                           [J-16A-2017 and J-16B-2017]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               EASTERN DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,                :   No. 28 EAP 2016
                                             :
                    Appellant                :   Appeal from the Judgment of Superior
                                             :   Court entered on 12/21/2015 at No.
                                             :   1702 EDA 2014 (reargument denied
             v.                              :   02/11/2016) affirming the Order entered
                                             :   on 04/02/2014 in the Court of Common
                                             :   Pleas, Philadelphia County, Criminal
SALEEM SHABEZZ,                              :   Division at No. CP-51-CR-0015450-
                                             :   2013.
                    Appellee                 :
                                             :   ARGUED: March 8, 2017

COMMONWEALTH OF PENNSYLVANIA,                :   No. 29 EAP 2016
                                             :
                    Appellant                :   Appeal from the Judgment of Superior
                                             :   Court entered on 12/21/2015 at No.
                                             :   1639 EDA 2014 (reargument denied
             v.                              :   02/11/2016) affirming the Order entered
                                             :   on 05/15/2014 in the Court of Common
                                             :   Pleas, Philadelphia County, Criminal
SALEEM SHABEZZ,                              :   Division at No. CP-51-CR-0012538-
                                             :   2013
                    Appellee                 :
                                             :   ARGUED: March 8, 2017

                                         OPINION

JUSTICE WECHT                                                 DECIDED: July 19, 2017
      On June 1, 2013, Saleem Shabezz was a passenger in a vehicle that was seized

unconstitutionally by police officers.   Following the stop, the officers searched the

vehicle, finding drugs and weapons in various locations and compartments, as well as

on Shabezz’ person. The question that we confront today is whether an illegal seizure

entitles a passenger to suppression only if he can establish a reasonable expectation of
privacy in the areas of the car where the evidence was found, or whether that evidence

instead is barred outright as fruit of the poisonous tree. We hold that the contested

evidence, tainted by the initial illegality, must be suppressed, even absent a

demonstrable expectation of privacy in the locations where the evidence was found.

Accordingly, we affirm the Superior Court’s order, and we remand this case to the trial

court for further proceedings.

                                          I.

       As a result of the evidence obtained by the police, Shabezz was charged with

possession of a controlled substance with intent to deliver, conspiracy, persons not to

possess a firearm, carrying a concealed weapon without a license, possession of a

small amount of marijuana, and possession of an instrument of crime. Additionally,

because the weapon found in the car was stolen and was linked to another crime,

Shabezz also was charged in a separate case with robbery and related firearms

offenses. During the pendency of the cases, the driver of the vehicle, Sean McCorty,

filed a suppression motion, which Shabezz joined. The following is a summary of the

testimony presented at a subsequent hearing on the motion.

       In June 2013, Sergeant Michael Cerruti was commanding a narcotics

enforcement team in a Philadelphia neighborhood. The team was comprised of Sgt.

Cerruti and four other police officers. Certain areas were designated as “hot areas”

based upon information developed through the team’s own investigations and from

Philadelphia’s narcotics tip hotline. Notes of Testimony (“N.T.”), 4/2/2014, at 8. One

such “hot area” was the parking lot of a McDonald’s restaurant located at the

intersection of Cottman Avenue and Roosevelt Boulevard. According to Sgt. Cerruti,

the lot was a popular place for drug trafficking due to its convenient location and the

ease with which the buyer and seller could enter, conduct the transaction, and exit. As




                            [J-16A-2017 and J-16B-2017] - 2
a result, Sgt. Cerruti had arrested “hundreds” of individuals for drug-related offenses in

that parking lot. Id. at 9.

       At times, due to various factors such as increased police presence or civilian

traffic, the drug transactions would commence in one place, but conclude at another

location. The buyer and seller initially would meet at the McDonald’s and, if the deal

could not be completed there, would then proceed to a nearby 7-11 convenience store

that was located two blocks from the McDonald’s at the intersection of Cottman Avenue

and Brous Avenue. The parties then would complete the transaction at the 7-11.

       At approximately 7:30 p.m. on June 1, 2013, Sgt. Cerruti and his team set up

surveillance of the McDonald’s and the 7-11.        One team member, Officer Steven

Burgoon, received a report from another surveilling officer, Officer Apostalu, 1 that

individuals believed to be engaged in a drug transaction were exiting the parking lot of

the McDonald’s in a tan Nissan. Officer Burgoon and his partner, Officer James Wade,

located the tan Nissan and followed it to the 7-11. The driver of the Nissan parked at

the 7-11, and remained in the car. A short time later, a person later identified as

McCorty drove a red Acura into the lot and parked a few spots away from the Nissan.

