MEMORANDUM
COLINS, J.
Appellant
Karl Joseph Ginnery, appeals from the aggregate judgment of
sentence of three to six years' incarceration imposed by
the Court of Common Pleas of McKean County following a jury
trial at which he was convicted of possession with intent to
deliver (PWID) methamphetamine, possession of an instrument
of crime, possession of marijuana, possession of
methamphetamine, possession of benzodiazepine, and two counts
of possession of drug paraphernalia.[1] For the reasons set forth
below, we hold that the trial court erred in denying a
portion of Appellant's motions to
suppress evidence and therefore vacate the judgment of
sentence and remand.
This
case arises out of a traffic stop that occurred on the
morning of September 3, 2020 and an ensuing warrantless
search of the car that included a search of a backpack that
was in the car. The facts found by the trial court in its
decision on Appellant's motions to suppress are as
follows:
On September 3, 2020, Officer Joshua Frederoski of the
Bradford City Police Department was in full uniform in a
marked police vehicle and on routine patrol in the City of
Bradford. He was watching a silver Toyota Camry. He radioed
Chief Ward (then Assistant Chief) and advised him that the
occupants were "acting suspicious." He watched the
vehicle and the two occupants in it with binoculars. The
vehicle was parked. He then drove past the silver Toyota and
made a U-turn. When he went back he observed that the vehicle
had moved and he observed it traveling. He observed: 1) the
windows of the Toyota to be heavily tinted; 2) the vehicle
had a Pennsylvania registration but a New York inspection
sticker; and, he did not observe a "tag" for the
vehicle in the back window. He initiated his lights and
sirens and stopped the Toyota.
After the Toyota pulled to the side of the roadway Officer
Frederoski approached the driver's side window. He asked
the driver, Megan Sena, for her driver information.
[Appellant] was in the passenger seat. A discussion occurred
about that lack of a tag in the window. Ms. Sena indicated
that she was borrowing the vehicle and it was just purchased
by the owner. There is nothing in the record regarding how
[Appellant] came to be a passenger in the vehicle. …
While they were having this discussion Officer Frederoski
smelled an odor of burnt marijuana. He also noticed a cut
cigar wrapper (the outside of the cigar) that was empty. He
testified that it is common for individuals smoking marijuana
to cut open a cigar, remove the tobacco and place the
marijuana in it to smoke it. He also noticed "multiple
bags of [Q-]tips[,]" [which he believed] are often
utilized to filter illegal controlled substances before use.
…
Based on the smell of burnt marijuana and seeing the cut
cigar wrapper and [Q-]tips, Officer Frederoski suspected that
Ms. Sena may have been driving under the influence of a
controlled substance. Therefore, he asked her to exit the
vehicle to continue his investigation into a potential DUI.
Chief Ward heard Officer Frederoski's radio announcement
that he was stopping the Toyota. He arrived at the scene
shortly after the stop. When Officer Frederoski advised him
of the [Appellant's name, Chief Ward recognized it.
[Appellant] had worked as a confidential informant in the
past regarding a firearms investigation. … Chief Ward
advised Officer Frederoski that he had worked with
[Appellant] in the past.
After he asked Ms. Sena to step out of the Toyota, Officer
Frederoski asked [Appellant] if [he] would step out of the
vehicle to speak to Chief Ward. … Officer Frederoski
… asked [Appellant] to exit the vehicle because he had
made the decision to search the vehicle and it was a
"safety issue having him in the vehicle while I
searched." … [In addition,] Officer Frederoski
and Chief Ward suspected that Ms. Sena and [Appellant] were
involved in drug activity and they wanted to obtain further
information from them.
[Appellant] agreed to exit the vehicle and speak to Chief
Ward. [Appellant] walked behind the Toyota and spoke to Chief
Ward at the front of Chief Ward's patrol vehicle.
… Chief Ward … started the conversation with
[Appellant] by asking him about his health and how he was
doing. He then advised [Appellant] that he was not under
arrest. Chief Ward then stated [,] "I am just asking you
for your honesty, what have you guys been using today."
