J-A05040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                         :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                            :        PENNSYLVANIA
                                         :
                                         :
              v.                         :
                                         :
                                         :
 JAMES MCNEELY                           :
                                         :   No. 1796 EDA 2017
                    Appellant

           Appeal from the Judgment of Sentence April 27, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0004619-2016


BEFORE:    DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED MARCH 26, 2018

      Appellant James McNeely appeals the judgment of sentence entered by

the Court of Common Pleas of Delaware County after a jury convicted

Appellant of tampering with physical evidence, resisting arrest, possession of

cocaine, and possession of drug paraphernalia. Appellant challenges the trial

court’s denial of his suppression motion. We affirm.

      On June 23, 2016, at approximately 2:15 p.m., Officers Steven

Dougherty and Daniel Falkenstein of the Darby Borough Police Department

stopped a 1999 Pontiac Grand Am, after a PennDot search revealed that the

vehicle’s registration was expired. After Officer Dougherty activated the lights

and sirens on his patrol vehicle, the Pontiac pulled in a spot in the middle of

the 1100 block of Chestnut Street, a one-way residential road with parking on




____________________________________
* Former Justice specially assigned to the Superior Court.
J-A05040-18



both sides of the street.   Officer Dougherty testified that the Pontiac was

blocking the free flow of traffic on Chestnut Street.

      Officer Dougherty approached the vehicle and observed Appellant sitting

in the driver’s seat and another individual seated next to him in the passenger

seat. Appellant provided Officer Dougherty with a non-driver identification

card. When asked to provide the vehicle’s registration and proof of insurance,

Appellant attempted to search the vehicle and appeared to have no knowledge

of where these documents were located in the vehicle.

      Once Officer Dougherty determined that neither Appellant nor his

passenger had drivers’ licenses and that Appellant had been driving a vehicle

with an expired registration, he asked Appellant to exit the vehicle. Appellant

complied with this direction, but now was unwilling to speak with the officer.

When Officer Dougherty asked who owned the vehicle, Appellant pointed to

himself and handed the officer the vehicle’s title, which listed another

individual’s name.    As Appellant reached for his waistband when he was

directed to put his hands on the back of the vehicle, the officers patted

Appellant down. The officers observed Appellant chewing something, directed

him to spit the object out, but he refused to do so. Appellant refused to open

his mouth and swallowed the object.

      Appellant was arrested after a subsequent altercation with responding

officers.   The officers transported Appellant to Mercy Fitzgerald Hospital,

suspecting that he may have swallowed an illicit substance to prevent its

discovery. As Appellant’s vehicle was blocking the free flow of traffic and its

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ownership was unclear, the officers had the vehicle towed to the police

headquarters. Thereafter, Officer Falkenstein conducted an inventory search

of the vehicle and discovered a pink bag of cocaine under the driver’s seat.

      Appellant filed a motion to suppress the cocaine found in the vehicle.

After a hearing on December 15, 2016, the trial court denied the motion,

finding Appellant had no expectation of privacy in the vehicle and that the

inventory search of the vehicle was justified under the circumstances.

Appellant proceeded to a jury trial and was convicted of the aforementioned

charges. On April 17, 2017, the trial court imposed an aggregate sentence of

one to two years’ imprisonment to be followed by three years of probation.

This timely appeal followed.

      Appellant solely challenges the trial court’s decision to deny his motion

to suppress the cocaine seized from the vehicle. Our standard of review in

evaluating the denial of a suppression motion is as follows:

      [The] standard of review in addressing a challenge to a trial court's
      denial of a suppression motion is whether the factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. When reviewing such a ruling by
      the suppression court, we must consider only the evidence of the
      prosecution and so much of the evidence of the defense as
      remains uncontradicted when read in the context of the
      record....Where     the    record   supports   the    findings     of
      the suppression court, we are bound by those facts and may
      reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Bush, 166 A.3d 1278, 1282 (Pa.Super. 2017), appeal

denied, 176 A.3d 855 (Pa. 2017) (quoting Commonwealth v. Eichinger,

591 Pa. 1, 915 A.2d 1122, 1134 (2007) (internal citations omitted)).


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      As an initial matter, we evaluate the trial court’s finding that Appellant

had no expectation of privacy in the vehicle.

      The law relating to a defendant's standing and expectation of
      privacy in connection with a motion to suppress has been
      explained by our courts.       A defendant moving to suppress
      evidence has the preliminary burden of establishing standing and
      a legitimate expectation of privacy. Standing requires a defendant
      to demonstrate one of the following: (1) his presence on the
      premises at the time of the search and seizure; (2) a possessory
      interest in the evidence improperly seized; (3) that the offense
      charged includes as an essential element the element of
      possession; or (4) a proprietary or possessory interest in the
      searched premises. A defendant must separately establish a
      legitimate expectation of privacy in the area searched or thing
      seized. Whether defendant has a legitimate expectation of privacy
      is a component of the merits analysis of the suppression motion.
      The determination whether defendant has met this burden is
      made upon evaluation of the evidence presented by the
      Commonwealth and the defendant.

      With more specific reference to an automobile search, this Court
      has explained as follows:

         [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.

         Pennsylvania law makes clear there is no legally cognizable
         expectation of privacy in a stolen automobile. Additionally,



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         this Court has declined to extend an expectation of privacy
         to an “abandoned” automobile.

      Commonwealth v. Jones, 874 A.2d 108, 118 (Pa.Super. 2005)
      (internal citations omitted).

