Com. v. Baez, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
AARON BAEZ : No. 169 EDA 2021
Appeal from the Order Entered December 11, 2020,
in the Court of Common Pleas of Monroe County,
Criminal Division at No(s): CP-45-CR-0001739-2019.
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 01, 2021
The Commonwealth takes this interlocutory appeal as of right1 from the
order suppressing its evidence against Aaron Baez. Because police convinced
a third party to do what the officers could not — namely, search Mr. Baez’s
backpack without a warrant — we affirm.
The suppression court found the facts to be as follows:
On June 30, 2019, Pocono Mountain Regional Police
officers responded to [Mr. Baez’s 911 call] that someone had
stolen his backpack at a Burger King . . . Officer William
Carey and Corporal Matthew Nero [arrived,] quickly located
the backpack, and returned it to [Mr. Baez]. After
identifying [Mr. Baez], they . . . found that an open warrant
out of Florida and/or a Monroe County probation detainer
had been lodged against him. At this time, Officer Carey
saw [Mr. Baez] starting to act “strangely,” by which he
meant, “a little agitated.” N.T., 6/19/20, 24. While waiting
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* Former Justice specially assigned to the Superior Court.
1 See Pennsylvania Rule of Appellate Procedure 311(d).
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to confirm whether Florida was seeking extradition, Officer
Carey handcuffed [Mr. Baez] and had him sit on the ground.
Christine Monaco arrived. She indicated she is friends
with [Mr. Baez] . . . she had arranged to meet [him] at the
Burger King to give him a ride, but he notified her later
about his missing bag. [Eventually, Mr. Baez] gave her the
backpack and asked her to put it in her car. Nothing in the
testimony of the officers or [Ms.] Monaco suggests [Mr.
Baez] made any representation authorizing [her] to access
and to use the contents of the bag, to hold it for any reason
other than temporary storage, or to consent to a search on
his behalf. See, e.g., id. at 11-12. He gave it to her with
“instructions to put it in the truck.” Id. at 12. Corporal
Nero then confirmed that Florida requested extradition and
placed [Mr. Baez] in the back of his patrol car.
[Ms.] Monaco met Corporal Nero, whom she knew as
a neighbor and friend. They had a friendly dialogue. [Ms.]
Monaco told Corporal Nero she first met [Mr. Baez] while
working with Attorney William Watkins, who had
represented [Mr. Baez] in an unrelated matter. At the time
they spoke, [Ms.] Monaco had possession of [the] backpack.
She asked [the officer] if she was allowed to put it in her
car.
Corporal Nero told her he might be concerned about
what [Mr. Baez’s] bag could contain, explaining that [Mr.
Baez] had previously been convicted for a firearm-
possession charge. Id. at 50; N.T., 9/22/20 at 15. He
asked her, “Are you taking possession of the bag? . . . Do
you want to check what’s in it before you take possession of
it?” N.T., 6/19/20, at 51. [Ms.] Monaco recalled him asking
if she minded searching the backpack “for her own
protection, because, if she got pulled over, and there’s
something in the bag, it’s going to be her responsibility.”
N.T., 9/22/20, at 13.
She said, “Sure,” and opened the bag. Id.
Reaching in the backpack, she immediately felt a
handgun [and gave the bag to the police.] Corporal Nero,
together with Officer Carey, searched through the contents,
which included . . . a clear baggie of suspected heroin . . .
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Officer Carey then read [Mr. Baez] his Miranda v.
Arizona, 384 U.S. 436 (1966), warnings . . . Corporal Nero
asked [him] about the handgun, and [Mr. Baez] said he got
it from some house in Mount Pocono. N.T., 6/19/20, at 28.
[He] invoked his right to counsel when he asked for more
information. Id. Neither officer asked further questions in
light of his exercise of his rights.
Trial Court Opinion, 12/11/20, at 2-4 (some citations to the record omitted;
some citations amended) (some punctuation omitted).
The Commonwealth charged Mr. Baez with carrying a firearm without a
license, possessing a firearm with an altered serial number, and various drug-
trafficking offenses.2 On July 11, 2019, Mr. Baez waived a preliminary hearing
before the magisterial district court.