[Appellant] responded: "just smoking." Chief Ward
took this statement as meaning that [Appellant] and Ms. Sena
had smoked [m]arijuana only (as opposed to other illegal
substances). Chief Ward then read [Appellant] his
Miranda[2] rights. Shortly after [Appellant] was read
his Miranda rights, Officer Frederoski removed
illegal narcotics and items from the Toyota and placed them
on the hood of the vehicle. Many of the items were found in a
backpack that was in the back seat of the vehicle. When
[Appellant] saw the drugs and paraphernalia that Officer
Frederoski had found, he told Chief Ward that he was
"responsible
for all of that," that they were his and not Ms.
Sena's. He also made other incriminating statements.
After Ms. Sena and [Appellant] were arrested an issue arose
regarding the silver Toyota Camry. Officer Frederoski was
concerned about it remaining where it was because "it is
a busy area with a lot of traffic." When Officer
Frederoski indicated that the vehicle had to be moved,
[Appellant] indicated that he would try and call the owner.
[Appellant unsuccessfully] tried to call the owner to come
and move the vehicle …. Arrangements were then made by
Officer Frederoski to have the vehicle towed and impounded.
Trial
Court Opinion and Order, 3/17/21, at 1-5 (footnotes omitted).
Appellant
was charged with PWID marijuana, PWID methamphetamine, PWID
benzodiazepine, possession of marijuana, possession of
methamphetamine, possession of benzodiazepine, three counts
possession of drug paraphernalia, and possession of an
instrument of crime. On December 11, 2020, Appellant filed a
motion to suppress in which he sought to suppress evidence
seized in the search that Officer Frederoski conducted and
statements that he made following that search on the grounds
that the traffic stop and the direction that Appellant exit
the vehicle for questioning were constitutionally invalid and
that Appellant was not given Miranda warnings prior
to questioning. A hearing on this suppression motion was held
on January 22, 2021.
On
February 4, 2021, Appellant filed an amended motion to
suppress in which he sought leave to raise as an additional
ground for suppression that Officer Frederoski's search
was conducted without a warrant and therefore violated
Article I, Section 8 of the Pennsylvania Constitution under
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020),
which was decided on December 22, 2020, after Appellant filed
his initial suppression motion. The trial court granted
Appellant leave to assert this ground for suppression and
held a second suppression hearing on March 12, 2021, at which
the Commonwealth and Appellant had the opportunity to present
further evidence necessary to address this additional issue.
Trial Court Order, 2/8/21. Following this second suppression
hearing, the trial court denied Appellant's suppression
motions. N.T. 3/12/21 Suppression Hearing at 32-37; Trial
Court Opinion and Order, 3/17/21. On the issue of whether the
warrantless search violated Article I, Section 8 of the
Pennsylvania Constitution, the trial court found that the
Commonwealth had not shown that the warrantless search of the
car and backpack was justified by exigent circumstances, but
denied Appellant's motion to suppress on the ground that
Appellant had no reasonable expectation of privacy because he
was only a passenger in the car, was not the car's owner,
and had not shown that he had the owner's permission to
be in the car. N.T. 3/12/21 Suppression Hearing at 32-37;
Trial Court Opinion and Order, 3/17/21 at 5-10, 16-18 &
n.4.[3]
At
Appellant's jury trial on January 3 and 4, 2022, drugs,
drug paraphernalia, and other items seized in the search,
some of which were found in the backpack, were introduced in
evidence. N.T. Trial, 1/3/22, at 86-105. On January 4, 2022,
the jury convicted Appellant of PWID methamphetamine,
possession of an instrument of crime, possession of
marijuana, possession of methamphetamine, possession of
benzodiazepine, and two counts of possession of drug
paraphernalia, and acquitted him of the other three charges.
On February 24, 2022, the trial court sentenced Appellant to
three to six years' incarceration for the PWID conviction
and concurrent terms of incarceration of one to three years
for possession of an instrument of crime, six months to one
year for each of the drug possession convictions, and three
months to one year for each of the possession of drug
paraphernalia convictions. This timely appeal followed.
Appellant presents the following single issue for our review:
Did the lower Court err in denying the defendant's
suppression motion when it determined that the defendant
lacked standing and/or a privacy interest in the contents of
a backpack found on the back seat of a vehicle such that he
was precluded from raising a Constitutional claim under
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020)?
Appellant's
Brief at 6. Our standard of review on this issue is
well-settled:
