J.S20038/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                 :       IN THE SUPERIOR COURT OF
                                              :            PENNSYLVANIA
                          Appellant           :
                                              :
                     v.                       :
                                              :
                                              :
ABDURRAHMAN MAMDOUH,                          :
                                              :
                          Appellee            :       No. 1579 WDA 2013


                   Appeal from the Order September 4, 2013
                  In the Court of Common Pleas of Erie County
               Criminal Division No(s).: CP-25-CR-0003337-2012
                                         CP-25-CR-0003338-2012
                                         CP-25-CR-0003339-2012

BEFORE: GANTMAN, P.J., DONOHUE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED SEPTEMBER 10, 2015

        We granted reconsideration in light Commonwealth v. Gary, 91 A.3d

102 (Pa. 2014), which the Pennsylvania Supreme Court decided after we

previously issued a judgment order in this matter.              The Commonwealth

originally took this appeal from the order of the Erie County Court of

Common       Pleas   suppressing   evidence       against   Appellee,   Abdurrahman

Mamdouh, asserting it was not required to establish exigent circumstances

to support a warrantless search of a motor vehicle.            We now address the




*
    Former Justice specially assigned to the Superior Court.
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appeal in light of Gary,1 and conclude that further proceedings are required

to determine whether an officer properly developed probable cause to search

a vehicle.     Accordingly, we vacate the trial court’s order and remand for

further proceedings consistent with this memorandum.

        The trial court summarized its factual findings as follows:

              On the night of October 4, 2012, [Appellee] and three
           others drove through Erie’s West Side to buy cigarettes.
           Afterwards, as they drove down Brown Avenue, [Appellee]
           told the driver to stop their car, a Jeep Cherokee. Once
           the car had stopped, [Appellee] stepped out, pulled out a
           BB gun, and approached a pedestrian on the street. He
           pointed the gun at the pedestrian and demanded all of the
           pedestrian’s possessions. One of the other passengers
           exited the car and searched the pedestrian’s pockets.
           When the search was finished, and [Appellee] and the
           passenger reentered the car with the pedestrian’s cell
           phone and wallet, they proceeded to a restaurant. On the
           way there, [Appellee] once again told the driver to stop,
           and the driver did so. [Appellee] exited the car and moved
           out of sight. Five minutes later he returned holding a cell
           phone and ear buds, and declared that he had just robbed
           a person.

              Two days later, in the early morning hours of October 6,
           2012, [Appellee] drove Edin Kantarevic (hereinafter
           “Edin”) and another passenger in the same Jeep Cherokee
           to a beer distributor. As they passed Coach’s Tavern at
           38th and Raspberry, they became aware of a visibly
           intoxicated man standing near the entrance to the bar.
           [Appellee] handed Edin the BB gun and stopped the car.
           He then told Edin to hit the man and rob him, and when
           Edin expressed that he did not want to, [Appellee] taunted
           and pressured Edin. Eventually, Edin exited the car and
           pointed the gun at the man. The other passenger got out
           of the car and searched the man’s pockets, where he found


1
    We did not order the filing of new briefs.



                                        -2-
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        a wallet and a cell phone.      They took those items,
        reentered the car, and drove away.[2]

            About that time, Officers [David] Stucke and
        Szoszorkek3 of the Erie Police Department received a call
        of an armed robbery at Coach’s Bar involving a 1990s
        model black Jeep Cherokee. They began searching that
        area for the suspect vehicle before going to the 3600 block
        of Post Avenue because another police officer had
        previously told Officer Stucke that a vehicle matching this
        description had been seen there. Further, one of the
        residents at that address was known to be an Iraqi male
        and the description of some of the actors in the Coach’s
        robbery included Iraqi or Arabic males. As soon as the
        officers turned onto Post Avenue, they saw a Jeep
        Cherokee that perfectly fit the description of the suspect
        vehicle parked in a driveway. The windows were fogged
        over and the officers could not tell if occupants were
        inside. When another unit had arrived for support, the
        officers approached the Cherokee cautiously and found it
        to be unoccupied, though the hood above the radiator was
        warm, indicating it had been recently driven.         Officer
        Stucke looked in a front window and saw an ID card and
        bank cards on the passenger side floor boards. At this
        point, ownership of the vehicle had not been identif[i]ed
        using the license plate number by the dispatcher due to an
        error with the identifying system. Unsure of what to do,
        and feeling exposed in the presence of possible armed
        robbers, Officer Stucke chose to enter the vehicle and look
        for a registration to ascertain the owner of the vehicle. He
        found none, but an examination of the ID card on the
        floorboard showed the card belonged to the victim of the

2
   The trial court, in the first two paragraphs recited above, relied on the
transcript of the preliminary hearing in this matter. However, a transcript of
the preliminary hearing was not included in the certified record or the
reproduced record in this appeal. We include these paragraphs from the
trial court’s opinion for the purposes of context to the trial court’s
suppression ruling. We offer no comment upon the validity of the allegations
set forth in the first two paragraphs.
3
  Neither a first name, nor a correct spelling of Officer Szoszorkek’s last
name is apparent from the record.



