J-A09007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

CHARLES BUSSEY,

                         Appellee                    No. 1039 EDA 2013


                   Appeal from the Order March 11, 2013
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0002095-2012


BEFORE: BOWES, OTT, and JENKINS, JJ.

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 16, 2014

      The Commonwealth appeals from the order entered March 11, 2013,



      Pennsylvania State Trooper Tyron Bradford was on patrol in a marked

vehicle in Philadelphia on January 26, 2012.     At approximately 4:45 p.m.,

Trooper Bradford observed a car run a red light.      Accordingly, the trooper

effectuated a traffic stop. While radioing in the traffic stop, Trooper Bradford

noticed that the four occupants inside the vehicle were moving. Specifically,

he witnessed two individuals in the front seat make furtive movements

toward the glove compartment and the two backseat passengers repeatedly

turned and looked in his direction. Trooper Bradford remained in his vehicle

for approximately five minutes before approaching. The trooper walked to

the passenger side of the vehicle.           After a window was lowered,
J-A09007-14


Trooper Bradford detected the smell of marijuana.       Trooper Bradford then

returned to his car and called for backup. Once an additional officer arrived

at the scene, Trooper Bradford removed the occupants of the car one at a

time.    After removing each individual, Trooper Bradford conducted a brief

frisk and handcuffed each individual before placing them in the rear of his

patrol car.   One of the individuals admitted to having a small amount of

marijuana in his jacket.

        Trooper Bradford then returned to the stopped vehicle.   He lifted up

the rear seat of the car and located a .22 caliber handgun. As a result of

this dis

Appellee was the rear seat passenger. The gun was retrieved from the area

under his seat.

        Appellee filed a motion to suppress the weapon.      Accordingly, the

court conducted a suppression hearing.     Appellee did not testify, and the

only testimony introduced was that of Trooper Bradford. In support of his

suppression motion, Appellee argued that his movement in the car

amounted to nothing but mere nervousness, and that the trooper did not

have reasonable suspicion to conduct a search.          In addition, Appellee



him, placing him in handcuffs and then putting him in the rear of the

                                            l arrest.     The Commonwealth

rejoined that Trooper Bradford had reasonable suspicion to search the car


                                    -2-
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based on the furtive movements of the individuals, the smell of marijuana,



that the trooper did not arrest Appellee and that the individuals were going

to be allowed to return to the car. The Commonwealth did not allege that

Appellee did not have a reasonable expectation of privacy. The suppression

court concluded immediately following the hearing that the vehicle search

was illegal because no exigent circumstances existed.

     The Commonwealth sought reconsideration and, for the first time,

argued that Appellee failed to establish a reasonable expectation of privacy

in the area searched.   The court declined to reconsider the matter.    This

timely appeal ensued. The suppression court directed the Commonwealth to

file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of

on appeal. The Commonwealth complied, and the court authored its opinion.

Therein, it found that Appellee established a reasonable expectation of

privacy on the basis that he had automatic standing to challenge the search.

In addition, although initially finding that probable cause existed to search

the car, but that no exigent circumstances existed, the suppression court

ultimately opined that the trooper lacked both probable cause or exigent

circumstances to conduct the search. The court added that a Terry frisk of

the vehicle pursuant to Michigan v. Long, 463 U.S. 1032 (1983), and

Commonwealth v. Morris, 644 A.2d 721 (Pa. 1994), was unwarranted

because Trooper Bradford did not possess specific and articulable facts that


                                    -3-
J-A09007-14




safety.




handgun found pursuant to a Terry frisk of a lawfully stopped car in which

defendant     failed   to   prove    any       reasonab



       We evaluate the denial of a suppression motion under well-established

principles.   We consider the evidence of the defendant, as the prevailing

party below, and any evidence of the prosecution that is uncontradicted

when examined in the context of the record. Commonwealth v. Peterson,

17 A.3d 935, 937 (Pa.Super. 2012).1               This Court is bound by the factual

findings of the suppression court where the record supports those findings

and may only reverse when the legal conclusions drawn from those facts are

in error. Id. Importantly, we are not bound by the legal conclusions of the

suppression court. In re T.B., 11 A.3d 500, 505 (Pa.Super. 2010).

       The Commonwealth argues that because Appellee, a back-seat

passenger, did not demonstrate a reasonable expectation of privacy in the
____________________________________________


1
   Recently, in In re L.J., 79 A.3d 1073 (Pa. 2013), our Supreme Court
applied prospectively a new rule regarding the scope of review in

of review in suppression matters includes the suppression hearing record,
but not evidence elicited at trial. As this case commenced prior to L.J. and
no trial occurred, it has no bearing on the instant case.



                                           -4-
J-A09007-14


vehicle, the suppression court erred.2            It continues that the suppression

court conflated the doctrine of standing with App

that he had a reasonable expectation of privacy.                  The Commonwealth

correctly argues that the two concepts are distinct, and we agree that the

suppression court clearly failed to appreciate the difference between

automatic standing and a reasonable expectation of privacy.

       The suppression court utilized the automatic standing factors to decide

whether Appellee had an expectation of privacy. That test provides that a

defendant has automatic standing if he is present on the premises at the

time of the search and seizure, has a possessory interest in the item seized,

is charged with a possessory offense relative to the seized contraband, or

has    a   proprietary     or   possessory       interest   in   the   searched   area.

Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998). According to

____________________________________________


2
    We are cognizant that the Commonwealth failed to articulate this position

an expectation of privacy after the suppression court granted his motion.
Ordinarily, issues that are not raised at the first opportunity are waived.
Nonetheless, in Commonwealth v. Santiago, 822 A.2d 716 (Pa.Super.

the case doctrine in resp
suppression hearing did not waive the issue where it presented the
argument in a motion to reconsider.       Further, in Commonwealth v.
Hawkins, 718 A.2d 265, 268 n.3 (Pa. 1998), our Supreme Court stated,
     e, however, our cases place the burden squarely upon the defendant
seeking suppression to establish a legitimate expectation of privacy as an

Commonwealth did not waive this position in neglecting to raise the issue at
the suppression hearing.



                                           -5-
J-A09007-14


the suppression court, Appellee met three of the four standing factors and

therefore had an expectation of privacy in the area searched.      This was

error. Pennsylvania constitutional jurisprudence requires a separate analysis

of standing and an expectation of privacy. See Hawkins, supra. In this



expectation of privacy is a component of the merits analysis of the

                      Commonwealth v. Millner, 888 A.2d 680, 691 (Pa.

2005).

     Admittedly, the interplay between standing and the test for a

reasonable expectation of privacy, along with what party bears the ultimate

burden of proof at a suppression hearing, has caused confusion.     Millner,

supra at 690; see also Commonwealth v. Enimpah, 62 A.3d 1028

(Pa.Super. 2013), allowance of appeal granted,     78 A.3d 613 (Pa. 2013).



fact that our criminal procedural rules place the burden of proof, which the

Pennsylvania High Court has defined as including a burden of production and

a burden of persuasion, on the Commonwealth.           Pa.R.Crim.P. 581(H).



he demonstrates that the challenged police conduct violated his own,

                            Millner, supra at 692.

     The Pennsylvania Supreme Court and this Court, in turn, have thus

expressed that a defendant bears a threshold evidentiary burden of


                                    -6-
J-A09007-14


demonstrating a reasonable expectation of privacy. Millner, supra at 691

 Appellant's automatic standing does not divest him of the evidentiary

responsibility to show that . . . . the police conduct at issue violated a

reasonable and legitimate expectat                        Hawkins, supra at 267;

Commonwealth       v.    Carlton,    701    A.2d       143,    145-146 (Pa.   1997);

Commonwealth       v.     Gordon,     683        A.2d     253,     256 (Pa.   1996);

Commonwealth       v.    Peterson,    636        A.2d    615,    618   (Pa.   1993);

Commonwealth       v.     Brown,     64     A.3d        1101     (Pa.Super.   2013);

Commonwealth        v.    Caban,     60         A.3d    120      (Pa.Super.   2012);

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

Commonwealth       v.    Powell,     994        A.2d    1096     (Pa.Super.   2010);

Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc);

Commonwealth v. Boulware, 876 A.2d 440, 442-443 (Pa.Super. 2005);

Commonwealth v. Black,          758 A.2d 1253, 1256 (Pa.Super. 2000);

Commonwealth v. Strickland, 707 A.2d 531, 534 (Pa.Super. 1998).

     Additional confusion surrounding the distinct concepts of automatic

standing and whether a defendant possesses a reasonable expectation of

privacy is the differing constitutional jurisprudence relative to the Fourth



Under federal law, there is no automatic standing. See Rakas v. Illinois,

439 U.S. 128 (1978); United States v. Salvucci, 448 U.S. 83 (1980).

Rather, pursuant to federal constitutional jurisprudence, the preliminary


                                      -7-
J-A09007-14


inquiry is whether the defendant has a reasonable expectation of privacy in

the area searched or the item seized. In Commonwealth v. Sell, 470 A.2d

457 (Pa. 1983), the Pennsylvania Supreme Court declined to jettison the

automatic standing rule in Pennsylvania.

      In Sell, police executed a search warrant at an amusement arcade,

seeking stolen firearms.    Police found guns located on open shelves on a

counter in the arcade where all employees had access. Sell was a partner in

the business, but was not present when police conducted their search. He

sought to suppress the firearms, alleging that the search warrant was

defective.    The suppression court determined that Sell had automatic

standing, and found the warrant defective.     This Court reversed, relying

principally on Salvucci, supra, and Rakas, supra, holding that automatic

standing was no longer a viable concept.      On appeal, the Pennsylvania

Supreme Court disagreed.

      The    High Court    began by tracing   the   development   of Fourth

Amendment standing jurisprudence, concluding that the automatic standing

                                                 the context of capacity to

                                                        Sell, supra at 462.

The Pennsylvania Supreme Court continued by discussing the legitimate

expectation of privacy test first suggest by Justice Harlan in Katz v. United

States, 389 U.S. 347 (1967), and subsequently adopted by a majority of




                                    -8-
J-A09007-14


the United States Supreme Court. See Smith v. Maryland, 442 US. 735

(1979).

      It then engaged in a discussion and criticism of Rakas, supra. The

Rakas decision had eliminated a part of the automatic standing rule for

Fourth Amendment purposes. Therein, the defendants were passengers in a

vehicle owned by the driver.     Police conducted a traffic stop after being

notified of a robbery and receiving a description of the getaway car.      The

defendants, as well as the driver, and two female companions were directed

to exit the vehicle. Two police officers then searched the interior of the car.

They found a box of rifle shells in a locked glove compartment and a sawed-

off rifle underneath the front passenger seat.        The defendants filed a

suppression motion. The prosecution asserted that the defendants did not

have standing because they did not own the vehicle, or assert an ownership

interest in the rifle or shells. The suppression court agreed.

      The majority in Rakas concluded that automatic standing based on a

party being legally on the premises, i.e., in the car, at the time of the

search, was no longer a valid paradigm. Instead, it held that a defendant

must establish a legitimate expectation of privacy.     It then ruled that the

defendant passengers did not have a legitimate expectation of privacy in the

glove box or under the seat.     Justice White in dissent recognized that the

decision in Rakas effectively prohibited a passenger without a possessory or

ownership interest in a car from contesting a vehicle search under the Fourth


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J-A09007-14


Amendment.        In his view, while the interior of cars are accorded less



                               Rakas, supra at 157 (White, J., dissenting).

According to Justice White, the cornerstone of Fourth Amendment analysis



                                                                      area was

one in which there was a reasonable expectation of freedom from

                             Id. at 162 (quoting Mancusi v. DeForte, 393

U.S. 364 (1968)).

       The Sell                                                   Rakas, joined

by three other Justices,

                                                                Sell, supra at

465.   Ultimately, the Sell Court opined,

             We decline to undermine the clear language of Article I,
       section 8 by making the Fourth Amendment's amorphous

       guarantee against unreasonable searches and seizures. We do so
       not only because we find the United States Supreme Court's
                                                                       old
                              see Rakas, supra 439 U.S. at 139 n. 7,
       99 S.Ct. at 428 n. 7, unhelpful to our interpretation of Article I,
       section 8's protection, but also because we believe the United

       expe
       critical element of unreasonable governmental intrusion.

             Article I, section 8 of the Pennsylvania Constitution, as
       consistently interpreted by this Court, mandates greater
       recognition of the need for protection from illegal governmental
       conduct offensive to the right of privacy.


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J-A09007-14


Id

as private, even if they are accessible to others, they are constitutionally

protected.    Stated differently, a person must maintain the privacy of his

possessions

                                                Id. at 468-469 (quoting

Commonwealth v. White, 327 A.2d 40, 42 (Pa. 1974)) (italic in original).

      Despite         criticism of the United States Supreme Court decisions

that eliminated the federal automatic standing rule, the Pennsylvania

Supreme Court has since adopted a form of the federal reasonable

expectation of privacy test.    Millner, supra at 691; Hawkins, supra;

Peterson, 636 A.2d 615; see also Commonwealth v. Rekasie, 778 A.2d

624, 629 (Pa. 2001). Further, this Court has stated that our Supreme Court,



respect

in a searched vehicle with federal jurisprudence such [as] Rakas, supra,

Salvucci, supra; and Rawlings [v. Kentucky

Powell, supra at 1107.

                            gitimate expectation of privacy is present when

there is both a subjective privacy expectation coupled with objective

                   Hawkins, supra at 267 n.1. The method of proving this




                                   - 11 -
J-A09007-14


evidence can establish that a defendant has a reasonable expectation of

privacy. See Burton, supra.

       Our Supreme Court has concluded that a defendant, standing outside



establish an expectation of privacy in that automobile. Millner, supra. In

yet another case, this Court has determined that a driver of a car registered

to his girlfriend did not prove a reasonable expectation of privacy in his

                                               nor his girlfriend testified that he had

permission to use the car. Maldonado, supra.

       Similarly, we have held that a driver of a rental car did not

demonstrate an expectation of privacy in that vehicle where he was not the

lessee, the named lessee was not in the automobile, and no evidence

                                                            n to the lessee. Burton,

supra. In an additional case, we held that a driver of a truck did not meet

his burden where he did not own the truck or introduce evidence showing

that the owner granted him authority to utilize the vehicle. Brown, supra.3

In Commonwealth v. Cruz, 21 A.3d 1247 (Pa.Super. 2011), this Court

concluded that a defendant could not succeed on a suppression motion

____________________________________________


3
  Judge Strassburger, the author of Commonwealth v. Brown, 64 A.3d
1101 (Pa.Super. 2013), speaking solely for himself, asserted that a driver in
a vehicle should be presumed to have an expectation of privacy in the
vehicle.  He did not extend his position to non-possessory interested
passengers, though that question was not before the Court.



                                          - 12 -
J-A09007-14


where he did not present any 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. Id. at 1251.

      In Commonwealth v. Viall, 890 A.2d 419 (Pa.Super. 2005), we held

that a passenger did not have an expectation of privacy in a common area of

the backseat. Therein, police pulled over a vehicle for a burned-out taillight.

Inside the vehicle were the driver, his wife, and three additional passengers

in the back seat. The driver had an expired license and only one passenger

                                                                       consent

to search the vehicle from the driver.        The driver consented, and police

found cocaine in a common area in the backseat.



subjective expectation of privacy in locations of common access to all

              Id

[a]ppellant to have expected to maintain a privacy interest in objects which

were placed inside the car and not shielded from the view of the many

others occupying t                            Id.

      We have also held that a passenger did not have a reasonable



husband.   Powell, supra.      In Powell, we considered a Commonwealth

appeal where the suppression court had suppressed drugs found in the trunk

of a car with a New York license plate in which the two appellees were riding.


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J-A09007-14


State police had stopped the car due to large objects hanging from the

rearview mirror. The Powell Court affirmed the suppression order as to the

driver of the car, whose wife was the registered owner of the vehicle, finding

that he did not give consent to search the trunk. However, with respect to

the passenger in the vehicle, it reversed, finding that the passenger did not

establish a reasonable expectation of privacy in the trunk. In doing so, the

court in Powell relied on Millner, supra, and Rakas, supra.

       In contrast, this Court has determined that a passenger in a vehicle,

which the passenger borrowed from his father, did have a reasonable



distinction between automobile drivers and passengers plays any important

role in determining whether a reasonable expectation of privacy exists in a

                    Caban, supra at 130.4

       In Commonwealth v. Newman, 84 A.3d 1072 (Pa.Super. 2014), we



a reasonable expectation of privacy where he was the driver and sole

occupant of the vehicle, and no evidence indicated that he did not have an

expectation of privacy in the car.             The Newman Court distinguished
____________________________________________


4
  The panel in Commonwealth v. Caban, 60 A.3d 120 (Pa.Super. 2012),
determined that the defendant established an expectation of privacy based
on evidence introduced at trial. Such an analysis would no longer be
permitted in cases arising after In re L.J., 79 A.3d 1073 (Pa. 2013), which
                                                                   d at the
suppression hearing unless the evidence was unavailable at that time.



                                          - 14 -
J-A09007-14


Burton, supra and Cruz, supra

e          cast serious doubt that the defendants in those cases had a

legi                                                                     Id.

at 1078.

       Appellee maintains that under Article I, § 8, he had a reasonable

expectation of privacy in the gun placed beneath his seat and away from the

view of others.   He highlights that in certain areas Article I, § 8 provides

broader protections than does the Fourth Amendment because of this



                                                                   sions are



does have an expectation of privacy in the portion of the car under his seat



distinguishes this case from Viall, supra, and Powell, supra.

       With respect to Viall, Appellee posits that the Court held that the

passenger did not have a privacy interest in the entire passenger

compartment of the car or where the object was not shielded from the view

of the other occupants.    Instantly, he submits that he is not seeking a

privacy interest in the entire car and that he did shield the object from the

view of others.   He adds that the area under his seat is distinct from the

trunk, which was at issue in Powell. Accordingly, he contends that he had a

subjective expectation of privacy.


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J-A09007-14


      In addition, Appellee argues that his expectation of privacy is



equate an intrusion into his personal space, including the seat that he is

sitting upon, as a search and invasion of

He further suggests that failing to recognize an expectation of privacy in this

matter results in major inconsistencies in the law. First, he argues that an

illogical distinction between illegal stops and illegal searches is created. In

this respect, he asserts that if a car is illegally stopped and seized, then

items recovered from the vehicle may be suppressed.         See Brendlin v.

California, 551 U.S. 249 (2007). However, if the car is illegally searched, a

non-possessory interested passenger, under Fourth Amendment law, has no

expectation of privacy and cannot succeed on a suppression motion.



law between motions to suppress raised by passen



interest in a car will not be able to succeed on a suppression motion while a

driver will. See also Powell, supra. Thus, a passenger can be successfully

prosecuted but a driver can escape prosecution based on the driver

possessing an expectation of privacy in the vehicle. In his view, this would

allow police to illegally search vehicles with more than one occupant knowing

that not all of the occupants have an expectation of privacy.




                                    - 16 -
J-A09007-14


                                                           -owner passengers

who are illegally stopped may succeed on a suppression motion where items

are recovered from a vehicle.   See Brendlin, supra; Commonwealth v.

Houston, 689 A.2d 935 (Pa.Super. 1997).         In contrast, a blanket holding



expectation of privacy in a car by a non-possessory interested occupant

would preclude suppression where a car is lawfully stopped, but searched

without either reasonable suspicion or probable cause. See Rakas, supra.

      However, we do not read Pennsylvania case law as absolutely

prohibiting a finding of an expectation of privacy by a non-possessory

interested passenger.    Millner, supra at 694 (Cappy, C.J., concurring,



way, be interpreted to represent support for the broad proposition that

passengers in a vehicle or those with something other than ownership

interests in a vehicle cannot establish a legitimate expectation of privacy in

                         cf. Houston, supra;        but see Powell, supra.

Pointedly, the issue in this case is more narrow. That is, did Appellee or the

Commonwealth actually provide evidence that, based on the totality of the

circumstances, supports the legal conclusion that Appellee possessed a

reasonable expectation of privacy in the car?

      Since Appellee presented no evidence nor argued that he had an

expectation of privacy at the suppression hearing, we must look to the


                                    - 17 -
J-A09007-14




evidence    demonstrate       that   Appellee      had   both   a   subjective   privacy

expectation in the area underneath the seat he was occupying where others

were seated in the backseat and that his expectation was objectively

reasonable?

       Appellee has not established a possessory interest in the vehicle nor

did he claim to be the owner of the weapon, i.e., the effect in question.5

Further, no evidence was introduced to show that the driver owned the car

or had permission to use that vehicle, which could have inferentially



decisions, legitimate presence in a car is insufficient to establish a subjective

expectation of privacy in places where others could have access to the item

at the same time.        See Viall, supra; but compare, Sell, supra at 468



are accessible to others, th

that the gun was hidden does not on its face warrant the conclusion that an

objective expectation of privacy existed.                Millner, supra at 692 (

defendant's attempt to secrete evidence of a crime is not synonymous with a

____________________________________________


5
  If Appellee testified to owning the gun, his statement could not be used
against him at trial for substantive purposes. See United States v.
Salvucci, 448 U.S. 83 (1980). This calls into question portions of this
                      Commonwealth v. Enimpah, 62 A.3d 1028 (Pa.Super.
2013), allowance of appeal granted, 78 A.3d 613 (Pa. 2013).



                                          - 18 -
J-A09007-14


legally cognizable expectation of privacy. A mere hope for secrecy is not a



expectation of privacy underneath the seat he occupied or in his effects

placed in th

that he had both a subjective expectation of privacy and that his expectation

was objectively reasonable.   This, however, does not end our inquiry.      A

suppression court may be affirmed on any basis as long as there is support

in the record. In re T.P., 78 A.3d 1166, 1170 (Pa.Super. 2013).

      Appellee has alternatively argued, and asserted below, that he was

subjected to an illegal custodial arrest prior to the search of the car. Since

his arrest was illegal, he maintains that the gun found as a result of the

search of the car must be suppressed as fruit of the tainted arrest. Appellee

contends that, based on Commonwealth v. Lovette, 450 A.2d 975 (Pa.

1982), a custodial arrest occurs where police i

the person into custody and subjects him to the actual control and will of the

                                                  -8 (quoting Lovette, supra

at 978). Viewing the totality of the circumstances, Appellee recites that he

was ordered out of the car, frisked, handcuffed, and then placed in the back



the act of handcuffing him and placing him into the police car resulted in a

custodial detention because no reasonable person would not believe he was




                                    - 19 -
J-A09007-14




at 8-9 (citing Wong Sun v. U.S., 371 U.S. 471 (1963)).

       In determining whether a custodial arrest has occurred, our standard

is an objective one, with consideration given to the reasonable impression

conveyed to the person being detained rather than the subjective view of

the police or the detainee. Commonwealth v. Edmiston, 634 A.2d 1078,

1085-

totality of the circumstances, the conditions and/or duration of the detention

become so coercive as to become the functional equivalen

Commonwealth v. Turner, 772 A.2d 970, 974 (Pa.Super. 2001) (en banc).



indicates an intention to take the person into custody and that subjects the

person to the wil

Commonwealth v. Butler, 729 A.2d 1134 (Pa.Super. 1999) (quoting

Commonwealth v. Rodriguez, 614 A.2d 1378, 1384 (Pa. 1992)); see

also Lovette, supra at 978; Commonwealth v. Douglass, 539 A.2d 412

(Pa.Super. 1988).6 Of course, police need not use actual force or provide a

____________________________________________


6
   Pennsylvania courts have also utilized a similar but not identical standard
for
act that indicates an intention to take that person into custody or subjects
him to the actual control and will of the person making the arrest.
Commonwealth v. Turner, 772 A.2d 970, 974 (Pa.Super. 2001) (en banc)
(emphasis added) (quoting Commonwealth v. Gwynn, 723 A.2d 143, 148
(Pa. 1998) (OAJC)); Commonwealth v. Guillespie, 745 A.2d 654, 660
(Footnote Continued Next Page)


                                          - 20 -
J-A09007-14


formal statement of arrest for the detention to be considered an arrest.

Douglass, supra at 419 (citing Commonwealth v. Daniels, 317 A.3d 237

(Pa. 1974)).7

      Pennsylvania courts have consistently noted that the act of placing a

person in handcuffs is not per se sufficient to constitute an arrest.     See

Butler, supra at 1138 n.6; Commonwealth v. Carter, 643 A.2d 61, 67

n.2 (Pa. 1994). Concomitantly, the placing of an individual into the backseat

of a police car does not automatically result in an arrest having taken place.

Commonwealth v. Revere, 888 A.2d 694 (Pa. 2005).             In Revere, our

Supreme Court concluded that placing a defendant and his companion into

the backseat of an unmarked police cruiser without handcuffing them or

frisking them, and transporting them briefly, did not constitute a custodial

detention.   In contrast, in Commonwealth v. Sepulveda, 855 A.2d 783

(Pa. 2004) (OAJC), a majority of judges agreed that handcuffing the

defendant, placing him in the back of a patrol car, and locking the door



                       _______________________
(Footnote Continued)

(Pa.Super. 2000). This Court has previously noted the distinction between
the two definitions. Commonwealth v. Hannon, 837 A.2d 551 (Pa.Super.
2003). As Turner relies on Gwynn and Gwynn cited to Commonwealth
v. Lovette, 450 A.2d 975 (Pa. 1982), we have utilized the Lovette
standard, which uses the conjunctive test.
7
   We are aware that the decision in Commonwealth v. Douglass, 539
A.2d 412 (Pa.Super. 1988), was decided by a three judge panel with two
judges concurring in result. Therefore, it is not precedential standing alone.



                                           - 21 -
J-A09007-14


constituted a custodial detention.8            The Sepulveda Court dismissed its

earlier non-precedential decision of Commonwealth v. Gwynn, 723 A.2d

143 (Pa. 1999) (OAJC), as not controlling on this issue.

       The Gwynn plurality ruled that a defendant who was initially placed

without handcuffs into the rear of a police vehicle, and only handcuffed after

being observed attempting to escape, was not arrested.           The Sepulveda

Court set forth that Gwynn was both factually distinguishable and to the




any purpose, this Court has clearly taken a contrary position in this opinion

          Sepulveda, supra at 791 n.12.

       In our en banc Turner decision, this Court determined that the placing

of an intoxicated individual, without handcuffs, into the backseat of a police

car and closing

Turner, supra at 974.           However, in Guillespie, supra, we ruled that

putting an individual in handcuffs after conducting a pat-down frisk was not

an arrest, where police told the defendant that he was being handcuffed

because he matched the description of a robbery suspect and they were

waiting for the victim to arrive. The victim did not identify the defendant,

____________________________________________


8
   In Sepulveda, four justices authored concurring opinions, with one justice
dissenting. However, three of the concurring justices agreed with the lead
author that the defendant was in custody.



                                          - 22 -
J-A09007-14


and the Guillespie Court expressly noted that the record did not establish

that the defendant was placed in a police car.    Id. at 661.   This Court in

Butler, supra, found an arrest occurred where police ordered the defendant

to put his hands up and exit a storm door of a residence, frisked him, and

then handcuffed him and put him into the back seat of an unmarked police

car.

       Instantly, based on the totality of circumstances, we agree that an

objectively reasonable person would believe that he was arrested where

police took the individual and three of his companions out of the car, frisked

each of them, and then handcuffed each person, before putting them into

the backseat of a police car. See Sepulveda, supra; Butler, supra. Since

Appellee was in custodial detention, police were required to demonstrate

probable cause.    Probable cause exists where the facts and circumstances

within the knowledge of the officer are based upon reasonably trustworthy

information and are sufficient to warrant a man of reasonable caution in the



Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa.Super. 2013). Here,




       The dissent opines that it is immaterial whether Appellant was

unlawfully arrested because he did not establish an expectation of privacy in


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the vehicle. It reads Millner, supra, as holding that an unlawful arrest will

not    warrant   suppression   where    a   defendant    does   not   establish   an

expectation of privacy in the area searched.       We disagree that Millner is

controlling on the precise question here, as the facts are wholly dissimilar.



authorize police to illegally arrest multiple persons and search a vehicle

following a traffic stop because at least one individual would be unable to

show an expectation of privacy in the vehicle.

       Unlike Millner, the search of the car herein flowed from the unlawful

arrest and was incident to that illegal detention. In Millner, the defendant

was not a passenger in the vehicle nor ever observed traveling inside the

car. The case did not involve a traffic stop.      Rather, police witnessed the

defendant therein, a pedestrian, dispose of a weapon inside the car. Police

then observed the firearm in the car in plain view. Whether the defendant

was illegally arrested was immaterial to the observation of the gun inside the

car.    We find this case more analogous to the situation where police

unlawfully stop a vehicle and search the car. In that situation, the fact that

a person does not have an expectation of privacy in the car does not

automatically preclude suppression.         See Brendlin, supra.       In both the

unlawful stop of a car and the lawful stop but illegal arrest scenario, police

have illegally seized the passengers in the car.        The subsequent search is




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directly related to the illegal seizure in both instances. Accordingly, we find

that the suppression court did not err in suppressing the evidence.

      Order affirmed.

      Judge Ott joins the Memorandum.

      Judge Jenkins files a Dissenting Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2014




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