Com. v. Auguste, R.

J-A05017-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROBERT AUGUSTE : No. 1244 EDA 2022
Appeal from the Order Entered April 18, 2022,
in the Court of Common Pleas of Lehigh County,
Criminal Division at No(s): CP-39-CR-0002006-2021.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROBERT AUGUSTE : No. 1245 EDA 2022
Appeal from the Order Entered April 18, 2022,
in the Court of Common Pleas of Lehigh County,
Criminal Division at No(s): CP-39-CR-0002005-2021.
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED APRIL 11, 2023
The Commonwealth of Pennsylvania appeals from the order granting
Robert Auguste’s motion to suppress evidence. After careful review, we
reverse.
J-A05017-23
On April 14 and May 5, 2021, Allentown police charged Auguste with
firearm offenses and other crimes committed from April 11 to 13, 2021. The
cases proceeded to court. On November 18, 2021, Auguste filed an omnibus
pretrial motion consisting of a motion to suppress evidence. The suppression
court heard the matter on March 21, 2022.
At the suppression hearing, counsel clarified that Auguste’s suppression
motion was limited to the firearm recovered during a vehicle stop on April 13,
2021. At the suppression hearing, the Commonwealth presented the
testimony of Allentown Police Officers Bryan Guzley and Kaila Balatgek.
Auguste did not present any witnesses.
The suppression court made the following factual findings:
On April 13, 2021, Allentown Police Officers Guzley and
Balatgek were assigned to patrol duties in the Center City area of
Allentown, Lehigh County, Pennsylvania. On that date, they were
working middle shift in uniform and traveling in a marked patrol
unit. Officer Guzley testified that he had been involved in
hundreds of drug arrests during his employment with the
Allentown Police Department, and had participated in several
arrests on firearms offenses. By comparison, Officer Balatgek had
only worked for the Allentown Police Department for one year, but
had previously been employed with the Pittsburgh and Reading
police departments. In her overall experience, she had been
involved in hundreds of drug arrests and 25 firearms arrests. Both
officers testified that they were familiar with the texture of
packaging commonly used with marijuana, as well as the feel of
firearms.
On this particular date, the officers had been notified during
muster of the description of an African-American male and a
vehicle which had been involved in two shootings in Allentown.
The male was suspected to be armed, and was not licensed to
carry a firearm because he was less than 21 years[] old. A flyer
handed out at muster (Commonwealth Exhibit C-1) identified
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[Auguste] and detailed a description of the vehicle in question as
a black Chevrolet Cruze with a [specific license plate number].
The flyer also indicated the male did not have a valid driver’s
license.
[Officers] Guzley and Balatgek were on patrol at
approximately 6:00 p.m. when they saw the suspect vehicle in the
600 block of W. Washington Street in Allentown. The vehicle was
facing south on the southwest corner of the intersection of N.
Seventh and W. Washington Streets. The officers stopped this
vehicle based on probable cause of . . . Vehicle Code violations.
When the officers ran the license plate on the vehicle, they learned
the registration was suspended.
The officers noticed the vehicle had heavy window tinting,
and the windows were all closed. Due to the time of day and the
heavy window tinting, the officers could not see how many
occupants were in the vehicle. Officer Guzley went and stood
outside the right rear door while Officer Balatgek approached the
driver’s side door. Officer Balatgek asked the driver to lower all
the windows so that the officers could ascertain how many people
were in the vehicle. Upon the driver lowering the windows, the
officers saw [Auguste] seated in the middle of the back seat.
Officer Guzley saw [Auguste] fumbling around in the back
seat as he appeared to be attempting to conceal something from
the officers. [Officer] Guzley asked [Auguste] to step out of the
vehicle. As [Auguste] stepped out through the right rear
passenger door, a blue Tommy Hilfiger bag either fell from his lap
or fell from inside the car near his feet. The bag hit the ground
with an audible metallic thud. Without touching the blue bag,
Officer Guzley did a patdown search of [Auguste,] during which
time he felt with an open palm what he recognized as marijuana
packaged in plastic. Upon feeling what [Officer] Guzley believed
was marijuana, [Auguste] was handcuffed and positioned to lean
on a porch near the car. The suspected marijuana was removed
from [Auguste’s] pocket by another officer and field-tested
positive as marijuana.
On cross-examination, Officer Guzley testified the blue
Hilfiger [bag] was zipped closed when it fell to the ground and he
did not open it. The bag dropped near [Auguste’s] right foot as
he emerged from the vehicle. [Officer] Guzley believed Officer
Balatgek placed the bag on top of the trunk of the suspect vehicle.
