Com. v. Brown

• Decision Date: 25 January 1995
• Citation: Com. v. Brown, 654 A.2d 1096, 439 Pa.Super. 516 (Pa. Super. Ct. 1995)
• Parties: COMMONWEALTH of Pennsylvania v. Timothy BROWN, Appellant.
• Court: Pennsylvania Superior Court

Page 1096

654 A.2d 1096

439 Pa.Super. 516

COMMONWEALTH of Pennsylvania v. Timothy BROWN, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 3, 1994.

Filed Jan. 25, 1995.

Bernard L. Siegel, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com.

Before OLSZEWSKI, DEL SOLE and BECK, JJ.

BECK, Judge:

The single issue in this case concerns the authority of police to order a passenger out of a car stopped for a traffic violation. We hold that an officer, when making a lawful stop of a motor vehicle, may order the occupants out of the car despite the lack of a reasonable suspicion that the passengers are engaged in criminal activity.

The testimony presented at trial established the following. Appellant Timothy Brown was employed at a Dunkin' Donuts store located in the Fox Chase area of Philadelphia. Sometime in October, 1991 appellant quit his job and then encountered difficulty in getting money he claimed the store owed him as a final paycheck. After speaking with the manager and being told that no money was due him, appellant suggested to two of his friends, Theodore Burns and Rodney Burns, that they rob the store. Appellant explained that the robbery should take place on a Sunday night since at that time the entire weekend's receipts would be in the store safe.

The Burns brothers agreed and the three men arrived at the store in the early morning hours on November 11, 1991 armed with three guns, a crowbar to open the safe and duct tape to bind the store's employees. In order that he not be recognized, appellant waited outside while Theodore and Rodney Burns entered the store. The men drew their weapons on the two employees and one patron inside and ordered them to the rear of the store. After robbing them, the men taped their mouths and hands and forced them into a freezer. Once the employees were out of sight, Rodney opened the back door to let appellant inside. At that point a customer, Stephen Rivel, entered the store. He was taken at gunpoint to the rear of the store where he struggled with his captors. Rivel was shot several times in the legs, then his shirt was pulled up over his head and he was shot again, a single, fatal bullet to the back of his head. After taking whatever valuables could be found from the body, the men left Rivel on the floor by a drain in the back of the store.

The three then set about opening the safe and removed from it all of the weekend's cash. They also emptied the cash register and fled in the car they had driven to the store. Within minutes, the employees freed themselves, exited the freezer and found Rivel's body. They immediately called police. Philadelphia Police Sergeant James Owens heard the police radio broadcast of the crime which reported that two black males had committed a murder at the Dunkin' Donuts and fled on foot. Owens, who knew the location of the store and knew that he would not be the first officer on the scene, decided to approach the area via Rising Sun Avenue, figuring this road to be a likely escape route should the men be in a vehicle.

Two and one half miles from the scene of the crime and within four minutes of receiving the radio call, Owens observed an automobile headed away from the Dunkin' Donuts on Rising Sun Avenue. In the car he saw two black males. He was suspicious about the vehicle and noted that there appeared to be a lot of activity going on inside it. The windows were fogged to such a degree that Owens could barely see the occupants in the front seat and could observe nothing in the back seat. Owens turned his car around to begin following the vehicle in hopes of gaining more information about the crime over his radio. He then noticed that the car did not have a proper license tag and had only a piece of paper attached to the rear window.

Because of the motor vehicle violation he observed, Owens put on his lights, ordered the car to stop and called for back-up. Rodney Burns, the driver, obeyed the officer's command and pulled the car to the side of the road. Owens approached the driver and requested his license and registration. Rodney could produce neither and was ordered out of the car. At that point another police vehicle arrived and Owens directed Rodney to the rear of the car, went around to the passenger side and ordered the front seat passenger, Theodore Burns, out of the vehicle. At this point, Owens noticed for the first time that another black male, appellant, was seated in the back of the car. Owens asked his fellow officers to attend to Theodore and Rodney Burns while he ordered appellant from the car. After appellant exited the vehicle, Owens saw on the back seat a Dunkin' Donuts bag with money sticking out of it. He reached into the vehicle to retrieve the bag and when he leaned on the back seat, the entire seat came forward and exposed what lay underneath: three guns and a trash bag filled with Dunkin' Donuts bags, money, coupons and a women's purse. ¹ Owens informed the other officers that he found the weapons; the car's occupants were then arrested.