                                    -3-
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         Coach’s Tavern incident. Stemming from that discovery,
         Patrolman Stucke radioed for assistance, and [Appellee]
         and numerous other young men and women were removed
         from the house on Post Avenue. The police searched the
         house pursuant to a search warrant granted due to the
         evidence in the vehicle, and the search garnered goods
         stolen in two armed robberies which had occurred on the
         night of October 4, 2012 as well as BB gun handguns
         which looked identical to actual firearms. The officers
         detained all the occupants of the house, including
         [Appellee], at the police station to interview them.
         [Appellee] was eventually charged with counts stemming
         from all three armed robberies.

Trial Ct. Op., 9/4/13, at 1-4 (record citations omitted).

      Appellee, on April 30, 2013, filed an omnibus pretrial motion seeking,

inter alia, suppression of all evidence obtained by the police.   The motion

stated, in relevant part:

            7. [Officer] Stucke was driving around the area when he
         viewed a parked Jeep Cherokee in the driveway of a
         residence where [Appellee] and several other of the
         individuals implicated herein were living . . . at
         approximately 0148 hours.

            8. [Officer] Stucke entered onto the private property,
         went to the vehicle in the driveway and finding the door
         unlocked, entered the vehicle.        While searching the
         vehicle, the [officer] first searched the glove box for
         vehicle registration, then . . . picked up a pile of cards,
         etc., from the floor of the front passenger area which
         included the ID of the alleged victim [of the October 6,
         2012 robbery].

                                  *    *    *

            WHEREFORE, [Appellee] respectfully requests that this
         Honorable Court schedule an evidentiary hearing and . . .
         enter an Order suppressing any and all physical evidence
         seized from the vehicle illegally entered at [Appellee’s
         residence] . . . .


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Appellee’s Omnibus Pre-Trial Mot. & Pet. for Habeas Corpus, 4/30/13, at 3-5

(unpaginated).

      The trial court held a hearing on Appellee’s omnibus pretrial motion on

June 3, 2013, and issued its ruling granting Appellee’s suppression motion

on September 4, 2013.      The court concluded Officer Stucke had probable

cause to search the Jeep Cherokee, but suppressed the evidence under pre-

Gary law, concluding the officer’s search of the vehicle was not accompanied

by exigent circumstances.    Trial Ct. Op. at 5-7.   The Commonwealth took

this appeal.4

      This Panel, on April 23, 2014, previously affirmed the order granting

suppression.     However, six days after our decision, on April 29th, the

Pennsylvania Supreme Court decided Gary. The Commonwealth timely filed

a motion for reargument or reconsideration on May 7th, and this Panel

granted reconsideration without ordering new briefs.

      The Commonwealth has presented the following question on appeal:

         Whether the appropriate standard when evaluating
         warrantless vehicle searches should require either probable
         cause alone or probable cause which arose unexpectedly in
         circumstances that prevented police from securing a
         warrant in advance?

Commonwealth’s Brief at 3.

4
  The Commonwealth filed a timely notice of appeal with a separate
certification that the trial court’s ruling terminated or substantially
handicapped the prosecution. See Pa.R.A.P. 311(d). The trial court did not
order the filing of a Pa.R.A.P. 1925(b) statement.



                                    -5-
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      The Commonwealth’s sole contention is that exigent circumstances

should not be required when considering a search of an automobile. Id. at

6.   According to the Commonwealth, “The approach in Pennsylvania [to

search a vehicle] should be coextensive with the federal approach under

the Fourth Amendment . . . requiring only probable cause.”         Id. at 10

(citation omitted) (emphasis in original).

      Gary decided in favor of a similar argument while this appeal was

pending, and held that in Pennsylvania, exigent circumstances are no longer

required to justify a search of an automobile. See Gary, 91 A.3d at 112.

Having reviewed the parties’ arguments in light of the relevant law and the

record, we conclude Gary itself does not entitle the Commonwealth to relief

in this matter. Rather, our review reveals outstanding issues regarding the

trial court’s determination that the officer lawfully obtained probable cause

to enter the vehicle.    Accordingly, we vacate the trial court’s order and

remand for further consideration.

      Our standard of review is as follows:

            When reviewing the propriety of a suppression order, an
         appellate court is required to determine whether the record
         supports the suppression court’s factual findings and
         whether the inferences and legal conclusions drawn by the
         suppression court from those findings are appropriate.
         Where the defendant prevailed in the suppression court,
         we may consider only the evidence of the defense and so
         much of the evidence for the Commonwealth as remains
         uncontradicted when read in the context of the record as a
         whole. Where the appeal of the determination of the
         suppression court turns on allegations of legal error, “the
         suppression court’s conclusions of law are not binding on


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        an appellate court, whose duty it is to determine if the
        suppression court properly applied the law to the facts.”

Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa. Super. 2011)

(citations omitted).   Once a suppression issue is properly raised, the

Commonwealth bears the burden of proving the subject evidence was legally

obtained. Commonwealth v. Enimpah, 62 A.3d 1028, 1031 (Pa. Super.

2013), aff’d 106 A.3d 695 (Pa. 2014); see also Pa.R.Crim.P. 581(D), (H).

This Court may affirm the trial court’s suppression ruling on any basis.

Commonwealth v. McCulligan, 905 A.2d 983, 988 (Pa. Super. 2006).

