J-S62032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JULIAN DAVIS

                            Appellant                  No. 552 WDA 2015


            Appeal from the Judgment of Sentence March 16, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0012198-2014


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED JANUARY 12, 2016

       Appellant, Julian Davis, appeals from the judgment of sentence

entered in the Allegheny County Court of Pleas, following his convictions of

firearms not to be carried without a license, persons not to possess firearms,

altered, forged, or counterfeit documents and plates, driving while operating

privilege is suspended or revoked, and general lighting requirements—no

rear light. We affirm.1

       In its opinion, the trial court fully and correctly sets forth the relevant

facts of this case. Therefore, we have no reason to restate them.

Procedurally, on October 24, 2014, the Commonwealth charged Appellant
____________________________________________


1
 18 Pa.C.S.A. §§ 6106, 6105(a)(1), 75 Pa.C.S.A. §§ 7122(3), 1543(a), and
4303(b), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-S62032-15


with firearms not to be carried without a license, persons not to possess

firearms, altered, forged, or counterfeit documents and plates, driving while

operating privilege suspended or revoked, general lighting requirements—no

rear light, and conspiracy—firearms not to be carried without a license.2

Appellant filed an omnibus pre-trial motion on January 26, 2015, in which

Appellant sought to suppress the firearm recovered from the vehicle during

the traffic stop.     On March 16, 2015, the trial court held a hearing on

Appellant’s suppression motion, after which the court denied the motion.

That same day, Appellant proceeded to a bench trial; the court found

Appellant    guilty on all counts.             Appellant waived the   pre-sentence

investigation (“PSI”) report, and the court sentenced Appellant to an

aggregate term of three (3) to six (6) years’ imprisonment. Appellant filed a

timely notice of appeal on April 2, 2015. On April 8, 2015, the court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925, and Appellant timely complied on May 7, 2015.3

       Appellant raises the following issues for our review:

          WHETHER THE TRIAL COURT ERRED BY RULING THAT
          [APPELLANT] DID NOT HAVE STANDING TO CHALLENGE
          THE SEARCH OF HIS AUTOMOBILE WHERE HE WAS
          CHARGED WITH A POSSESSORY OFFENSE, WAS
____________________________________________


2
 The Commonwealth withdrew the conspiracy charge against Appellant on
November 6, 2014.
3
 The court’s order on April 8, 2015, gave Appellant thirty days to file his
Rule 1925(b) concise statement.



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J-S62032-15


         OPERATING THE VEHICLE, AND PROVIDED A SALES
         AGREEMENT TO POLICE UPON REQUEST?

         WHETHER THE TRIAL COURT ERRED WHEN IT DENIED
         [APPELLANT’S] SUPPRESSION MOTION WHERE HE WAS
         RESTRAINED AND UNABLE TO ACCESS THE PASSENGER
         COMPARTMENT OF THE VEHICLE AND THE PRIMARY
         PURPOSES OF THE OFFICERS’ SEARCH OF HIS VEHICLE
         WAS INVESTIGATORY IN NATURE?

(Appellant’s Brief at 4).

      Our standard of review of a denial of a motion to suppress evidence is

as follows:

         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 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 the appeal 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. Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015)

(internal citation omitted).

      “The Fourth Amendment of the United States Constitution and Article

I, Section [8] of the Pennsylvania Constitution guarantee individuals freedom


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J-S62032-15


from unreasonable searches and seizures.” Commonwealth v. El, 933 A.2d

657, 660 (Pa.Super. 2007). “The concept of standing in a criminal search

and seizure context 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 I, Section 8 of the Pennsylvania

Constitution.”     Commonwealth v. Bostick, 958 A.2d 543, 550-51

(Pa.Super. 2008), appeal denied, 604 Pa. 702, 987 A.2d 158 (2009).           “A

defendant moving to suppress evidence has the preliminary burden of

establishing     standing   and   a   legitimate   expectation   of    privacy.”

Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa.Super. 2011).

Importantly,

         The traditional formulation for standing requires a
         defendant to demonstrate one of the following personal
         interests: (1) his presence on the premise at the time of
         the search and seizure; (2) a possessory interest in the
         evidence improperly seized; (3) that the offense charged
         includes as an essential element of the prosecution’s case,
         the element of possession at the time of the contested
         search and seizure; or (4) a proprietary or possessory
         interest in the searched premises.

