Com. v. Felder, A.

J-A17037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTHONY L. FELDER :
:
Appellant : No. 2430 EDA 2021
Appeal from the Judgment of Sentence Entered October 20, 2021
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0002334-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTHONY L. FELDER :
:
Appellant : No. 2431 EDA 2021
Appeal from the Judgment of Sentence Entered October 20, 2021
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005807-2020
BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 21, 2023
Anthony L. Felder (Felder) appeals from the judgment of sentence
entered in the Court of Common Pleas of Bucks County (trial court) following
his bench trial convictions for two counts each of persons not to possess
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A17037-23
firearms and carrying firearms without a license, and one count of possession
of a controlled substance.1 We affirm in part and reverse in part.
I.
A.
The trial court opinion set forth the relevant facts of this appeal as
follows:
Officer Harley is a patrol officer for the Bensalem Township Police
Department and has been so employed for approximately two
years. Prior to his employment with the Bensalem Township Police
Department, Officer Harley served as a SEPTA Transit Police
Officer in Philadelphia for approximately three years. Officer
Harley also testified to his personal experience and knowledge of
firearms as, not only a seasoned police officer, but also as an avid
collector. Officer Harley testified that he has owned revolver-type
firearms in the past and explained that “Generally, a revolver,
usually metal. Usually has a curved handle, solid curved handle,
has a cylinder in the middle that holds the ammo. It has the
hammer on the back that you can use to, you know, cock the
gun.”
On May 1, 2020, at approximately 10:31 p.m., Officer Harley
responded to an “abandoned 911 call” reported from the Knights
Inn motel room number 163 located at 2707 Lincoln Highway in
Bensalem Township. Officer Harley testified that by “abandoned
911 call” what is meant is that someone from room 163 called the
police 911 line and then hung up.
* * *
Officer Harley arrived on scene at approximately 10:44 p.m.
Officer Harley parked his Bensalem Township patrol wagon in the
parking lot of the Knights Inn near rooms 162 and 163. When
Officer Harley first arrived on scene, he stayed in his patrol wagon
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1 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), and 35 P.S. § 780-113(a)(16),
respectively.
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in order to assess the area as Officer Harley did not know what to
expect given that he was responding to an “abandoned 911 call.”
* * *
Officer Harley testified that he sat in the patrol wagon for
approximately forty seconds and observed an individual, later
identified as Melvin Dixon, standing outside of room 163, the room
from which the abandoned 911 call came. Officer Harley testified
that he observed Mr. Dixon coming in and out of room 163 at this
time. Officer Harley also observed Mr. Dixon making gestures
towards a vehicle—an orange Ford Mustang—parked directly in
front of rooms 162 and 163, as if an individual were inside the
vehicle. Officer Harley observed the gestures of Mr. Dixon and
explained that it appeared as if he was communicating with an
individual inside the Mustang regarding Officer Harley’s presence
on scene. Officer Harley testified that he believed these
individuals were attempting to communicate about him because
Mr. Dixon would be “looking in the car at the subject sitting in the
car, and then he would look at me and kind of shrug his shoulders,
and then kind of look back at the guy in the car, and then kind of
look over at me.”
At this time, Officer Harley exited his vehicle and approached Mr.
Dixon in front of room 163. As Officer Harley was walking, he
noticed the individual inside the Mustang making furtive
movements as if he was putting or grabbing something from the
driver’s door compartment. Officer Harley shined his flashlight
into the vehicle through the passenger side window and observed
Felder … hunched over in the driver seat reaching down into the
driver’s door compartment area. Officer Harley then asked Felder
‘what he was doing’ at which point Felder abruptly exited the
vehicle, startling Officer Harley, and pointed to room 162 saying
that was his room. Officer Harley testified … that Officer Harley
did not ask Felder to exit the Mustang. Officer Harley then told
[Felder]it looked like he was tucking something in the driver side
door, which [Felder] denied and then told Officer Harley ‘you can
search everything.’ Officer Harley then came around the back of
the Mustang and asked Felder if he had any weapons on him, at
which point [Felder] put up his hands and said “no.”
* * *
Officer Harley then informed Felder that he was going to pat him
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down for officer safety.
* * *
From the pat down, which Officer Harley described as running his
open palms over the silhouette of [Felder’s] body, Officer Harley
discovered a revolver on the left hip of [Felder], which Officer
Harley confiscated. Specifically, Officer Harley explained that he
immediately recognized the revolver from the plain feel on
[Felder’s] left hip because he “felt a curved shape solid object that
was consistent with a handle of a revolver that was tight to his
waist just above his belt line, just above his belt.” Officer Harley
checked the revolver and found that it contained no bullets.
Officer Harley then handcuffed [Felder] and called for backup.
* * *
Officer Harley further testified that he was the only officer on
scene at this point and that he was outnumbered by Felder and
Mr. Dixon. Officer Harley is approximately 5’ 7” and weighs
approximately 165 pounds, whereas both Felder and Mr. Dixon
are larger individuals, with [Felder]—in particular—being
significantly larger than Officer Harley, as [Felder] is over 6 feet
tall and weighs over 200 pounds. Officer Harley also testified
while he was taking Felder into custody, Mr. Dixon also presented
safety concerns in that he attempted to go back into Room 163
and Officer Harley told him to stop, because he did not want a
potential suspect to leave his line of sight, especially by entering
the very room Officer Harley was there to investigate.