     Preliminarily, we note:

           The general rule followed in Pennsylvania is that we
        apply the law in effect at the time of the appellate
        decision. This principle applies with equal force to both
        civil and criminal proceedings. This means that we adhere
        to the principle that, “a party whose case is pending on
        direct appeal is entitled to the benefit of changes in law
        which occurs before the judgment becomes final.” . . .
        [A]t common law, a decision announcing a new principle of
        law is normally retroactive. [A]lthough retroactivity is the
        general rule, a sweeping rule of retroactive application is
        not justified. Retrospective application is a matter of
        judicial discretion which must be exercised on a case by
        case basis.

Blackwell v. State Ethics Comm’n, 589 A.2d 1094, 1099 (Pa. 1991)

(citations omitted); see also Commonwealth v. Gray, 503 A.2d 921, 926-

27 (Pa. 1985) (holding this Court did not err in retroactively applying

“common–sense, practical approach” to probable cause standards when

affirming trial court’s denial of suppression motion).   “However, it is well-

settled that in order for a new law to apply retroactively to a case pending


                                    -7-
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on direct appeal, the issue had to be preserved in the trial court and at all

subsequent stages of the adjudication up to and including the direct appeal.”

Commonwealth v. Smith, 17 A.3d 873, 893-94 (Pa. 2011) (citations

omitted).

      It appears Gary applies retroactively to cases that were decided under

pre-Gary law and are pending on direct appeal.       See Commonwealth v.

Dunn, 95 A.3d 272 (Pa. 2014) (per curiam) (vacating Superior Court

decision and remanding in light of Gary). We recognize, however, that the

Commonwealth did not reserve an objection or claim it was not required to

establish exigent circumstance until this appeal.5      See Commonwealth’s

Brief at 3. Nevertheless, under the circumstances of this case, an objection

to the pre-Gary state of the law would have been futile and does not require

waiver. See Cleveland v. Johns-Manville Corp., 690 A.2d 1146 , 1151

(Pa. 1997) (“where a fundamental change in the law occurs after the lower

court enters its order, but before the appellate court rules, the failure to


5
   Instantly, Appellee properly preserved his suppression challenges in his
omnibus pretrial motion and the Commonwealth attempted to carry its
burden of proof under pre-Gary law by adducing evidence of exigent
circumstances. See Pa.R.Crim.P. 581(D), (H). The Commonwealth did not
expressly object to the law in existence at the time of the suppression
hearing. Rather, the trial court first suggested the possibility of a change in
the application of the law in its opinion in support of suppression. See Trial
Ct. Op. at 7 n.2 (“The requirement of exigent circumstances may be ripe for
appellate review . . . .”). The Commonwealth, in turn, claimed that it was
not required to establish exigent circumstance for the first time on appeal.
See Commonwealth’s Brief at 3.




                                     -8-
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raise the issue in the lower court will not preclude appellate review of that

issue”); Commonwealth v. Cheeks, 239 A.2d 793, 796 (Pa. 1968) (“It

would be manifestly unfair to hold [an] appellant to a waiver when this

waiver is alleged to have occurred at a time when neither the defendant nor

his attorney had any way of knowing that there existed a right to be

waived”)    Thus, we conclude Gary applies retroactively in this matter and

will not find the issue waived. Cf. Gray, 503 A.2d at 926-27.

     The Pennsylvania Supreme Court decision in Gary6 addressed a

divergence between Pennsylvania law and the decisions of the United States

Supreme Court regarding warrantless automobile searches. Gary, 91 A.3d

at 120.    Prior to Gary, Pennsylvania courts applied a “limited automobile

exception,” which required the Commonwealth to establish probable cause

and exigent circumstances to justify a warrantless search of a motor

vehicle. United States Supreme Court precedent on the Fourth Amendment,

however, developed to permit a warrantless search of an automobile based

on probable cause alone. Id. at 119-20. The Gary Court noted,

           [T]here has been an evolution of the high Court’s
           jurisprudence concerning the automobile exception to the

6
  Justice McCaffery authored the lead decision in Gary, which was joined by
Chief Justice Castille and Justice Eakin. Justice Saylor filed a concurring
opinion. Justice Todd filed a dissenting opinion that was joined by Justice
Baer. Justice Orie Melvin did not participate in the decision. Although
issued as an Opinion Announcing the Judgment of the Court, four Justices
agreed upon the essential holding that only probable cause was required to
search a motor vehicle. See id.; id. at 138 (Saylor, J., concurring).




                                    -9-
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        warrant requirement. While the early holdings of [Carroll
        v. United States, 267 U.S. 132 (1925),] and [Chambers
        v. Maroney, 399 U.S. 42 (1970),] relied on the
        impracticability of obtaining a warrant for a motor vehicle
        in transit with contraband or evidence of a crime, more
        recent cases from the high Court have made clear that the
        impracticability of obtaining a warrant, unforeseen events,
        or any other exigent circumstances—beyond the inherent
        ready mobility of a motor vehicle—are not required for
        application of the automobile exception to the warrant
        requirement. As the high Court stated in [Maryland v.
        Dyson, 527 U.S. 465, 466–67 (1999)], since 1982, the
        only requirement for application of the automobile
        exception, permitting warrantless search of a motor
        vehicle under federal law, is a finding of probable cause.[7]


