J-A04001-22
2022 PA Super 108
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GRANT SKIPPER : No. 1160 EDA 2021
Appeal from the Order Entered May 3, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-000035-2021
BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.
OPINION BY LAZARUS, J.:
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Delaware County, granting the motion to
suppress filed by Grant Skipper.1 After review, we affirm.
In its opinion, the suppression court set forth the following findings of
fact:
On October 2, 2020, at approximately 2:11 a.m., [Corporal
William Young (Cpl. Young)] was on duty, alone, in full uniform
and operating a marked patrol car patrolling the 800 block of
Wanamaker Avenue in Tinicum Township, Delaware County. It
was dark out [and] the roadways were wet from recent rainfall.
[Corporal] Young was traveling southbound in the 800 block of
Wanamaker Avenue (Route 420) when he observed a black Dodge
Ram pickup truck traveling northbound, without headlights or
taillights illuminated. [Corporal] Young also took note that the
pickup truck appeared to be driving at a speed faster than was
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1 In accordance with Pa.R.A.P. 311(d), the Commonwealth certified that the
suppression order has substantially handicapped its prosecution of the case.
See Commonwealth v. Jones, 69 A.3d 180, 185 (Pa. 2013)
(Commonwealth’s appeal of suppression order proper where Commonwealth
certifies in good faith that order substantially handicaps prosecution).
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safe or prudent for the conditions of the wet roadway, although
he did not have any speed measuring devices with him at the time.
As a result of his observations, Cpl. Young made a U-turn and
proceeded northbound behind the pickup truck. After losing sight
of the truck for only a few seconds, Cpl. Young regained sight of
the vehicle again at the intersection of Chester Pike and Route
420, where it was stopped at a red light. The pickup truck now
had its lights illuminated. When the light turned green and the
pickup truck proceeded through the intersection, Cpl. Young
activated his emergency lights to initiate a traffic stop based upon
the [M]otor [V]ehicle [C]ode violations that he observed. The
pickup truck complied and came to a stop on the 700 block of
Lincoln Avenue in Prospect Park Borough.
Prior to exiting his patrol vehicle, Cpl. Young called in the traffic
stop . . . and started the process of running the vehicle’s tag.
While still in his vehicle, Cpl. Young did not observe the occupants
of the car make any furtive movements or do[] anything illegal.
[Corporal] Young then exited his patrol vehicle and approached .
. . the driver’s side [of the vehicle].
[Corporal] Young observed a male in the driver’s seat, later
identified as Christopher Boozer, as well as a front seat passenger,
later identified as [Skipper]. While engaging in conversation with
[] Boozer, Cpl. Young observed his eyes to be glassy, his speech
was slurred, and Cpl. Young could smell an odor of alcohol on his
breath and burnt marijuana coming from inside the vehicle. At
this time, there were no verbal interactions with [Skipper].
[Corporal] Young recognized both the odor of alcohol and burnt
marijuana due to his training and experience. . . . [Corporal]
Young was using his flashlight when speaking with [] Boozer but
did not see any items of contraband in plain view.
As a result of his observations, Cpl. Young suspected that []
Boozer was driving under the influence and asked him to provide
his license, registration, and to step out of the vehicle. [] Boozer’s
license revealed that he was a suspended driver. [Corporal]
Young instructed [] Boozer [to] step to the rear of the vehicle. As
[Boozer] was doing so, Cpl. Young observed that he was unsteady
on his feet, had a staggered gait, and had an odor of alcohol and
burnt marijuana coming directly from his person.
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During this time, [Skipper] was still sitting in the passenger seat
of the vehicle. At this point, backup from several other officers
had arrived including: Officer Wiley and Officer Loiter of the
Tinicum Township Police and Officer Vasaline of the Prospect Park
Police Department. [Corporal] Young had [] Boozer perform field
sobriety tests, which he failed.
[Corporal] Young testified that he conducted a pat down on []
Boozer prior to him completing the tests and located a small
amount of marijuana on his person.
[Corporal] Young detained [] Boozer in the back of his police
vehicle. [Corporal] Young then approached the passenger side of
the pickup truck and had a conversation with [Skipper]. [Skipper]
provided Cpl. Young with a valid driver’s license.
As no wrongdoing or criminal activity was suspected on the part
of [Skipper], Cpl. Young told him that he was free to leave the
scene and walk home, as he lived close by. [Skipper] complied
and began walking home. There was no testimony that [Skipper]
smelled of alcohol or marijuana. In addition, there was no
testimony that Cpl. Young asked [Skipper] to drive the vehicle
home as [] Boozer was being detained for driving under the
influence.
[Corporal] Young made the decision to impound and tow the
vehicle. As a result, he ordered an inventory of the car pursuant
to a department policy for Tinicum Township (marked as CS-1 at
the [suppression] hearing). Chapter 36[,] Section 36.003[] of the
inventory policy reads: “It would be the policy of this department
that any and all vehicles that are impounded by the department
as a result of a full custody arrest, vehicles used in the commission
of a crime, [and] abandoned motor vehicle[s], shall be completely
inventoried. The reporting member shall list on the initial crime
report any and all items that are located in the vehicle.”
[Corporal] Young also stated that if a driver was operating a
vehicle on a suspended license and/or without proper registration,
that would also [fall] within the [above-mentioned] policy to
impound the vehicle. [Corporal] Young testified that, should
contraband be located during an inventory search, or anything of
value, that it would be noted in the incident report.
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A search was conducted of [] Boozer’s vehicle by Officer Wiley. A
[G]lock firearm was located inside the glove compartment and a
[T]aurus handgun was [wedged in] between the driver’s seat and
the center front seat[.] Also located and notated in the report was
a bottle of Hennessey [Whiskey] found in the back. [Corporal]
Young notated his findings in his affidavit of probable cause
(marked as CS-2) and his incident report (marked as CS-3). The
affidavit reads that the search was conducted “pursuant to the
odor of burnt marijuana and for inventory purposes.”
After locating the firearms, police decided to pursue [Skipper,]
who was already on his way home. Police pursued him, detained
him, and brought him back to return to the scene. [Skipper]
complied without issue. Pursuant to a pat[-]down, police
recovered two unidentified pills on [Skipper]’s person. . . .
[Corporal] Young testified that a search of the car was conducted
to find the source of the burnt marijuana but also pursuant to the
inventory policy.
[Corporal] Young testified that officers located some personal
items belonging to [] Boozer in the vehicle as well, such as:
shoes, clothing, and a box, none of which were logged on the
inventory report. T[he c]ourt notes that there was [no] indication
[that] any personal belongings of [Skipper were] located in the
vehicle.
Trial Court Opinion, 6/18/21, at 1-6.
The Commonwealth subsequently charged Skipper with receiving stolen
property,2 possession of firearm prohibited,3 and possession of controlled
substance.4
On March 8, 2021, Skipper filed an omnibus pre-trial motion, which
included a motion to suppress evidence. Skipper argued, inter alia, that he
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2 18 Pa.C.S.A. § 3925(a).
3 Id. at § 6105(a)(1).
4 35 P.S. § 780-113(a)(16).
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had an expectation of privacy in the vehicle and that the vehicle was searched
without probable cause, consent, or a valid search warrant. On March 10,
2021, Skipper filed two amended omnibus pre-trial motions, in which he
argued that Cpl. Young also lacked probable cause to stop the vehicle, and
that all physical evidence resulting from the illegal stop and subsequent search
and seizure should be suppressed.
On March 12, 2021, the trial court conducted a suppression hearing. At
the conclusion of the hearing, the trial court directed the parties to file briefs
setting forth their arguments and supporting law. Both parties complied, and
on May 3, 2021, the trial court granted Skipper’s motion to suppress. On May
3, 2021, the Commonwealth filed a motion to reconsider, which the trial court
denied.
The Commonwealth filed a timely notice of appeal 5 and now raises the
following claim for our review:
Did the suppression court err by finding defendant had a
reasonable expectation of privacy in the glove compartment and
console area of the pickup truck in which he was merely a
passenger and when, upon the police telling him that he was free
to leave, defendant started walking to his home a few blocks
away?
Brief for Appellant, at 5.
We conclude that the Commonwealth has conceded this claim before
the trial court, and thus waived it for our review. Commonwealth v.
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5 The trial court did not order a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal and the Commonwealth did not file one.
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Arrington, 233 A.3d 910, 918 n.5 (Pa. Super. 2020) (Commonwealth’s failure
to challenge expectation of privacy does not trigger defendant’s burden of
persuasion and waives claim for appeal) (citing Commonwealth v. Johnson,
33 A.3d 122 (Pa. Super. 2011)). Here, Skipper filed a timely motion to
suppress evidence, and two amended motions to suppress. See Omnibus Pre-
Trial Motion, 3/8/21, at 1-3 (unnumbered); First Amended Omnibus Pre-Trial
Motion, 3/10/22, at 1-2 (unnumbered); Second Amended Omnibus Pre-Trial
Motion, 3/10/21, at 1-3 (unnumbered). A suppression hearing on the motions
was held, at which time the Commonwealth did not contest or raise Skipper’s
expectation of privacy. See Trial Court Opinion, 5/3/21, at 6 (acknowledging
that Commonwealth’s suppression arguments focused solely on basis for
vehicle stop, inventory search of vehicle, and search of Skipper). The trial
court, prior to ruling on the suppression motions, directed the parties to file
briefs and argument. See N.T. Suppression Hearing, 3/12/21, at 102-05. The
Commonwealth, in its brief before the trial court, again did not challenge
Skipper’s expectation of privacy. See Commonwealth’s Memorandum of Law,
4-23/21, at 1-9. Thus, the trial court, in its order and opinion granting the
motion to suppress, noted that the Commonwealth had conceded Skipper’s
expectation of privacy by failing to raise a timely challenge. See Trial Court
Order and Opinion, 5/3/21, at 6. In response to the trial court’s ruling, the
Commonwealth filed a motion to reconsider in which it raised, for the first
time, a challenge to Skipper’s expectation of privacy in the vehicle. See
Motion to Reconsider, 5/3/21, at 1-4 (unnumbered).
