J-A26001-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

JORDASHA KASHINA TAYLOR

                        Appellant                   No. 25 MDA 2017


         Appeal from the Judgment of Sentence October 28, 2016
            In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0004634-2015


BEFORE: BOWES, OLSON, AND RANSOM, JJ.

MEMORANDUM BY BOWES, J.:                       FILED FEBRUARY 13, 2018

     Jordasha Kashina Taylor appeals from the October 28, 2016 judgment

of sentence of one to two years imprisonment that was imposed after a jury

convicted him of possession of a controlled substance with intent to deliver

and conspiracy. We vacate the judgment of sentence and remand for a new

suppression hearing.

     As the critical issues in this appeal concern the resolution of

Appellant’s suppression motion, we outline the pertinent facts from the

hearing on that motion. The charges herein rested on the fact that, after

conducting a traffic stop, police discovered a large amount of marijuana in a

vehicle. Appellant was a passenger in the vehicle, an SUV that his wife had

rented and was driving. Appellant filed a motion to suppress, complaining
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that the traffic stop and the vehicle’s search were unconstitutional and that

certain remarks that he made to police during the interdiction were also

subject to suppression.

      At the inception of the suppression proceeding, the Commonwealth

asserted that Appellant could not establish that he had standing to contest

the propriety of the vehicular stop and search because he was unable to

“establish a reasonable expectation of privacy” in the SUV.    N.T. Hearing,

4/4/16, at 3.     Id.   The Commonwealth noted that Appellant’s wife had

rented the vehicle in question, and the rental agreement permitted only her

to drive it.   Even though Appellant’s wife was actually driving the vehicle

when it was stopped, the Commonwealth maintained that Appellant was not

able to “establish any legitimate expectation of privacy, as he was the

passenger, and it was not his vehicle.” Id. at 4. Appellant countered that

he did have a legitimate expectation of privacy in the SUV, as it was being

driven by his wife as authorized by the rental agreement. Id. at 7. The trial

court thereafter accepted the Commonwealth’s position that, as a passenger

in a car that he did not own, Appellant lacked standing to suppress any of

the evidence.     Id. at 10.    Due to this ruling, Appellant’s suppression

challenge was limited to ascertaining whether the statements that he made

during the interdiction should be suppressed.

      Thereafter, State Trooper David Long testified to the following.   Just

prior to 1:00 p.m. on June 30, 2015, he was on duty when he came in

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contact with Appellant after a “traffic stop that was initiated on a vehicle he

was present in” on Interstate 81, just south of the Hersey exit.    Id. at 12.

Trooper Long articulated that the only reason that he stopped the vehicle

was that it “traveled off the roadway,” which constituted a violation of

“roadways laned for traffic.” Id. at 12. Appellant’s wife was operating the

SUV with a valid license pursuant to a rental agreement, and Appellant was

the sole passenger. The Trooper approached Appellant, and, when Appellant

rolled down his window, Trooper Long detected the odor of marijuana and

alcohol, which he knew was used to mask the smell of marijuana.         Based

upon the fact that he smelled marijuana, Trooper Long decided to conduct a

search of the vehicle. After Trooper Long informed Appellant and his wife

that he was going to search the SUV, Appellant admitted to smoking

marijuana.    Trooper Long thereafter conducted the search, discovering a

garbage bag containing twelve one-pound bags of marijuana in the rear

cargo area of the SUV.

      After the suppression court denied the motion to suppress Appellant’s

admission that he had smoked marijuana, Appellant proceeded to a jury

trial, where he was convicted of possession of a controlled substance with

intent to deliver and conspiracy.     This appeal followed imposition of a

sentence of one to two years imprisonment, Appellant raises the following

contentions on appeal:




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      I. Whether a new suppression hearing is warranted where the
      trial court denied a defendant's suppression motion based on an
      error of constitutional law that a passenger of a vehicle lacks
      standing to challenge the legality of a traffic stop?

            A. Whether the trial court's refusal to conduct a full
            suppression hearing based on an error of
            constitutional law represents reversible error?

      II. Whether the trial court abused its discretion by denying
      [Appellant’s] Motion to Suppress Evidence absent sufficient
      evidence or testimony to establish that the challenged evidence
      was not obtained improperly?

      III. Whether the trial court abused its discretion when it declined
      to excuse a prospective juror for cause where the juror was
      married to [Appellant’s]      previously court-appointed defense
      attorney, who had represented [Appellant] at his Preliminary
      Hearing and had entered her appearance as trial counsel in the
      Court of Common Pleas?

Appellant’s brief at 4.