7
  We are mindful that litigants and our sister courts continue to refer to
Coolidge v. New Hampshire, 403 U.S. 443 (1971), to suggest a search of
a vehicle is held to differing standards when the vehicle is found on public
versus private property. See e.g., United States v. Fields, 456 F.3d 519,
525 (5th Cir. 2006) (distinguishing Coolidge by noting, “The Fourth
Amendment concerns that arise when the police search a car that is parked
in the driveway of a home, without a warrant, are not present here.”).
Although not expressly abrogated, the rationale of Coolidge has been
undercut by more recent United States Supreme Court decisions. See
Dyson, 527 U.S. at 466–67 (1999); United States v. Smith, 533 F. Supp.
2d 227, 232-33 (D. Mass. 2008); see also Gary, 91 A.3d at 112.
Moreover, as the Smith court observed, there are several decisions of the
United States Circuit Courts of Appeals applying the “automobile exception”
to unoccupied vehicles in private driveways. Smith, 533 F.Supp. 2d at 233
(citing United States v. Hines, 449 F.3d 808 (7th Cir. 2006); United
States v. Brookins, 345 F.3d 231 (4th Cir. 2003); United States v.
Fladten, 230 F.3d 1083 (8th Cir. 2000); United States v. Markham, 844
F.2d 366 (6th Cir. 1988); United States v. Hamilton, 792 F.2d 837 (9th
Cir. 1986)); see also Pennsylvania v. Labron, 518 U.S. 938 (1996) (per
curiam). The court, however, also observed other Circuit Courts of Appeals
suggest a “heightened privacy interests may be triggered when a vehicle is
encountered on private property.” Smith, 533 F. Supp. 2d at 232-33
(quoting Brookins, 345 F.3d at 237 n.8, and citing Fields, 456 F.3d at
525). In light of Gary, we decline to consider whether greater privacy
interests attach to an unoccupied vehicle on a residential driveway.




                                   - 10 -
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Id. at 112.

     The Gary Court determined prior Pennsylvania courts did not

thoroughly inquire as to whether greater protections were required by Article

I, Section 8 of the Pennsylvania Constitution. Id. at 120. The Gary Court

conducted an Edmunds8 analysis and announced:

        [W]e now hold that with respect to a warrantless search of
        a motor vehicle that is supported by probable cause,
        Article I, Section 8 of the Pennsylvania Constitution affords
        no greater protection than the Fourth Amendment to the
        United States Constitution. Accordingly, we adopt the
        federal automobile exception to the warrant requirement,
        which allows police officers to search a motor vehicle when
        there is probable cause to do so and does not require any
        exigency beyond the inherent mobility of a motor vehicle.

Gary, 91 A.3d at 104. It further stated:

        The prerequisite for a warrantless search of a motor
        vehicle is probable cause to search; no exigency beyond
        the inherent mobility of a motor vehicle is required. The
        consistent and firm requirement for probable cause is a
        strong and sufficient safeguard against illegal searches of
        motor vehicles, whose inherent mobility and the endless

8
  Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). An Edmunds
analysis pertains to whether the Pennsylvania Constitution provides greater
protection than the United States Constitution and

        encompasses at least the following four factors:

              1) text of the Pennsylvania constitutional provision;
              2) history of the provision, including Pennsylvania
              case-law; 3) related case-law from other states;
              [and] 4) policy considerations, including unique
              issues of state and local concern, and applicability
              within modern Pennsylvania jurisprudence.

Gary, 91 A.3d at 124 (citation omitted).



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          factual circumstances that such mobility engenders
          constitute a per se exigency allowing police officers to
          make the determination of probable cause in the first
          instance in the field.

Id. at 138.

      In aligning Pennsylvania law with the federal automobile exception,

the Gary Court referred to several policy considerations. For example, the

Court noted that a finding of exigent circumstances “often turned on small

details in the midst of a complex factual scenario, details which have been

given varying emphasis over time by different members of this Court.”    Id.

at 137.       The Court suggested, “To provide greater uniformity in the

assessment of individual cases and more consistency with regard to the

admissibility of the fruits of vehicular searches based on probable cause, a

more easily applied rule—such as that of the federal automobile exception—

is called for.” Id. (citation omitted).

      In light of Gary, the trial court’s reason for suppressing the evidence

in this case—i.e., that probable cause existed to search the vehicle, but

exigent circumstances did not—no longer comports with the law of

Pennsylvania. See id. at 104; accord Dunn, 95 A.3d at 272; Gray, 503

A.2d at 926-27.       However, because this Court may affirm on any basis

apparent in the record, see McCulligan, 905 A.2d at 988, we review the

trial court’s determination that the officer possessed probable cause to

search the vehicle.




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      The following principles govern our review.          “Probable cause” is

defined   as   information   that   permits   a   “‘neutral’   and   ‘detached’”

determination that (1) criminal activity occurred and (2) “there is a fair

probability that contraband or evidence of a crime will be found in a

particular place.”     Commonwealth v. Woosnam, 819 A.2d 1198, 1208

(Pa. Super. 2003) (citation omitted).

          In determining whether probable cause exists, we must
          consider the totality of the circumstances as they appeared
          to the arresting officer.      Additionally, “[t]he evidence
          required to establish probable cause for a warrantless
          search must be more than a mere suspicion or a good faith
          belief on the part of the police officer.”

Commonwealth v. Copeland, 955 A.2d 396, 400 (Pa. Super. 2008)

(citations omitted).    “[W]hat facts and circumstances amount to probable

cause is a question of law.” Commonwealth v. Newman, 84 A.3d 1072,

1079 (Pa. Super. 2014) (citation omitted), appeal denied, 99 A.3d 925 (Pa.

