Com. v. Arrington, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM ARRINGTON :
:
Appellant : No. 1117 WDA 2018
Appeal from the Judgment of Sentence Entered July 10, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002493-2017
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
DISSENTING MEMORANDUM BY BOWES, J.: FILED MARCH 18, 2020
I join the Majority to the extent that it affirms the trial court’s rulings.
However, unlike the Majority, I would also affirm the trial court’s findings that
the protective search of the vehicle, and resulting inventory search, were
lawful. As such, I dissent to the portion of the Majority memorandum that
concludes that the handgun recovered, along with any other evidence derived
from the later inventory search, should have been suppressed.
First, I disagree with the Majority’s decision to reach the substantive
suppression issues without first considering whether Appellant had established
a reasonable expectation of privacy in the contents of the vehicle. It is well-
established that before we may proceed to a determination of an appellant’s
substantive suppression claim, we must first discern whether Appellant has
established standing to challenge the search and a privacy interest in the area
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searched. See Commonwealth v. Burton, 973 A.2d 428, 434-35 (Pa.Super.
2009).
Our Supreme Court has emphasized that these are distinct analyses:
While curiously similar, standing and privacy interest are different
concepts serving different functions. Standing is a legal interest
that empowers a defendant to assert a constitutional violation and
thus seek to exclude or suppress the government’s evidence
pursuant to the exclusionary rules under the Fourth Amendment
of the United States Constitution or Article 1, Section 8 of the
Pennsylvania Constitution. It ensures a defendant is asserting a
constitutional right of his own. The expectation of privacy is an
inquiry into the validity of the search or seizure itself; if the
defendant has no protected privacy interest, neither the Fourth
Amendment nor Article I, § 8 is implicated. In essence, while a
defendant’s standing dictates when a claim under Article I, § 8
may be brought, his privacy interest controls whether the claim
will succeed – once a defendant has shown standing, he must, in
short, have brought his claim, demonstrate its merits by a
showing of his reasonable and legitimate expectation of privacy in
the premises.
See Commonwealth v. Enimpah, 106 A.3d 695, 698-99 (Pa. 2014)
(citations and quotations omitted).
Since Appellant was charged with a possessory offense, he automatically
had standing to challenge the suppression of the items seized. See
Commonwealth v. Viall, 890 A.2d 419, 421 (Pa.Super. 2005). However,
the Commonwealth contends that Appellant failed to establish a legitimate
expectation of privacy in the vehicle’s contents. See Commonwealth’s brief
at 5. I agree.
A reasonable expectation of privacy exists when an individual exhibits
an actual subjective expectation of privacy and that expectation is one that
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society is prepared to recognize as legitimate. See Commonwealth v.
Jones, 874 A.2d 108, 118 (Pa.Super. 2005). In order to discern whether an
expectation of privacy is reasonable, the totality of the circumstances must be
considered and the societal interests involved must be balanced. Id. at 118(“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.”).
The Commonwealth relies on Commonwealth v. Maldonado, 14 A.3d
907 (Pa.Super. 2012), as support for its position that Appellant did not have
a reasonable expectation of privacy in the vehicle. See Commonwealth’s brief
at 7. In Maldonado, the defendant was pulled over while driving a car owned
by his paramour. Maldonado, supra at 911. Police searched the vehicle and
recovered drugs and guns. The defendant challenged the search in a pretrial
motion. At the resulting suppression hearing, the Commonwealth put forth
evidence that the vehicle was owned by the defendant’s girlfriend and that
they both lived at the address where the vehicle was registered. Id. However,
the defendant did not testify or offer any evidence that he had permission to
drive the vehicle. Id. The suppression court granted the defendant’s
suppression motion. On appeal we reversed, finding that Appellant had not
established a reasonable expectation of privacy in the vehicle since he did not
own the vehicle, it was not registered to him, and he had not shown authority
to operate it. Id. at 911-12.
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Here, at the suppression hearing, the Commonwealth established that
the automobile was a leased vehicle. See N.T. Suppression Hearing, 2/14/18,
at 15, 34-35, 37. However, it was never revealed to whom the vehicle was
leased. Appellant did not testify or otherwise offer any evidence establishing
that he was the lessee of the vehicle or that he had the lessee’s permission to
operate it. Instead, the sole testimony about the ownership of the car came
from Pittsburgh Police Officer Gino Macioce, who explained that the vehicle
was a leased car, but that he did not know to whom the vehicle was leased.1
Id. at 39-40.
Accordingly, as in Maldonado, I would conclude that Appellant has
failed to establish a legally cognizable expectation of privacy in the vehicle.
See, Maldonado, supra at 911-12; see, e.g., Commonwealth v. Perea,
791 A.2d 427, 429 (Pa.Super. 2002) (finding that an appellant had not
established a privacy interest in a vehicle where he merely possessed the keys
needed to unlock it, without any paperwork to show ownership or any other
legitimate connection to it). Since we may affirm on any basis supported by
the record, I would affirm the trial court’s denial of the suppression motion on
____________________________________________
1In its brief, the Commonwealth correctly points out that although testimony
at trial revealed that Appellant had rented the vehicle, we cannot examine
evidence beyond the suppression hearing when reviewing a pretrial
suppression issue, unless it is established that such evidence was unavailable
during the suppression hearing. See Commonwealth’s brief at 5 n.1.
Appellant has leveled no such contention.
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the ground that Appellant did not establish a reasonable expectation of privacy
in the vehicle and its contents.
