from the Order March 22, 2016 In the Court of Common Pleas of
Montgomery County Criminal Division at No(s):
BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.
a Commonwealth appeal from the March 22, 2016 order
suppressing video evidence of a drug transaction between
Appellee, Stewart Enos, and a confidential informant
("CI"). After careful review, we reverse and remand
this case for trial.
trial court summarized the pertinent facts, which are
supported by our independent review of the record, as
Instantly, the CI arranged to purchase drugs from someone
named "Stew." The CI was outfitted with a concealed
camera which did not record audio of the transaction. The CI
was searched and given premarked currency to purchase a
"dove" or twenty dollars' worth of cocaine.
While Sergeant [Michael] Markovich [of the Pottstown Police
Department] observed, the CI then proceeded to a designated
meeting area where a white Toyota, driven by [Appellee, ]
pulled up. The CI entered [Appellee's] car and was driven
about a half a block. The CI exited the vehicle, returned to
the location where Sgt. Markovich dropped him off[, ] and
gave police a green bag containing the alleged cocaine.
During the controlled buy, law enforcement could not see into
the tinted windows of the car from their nearby vantage
point. The vehicle was permitted to leave the scene of the
buy[, ] and [Appellee] was not arrested until a year later.
Law enforcement was able to identify [Appellee] from the
video recorded by the CI.
Trial Court Opinion, 8/12/16, at unnumbered 5 (internal
information was filed on January 23, 2015, charging Appellee
with violating 35 P.S. 780-113(a)(30), possession with intent
to deliver a controlled substance, 35 P.S. 780-113(a)(16),
possession of a controlled substance, and 35 P.S.
780-113(a)(32), possession of drug paraphernalia. Over the
course of the next year, the parties filed numerous motions
including, inter alia, a petition for writ of
habeas corpus, waivers of Pa.R.Crim.P. 600, motion
to revoke bail, and a motion for recusal.
March 21, 2016, Appellee filed a "Motion In Limine
Concerning Video Evidence" and "Defendant's
Motion to Reveal the Identity of the Confidential
Informant." Following a hearing the same date, the trial
court denied both motions. The case proceeded to jury
selection, and a jury was selected and sworn. The next day,
March 22, 2016, Appellee filed a "Motion to
Suppress" and "Defendant's Motion In Limine
Concerning the Defendant's Criminal Record." The
court held a hearing on the motion to suppress. At the
conclusion of the hearing, the trial court suppressed the
video recording based on our decision in Commonwealth v.
Dunnavant, 63 A.3d 1252');">63 A.3d 1252 (Pa. Super. 2013), affirmed by
an equally divided court, 107 A.3d 29 (Pa. 2014). In doing
so, the trial court also declared a mistrial based on
manifest necessity, as follows:
The [c]ourt previously declared that [the suppression] motion
was out of time, meaning he did not demonstrate that he was
prohibited from determining this issue and particularly the
case, the Dunnavant case.
However, on the other one [sic] that commands this to the
[c]ourt's discretion, the [c]ourt granted [Appellee] the
out of time filing of that motion and the hearing on that
motion in the interest of justice.
Following presentation of further evidence and the argument
of the parties, rebriefing of the parties, this [c]ourt
granted the motion and suppressed the video. The Commonwealth
sought a reconsideration of that and that was denied.
It has all occurred in the span of approximately five hours,
and at this stage we are in the place to where, again, I am
not going ascribe it to the Commonwealth because the [c]ourt
finds that the Commonwealth has committed absolutely no
misconduct. Nothing that has occurred here has had anything
to do with the Commonwealth, how it's presented its
evidence, what the Commonwealth has done. It has nothing to
do procedurally with anything.
So in any terms of exposing [Appellee] to double jeopardy
because the Commonwealth is now out of time intending to
pursue its right which is automatically guaranteed by the
Rules of Appellate Procedure to pursue an appeal of this
[c]ourt's ruling, and therefore that is the manifest
necessity the [c]ourt sees.
And I don't want to get hung up on the Commonwealth
making the motion because at this stage they've said to
the [c]ourt we want to appeal your ruling. And they have
every right to do so. And all they are required to do is
under [Pa.R.A.P.] 311(d) make a declaration to the Superior
Court that their case cannot go forward.
They may take an appeal right from an order that does not end
the entire case where the Commonwealth will certify in its
Notice of Appeal that the order will terminate or
substantially handicap the prosecution. They intend to tell
the Superior Court in their notice of certification that my
order will handicap their case.