2014).

      A “search” occurs when “the Government obtains information by

physically intruding” on a constitutionally protected area. Commonwealth

v. Sodomsky, ___ A.3d ___, ___, 2015 WL 3533863, at *6 (Pa. Super.

June 5, 2015) (citation omitted). This Court has stated:

          Absent probable cause and exigent circumstances,
          warrantless searches and seizures in a private home
          violate both the Fourth Amendment and Article 1 § 8 of the
          Pennsylvania     Constitution.      These   constitutional
          protections have been extended to the curtilage of a
          person’s home.        In determining what constitutes
          “curtilage,” we consider “factors that determine whether


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         an individual reasonably may expect that an area
         immediately adjacent to the home will remain private.
         Curtilage is entitled to constitutional protection from
         unreasonable searches and seizures as a place where the
         occupants have a reasonable expectation of privacy that
         society is prepared to accept.”

Commonwealth v. Bowmaster, 101 A.3d 789, 792 (Pa. Super. 2014)

(citations omitted).

      In Commonwealth v. Gibbs, 981 A.2d 274 (Pa. Super. 2009), this

Court held that a front porch to a residence was not constitutionally

protected. Id. at 280. In that case, police officers conducted an undercover

investigation of drug sales at the defendant’s residence.   Id. at 277.   A

confidential informant arranged for a third-party purchase of crack cocaine.

Id.   The third-party entered the defendant’s home and purchased drugs

from an individual. Id. Officers arrested the purchaser as he was leaving

the scene and seized the narcotics in his possession. Id. An officer applied

for a search warrant, but concerned evidence would be destroyed, directed

other officers to distract the occupants of the residence by knocking on the

door and engaging them in conversation.        Id.   The remaining officers

entered onto the porch, at which time the defendant opened the front door.

Id. at 277-78. “From their vantage point on the porch, the officers observed

stacks of cash and bags of apparent crack cocaine on the kitchen counter

within two or three feet of” the defendant. Id. at 278.

      The defendant in Gibbs was convicted of drug trafficking offenses and

took an appeal to this Court asserting, inter alia, “[t]he front porch


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constituted curtilage and thus the police viewed the contraband from an

unlawful vantage point.” Id. at 278-89. The Gibbs Court concluded:

         There is no evidence in the record, and [the defendant]
         has provided no legal support for his claim that the porch
         constituted curtilage. The evidence established that there
         was no front yard or other enclosed space preceding or
         surrounding the porch; rather, the porch “butt[ed] up”
         against the sidewalk. There was no gate blocking entry to
         the porch and nothing else which would indicate that the
         porch was closed to members of the general public.
         Further, the porch was an empty, unenclosed, concrete
         slab that was used by deliverymen and visitors to the
         apartment.     Lastly, the evidence reflects that, within
         minutes of the police entry onto the porch, the porch was
         also used by a pizza deliveryman and a couple of
         individuals attempting to purchase contraband.

Id. at 280 (citations omitted).

      In Commonwealth v. Simmen, 58 A.3d 811 (Pa. Super. 2012), this

Court subsequently held that a defendant did not have a reasonable

expectation of privacy in his driveway.      Id. at 815.   In Simmen, the

defendant crashed into the retaining wall at the complainant’s residence,

which was approximately one-and-a-half to two miles away from the

defendant’s home.    Id. at 813.   The complainant called 911 to report the

accident, and an officer arrived five minutes later. Id. The officer observed

a burgundy bumper at the scene and a trail of fluid leading away from the

scene. Id. The officer followed the trail to the defendant’s residence and

saw a burgundy vehicle in the driveway, approximately twenty feet from the

road. Id. The officer then “walked up the driveway,” and noticed that the

vehicle was leaking fluid, its bumper was missing, and its airbag was


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deployed. Id. The officer knocked on the front door of the residence and

was permitted into the residence by the defendant’s wife.           The officer

ultimately encountered and later arrested the defendant for driving under

the influence. Id.

      After his conviction for driving under the influence and related

offenses, the defendant in Simmen appealed to this Court asserting, in

relevant part, that the “arresting officer unlawfully entered his property by

walking up his driveway without a warrant.”     Id. at 815.    The Simmen

Court, citing Gibbs, concluded the defendant’s driveway was not curtilage.

See id.

            Based on the description of the driveway, and the
            location of the car on it, there was no evidence
            presented at the time of the suppression hearing to
            support an assertion that there was any expectation
            of privacy in the area. The driveway was in the front
            of the house, leading from the street to the garage
            contained within the actual residence. The car was
            parked in plain view of the street on the driveway,
            within twenty (20) feet of the road. There was no
            evidence of signs warning against trespass on the
            driveway or that the driveway was gated or fenced
            or shielded from the view of the street in any way.
            In fact, it appears from the description of the house
            that access to the front door of the residence was
            made via the driveway. . . .

          As [the defendant’s] driveway was accessible to the
          general public, [the officer] viewed [the defendant’s]
          vehicle from a lawful vantage point when he walked up
          [the defendant’s] driveway, an area in which [the
          defendant] did not have a reasonable expectation of
          privacy.

Id. at 815-16 (citations omitted).


