J-S45027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TAREN LAMAR WEEDON                         :   No. 1836 MDA 2017

                Appeal from the Order Entered October 30, 2017
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000330-2017


BEFORE:      PANELLA, J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 21, 2018

        The Commonwealth appeals from the order entered October 30, 2017,

in the Dauphin County Court of Common Pleas granting a pretrial motion to

suppress evidence filed by Taren Lamar Weedon.1                On appeal, the

Commonwealth argues the trial court erred in granting Weedon’s suppression

motion when (1) Weedon did not possess a reasonable expectation of privacy

in the vehicle searched, and/or (2) the police possessed probable cause to

search the vehicle. For the reasons below, we affirm.

        The facts underlying Weedon’s arrest, as developed during the

suppression hearing, are as follows. On November 28, 2016, at approximately
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1Pursuant to Pa.R.Crim.P. 311(d), the Commonwealth properly certified in its
notice of appeal that “the order in question will terminate or substantially
handicap the prosecution in the above-captioned matter.” Notice of Appeal,
11/29/2017.
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8:35 p.m., Pennbrook Police Officer Brant Maley was on routine patrol in a

marked vehicle when he observed a blue Buick sedan with “dark window

tinting on the side and rear windows.” N.T., 8/1/2017, at 11. Officer Maley

positioned his patrol vehicle behind the Buick, and as the Buick started to pull

over to park, Officer Maley activated his emergency lights. When the officer

approached the vehicle, he encountered Weedon in the driver’s seat with “his

hands up, kind of like in a surrender position in front of … [] the steering

wheel[.]” Id. at 12. Officer Maley informed Weedon he stopped the car for

the window tint, and requested Weedon provide his driver’s license. Weedon

readily admitted his driver’s license was suspended, and he was on state

parole for “drugs.” Id. at 14. He provided the name of his parole agent, as

well as the registration and insurance card for the vehicle, which was

registered to Bobbi Jo Brannon.      While speaking to Weedon, the officer

observed “multiple air fresheners in the vehicle and that [] Weedon had two

cell phones on his lap.” Id. at 15-16. Officer Maley explained that, in his

experience, the presence of masking agents (such as air fresheners), multiple

cell phones and tinted windows were indicative of a defendant engaged in drug

sales. See id. at 22-24.

      Officer Maley contacted Weedon’s parole agent, who asked him to call

another agent because she was at home. The officer then called Agent George

Mann who stated he was nearby, and would stop by to talk to Weedon. Neither

agent instructed the officer to detain Weedon. See id. at 33.




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        Officer Maley was finishing Weedon’s paperwork when Agent Mann

arrived. The officer stated he told Agent Mann “the only thing I really observed

that was odd, just to me, is there were two cell phones on his lap when I was

up talking to him.” Id. at 34. There is no indication in the record that Officer

Maley told Agent Mann about the multiple air fresheners in the car. Officer

Maley then returned to the Buick, and advised Weedon he was receiving a

citation for driving under suspension.2 After explaining to him how to respond

to the citation, Officer Maley told Weedon “he was free to go.” Id. at 36. In

the meantime, Brannon, the owner of the Buick arrived. Officer Maley recalled

that at some point, Brannon told him she gave Weedon “permission to use the

car.” Id.

        After Officer Maley issued the citation and told Weedon he was free to

leave, Agent Mann engaged Weedon in conversation. See id. at 37. Agent

Mann testified he did not know Weedon before that night, and the only

information he had was (1) Weedon was stopped for having tinted windows,

(2) his license was suspended, and (3) he had two cell phones in his

possession. See id. at 69-73. He described their encounter as follows:

        I identified myself: tell him George Mann, State Parole. [His
        agent] contacted me. I am talking to him. He is gathering himself
        and his stuff.

              I opened the door and say, “Hey, can you get out of the
        vehicle? Put your hands up on the roof.” I asked him if he had
        anything on his person what would hurt me or himself. He said
        no. I go through, pull things out of his pockets.
____________________________________________


2   See 75 Pa.C.S. § 1543.

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Id. at 76. Agent Mann recovered $2,100 in cash from Weedon’s jacket pocket.

