Opinion
J-S11011-18 No. 3146 EDA 2016
08-27-2018
COMMONWEALTH OF PENNSYLVANIA v. JUSTIN ELLIS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence September 9, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0006934-2015 BEFORE: OTT, J., STABILE, J., and MUSMANNO, J. MEMORANDUM BY OTT, J.:
Justin Ellis appeals from the aggregate judgment of sentence of 60 to 120 months of confinement followed by ten months of probation on September 9, 2016, in the Delaware County Court of Common Pleas. At the conclusion of a bench trial, a judge convicted Ellis of one count of manufacture, delivery, or possession with intent to deliver a controlled substance; two counts of knowingly or intentionally possessing a controlled substance by person not registered; three counts of use of or possession with intent to use drug paraphernalia; and one count each of firearms not to be carried without a license, possession of firearm with altered manufacturer's number, and receiving stolen property. Ellis challenges the trial court's denial of his motion to suppress evidence. We affirm.
35 P.S. § 780-113(a)(30), (16) & (32) and 18 Pa.C.S. §§ 6106(a)(1), 6110.2(a) & 3925(a), respectively.
On January 15, 2016, Ellis filed a motion to suppress. A hearing on the motion was held on February 29, 2016, during which the Commonwealth presented the testimony of Sergeant Christopher Eiserman of the Folcroft Borough Police Department. N.T., 2/29/2016, at 7. Sergeant Eiserman testified that, on November 5, 2015, at about 10:30 a.m., he was in the area of the 1500 block of Chester Pike in Folcroft Borough, Delaware County, when he was "advised that there was a blue Lincoln MKS traveling westbound on Chester Pike" that had "[t]he registration . . . suspended for insurance cancelation." Id. at 8. He stated "the vehicle was flagged over, and [it] pulled into a parking lot[.]" Id. Sergeant Eiserman explained Ellis was operating the automobile and that he had a passenger, Latif Robinson. Id. at 9-10. Sergeant Eiserman then gave the following testimony:
Ellis was asked for all of his documents, which he did provide copies of. But they came back suspended through the clean [National Crime Information Center] System, both his registration and his driver's license[.]
[Ellis] was advised that the vehicle was going to be towed, because of both of the suspensions, one on his driver's license, and the other on the registration. It was also told to him that he was not going to be able to park the vehicle there, because of the ongoing construction in the area, and that it was a private lot[.]
[Ellis] was going through the trunk area. He took items out of the trunk area. Specifically, he was concerned about getting a breast
pump out, because . . . he said he just had a newborn child. I was on the passenger side, and[,] at that time, I went to the glove box, opened the glove box, and saw a gold watch in the glove box[.]Id. at 10-16. Sergeant Eiserman additionally testified the search of Ellis's vehicle also yielded "24 glass vials, empty glass vials, which are commonly used to package what they call purple syrup, which is cold syrup with either Fentanyl or Codeine in it"; the vials were on the "back floor behind the driver's seat." Id. at 17. According to Sergeant Eiserman,
[The glove box] opened normally. Once I took the watch out and handed it to Mr. Ellis, I went back. I went to close the glove box, and it would not close. At that time I pulled the back of the glove box down to see what was obstructing it from closing, and that's when I saw the two firearms. . . . [The obstruction was] like a hard plastic. . . . I pulled the black plastic liner, which was the back of it . . . to see what was obstructing it from closing, because it opened normally, so it should have closed normally.
. . .
Once I saw the firearms, we detained Mr. Ellis. I advised him of what I saw, and we applied for a Search Warrant for the vehicle. . . . Everything was halted at that point.
. . .
[Upon executing the search warrant, police found t]wo handguns, fully loaded. One was a nine millimeter Cobra . . . [a]nd the other was a 40 caliber Taurus, which had an obliterated serial number on it. Both were fully loaded.
Once [Ellis] was detained and placed into handcuffs, prior to be putting into a police vehicle, he did state to one of the officers that he had illegal contraband . . . in his zipper area of his pants.Id. at 16. The search of Ellis's pants yielded "53 bags of crack cocaine and eight bags of heroin." Id.
During cross-examination, when asked why he believed that Ellis's vehicle had to be removed from the parking lot, Sergeant Eiserman testified that it was "unsafe to leave [it] there for an extended period of time" and noted there was a ladder up against a wall that could have fallen on the vehicle. Id. at 19-20. Sergeant Eiserman described the parking lot as "a safer area than being on the state highway[.]" Id. at 20. He acknowledged he did not have permission from anyone, such as the owner, to use the parking lot. Id. at 21-22. Sergeant Eiserman also asserted department policy requires that, if a vehicle cannot be driven or cannot stay in a particular location, the officer complete an inventory search of the vehicle, remove any valuables, and give them to the driver or the property owner.
After allowing the parties to file briefs on the suppression motion, the trial court denied the motion on March 21, 2016. Ellis was convicted of the offenses listed above on July 6, 2016, and sentenced on September 9, 2016. On October 4, 2016, Ellis filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
N.T., 2/29/2016, at 32.