At that point, a person later identified as Shabezz exited the passenger side of the

Acura and approached the Nissan.

       As Shabezz approached the Nissan, Officer Burgoon positioned his unmarked

police vehicle approximately forty-five feet away. At the suppression hearing, Officer

Burgoon testified that he observed Shabezz open the passenger-side door of the

Nissan, reach in, and conduct a hand-to-hand transaction with the driver.          Officer

Burgoon explained that, even without the assistance of binoculars, he saw Shabezz use


1
       Officer Apostalu’s first name does not appear in the notes of testimony.



                              [J-16A-2017 and J-16B-2017] - 3
a cupping and dropping motion to transfer small objects into the driver’s hand. Almost

simultaneously, Officer Burgoon watched Shabezz take something, presumably money,

from the driver’s hand in a similar cupping motion. Despite the detail with which Officer

Burgoon explained this transaction while testifying at the suppression hearing, none of

these particulars appeared in the incident reports that were prepared within hours of

Shabezz’ arrest. Those reports indicated only that Shabezz opened the passenger

door, leaned inside, and conducted a brief conversation with the driver.

       Officer Burgoon informed Sgt. Cerruti that he had seen suspicious behavior that

he believed resembled a drug transaction similar to those that had occurred previously

in the lot.   At that time, Officer Burgoon did not tell Sgt. Cerruti that he had seen

Shabezz use the cupping and dropping motion, or that he had seen the exchange of

small objects. (Officer Burgoon would later assert this at the suppression hearing). Sgt.

Cerruti immediately ordered the surveillance team to seize the vehicles.

       As this was happening, Shabezz returned to the red Acura, which then attempted

to exit the lot. Officer Burgoon drove toward the Acura and positioned the nose of his

vehicle against the nose of the Acura, preventing the Acura from leaving the scene. At

the same time, Sgt. Cerruti stopped the tan Nissan, and positioned his vehicle in such a

way that the Acura could not back up. The Acura could not move forward or backward

without striking a police vehicle.

       Shabezz exited the Acura and fled on foot. Officer Burgoon and Officer Apostolu

gave chase, apprehending Shabezz a few blocks away on Cottman Avenue. Officer

Apostolu searched Shabezz and found a bag containing marijuana and $1,800 in cash.

Officer Burgoon then returned to the 7-11 lot. By the time he arrived, other police

officers had arrested McCorty and one Carl Halen, who had been sitting in the rear of




                             [J-16A-2017 and J-16B-2017] - 4
the Acura. Sgt. Cerutti also arrested one Callahan,2 the driver of the Nissan. The

sergeant found a baggie containing marijuana in the center console of the Nissan.

       After all four individuals were arrested, Officer Wade searched the Acura. He

located a black and gray bag on the floor of the front passenger seat area. Inside the

bag, Officer Wade found seven heat-sealed bags of marijuana, one Ziploc baggie

containing marijuana, two scales, a box of unused Ziploc baggies, and one clear

knotted baggie that held more empty Ziploc baggies.            In the rear passenger area,

Officer Wade found another bag, which held additional bags of marijuana and a jar

containing two pills. Officer Wade also recovered a bag of marijuana that he maintained

had been sitting atop the center armrest between the front seat and the driver’s seat.

Officer Apostolu found a nine millimeter handgun in the glove compartment.

       At the conclusion of the hearing, the trial court granted the suppression motion as

to all of the physical evidence, including the marijuana and money found on Shabezz’

person.   The court based its decision initially upon two grounds.            First, the court

determined that nothing prevented the police officers from obtaining a search warrant

before searching the vehicles. The court found that, if the testimony was credible that

drugs were in plain view on top of the center console, the officers would have had

unassailable probable cause and could have secured a search warrant. Second, the

court found certain testimony from the officers to be untruthful. Specifically, the court

did not believe Officer Burgoon’s testimony that he could see the purported drug

transaction from forty-five feet away. In light of the trial court’s ruling, all of the evidence

was suppressed for purposes of Shabezz’ robbery case as well.3

2
       Callahan’s first name does not appear in the notes of testimony.
3
       The two cases were assigned to different judges. The Honorable Paula Patrick
was assigned to preside over the drug case, and was the judge who granted the motion
to suppress. The Honorable Earl Trent was assigned to the robbery case. Before
(continued…)

                              [J-16A-2017 and J-16B-2017] - 5
       The Commonwealth filed an unsuccessful motion for reconsideration of the

suppression ruling, and then appealed to the Superior Court. In its Pa.R.A.P. 1925(b)

statement, the Commonwealth argued, inter alia, that Shabezz, as a passenger, was

not entitled to suppression of the evidence because he had failed to demonstrate a

reasonable expectation of privacy in the areas and compartments of the Acura that

were searched.