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Importantly, a challenge to a defendant’s expectation of privacy is
woven into the complex burden shifting involved in suppression hearings. See
Enimpah, 106 A.3d 695, 700-01 (Pa. 2014) (before defendant must prove
privacy interest in area searched, Commonwealth must initially
satisfy its burden of production by presenting evidence showing
defendant lacked any protected privacy interest; where Commonwealth
fails to bear this initial burden, burden never shifts to defendant to prove
privacy interest). Our Supreme Court has explained that, while the
expectation of privacy can be described as a “preliminary” matter,
Pa.R.Crim.P. 581(H) nevertheless requires the Commonwealth to both
challenge a defendant’s expectation of privacy and demonstrate that the
defendant lacked an expectation of privacy. See Enimpah,
106 A.3d at 701-
02 (discussing Rule 581(H) and determining that “[t]he Commonwealth may
concede the privacy interest, choosing to contest only the legality of the police
conduct; if it does so, the defendant’s ‘reasonable expectation of privacy’ need
not be established”); see also Pa.R.Crim.P. 581(H) (providing
Commonwealth bears burden to present evidence that defendant’s
constitutional rights were not infringed). Only after meeting these
requirements does the burden of persuasion shift to the defendant to
demonstrate that he had a reasonable expectation of privacy in the area
searched. Enimpah,
106 A.3d at 700-01.
Instantly, our review, as highlighted above, reveals that the
Commonwealth did not challenge Skipper’s expectation of privacy until after
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the trial court had already granted the suppression motion. At the suppression
hearing and in its memorandum of law, the Commonwealth focused solely on
the legality of the police conduct and, thus, the Commonwealth did not
properly challenge Skipper’s expectation of privacy. See N.T. Suppression
Hearing, 3/12/21, at 1-105 (Commonwealth presenting evidence of, inter alia,
vehicle stop, inventory search, search of Skipper, and trial court ordering
briefs in lieu of argument); Commonwealth’s Memorandum of Law, 4/23/21,
at 1-9; Trial Court Opinion, 5/3/21, at 6 (determining Commonwealth had
conceded expectation of privacy by failing to raise challenge); see also
Enimpah, 106 A.3d 701-02.
Based upon the foregoing, we conclude that the Commonwealth has
waived its claim on appeal because it failed to meet its initial burden and,
instead, conceded the expectation of privacy by focusing exclusively on the
legality of the police conduct. See Arrington, supra; Enimpah, supra;
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Pa.R.A.P. 302(a) (“[i]ssues not raised in the trial court are waived”).
Accordingly, we affirm.6, 7
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2022
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6 We note that in its Rule 1925(a) opinion, the trial court, relying on
Commonwealth v. Santiago, 822 A.2d 716 (Pa. Super. 2003), determined
that the Commonwealth did not waive its challenge to Skipper’s expectation
of privacy by raising it in the motion to reconsider. We disagree.
In Santiago, this Court addressed whether the Commonwealth could raise,
in a motion to reconsider, a late claim regarding the law of the case
doctrine. See
id. at 722-24. This Court declined to find waiver due to the
procedural history of that case, but we reminded the Commonwealth that such
a claim should have been raised at the earliest possible time, i.e., in response
to the defendant’s motion or at the subsequent hearing.
Id.
Instantly, the similarities between the instant case and Santiago end at the
filing of the motion to reconsider. As we highlighted above, the
Commonwealth’s burden of production is preliminary, the challenge must be
invoked at the time of suppression proceedings, and the Commonwealth can
concede a challenge to the expectation of privacy by, instead, choosing “to
focus solely on the legality of police conduct.” See
Enimpah, supra; see
also Arrington, supra.
7 Additionally, we are unpersuaded by the Commonwealth’s reliance on
Commonwealth v. Swann,
241 A.3d 429 (Table) (Pa. Super. filed Oct. 15,
2020) (unpublished memorandum), in its reply brief. Notably, in Swann, this
Court assumed, arguendo, that the defendant had a right to privacy in the
area searched. See id. at n.6. However, Swann is inapplicable to our
analysis, because the defendant’s expectation of privacy was not raised on
appeal in that case. See id.; see
Enimpah, supra.
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