J-S33021-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                   Appellant             :
                                         :
           v.                            :
                                         :
JESSICA ROGERS,                          :
                                         :
                   Appellee              : No. 1402 EDA 2014

                      Appeal from the Order May 2, 2014,
                  Court of Common Pleas, Philadelphia County,
                Criminal Division at No. CP-51-CR-0011426-2013

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and LAZARUS, JJ.

MEMORANDUM BY DONOHUE, J.:                            FILED JUNE 23, 2015

     The Commonwealth appeals from the orders entered on April 3, 2014

and May 2, 2014 in the Court of Common Pleas, Philadelphia County,

granting the motion to suppress evidence filed by defendant, Jessica Rogers

(“Rogers”). For the reasons set forth herein, we reverse.

     A brief summary of the factual and procedural history is as follows.

           On July 13, 2013, at approximately 7:00 p.m.
           [Rogers] was a front seat passenger in a vehicle that
           was stopped because of excessive tint on its
           windows. The vehicle pulled over to the side of the
           street; it was not obstructing traffic. The vehicle had
           five occupants: [Rogers], two other adults, and two
           children.    Three officers approached the vehicle.
           Officer [Michael] Berkery approached the vehicle
           from the driver’s side and knocked on the window.
           Both the driver, Wallace Kid, and [Rogers] the front
           seat passenger, rolled down their windows. Mr. Kid
           informed Officer Berkery that he did not have a valid
           driver’s license. Officer Berkery observed pill bottles
           at [Roger]’s feet. Officer Berkery asked [Rogers] if
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            the pill bottles belonged to her. She answered in the
            affirmative and handed him a prescription pill bottle
            that had her name on it. Officer Berkery then asked
            [Rogers] if there was anything else he needed to
            know for his safety. [Rogers] informed him that she
            had Suboxone in her purse.             [Rogers] was
            cooperative during the exchange and provided the
            requested information. [Rogers] motioned her hand
            in front of the glove box. Officer Berkery told Officer
            [Ryan] Pownall to “just watch her hands.” [Rogers]
            was not observed touching the glove box.

            Officer Berkery removed Mr. Kid from the vehicle and
            Officer Pownall removed [Rogers] from the vehicle.
            They were both taken to the rear of the vehicle and
            Officer [Sean] Quinn recovered a black handgun
            from the glove box. [Rogers] gave Officer Berkery
            the Suboxone from her purse. There were 22 tablets
            individually wrapped in thin metal wrappers bound
            together with a rubber band. [Rogers] did not have
            a prescription for the Suboxone.

Trial Court Opinion, 11/7/14, at 2-3 (citations omitted).

      Rogers was charged with firearms not to be carried without a license,

18   Pa.C.S.A.   §   6106(a)(1),   knowingly   or   intentionally   possessing   a

controlled substance, 35 P.S. § 780-113(a)(16), carrying firearms on public

streets or public property in Philadelphia, 18 Pa.C.S.A. § 6108, possessing

instruments of crime with intent to employ it criminally, 18 Pa.C.S.A. §

907(a), and endangering the welfare of children, 18 Pa.C.S.A. § 4304(a)(1).

At a preliminary hearing held on September 10, 2013, the trial court

dismissed the possessing instruments of crime and endangering the welfare

of children charges. N.T., 9/10/13, at 22.




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      On April 1, 2014, Rogers filed a motion to suppress all physical

evidence seized by police and all of Rogers’ statements made to police,

claiming that the police conducted a warrantless search of the vehicle

without reasonable suspicion or probable cause. On April 3, 2014, after a

suppression hearing, the trial court granted Rogers’ motion to suppress the

firearm. The trial court held another suppression hearing on May 2, 2014

and granted Rogers’ motion to suppress her written statements, but declined

to suppress Rogers’ oral statements.

      On May 5, 2014, the Commonwealth filed an appeal challenging the

trial court’s suppression orders. The Commonwealth simultaneously filed a

statement of errors complained of on appeal pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure, presenting two issues for our

review:

           I. Did the lower court err in suppressing a gun found
           in the glove compartment of a van in which [Rogers]
           was the front seat passenger where (a) [Rogers]
           failed to prove a reasonable expectation of privacy in
           the van; and (b) the police had a reasonable basis
           for conducting a protective search of the vehicle for
           weapons?

           II. Did the lower court err in suppressing [Rogers’]
           later written statement regarding the gun on the
           ground that the gun itself had been illegally seized?

Commonwealth’s Brief at 4.

      Our standard of review of a ruling on a suppression motion is well

settled:



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            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. Carter, 105 A.3d 765, 768 (Pa. Super. 2014) (en banc)

(quoting Commonwealth v. Miller, 56 A.3d 1276, 1278-79 (Pa. Super.

2012) (citations omitted), appeal denied, 70 A.3d 810 (Pa. 2013)).

      For its first issue on appeal, the Commonwealth asserts that the trial

court erred in suppressing the gun found in the glove compartment because

Rogers failed to establish that she had a reasonable expectation of privacy in

the vehicle “and in particular[,] the glove compartment where the gun was

found.”   Commonwealth’s Brief at 13.     After our review of the record and

relevant case law, we agree.