       In its Pa.R.A.P. 1925(a) opinion, the trial court first detailed its findings of fact and

its credibility determinations, including its conclusion that the police officers could not,

and, therefore did not, see a drug transaction that would have established probable

cause or reasonable suspicion to justify the seizure of the Acura.            See Trial Court

Opinion (“T.C.O.”), 8/13/2014, at 4 (explaining that the court did not believe that Officer

Burgoon actually saw a hand-to-hand transaction); 5 (determining that Officer Burgoon

could not see what he testified to from forty-five to fifty feet away “in the dark of night”);

7 (holding that the true facts were those contained in the officers’ incident reports, which

stated only that Shabezz leaned into the Nissan and had a brief conversation); 8

(disbelieving Officer Wade’s testimony that drugs were located on top of the center

console, and instead believing the incident reports that indicated that the drugs were

found inside the console and out of plain view); and 9 (explaining that “[n]o crimes were

ever actually observed. No criminal activity was ever observed,” and that, based upon

the credibility findings, “these officers merely observed a group of men speaking with

one another near or inside their vehicles in a parking lot;” the court also noted that any

testimony to the opposite “plainly was not credited”).

(…continued)
Judge Trent, the Commonwealth conceded that Judge Trent was bound by Judge
Patrick’s suppression ruling under the coordinate jurisdiction rule, and that the evidence
had to be suppressed for purposes of the robbery charges as well.



                             [J-16A-2017 and J-16B-2017] - 6
       Based upon its credibility findings, the court explained that the police lacked any

constitutionally justifiable basis to stop the vehicles. The court also held that, because

there was no basis to stop the cars, the police also were not in a lawful vantage point for

plain view purposes when Officer Wade allegedly observed contraband in the car, an

observation which the court did not believe regardless. The court did not discuss the

Commonwealth’s claim that Shabezz was not entitled to suppression because he could

not demonstrate an expectation of privacy in any of the searched areas of the Acura.

       In a published opinion authored by the Honorable Victor Stabile, the Superior

Court affirmed the suppression order. See Commonwealth v. Shabezz, 129 A.3d 529

(Pa. Super. 2015).      Before that court, the Commonwealth advanced two distinct

arguments. First, the Commonwealth argued that Shabezz did not have an expectation

of privacy in the areas of the Acura that were searched and, thus, was not entitled to

suppression. Second, the Commonwealth maintained that the record did not support

the trial court’s findings of fact, including the trial court’s ultimate determination that

Officer Burgoon did not, in fact, observe a drug transaction. The Superior Court began

with the Commonwealth’s second argument.

       Regarding the trial court’s factual findings, the Superior Court held that the record

supported the trial court’s decision to disbelieve Officer Burgoon’s testimony and to

credit the facts set forth in the incident reports instead. The court concluded that “the

record contains evidence supporting the trial court’s finding that [Shabezz] and the

Nissan driver engaged only in conversation,” id. at 533, and that the court was bound by

that conclusion. Id. at 534. In light of the facts as found by the trial court, the Superior

Court held that the seizure of the Acura, and the concomitant seizure of Shabezz, were

not justified by the constitutionally required level of articulable suspicion. Id. at 534-35.




                             [J-16A-2017 and J-16B-2017] - 7
       After holding that the stop was unconstitutional, the Superior Court, citing the

United States Supreme Court’s decision in Brendlin v. California, 551 U.S. 249 (2007),

noted that a vehicle stop constitutes a seizure of each and every occupant of the

vehicle. Accordingly, the Superior Court held, all of the occupants had standing to

challenge the constitutionality of the vehicle stop.        Shabezz, 129 A.3d at 535.

Apparently assuming that standing resolved the Commonwealth’s expectation of privacy

argument, the Superior Court upheld the trial court’s suppression order without any

further discussion of the Commonwealth’s contention.

       President Judge Emeritus Kate Ford Elliot joined the majority opinion, but also

filed a concurring statement to “address the Commonwealth’s argument that [Shabezz]

was required to prove a reasonable expectation of privacy in the searched car under the

circumstances of this case.” Id. Judge Ford Elliot agreed with the majority that the

vehicle stop was illegal, and explained that, because “the instant case is an illegal

seizure case and not an auto search case, [Shabezz’] expectation of privacy in the

vehicle is not at issue.” Id. at 536. Judge Ford Elliot invoked United States v. Mosley,

454 F.3d 249, 253 (3d Cir. 2006), in which the United States Court of Appeals for the

Third Circuit explained that “[t]he dispositive legal issue is the causal relationship

between the traffic stop and the discovery of evidence: whether the evidence found in

the car was ‘fruit’ of the illegal stop.” Shabezz, 129 A.3d at 536.4

       We granted allowance of appeal to consider the following issue:       “Does the

Fourth Amendment entitle a defendant to suppress the fruits of a search where it is




4
        Former Justice James Fitzgerald concurred in the result reached by the majority.
Judge Victor Stabile, the majority author, and Justice Fitzgerald both joined Judge Ford
Elliot’s concurring statement.



                             [J-16A-2017 and J-16B-2017] - 8
undisputed that he had no privacy interest in the area searched?” Commonwealth v.

Shabezz, 141 A.3d 1286 (Pa. 2016) (per curiam).

                                            II.

       It is critical first to underscore what is not at issue in this case. We are not

weighing the correctness of the trial court’s factual findings. Nor are we assessing that

court’s determination that the vehicle stop was unconstitutional. Moreover, we are not

reviewing the validity of the Superior Court’s affirmance of those particular holdings.

For purposes of this appeal, we accept that the stop was unconstitutional, and we limit

our focus to the question upon which we granted allocatur.          We inquire whether,

following an unconstitutional vehicle stop, the Fourth Amendment requires a passenger

to demonstrate a reasonable expectation of privacy in those areas of the vehicle that

are searched and that yield incriminating evidence, or whether that evidence

automatically is suppressible as fruit of the poisonous tree, regardless of the presence

or absence of an expectation of privacy?5 Because this issue implicates constitutional

requirements and is a question of law, our standard of review is de novo and our scope

of review is plenary. Commonwealth v. Chase, 960 A.2d 108, 112 (Pa. 2008).

       We begin where the Superior Court majority’s analysis ended.            That court

effectively held that, because Shabezz was seized by police, he had standing to

challenge the police action. The court seemingly believed that the fact of the seizure

ended the inquiry. It did not.



5
         The fruit of the poisonous tree analysis also requires consideration of whether
the taint of the original illegality is removed, for example, by sufficient attenuation
between the illegality and the recovery of incriminating evidence, or by some other
independent intervening act. We discuss the circumstances that purge the taint of an
illegality, and whether any of those are present in this case, in more detail later in this
opinion.



                             [J-16A-2017 and J-16B-2017] - 9
       In Weeks v. United States, 232 U.S. 383 (1914), the United States Supreme

Court held for the first time that violations of the protections afforded by the Fourth

Amendment to the United States Constitution required suppression pursuant to the

exclusionary rule newly announced in that case. As courts explored the applicability of

that rule, the doctrine of Fourth Amendment standing emerged. See Commonwealth v.

Sell, 470 A.2d 457, 459-60 (Pa. 1983) (collecting sources). The standing requirement

was premised upon the notion that Fourth Amendment rights are personal, and that one

cannot assert a violation of the constitutional rights of another. Id. at 460 (collecting

federal cases). Standing existed only when a defendant claimed that his or her own

rights were violated.

       In Jones v. United States, 362 U.S. 257, 263 (1960), the United States Supreme

Court conferred “automatic standing” upon defendants charged with a possessory

offense.    However, automatic standing enjoyed only a brief career in federal

constitutional law. Rakas v. Illinois, 439 U.S. 128 (1978), was the first signal of the

doctrine’s decline.     There, the High Court altered the review paradigm for Fourth

Amendment challenges to government action under the Fourth Amendment.               After

reiterating the central principle that Fourth Amendment rights are personal and cannot

be vicariously asserted, Rakas, 439 U.S. at 133-34 (citations omitted), the Court shifted

the relevant focus from whether a person has standing to whether the person seeking

the protection of the Fourth Amendment has a “legitimate expectation of privacy in the

invaded place.” Id. at 143.

       Automatic standing finally was purged from the federal system in United States v.

