Com. v. Millner

• Decision Date: 28 December 2005
• Citation: 888 A.2d 680
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Jason MILLNER, Appellee.
• Court: Pennsylvania Supreme Court

888 A.2d 680

COMMONWEALTH of Pennsylvania, Appellant v. Jason MILLNER, Appellee.

Supreme Court of Pennsylvania.

Submitted October 7, 2004.

Decided December 28, 2005.

COPYRIGHT MATERIAL OMITTED

Hugh J. Burns, Philadelphia, Michael Lee Erlich, for the Com. of PA, appellant.

Sheryl Stern Chernoff, Philadelphia, for Jason Millner, appellee.

BEFORE: CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice CASTILLE.

This Court granted review to consider the Commonwealth's claim that the lower courts improperly ordered the suppression of a firearm that police seized following a warrantless entry into a vehicle in which appellee had no reasonable expectation of privacy. Because we hold that the seizure of the firearm did not violate appellee's constitutional rights under the Fourth Amendment and/or Article I, Section 8 of the Pennsylvania Constitution, we reverse the order of the Superior Court to the extent that it affirmed the suppression of the firearm in question.¹

The prosecution in this case arose from appellee's early morning arrest on September 20, 2000, in West Philadelphia. Appellee was charged with one count each of possession of a controlled substance and possession with intent to deliver a controlled substance (cocaine), and two firearms offenses. Appellee filed a motion to suppress evidence, alleging that the drugs and the firearm which formed the basis for the prosecution were illegally seized, "without ... warrants and without probable cause to do so, and not incident to a lawful arrest and without the consent of [appellee]." A hearing on the motion was held on April 3, 2002 before the Honorable Peter F. Rogers.

At the outset of the suppression hearing, appellee asserted the grounds for suppression as follows: "police were without probable cause to conduct a search of [appellee's] person..., and conduct a search of the automobile in which a gun was found." N.T., 4/3/02, 3. The Commonwealth responded by calling Philadelphia Police Officer Ernest Miller, who testified that on September 20, 2000, at approximately 2:25 a.m., he and his partner, Officer Malik Abdulhadi, were on routine patrol in their unmarked police vehicle in the area of 53rd and Delancey Streets in West Philadelphia, when they heard gunshots nearby. Officer Miller contacted the police dispatcher and inquired whether there were reports of gunfire in the area. Officer Miller continued driving west when, approximately two minutes later, the dispatcher confirmed that gunfire had been reported at 53rd Street and either Irving or Delancey Street. Officer Miller drove toward that location. As his cruiser turned the corner at 55th and Locust Streets, Officer Miller saw appellee and Steven Brown standing at the driver's side of a brown Cadillac Deville. Officer Miller then saw appellee placing a large hand gun into the back of the Cadillac, through the rear driver's side window. The officers stopped their vehicle, pulled out their badges, approached appellee and Brown and identified themselves as police officers. By that time, appellee and Brown had walked to the rear of the vehicle. When the officers identified themselves, appellee quickly closed the trunk of the vehicle and Brown threw a clear plastic bag to the ground. N.T., 4/3/02, 6-9.

Officer Miller testified that he then conducted a safety pat down of Brown and also retrieved the discarded plastic bag, which contained five small orange packets of what was later determined to be marijuana and six orange packets of what was later determined to be cocaine. Meanwhile, Officer Abdulhadi patted appellee down and recovered from his person 41 packets containing a white chunky substance which was later determined to be crack cocaine.² A search incident to appellee's arrest resulted in the seizure of $449 in cash from appellee's person. Officer Miller testified that, when asked to whom the narcotics belonged, appellee and Brown each named the other.

Officer Miller then held a now-handcuffed appellee and Brown off to the side of the vehicle, while Officer Abdulhadi retrieved the handgun, which was sitting in plain view inside a large, unzipped, multi-colored duffle bag on the backseat of the Cadillac. The firearm was identified as a .9 millimeter Cobra with 33 live rounds in the magazine and one in the chamber. Officer Miller also testified that there was nothing in the vehicle or gym bag that appeared to belong to or otherwise relate to appellee, that appellee did not have a key to the car, and that a record check of the Vehicle Identification Number revealed that the vehicle was not registered to appellee, but to "Jack somebody and Nancy Ayoub." N.T., 4/3/02, 11-13, 36-37.