The trial court arraigned him on September 4, 2019. He did not file a
motion to suppress within 30 days of that arraignment. Thereafter, the court
scheduled a trial for April 7, 2020, but the COVID-19 pandemic prompted a
postponement.
Without seeking leave to file an untimely omnibus, pretrial motion, Mr.
Baez moved to suppress the evidence against him on April 16, 2020. At the
suppression hearing, the Commonwealth moved to dismiss Mr. Baez’s motion
to suppress as waived, because, under the Pennsylvania Rules of Criminal
Procedure, he had until October 4, 2019 to seek suppression. The court took
the Commonwealth’s motion to dismiss under advisement and proceeded with
the hearing. The parties filed post-hearing briefs.
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2See 18 Pa.C.S.A. §§ 6106(a)(1), 6110.2(a); 35 Pa.C.S.A. § 780-113(a)(16),
(32); 18 Pa.C.S.A. § 5503(a)(1); and 35 Pa.C.S.A. § 780-113(a)(30).
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On December 11, 2020, the court issued an opinion and order denying
the Commonwealth’s motion to dismiss and granting Mr. Baez’s motion to
suppress. This timely appeal followed.
The Commonwealth raises three issues. They are:
1. Whether the [suppression] court abused its discretion
in denying the Commonwealth’s motion to dismiss the
omnibus motion [as untimely]?
2. Whether the [suppression] court erred in granting
[Mr. Baez’s] motion to suppress the evidence obtained
from the backpack . . . ?
3. Whether the [suppression] court erred in granting
[Mr. Baez’s] motion to suppress the statements [he]
made [as] fruit of the poisonous tree?
Commonwealth’s Brief at 7. First, we dispose of issue one and then address
issues two and three simultaneously.
1. The Refusal to Dismiss the Suppression Motion as Untimely
In its first issue, the Commonwealth asks whether the suppression court
abused its discretion by refusing to dismiss Mr. Baez’s omnibus, pretrial
motion as untimely. This Court has said, the Rules of Criminal Procedure
permit “the trial court to consider an untimely suppression motion in the
interests of justice. A trial judge should exercise discretion to hear an
untimely oral suppression motion on this basis in such situations where the
merits [are] so apparent that justice requires it be heard.” Commonwealth
v. Long, 753 A.2d 272, 279–80 (Pa. Super. 2000) (quotations and citations
omitted).
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Despite accurately framing this issue, the Commonwealth does not
address our deferential standard of review in its argument. In fact, the
Commonwealth neither acknowledges nor defines that standard of review.
See Commonwealth’s Brief at 6.
The abuse-of-discretion standard is not an invitation for this Court to
second guess the suppression court. We may not substitute our judgment for
its, because “abuse of discretion is not merely an error of judgment, but is,
rather, the overriding or misapplication of the law; or the exercise of judgment
that is manifestly unreasonable; or the result of bias, prejudice, ill-will, or
partiality . . . .” Commonwealth v. Rogers, ___ A.3d ___, ___, 342 EDA
2017 Slip Opinion at 5 (Pa. Super. 2021) (quoting Commonwealth v.
Santos, 176 A.3d 877, 882 (Pa.Super. 2017)).
To mount an abuse-of-discretion attack against the refusal to dismiss
Mr. Baez’s motion to suppress as waived, the Commonwealth “needed to
demonstrate how the [suppression] court’s ruling overrode the law, was
manifestly unreasonable, or the product of bias, prejudice, ill-will or
partiality.” Id. It has not done so. See Commonwealth’s Brief at 16-19.
Instead, the Commonwealth’s argument is an obvious reproduction of
its post-hearing brief. Compare id. with Commonwealth’s Brief in Opposition
to Omnibus Pretrial Motion at 5-7. The Commonwealth simply reargues this
issue de novo. This de novo argument essentially asks us to substitute our
judgment for that of the suppression court and to usurp that court’s
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discretionary prerogative to apply the Rules of Criminal Procedure in the first
instance.