Once Officer Harley had placed Felder in handcuffs, he asked
Felder if he had a license to carry the revolver, to which Felder
initially responded yes. However, Officer Harley then asked
[Felder]if he had a criminal record, to which Felder said yes. At
this point, Officer Harley asked Felder how he could have a license
to carry a firearm if he had a criminal record. Felder said that he
had his record expunged, to which Officer Harley explained to
[Felder]that he was going to run a search to essentially discover
whether or not [Felder] was telling him the truth. [Felder] finally
responded that he did not have a license to carry the revolver.
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(Trial Court Opinion, filed 5/2/22, at 6-11) (record citations omitted).2
After Officer Harley placed Felder in the back of his patrol car, the back-
up officers who arrived at the scene decided to have the Mustang towed. The
trial court explained the circumstances surrounding the tow as follows:
Officer [Michael] Owen further testified that the officers believed
they had the authority to conduct an inventory search of the
vehicle, before towing the vehicle away, because (1) the
registration on the Mustang did not match the license plate and
revealed that the license plate belonged to a Lexis owned by a
different individual (2) a search of [Felder’s] license revealed that
his license was suspended and expired (3) the VIN number of the
Mustang was designated as “open” which means the vehicle was
not registered (4) the inspection stickers on the vehicle were
invalid or expired and as such it would not be legal for this vehicle
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2 The record on appeal includes the DVD containing Officer Harley’s body
camera footage from his interaction with Felder. This Court reviewed the
footage, which confirmed the suppression court’s findings of fact. Specifically,
the footage revealed that Officer Harley exited his patrol car and walked
toward the passenger side of the Mustang while putting on rubber gloves.
(See Commonwealth’s Exhibit CS-4 at 0:28-0:44). At that point, Mr. Dixon
was not standing outside. After putting on the gloves, Officer Harley
illuminated his flashlight and pointed it at the Mustang’s passenger-side
window. (Id. at 0:45). Felder was inside the Mustang, seated in the driver’s
seat. (Id. at 0:45-0:46). While Felder was making the furtive movements,
Mr. Dixon exited from the motel room. (Id. at 0:46). Officer Harley spoke
first and asked, “What’s going on?” (Id. at 0:48-0:49). Simultaneously,
Felder exited the vehicle. Felder responded, “We’re alright.” (Id. at 0:50-
0:52). Felder made a pointing gesture and told the officer, “This is my
apartment right here.” (Id. at 0:55-0:57). Officer Harley then asked, “What
did you just tuck in the door when I walked up here?” (Id. at 1:01-1:03).
Felder replied, “Nothing. You can search everything, bro. I didn’t touch
nothing.” (Id. at 1:03-1:06). The officer asked whether Felder and Mr. Dixon
were “together,” and he rounded the Mustang to approach Felder, who stood
next to the front door on the driver’s side. (Id. at 1:08-1:12). Officer Harley
asked Felder whether he was carrying any contraband. (Id. at 1:12-1:14).
Felder immediately put his hands in the air, and Officer Harley commenced
the pat down. (Id. at 1:14-1:22).
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to be on the roadway (5) there were no individuals on scene that
could rightfully take control of the vehicle as Mr. Dixon had an
outstanding warrant and was intoxicated at the time and (6) that
the Knights Inn is known to Bensalem Police as a high crime area
where auto-theft and vehicle damage occurs frequently.[3]
Officer Owen then testified to conducting the inventory search of
the Mustang before towing the vehicle after receiving instructions
from his superior officer, Sergeant McGinty. Officer Owen testified
to completing the vehicle inventory form … while performing the
inventory search of the vehicle, which is also captured on Officer
Owen’s body camera footage. The body camera footage
demonstrates that the officer is physically conducting the
inventory search in a manner consistent with an inventory search,
carefully removing items from the trunk and recording relevant
information on the required form. The body camera footage,
along with the testimony of Officer Owen, shows that Officer Owen
searched the trunk of the Mustang and found a garment bag.
Officer Owen then felt the green garment bag and stated, on
video, that it felt like a rifle, based off of the feel, length and
weight of the item in the bag. Officer Owen then unzipped the
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3 At the suppression hearing, Felder attempted to explain his connection to
the Mustang, stating he was in the process of purchasing the vehicle and he
had already obtained the title. (See N.T. Suppression Hearing, 8/3/21, at 99-
100). Despite the issues concerning the Mustang’s ownership, the
Commonwealth did not argue that Felder lacked a privacy interest in the
vehicle. (Id. at 132-58). To the extent that the Commonwealth mentioned
these issues, it did so as a justification for impounding the vehicle and ordering
the tow. (Id. at 149-54). Consequently, we do not address whether Felder
had a reasonable expectation of privacy in the vehicle. See Commonwealth
v. Enimpah, 630 Pa. 357, 368-69, 106 A.3d 695, 701 (2014) (stating it is
the Commonwealth’s burden to present evidence that defendant’s
constitutional rights were not infringed; Commonwealth may concede privacy
interest, choosing to contest only legality of police conduct; if it does so,
defendant’s “reasonable expectation of privacy” need not be established);
Commonwealth v. Peak, 230 A.3d 1220, 1224 (Pa. Super. 2020), cert.
denied, ___ U.S. ___, 141 S.Ct. 1426, 209 L.Ed.2d 150 (2021) (stating the
Commonwealth did not make argument regarding Felder’s reasonable
expectation of privacy in vehicle during suppression hearing; for that reason,
the trial court did not address Felder’s expectation of privacy, or lack thereof,
in its opinion, and this issue is waived on appeal).