And what occurs with that is then left to the appellate
courts, but clearly it is of no doing of the Commonwealth
other than simply pursuing a right guaranteed by the Rules of
Appellate Procedure and also the Rules of Criminal Procedure
should this arise.
Therefore, the [c]ourt is declaring a mistrial for manifest
necessity indicating that there was nothing that was done at
all by the Commonwealth that in any way provoked this. And in
fact, it occurred solely due to the error of defense
N.T., 3/22/16, at 60-62 (emphasis added). The Commonwealth
appealed. Both the Commonwealth and the trial court
complied with Pa.R.A.P. 1925.
Commonwealth presents the following two issues on appeal:
I. Did the trial court err when it extended Commonwealth
v. Dunnavant, 63 A.3d 1252');">63 A.3d 1252 (Pa. Super. 2013),
aff'd by an equally divided court, 107 A.3d 29
(Pa. 2014), to suppress a video of a drug transaction in
[Appellee's] car, where he had a diminished expectation
II. Did the trial court abuse its discretion when it heard
[Appellee's] untimely suppression motion after swearing
the jury when defense counsel admitted that the grounds for
that motion previously existed and the interests of justice
did not require it?
Commonwealth's Brief at 4.
standard of review of a trial court's order granting a
defendant's motion to suppress evidence is well
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. Miller, 56 A.3d 1276, 1278-1279 (Pa.
Super. 2012) (citations omitted). "Our standard of
review is restricted to establishing whether the record
supports the suppression court's factual findings;
however, we maintain de novo review over the
suppression court's legal conclusions."
Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473,
476 (2010) (citation omitted).
Petty, 157 A.3d at 955 (quoting Commonwealth v.
Korn, 139 A.3d 249, 252-253 (Pa. Super. 2016)).
Commonwealth first contends that the trial court erroneously
suppressed the drug-transaction video recording and
improperly extended Commonwealth v. Dunnavant, 63
A.3d 1252 (Pa. Super. 2013) ("Dunnavant
I"). In Dunnavant I, this Court held that
the warrantless covert video recording inside a
defendant's home violated Article I, Section 8
of the Pennsylvania Constitution. The Commonwealth asserts
that the trial court's extension of that holding outside
of a defendant's home "is inconsistent with prior
Pennsylvania Supreme Court precedent, " the
long-recognized "diminished expectation of privacy in
[a] car, " and "Dunnavant's
foundational precedent." Commonwealth's Brief at 10.
The Commonwealth maintains that Dunnavant I is
merely the application of an exception to the general rule,
established in Commonwealth v. Blystone, 549 A.2d 81
(Pa. 1988), aff'd sub nom. Blystone v.
Pennsylvania, 494 U.S. 299 (1990), that a defendant
"lacks a reasonable expectation of privacy in things he
voluntarily discloses to someone else."
Commonwealth's Brief at 12. Thus, the Commonwealth
contends the trial court improperly extended Dunnavant
I to apply to the recording in Appellee's vehicle.
Commonwealth further avers that Appellee forfeited his
decreased reasonable expectation of privacy when he invited
the CI into his car. Commonwealth's Brief at 13. The
Commonwealth urges that once Appellee opened his car to the
CI, "he risked that the informant might record
everything that occurred inside the car and give that
recording to the police." Id. The Commonwealth
acknowledges that a defendant retains a "modicum of a
reasonable expectation of privacy in his car, " but
"far less than in his home." Id. at 19.
counters that this case involves three precepts: 1) there is
a reasonable expectation of privacy in a vehicle, citing
Commonwealth v. Caban, 60 A.3d 120 (Pa.
Super. 2012); 2) "but for" a few exceptions, a
warrantless search is per se unreasonable, citing
Commonwealth v. Blair, 575 A.2d 593 (Pa. Super.
1990); and 3) "the warrantless use of a concealed video
camera in a residence is per se
unreasonable, " citing Dunnavant I.
Appellee's Brief at 7 (emphasis added). Appellee
underscores that the CI was reliable and known to Sergeant
Markovich for nine years, and Sergeant Markovich testified
that he had time to secure a warrant. Appellee's Brief at
begin our analysis by examining the underpinnings of
Dunnavant I. In that case, this Court affirmed a
trial court's suppression of a silent video recording
worn by a confidential informant obtained inside the
defendant's residence. The question before us was
"whether the defendant has a privacy interest in not
being videotaped secretly in his own home."
