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Commonwealth v. Enos

Superior Court of Pennsylvania

December 8, 2017


         Appeal from the Order March 22, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0008798-2014



          SHOGAN, J.

         This is 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.

         The trial court summarized the pertinent facts, which are supported by our independent review of the record, as follows:

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 citations omitted).

         An 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.

         On 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 counsel.

N.T., 3/22/16, at 60-62 (emphasis added). The Commonwealth appealed.[1] Both the Commonwealth and the trial court complied with Pa.R.A.P. 1925.

         The 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 of privacy?
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.

         Our standard of review of a trial court's order granting a defendant's motion to suppress evidence is well established:

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)).

         The 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.

         The 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.

         Appellee 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] 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 8.

         We 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 proportion." Id.

         In that 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 1254.

         The 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.

         On appeal, our Supreme Court was equally divided, [3] 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.

         In support of reversal, then Chief Justice Castille, joined by Justices Eakin and Stevens, [4] 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."[5] 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.

         In the 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.

         We have 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. Commonwealth ...

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