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garment bag and found a large blue fabric case inside, which
Officer Owen then opened revealing the SKS rifle.
(Id. at 17-18) (record citations omitted).
B.
On April 23, 2021, Felder filed an omnibus pretrial motion seeking the
suppression of evidence. Felder argued that “Officer Harley did not have
probable cause or reasonable suspicion to believe that [Felder] was armed
and dangerous,” and the officer conducted an illegal pat down that “was not
incident to a valid arrest or consent.” (Suppression Motion, filed 4/23/21, at
¶24). Felder also argued that the police conducted an illegal search of the
vehicle which “was not pursuant to a lawful consent, a lawful arrest, a search
warrant or a valid inventory search.” (Id. at ¶27). On August 2, 2021, the
court commenced a suppression hearing. The court received additional
testimony on August 3, 2021. On August 4, 2021, the court denied the
suppression motion and provided its findings of fact and conclusions of law.
Felder proceeded to a bench trial, and the parties stipulated to the
incorporation of all evidence produced at the suppression hearing. At the
conclusion of trial, the court found Felder guilty on all counts. On October 20,
2021, the trial court imposed a sentence of not less than four years to not
more than ten years on each count of possession of firearms as well as a
sentence of not less than two years to not more than seven years on the count
of firearms without a license and two years of probation on the possession
charge. All sentences were ordered to run concurrently with each other. The
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court sentenced Felder to an aggregate term of four to ten years’
imprisonment, followed by two years of probation. Felder did not file post-
sentence motions.
Felder timely filed separate notices of appeal at each of the underlying
docket numbers on November 18, 2021. On November 19, 2021, the court
ordered Felder to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. After obtaining multiple extensions, Felder filed his
Rule 1925(b) statement on March 30, 2022. On January 3, 2023, Felder filed
an application in this Court to consolidate his appeals. This Court granted the
application for consolidation on February 6, 2023.
Felder now raises two issues for this Court’s review:
Did the trial court err in denying Felder’s motion to suppress the
illegal detention and search of Felder that resulted in the recovery
of a handgun on Felder’s person.
Did the trial court err in denying Felder’s motion to suppress the
warrantless search of the vehicle he stepped out of and admitting
the SKS rifle found during said search.
(Felder’s Brief at 4).4
____________________________________________
4 The following principles govern our review of an order denying a motion to
suppress:
An appellate court’s 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
(Footnote Continued Next Page)
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II.
A.
In his first issue, Felder claims that Officer Harley approached the
Mustang, and “what could have been a mere encounter immediately escalated
into an investigative detention.” (Id. at 27). Felder insists that Officer Harley
did not possess reasonable suspicion of criminal activity to support the
investigative detention. Felder emphasizes that 1) Officer Harley did not
actually see Felder hiding or retrieving an object inside the vehicle; 2) Officer
Harley had no reason to believe Felder’s furtive movements were illegal; and
3) Officer Harley did not know whether a crime had occurred when he first
saw Felder. Felder also asserts that the presence of a parked vehicle “late at
night in a location consistent with criminal activity does not by itself create
suspicion that the occupant of the vehicle is engaged in criminal activity.” (Id.
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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, the appellate court is bound by those
findings and may reverse only if the court’s legal conclusions are
erroneous. Where 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 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 plenary review.
Commonwealth v. Ford, 175 A.3d 985, 989 (Pa. Super. 2017).
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at 35). Under these circumstances, Felder concludes that the court erred by
failing to suppress the firearm recovered from Felder’s person. We disagree.
Contacts between the police and citizenry fall within three general
classifications:
The first [level of interaction] is a “mere encounter” (or request
for information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to respond.
The second, an “investigative detention” must be supported by a
reasonable suspicion; it subjects a suspect to a stop and a period
of detention, but does not involve such coercive conditions as to
constitute the functional equivalent of an arrest. Finally, an arrest
or “custodial detention” must be supported by probable cause.
Commonwealth v. Bryant, 866 A.2d 1143, 1146 (Pa. Super. 2005), appeal
denied, 583 Pa. 668, 876 A.2d 392 (2005) (quoting Commonwealth v.
Phinn, 761 A.2d 176, 181 (Pa. Super. 2000)).
An “investigative detention” is interchangeably labeled as a “stop and
frisk” or a “Terry stop.”5 Commonwealth v. Brame, 239 A.3d 1119 (Pa.
Super. 2020), appeal denied, ___ Pa. ___, 251 A.3d 771 (2021).
An investigative detention, unlike a mere encounter, constitutes a
seizure of a person and thus activates the protections of Article 1,
Section 8 of the Pennsylvania Constitution. To institute an
investigative detention, an officer must have at least a reasonable
suspicion that criminal activity is afoot. Reasonable suspicion
requires a finding that based on the available facts, a person of
reasonable caution would believe the intrusion was appropriate.
* * *
Reasonable suspicion exists only where the officer is able to
articulate specific observations which, in conjunction with
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5 Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
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reasonable inferences derived from those observations, led him
reasonably to conclude, in light of his experience, that criminal
activity was afoot and that the person he stopped was involved in
that activity.
Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (internal
citations omitted).