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      Although Gibbs and Simmen focused on a defendant’s reasonable

expectation of privacy in a front porch and driveway, respectively, the

United States Supreme Court, in 2012, “rediscover[ed] the trespassory

origins of the Fourth Amendment.” See Sodomsky, 2015 WL 3533863 at

*6 (citation omitted). In United States v. Jones, 132 S. Ct. 945 (2012),

the United States Supreme Court discussed “constitutionally protected

areas” as follows:9

         Consistent with this understanding, our Fourth Amendment
         jurisprudence was tied to common-law trespass, at least
         until the latter half of the 20th century. . . . .

            Our later cases, of course, have deviated from that
         exclusively property-based approach. In Katz v. United
         States, 389 U.S. 347, 351 . . . (1967), we said that “the
         Fourth Amendment protects people, not places,” and found
         a violation in attachment of an eavesdropping device to a
         public telephone booth. Our later cases have applied the
         analysis of Justice Harlan’s concurrence in that case, which
         said that a violation occurs when government officers
         violate a person’s “reasonable expectation of privacy.”

         . . . Fourth Amendment rights do not rise or fall with the
         Katz formulation. At bottom, we must “assur[e]
         preservation of that degree of privacy against government
         that existed when the Fourth Amendment was adopted.”
         As explained, for most of our history the Fourth
         Amendment was understood to embody a particular
         concern for government trespass upon the areas
         (“persons, houses, papers, and effects”) it enumerates.
         Katz did not repudiate that understanding. . . .

9
  In Jones, the Court considered whether attaching a GPS tracking device to
the defendant’s vehicle constituted a search. Jones 132 S. Ct. at 948.
Jones was decided on January 23, 2012, after we decided Gibbs, but before
we decided Simmen and the suppression proceedings in this case.




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Jones, 132 S. Ct. at 950 (citations and footnote omitted).

     Following Jones, the United States Supreme Court decided Florida v.

Jardines, 133 S. Ct. 1409 (2013).10 In Jardines, law enforcement officials

“received an unverified tip” that the defendant was growing marijuana in his

home. Id. at 1413. Officers surveilled the residence for fifteen minutes and

observed no activity. Id. An officer then approached the front porch of the

residence with a trained police dog, which smelled narcotics.      Id.   The

canine went to the base of the front door and sat down, which signaled the

odor’s strongest point. Id. The officer obtained a search warrant based on

this information, executed the warrant, and discovered marijuana plants in

the home. Id. The Florida trial court suppressed the plants, concluding the

officers engaged in an unreasonable search, and the Florida Supreme Court

ultimately upheld the trial court’s decision.   Id.   The State appealed the

decision to the United States Supreme Court. Id.

     The lead opinion in Jardines found the case was “a straightforward

one,” in light of Jones and the principle that Katz “does not subtract

anything from the Amendment’s protections ‘when the Government does




10
  Jardines was decided on March 26, 2013, after we decided Gibbs and
Simmen, but one month before Appellee filed his suppression motion and
two months before the suppression hearing.




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J. S20038/14

engage in [a] physical intrusion of a constitutionally protected area.’”11 Id.

at 1414 (citation and quotation marks omitted). The lead opinion concluded,

“The front porch is a classic exemplar of an area adjacent to the home and

to which the activity of home life extends.” Id. at 1415 (citation omitted).

         We therefore regard the area “immediately surrounding
         and associated with the home”—what our cases call the
         curtilage—as “part of the home itself for Fourth
         Amendment purposes.” That principle has ancient and
         durable roots. Just as the distinction between the home


11
   Justice Scalia authored the lead opinion in Jardines, and was joined by
Justice Thomas. Justice Kagan authored a concurring opinion, in which
Justice Ginsburg and Justice Sotomayor joined. The concurring opinion
noted that although the lead opinion decided the case under a “property
rubric,” the Court could have done so by examining the defendant’s “privacy
interests.” Id. at 1418 (Kagan, J., concurring). Under the latter approach,
the concurring opinion concluded that a

         “firm” and “bright” rule governs this case: The police
         officers here conducted a search because they used a
         “device . . . not in general public use” (a trained drug-
         detection dog) to “explore details of the home” (the
         presence of certain substances) that they would not
         otherwise have discovered without entering the premises.

Id. at 1419. The concurring opinion, however, stated it “joined the Court’s
opinion in full,” but “that a focus on [the defendant’s] privacy interest would
make an ‘easy cas[e] easy’ twice over[.]” Id.

      Justice Alito, joined by Chief Justice Roberts, and Justices Kennedy and
Breyer, authored a dissenting opinion in Jardines. The dissenting opinion
concluded the lead opinion decided the case “based on a putative rule of
trespass law that is nowhere to be found in the annals of Anglo-American
jurisprudence.” Id. at 1420 (Alito, J., dissenting). It further found that both
the lead and the concurring opinion were “also inconsistent with the
reasonable-expectations-of-privacy test” set forth in Katz. Id. at 1421,
1424.




                                    - 19 -
J. S20038/14

         and the open fields is “as old as the common law,” so too
         is the identity of home and what Blackstone called the
         “curtilage or homestall,” for the “house protects and
         privileges all its branches and appurtenants.” This area
         around the home is “intimately linked to the home, both
         physically and psychologically,” and is where “privacy
         expectations are most heightened.”

Id. at 1414-15 (citations omitted).