      We first address the suppression issues raised herein. “[O]ur standard

of review in addressing a challenge to a trial court's denial of a suppression

motion is limited to determining whether the factual findings are supported

by the record and whether the legal conclusions drawn from those facts are

correct.” Commonwealth v. Singleton, 169 A.3d 79, 82 (Pa.Super. 2017)

(citations omitted). Additionally, our “scope of review of suppression rulings

includes only the suppression hearing record and excludes evidence elicited

at trial.” Id. (citation omitted; emphasis added); see also Commonwealth

v. Coleman, 130 A.3d 38 (Pa.Super. 2015).




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      In this case, the trial court did not render any factual findings due to

its legal conclusion that Appellant did not have standing to contest the

constitutional validity of the vehicular stop and search.     On appeal, the

Commonwealth repeats its position that Appellant, as a passenger in a

vehicle, had no reasonable expectation of privacy in that vehicle and did not

have the ability to contest the constitutionality of either the traffic stop or

the vehicular search.

      Based upon our review of the record and case law, we first conclude

that the trial court committed an error of law in holding that Appellant lacked

standing to contest the validity of the vehicular stop.     As we outlined in

Commonwealth v. Brown, 64 A.3d 1101 (Pa.Super. 2013), standing in the

context of the Fourth Amendment search and seizure jurisprudence allows a

defendant to assert the existence of a constitutional violation and to seek

suppression of any evidence discovered as the result of that illegal seizure or

search.   In Pennsylvania, a defendant charged with a possessory crime

enjoys automatic standing. Id. Nevertheless, to “prevail in a challenge to

the search and seizure” a defendant accused of a possessory crime must

also establish, as a threshold matter, a legally cognizable expectation of

privacy in the area seized or searched. Id. at 1107. Such expectation of

privacy must be one that society is prepared to accept as legitimate. Id.

      The case law relating to seizures and searches is factually driven.

When a defendant is complaining about a seizure, the critical inquiry is

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simply whether the person seized is legitimately at the location where the

seizure occurred. This concept is best illustrated by Brendlin v. California,

551 U.S. 249 (2007), where officers stopped a car to check its registration

but had no reason to believe that the car was not registered or was

otherwise being operated in violation of the law. Brendlin was a passenger

in the illegally seized car, police recognized him as a parole violator, and

Brendlin was arrested. The police then searched the car and uncovered drug

paraphernalia.      The United States Supreme Court held that, when police

engage in a vehicular stop, a passenger is seized for purposes of the Fourth

Amendment and can challenge the validity of the seizure, i.e., the traffic

stop.

        Our     Supreme    Court   more   recently   applied   this   precept   in

Commonwealth v. Shabezz, 166 A.3d 278 (Pa. 2017), where Shabezz was

a passenger in a vehicle that was unconstitutionally seized by police officers.

Thereafter, police uncovered drugs and weapons both in the vehicle and on

Shabezz.       Our Supreme Court concluded that Shabezz had standing to

contest the traffic stop due to his status as a passenger in the car, and,

since that stop was concededly illegal, could seek suppression of any

evidence flowing it. Shabezz, supra at 289 (the “dispositive legal issue is

the causal relationship between the traffic stop and the discovery of the

evidence: whether the evidence found in the car was ‘fruit’ of the illegal

stop.”).      Thus, the position that Appellant, simply due to his status as a

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passenger in a vehicle, had no reasonable expectation of privacy in that

vehicle sufficient to contest the constitutionality of his seizure by the traffic

stop is contrary to Brendlin and Shabezz. Thus, Appellant had standing to

contest the validity of the traffic stop, and the suppression court’s decision

to the contrary was an error of law.

      For purposes of Appellant’s ability to contest the validity of the

vehicular search, a different standard applies. Being present in a vehicle is

not sufficient, in and of itself, to confer standing to contest the validity of a

vehicular search.    Rakas v. Illinois, 439 U.S. 128 (1978). Indeed, the

difference in our treatment between standing in the vehicular seizure

context and the vehicular search context is illustrated by Brown, supra.

Brown was driving a truck, which was owned by a man named Hershberger.

We    addressed     Brown’s   complaint      that   the   truck’s   seizure   was

unconstitutional.   We then turned to Brown’s averment that the truck’s

search was infirm and concluded that he lacked the ability to contest the

constitutionality of the search because he had not proven that he had the

owner’s permission to be driving it.   We held Brown’s failure to adduce proof

that he had the owner’s permission meant that Brown had not established a

legitimate expectation of privacy in the truck sufficient to litigate the

constitutionality of the search.