B.
“[T]he question of whether reasonable suspicion existed at the time of
an investigatory detention must be answered by examining the totality of the
circumstances to determine whether there was a particularized and objective
basis for suspecting the individual stopped of criminal activity.”
Commonwealth v. Cottman, 764 A.2d 595, 598-99 (Pa. Super. 2000)
(quoting Commonwealth v. Beasley, 761 A.2d 621, 625 (Pa. Super. 2000)).
“These circumstances are to be viewed through the eyes of a trained officer,
not an ordinary citizen.” Commonwealth v. Jackson, 907 A.2d 540, 543
(Pa. Super. 2006), appeal denied, 593 Pa. 754, 932 A.2d 75 (2007).
In making this determination, we must give due weight … to the
specific reasonable inferences [the police officer] is entitled to
draw from the facts in light of his experience. Also, the totality of
the circumstances test does not limit our inquiry to an
examination of only those facts that clearly indicate criminal
conduct. Rather, even a combination of innocent facts, when
taken together, may warrant further investigation by the police
officer.
Commonwealth v. Young, 904 A.2d 947, 957 (Pa. Super. 2006), appeal
denied, 591 Pa. 664, 916 A.2d 633 (2006) (internal citation and quotation
marks omitted).
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“[R]oadside encounters between police and suspects are especially
hazardous, and that danger may arise from the possible presence of weapons
in the area surrounding a suspect.” In re O.J., 958 A.2d 561, 564 (Pa. Super.
2008) (en banc), appeal denied, 605 Pa. 688, 989 A.2d 918 (2010). “The
officer need not be absolutely certain that the individual is armed; the issue
is whether a reasonably prudent [person] in the circumstances would be
warranted in the belief that [their] safety or the safety of others was in
danger.” Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010),
appeal denied, 608 Pa. 660, 13 A.3d 474 (2010). An officer’s “observation of
furtive movements, within the scope of a lawful stop, [can lead] him to
reasonably be concerned for his safety and therefore justif[y] the Terry
protective frisk.” Commonwealth v. Simmons, 17 A.3d 399, 404 (Pa.
Super. 2011), appeal denied, 611 Pa. 651, 25 A.3d 328 (2011). See also
Commonwealth v. Foglia, 979 A.2d 357, 361 (Pa. Super. 2009) (en banc)
(stating: “if a suspect engages in hand movements that police know, based
on their experience, are associated with the secreting of a weapon, those
movements will buttress legitimacy of a protective weapons search of the
location where hand movements occurred”); Commonwealth v. Tuggles,
58 A.3d 840, 844 (Pa. Super. 2012) (explaining: “[w]here a person performs
an activity that is indicative of an attempt to [hide] a weapon, that movement,
regardless of whether it is singular or multiple, can support a belief that the
person has a gun”).
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In this case, the suppression court concluded that Officer Harley
conducted a legal Terry stop:
In this case Officer Harley was investigating an abandoned 911
call, specifically the officer was investigating room 163 of the
Knights Inn. Upon arrival he observes Mr. Dixon making gestures
to the Mustang parked in front of room 163 and gesturing to
Officer Harley’s vehicle. When Officer Harley approached room
163, he observed Felder in the Mustang, with the lights off,
reaching down and hunched over in the vehicle. Such movements
are consistent with an individual either concealing or reaching for
a weapon and thus justify Officer Harley’s reasonable belief that
… Felder may be armed and dangerous. Moreover, the fact that
Officer Harley was outnumbered, by Felder and Mr. Dixon, the fact
that Felder got out of the Mustang, without Officer Harley
requesting he do so, and the fact that both Felder and Mr. Dixon
were directly in front of room 163—the room from which the 911
call originated and thus the subject of Officer Harley’s
investigation—are relevant to the totality of the circumstances and
establish that Officer Harley was warranted in his reasonable belief
that his safety or the safety of others was in danger.
(Trial Court Opinion at 12) (internal citations omitted). Based on our review
of the record, we cannot say that the court erred in reaching this conclusion.
We emphasize that this case involves a combination of facts that, when
taken together, warranted further action by Officer Harley. See Young,
supra. Significantly: 1) Officer Harley responded to an abandoned 911 call
after dark; 2) the call originated from a motel room in a high-crime area; 3)
upon arriving at the room where the call originated, Officer Harley was
outnumbered by Felder and Mr. Dixon; 4) Officer Harley observed Felder’s
furtive movements inside the vehicle; and 5) after making the furtive
movements, Felder exited the vehicle without prompting. Under the totality
of these circumstances, Officer Harley’s observations created a reasonable
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concern for officer safety, which justified the Terry stop. See Simmons,
supra; Cooper, supra. Felder is not entitled to relief on his first claim.
III.
A.
In his second issue, Felder contends the police opted to tow the
Mustang, even though it was lawfully parked in a parking spot at the Knights
Inn. Although the police claimed to have conducted an inventory search prior
to the tow, Felder maintains that the police engaged in an illegal, warrantless
search.