Dunnavant I, 63 A.3d at 1256. We further noted that
because the government conducted the video recording,
"the question [became] one of constitutional
case, the intended meeting place between the informant and
the defendant originally was a street corner, but when the
defendant arrived, he transported the informant in his car to
the defendant's residence, where the informant was
invited inside and the drug-buy transpired. Dunnavant
I, 63 A.3d at 1253-1254. The camera recorded, among
other things, the informant's ride in the defendant's
car and the drug purchase inside of the home. It is
noteworthy that the trial court suppressed only the
"depict[ion of] the interior of the [d]efendant's
residence"; it did not suppress the footage of the
informant in the defendant's vehicle. Id. at
Dunnavant I Court relied upon Commonwealth v.
Kean, 556 A.2d 374 (Pa. Super. 1989), as controlling
authority. Dunnavant I, 63 A.3d at 1256
("Kean remains controlling law on the subject
of a defendant's 'legitimate expectation of privacy
not only in their home, but also in the reflection of their
home that a videotape captures and preserves.'"). We
stated therein that "the dweller of a residence does not
expect that an invitee would videotape events occurring
inside his or her residence without his or her consent."
Dunnavant I, 63 A.3d at 1256.
appeal, our Supreme Court was equally divided,  thus resulting in
a decision of affirmance. Commonwealth v. Dunnavant,
107 A.3d 29 (Pa. 2014) ("Dunnavant II").
The opinions in Dunnavant II suggest agreement with
the Commonwealth's position in this appeal. Now Chief
Justice Saylor, writing in support of affirmance, stressed
that unlike in Blystone, the conversations in
Dunnavant II occurred "in the sanctity of
one's home, " where of all the places that exist, an
individual "must feel secure in his ability to hold a
private conversation . . . ." Dunnavant II, 107
A.3d at 30. Similarly, Justice Todd, also writing in support
of affirmance, opined that the place in which the warrantless
intrusion and secret video were made by the CI, inside the
defendant's home, "was the critical factor in
rendering this conduct a constitutional violation."
Id. at 31. Justice Todd concluded that the
warrantless video recording made inside of the
defendant's home should be suppressed in accordance with
Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994),
which established that "a person does not forfeit the
strong privacy interest he or she has in [his] home or
residence just by allowing an individual to come
inside." Id. at 32.
support of reversal, then Chief Justice Castille, joined by
Justices Eakin and Stevens,  focused upon Kean's
reliance on Blystone, 549 A.2d 81, "a case that
considered the constitutionality of Pennsylvania's
Wiretap Act (18 Pa.C.S. §§ 5701-5782) when a
suspect is audio-recorded by a CI wearing a recording
device." Dunnavant II, 107 A.3d at 36. The
opinion in support of reversal concluded that "given the
exigent circumstances, and given that there was no underlying
unlawful governmental conduct, such as 'sending' a CI
into a citizen's home for the purpose of recording a
conversation, no constitutional violation occurred."
Dunnavant II, 107 A.3d at 51.
present case, the trial court's explanation in support of
its decision to suppress the video is very brief, without
analysis of any relevant case law; indeed, the court only
minimally referenced Dunnavant I. It further
determined that the window tint of Appellee's vehicle, in
combination with the holding in Dunnavant I,
compelled suppression of the video in this case. Trial Court
Opinion, 8/12/16, at unnumbered 4-5. Also as noted by the
trial court, Appellee did not present any evidence, such that
the Commonwealth's evidence was uncontradicted. Trial
Court Opinion, 8/12/16, at unnumbered 4. Without citing
support and merely noting Appellee's reliance on
Dunnavant I, the trial court determined that the
CI's actions at the behest of the government, in light of
the concealment of the transaction by the car's window
tint, constituted an unreasonable search. It concluded that
Appellee had an expectation of privacy in his vehicle.
Id. at 5.
examined the law and the arguments of the parties in light of
the record. We conclude that the issue is controlled by
Blystone, not Dunnavant. As our Supreme
Court explained in Blystone:
It has been held that the protection provided by Article I,
§ 8 of the Pennsylvania Constitution extends to those
zones where one has a reasonable expectation of privacy,
Commonwealth v. DeJohn, 486 Pa. 32, 403 A.2d 1283
(1979) cert. denied, 444 U.S. 1032, 100 S.Ct. 704,
62 L.Ed.2d 668 (1980); and that Article I, § 8 creates
an implicit right to privacy in this Commonwealth.
Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29
(1973) cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41
L.Ed.2d 1146 (1974). To determine whether one's
activities fall within the right of privacy, we must examine:
first, whether appellant has exhibited an expectation of
privacy; and second, whether that expectation is one that
society is prepared to recognize as reasonable.