Thus, the Commonwealth “does not contend, much less persuade us,
the [suppression] court overrode the law; made a manifestly unreasonable
decision; or was motivated by bias, prejudice, or ill will.” Rogers, ___ A.3d
at ___, Slip Opinion at 5-6. This procedural issue warrants no appellate relief.3
2. The Search and the Inculpatory Statement
On the merits, the Commonwealth initially contends that the federal and
state constitutions do not apply, because there was no governmental action
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3 Like the Commonwealth, our dissenting colleague fails to appreciate the
deferential standard of review that we must use to review this issue. More
importantly, the Dissent misapprehends what we actually said in dismissing
this issue. The Dissent believes we “found that the suppression court properly
excused the untimely filing in the ‘interest of justice,’ noting that the merits
of the motion were apparent.” Dissenting Statement at 3. We do not.
Instead, we find the Commonwealth’s neglected to argue the abuse-of-
discretion standard at hand. Thus, the Commonwealth does not persuade
us that such an abuse occurred. In failing to be persuaded, we do not truly
decide whether such an abuse occurred. Instead, we adhere to the principle
of judicial restraint that, where an appellant’s argument is underdeveloped,
“this Court will not act as counsel and will not develop arguments on behalf of
an appellant.” Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super.
2007).
Straying from this precept, the Dissent disregards the lack of an abuse-
of-discretion argument by the Commonwealth and undertakes its own “review
of the record [and finds] that the suppression court abused its discretion in
concluding that the interests of justice warranted consideration of [Mr. Beaz’s]
untimely suppression motion.” Dissenting Statement at 2. In doing so, the
dissent provides the Commonwealth with the abuse-of-discretion argument
that it failed to make. We, by contrast, decline to “act as counsel” for the
Commonwealth’s appeal. Hardy, supra.
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for the Fourth Amendment and Article I, § 8 to restrain. Alternatively, it claims
the police reasonably believed Ms. Monaco had authority to consent to a
search of the backpack for Mr. Baez. Finally, because the Commonwealth
believes the police lawfully seized the evidence at bar, it argues Mr. Baez’s
post-search-and-seizure statement was not fruit of the poisonous tree. We
address each contention in turn.
Whether Ms. Monaco acted as a state agent when she looked inside Mr.
Baez’s backpack presents a pure question of constitutional law. See, e.g.,
Commonwealth v. Yim, 195 A.3d 922, 926 (Pa. Super. 2018); see also
Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602 (1989). “Our
review of questions of law is de novo.” Commonwealth v. Shaffer, 209
A.3d 957, 969 (Pa. 2019), cert. denied sub nom. Shaffer v. Pennsylvania,
___ U.S. ___, 140 S. Ct. 2738 (2020). Because Mr. Baez prevailed below,
our scope of review includes “the evidence from [his] 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.” Commonwealth v.
Korn, 139 A.3d 249, 252 (Pa. Super. 2016).
The Fourth Amendment to the Constitution of the United States dictates
that, “The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be violated
. . . .” Likewise, the Constitution of the Commonwealth of Pennsylvania
provides that, “The people shall be secure in their persons, houses, papers
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and possessions from unreasonable searches and seizures . . . .” Pa. Const.
art. I, § 8. Under both provisions, “a search conducted without a warrant is
presumed to be unreasonable unless it can be justified under a recognized
exception to the search warrant requirement.” Commonwealth v. Davis,
188 A.3d 454, 457 (Pa. Super. 2018). Here, the police had no warrant. Thus,
if the constitutions apply to this search, the evidence the search produced is
presumptively unlawful and in admissible at trial.
Ms. Monaco’s status as either a private actor or an agent of the police is
critical, because “the Fourth Amendment does not apply to a search or seizure,
even an arbitrary one, effected by a private party on his own initiative . . . .”