Appellee elected to take the stand and relate his version of the arrest, which differed in significant respects from the police account. Appellee stated that he left his home at 54th and Cedar Streets in West Philadelphia at approximately 2:00 a.m. and met his friend, Darryl Parish, and another male, Kenny Parker, at 55th and Locust Streets, near a brown Cadillac. Shortly thereafter, Steven Brown exited his apartment on Locust Street and joined the others, who had planned to go to an "after hours spot." Parish and Parker walked up the street, leaving appellee and Brown talking near the Cadillac. Appellee testified that, at that point, a vehicle came around the corner toward them and parked so close that appellee could not go anywhere. Two men exited the vehicle with guns drawn and ordered appellee and Brown to lay face-down on the ground. Appellee testified that the men, who did not immediately identify themselves as police officers, searched his person while he lay in the street and retrieved money and narcotics from his pockets. The officers then handcuffed appellee and ultimately placed him in the police vehicle. It was only at that point that appellee saw Officer Abdulhadi remove the duffle bag from the back seat of the Cadillac, unzip the bag, pull out the handgun, and say, "Look what we have here." On cross-examination, appellee testified that the Cadillac was not his, and that it belonged to Parker. N.T., 4/3/02, 43-52.

After resting his case, appellee's counsel began arguing the lawfulness of the police conduct premised upon appellee's testimony, only to have the suppression court interrupt and state, "You can completely forget [appellee's] version and deal with the Commonwealth's evidence." Counsel complied and framed his legal argument in terms of the Commonwealth's evidence contending, with respect to the cocaine, that police lacked probable cause to search his client; and, with respect to the firearm, that police lacked probable cause to search the Cadillac, had no warrant, and lacked consent to search the vehicle. N.T., 4/3/02, 55-56. The Commonwealth responded first by addressing the seizure of the firearm, arguing that when a police officer views an object from a lawful vantage point, and the incriminating nature of that object is immediately apparent, a warrantless seizure is justified; and that, in any event, appellee had failed to show that he had an expectation of privacy in the Cadillac. N.T., 4/3/02, 58-60. In an extended exchange with the prosecutor, the suppression court indicated it was unconvinced with the government's argument respecting the firearm. Judge Rogers then interrupted the prosecutor before he could argue the legality of the personal search, announcing he was granting the motion as to both the cocaine and the firearm. N.T., 4/3/02, 63-64.

The suppression court did not make formal findings of fact on the record, nor did it state which of the divergent factual accounts it credited. With respect to conclusions of law, the court very briefly stated that it was ordering suppression of the drugs found on appellee's person because "that is a full blown search." With respect to the firearm, the court ordered suppression because the police searched the car without a warrant and appellee had "no obligation ... or burden to come forth and say that is my car." N.T., 4/3/02, 61-63.

The Commonwealth timely appealed to the Superior Court³ and filed a timely statement of matters complained of on appeal, alleging that appellee lacked a reasonable expectation of privacy in the vehicle; that the firearm seized was in plain view; and that the police acted upon both reasonable suspicion and probable cause. Some months later, on September 27, 2002, Judge Rogers filed an opinion in which he summarized the suppression testimony of all witnesses, noted the "total conflict" in the testimony, and then stated, for the first time, that he had "accepted the testimony of the defense, in large part, and rejected that of the Commonwealth." Trial court slip op. at 6.

In its legal analysis, the court then noted, with respect to the search of appellee's person and the seizure of his cocaine, that under the version of the arrest testified to by appellee, the police "had no lawful basis for even an `investigative detention' because there were no facts that would give rise to the level of a `reasonable suspicion.'" In the alternative, the court concluded that, under the Commonwealth's evidence, there was neither probable cause nor reasonable suspicion to support the police officers' actions. With respect to the seizure of the firearm from the Cadillac, the court discussed its understanding of warrantless vehicle searches, ultimately concluding that no exception to the warrant requirement applied. The court failed to address the Commonwealth's argument that appellee lacked an expectation of privacy in the Cadillac. Trial court slip op. at 14-17.

A unanimous panel of the Superior Court affirmed the suppression of both the drugs and the firearm in a memorandum opinion. The panel first noted that, because the suppression court had largely credited appellee's testimony, and that testimony suggested that the police could not have seen appellee holding a gun on the street, the police lacked...