Weedon told him the money was for a car he purchased from a business on

Paxton Street. He explained the “guy bought the car in auto auction for him

[and h]e was going to pay for it.” Id. Agent Mann was suspicious of Weedon’s

story, especially after Weedon admitted his janitorial job paid little more than

minimum wage. The agent continued to check Weedon’s pockets and found

some “loose cash in his jeans pocket.” Id. at 77. Agent Mann described what

happened next:

      I started looking in the car. I asked if he had anything in the car.
      He said no. I opened up the center console of the car between
      the front driver and passenger seat. There was a digital scale in
      there and some loose cash. At that time, took that out, set that
      on the roof of the car. I asked Officer Maley if he could come over
      and help me search the rest of the car.

            Went into the back seat – Officer Maley was on the
      passenger side, I was on the driver’s side – and found what looked
      like a backpack type bag, duffel bag, sitting behind the
      passenger’s seat. Officer Maley opened it up, and there was a gun
      inside.

Id. at 77-78 (emphasis supplied).      Under cross-examination, Agent Mann

admitted he had no “reasonable suspicion” to believe Weedon had contraband

on his person before he searched his pockets.           Id. at 87.        He also

acknowledged he did not seek either Weedon’s or Brannon’s consent before

searching the car.    See id. at 88-89.     Indeed, Brannon testified at the

suppression hearing that: (1) she gave Weedon permission to drive her car,

(2) she did not know his license was suspended, and (3) she did not give

either the police officer or parole agent permission to search her car.


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       Weedon was subsequently charged with persons not to possess

firearms, carrying a firearm without a license, receiving stolen property,

possession of drug paraphernalia, driving under suspension, and unlawful

activities (tinted windows).3 On May 23, 2017, Weedon filed a pretrial motion

to suppress the evidence recovered during the car stop.          The trial court

conducted a suppression hearing on August 1, 2017. At the conclusion of the

hearing, the trial court directed both parties to submit their arguments in

writing. Thereafter, on October 30, 2017, the trial court entered an order

granting Weedon’s motion to suppress. This timely Commonwealth appeal

followed.

       Our standard of review of an order granting a defendant’s motion to

suppress evidence is well-settled:

             When the Commonwealth appeals from a suppression
          order, we follow a clearly defined standard of review and
          consider only the evidence from the defendant’s witnesses
          together with the evidence of the prosecution that, when
          read in the context of the entire record, remains
          uncontradicted. The suppression court’s findings of fact
          bind an appellate court if the record supports those findings.
          The suppression court’s conclusions of law, however, are not
          binding on an appellate court, whose duty is to determine if
          the suppression court properly applied the law to the facts.
          Commonwealth v. Miller, 2012 PA Super 251, 56 A.3d
          1276, 1278–79 (Pa. Super. 2012) (citations omitted). “Our
          standard of review is restricted to establishing whether the
          record supports the suppression court’s factual findings;
          however, we maintain de novo review over the suppression
____________________________________________


3See 18 Pa.C.S. §§ 6105, 6106, and 3925, 35 P.S. § 780-113(a)(32), and 75
Pa.C.S. §§ 1643 and 4107(b)(2), respectively.


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         court’s legal conclusions.” Commonwealth v. Brown, 606
         Pa. 198, 996 A.2d 473, 476 (2010) (citation omitted).

      Commonwealth v. Korn, 139 A.3d 249, 252–253 (Pa. Super.
      2016), appeal denied, 639 Pa. 157, 159 A.3d 933 (2016). “It is
      within the suppression court’s sole province as factfinder to pass
      on the credibility of witnesses and the weight to be given to their
      testimony. The suppression court is free to believe all, some or
      none of the evidence presented at the suppression hearing.”
      Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super.
      2003) (citations omitted), appeal denied, 577 Pa. 701, 847 A.2d
      58 (2004). Nevertheless, the suppression court’s conclusions of
      law are not binding on an appellate court, and are subject to
      plenary review. Commonwealth v. Johnson, 969 A.2d 565, 567
      (Pa. Super. 2009) (citations omitted).

Commonwealth v. Byrd, 185 A.3d 1015, 1019 (Pa. Super. 2018). When a

defendant files a motion to suppress evidence, “it is the Commonwealth’s

burden to present evidence that the defendant’s constitutional rights were not

infringed.”   Commonwealth v. Enimpah, 106 A.3d 695, 701 (Pa. 2014).

See also Pa.R.Crim.P. 581, Comment (noting the burden of production and

persuasion is on the Commonwealth).