      Notably, the lead opinion in Jardines did not address any indicia

regarding the defendant’s reasonable expectation of privacy in the front

porch. See id.; cf. Simmen, 58 A.3d at 815-16; Gibbs, 981 A.2d at 280.

Instead, it analyzed the officer’s intrusion in terms of an express or implied

license to trespass:

            Since the officers’ investigation took place in a
         constitutionally protected area, we turn to the question of
         whether it was accomplished through an unlicensed
         physical intrusion. While law enforcement officers need
         not “shield their eyes” when passing by the home “on
         public thoroughfares,” an officer’s leave to gather
         information is sharply circumscribed when he steps off
         those thoroughfares and enters the Fourth Amendment’s
         protected areas.       In permitting, for example, visual
         observation of the home from “public navigable airspace,”
         we were careful to note that it was done “in a physically
         nonintrusive manner.” . . . “[O]ur law holds the property
         of every man so sacred, that no man can set his foot upon
         his neighbour’s close without his leave.”           As it is
         undisputed that the detectives had all four of their feet and
         all four of their companion’s firmly planted on the
         constitutionally protected extension of [the defendant’s]
         home, the only question is whether he had given his leave
         (even implicitly) for them to do so. He had not.

            “A license may be implied from the habits of the
         country,” notwithstanding the “strict rule of the English
         common law as to entry upon a close.”            We have
         accordingly recognized that “the knocker on the front door


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J. S20038/14

         is treated as an invitation or license to attempt an entry,
         justifying ingress to the home by solicitors, hawkers and
         peddlers of all kinds.”      This implicit license typically
         permits the visitor to approach the home by the front path,
         knock promptly, wait briefly to be received, and then
         (absent invitation to linger longer) leave. Complying with
         the terms of that traditional invitation does not require
         fine-grained legal knowledge; it is generally managed
         without incident by the Nation’s Girl Scouts and trick-or-
         treaters.[ ] Thus, a police officer not armed with a warrant
         may approach a home and knock, precisely because that is
         “no more than any private citizen might do.”

             But introducing a trained police dog to explore the area
         around the home in hopes of discovering incriminating
         evidence is something else.         There is no customary
         invitation to do that. An invitation to engage in canine
         forensic investigation assuredly does not inhere in the very
         act of hanging a knocker. To find a visitor knocking on the
         door is routine (even if sometimes unwelcome); to spot
         that same visitor exploring the front path with a metal
         detector, or marching his bloodhound into the garden
         before saying hello and asking permission, would inspire
         most of us to—well, call the police. The scope of a
         license—express or implied—is limited not only to a
         particular area but also to a specific purpose. Consent at a
         traffic stop to an officer’s checking out an anonymous tip
         that there is a body in the trunk does not permit the officer
         to rummage through the trunk for narcotics. Here, the
         background social norms that invite a visitor to the front
         door do not invite him there to conduct a search.

Jardines, 133 S. Ct. at 1415-16 (citations and footnotes omitted).

      Mindful of the foregoing precepts, we review the trial court’s following

findings of fact and conclusions of law:

            In this case, the Jeep Cherokee matched the description
         of the vehicle used in a series of robberies that had
         recently occurred. Officer Stucke had been told it was at
         the residence or near the residence of a known Iraqi male,
         and one of the perpetrators of the robberies was alleged to
         be a Middle Eastern male. The hood of the car was still


                                    - 21 -
J. S20038/14

        warm from being driven, and there was a pile of personal
        items on the floor of the passenger side of the car. Under
        the totality of the circumstances determination, Officer
        Stucke had sufficient probable cause to conduct a search.

Trial Ct. Op. at 5-6.   Thus, the court suggested a “search” first occurred

when the officer entered the car.    However, it did not address Appellee’s

claim that the officer engaged in a search when he “entered onto the private

property, went to the vehicle in the driveway and finding the door unlocked,

entered the vehicle.”   See Appellee’s Omnibus Pre-Trial Mot. and Pet. for

Habeas Corpus at 3-4; N.T. at 20.

     The record reveals the following.       Officer Stucke testified that on

October 6, 2012, he received a report of a gunpoint robbery at Coach’s Bar,

which was located on the 3800 block of Elmwood Avenue. N.T. at 5. The

report indicated a dark colored, older model, 1990’s Jeep Cherokee was

involved in the robbery. Id. The officer was aware that a similar vehicle

was implicated in at least one robbery that occurred two days earlier. Id.

He was also aware that the previous robbery involved “Iraqi males, or Arabic

males.”12 Id. at 6.

     After receiving the report, Officer Stucke and his partner patrolled the

“immediate area,” but then went to the 3600 block of Post Avenue based on



12
   The record does not indicate whether the October 6, 2012 report of the
robbery at Coach’s Bar contained a description of the perpetrators or their
ethnicities.




                                    - 22 -
J. S20038/14

information he obtained from the previous robbery.13       Id. at 5-6.    The

officer’s uncontradicted testimony was that after turning onto Post Avenue,

“one house in, sitting in the driveway was a Cherokee that perfectly fit the

description of the suspect vehicle in the robbery.”    Id. at 7.   He further

testified that the vehicle was parked “forwards” in the driveway. Id. at 8.

The officer called for backup and relayed the plate number to his dispatcher.

Id. at 8. He testified he “stood by until another unit arrived” and exited his

vehicle after backup arrived. Id. Less than twenty minutes passed between

the broadcast of the report and the officer’s discovery of the vehicle. See

id. at 10 (indicating that no more than twenty minutes between receiving

report and later checking vehicle for occupants).