Citing Commonwealth v. Brandt, 366 A.2d 1238 (Pa. Super. 1976),
Felder insists there are two requirements that the Commonwealth must
demonstrate to justify an inventory search: 1) the vehicle was lawfully within
police custody; and 2) the search was, in fact, for the purpose of taking an
inventory of the owner’s possessions to protect that property while it remains
in police custody. Here, Felder maintains that the search was pretextual
because the police made no attempt to take an accurate inventory and protect
the property inside the Mustang. Felder notes that the inventory list prepared
by Officer Owen did not include certain items of value, including a gold chain
hanging from the rearview mirror. Felder also argues that Officer Owen “was
clearly looking for contraband” where the scope of the inventory search
included “the spare tire compartment, the engine compartment, and the door
on the fuel cap[.]” (Felder’s Brief at 47). Under these circumstances, Felder
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concludes that the court erred by failing to suppress the firearm recovered
from the trunk of the Mustang.
In justifying the search, the Commonwealth contends that search of the
car was voluntarily because Felder informed Officer Harley that he could
“search everything” within seconds of the officer’s initial approach.
(Commonwealth’s Brief at 10). The Commonwealth emphasizes that Officer
Harley did not coerce Felder’s consent where “[t]he officer did not have a
weapon drawn, did not yell, [and] did not issue commands of any kind.” (Id.
at 10-11). The Commonwealth posits that Felder gave consent to search
“without limitation and, based on the surrounding circumstances, clearly
contemplated a search of the car that [Felder] had just come out of[.]” (Id.
at 36). Moreover, the Commonwealth contends that Felder did not
subsequently withdraw his consent. The Commonwealth contends that
concludes that the police legally searched the Mustang pursuant to Felder’s
consent, and this Court should affirm the denial of the suppression motion on
this basis of the voluntariness of the search. Before addressing Felder’s
argument that the inventory search was pretextual, we will first address the
Commonwealth’s contention.
B.
“Both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
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Heidelberg, 267 A.3d 492, 502 (Pa. Super. 2021) (en banc), appeal denied,
___ Pa. ___, 279 A.3d 38 (2022). “As a general rule, ‘a warrant stating
probable cause is required before a police officer may search for or seize
evidence.’” Id. (quoting Commonwealth v. Anderson, 40 A.3d 1245, 1248
(Pa. Super. 2012)). Regarding automobiles, “Article I, Section 8 affords
greater protection to our citizens than the Fourth Amendment, and … the
Pennsylvania Constitution requires both a showing of probable cause and
exigent circumstances to justify a warrantless search of an automobile.”
Commonwealth v. Alexander, ___ Pa. ___, ___, 243 A.3d 177, 181 (2020).
“Absent the application of one of a few clearly delineated exceptions, a
warrantless search or seizure is presumptively unreasonable.” Heidelberg,
supra at 502 (quoting Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa.
Super. 2013)). “One such exception is consent, voluntarily given.”
Commonwealth v. Strickler, 563 Pa. 47, 56, 757 A.2d 884, 888 (2000).
“Whether an individual has voluntarily consented to a search ‘is [a question
of] fact which must be determined in each case from the totality of the
circumstances.’” Commonwealth v. Rosas, 875 A.2d 341, 349 (Pa. Super.
2005), appeal denied, 587 Pa. 691, 897 A.2d 455 (2006) (quoting
Commonwealth v. Mancini, 490 A.2d 1377, 1383 (Pa.Super. 1985)).
“The central Fourth Amendment inquiries in consent cases entail
assessment of the constitutional validity of the citizen/police encounter giving
rise to the consent; and, ultimately, the voluntariness of consent. Where the
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underlying encounter is found to be lawful, voluntariness becomes the
exclusive focus.” Strickler, supra at 56-57, 757 A.2d at 888-89 (internal
citations and footnote omitted).
[T]he Commonwealth bears the burden of establishing that a
consent is the product of an essentially free and unconstrained
choice—not the result of duress or coercion, express or implied,
or a will overborne—under the totality of the circumstances. As
noted, while knowledge of the right to refuse to consent to the
search is a factor to be taken into account, the Commonwealth is
not required to demonstrate such knowledge as a prerequisite to
establishing a voluntary consent. Additionally, although the
inquiry is an objective one, the maturity, sophistication and
mental or emotional state of the defendant (including age,
intelligence and capacity to exercise free will), are to be taken into
account.
Id. at 79, 757 A.2d at 901. “The test for the validity of a consent to search
is the same for both the Fourth Amendment and Article I, Section 8, i.e., that
the consent is given voluntarily.” Commonwealth v. Mack, 568 Pa. 329,
334, 796 A.2d 967, 970 (2002).
C.
Officer Harley testified that he arrived at the scene of the abandoned
911 call and he stopped his vehicle “just shy of being right in front of the
room” where the call originated. (N.T. Suppression Hearing, 8/2/21, at 52).
From his patrol car, Officer Harley observed Mr. Dixon standing in front of the
door to Room 163. Mr. Dixon was “making gestures” to Felder, who was
“sitting in a car which was parked directly in front of the door of 163.” (Id.
at 54). Officer Harley exited his patrol car and “proceeded to walk to Room
163.” (Id. at 57). As he walked past the passenger side of Felder’s vehicle,
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Officer Harley observed Felder making furtive movements while seated in the
driver’s seat. At that point, Officer Harley pointed his flashlight toward the
Mustang and asked Felder if he was reaching for anything. Without any
prompting from Officer Harley, Felder exited the vehicle and said, “You can
search everything.” (Id. at 62). Thereafter, Officer Harley conducted the
frisk and detained Felder.
