J-A28001-23
2024 PA Super 25
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JONATHAN OMAR MOORE : No. 2510 EDA 2022
Appeal from the Order Entered August 31, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001996-2021
BEFORE: OLSON, J., STABILE, J., and COLINS, J.*
OPINION BY OLSON, J.: FILED FEBRUARY 13, 2024
The Commonwealth of Pennsylvania appeals from the order entered on
August 31, 2022, which granted the suppression motion filed by the
defendant, Jonathan Omar Moore (“the Defendant”). We vacate and remand.
On May 13, 2020, the Defendant was arrested and charged with a
number of crimes, including possessing a controlled substance with the intent
to deliver (“PWID”) and criminal conspiracy.1 The Defendant then filed a
pre-trial motion, where he sought to suppress all evidence against him. See
The Defendant’s Pre-Trial Motion, 12/17/21, at 1-4.
On July 22, 2022, the trial court held a suppression hearing. The trial
court ably summarized the evidence it heard during the hearing:
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 903, respectively.
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On May 13, 2020 at approximately 8:30 a.m. Trooper James
Nolan of the Pennsylvania State Police was in his fully marked
patrol vehicle observing southbound traffic on Interstate 95
in Tinicum Township, Pennsylvania. At the time and place in
question, the trooper observed a black Infinity G35 with
heavily tinted windows bearing a Virginia license plate and
began to follow same. The trooper clocked the vehicle in
question at 70 m.p.h. for [0.3] miles with his calibrated police
vehicle which was also equipped with a motor vehicle
recorder [(“MVR”)]. The speed limit in this area on Interstate
95 is 55 [miles per hour.]
The trooper testified that although through training and
experience it was his belief that a lot of people from out of
state come to Philadelphia to obtain large quantities of drugs
and take them back to their respective cities he did not know
whether this vehicle had actually stopped in Philadelphia or
not. After the vehicle in question was stopped Trooper Nolan
exited his patrol car and approached [the Defendant’s]
vehicle from the passenger side during which time he
observed “[a] lot of movement within the vehicle. It looked
like people were moving around of [sic] the vehicle and the
car was bouncing back and forth as if they switched seats.”
The [trooper] testified that such movement was unusual in
his experience.
During the suppression hearing, the tape of the [MVR] in
Trooper Nolan's vehicle was placed into evidence without
objection. All counsel agreed that the court could review the
MVR in its entirety at a later date in chambers. The court did,
in fact, conduct such review in chambers.
The review revealed that as the Trooper approached [the
Defendant’s] vehicle after it [had] been pulled over there was
some perceptible movement [in] the vehicle consistent with
a person or persons moving around within the interior of said
vehicle.
When asked about the movement inside the car, [the
Defendant’s co-defendant, Cordell Livingston (“Mr.
Livingston”), who was then in the passenger’s seat,] told
Trooper Nolan that [he and the Defendant] had switched
seats. Upon his initial approach the passenger window was
cracked about [four] inches and the trooper immediately
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smelled a very large odor of marijuana and air fresheners
such as cologne along with little trees hanging on the
floorboard which Trooper Nolan felt was indicative of a
criminal element within the vehicle.
[The Defendant and Mr. Livingston] produced their driver's
licenses upon request. [Mr. Livingston’s] license was
suspended, however, [the Defendant’s] license was valid.
The vehicle's registration came back to Sharon Horton.
Neither occupant provided any information about Ms. Horton
and the vehicle had not been reported stolen. The trooper
[did not] recall ever asking the occupants what their
relationship may have been to the owner [of the vehicle].
When asked why that issue was not raised, the trooper stated
that he made the decision to conduct a probable cause search
of the vehicle as soon as he smelled the marijuana.
Although Trooper Nolan told the court he smelled the odor of
burnt marijuana he had earlier told defense counsel that he
could not recall if the smell was from fresh marijuana or not.
Trooper Nolan was told that the occupants had changed seats
in the vehicle, although there is no indication in the record
that the trooper interrogated the passengers as to the reason
for the switch or that either occupant volunteered such
information.
