges the trial
court’s denial of his suppression motion. We affirm.
On June 23, 2016, at approximately 2:15 p.m., Officers Steven
Dougherty and Daniel Falkenstein of the Darby Borough Police Department
stopped a 1999 Pontiac Grand Am, after a PennDot search revealed that the
vehicle’s registration was expired. After Officer Dougherty activated the lights
and sirens on his patrol vehicle, the Pontiac pulled in a spot in the middle of
the 1100 block of Chestnut Street, a one-way residential road with parking on
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A05040-18
both sides of the street. Officer Dougherty testified that the Pontiac was
blocking the free flow of traffic on Chestnut Street.
Officer Dougherty approached the vehicle and observed Appellant sitting
in the driver’s seat and another individual seated next to him in the passenger
seat. Appellant provided Officer Dougherty with a non-driver identification
card. When asked to provide the vehicle’s registration and proof of insurance,
Appellant attempted to search the vehicle and appeared to have no knowledge
of where these documents were located in the vehicle.
Once Officer Dougherty determined that neither Appellant nor his
passenger had drivers’ licenses and that Appellant had been driving a vehicle
with an expired registration, he asked Appellant to exit the vehicle. Appellant
complied with this direction, but now was unwilling to speak with the officer.
When Officer Dougherty asked who owned the vehicle, Appellant pointed to
himself and handed the officer the vehicle’s title, which listed another
individual’s name. As Appellant reached for his waistband when he was
directed to put his hands on the back of the vehicle, the officers patted
Appellant down. The officers observed Appellant chewing something, directed
him to spit the object out, but he refused to do so. Appellant refused to open
his mouth and swallowed the object.
Appellant was arrested after a subsequent altercation with responding
officers. The officers transported Appellant to Mercy Fitzgerald Hospital,
suspecting that he may have swallowed an illicit substance to prevent its
discovery. As Appellant’s vehicle was blocking the free flow of traffic and its
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ownership was unclear, the officers had the vehicle towed to the police
headquarters. Thereafter, Officer Falkenstein conducted an inventory search
of the vehicle and discovered a pink bag of cocaine under the driver’s seat.
Appellant filed a motion to suppress the cocaine found in the vehicle.
After a hearing on December 15, 2016, the trial court denied the motion,
finding Appellant had no expectation of privacy in the vehicle and that the
inventory search of the vehicle was justified under the circumstances.
Appellant proceeded to a jury trial and was convicted of the aforementioned
charges. On April 17, 2017, the trial court imposed an aggregate sentence of
one to two years’ imprisonment to be followed by three years of probation.
This timely appeal followed.
Appellant solely challenges the trial court’s decision to deny his motion
to suppress the cocaine seized from the vehicle. Our standard of review in
evaluating the denial of a suppression motion is as follows:
[The] standard of review in addressing a challenge to a trial court's
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing such a ruling by
the suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the
record....Where the record supports the findings of
the suppression court, we are bound by those facts and may
reverse only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Bush, 166 A.3d 1278, 1282 (Pa.Super. 2017), appeal
denied, 176 A.3d 855 (Pa. 2017) (quoting Commonwealth v. Eichinger,
591 Pa. 1, 915 A.2d 1122, 1134 (2007) (internal citations omitted)).
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As an initial matter, we evaluate the trial court’s finding that Appellant
had no expectation of privacy in the vehicle.
The law relating to a defendant's standing and expectation of
privacy in connection with a motion to suppress has been
explained by our courts. A defendant moving to suppress
evidence has the preliminary burden of establishing standing and
a legitimate expectation of privacy. 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 defendant has a legitimate expectation of privacy
is a component of the merits analysis of the suppression motion.
The determination whether defendant has met this burden is
made upon evaluation of the evidence presented by the
Commonwealth and the defendant.
With more specific reference to an automobile search, this Court
has explained as follows:
[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.
Pennsylvania law makes clear there is no legally cognizable
expectation of privacy in a stolen automobile. Additionally,
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this Court has declined to extend an expectation of privacy
to an “abandoned” automobile.
Commonwealth v. Jones, 874 A.2d 108, 118 (Pa.Super. 2005)
(internal citations omitted).
Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.Super. 2009) (some
citations and quotation marks omitted). In Burton, the appellant was stopped
for driving a license without a registration sticker. In affirming the denial of
the appellant’s suppression motion, this Court concluded that the appellant
failed to demonstrate that he had a reasonable expectation in a vehicle that
he did not own, that was not registered to him, and for which had not shown
authority to operate.
Likewise, in the instant case, Appellant concedes that he does not own
the vehicle and that the car was not registered in his name. He has neither
attempted to offer any evidence that he was using the vehicle with the
authorization of the owner, nor offered any explanation of his connection with
the vehicle’s owner. Therefore, Appellant failed to meet his burden of
establishing a legitimate expectation of privacy in the vehicle he was driving.