Salvucci, 448 U.S. 83 (1980), and Rawlings v. Kentucky, 448 U.S. 98 (1980). Issued on

the same day, Salvucci and Rawlings brought all Fourth Amendment claims within

Rakas’ “legitimate expectation of privacy” framework, including claims raised by




                              [J-16A-2017 and J-16B-2017] - 10
defendants charged with possessory offenses. These cases instructed courts to apply

a totality of the circumstances test to determine whether such an expectation of privacy

existed.

       As the standing doctrine meandered through the federal courts, and before it

ultimately reached its end, we adopted the United States Supreme Court’s automatic

standing doctrine as a matter of Pennsylvania constitutional law. See Commonwealth

v. Knowles, 327 A.2d 19, 21-22 (Pa. 1974) (embracing “automatic standing” as a state

constitutional principle). In Sell, following Salvucci and Rawlings, this Court was called

upon to determine whether to retain the doctrine under Article I, Section 8 of the

Pennsylvania Constitution, or to abandon it as the Supreme Court had done. This Court

recognized our inherent authority to recognize rights under our state constitution more

expansive than those perceived by our federal counterpart, and noted that we have not

“hesitated to interpret the Pennsylvania Constitution as affording greater protections” to

individuals.   Sell, 470 A.2d at 467.     We opined that the Pennsylvania Constitution

“mandates greater recognition of the need for protection from illegal governmental

conduct offensive to the right to privacy,” id. at 468, and we retained “automatic

standing” as a constitutional principle. Id. at 469.

       The automatic standing doctrine survives in our Commonwealth today. However,

its operation does not qualify a defendant automatically to relief. “Standing denotes the

existence of a legal interest,” Commonwealth v. Peterson, 636 A.2d 615, 617 (Pa.

1993), and entitles a defendant to file a suppression motion and to have that motion

adjudicated by a court; nothing more. It allows the defendant to get his or her foot in the

courtroom door; more is required before suppression becomes an available remedy.

Recently, we explained the limits of standing as follows:

       Generally, to have standing to pursue a suppression motion under
       Pa.R.Crim.P. 581, the defendant's own constitutional rights must have


                            [J-16A-2017 and J-16B-2017] - 11
          been infringed. However, it is well settled that a defendant charged with a
          possessory offense in this Commonwealth has “automatic standing”
          because “the charge itself alleges an interest sufficient to support a[ ]
          claim [under Article I, § 8].” Sell, 470 A.2d at 468 (1983) (citation and
          internal quotation marks omitted). This rule entitles a defendant to a
          review of the merits of his suppression motion without a preliminary
          showing of ownership or possession in the premises or items seized,
          Peterson, 636 A.2d at 617[. . . .] In addition to standing, though, a
          defendant must show that he had a privacy interest in the place invaded or
          thing seized that society is prepared to recognize as reasonable.
          Commonwealth v. Hawkins, 718 A.2d 265, 267 (Pa. 1998) (citation
          omitted).

          While cursorily similar, standing and privacy interest[s] are different
          concepts serving different functions. Standing is a legal interest that
          “empowers a defendant to assert a constitutional violation and thus seek
          to exclude or suppress the government's evidence pursuant to the
          exclusionary rules under the Fourth Amendment [to] the United States
          Constitution or Article 1, Section 8 of the Pennsylvania Constitution.” Id.
          at 266 (citations omitted). It ensures [that] a defendant is asserting a
          constitutional right of his own. See id. at 269 (citations omitted) (noting
          this Court's refusal to recognize vicarious assertions of constitutional
          rights). The expectation of privacy is an inquiry into the validity of the
          search or seizure itself; if the defendant has no protected privacy interest,
          neither the Fourth Amendment nor Article I, § 8 is implicated. See
          Commonwealth v. White, 327 A.2d 40, 42 (Pa. 1974). In essence, while a
          defendant's standing dictates when a claim under Article I, § 8 may be
          brought, his privacy interest controls whether the claim will succeed—once
          a defendant has shown standing, “[h]e must, in short, having brought his
          claim, demonstrate its merits by a showing of his reasonable and
          legitimate expectation of privacy in the premises.” Peterson, 636 A.2d at
          618 (citation omitted).

Commonwealth v. Enimpah, 106 A.3d 695, at 698-99 (Pa. 2014).

          The Superior Court majority correctly concluded that Shabezz, having been

seized and subsequently charged with possessory offenses in Pennsylvania, had

automatic standing to challenge the constitutionality of the seizure. But, as we made

clear in Enimpah, that only got Shabezz into court.           Standing is a constitutionally

necessary inquiry, but it does not resolve the question of whether Shabezz is entitled to

relief.