The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on July 19, 2017.
Ellis now raises four issues for our review:
[1.] Whether the trial court erred in denying [Ellis]'s Motion to Suppress by basing its opinion on facts not in evidence?
[2.] Did the trial court err in finding that a nebulous, unspecified threat to public safety justified the Folcroft Police Department's failure to adhere to the 24 hour immobilization period as set forth in 75 Pa. C.S.[A. §] 6309.2?
[3.] Did the trial court err in construing the possibility of damage to Mr. Ellis' personal property as a substitute for a threat of public harm as required by statute when no specific threat or possibility of damage was set forth by the Folcroft Police Department?Ellis's Brief at 4.
[4]. Did the trial court err in failing to suppress evidence based on a search warrant when the basis of that search warrant was an inventory search which illegally transitioned into an investigatory search?
Ellis's Brief at unnumbered 4. Additionally, despite listing four issues in his statement of questions involved pursuant to Pa.R.A.P. 2116, Ellis divides the "Argument" section of his brief to this Court into two subsections. We remind counsel Pa.R.A.P. 2119(a) mandates that "argument shall be divided into as many parts as there are questions to be argued."
Ellis contends the trial court erred in failing to suppress the evidence seized during an improper and unjustified inventory search. Id. at 8. He maintains his vehicle should have been immobilized, instead of impounded, because vehicles should only be impounded by police when a risk to public safety exists. He continues there was no "evidence that damage could potentially befall the car," as Sergeant Eiserman had represented "that the vehicle was pulled into the parking lot" as "a safe area . . . off the state highway," and, even if there were evidence of a risk of damage to the vehicle, "potential harm to the vehicle" was not equivalent to "a risk to public safety." Id. at 9-11.
Ellis also argues "the inventory search morph[ed] into an investigatory search prior to [Sergeant Eiserman] obtaining a warrant[.]" Id. at 11.
The standard of review for an order denying a suppression motion is as follows:
In reviewing the denial of a suppression motion, our role is to determine:
whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
Commonwealth v. Jones , 605 Pa. 188, 988 A.2d 649, 654 (2010) (internal quotations and citations omitted). Our scope of review is limited to the evidence presented at the suppression hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1080 (2013).
Commonwealth v. Thran , 185 A.3d 1041, 1043 (Pa. Super. 2018).
Commonwealth v. Mackey , 177 A.3d 221, 226 (Pa. Super. 2017).
"An inventory search of an automobile is permissible when (1) the police have lawfully impounded the vehicle; and (2) the police have acted in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle." Commonwealth v. Lagenella , 83 A.3d 94, 102 (Pa. 2013). Police may lawfully impound a vehicle as follows:
(1) If a person operates a motor vehicle or combination on a highway or trafficway of this Commonwealth while the person's operating privilege is suspended, revoked, canceled, recalled or disqualified or where the person is unlicensed, as verified by an appropriate law enforcement officer in cooperation with the department, the law enforcement officer shall immobilize the vehicle or combination or, in the interest of public safety, direct that the vehicle be towed and stored by the appropriate towing and storage agent . . . , and the appropriate judicial authority shall be so notified.75 Pa.C.S.A. § 6309.2(a) (emphasis added).
(2) If a motor vehicle or combination for which there is no valid registration or for which the registration is suspended, as verified by an appropriate law enforcement officer, is operated on a highway or trafficway of this Commonwealth, the law enforcement officer shall immobilize the motor vehicle or combination or, in the interest of public safety, direct that the vehicle be towed and stored by the appropriate towing and storing agent . . . , and the appropriate judicial authority shall be so notified.
The authority of the police to impound vehicles derives from the police's reasonable community care-taking functions. Such functions include removing disabled or damaged vehicles from the highway, impounding automobiles which violate parking ordinances (thereby jeopardizing public safety and efficient traffic flow), and protecting the community's safety. . . . [Section 6309.2] was not intended to trump the traditional community care-taking functions of the police. . . .Commonwealth v. Henley , 909 A.2d 352, 359, 364 (Pa. Super. 2006) (en banc) (citation and internal quotation marks omitted).
In the interests of public safety and as part of what the Court has called "community caretaking functions," automobiles are frequently taken into police custody.
The trial court properly disposed of the question of whether the police had lawfully impounded Ellis's vehicle as follows:
Sergeant Eiserman testified that the vehicle could not be left in the parking lot because it was an active construction zone and a private parking lot. Leaving the vehicle in that lot for an extended period of time would impair work at the site and pose a safety risk to the vehicle itself. Further that it was a lot in which [Ellis] lacked any permission to leave his car. . . . The testimony of Sergeant Eiserman indicates that the location where the vehicle was stopped, in a privately-owned lot adjacent to the roadway, is not a lawful parking space.Trial Court Opinion, 7/19/2017, at 5 (citing N.T., 2/29/2016, at 18-21); see also N.T., 2/29/2016, at 22.