Bostick, supra at 551 (internal citation omitted).         “[G]enerally under

Pennsylvania law, a defendant charged with a possessory offense has

automatic standing to challenge a search.” Maldonado, supra at 910.

      To prevail on a suppression motion, however, the defendant must

show as a preliminary matter that he had a privacy interest in the area


                                      -4-
J-S62032-15


searched.    Id. at 910-11.    In the context of the search of an automobile,

where the defendant produces no evidence that he owns the vehicle, has

permission from the owner to use the vehicle, or any other connection to the

vehicle, the defendant fails to establish a reasonable expectation of privacy

in the vehicle searched.      Commonwealth v. Millner, 585 Pa. 237, 888

A.2d 680 (2005).      When a defendant fails to establish a reasonable

expectation of privacy in the area searched, “there [is] no need for the

Commonwealth to establish the lawfulness of the police entry into the [area]

and the seizure of the [item in question]….” Id. at 258, 888 A.2d 692. The

court need not address a defendant’s claim that the police engaged in

unlawful conduct, if the evidence establishes the defendant has no privacy

interest.   Commonwealth v. Enimpah, ___ Pa. ___, 106 A.3d 695, 702

(2014).     See also Commonwealth v. Peterson, 535 Pa. 492, 636 A.2d

615 (1993) (holding when defendant lacks reasonable expectation of privacy

in area searched, he has no right to challenge search, and court need not

address defendant’s claim that police conduct was unlawful).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Joseph K.

Williams, III, we conclude Appellant’s first issue on appeal merits no relief.

The trial court opinion comprehensively discusses and properly disposes of

the question presented. (See Trial Court Opinion, filed June 1, 2015, at 3)

(finding: Appellant failed to make necessary showing that he had reasonable


                                      -5-
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expectation of privacy in vehicle searched; vehicle was not registered in

Appellant’s name, and Appellant presented no evidence at suppression

hearing that he owned vehicle; Appellant failed to introduced into evidence

at suppression hearing sales agreement Appellant allegedly gave to police

officers when vehicle was stopped; even though there was mention of sales

agreement at suppression hearing, court was unable to know what

information that document provided because sales agreement was not

introduced; further, Appellant presented no evidence at suppression hearing

that Appellant had permission from owner to use vehicle; Appellant failed to

establish he had reasonable expectation of privacy in vehicle because

Appellant did not show any personal connection to vehicle; thus, Appellant

cannot challenge manner in which firearm was recovered from vehicle). The

record supports the court’s sound reasoning. See Millner, supra.

      Additionally, the sales agreement Appellant allegedly gave to the

police at the time of the traffic stop is not contained in the certified record.

Further, Appellant made no attempt at the suppression hearing to explain

the content of the sales agreement. Because Appellant had no reasonable

expectation of privacy in the vehicle, we need not address Appellant’s

second issue, in which he complains the police engaged in unlawful conduct

when they searched the vehicle. See Enimpah, supra; Peterson, supra.

Accordingly, we affirm.

      Judgment of sentence affirmed.


                                     -6-
J-S62032-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




                          -7-
                                                                           Circulated 12/22/2015 01:57 PM




                       THE COURT OF COMMON PLEAS
                   OF ALLEGHENY COUNTY, PENNSYLVANIA



  COMMONWEALTH OF                                         CRIMINAL DIVISION
  PENNSYLVANIA,


  vs.        '·:    :.-0q~,(gJNAL
               . . . ept. of C              is1on
             ' • ~::: : - Alleghe11vJ0Curt Records
                                                          CC# 2014-12198
CJ           · : · ··      ' ·~ -   0Unty,   PA.
: 'I                                                      552 WDA2015




                                                     OPINION


        This appeal is all about the suppression ruling this Court made.

       On March 16, 2015, the parties appeared for trial. Before that
 event took place, a suppression hearing was held. The focus was a .38
 caliber, nine millimeter firearm, with 7 bullets in the magazine, found
 inside a zippered owner's manual which was found in the storage
 compartment on the driver's door. The government presented the
 testimony of two, Monroeville police officers and admitted two exhibits'
 - the gun and a driving record. The defense rested without presenting
 any evidence. The parties then argued. The government's view was the
 recovery of the gun was constitutionally permissible on any one of three
 theories: sufficient reasonable suspicion to justify a search for officer
 safety; a proper inventory search was conducted, or inevitable
 discovery. Suppression Hearing Transcript ("SHT"),pg. 35 (March 16,
 2015).1 This Court found in favor of the government and rested its

 1 The transcript was docketed on April 8, 2015 and has a tracking number of T15-
 0661.
                                                                                              1
decision on the inventory search. "[W]hen a car is in the middle of a
roadway and there is no one to drive it. I believe this opens the car as
well as who may have an interest in the car to a higher degree of
intrusion, and I believe that's what happened in this case.'' SHT, at 37.