Skinner, 489 U.S. at 614. If Ms. Monaco acted on her own, the evidence is
admissible at trial. However, the Fourth Amendment “protects against such
intrusions if the private party acted as an instrument or agent of the
Government.” Id.Similarly, “Article I, § 8 does not require the exclusion of evidence
wrongfully obtained by a private party . . . [when] not acting at the behest of
any government authority.” Commonwealth v. Kean, 556 A.2d 374, 378
(Pa. Super. 1989). Our precedents treat the state test for private searches
as coextensive with the federal test. See id; see also Commonwealth v.
Parrella, 610 A.2d 1006 (Pa. Super. 1992).
To understand that test, we turn to Skinner, supra. There, the
Supreme Court of the United States ruled that private employers’ collections
of bodily fluid samples from their employees were not private searches,
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because the employers collected the samples under regulations of the Federal
Railroad Administration. Justice Kennedy explained, “Whether a private party
should be deemed an agent or instrument of the Government for Fourth
Amendment purposes necessarily turns on the degree of the Government’s
participation in the private party’s activities . . . .” Id. “The fact that the
Government has not compelled a private party to perform a search does not,
by itself, establish that the search is a private one.” Id. at 615. Instead, we
must determine whether the state actor — here, the police — “did more than
adopt a passive position toward the underlying private conduct.” Id.The “inquiry is two-fold: (1) whether the facts presented establish that
a private search was conducted; and, if so, (2) whether the police actions
exceeded the scope of the private search.” Shaffer, 209 A.3d at 972. The
Commonwealth must satisfy both prongs of the test in order for the private-
actor doctrine to exclude a search from the Fourth Amendment’s protections.
At the first prong, the Shaffer Court concluded the actor performed a
private search, because the defendant took his laptop to a computer-repair
shop. Once the laptop was in the shop’s custody, an employee discovered
child pornography stored on the computer. He “had not been searching for
illicit information and had never been asked by law enforcement to keep watch
for evidence of child pornography.” Id. Indeed, police had absolutely no
contact with the computer-repair shop prior to the employee finding the illegal
content and calling 911 to report the criminal activity.
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Distinguishing Shaffer, the suppression court held the Commonwealth
did not prove Ms. Monaco “acted entirely as a private individual.” Trial Court
Opinion, 12/11/20, at 13. The court observed that Ms. Monaco asked for the
officer’s permission to take the backpack from the scene. From this, the
suppression court reasonably inferred that Ms. Monaco “believed herself to be
under some amount of governmental control in this situation.” Id. The police
gave her permission, and Ms. Monaco placed the backpack in her vehicle. See
N.T., 10/22/20, at 10.
At this point, rather than end the interaction, Corporal Nero brought up
Mr. Baez’s prior conviction for a firearm’s possession. See id. at 13. Then,
according to Ms. Monaco, the officer “asked if [she] minded [searching] the
bag for [her] own protection, because, if [Ms. Monaco got] pulled over and
there’s something in the bag, it’s going to be [her] responsibility.” Id. She
said, “sure.” Id. Based upon our scope of review, we must accept Ms.
Monaco’s rendition of her interaction with Corporal Nero and his statements
to her as true. See Korn, supra.
In light of the foregoing facts, the suppression court concluded “Corporal
Nero created the situation that induced [Ms. Monaco] to search the backpack.”
Trial Court Opinion, 10/22/20, at 13. We agree.
Unlike the computer-repair-shop employee in Shaffer, who accidentally
stumbled upon the child pornography in the defendant’s laptop, Corporal Nero
promoted Ms. Monaco to look inside Mr. Baez’s backpack for firearms. Thus,
Ms. Monaco’s actions were not of her own volition. Moreover, we reject the
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contention that he “did not request the search as part of [a] criminal
investigation . . . .” Commonwealth’s Brief at 24. The fact that Corporal Nero
brought up Mr. Baez’s past conviction of illegally possessing a firearm implies
that he considered and was investigating the probability that Mr. Baez was
again in illegal possession of a firearm.
Notwithstanding Corporal Nero’s suggested intent to protect Ms. Monaco
from possible negative ramifications of transporting the backpack, the officer’s
actions directly caused her to search it. “Here, specific features of the
[officer’s conduct] combine to convince us that [Corporal Nero] did more than
adopt a passive position toward the underlying private conduct.” Skinner,
489 U.S. at 615. Therefore, the Commonwealth failed to satisfy the first prong
of Shaffer, supra; the private-actor doctrine does not exclude this search
from constitutional scrutiny. See id.