      Officer Stucke was not able to obtain registration information from his

patrol vehicle’s computer and his dispatch center “was not receiving returns

from NCIC in regards to ownership of the vehicle.” N.T. at 10. Further, the

rear windows of the vehicle were “completely fogged over[,]” and the officer

was unable to tell if the vehicle was occupied. Id. at 8. When a backup unit

arrived, the officers “approached the vehicle from directly behind,” to limit

their visibility in case the vehicle was occupied. Id. Given the reports that

the robbers were armed, the officers had their weapons drawn. Id.




13
   Neither party adduced evidence regarding the distance between the scene
of the robbery and Appellee’s residence.



                                    - 23 -
J. S20038/14

      Officer Stucke stated he was not still able to see if the vehicle was

occupied because the windows were “heavily fogged over” due to an earlier

rain. Id. He approached the front passenger side door, and it was not until

he reached the door that he found an unfogged portion. Id. at 9. He looked

inside the vehicle using a flashlight and saw the car was unoccupied. Id. At

the same time, however, he saw “a pile of an ID card and some bank cards”

on the passenger side floorboard, where a passenger’s left foot would be.

Id. at 8, 10.   He testified that area was “one of the first places I was

looking” and “I saw [the ID and bank cards] clearly there.” Id. at 10. He

then went to the front of the vehicle, touched the hood, and felt a “good deal

of heat coming from the vehicle, which indicated that it had been recently

driven.” Id. at 9.

      Officer Stucke radioed his dispatcher to ask whether the NCIC

information on the vehicle had been obtained. Id. He testified, “Basically at

that point in time I decided we were directly next to the house. I felt that

any moment somebody could look out and see us.” Id. at 11. He went to

the driver’s side of the vehicle for cover, and then opened the unlocked

driver’s door. He testified, “I proceeded to go into the glove compartment of

the vehicle, which was empty, in an attempt to locate a registration.”14 Id.


14
   On cross-examination, the officer testified, “[B]asically my reason for
going inside the vehicle was to identify the owner of the vehicle.” N.T. at
21. He reasoned, “at that point in time I was not sure if this vehicle was
specifically involved in the robbery. I had a very strong inclination . . .



                                    - 24 -
J. S20038/14

      Finding no paperwork associated with the car, he “recalled the ID card

and bank cards” on the passenger side floor board and seized them. Id. at

11. He read the name on the ID card and discovered it was the victim of the

robbery earlier that night.    Id.    He radioed the officer investigating the

robbery and confirmed the name of the victim. Id. at 11-12. The officer

then “withdrew to a position of cover near the garage, and received a report

that a door on the side of the garage was open and there was a light on

inside. Id. at 12. He maintained security while additional units arrived to

call the occupants out of the residence using a PA system. Id.

      We conclude that the discovery of the suspect vehicle before officers

entered the driveway did not constitute a search. See Jardines, 133 S. Ct.

at 1415 (reiterating “law enforcement officers need not shield their eyes

when passing by the home on public thoroughfares”).                No privacy or

property interests were intruded upon by the officer’s actions when he

observed the vehicle.     See id.    Similarly, the officer’s observation of the

vehicle’s license plate and his decision to search computer records for

information    on   the   vehicle    did   not   constitute   a   search.   See

Commonwealth v. Bolton, 831 A.2d 734, 737 (Pa. Super. 2003) (rejecting

defendant’s claim “charging officer must have some level of suspicion in

[f]rom my prior experience on this job.” Id. at 22. When asked whether
“there [was] absolutely no doubt you were entering the vehicle to find
possible evidence of crime[,]” the officer responded, “No. My reason for
entering the vehicle was to find . . . who the registered owner of the vehicle
was.” Id.



                                      - 25 -
J. S20038/14

order to run a license plate on the road through the NCIC computer,” and

noting, “we fail to see the need for some level of suspicion to check a license

plate which is clearly in plain view.”).

      However, the officer’s observations after he entered the driveway

were critical to the trial court’s determination that probable cause existed.

See Trial Ct. Op. at 5-6. On this question, we are constrained to conclude

there are gaps in the trial court’s factual findings and legal conclusions.

Specifically, the trial court made no determination on whether Appellee had

a privacy interest in the driveway. See Jardines, 133 S. Ct. at 1415-16;

Simmen, 58 A.3d at 815-16.           Further, the current state of the record

precludes this Court from determining whether (1) the officer conducted a

search when entering the driveway; (2) the search was reasonable; and (3)

if the search was unreasonable, whether the fruits obtained from the illegal

search would taint the trial court’s original probable cause determination.

See generally Commonwealth v. Brown, 23 A.3d 544, 552 (Pa. Super.

2011) (en banc) (reiterating plain view exception to warrant requirement

requires “(1) the police . . . observe the object from a lawful vantage-point;

(2) the incriminating character of the object . . . be immediately apparent;

and (3) the police . . . have a lawful right of access to the object.”). Under

these circumstances, it is prudent to permit the trial court in the first

instance to find the relevant facts and render conclusions of law on these

issues.   The court may receive additional evidence or arguments from the



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J. S20038/14

parties as it deems necessary and shall enter an order granting or denying

suppression.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/10/2015




                                  - 27 -
