Comm. v. Arrington, 2020 PA Super 138 (June 9, 2020)

 Out of Allegheny County. In a 2-1 opinion, the Superior Court reversed the trial court’s order denying suppression of firearms and drugs recovered from the search of Arrington’s vehicle.  The long and short of the facts were this.

Police officers observed Arrington’s vehicle driving toward them in their lane of travel for a few seconds at 2 a.m. in a high-crime area of Pittsburgh.  The police pulled Arrington over suspecting that he was driving under the influence. Upon approach, the officers observed Arrington show signs of intoxication, so they removed him from the vehicle, conducted a pat-down search, placed him in handcuffs, and one officer supervised him at the rear of his vehicle.  In the meantime, the police ran Arrington’s name in their computer and discovered that he had a revoked concealed-carry permit, which prompted the officers to ask Arrington if he was in possession of any weapons.  He denied that he was, but police searched the passenger compartment nonetheless.  Inside they discovered a handgun and then learned that the handgun was stolen. Consequently, the police conducted a second search of the vehicle and this time they found drugs and other contraband.

Arrington challenged the stop and the search of his vehicle. What came out at the suppression hearing, and what the trial court relied upon to deny suppression (according to the Superior Court) was this:

(1)Arrington’s vehicle was not in park when the officers approached; (2) Arrington did not immediately comply when the officers asked him to place his vehicle in park; (3) Arrington was ‘staring around’ and was nonresponsive to commands; (4) Arrington was ‘reaching around’ in the vehicle in a slow and deliberate manner; and (5) [one of the officers] testified that Arrington’s actions were indicative of intoxication or nervousness.

All of this in conjunction with the fact that Arrington’s vehicle was stopped at night in a high-crime area led the trial court to find that the officers had “reasonable suspicion to search Arrington’s vehicle for a weapon.”  But the Superior Court disagreed.  It explicitly stated: “We disagree that these factors support reasonable suspicion that Arrington was in possession of a firearm.”

After comparing several of its prior cases where it had both affirmed and reversed trial court rulings concerning protective sweeps of vehicles, the Superior Court analogized the facts of this case to “align more closely” with those cases where it had held protective sweeps to be improper.  Here’s a partial excerpt of the Court’s reasoning on that point:

[T]his Court in Commonwealth v. Cartagena, 63 A.3d 294 (Pa. Super. 2013), found that an officer lacked reasonable suspicion to conduct a warrantless search of a vehicle where (1) the stop occurred at night, (2) the defendant’s vehicle had tinted windows, and (3) the defendant appeared “extremely nervous.” Id. at 304. The Cartagenacourt noted that there was no testimony indicating that the defendant had made furtive movements, that the stop occurred in a high-crime area, or that the police saw any weapons in the vehicle prior to conducting the search. Id. at 304- 06; see also Commonwealth v. Moyer, 954 A.2d 659, 669-70 (Pa. Super. 2008) (holding that evidence that a vehicle’s occupants engaged in furtive movements and appeared nervous was insufficient to establish reasonable suspicion); Commonwealth v. Reppert, 814 A.2d 1196, 1206 (Pa. Super. 2002) (same).

The circumstances that supported reasonable suspicion in Rosa, Buchert, Simmons, In re O.J.,andMurrayare mostly absent here. The facts before us align more closely with those in Cartagena, Moyer, and Reppert.Although the stop occurred late at night and in a high-crime area, Arrington was able to produce his driver’s license and the car’s rental agreement; the officers did not observe any weapons in plain view; Arrington did not display extreme nervousness; and Arrington made no furtive movements. Indeed, the sole factors in support of reasonable suspicion were that the stop occurred at night, and in a high-crime neighborhood.

 The Superior Court went on to note that while it was mindful that it must “view facts not in isolation but in light of the totality of the circumstances,” it emphasized, as part of its analysis, that “Arrington was in handcuffs, positioned at the rear of his vehicle, out of reach of the passenger compartment, and being supervised by [officers],” thus “pos[ing] no threat to the officers’ safety.

Accordingly, the Superior Court concluded that the officers “lacked reasonable suspicion to conduct a protective weapons search of Arrington and the passenger compartment of the vehicle.”  And because that first illegal search motivated the officers second search, that search too was unlawful, and the fruits of that search required suppression. (As an aside, the Superior Court did hold that the stop of Arrington’s vehicle in the first instance was lawful.  The analysis of that issue, while brief, is an important one as it bears upon the issue of “momentary and minor” violations of the Vehicle Code.)