                              [J-16A-2017 and J-16B-2017] - 12
       To answer that question, we must determine whether the illegal seizure, by itself,

renders all tainted evidence suppressible as fruit of the poisonous tree, regardless of

where the evidence was found, or whether the Commonwealth is correct that Shabezz

first must prove an expectation of privacy in the areas where the poisoned fruit was

found. In Mosley, the Third Circuit, addressing the precise legal issue at issue in the

case sub judice, framed the inquiry as follows:

       Is an illegal traffic stop of a car occupied by a driver and a passenger a
       single constitutional violation, with two victims, each of whom can seek to
       suppress all fruits of that violation? Or is it analytically separable into two
       individual constitutional violations, each with one victim, each of whom
       may seek to suppress only the fruits of the violation of his individual right?

Mosley, 454 F.3d at 257-58. The former inquiry requires a straightforward application of

the fruit of the poisonous tree doctrine, while the latter functionally ignores the initial

constitutional violation and requires an independent consideration of whether the

passenger has a reasonable expectation of privacy in areas within which evidence is

located. The Commonwealth supports the latter approach, while Shabezz endorses the

former. Like the Third Circuit in Mosley, we hold that evidence derived from an illegal

automobile search constitutes fruit of the poisonous tree as a result of the illegal seizure

(unless the taint is removed), and that no further demonstration of a privacy interest in

the area from which the evidence was seized is required by the Fourth Amendment.

                                             III.

       The Fourth Amendment to the United States Constitution provides as follows:

       The right of the people to be secure in their persons, houses, papers, and
       effects, against unreasonable searches and seizures, shall not be
       violated, and no Warrants shall issue, but upon probable cause, supported
       by Oath or affirmation, and particularly describing the place to be
       searched, and the persons or things to be seized.




                            [J-16A-2017 and J-16B-2017] - 13
U.S. Const. amend. IV. “The Fourth Amendment requires that searches and seizures

be reasonable.” City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). When a police

officer effectuates a vehicle stop, the vehicle, and, more importantly, the driver are

seized, and, as with all other constitutional actions, that seizure must be reasonable.

See Delaware v. Prouse, 440 U.S. 648, 653 (1979); see also Whren v. United States,

517 U.S. 806, 810 (1996) (explaining that an automobile stop is “subject to the

constitutional imperative that it not be ‘unreasonable’ under the circumstances.”) More

relevant herein, passengers of the vehicle also are seized for constitutional purposes.

See Brendlin, 551 U.S. at 257, 263 (holding that passengers would not feel free to leave

when the vehicle in which they are riding is stopped by police officers, and, therefore,

they are seized under the Fourth Amendment).

      Pursuant to Brendlin, Shabezz was seized when the vehicle in which he was a

passenger was surrounded by police cruisers.6 As noted, we accept here that the

seizure was without the requisite level of suspicion. The Commonwealth nonetheless

maintains that the illegal seizure does not lead automatically to suppression.       The

Commonwealth argues that Shabezz must also demonstrate a reasonable expectation


6
       Regarding the actual seizure of Shabezz, the Commonwealth now argues that,
under prevailing Fourth Amendment jurisprudence, Shabezz was not seized because
he fled from the officers who attempted to seize him. The Commonwealth contends
that, pursuant to Brendlin, there was no seizure “without actual submission,” and that, at
most, the interaction amounted to an “attempted seizure.” Brief for the Commonwealth
at 22 (citing Brendlin 551 U.S. at 254; California v. Hodari D., 499 U.S. 621 (1991)).
This is the first time that the Commonwealth makes this argument. Indeed, the
Commonwealth did not pursue this line of attack before the Superior Court. The
argument is waived as an avenue for relief before this Court. See Pa.R.A.P. 302(a).
       Notably, but immaterial herein, we have held that the Pennsylvania Constitution
does not align with Brendlin and Hodari D. regarding when a person is seized for
constitutional purposes, including a person who flees apprehension.               See
Commonwealth v. Matos, 672 A.2d 769, 776 (Pa. 1996).



                           [J-16A-2017 and J-16B-2017] - 14
of privacy in the areas within which incriminating evidence was found. The flaw in the

Commonwealth’s argument is that it assigns no constitutional significance to the illegal

seizure, ignoring the fact that the seizure itself was a constitutional violation.     The

Commonwealth would require Shabezz to prove two constitutional violations before

being entitled to suppression on one. The United States Supreme Court has never

endorsed this additional layer of proof as a constitutional prerequisite to relief following

an illegal seizure. Nor are we prepared to do so.