Although my proposed disposition would obviate the need to reach the
substantive suppression issue addressed by the Majority, I will briefly explain
why I also disagree with this portion of my colleagues’ analysis. In short, our
differing conclusion on the substantive suppression issue stem from the
Majority’s failure to apply the proper standard of review. See Majority
Memorandum at 4. In its summation, the Majority reviewed the facts elicited
at the suppression hearing de novo. It is well-settled that where “the
Commonwealth prevail[s] 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.” Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super.
2017). Therefore, while the trial court’s conclusions of law are subject to
plenary review, we are bound by the trial court’s factual findings when they
are supported by the record. Id.The Majority summarized the factual findings that the suppression court
made that led it to determine that the officers were justified in performing a
protective sweep of the vehicle as follows:
In its factual findings, the suppression court credited Officer
Macioce’s testimony that: (1) the stop occurred in the dark at
2:00 a.m. in a high crime area; (2) Appellant exhibited signs of
intoxication and nervousness when he was staring off and failing
to comply with the officer’s requests and demands; (3) Appellant
was observed moving slowly and deliberately inside of the vehicle,
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raising concerns that Appellant could have access to a weapon;
(4) Appellant’s concealed carry permit had been revoked; and (5)
that the DUI investigation was ongoing such that officers were
going to have to release Appellant from the handcuffs in order for
him to do field sobriety testing.
See Majority Memorandum at 11. However, instead of accepting the
foregoing facts as true, and discerning whether the law supported the
suppression court’s ultimate legal conclusion, the Majority substituted in its
own evaluation of the credibility of Officer Macioce’s testimony. Specifically,
the majority concluded that Officer Macioce’s testimony did not support a
finding that Appellant engaged in furtive movements or appeared nervous,
facts that the suppression court plainly found when it credited Officer
Macioce’s testimony. See Majority Memorandum at 11. Such a conclusion
runs counter to our standard of review.
When viewing the evidence through the lens that our standard of review
mandates, and applying the legal standard required for a wingspan search as
articulated by the Majority, I would find that the protective sweep was legally
justified. The stop occurred shortly after midnight in an “extreme high crime
area,” creating a heightened danger that the officers would not be able to view
Appellant if he did reach for a weapon. See Commonwealth v. Jackson,
907 A.2d 540, 545 (Pa.Super. 2006) (recognizing that frisks for weapons can
be appropriate when police confront a suspect in an area known for guns and
violence). Appellant had been driving dangerously and initially failed to
comply with basic commands to put his vehicle in park. Appellant also
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exhibited nervousness, had a revoked gun permit, and was observed
“reaching around” while in the vehicle. This evasive behavior supported the
officers’ concerns for their safety. Commonwealth v. Truggles, 58 A.3d
840, 844 (Pa.Super. 2012) (“Where a person performs an activity that is
indicative of an attempt to secrete a weapon, that movement, regardless of
whether it is singular or multiple, can support a belief that the person has a
gun.”).
Given the totality of the facts at Officer Macioce’s disposal, I agree with
the trial court that the officer reasonably believed that a weapon may have
been secreted within Appellant’s wingspan, such that the resulting search was
not unconstitutional. See, e.g., Commonwealth v. In re O.J., 958 A.2d
561, 566 (Pa.Super. 2008) (finding reasonable suspicion where the traffic stop
occurred at night, the defendant initially failed to stop his vehicle when
signaled by police, made furtive movements inside the vehicle, and was going
to be released back to his vehicle).
In arriving at its contrary conclusion, the Majority views as dispositive
the fact that, at the time of the protective sweep, Appellant had already been
removed from the vehicle and handcuffed. See Majority Memorandum at 12
(“Arrington was in handcuffs, positioned at the rear of his vehicle, out of reach
of the passenger compartment. . . . Therefore, Arrington posed no threat to
the officers’ safety.”). However, reaching such a definitive conclusion based
solely on the fact that Appellant had been temporarily removed from the
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vehicle is not supported by our precedent or the testimony elicited at the
suppression hearing.
It is well-established that a protective search of the interior of a vehicle
is not unreasonable simply because the person is under police supervision
outside of the vehicle. See Commonwealth v. Morris, 644 A.2d 721 (Pa.
1994) (adopting Michigan v. Long, 463 U.S. 1032, 1051 (1983) (rejecting
the contention that a protective search of the interior of a car is unreasonable
where the person is under police supervision outside of the vehicle)). Instead,
a proper analysis focuses on whether a danger remains that the suspect could
access weapons inside of the vehicle. See, e.g. In re O.J., supra at 563
(“Even though Appellee and the passenger were secure at that point, a brief
search of the car was necessary because Appellee and the passenger were not
going to be placed under arrest for the Motor Vehicle Code violations but were
going to be allowed to return to their car.”); see also Long, supra at 1051(upholding a protective sweep where the police intended to release the
suspect from his handcuffs, because once the suspect reentered his
automobile, he would regain access to any weapons that might have been
located in the vehicle).
Here, the officers intended to remove the handcuffs from Appellant so
that he could engage in field sobriety testing. N.T. Suppression Hearing,
2/14/18, at 40. Further, Officer Macioce explained that, if Appellant had
succeeded on the field sobriety testing, he would have been released back to
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his vehicle because he would have only been charged with a Motor Vehicle
Code violation. Id. Therefore, the danger that Appellant could have accessed
a weapon secreted inside the vehicle had not been extinguished at the time
that the officers conducted the protective sweep.
Based on the foregoing discussion, I respectfully dissent from the
Majority’s decision to reverse the judgment of sentence on Appellant’s
firearms not to be carried without a license, possession of drug paraphernalia,
possession of a controlled substance, and possession with intent to deliver
convictions. I would also affirm the trial court’s denial of Appellant’s
suppression motion.
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