      Our holding in Brown is merely one in a long line of cases where this

Court has refused to entertain a challenge to a vehicular search if the

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defendant does not own the vehicle and has not established that he was in it

with the owner’s permission. In Commonwealth v. Maldonado, 14 A.3d

907 (Pa.Super. 2011), the defendant was driving a car, which was stopped

and searched.     While no challenge to the vehicular stop was raised,

Maldonado did maintain that the search was infirm.         The Commonwealth

proved that the vehicle was owned by Maldonado’s girlfriend, and Maldonado

did not present his girlfriend’s testimony to establish that he was driving it

on the day of the search with her permission. Since there was no proof that

Maldonado was driving his girlfriend’s car with her permission when the

search occurred, we refused to accord him a legitimate expectation of

privacy in the vehicle sufficient to allow him to contest the search.

      Similarly, in Commonwealth v. Burton, 973 A.2d 428 (Pa.Super.

2009) (en banc), Burton was driving a rental vehicle, and was stopped after

he committed a traffic infraction.    Burton did not have a driver’s license,

was driving the vehicle pursuant to an expired rental agreement, and was

not the rental contract’s named lessee, who was not in the vehicle.       We

concluded that Burton failed to demonstrate that he had a reasonably

cognizable expectation of privacy in the vehicle sufficient to contest its

search in light of the fact that he did not own it, had not rented it, and had

offered no evidence that he had any legitimate authority to drive it. See

also Commonwealth v. Millner, 888 A.2d 680 (Pa. 2005) (defendant did

not have legitimate expectation of privacy sufficient to contest search of

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vehicle where record established it was owned by a third person and

defendant never suggested that he had permission to use vehicle from

owner).

       On the other hand, if it is established that a vehicle is being driven

with the permission of the owner, a defendant’s status as driver or

passenger is irrelevant to the determination of whether he had a legitimate

expectation of privacy in the vehicle.           In Commonwealth v. Caban, 60

A.3d 120 (Pa.Super. 2012),1 we stated that there was no “distinction

between automobile drivers and passengers . . . in determining whether a

reasonable expectation of privacy exists in a particular case.”     Id. at 130.

Therein, we ruled that, where there is proof that the owner of a vehicle has

given permission to use the vehicle either to the driver or to the passenger,

then both the driver and the passenger enjoy a legitimate expectation in the

vehicle sufficient to allow them to contest the validity of a search.

       In this case, the SUV was rented to Appellant’s wife, she was legally

driving it pursuant to the terms of a rental agreement, and the rental
____________________________________________


1 We note that Caban reviewed both the trial and suppression transcripts in
assessing the suppression issue before it. In Commonwealth v. Coleman,
130 A.3d 38, 42 n.1 (Pa.Super. 2015), we observed that Caban incorrectly
analyzed the suppression issue by examining the trial evidence and that we
are permitted to review only the suppression transcript when ruling on a
suppression motion. See In re L.J., 79 A.3d 1073 (Pa. 2013) (prospectively
holding that an appellate court cannot consider trial evidence in determining
the correctness of a suppression court ruling and is confined to a review of
the suppression transcript).



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agreement had not expired. Thus, Appellant’s wife was using the SUV with

the permission of its owner, the rental company, and both Appellant and his

wife had a reasonable expectation of privacy in the SUV sufficient to have

standing to contest the validity of the search.

      In conclusion, Appellant had the standing to litigate whether the

vehicular stop was constitutional.    If the initial stop was invalid, then the

marijuana herein must be suppressed as it was found as a direct result of

the traffic stop.   If the vehicular stop was valid, Appellant still retains the

right to contest the legality of the search of the SUV. Due to the truncated

nature of the suppression hearing, which was the result of incorrect legal

determinations, we are unable to ascertain whether the traffic stop was legal

or whether the SUV’s ensuing search was constitutional.

      The Commonwealth maintains that the suppression order should be

affirmed because the record establishes that Appellant’s wife violated 75

Pa.C.S. § 3309(1), which states, “A vehicle shall be driven as nearly as

practicable entirely within a single lane and shall not be moved from the lane

until the driver has first ascertained that the movement can be made with

safety.” We reject this position. The court did not permit the record to be

sufficiently developed due to its misapprehension of the applicable law.

Officer Long did not indicate whether Appellant’s wife left her lane of travel

without cause. The statute in question clearly permits a driver to leave his

lane of travel when it is not practicable to stay in the lane. Officer Long’s

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testimony at the suppression hearing, which is the only transcript we are

permitted to consider in deciding this question, failed to establish that there

was no valid reason for her to leave her lane of travel.

      Additionally, Appellant was not permitted to litigate the issue of

whether Officer Long conducted a constitutional search of the SUV, which is

an entirely independent inquiry.

      In light of the foregoing, it is clear that Appellant is entitled to another

suppression hearing, and we need not decide the third issue raised on

appeal.

      Order vacated. Case remanded. Jurisdiction relinquished.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/13/2018




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