       The facts of this matter are not complicated. On August 23, 2014,
a Monroeville officer sees a Ford Focus driving on Mosside Boulevard
with its rear, center brake light not illuminating entirely. It appeared
as if one of the bulbs inside the brake light was burned out. A check of
the license plate revealed that license plate did not belong to that
vehicle. SHT, 5. A traffic stop took place.s This particular police car
had two officers inside. Each approached the stopped Ford Focus on
opposite sides. Officer Brad Martin, Jr. approached the driver,
eventually identified as Julian Davis. Officer James MacDonald took a
position on the passenger side. Officer Martin noticed Mr. Davis' hands
were shaking or trembling. He was breathing heavy with his "chest
rising and falling rapidly". SHT, 22. Mr. Davis produced his driver's
license, insurance card and a sales agreement. SHT, 23. Officer Martin
returned to his police car and was meet there by Officer MacDonald
who had retrieved similar identifying information from the passenger.
A computer check showed the passenger had an outstanding warrant
and Mr. Davis' license was suspended. SHT, 23; Exhibit 2; SHT, 24. A
re-approach resulted in the passenger being removed, handcuffed and
escorted to the back seat of the police car. SHT, 10.
       Mr. Davis was then asked to get out of the car. He complied. He
walked to the rear of his vehicle and was patted down. No weapons
were found. SHT, 25. Davis was pacing back and forth and his head
was pivoting left and right. He created the impression that he was
looking for an escape route. SHT, 10. He was then handcuffed and told
to sit on the curb.
       Neither occupant of the Ford Focus could drive the vehicle away.
Davis' license was suspended and the unamend passenger had an
outstanding warrant. The car came to a stop right in the lane of travel




2 Mr. Davis wisely did not contest the sufficiency of cause to conduct the traffic
stop.
                                                                                     2
on Mosside Boulevard.3 The officers could not just leave the vehicle
there. It needed to be towed, A tow policy exists for Monroeville. SHT,
11. 4 A prelude to a tow is an inventory search. OfficerMacDonald
conducted that search. He began near the driver's door area as that
was the area that a black binder/owner's manual was removed from the
glove compartment and handed to Mr. Davis by the passenger. SHT, 12.
He saw the item. He picked it up. It was heavier than his life
experience taught him. SHT, 12. He unzipped it. Inside was a gun.
SHT, 12.

      For as well prepared as defense counsel was for the merits of the
case, he overlooked one important aspect - expectation of privacy.
Pennsylvania law grants automatic standing to one charged with a
possessory offense but that only gets you a seat at the suppression
table. Your ability to stand at that table and complain that you don't
like your seat is entirely dependent upon the accused showing an
expectation of privacy in the item seized or the place searched. On this
record, Davis has failed to make this necessary showing. The vehicle
was not registered to Mr. Davis. SHT, 23. Nor was there evidence
presented that Davis owned the vehicle. There was some evidence
presented about a sales agreement. But, that document was not part of
the government's case nor was it part of Davis' evidentiary
presentation. Who knows what information it may have provided? It
may have helped Davis, but, perhaps, not. Equally absent was any
evidence that Davis had permission from the owner to use the vehicle.
Bottom line, Davis did nothing to show his connection to this vehicle.
See, Commonwealth v. Burton, 973 A.2d 428 (Pa. Super. 2009). As
such, he has not shown an expectation of privacy and cannot complain
about the manner in which the firearm was recovered from a car he was
driving.


3Mosside Boulevard is probably Monroeville's second busiest road after State
Route 22. The Court is well aware of those two avenues having resided in the
Eastern suburbs of Allegheny County for many years.