Apart from the merits analysis of the suppression issue, the case also is  interesting as it fleshes out the question of “whether Arrington had a privacy interest in the area searched.”  At the suppression hearing evidence came out that the car Arrington was in was rented, but not until the trial was it revealed that Arrington himself was the renter. This is what prompted Judge Bowes’s dissent.  She made this point:

First, I disagree with the Majority’s decision to reach the substantive suppression issues without first considering whether Appellant had established a reasonable expectation of privacy in the contents of the vehicle. It is well- established that before we may proceed to a determination of an appellant’s substantive suppression claim, we must first discern whether Appellant has established standing to challenge the search and a privacy interest in the area searched. SeeCommonwealth v. Burton, 973 A.2d 428, 434-35 (Pa.Super. 2009).

Our Supreme Court has emphasized that these are distinct analyses:

While curiously similar, standing and privacy interest 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 of the United States Constitution or Article 1, Section 8 of the Pennsylvania Constitution. It ensures a defendant is asserting a constitutional right of his own. 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. 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, he must, in short, have brought his claim, demonstrate its merits by a showing of his reasonable and legitimate expectation of privacy in the premises.

See Commonwealth v. Enimpah, 106 A.3d 695, 698-99 (Pa. 2014) (citations and quotations omitted).

Since Appellant was charged with a possessory offense, he automatically had standing to challenge the suppression of the items seized. See Commonwealth v. Viall, 890 A.2d 419, 421 (Pa.Super. 2005).

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However, it was never revealed to whom the vehicle was leased.  [Arrington] did not testify or otherwise offer any evidence establishing that he was the lessee of the vehicle or the he had the lessee’s permission to operate it. Instead, the sole testimony about the ownership of the car came from [the officer], who explained that the vehicle was a leased car, but that he did not know to who the vehicle was leased.

The Majority, in a footnote, responded to Judge Bowes’s dissent with this analysis:

At the suppression hearing, the Commonwealth bore the initial burden of production – i.e., the burden of producing evidence that Arrington lacked a protected privacy interest in the vehicle. See Commonwealth v. Enimpah, 106 A.3d 695, 700-01 (Pa. 2014) (holding that before the defendant must prove a privacy interest in the area searched, the Commonwealth must initially satisfy its burden of production by presenting evidence showing that the defendant lacked any protected privacy interest; where the Commonwealth fails to bear this initial burden, the burden never shifts to the defendant to prove his privacy interest).

Here, because the Commonwealth never produced evidence showing that Arrington lacked a protected privacy interest, the burden never shifted to Arrington to rebut that evidence. See Enimpah, supra.To be sure, and as noted in the dissent, the Commonwealth presented evidence that Arrington’s vehicle was a rental, and Officer Macioce was not sure who had rented the vehicle. See N.T., 2/14/18, at 15, 34-35, 37, 39-40. However, Officer Macioce did not state that the vehicle was not rented by Arrington, or that Arrington otherwise lacked the authority to operate the vehicle. See, e.g., Commonwealth v. Maldonado, 14 A.3d 907, 911-12 (Pa. Super. 2012). Nor did the Commonwealth challenge Arrington’s privacy interest in the vehicle. See Enimpah, supraat 701 (stating that “[t]he Commonwealth may concede the privacy interest, choosing to contest only the legality of police conduct; if it does so, the defendant’s ‘reasonable expectation of privacy’ need not be established.”). As a result, Arrington’s burden of persuasion was never triggered, see id.; this issue was never raised; and it would be improper for us to address it on appeal. See Johnson, supra.

Personal note: On the privacy-interest issue, I think the Majority has the better of the argument, particularly in the light of the United States Supreme Court’s holding in Byrd v. United States, 138 S. Ct. 1518, 1524 (2018) (holding that “as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.”) However, Judge Bowes’s dissent addressed another point that I find persuasive and I tend to agree with, and which I ultimately believe will necessitate a rehearing in this case en banc or allocator being granted in the Pennsylvania Supreme Court.  Judge Bowes notes that in reaching its conclusion the Majority failed to apply the proper standard of review. She charges the Majority with substituting “its own evaluation of the credibility” of one of the officers.  I think that point is evident given this finding by the trial court, which the Majority seemingly sidesteps throughout its analysis—that finding being: (4) Arrington was ‘reaching around’ in the vehicle in a slow and deliberate manner.  If the trial court found that fact—which I believe is what qualifies as a “furtive movement”—it’s hard to see how the Superior Court can then say that “the sole factors in support of reasonable suspicion were that the stop occurred at night, and in a high-crime neighborhood.” Certainly those were not “the sole factors.”  And for that reason I believe this opinion—while a good one for the defense—will be short lived. I’d love to be wrong, of course. (Practitioners should be careful to note, too, that Arizona v. Gant, 556 U.S. 332 (2009) isn’t implicated since seemingly the parties were not arguing over the search-incident-to-arrest doctrine; they seemingly were focused on protective sweeps of vehicles justified under Michigan v. Long, 463 U.S. 1032 (1983).  A big kudos to the Allegheny County Public Defender’s Office, who argued this case.)