       The Commonwealth accurately conveys the holdings of numerous cases issued

by the United States Supreme Court touching upon the general mandate that, in order

to demonstrate that a search was unconstitutional, the defendant first must demonstrate

that he or she possessed an expectation of privacy in the area searched. For instance,

in California v. Ciraolo, 476 U.S. 207 (1986), the Court, quoting Justice Harlan’s

influential concurring opinion in Katz v. United States, 389 U.S. 347, 360 (1967),

emphasized that “[t]he touchstone of [a] Fourth Amendment analysis is whether a

person has a constitutionally protected reasonable expectation of privacy.” Ciraolo, 476

U.S. at 211 (internal quotation marks omitted). It is indisputable that a “State’s intrusion

into a particular area, whether in an automobile or elsewhere, cannot result in a Fourth

Amendment violation unless the area is one in which there is a constitutionally protected

reasonable expectation of privacy.”      New York v. Class, 475 U.S. 106, 112 (1986)

(internal quotation marks omitted). To establish such an expectation, a defendant first

must manifest “a subjective expectation of privacy in the object of the challenged

search,” and then demonstrate that “society [is] willing to recognize that expectation as

reasonable.” Ciraolo, 476 U.S. at 211.

       Accurate though they are, these principles nonetheless are beside the point. In

reviewing challenges to seizures under the Fourth Amendment, we engage in the




                            [J-16A-2017 and J-16B-2017] - 15
following analysis. First, we determine whether there was a seizure. If there was, we

then must ascertain whether the seizure was justified by the requisite level of suspicion.

If it was, there was no constitutional violation. But, if it was not, then the seizure was

illegal, and we must determine what must occur with regard to any evidence obtained

following the illegal seizure. See Mosley, 454 F.3d at 257. In other words, we must

determine whether the evidence was “fruit of the poisonous tree.”

       In Wong Sun v. United States, 371 U.S. 471 (1963), the United States Supreme

Court articulated the test for determining whether evidence must be suppressed. There,

the Court held that evidence constitutes poisonous fruit, and, thus, must be suppressed,

if, “granting establishment of the primary illegality, the evidence to which instant

objection is made has been come at by exploitation of that illegality or instead by means

sufficiently distinguishable to be purged of the primary taint.” Wong Sun, 371 U.S. at

488 (citation and internal quotation marks omitted).       Notably, this bedrock principle

contains no independent assessment of the moving party’s expectation of privacy, nor

has the United States Supreme Court ever attached such a requirement to Wong Sun’s

exploitation test.    The inquiry simply is whether the evidence was obtained via

exploitation of the initial illegality.   As the Mosley Court put it, when the defendant

seeking suppression following an illegal vehicle stop is the passenger, “[t]he 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.” Mosley,

454 F.3d at 253 . So long as the taint of the initial illegality has not been removed by

other circumstances, the inquiry involves nothing more.

       Our holding is consistent with the substantial weight of federal appellate

precedent addressing the application of the fruit of the poisonous tree doctrine in cases

where a passenger in a vehicle seeks suppression following an unconstitutional stop.




                              [J-16A-2017 and J-16B-2017] - 16
See United States v. Gaines, 668 F.3d 170, 171-76 (4th Cir. 2012); Mosley, 454 F.3d at

269; United States v. Chanthasouxat, 342 F.3d 1271, 1281 (11th Cir. 2003); United

States v. Reed, 349 F.3d 457, 465-66 (7th Cir. 2003); United States v. Guevara-

Martinez, 262 F.3d 751, 755 (8th Cir. 2001); United States v. Twilley, 222 F.3d 1092,

1097 (9th Cir. 2000); United States v. Jones, 234 F.3d 234, 242-43 (5th Cir. 2000)

(reversed in part on other grounds by United States v. Pack, 612 F.3d 341, 358 (5th Cir.