4"[W]hen there is no licensed driver able to operate the vehicle from the scene that
we notify [the towing company] who take custody of the vehicle and remove it
because of the obstruction it causes on the highway." SHT, 11.
                                                                                       3
     Assuming for the moment, that Mr. Davis can scale "Mount
Expectation of Privacy", the inventory search was proper.
     The United States Supreme Court has determined that one
exception to the warrant requirement is for inventory searches of
lawfully seized automobiles.5 Colorado v. Bertine, 479 U.S. 367, 371,
107 S. Ct. 738, 93 L. Ed. 2d 739 (1987); Illinois v. Lafayette, 462 U.S.
640, 643, 103 S. Ct. 2605, 77 L. Ed. 2d 65 (1983)("[T]heinventory search
constitutes a well-defined exception to the warrant requirement.");
South Dakota v. Opperman, 428 U.S. 364, 372, 96 S. Ct. 3092, 49 L. Ed.
2d 1000 (1976) ("[I]nventories pursuant to standard police procedures
are reasonable."). Inventory procedures serve three "strong
governmental interests": "[l] to protect an owner's property while it is
in the custody of the police, [2] to insure against claims of lost, stolen, or
vandalized property, and [3] to guard the police from danger." Bertine,
479 U.S. at 372. Lawful inventory searches must be "conducted
according to standardized criteria" or established routine, consistent
with the purpose of a non-investigative search. Id. at 374 n.6. This
requirement "tend[s] to ensure that the intrusion w[ill] be limited in
scope to the extent necessary to carry out the caretaking function."
Opperman, 428 U.S. at 375. The criteria or routine must limit an
officer's discretion in two ways: first, as to whether to search the
vehicle, and second, as to the scope of an inventory search. Salmon, 944
F.2d at 1120-21 (citing Florida v. Wells, 495 U.S. 1, 4-5, 110 S. Ct. 1632,
109 L. Ed. 2d 1 (1990); Bertine, 479 U.S. at 374 & n.6, 375-76). These
limitations ensure that officers performing these caretaking functions
are "'not [] allowed so much latitude that inventory searches are turned
into a purposeful and general means of discovering evidence of a
crime."' Id. at 1120 (quoting Wells, 495 U.S. at 4 (quotation marks
omitted)); see also Wells, 495 U.S. at 4 ("[A]ninventory search must not
5 Mr. Davis raised a claim under the federal and state constitution. Omnibus
Pretrial Motion, paragraph 7 (Jan. 26, 2015). The law regarding the inventory
exception to the warrant requirement in Pennsylvania comes from Commonwealth
v. Scott, 365 A.2d 140 (Pa. 1976),which was decided 3 months after South Dakota v.
Opperman. 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Scott relied
heavily upon Opperman and, decisions through the years, have relied heavily upon
both decisions. See, Commonwealth v. Nace, 571 A.2d 1389 (Pa. 1990), cert. denied,
498 U.S. 966, 111 S.Ct. 426, 112 L.Ed.2d 411 (1990); Commonwealth v. Begley, 780
A.2d 605 (Pa. 2001). The analysis of the inventory exception is the same regardless
of which constitution applies.
                                                                                  4
be a ruse for a general rummaging in order to discover incriminating
evidence."). 6
      While no documentary evidence about the inventory policy was
introduced at the suppression hearing this is not fatal to the
government's position. In United States v. Mundy, 621 F.3d 283 (3d
Cir. 2010), cert denied, 2011 U.S. Lexis 1291 (U.S. Feb. 22, 2011), the
Court discussed alternative ways to show compliance.

      "The existence of ... a valid [standardized inventory search]
      procedure may be proven by reference to either written rules and
      regulations or testimony regarding standard practices." United
      States v. Thompson, 29 F.3d 62,65 (2d Cir. 1994)(citations
      omitted); see also United States v. Como, 53 F.3d 87,92 (5th Cir.
      1995)(upholding inventory search in the absence of a written
      policy, explaining that "testimony regarding reliance on
      standardized procedures is sufficient").

Id., at 290, f.n.5. The officer's demeanor and the overall content of their
testimony on this topic was credible. The Court accepts this evidence
about the existence of the inventory policy and that they acted in accord
with that policy when the decision was made to tow the vehicle.

     The Clerk of Courts shall forward the certified record to the
Superior Court of Pennsylvania in due course.


                                              BY THE COURT:

                                                              /              'J.
                                                       K. Williams, III




6 This two paragraph overview is taken from United States v. Mundy, 621 F.3d
283,287-88 (3d Cir. 2010), cert denied, 2011 U.S. Lexis 1291 (U.S. Feb. 22, 2011).
                                                                                     5