Neither of the occupants of the vehicle consented to a search
of the car and Trooper Nolan conceded that there was nothing
precluding him or his fellow officer from obtaining a search
warrant for the vehicle in question.
...
When asked by the [trial court] why the ownership issue was
not pursued, Trooper Nolan [testified]:
I think at that point, again, pre-Alexander,[2] I knew that
I was going to search the vehicle anyway . . . I kind of
was just trying to get straight to the point.
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2 The Pennsylvania Supreme Court decided Commonwealth v. Alexander
in December 2020. In Alexander, the Supreme Court overruled prior
(Footnote Continued Next Page)
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[As Trooper Nolan testified: “in the rear seat of the vehicle,
I noticed the armrest was down, which then has a little lever
door that you can gain entry to the trunk. I opened that
[little lever] door, and there were two pounds of marijuana
vacuum-sealed sitting right there.”]
Trial Court Opinion, 1/5/23, at 3-5 (citations omitted).
On August 31, 2022, the trial court granted the Defendant’s motion and
suppressed all evidence against the Defendant. See Trial Court Order,
8/31/22, at 1-6. Regarding the Commonwealth’s claim that the Defendant
failed to demonstrate an expectation of privacy in the vehicle, the trial court
declared: “[i]n the instant matter the Commonwealth failed to establish [the
Defendant’s] lack of privacy interest. Accordingly, the burden never shifted
to the [Defendant] and the Commonwealth’s argument must fail.” Trial Court
Statement of Facts, 8/31/22, at 5.
The Commonwealth filed a timely notice of appeal and, within its notice,
the Commonwealth properly certified that the trial court’s order “will terminate
or substantially handicap the prosecution.” Commonwealth’s Notice of Appeal,
9/29/22, at 1; see also Pa.R.Crim.P. 311(d). The Commonwealth raises one
claim to this Court:
Did the lower court err in granting [the Defendant’s] motion
to suppress where: (1) the evidence that [the Defendant]
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precedent and held that, under Article I, Section 8 of the Pennsylvania
Constitution, “warrantless vehicle searches require both probable cause and
exigent circumstances; one without the other is insufficient.”
Commonwealth v. Alexander, 243 A.3d 177, 207 (Pa. 2020) (quotation
marks and citations omitted).
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had been driving an out-of-state car registered to someone
else was sufficient to meet the Commonwealth’s initial
burden of production; and (2) [the Defendant] did not even
attempt to establish a reasonable expectation of privacy in
the car?
Commonwealth’s Brief at 4.
“Once a motion to suppress evidence has been filed, it is the
Commonwealth's burden to prove, by a preponderance of the evidence, that
the challenged evidence was not obtained in violation of the defendant's
rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–1048 (Pa. Super.
2012) (en banc); see also Pa.R.Crim.P. 581(H). If the defendant prevails in
the underlying proceeding, “[w]e review a trial court's order suppressing
evidence for an abuse of discretion and our scope of review consists of only
the evidence from the defendant's witnesses [during the suppression hearing,]
along with the Commonwealth's evidence that remains uncontroverted.”
Commonwealth v. Miller,
186 A.3d 448, 450 (Pa. Super. 2018) (quotation
marks and citations omitted). “Where the [trial] court's factual findings are
supported by the record, we are bound by these findings and may reverse
only if the [trial] court's legal conclusions are erroneous.” Commonwealth
v. Palmer,
145 A.3d 170, 173 (Pa. Super. 2016) (quotation marks and
citations omitted). Relatedly, “[i]t is within the suppression court's sole
province as factfinder to pass on the credibility of witnesses and the weight to
be given their testimony.” Commonwealth v. Gallagher,
896 A.2d 583,
585 (Pa. Super. 2006) (quotation marks and citations omitted). However,
“we maintain de novo review over the suppression court's legal conclusions.”