2010)); United States v. Kimball, 25 F.3d 1, 5-6, & n.3 (1st Cir. 1994).7

       The Commonwealth’s attempt to graft an additional inquiry onto an analysis of

remedy following an established violation would require courts to ignore the “primary

illegality,” and would countenance those constitutional violations without recourse. The

United States Supreme Court has never required as much, and we find no basis to do

so. The Commonwealth’s view that such an inquiry is required stems necessarily from

its misapprehension of the character of this case. This case is about an illegal seizure

of a vehicle and its occupants. It is not a vehicle search case. To be sure, if this were

a vehicle search case, one in which the initial stop and seizure of the vehicle was

constitutional, then the Commonwealth would be correct that Shabezz would have had

to demonstrate an expectation of privacy in the areas of the vehicle searched in order to

prove a violation of the Fourth Amendment.               The general cases cited by the

Commonwealth would then govern for purposes of determining whether a constitutional

7
        But see United States v. Deluca, 269 F.3d 1128 (10th Cir. 2001) (requiring a
passenger to demonstrate a factual nexus between the illegality and the challenged
evidence following a vehicle stop). As evidenced by the other federal appellate
decisions, the Deluca rule is not widely accepted or applied. As the Third Circuit
explained in Mosley, the initial traffic stop in Deluca was legal. It was only the detention
of the passenger following the legal stop that was at issue. Deluca’s “factual nexus” test
is “relevant only to situations in which the initial traffic stop is legal.” Mosley, 454 F.3d at
255. We agree with Mosley, and decline to impart a “factual nexus” test to the facts at
issue herein, which are distinguishable from those in Deluca.



                             [J-16A-2017 and J-16B-2017] - 17
violation occurred. But the search of the vehicle in which Shabezz was a passenger is

not the constitutional incident upon which we must focus in this case. The constitutional

incident was the seizure, and that seizure was illegal. The only question, then, is the

remedy. Shabezz need not demonstrate a second constitutional violation, i.e. an illegal

search, to obtain suppression.         He must demonstrate only that the evidence was

obtained by police exploitation of the illegality. Despite the Commonwealth’s assertions

to the contrary, the Fourth Amendment does not require anything more before the

subject of an illegal seizure is entitled to suppression.

                                              IV.

       All that remains is the application of the fruit of the poisonous tree doctrine.

Evidence constitutes fruit of the poisonous tree, and must be suppressed, if it was

obtained by “exploitation” of the illegality, see Wong Sun, 371 U.S. at 486, and so long

as the taint of that illegality has not been purged. The exploitation inquiry is readily

satisfied. Shabezz was a passenger in a vehicle that was blocked in by numerous

police vehicles. The police seized the vehicle, proceeded to search it, and uncovered

contraband. The search occurred very shortly after the police prevented the vehicle

from leaving the lot and arrested the four individuals. The discovery of contraband was

a direct and immediate consequence of the seizure, and, thus, was an “exploitation” of

the constitutional violation.

       The record is devoid of any indicia that the taint of the illegal seizure was

removed before the police searched the car and found evidence. None of the traditional

circumstances that have been found to purge the taint of an unconstitutional act, i.e.

attenuation, inevitable discovery, independent source, or some intervening act or event,

see Mosley, 454 F.3d at 269, are present in this case. The search occurred minutes

after the seizure, a lapse in time short enough to leave no viable argument that the




                                [J-16A-2017 and J-16B-2017] - 18
search was sufficiently attenuated from the seizure so as to purge the taint of the initial

illegality. Additionally, although Shabezz briefly fled the scene and was chased by two

officers, other officers remained with the vehicle and commenced the search

immediately upon Shabezz’ return to the scene. Nothing about Shabezz’ brief flight

from the scene broke the direct causal chain between the illegal seizure and the search

of the vehicle.

       Similarly, the flight itself was insufficient to purge the taint of the initial illegality.

The flight was brief. Shabezz was apprehended within a few blocks of the 7-11 lot. A

minimal amount of time passed between the seizure and Shabezz’ subsequent

apprehension. Those two events were not sufficiently attenuated from one another so

as to break the chain of events flowing directly from the initial seizure. Flight, standing

alone, does not ipso facto cure the illegality of a seizure. Indeed, in Wong Sun, co-

defendant James Wah Toy fled from the police; the Supreme Court held that Toy’s flight

was insufficient to preclude application of the exclusionary rule. Wong Sun, 371 U.S.

482-84.

       Consequently, all of the evidence found in the vehicle, and the evidence found on

Shabezz’ person, was a direct product, and, hence, an exploitation, of the initial

illegality. The trial court and the Superior Court correctly concluded–albeit for slightly

different reasons–that the entire bounty of evidence had to be suppressed under Wong

Sun, and that no independent assessment of Shabezz’ expectation of privacy was

necessary before reaching this conclusion.

       We affirm the Superior Court’s order, and we remand this case to the trial court

for further proceedings consistent with this opinion.

       Chief Justice Saylor and Justices Todd, Donohue and Dougherty join the opinion.

       Justice Mundy files a concurring opinion in which Justice Baer joins.




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