Felder also testified at the suppression hearing. On direct examination,
Felder explained that he first noticed Officer Harley “when he put his flashlight
in my face.” (N.T. Suppression Hearing, 8/3/21, at 95). Felder looked “to see
where the light was coming from,” and he exited the vehicle. (Id.) Felder
acknowledged that Officer Harley asked whether he had tucked something
into the compartment of the driver’s side door. Based upon the officer’s “tone
of voice,” Felder believed that he was not free to leave, and the officer was
“interrogating” him. (Id. at 96). On cross-examination, Felder elaborated on
his subsequent offer to search the vehicle:
I said in regards to the door and the compartment. I told him he
can search everything as far as the door and the compartment,
not me or not—I didn’t—I wasn’t referring to me, or I wasn’t
referring to anything else as far as the car, because my car door
was already open. He had already—I seen he had already had the
flashlight through the other window on the door compartment
looking in the compartment as I was getting out the car. So that’s
why I told him, I said, I’m not hiding nothing. You see what I’m
—you see I’m getting out the car. I’m not hiding nothing. You
can look and search right here, search everything.
(Id. at 109).
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The trial court initially indicated that Felder did not limit the scope of his
voluntary consent:
There’s also an important factual thing, which is, when Officer
Harley walks around the back of the Mustang and is asking, “Do
you have any weapons,” and has already asked, “What were you
tucking into the door,” and [Felder’s] own testimony was that he
says, “You could search any—everything.”
Now, [Felder] says he meant, like, the area of the door, which is
where Officer Harley has some concerns, or expressed some
concerns, but he didn’t say—he didn’t limit that. He said, “You
could search everything.”
(N.T. Suppression Hearing, 8/4/21, at 26).
While the trial court initially made that statement, it walked back that
statement by declining to reach that the issue was consensual, stating:
There’s also an important factual thing, which is, when Officer
Harley walks around the back of the Mustang and is asking, “Do
you have any weapons,” and has already asked, “What were you
tucking into the door,” and Felder’s own testimony was that he
says, “You could search any— everything.”
Now, Felder says he meant, like, the area of the door, which is
where Officer Harley has some concerns, or expressed some
concerns, but he didn’t say—he didn’t limit that. He said, “You
could search everything.”
Now, the case doesn’t really turn on any kind of consensual
search idea, but in theory it could have. I don’t know what
that means, You can search everything. That might have
been consent to search the vehicle. It might have constituted a
consent to pat-down or whatever. And it’s—the Court has to
consider that possibility.
N.T., 8/4/21, at 26-27 (emphasis added). The trial court also declined to
make an explicit finding that Felder consented to the pat down search, though
it acknowledged the possibility. Id. at 32 (“And Felder puts his hands up
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immediately and says, You can search everything. And so, is the pat-down a
consensual pat-down? Maybe.”). Finally, in its opinion pursuant to Rule of
Appellate Procedure 1925(a), the trial court discussed the inventory search at
length without relying on Felder’s purported consent to explain why
suppression was denied. Trial Court Opinion, 5/2/22, at 13-22. Based on this
full context, I would not elevate the trial court’s initial comments about
Felder’s consent to a factual finding that is binding on this Court on appeal.
Additionally, we share the trial court’s hesitation to find that Felder’s
statement, uttered immediately upon being approached by Officer Harley,
constituted voluntary consent to search the entire vehicle after he had been
placed under arrest. For consent to search to be constitutionally valid, it must
be given intelligently and voluntarily. Commonwealth v. Valdivia, 195 A.3d
855, 862 (Pa. 2018) (quotations & citation omitted). A consent search must
be limited to the scope of the consent given, and that scope is determined
based on a standard of objective reasonableness. Id. “We do not ascertain
the scope of consent from the individual’s subjective belief or the officer’s
understanding based on his or her training and experience, but based on what
the typical reasonable person would have understood by the exchange
between the officer and the suspect.” Id. (cleaned up; citations omitted).
Thus, the scope of consent provided is a fact-specific inquiry.
Felder cooperated with Officer Harley when he was approached. Officer
Harley first said, “What did you just tuck in the door when I walked up here,”
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to which Felder replied, “Nothing. You can search everything, bro. I didn’t
touch nothing.” Commonwealth Exhibit 4 at 1:01-1:06. Felder then
acquiesced to the pat down search, complying fully with Officer Harley’s
instructions, and was placed under arrest. Officer Harley did not search the
driver’s side door at that time.
After Felder was arrested and placed in the back of the police van,
however, Officer Harley again asked for consent to search the vehicle. At that
juncture, when the coercive pressure of the situation had increased from the
initial interaction, Felder responded to Officer Harley’s multiple requests for
consent by stating that the vehicle did not belong to him. Id. at 10:12-11:02.
Later, Felder asked Officer Harley to retrieve his cell phone from the vehicle
and give it to one of his companions at the Knights Inn, again stating that the
car did not belong to him. Id. at 24:15-24:45. At that point, Officer Harley
approached the sergeant on scene and stated that he had permission to enter
the car to look for Felder’s phone, and another officer informed him that the
phone was already in evidence. Id. at 24:55-25:32. The officers then decided
to inventory and tow the vehicle. None of the officers on scene appeared to
be proceeding on the belief that Felder had consented to a search.