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Officer Balatgek testified that when she approached the
vehicle and asked the female driver to lower all the car windows,
the driver was fidgety. [Officer] Balatgek had to ask the female
driver to turn the engine off and place the vehicle in park. As
Officer Guzley dealt with [Auguste], the female driver asked to be
able to speak to [Officer] Balatgek, so they stepped over to a
sidewalk area away from the vehicle. After concluding her
conversation with the female driver, [Officer] Balatgek stepped
over to where [Officer] Guzley had [Auguste].
[Officer] Guzley told [Officer] Balatgek he thought there was
a gun in the blue satchel or bag based on the sound the bag made
when it hit the ground. As [Officer] Balatgek felt the exterior [of]
the bag with an open palm, she detected the “L-shaped” outline
of a gun. She then opened the zippered bag and saw the firearm.
[Officer] Balatgek explained neither occupant of the vehicle had a
valid driver’s license so the vehicle was going to be towed due to
an expired registration. She decided to conduct an inventory
search to document what she found before the vehicle was towed,
including the contents of the blue bag.
[Officer] Balatgek acknowledged on cross-examination that
[Auguste] had not consented to a search of the bag before she
unzipped it, and the female driver did not consent to a search of
the vehicle. [Officer] Balatgek also conceded she did not detect
the odor of marijuana coming from the bag.
Memorandum Opinion, 4/18/22, at 2–4 (spelling of “Guzley” changed).
The suppression court took the matter under advisement. On April 18,
2022, it granted Auguste’s motion to suppress.
The Commonwealth timely appealed. It certified that the order granting
suppression would terminate or substantially handicap the prosecution. See
Pa.R.A.P. 311(d). The Commonwealth and the suppression court complied
with Pennsylvania Rule of Appellate Procedure 1925.
The Commonwealth raises three issues for review:
1. Did the trial court err in granting [Auguste’s] motion to
suppress the firearm seized by Allentown Police where the
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search of [Auguste’s] satchel was a valid search incident to
arrest?
2. Did the trial court err in granting [Auguste’s] motion to
suppress the firearm seized by Allentown Police where
exigencies justified police opening [Auguste’s] satchel that fell
onto the street when [Auguste] exited the vehicle so police
could conduct a valid Terry frisk?
3. Did the trial court err in granting [Auguste’s] motion to
suppress the firearm seized by Allentown Police where the
firearm would have inevitably been discovered in Auguste’s
satchel during a valid inventory search?
Commonwealth’s Brief at 4.
Our review is framed as follows:
We review trial court suppression orders to determine whether the
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. We are bound by
the suppression court’s factual findings so long as they are
supported by the record. In reviewing an appeal by the
Commonwealth of a suppression order, we may consider only the
evidence from the [defendant’s] witnesses along with the
Commonwealth’s evidence which remains uncontroverted. Our
scope of review of suppression court factual findings is limited to
the suppression hearing record. We, however, are not bound by
a suppression court’s conclusions of law; rather, when reviewing
questions of law, our standard of review is de novo and our scope
of review is plenary.
Commonwealth v. Anderson, 276 A.3d 282, 292 (Pa. Super. 2022) (en
banc) (quoting Commonwealth v. Barr, 266 A.3d 25, 39 (Pa. 2021)).
The record in this case supports the suppression court’s factual findings.
We will therefore address the Commonwealth’s legal theories in turn.
In its first issue, the Commonwealth contends that opening the bag was
a valid search incident to arrest. Commonwealth’s Brief at 14–25. It states
that the bag remained within Auguste’s immediate control during his arrest.
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Therefore, it argues that the possibility that Auguste could reach the bag
permitted Officer Belatgek to open it.
The purpose of a search incident to arrest is to prevent the arrestee
from accessing a weapon or destroying evidence. E.g., Knowles v. Iowa,
525 U.S. 113, 116 (1998) (citing United States v. Robinson, 414 U.S. 218,
234 (1973)). When a person is arrested, police may search “the person and
the immediate area which the person occupies during his custody.”
Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995). “The central
question is whether the area searched is one ‘within which (the arrested
person) might gain possession of a weapon or destructible evidence.’”
Commonwealth v. Bess, 382 A.2d 1212, 1214 (Pa. 1978) (quoting Chimel
v. California, 395 U.S. 752, 763 (1969)). This is true even after the arrestee
has been brought under some degree of control. Id.The suppression court cited Commonwealth v. Timko, 417 A.2d 620(Pa. 1980). There, the record suggested that an arrestee’s “bag was under
the exclusive control of” officers when it was searched. Id. at 623. Our
Supreme Court held that this did not establish that the search was incident to
arrest. Id.
Here, the suppression court did not find that Auguste’s bag was in
Auguste’s control when Officer Belatgek opened it. While the Commonwealth
urges us to characterize the facts differently than the suppression court found,
that would violate our standard of review. As in Timko, the Commonwealth
did not establish that Auguste could access the bag at the time it was
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searched. Therefore, the suppression court properly concluded that this was
not a valid search incident to arrest.