A further search of the car yielded a crowbar, a hammer and duct tape. Identification in the purse revealed that it belonged to one of the Dunkin' Donuts employees. All three men were transported by police to the store where they were identified by the victims of the crime. At the police station, each suspect gave a statement admitting to his involvement in the crime. The only material discrepancy in the statements was who fired the shot into Stephen Rivel's head, causing his death. The three men were charged with murder, robbery and related offenses and were tried together before a jury. Each was found guilty of second degree (felony) murder, as well as the robberies of the store, the employees and the patron. In this timely appeal by appellant only, he raises a single issue for our review, namely, whether the trial court erred in failing to suppress the evidence discovered by Sergeant Owens.

Appellant has advanced a clear and concise statement of the issue on appeal. He does not question the officer's authority to stop the vehicle in which he was riding nor does he claim that the driver of the car should not have been ordered to alight from the vehicle. Appellant's sole basis for challenging Sergeant Owens's actions is his alleged lack of authority to order appellant, a passenger, out of the car. Lacking probable cause to arrest or an articulable suspicion of criminal activity, appellant argues, police cannot command a passenger to exit a vehicle where the only lawful reason the car has been stopped is a violation of the traffic code. Since all the evidence recovered from the car resulted from Owens's observation after appellant got out of the car, all of it should have been suppressed as fruit of the illegal order to leave the vehicle.

We begin our review by first noting what is not before us. The argument advanced by appellant could be made under either the Fourth Amendment to the United States Constitution or Article I, Section 8 of the Pennsylvania Constitution, both of which prohibit unreasonable searches and seizures. Despite appellant's vague attempts to argue that his position "stands as the established rule of law in Pennsylvania," he simply has not presented to this court an argument based on our state constitution.

All of the cases relied on by appellant were decided under the Fourth Amendment, not Article I, Section 8. Indeed, there simply is no authority for appellant's position that is based on state constitutional principles. Our only source of analogous case law is rooted in federal constitutional principles. In the absence of state constitutional authority, appellant must convince this court to consider and interpret Article I, Section 8 in a manner different than the United States Supreme Court's analysis of the Fourth Amendment.

Our supreme court has made it clear that where a litigant seeks to depart from federal constitutional interpretation or precedent on the basis of a state constitutional principle, or seeks to extend the state constitution beyond that which has been decided with regard to a parallel provision of the federal constitution, he or she must satisfy the requirements set forth in Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991). ²

Here, appellant simply has not satisfied the mandates of Edmunds, even to a minimum degree, and his failure to do so results in waiver of the state constitutional claim. Commonwealth v. Lucas, 424 Pa.Super. 173, 622 A.2d 325 (1993), appeal denied, 537 Pa. 648, 644 A.2d 733 (1994). ³ Therefore, our decision today focuses solely on the federal constitution and our analysis reflects only Fourth Amendment law.

As stated previously, the single issue on appeal is the trial court's denial of suppression based on the legal conclusion that Sergeant Owens acted properly in ordering appellant from the car. Appellant contends that this conclusion was an error of law which must be reversed by this court. Clearly, our review extends to all legal conclusions made by a suppression court. Commonwealth v. Brundidge, 533 Pa. 167, 620 A.2d 1115, 1116 (1993) (one of appellate court's responsibilities is to review suppression court's legal conclusions).

Appellant insists that the controlling case in this matter is Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973). In Pollard, the appellant was a passenger in a car which was pulled over for failing to stop at a red light. The passenger/appellant was ordered from the car and when he complied, a white packet containing drugs dropped from his hand. He was placed under arrest and ultimately found guilty of possession of narcotics. With respect to the validity of the order that appellant exit the vehicle, the Commonwealth argued that the police officer's actions were justified as an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Our supreme court disagreed...