Next, the Commonwealth contends Corporal Nero reasonably believed
that Ms. Monaco could consent to the search on Mr. Baez’s behalf.4
One exception to the warrant requirement “is a consensual search,
which a third party can provide to police, known as the apparent-authority
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4 Curiously, the Commonwealth acquiesced to Mr. Baez’s unsupported claim
that police lacked probable cause to search his backpack for firearms. See
Commonwealth’s Brief in Opposition to Omnibus Pretrial Motion at 9-16
(arguing the private-party-search, apparent-authority-to-consent, inevitable-
discovery, and inventory-search exceptions to the warrant requirement but
omitting any assertion of probable cause). Thus, the Commonwealth has not
preserved the issue of whether Corporal Nero had probable cause to suspect
that Mr. Baez’s backpack concealed a firearm. “Issues not raised in the trial
court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a).
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exception.” Commonwealth v. Strader, 931 A.2d 630, 634 (Pa. 2007). A
third-party’s consent constitutionalizes a warrantless search, if investigators
reasonably (albeit mistakenly) believe the third party has authority to consent
on the property owner’s behalf. See Illinois v. Rodriguez, 497 U.S. 177,
188–89, (1990). However, the Commonwealth never manages to explain why
it thinks that Corporal Nero’s belief was reasonable.
After quoting case law and reciting a smattering of random facts, the
Commonwealth declares, “Based upon Corporal Nero’s extensive experience
involving criminal investigations with motor vehicles and involving his canine,
[he] believed [Ms. Monaco] exercised control over [the backpack] having been
given the bag by [Mr.] Baez and then having placed it in her car.”
Commonwealth’s Brief at 26. Next, it states that, if Ms. Monaco “had gotten
pulled over, she would be responsible for the contents of the backpack.” Id.Maybe so, but neither point demonstrates why a reasonable person in Corporal
Nero’s place would have mistakenly believed Ms. Monaco had authority to
consent to a search on Mr. Baez’s behalf.
And then the Commonwealth simply concludes by begging the question:
“Corporal Nero’s mistake is constitutionally excusable having believed [Ms.
Monaco] had such authority and he ‘acted on facts leading sensibly to their
conclusions of probability.’” Id. (quoting Commonwealth v. Basking, 970
A.2d 1181, 1189 (Pa. Super. 2009)). However, it failed to develop an
argument to prove that conclusion.
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“This Court will not act as counsel and will not develop arguments on
behalf of an appellant.” Commonwealth v. Kane, 10 A.3d 327, 331 (Pa.
Super. 2010). Moreover, when defects in a brief impede our ability to conduct
meaningful appellate review, we may dismiss the underdeveloped issue as
waived. See id.; see also Pa.R.A.P. 2101.
The Commonwealth’s argument is underdeveloped. We cannot discern
why, in its view, Corporal Nero’s belief in Ms. Monaco’s authority to consent
to a search was reasonable. Thus, pursuant to Kane and Pa.R.A.P. 2101 we
dismiss this issue as waived.
Accordingly, we affirm the decision to suppress the evidence seized from
Mr. Baez’s backpack.
Thus, the Commonwealth’s final contention (that Mr. Baez’s statement
is not fruit of the poisonous tree) is meritless. Absent the police-instigated-
third-party search of the backpack, the officers neither would have known
about the firearm therein nor have asked Mr. Baez where he obtained it. Thus,
it follows that Mr. Baez would not have confessed to obtaining the weapon in
Mount Pocono. His self-incriminating statement is undoubtedly fruit of the
poisonous tree, and the suppression court correctly suppressed it on that
basis. See Wong Sun v. United States, 371 U.S. 471 (1963).
Order affirmed.
Judge Nichols joins the Memorandum.
President Judge Emeritus Stevens files a Dissenting Statement.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2021
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