      This Court has held that “[a] defendant moving to suppress evidence

has the preliminary burden of establishing standing and a legitimate

expectation of privacy.” Commonwealth v. Maldonado, 14 A.3d 907, 910

(Pa. Super. 2011) (quoting Commonwealth v. Burton, 973 A.2d 428, 435

(Pa. Super. 2009) (en banc)).

            Standing requires a defendant to demonstrate one of
            the following: (1) his presence on the premises at



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             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: generally
             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.

Maldonado, 14 A.3d at 910-11 (quoting Burton, 973 A.2d at 435 (citations

omitted)).

     In this case, Rogers has established automatic standing to challenge

the search because she was charged with possessory offenses. Id. We are

left, therefore, to consider whether she had a legitimate expectation of

privacy 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




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            reasonable in      light   of    all   the   surrounding
            circumstances.

Burton, 973 A.2d at 435 (quoting Commonwealth v. Jones, 874 A.2d

108, 118 (Pa. Super. 2005)).

     With regard to an automobile passenger’s expectation of privacy, this

Court has held that

            Much as a visitor would not have a legitimate privacy
            interest in the entire area of another’s home absent
            circumstances indicating otherwise, an ordinary
            passenger in an automobile does not by his mere
            presence have a legitimate expectation of privacy in
            the entire passenger compartment of that vehicle.
            While passengers in an automobile may maintain a
            reasonable expectation of privacy in the contents of
            luggage they placed inside an automobile, it would
            be unreasonable to maintain a subjective expectation
            of privacy in locations of common access to all
            occupants.

Commonwealth v. Viall, 890 A.2d 419, 423 (Pa. Super. 2005) (citations

omitted).

     In the instant case, the trial court held that Rogers “rightfully

possessed a reasonable expectation of privacy in the automobile as a

passenger who was cooperative and forthcoming with the police.”        Trial

Court Opinion, 11/7/14, at 5.          The trial court found that the glove

compartment was not an area of common access, stating,

            The weapon was not found on the floor or seat,
            where any occupant could access it … The glove
            compartment certainly cannot be considered an area
            of common access where the other occupants can
            see inside. In fact, items such as car insurance



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            papers, registration, or things deemed to be of value
            are often placed inside the glove compartment in
            order to be hidden and protected from the wandering
            eyes of others.

Id. The trial court’s determination in this regard was in error.

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

Court determined that a passenger that did not own or operate the vehicle in

which he was a passenger, did not have a privacy interest in the vehicle.

Id. at 1107-08. In that case, the defendants, Raymond Powell and Clayton

Solomon, were traveling in a vehicle that police officers stopped for a vehicle

code violation. Id. at 1099. At the time, Solomon was driving the vehicle

and Powell was a passenger in the front seat.       Id.   Neither Solomon nor

Powell owned the vehicle. Id. The officers ultimately searched the vehicle,

which resulted in the seizure of contraband from the trunk of the vehicle.

Id. at 1100, 1103. After the suppression court granted Powell’s motion to

suppress the evidence, the Commonwealth appealed.

      On appeal, this Court determined that the suppression court erred in

granting Powell’s motion to suppress the evidence because Powell had no

privacy interest in the vehicle since “the [vehicle] was registered to a third

person, Solomon was operating it, and Powell had no connection to the

vehicle whatsoever.” Id. at 1107-08. In reaching its decision, the Powell

Court relied upon federal jurisprudence, specifically, Rakas v. Illinois, 439

U.S. 128 (1978), wherein the United states Supreme Court found that the




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defendant did not have “a legitimate expectation of privacy in the glove

compartment or area under the seat of the car in which [he] was merely [a

passenger].” Powell, 994 A.2d at 1107 (quoting Rakas, 439 U.S. at 149).

The Rakas Court held that “these are areas in which a passenger qua

passenger simply would not normally have a legitimate expectation of

privacy.” Id. As a result, the Powell Court concluded, “Because Powell did

not establish that his personal privacy rights were violated, he cannot prevail

in his attempt to suppress the contraband found by the police in this case.”

Powell, 994 A.2d at 1108.

      Powell is indistinguishable from this case. Rogers has not established

that she had a reasonable expectation of privacy, as there is no evidence of

record to establish Rogers’ connection to the vehicle. To the contrary, the

uncontradicted evidence of record establishes that Rogers was a passenger

in the front seat of the vehicle, driven by Wallace Kid (“Kid”). N.T., 4/3/14,

at 18. Neither Kid nor Rogers owned the vehicle. Id. at 22. Thus, there is

no evidence to establish Rogers’ connection to the owner of the vehicle or to

demonstrate her proprietary or possessory interest in the vehicle.

      The trial court found that Rogers “exhibited a reasonable expectation

of privacy as the passenger in the automobile because she was seated in

front of the glove compartment,” and that “[t]he glove compartment

certainly cannot be considered an area of common access.”            Trial Court

Opinion, 11/7/14, at 5. Our case law establishes, however, that it is “the



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lack of any ownership or other proprietary or possessory interest in the

vehicle … that result[s] in a finding of an absence of a reasonable

expectation of privacy.” Commonwealth v. Caban, 60 A.3d 120, 130 (Pa.