      The Commonwealth first contends the trial court erred in rejecting its

argument that Weedon “lacked a reasonable expectation of privacy in

Brannon’s vehicle.” Commonwealth’s Brief at 9. Relying on Commonwealth

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

Weedon’s purported expectation of privacy was unreasonable because he was

“not authorized to drive the vehicle,” despite the fact Brannon gave him

permission to drive her car. Id. It maintains that, “[u]nder the Motor Vehicle

Code, vehicle owners are specifically prohibited from authorizing an unlicensed

driver to drive the owner’s vehicle.” Id. at 9-10, citing 75 Pa.C.S. § 1547(a).


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Consequently, the Commonwealth argues: “Because Weedon’s license was

suspended, any ‘authorization’ or ‘permission’ that Brannon gave Weedon was

invalid as a matter of law because she was specifically prohibited from doing

so by statute.” Id. at 10.

      When a defendant files a suppression motion, he has “the preliminary

burden of establishing standing and a legitimate expectation of privacy.”

Commonwealth v. Burton, 978 A.2d 428, 435 (Pa. Super. 2009) (en banc),

(quotation omitted).

      [G]enerally under Pennsylvania law, a defendant charged with a
      possessory offense has automatic standing to challenge a search.
      “However, in order to prevail, the defendant, as a preliminary
      matter, must show that he had a privacy interest in the area
      searched.”

      An expectation of privacy is present when the individual, by his
      conduct, exhibits an actual (subjective) expectation of privacy and
      that the subjective expectation is one that society is prepared to
      recognize as reasonable. The constitutional legitimacy of an
      expectation of privacy is not dependent on the subjective intent
      of the individual asserting the right but on whether the
      expectation is reasonable in light of all the surrounding
      circumstances.

Id. (citation omitted).

      Weedon contends, and the trial court agrees, the facts in Maldonado

are distinguishable from those herein, and that Weedon had a reasonable

expectation of privacy in the Buick despite his lack of a valid driver’s license.

We agree.

      In Maldonado, supra, a police officer stopped the vehicle the

defendant was driving because it had an expired registration sticker. After


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speaking with the defendant, the officer learned (1) the defendant did not

have a valid driver’s license or proof of insurance, (2) the car was registered

to a woman named Jacqueline Vasquez, and (3) the defendant had several

outstanding scofflaw warrants.    Therefore, he placed the defendant in his

patrol car while he decided whether or not to arrest him. See Maldonado,

supra, 14 A.3d at 909.

      Because the defendant did not have a valid license and the car had an

expired registration, the officer decided to impound the car. While waiting for

a tow truck to arrive, he conducted an inventory search of the vehicle’s

content. Upon searching the trunk, the officer discovered, inter alia, a black

satchel.   In an exterior open pocket, the officer observed plastic bags

containing a white powder and a spoon with white powder residue. When he

removed the satchel from the trunk, it seemed unusually heavy. The officer

then looked inside the bag, and observed a digital scale, numerous baggies,

a box of ammunition, and a firearm. He subsequently placed the defendant

under arrest for drug and gun crimes. See id.

      The defendant filed a pretrial motion to suppress, which the trial court

granted.   The Commonwealth appealed, arguing the defendant “failed to

establish he had a reasonable expectation of privacy in the vehicle.” Id. at

910. A panel of this Court agreed. With regard to the defendant’s purported

expectation of privacy, the panel opined:

      [T]he deficit of evidence drives our determination in the present
      appeal. At the suppression hearing, Maldonado bore the burden
      of establishing that he had a reasonable expectation of privacy in

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      the automobile. At the suppression hearing, the Commonwealth
      presented only the testimony of Officer Buckman, and Maldonado
      did not present any witnesses. The evidence elicited at that time
      establishes that the vehicle was owned by Vasquez. Officer
      Buckland testified, on cross-examination, that Maldonado told him
      that Vasquez was his girlfriend and that they lived together at the
      address to which the vehicle was registered. However, there was
      no evidence that Maldonado had permission from Vasquez to drive
      the car. When Maldonado’s counsel asked Officer Buckman
      whether Maldonado told him that Vasquez had given him
      permission to drive her car, Officer Buckman stated only that he
      did not recall asking Maldonado that question. Of note, although
      it appears that Vasquez attended the suppression hearing,
      Maldonado did not call her to testify that she had given Maldonado
      permission to drive her car on the day in question.4
      __________
       4 We reject Maldonado’s assertion that Vasquez’s presence at the
      suppression hearing “inidcat[es] her consent to [Maldonado]
      driving her car.” We know of no authority that would allow us to
      draw such an inference based solely on her presence, and
      Maldonado provides none.
      __________

      The fact that Maldonado and Vasquez might have lived together
      and had a romantic relationship does not foreclose the possibility
      that Maldonado was driving Vasquez’s vehicle without her
      knowledge or permission. For that reason, we conclude that
      Maldonado failed to establish an expectation of privacy in
      the vehicle he was driving, which “he did not own, that was
      not registered to him, and for which he has not shown
      authority to operate.”

Id. at 911-912 (internal citations and one footnote omitted; emphasis

supplied).   Therefore, under the facts of that case, the defendant never

established the owner of the vehicle, Vasquez, gave him permission to drive

the car at the time he was stopped.        Significantly, in its analysis, the

Maldonado Court did not mention the fact that the defendant had no valid

driver’s license.



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      An en banc panel of this Court reached the same conclusion in Burton,

supra. In that case, a police officer stopped the vehicle the defendant was

driving because it lacked a registration sticker.   After running a computer

check of the defendant’s identification, the officer discovered the defendant

was not a licensed driver, had an outstanding scofflaw warrant, and did not

own the vehicle.   Consequently, the officer arrested the defendant on the

outstanding warrant and arranged to tow the vehicle. Before doing so, the

officer conducted an inventory search of the car, at which time he observed a

jacket in the trunk. After the defendant acknowledged the jacket was his, the

officer checked it before returning it to the defendant. At that time, he found

drugs hidden in a baseball cap stuffed in the sleeve. See Burton, supra, 973

A.2d at 434.   The trial court subsequently denied the defendant’s pretrial

suppression motion.

      On appeal, an en banc panel of this Court affirmed the ruling, finding

the defendant failed to demonstrate a reasonable expectation of privacy in the

vehicle. See id. at 435. The Burton Court opined:

            In the instant case, the vehicle was not owned by [the
      defendant]. The vehicle was not registered in [the defendant’s]
      name. [The defendant] offered no evidence that he was using the
      vehicle with the authorization or permission of the registered
      owner. [The defendant] offered no evidence to explain his
      connection to the vehicle or his connection to the registered owner
      of the vehicle. [The defendant] failed to demonstrate that he had
      a reasonably cognizable expectation of privacy in a vehicle that he
      did not own, that was not registered to him, and for which he has
      not shown authority to operate.




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Id. at 436. Again, the panel did not even mention the fact that the defendant

was an unlicensed driver. Therefore, one can reasonably infer that whether a

defendant has a valid driver’s license is not a determinative factor when

considering whether the defendant has a reasonable expectation of privacy in

the vehicle he is driving.

      Here, the trial court explained its ruling as follows:

            Just like the case herein, Maldonado did not have a valid
      driver’s license. Unlike Maldonado, the owner herein testified
      that she was not only present during the traffic stop, but also had
      previously given permission to the defendant to have the car. Also
      unlike Maldonado, the vehicle herein was legally parked and the
      owner obtained possession.

            [The] Commonwealth argues that an owner cannot grant
      authorization to drive their vehicle to an unlicensed individual.
      While this is true, Maldonado stands for the proposition that it is
      not “authorization” but merely “permission” that is required.
      Burton notes that either authorization OR permission needs to be
      established. That permission was established at the scene as well
      as testified to at the suppression hearing.

Trial Court Order, 10/30/2017, at 3.

      We agree with the trial court’s analysis. The Commonwealth provides

no support for its claim that a person who does not possess a valid driver’s

license can never demonstrate a reasonable expectation of privacy in a vehicle

that he is driving. Indeed, if, in fact, Weedon had been stopped driving his

own car – albeit unlicensed – there would be no dispute that he had a

reasonable expectation of privacy in that vehicle. Brannon told the officer at

the scene and testified at the suppression hearing that she gave Weedon

permission to drive her car. Accordingly, we agree with the trial court that


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Weedon demonstrated a reasonable expectation of privacy in the vehicle

searched.4 See Commonwealth v. Dugan, 855 A.2d 103 (Pa. Super. 2004)

(finding trial counsel was ineffective for failing to object to defendant’s

statement to police that they should obtain a warrant before searching

borrowed truck he was driving; this Court found that although defendant’s

license was suspended, he had a reasonable expectation of privacy in the truck

borrowed from a friend). Accordingly, the Commonwealth’s first issue fails.

       Next, the Commonwealth asserts that, even if Weedon had a reasonable

expectation of privacy in the vehicle, “law enforcement” had probable cause

to search the vehicle. Commonwealth’s Brief at 12. It summarizes:

       The traffic stop occurred at night and Weedon was driving with
       tinted windows and was on parole for drug deliveries. There were
       multiple masking agents in the vehicle and Weedon possessed two
       cell phones, which is indicative of drug dealing. Weedon put his
       hands in the air when he was pulled over, which is indicative of
____________________________________________


4 Moreover, even if we accepted the Commonwealth’s premise that Brannon
could not give Weedon permission to drive her car based upon Section 1574(a)
of the Motor Vehicle Code, our decision would remain the same. Section
1547(a) provides, in relevant part:

       No person shall authorize or permit a motor vehicle owned by him
       or under his control to be driven upon any highway by any person
       who is not authorized under this chapter or who is not licensed for
       the type or class of vehicle to be driven.

75 Pa.C.S. § 1574(a). However, this Court has held that “[i]n order to violate
the statute, … it must be shown that the owner knew or had reason to know
that the individual to whom he or she authorized to operate his or her vehicle
did not have a valid driver’s license.” Ferry v. Fisher, 709 A.2d 399, 403 (Pa.
Super. 1998) (emphasis omitted). Here, Brannon testified she was not aware
Weedon’s license had been suspended. See N.T., 8/1/2017, at 98. Therefore,
Section 1574(a) is inapplicable.


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      consciousness of wrongdoing. Agent Mann conducted a parole
      search of Weedon and discovered $2,100 in cash. Weedon’s
      minimum wage employment as a janitor was not the source of the
      money and Weedon gave inconsistent answers as to the money’s
      source. Based on the above factors, law enforcement possessed
      probable cause that a search of the vehicle would reveal evidence
      of drug dealing.

Id.

      The trial court did not address this claim in its opinion. In fact, the court

stated:    “[The] Commonwealth’s legal basis does not defend the

warrantless search of the vehicle, but instead contends that the defendant

lacked the requisite expectation of privacy.” Trial Court Order, 10/30/2017,

at 1 (emphasis supplied).

      Our review of the certified record, and particularly the Commonwealth’s

memorandum filed after the suppression hearing, reveals this claim is waived.

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”).      In his post-hearing brief,

Weedon argued Agent Mann’s search of both his person and the vehicle was

not supported by reasonable suspicion that he committed a parole violation,

or might possess contraband or evidence of a violation. See Brief in Support

of Defendant’s Omnibus Pre-Trial Motion, 8/7/2017, at 3-5. However, in its

post-hearing filing, the Commonwealth asserted only that Weedon did not

“have a reasonable expectation of privacy in Bobbi Jo Brannon’s vehicle[.]”

Commonwealth’s Memorandum in Opposition to Defendant’s Motion to

Suppress, 8/7/2007, at 1.     The Commonwealth did not argue Agent Mann

possessed reasonable suspicion to search either Weedon and/or the vehicle,


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nor did it later seek to amend its memorandum. Accordingly, we find this

issue waived.5

       Order affirmed.

       Judge Panella joins this decision.

       Judge Platt concurs in the result.




____________________________________________


5 We note that, even if this claim were not waived, we would conclude the
Commonwealth is entitled to no relief. Here, Officer Maley issued Weedon a
citation and informed him he was free to leave. Therefore, the Commonwealth
had to demonstrate Agent Mann had the requisite authority to conduct the
warrantless search. A parole agent’s authority to conduct a warrantless
search of a parolee’s person or property is derived from 61 Pa.C.S. § 6153.
The statute authorizes an agent to conduct a personal search of a parolee if,
inter alia, “there is a reasonable suspicion to believe that the offender
possesses contraband or other evidence of violations of the conditions of
supervision[.]” 61 Pa.C.S. § 6153(d)(1)(i). Similarly, an agent is authorized
to conduct a property search if “there is reasonable suspicion to believe that
the real or other property in the possession of or under the control of the
offender contains contraband or other evidence of violations of the conditions
of supervision.” Id. at § 6153(d)(2).

      Here, Agent Mann admitted during the suppression hearing that when
he searched Weedon, he had “no reason to believe” Weedon had “any
contraband on him.” N.T., 8/1/2017, at 87. Indeed, at that time, all Agent
Mann knew is that Weedon had been stopped for a tint violation, and was
driving with a suspended license and in possession of two cell phones.
Weedon was not under arrest, and Officer Maley had already told him he was
free to leave. Accordingly, even if the issue were not waived, we would find
Agent Mann’s warrantless search of Weedon was unauthorized by statute. It
follows the subsequent search of the vehicle was also not supported by
reasonable suspicion.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 09/21/2018




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