We agree with the trial court and offer this additional comment. In response to Ellis's allegation that the trial court "assumed facts not in evidence that damage could potentially befall the car," Ellis's Brief at 10, an active construction site always involves a risk of some harm. See Motter v. Meadows Ltd. P'ship , 680 A.2d 887, 892 (Pa. Super. 1996) ("all construction work involves a risk of some harm"). At this particular site, Sergeant Eiserman noted a ladder leaning against a wall that could have fallen on Ellis's vehicle. N.T., 2/29/2016, at 19-20. Additionally, contrary to Ellis's representations, Sergeant Eiserman did not consider the parking lot a "safe area," but as "a safer area than being on the state highway," albeit not for "an extended period of time." N.T., 2/29/2016, at 19-20 (emphasis added).
Ellis's Brief at 9-10.
Ellis's Brief at 9-10.
Also, we are not persuaded by Ellis's argument that a risk to his vehicle was insufficient to justify impounding his vehicle "in the interest of public safety," pursuant to 75 Pa.C.S. § 6309.2. Ellis's Brief at 11. Sergeant Eiserman's authority was derivative of his care-taking function as a police officer to impound Ellis's vehicle, because that care-taking function extended to Ellis and his property, as well. See Henley , 909 A.2d at 359, 363-365 (officer was authorized to impound vehicle in "no parking" zone pursuant to his traditional community care-taking function).
As to the second prong of the test to determine if an inventory search was proper, Sergeant Eiserman testified that department policy requires police to conduct an inventory search for valuables prior to impounding any vehicle and that he performed the vehicle search at issue in accordance with this policy. N.T., 2/29/2016, at 21-22. Ellis presented no evidence to the contrary. Accordingly, "the police have acted in accordance with a reasonable, standard policy of routinely securing and inventorying the contents of the impounded vehicle." Lagenella , 83 A.3d at 102. Consequently, the trial court did not err in finding that the Commonwealth established both prongs of the test for a permissible inventory search of an automobile. Id.
Lagenella , 83 A.3d at 102.
Having established that the initial inventory search was legal, we now consider whether Ellis's remaining claim that the inventory search became an improper investigatory search with the purpose of uncovering evidence after Sergeant Eiserman removed the back of the vehicle's glove box, prior to obtaining the search warrant. Ellis's Brief at 11-12.
An inventory search is not "a substitute for a warrantless investigatory search." Commonwealth v. Gatlos , 76 A.3d 44, 59 (Pa. Super. 2013). "If the search was conducted as part of a criminal investigation, it is not an inventory search." Commonwealth v. Casanova , 748 A.2d 207, 212 (Pa. Super. 2000) (emphasis in original; citation omitted).
"[M]otive" is the sole factor which distinguishes a criminal investigatory search from a noncriminal inventory search of an automobile. . . . Moreover, the inquiry into motive does not end once a finding of lawful police custody has been made for the facts and circumstances surrounding a lawful impoundment can still lead to the conclusion that an inventory search was motivated by an improper purpose.Commonwealth v. Germann , 621 A.2d 589, 595 (Pa. Super. 1993) (internal brackets, citations, and some quotation marks omitted) (police conducted improper inventory search based on a vehicle's bearing fraudulent inspection validation stickers and the vehicle's poor condition).
Here, Sergeant Eiserman's testimony indicates that he had been attempting to close the glove box, not to search it, when he discovered the firearms. Specifically, he had been attempting to remove the obstruction that was preventing the compartment from closing. N.T., 2/29/2016, at 13-14. The sergeant stated his purpose was "to see what was obstructing it from closing," not to search for evidence. Id. Prior to his discovery of the firearms, Sergeant Eiserman had no cause to suspect that Ellis had committed any other crime besides driving without a license and registration and, therefore, had no motive to conduct an investigatory search. See Germann , 621 A.2d at 595. As soon as Sergeant Eiserman saw the firearms, he halted all activity involving the vehicle and applied for a search warrant. N.T., 2/29/2016, at 15. Hence, this record does not suggest that the search was "conducted as part of a criminal investigation" prior to Sergeant Eiserman's discovery of the firearms and thereby was an investigatory search instead of an inventory search. See Casanova , 748 A.2d at 212. Accordingly, the trial court did not err in denying Ellis's motion to suppress evidence on this basis, and we affirm the judgment of sentence.
Because we conclude that Sergeant Eiserman discovered the firearms as part of an inventory search and not a warrantless investigatory search, we do not need to address the Commonwealth's contention that the sergeant "would have inevitably discovered the firearms because he would have found drug paraphernalia and cough syrup in plain view, which would have given him probable cause to search the vehicle." Commonwealth's Brief at 12. We merely observe that the vials were on the floor behind the driver's seat and the sergeant made no mention of viewing the vials prior to the search pursuant to the warrant. N.T., 2/29/2016, at 17.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/27/18