Super. 2012). Therefore, as the record reflects that Rogers failed to produce

evidence to establish her personal privacy interest in the vehicle, such that

her personal privacy rights were implicated when police seized the evidence

from the vehicle, we conclude that the trial court erred in its determination

that Rogers had a reasonable expectation of privacy in the vehicle.1

Accordingly, the trial court erred in granting Rogers’ suppression motion. 2



1
   We note that the trial court also provides that “In the alternative … the
suppression of the gun remains valid because the Commonwealth failed to
establish a possessory connection between [Rogers] and the gun.” Trial
Court Opinion, 11/7/14, at 6 (citing Commonwealth v. Millner, 888 A.2d
680 (Pa. Super. 2005)). As the Commonwealth states in its brief, the trial
court’s reliance on Millner is misplaced as Millner establishes that there is
no authority for the proposition that the Commonwealth has a “preliminary
suppression burden to ‘connect’ appellee to the firearm before appellee had
to show that his own rights were implicated by its seizure[.]” Id. at 693.
The Millner Court provided,

            In a case involving a possessory charge such as this
            one, it is true that the Commonwealth will not prevail
            at trial unless it can prove that appellee possessed
            the firearm.      It may also be that appellee will
            challenge whatever evidence the Commonwealth
            musters at trial to prove appellee’s “connection” to
            the firearm. But, nothing in existing jurisprudence,
            law, or even logic obliged the Commonwealth to
            “prove” that fact at the outset of the suppression
            hearing, before it could object to appellee seeking
            the suppression of a firearm based upon a seizure
            which did not implicate his own constitutional rights.



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       For its second issue on appeal, the Commonwealth argues that the

trial court erred in suppressing Rogers’ written statements regarding the

gun.   Commonwealth’s Brief at 42.    The trial court found this issue to be

without merit based on its determination that “the gun in the glove

compartment was seized unlawfully therefore the subsequent questioning

and statement given by [Rogers] was also unlawfully obtained.” Trial Court


Id. As Rogers has not established a personal privacy interest, we conclude
that her rights were not implicated by the seizure of the gun. Accordingly,
the Commonwealth was not required to establish a possessory connection
between Rogers and the gun.
2
     The Commonwealth further argues that “[e]ven if [Rogers] had
demonstrated a reasonable expectation of privacy in the van and, in
particular, in the van’s glove compartment,” the search of the glove
compartment was not improper as it was conducted as part of a “limited and
lawful protective search of the vehicle for weapons.” Commonwealth’s Brief
at 13, 25. We agree. Officer Berkery had reasonable suspicion “based on
specific and articulable facts” that Rogers may gain immediate control of a
weapon located in the glove compartment.           See Commonwealth v.
Morris, 644 A.2d 721 (Pa. 1994); Michigan v. Long, 463 U.S. 1032
(1983). The traffic stop occurred at night, in a high crime area that Officer
Berkery previously made “[n]umerous narcotics and VUFA arrests for
firearms violations.” N.T., 4/3/14, at 30. Neither Kid nor Rogers owned the
vehicle. Id. at 22. Rogers admitted to possessing a controlled substance
without a prescription. Id. at 23-24. As Officer Berkery removed Kid from
the car, he witnessed Rogers move her hand towards the glove
compartment. Id. at 20. Based on a totality of the circumstances, we
conclude that the officers had reasonable suspicion to justify a limited
protective search. See Commonwealth v. Boyd, 17 A.3d 1274, 1275 (Pa.
Super. 2011) (holding that the search of a center console was valid because
police acted “based upon a reasonable suspicion that the defendant may
have placed a weapon therein,” based upon “a single movement over the
center console as police approached the car, it was night, and the area was
marked by drug and criminal activity.”); see also Commonwealth v.
Tuggles, 58 A.3d 840 (Pa. Super. 2012). The officers limited their search
to the area where Rogers was observed reaching towards. Accordingly, the
protective search of the glove compartment was constitutionally permissible.


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Opinion, 11/7/14, at 9. The trial court rested its conclusion on the “fruit of

the poisonous tree” doctrine, which “excludes evidence obtained from, or

acquired as a consequence of, lawless official acts.”           Id. (quoting

Commonwealth v. Brown, 700 A.2d 1310, 1318 (Pa. Super. 1997)).

      As we discussed in our analysis of the Commonwealth’s first issue,

Rogers has not established that any “lawless official acts” occurred in this

case, as the police did not violate any reasonable expectation of privacy in

the search of the glove compartment. As such, the “fruit of the poisonous

tree” doctrine has no application to any evidence obtained as a result of that

search. See Commonwealth v. Johnson, 68 A.3d 930, 946 (Pa. Super.

2013) (“A fruit of the poisonous tree argument requires an antecedent

illegality.”); see also Commonwealth v. Torres, 764 A.2d 532, 544 (Pa.

2001).   We therefore must also reverse the trial court’s grant of Rogers’

motion to suppress the written statements regarding the gun and remand

this case for further proceedings.

      Orders reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2015




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