In its second issue, the Commonwealth argues that exigent
circumstances justified opening the bag. Commonwealth’s Brief at 25–34.
Because the police could conduct a pat-down search of Auguste, Terry v.
Ohio, 392 U.S. 1 (1968), the Commonwealth submits that they could also
search the bag that fell out of the car with Auguste. It reasons that leaving
the bag unopened on the street would have been dangerous.
Auguste responds that the officers did not testify about any danger of
the contents of the bag. He posits that if the police believed the bag was
dangerous, they would not have put it on top of the trunk of the car.
Under Pennsylvania law, the relevant exception to the warrant
requirement generally requires probable cause that evidence will be found and
“exigent circumstances” that prevent obtaining a warrant, such as imminent
danger to the police or the public. Commonwealth v. White, 669 A.2d 896,
902 n.5 (Pa. 1995). In Timko, our Supreme Court held that the mere
possibility that a bag contained a weapon was insufficient to satisfy this
exception:
While the events leading up to the search were such as would lead
a reasonable policeman to believe the zippered bag might contain
a weapon, nothing further occurred to justify an immediate
warrantless search. For example, there is no suggestion the bag
contained explosives or some other item which might in some way
endanger the police officers or others, nor is there a suggestion
the bag or its contents were in danger of concealment or
destruction.
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Timko, 417 A.2d at 623 (emphasis added).
Again, Timko controls. The metallic thud and L-shaped outline in the
bag established probable cause that the bag contained a gun. However, no
exigent circumstances excused the failure to obtain a warrant before opening
the bag. Nothing suggested that the bag would explode. The suppression
court found that neither Auguste nor the driver of the car could reach the bag
when it was opened, negating any danger of concealment or destruction.
Therefore, the suppression court properly concluded that exigent
circumstances did not justify the warrantless search.
In its third issue, the Commonwealth submits that the police would have
inevitably discovered the gun, even if they had not opened the bag on the
street with no warrant. Commonwealth’s Brief at 34–39. The Commonwealth
reasons that the police would have opened the bag either during an inventory
search of the car or while booking Auguste.
Auguste responds that the bag was not in the car when it was towed,
and he points to testimony that the police never conducted an inventory
search of the car.1
We have summarized the doctrine of inevitable discovery:
Evidence which would have been discovered was sufficiently
purged of the original illegality to allow admission of the evidence.
Implicit in this doctrine is the fact that the evidence would have
been discovered despite the initial illegality. Evidence is
admissible under this doctrine where the Commonwealth
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1 Officer Belatgek testified that the car “wasn’t inventoried at all” “pending a
search warrant.” N.T., Suppression, 3/21/22, at 38.
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demonstrates by a preponderance of the evidence that the
illegally obtained evidence inevitably would have been discovered
through lawful means.
Commonwealth v. Heidelberg, 267 A.3d 492, 505 (Pa. Super. 2021)
(quoting Commonwealth v. Anderson, 40 A.3d 1245, 1249 n.6 (Pa. Super.
2012)).
Here, the suppression court made the factual finding that Officer
Belatgek “decided to conduct an inventory search to document what was found
before the vehicle was towed, including the contents of the blue bag.”
Memorandum Opinion, 4/1/22, at 4. However, the court rejected the theory
of inevitable discovery because the bag had fallen out of the car and therefore
“would not have been inspected as an item of an inventory search. It was on
the ground unless the officers improperly placed the bag back in the car.” Id.
at 10.
For purposes of inevitable discovery, the “initial illegality” here is Officer
Belatgek opening the bag without a warrant. The inquiry is whether, if Officer
Belatgek had not unzipped the bag when she did, the police would have
inevitably discovered the gun during an inventory search. First, we observe
nothing illegal or improper about moving the zippered bag from the ground to
the car trunk. The bag was then located on the car.2 The suppression court
made a factual finding that Officer Belatgek decided to conduct an inventory
search on the scene before the car was towed. The bag was part of that
____________________________________________
2 Although the suppression court noted it would have been improper to place
the fallen bag back in the car, it cites no authority for this legal conclusion,
and we are aware of none.
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search. As such, we conclude that the Commonwealth met its burden to prove
that the police would have inevitably discovered the gun. 3 We will therefore
reverse the order granting suppression and remand for trial.
Suppression order reversed. Case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/11/2023
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3 An inventory search is a distinct exception to the warrant requirement, which
generally requires a non-investigative search of an impounded vehicle. See
Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013). Our analysis is
limited to the Commonwealth’s argument that the gun would have been
seized as part of an inventory search, not that it was seized as part of an
inventory search. We therefore do not reach a separate conclusion on the
validity of Officer Belatgek’s decision to search the car before it was towed.
Cf. Commonwealth v. King, 259 A.3d 511, 522 (Pa. Super. 2021) (applying
the doctrine of inevitable discovery to a pre-impoundment inventory search).
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