Commonwealth v. Burton, 973 A.2d 428, 435 (Pa.Super. 2009) (some

citations and quotation marks omitted). In Burton, the appellant was stopped

for driving a license without a registration sticker. In affirming the denial of

the appellant’s suppression motion, this Court concluded that the appellant

failed to demonstrate that he had a reasonable expectation in a vehicle that

he did not own, that was not registered to him, and for which had not shown

authority to operate.

      Likewise, in the instant case, Appellant concedes that he does not own

the vehicle and that the car was not registered in his name. He has neither

attempted to offer any evidence that he was using the vehicle with the

authorization of the owner, nor offered any explanation of his connection with

the vehicle’s owner.    Therefore, Appellant failed to meet his burden of

establishing a legitimate expectation of privacy in the vehicle he was driving.

      Even assuming arguendo that Appellant did show he had a reasonable

expectation of privacy in the vehicle, the drugs found in the vehicle were not

subject to suppression as they were seized pursuant to a valid inventory

search of the vehicle. Our Supreme Court has thoroughly set forth the law

applicable to inventory searches:

      The Fourth Amendment to the United States Constitution and
      Article 1, Section 8 of the Pennsylvania Constitution, protect
      individuals from unreasonable searches and seizures. U.S. Const.


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     amend. IV; Pa. Const. art. 1, § 8. Generally, law enforcement
     must obtain a warrant prior to conducting a search; however,
     there are certain exceptions to the warrant requirement.
     Commonwealth v. Petroll, 558 Pa. 565, 575, 738 A.2d 993, 998
     (1999). One such exception, and the one at issue in the case sub
     judice, is an inventory search. South Dakota v. Opperman, 428
     U.S. 364, 369, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

     The purpose of an inventory search is not to uncover criminal
     evidence, but to safeguard items taken into police custody in order
     to benefit both the police and the defendant. Commonwealth v.
     Nace, 524 Pa. 323, 327, 571 A.2d 1389, 1391 (1990). In the
     seminal case of Opperman, supra, the high Court observed that
     inventory searches of impounded vehicles serve several purposes,
     including (1) protection of the owner's property while it remains
     in police custody; (2) protection of the police against claims or
     disputes over lost or stolen property; (3) protection of the police
     from potential danger; and (4) assisting the police in determining
     whether the vehicle was stolen and then abandoned. 428 U.S. at
     369, 96 S.Ct. 3092.

     An inventory search of an automobile is permissible when (1) the
     police have lawfully impounded the vehicle; and (2) the police
     have acted in accordance with a reasonable, standard policy of
     routinely securing and inventorying the contents of the impounded
     vehicle.    Opperman, 428 U.S. at 375, 96 S.Ct. 3092.
     In Commonwealth v. Henley, the Pennsylvania Superior Court,
     citing Opperman, explained:

        In determining whether a proper inventory search has
        occurred, the first inquiry is whether the police have lawfully
        impounded the automobile, i.e., have lawful custody of the
        automobile. The authority of the police to impound vehicles
        derives from the police's reasonable community care-taking
        functions. Such functions include removing disabled or
        damaged vehicles from the highway, impounding
        automobiles which violate parking ordinances (thereby
        jeopardizing public safety and efficient traffic flow), and
        protecting the community's safety.

        The second inquiry is whether the police have conducted a
        reasonable inventory search.     An inventory search is
        reasonable if it is conducted pursuant to reasonable


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         standard police procedures and in good faith and not for the
         sole purpose of investigation.

      909 A.2d 352, 359 (Pa.Super. 2006) (en banc ) (citations
      omitted). A protective vehicle search conducted in accordance
      with standard police department procedures assures that “the
      intrusion [is] limited in scope to the extent necessary to carry out
      the caretaking function.” Opperman, 428 U.S. at 375, 96 S.Ct.
      3092.

Commonwealth v. Lagenella, 623 Pa. 434, 447–48, 83 A.3d 94, 102–03
(2013).

      Pursuant to this case law, we first analyze whether the officers in this

case lawfully impounded the vehicle.     Section 6309.2 of the Vehicle Code

provides that if an officer discovers either (1) an unlicensed driver operating

a vehicle on a Pennsylvania road, or (2) a driver operating a vehicle with no

valid registration, the officer is permitted to direct that the vehicle be towed

and stored if the vehicle poses public safety concerns.        75 Pa.C.S.A. §

6309.2(a); Lagenella, supra.

      In this case, Appellant provided non-driver photo identification, but

could not produce a Pennsylvania driver’s license. Appellant was driving a

vehicle that had a registration that expired in 2016 and could not produce

current registration information. Instead, Appellant gave the officers the title

of the vehicle, which was listed in another individual’s name.        Appellant

refused to speak with the officers and has never attempted to explain why he

did not have any of the aforementioned information. The officers testified that

Appellant’s vehicle was stopped on a residential road and was blocking the




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free flow of traffic. Therefore, the officers had the authority to impound the

vehicle and conduct an inventory search.

      In addition, Appellant does not argue that the police failed to conduct a

reasonable inventory search when they recovered a pink bag of cocaine from

underneath the driver’s seat where Appellant was seated. As a result, we

conclude that the officers conducted a constitutionally permissible inventory

search of the vehicle.

      Moreover, we reject Appellant’s claim that he was entitled to the

suppression of the evidence of the cocaine found in his vehicle as he alleges

that the officers illegally attempted to search his mouth for contraband.

Regardless of whether these allegations are true, Appellant concedes that the

officers did not seize any evidence from his mouth. We need not determine

whether the police were justified in allegedly searching Appellant’s mouth, as

we agree with the trial court’s conclusion that the inventory search of

Appellant’s vehicle was an independent event authorized by decisional and

statutory law.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/18




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