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Commonwealth v. Korn, 139 A.3d 249, 253 (Pa. Super. 2016) (quotation
marks and citations omitted).
“Generally, to have standing to pursue a suppression motion under
Pa.R.Crim.P. 581, the defendant's own constitutional rights must have been
infringed.” Commonwealth v. Enimpah, 106 A.3d 695, 698 (Pa. 2014).
“However, it is well settled that a defendant charged with a possessory offense
in this Commonwealth has ‘automatic standing’ because the charge itself
alleges an interest sufficient to support a claim under Article I, § 8.” Id.
(brackets and some quotation marks and citations omitted). “This rule entitles
a defendant to a review of the merits of his suppression motion without a
preliminary showing of ownership or possession in the premises or items
seized.” Id.
In order to prevail on a suppression motion, however, “a defendant must
show that he had a privacy interest in the place invaded or thing seized that
society is prepared to recognize as reasonable.” Id. at 699. “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.” Id.
Although “the defendant bears the burden of persuasion with respect to
his privacy interest,” the Commonwealth bears the initial burden of production
“to present evidence that the defendant’s constitutional rights were not
infringed.” Id. at 701. Thus, in cases where the Commonwealth contests the
defendant’s expectation of privacy in an object or an area, the Commonwealth
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bears the initial burden of coming forward with sufficient evidence “show[ing
that] the defendant lacked such a privacy interest.” Id. If the Commonwealth
satisfies this initial burden, “it need do no more, absent proof to the contrary
from the accused himself.” Id. at 703. At this point, the burden is shifted to
the defendant, to “show[ that] such an expectation [of privacy] did exist.” Id.
at 701. Where “the Commonwealth's evidence show[s] the defendant lacked
any protected privacy interest,” and the evidence favorable to the defendant
does not effectively rebut the Commonwealth’s evidence, the defendant’s
suppression motion must be denied, as “a defendant cannot prevail upon a
suppression motion unless he demonstrates that the challenged police conduct
violated his own, personal privacy interests.”3 Id. at 700 and 701 (quotation
marks omitted).
“An expectation of privacy is present when the individual, by his
conduct, exhibits an actual (subjective) expectation of privacy and [] the
subjective expectation is one that society is prepared to recognize as
reasonable.” Commonwealth v. Brundidge, 620 A.2d 1115, 1118 (Pa.
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3 In Enimpah, our Supreme Court clarified:
Although the defendant will typically present his own
evidence to satisfy this burden, he is not required to do so.
Indeed, he may succeed without presenting any evidence at
all. See 6 Wayne R. LaFave, Search & Seizure § 11.2(b), at
50 (5th ed. 2012) (noting “even if the burden of proof is on
one party, it may happen that the burden is actually met in a
particular case by evidence given by the other party”).
Enimpah, 106 A.3d at 702 n.6.
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1993). “In determining whether a person's expectation of privacy is legitimate
or reasonable, the totality of the circumstances must be considered and the
determination will ultimately rest upon a balancing of the societal interests
involved.” Commonwealth v. Viall, 890 A.2d 419, 422 (Pa. Super. 2005).
“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.”
Id. (quotation marks and citations omitted).
On appeal, the Commonwealth claims the trial court erred when it
determined the Commonwealth failed to carry its initial burden of
demonstrating that the Defendant lacked a reasonable expectation of privacy
in the vehicle. The Commonwealth further argues that, since the trial court
found, as a fact, that the vehicle was registered to a third-party named Sharon
Horton, the burden shifted to the Defendant and required the Defendant to
prove that he had a privacy interest in the vehicle. According to the
Commonwealth, since there was no evidence presented at the suppression
hearing tending to show that the Defendant had an expectation of privacy in
the vehicle, the trial court erred when it granted the Defendant’s motion to
suppress. See Commonwealth’s Brief at 10-11. We agree with the
Commonwealth.