Even assuming arguendo that Appellant did show he had a reasonable
expectation of privacy in the vehicle, the drugs found in the vehicle were not
subject to suppression as they were seized pursuant to a valid inventory
search of the vehicle. Our Supreme Court has thoroughly set forth the law
applicable to inventory searches:
The Fourth Amendment to the United States Constitution and
Article 1, Section 8 of the Pennsylvania Constitution, protect
individuals from unreasonable searches and seizures. U.S. Const.
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amend. IV; Pa. Const. art. 1, § 8. Generally, law enforcement
must obtain a warrant prior to conducting a search; however,
there are certain exceptions to the warrant requirement.
Commonwealth v. Petroll, 558 Pa. 565, 575, 738 A.2d 993, 998
(1999). One such exception, and the one at issue in the case sub
judice, is an inventory search. South Dakota v. Opperman, 428
U.S. 364, 369, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976).
The purpose of an inventory search is not to uncover criminal
evidence, but to safeguard items taken into police custody in order
to benefit both the police and the defendant. Commonwealth v.
Nace, 524 Pa. 323, 327, 571 A.2d 1389, 1391 (1990). In the
seminal case of Opperman, supra, the high Court observed that
inventory searches of impounded vehicles serve several purposes,
including (1) protection of the owner's property while it remains
in police custody; (2) protection of the police against claims or
disputes over lost or stolen property; (3) protection of the police
from potential danger; and (4) assisting the police in determining
whether the vehicle was stolen and then abandoned. 428 U.S. at
369, 96 S. Ct. 3092.
An inventory search of an automobile is permissible when (1) the
police have lawfully impounded the vehicle; and (2) the police
have acted in accordance with a reasonable, standard policy of
routinely securing and inventorying the contents of the impounded
vehicle. Opperman, 428 U.S. at 375, 96 S. Ct. 3092.
In Commonwealth v. Henley, the Pennsylvania Superior Court,
citing Opperman, explained:
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. The authority of the police to impound vehicles
derives from the police's reasonable community care-taking
functions. Such functions include removing disabled or
damaged vehicles from the highway, impounding
automobiles which violate parking ordinances (thereby
jeopardizing public safety and efficient traffic flow), and
protecting the community's safety.
The second inquiry is whether the police have conducted a
reasonable inventory search. An inventory search is
reasonable if it is conducted pursuant to reasonable
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standard police procedures and in good faith and not for the
sole purpose of investigation.
909 A.2d 352, 359 (Pa.Super. 2006) (en banc ) (citations
omitted). A protective vehicle search conducted in accordance
with standard police department procedures assures that “the
intrusion [is] limited in scope to the extent necessary to carry out
the caretaking function.” Opperman, 428 U.S. at 375, 96 S. Ct.
3092.
Commonwealth v. Lagenella, 623 Pa. 434, 447–48, 83 A.3d 94, 102–03
(2013).
Pursuant to this case law, we first analyze whether the officers in this
case lawfully impounded the vehicle. Section 6309.2 of the Vehicle Code
provides that if an officer discovers either (1) an unlicensed driver operating
a vehicle on a Pennsylvania road, or (2) a driver operating a vehicle with no
valid registration, the officer is permitted to direct that the vehicle be towed
and stored if the vehicle poses public safety concerns. 75 Pa.C.S.A. §
6309.2(a); Lagenella, supra.
In this case, Appellant provided non-driver photo identification, but
could not produce a Pennsylvania driver’s license. Appellant was driving a
vehicle that had a registration that expired in 2016 and could not produce
current registration information. Instead, Appellant gave the officers the title
of the vehicle, which was listed in another individual’s name. Appellant
refused to speak with the officers and has never attempted to explain why he
did not have any of the aforementioned information. The officers testified that
Appellant’s vehicle was stopped on a residential road and was blocking the
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free flow of traffic. Therefore, the officers had the authority to impound the
vehicle and conduct an inventory search.
In addition, Appellant does not argue that the police failed to conduct a
reasonable inventory search when they recovered a pink bag of cocaine from
underneath the driver’s seat where Appellant was seated. As a result, we
conclude that the officers conducted a constitutionally permissible inventory
search of the vehicle.
Moreover, we reject Appellant’s claim that he was entitled to the
suppression of the evidence of the cocaine found in his vehicle as he alleges
that the officers illegally attempted to search his mouth for contraband.
Regardless of whether these allegations are true, Appellant concedes that the
officers did not seize any evidence from his mouth. We need not determine
whether the police were justified in allegedly searching Appellant’s mouth, as
we agree with the trial court’s conclusion that the inventory search of
Appellant’s vehicle was an independent event authorized by decisional and
statutory law.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/18
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