Based on these circumstances, a reasonable person would not view
Felder’s initial statement to Officer Harley as blanket consent to search the
entire vehicle, particularly after he had been placed under arrest and
disclaimed ownership of the vehicle. Valdivia, supra. At best, once he was
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placed under arrest, Felder authorized Officer Harley to retrieve his phone if
it was in the car; when Officer Harley learned that the phone had already been
placed into evidence, that consent was no longer relevant. As the record does
not support the conclusion that Felder gave consent to search the entire
vehicle, and the trial court did not make this factual finding, we decline to
affirm the trial court’s order on that basis.
IV.
A.
Now to the issue which the trial court decided whether the search of the
vehicle was legal, which is whether the inventory search of the vehicle was a
pretext to conduct an investigatory search for further evidence of a crime.
Based on my review of the testimony, body camera footage, inventory policy
and form, I conclude that it was.
Our Supreme Court has set forth the standards governing inventory
searches of vehicles, which are distinct from investigatory searches intended
to uncover evidence:
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. In the seminal case
of [South Dakota v. Opperman, 428 U.S. 364, 369 (1976)], 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.
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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. In Commonwealth v. Henley, [909 A.2d 352, 359 (Pa.
Super. 2006) (en banc)], 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 standard
police procedures and in good faith and not for the sole
purpose of investigation.
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.
Commonwealth v. Lagenella, 83 A.3d 94, 102-03 (Pa. 2013) (cleaned up;
citations omitted).
B.
Here, because Felder’s argument focuses on the second inquiry –
whether the search was conducted in good faith – it is necessary to address
the first inquiry to fully assess the reasonableness of the search because “[a]
questionable impoundment is one factor of circumstantial evidence of
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improper motive.” Henley, supra, at 365 (citation omitted). Because the
vehicle here was legally parked at the Knights Inn, did not raise any public
safety issues, and Felder’s companion was staying at the hotel, we find the
decision to impound the vehicle to be at least “questionable.”
When a law enforcement officer discovers that a vehicle is unregistered
on a “highway or trafficway” or the driver cannot legally operate the vehicle,
he or she must immobilize the vehicle or, “in the interest of public safety,”
impound the vehicle. 75 Pa.C.S. § 6309.2(a) (emphasis added).
Immobilization differs from impoundment in that the former refers to merely
stopping the vehicle in place, such as with a boot device, while the latter refers
to towing and storing the vehicle in a secure area. Lagenella, supra, at 100.
If a vehicle is immobilized, the operator or owner has 24 hours to appear at
the relevant judicial office to furnish proof that the pertinent defects have been
remedied and obtain a certificate of release. 75 Pa.C.S. § 6309.2(b). If he
or she has not done so within 24 hours, only then will the vehicle be
impounded. Id.
Impounding a vehicle may serve legitimate community-caretaking
purposes such as protecting public safety. Lagenella, supra, at 102-03.
“While it may be true that an arrestee’s vehicle may be exposed to danger if
it is left legally parked on the public street in a high-crime area, this concern,
standing alone, is inadequate to override the reasonable expectations of
privacy enjoyed by our citizens, defendants and non-defendants alike.”
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Commonwealth v. Hennigan, 753 A.2d 245, 259-60 (Pa. Super. 2000).
Thus, “where the sole issue is the safety of a defendant’s legally parked vehicle
pending an arrest, the police do not have the authority to impound said vehicle
absent some reasonable nexus to the alleged crime or to a community care-
taking responsibility.” Id.On the record before us, impounding the vehicle as opposed to
immobilizing it for the statutory 24-hour period was not required under the
police’s community-caretaking function. Nothing in the record suggests that
any employee of the Knights Inn requested that the vehicle be removed
following Felder’s arrest. See 75 Pa.C.S. § 3353(b)-(c) (related to unattended
vehicles on private property); 75 Pa.C.S. § 3352(c)(4) (removal by police of
vehicles on private property). The vehicle was legally parked and could have
been immobilized to allow Felder or someone else of his choosing to remedy
the title defects that had been uncovered and have a licensed driver appear
at the district court office to retrieve the vehicle. See 75 Pa.C.S. § 6309.2(b).
In the meantime, valuables in the vehicle could have been secured, again, by
someone of Felder’s choosing, such as Mr. Dixon. As can be seen, there was
no reason for the police in this instance to immediately impound the vehicle
rather than simply immobilizing it for 24 hours or to seek a search warrant to
conduct an investigatory search.
Moreover, the officers’ concern about releasing the vehicle to Mr. Dixon
was not justified. They explained that Mr. Dixon was intoxicated and not able
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to safely drive the vehicle, with Officer Harley going so far as to suggest that
he could be liable if Mr. Dixon harmed someone while driving under the
influence. N.T. Suppression Hearing, 8/2/21 at 144, 147-48. While this might
have been a colorable concern if the vehicle was parked at a gas station,
restaurant or bar, here, the vehicle was legally parked at a hotel. Patrons of
hotels routinely spend the night or even several days on the premises without
moving their vehicles. Nothing in the record suggests that if the keys to the
vehicle had been released to Felder’s companion, he would have operated the
vehicle while intoxicated rather than simply returning to his own hotel room.
While there were concerns arising from the vehicle’s title defects and Felder’s
statements at the scene, the decision to impound the vehicle was
“questionable” and casts doubt on the validity of the officers’ motives for
conducting the inventory search. Henley, supra.
C.