Following the suppression hearing, the trial court found, as a fact, that:
the Defendant was a passenger in the vehicle; the vehicle was being driven
by Mr. Livingston, in Pennsylvania, and Mr. Livingston did not have a license
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to operate the vehicle; the vehicle had a Virginia license plate; the vehicle was
registered to a third-party named Sharon Horton; and, “[n]either [the
Defendant nor Mr. Livingston] provided any information about Ms. Horton”
during the traffic stop or the suppression hearing. See Trial Court’s Statement
of Facts, 8/31/22, at 1-4. Under our precedent, the trial court’s factual
findings prove that the Commonwealth carried its initial burden of coming
forward with sufficient evidence “show[ing that] the [D]efendant lacked [] a
privacy interest” in the vehicle. See Commonwealth v. Jones, 874 A.2d
108, 120 (Pa. Super. 2005) (holding: the appellant did not possess a
reasonable expectation of privacy in a vehicle where: “he was the operator
of a rental car but not the named lessee, was not an authorized driver, the
named lessee was not present in the vehicle, [a]ppellant offered no
explanation of his connection to the named lessee, and the return date for the
rental car had passed”);4 Commonwealth v. Burton,
973 A.2d 428, 436 (Pa.
Super. 2009) (en banc) (holding that the defendant did not have an
expectation of privacy in a vehicle, where he did not own the vehicle and
where he “offered no evidence to explain his connection to the vehicle or his
connection to the registered owner of the vehicle”); Commonwealth v. Cruz,
21 A.3d 1247, 1251–1252 (Pa. Super. 2011) (holding that the defendant did
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4 Compare with Byrd v. United States,
584 U.S. 395 (2018) (holding that
“someone in otherwise lawful possession and control of a rental car
has a reasonable expectation of privacy in it even if the rental agreement does
not list him or her as an authorized driver”) (emphasis added).
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not demonstrate he had an expectation of privacy in the vehicle he was driving
at the time of the stop because the defendant “presented no evidence that he
owned the vehicle, that it was registered in his name, or that he was using it
with the permission of the registered owner”); Commonwealth v.
Maldonado, 14 A.3d 907 (Pa. Super. 2011) (holding: where the
Commonwealth presented evidence at the suppression hearing establishing
that the vehicle the defendant was driving was owned by his girlfriend, the
burden then shifted to the defendant to establish an expectation of privacy in
the vehicle; however, since there was “no evidence that [the defendant] had
permission from [his girlfriend] to drive the car,” the defendant “failed to
establish an expectation of privacy in the vehicle he was driving”); see also
Commonwealth v. Peak,
230 A.3d 1220, 1224 (Pa. Super. 2020) (“a driver
who does not own a vehicle may still establish an expectation of privacy in the
vehicle if he can prove he has permission or authority from the owner
to drive the vehicle”) (emphasis added).
Since the Commonwealth came forward with evidence tending to show
that neither the Defendant nor Mr. Livingston were the registered owners of
the vehicle, the burden shifted to the Defendant to prove that he had a privacy
interest in the vehicle. However, neither the Defendant nor Mr. Livingston
presented any evidence during the suppression hearing. Further, no evidence
was presented during the hearing that would support a conclusion that the
Defendant had an expectation of privacy in the vehicle, which “he did not own,
that was not registered to him, and for which he has not shown authority to
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operate.” Burton, 973 A.2d at 436; see also Commonwealth v. Powell,
994 A.2d 1096, 1107 (Pa. Super. 2010) (holding that the defendant, who was
a passenger in a vehicle, did not have an expectation of privacy in the trunk
of the vehicle, where the vehicle “was registered to a third person, [another
person] was operating [the vehicle], and [the defendant] had no connection
to the vehicle whatsoever”). Therefore, we must vacate the trial court’s order
granting the Defendant’s motion to suppress. See Enimpah,
106 A.3d 699
(“if the defendant has no protected privacy interest, neither the Fourth
Amendment nor Article I, § 8 is implicated”).
Order vacated. Case remanded. Application for consolidation denied.
Jurisdiction relinquished.
Date: 2/13/2024
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