Now as to whether the inventory search was, in fact, a pretext for an
investigatory search. Felder maintains that the search did not protect the
property in the vehicle or adequately protect the officers from claims regarding
lost or stolen property. He highlights that the inventory sheet completed by
Officer Owens failed to note a gold chain and ring hanging from the rearview
mirror of the vehicle. He argues that the search was extensive, including the
engine compartment, the door on the fuel cap and the trunk, but nonetheless
failed to note this item of clear value located in plain view. Accordingly, he
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concludes that the officers were not, in fact, motivated by community-
caretaking concerns.
The Bensalem Township Police Department’s motor vehicle inventory
policy (the Policy) provides that an inventory search “will extend to all areas
of the vehicle where personal property or hazardous materials may reasonably
be found, including but not limited to, the console, passenger compartment,
trunk, glove compartment, storage compartments and any containers.”
Commonwealth Exhibit CS-6, 8/3/21, § II.E.2. “Items of personal property
that are of significant value will be removed from the vehicle and secured for
safekeeping,” and such items must be noted on a Property Receipt and Vehicle
Inventory Form submitted to the department’s Evidence Custodian. Id.,
§ II.F.3 & F. The Inventory Form must include a “detailed description of the
items discovered and a detailed description of where the item was located in
the motor vehicle.” Id., § IV.B.1. The Policy also requires a Property Receipt
to be completed for any items removed from the vehicle, id., § IV.C, but the
Inventory Form must additionally list items that remain in the vehicle, id.,
§ IV.B.2.a.
Discrepancies between the body camera footage of the inventory search
and the Vehicle Inventory Form completed in this case lead me to conclude
that the search was not reasonable or conducted for community-caretaking
purposes. The form includes two categories of property: items seized and
items remaining in the vehicle. For items seized, Officer Owens listed only the
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rifle at issue in this case. For items remaining in the vehicle, he wrote:
“trunk—various books and misc junk items including fire extinguisher, tools,
books, cleaning supplies.” Exhibit DS-1, 8/2/21.
The gold chain and ring are not included on the form, nor does the list
separately account for the myriad of items left in the vehicle or for their
specific location therein as required by the Policy. At the suppression hearing,
Officer Owens admitted that he did not itemize everything in the vehicle but
instead generalized his findings, apparently in contravention of the
requirement that the form include a “detailed description of the items
discovered and a detailed description of where the item was located in the
motor vehicle.” Commonwealth Exhibit CS-6, 8/3/21, § IV.B.1; N.T., 8/3/21
at 46. If the purpose of the impoundment and inventory search was to protect
Felder’s possessions, a gold chain and ring of actual value would have been
important to seize and note on the Inventory Form and Property Receipt. That
this item was overlooked when it was hanging from the rearview mirror in
plain view while the officers spent much of the search rifling through the
detritus in the trunk and passenger compartment without itemizing what they
found indicates that the purpose of the search was to locate contraband.
Officer Owens also acknowledged on cross-examination that the Policy
requires an officer to stop the search and contact the on-call assistant district
attorney if contraband is found during an inventory search, and “there is
sufficient probable cause to believe a crime has been committed and that
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further evidence or fruits thereof may be found in the motor vehicle.” See
Commonwealth Exhibit CS-6, 8/3/21, § II.E.4; N.T., 8/3/21 at 71-72. He did
not, however, stop searching the vehicle upon discovering the rifle. He also
did not consult with his supervising officer who was on scene to decide whether
to obtain a search warrant in accordance with the policy. N.T., 8/3/21 at 72.
Rather, he continued the search on the assumption that his supervisor would
have instructed him to stop if he felt it was necessary to obtain a warrant. Id.
(“I did not, but based off of prior experiences with my supervisor, if he felt,
he would have stopped.”). The trial court explained that “the search [got] a
little more aggressive after they [found] that rifle” and postulated that it may
have suppressed any additional evidence if it had been uncovered after that
point. N.T., 8/4/21, at 46-47. However, what the failure to seek a search
warrant at this juncture indicates is that the purpose was not to conduct an
inventory search but had been investigatory since its inception.
To summarize, several circumstantial factors lead to the conclusion that
the search of Felder’s vehicle was a warrantless, investigatory search rather
than a constitutional inventory search. First, impoundment of the vehicle
rather than immobilization was not supported by statute or necessary under
the specific circumstances of this case, rendering the decision to impound the
vehicle questionable. Second, the Inventory Form does not comply with the
Policy by itemizing in detail the items left in the vehicle. Third, the officers
did not find or seize items of value in plain view—the gold chain and ring on
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the rearview mirror—despite the stated purpose of the inventory being to
safeguard Felder’s possessions. That they searched the engine compartment
and fuel door cap without noticing the gold chain and ring demonstrates that
the focus of the search was uncovering contraband. Finally, the officers did
not comply with the Policy to seek a warrant or even discuss doing so
immediately after uncovering contraband in the vehicle. Based on these facts,
we reverse trial court’s denial of Felder’s motion for suppression of the rifle.
Accordingly, we reverse the counts involving the rifle at No. 2334 of
2020 for carrying firearms without a license and at No. 5807 of 2020 of
persons not to possess firearms. However, because the reversal of those
counts does not upset the sentencing scheme since both of those counts ran
concurrently with the other counts involving possession of firearms, we need
not remand for resentencing.
Judgment of sentence affirmed in part and reversed in part.
Judge Sullivan joins the Memorandum.
Judge King Noted Dissent.
Date: 12/21/2023
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