J.S20038/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COU RT OF : PENNSYLVANIA Appellant :

: v. : : : ABDURRAHMAN MAMDOUH, : : Appellee : No. 1579 WDA 2013

Appeal from the Order September 4, 2013 In the Court of Common Pleas of Erie County Criminal Division No(s).: CP-25-CR-0003337-2012 CP-25-CR-0003338-2012 CP-25-CR-0003339-2012 BEFORE: GANTMAN, P.J., DONOHUE, and FITZGERALD, * JJ. MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 10, 2015 We granted reconsideration in light Commonwealth v. Gary , 91 A.3d 102 (Pa. 2014), which the Pennsylvania Supreme Cour t decided after we previously issued a judgment order in this matter. The Commonwealth originally took this appeal from the order of the E rie County Court of Common Pleas suppressing evidence against Appellee, Abdurrahman Mamdouh, asserting it was not required to establish exigent circumstances to support a warrantless search of a motor vehicle. We now address the

* Former Justice specially assigned to the Superior Court.J. S20038/14

- 2

-

appeal in light of Gary , 1 and conclude that further proceedings are required to determine whether an officer properly developed probable cause to search a vehicle. Accordingly, we vacate the trial court’ s order and remand for further proceedings consistent with this memorandum

. The trial court summarized its factual findings as follows: On the night of October 4, 2012, [Appellee] and thr ee others drove through Erie’s West Side to buy cigare ttes. Afterwards, as they drove down Brown Avenue, [Appel lee] told the driver to stop their car, a Jeep Cherokee. Once the car had stopped, [Appellee] stepped out, pulled out a BB gun, and approached a pedestrian on the street. He pointed the gun at the pedestrian and demanded all of the pedestrian’s possessions. One of the other passeng ers exited the car and searched the pedestrian’s pocket s. When the search was finished, and [Appellee] and th e passenger reentered the car with the pedestrian’s c ell phone and wallet, they proceeded to a restaurant. On the way there, [Appellee] once again told the driver to stop, and the driver did so. [Appellee] exited the car a nd moved out of sight. Five minutes later he returned holdin g a cell phone and ear buds, and declared that he had just r obbed a person. Two days later, in the early morning hours of Octob er 6, 2012, [Appellee] drove Edin Kantarevic (hereinafter “Edin”) and another passenger in the same Jeep Cher okee to a beer distributor. As they passed Coach’s Tave rn at 38th and Raspberry, they became aware of a visibly intoxicated man standing near the entrance to the b ar. [Appellee] handed Edin the BB gun and stopped the c ar. He then told Edin to hit the man and rob him, and w hen Edin expressed that he did not want to, [Appellee] taunted and pressured Edin. Eventually, Edin exited the ca r and pointed the gun at the man. The other passenger go t out of the car and searched the man’s pockets, where he found

1 We did not order the filing of new briefs.J. S20038/14

- 3

- a wallet and a cell phone. They took those items, reentered the car, and drove away. [2] About that time, Officers [David] Stucke and Szoszorkek 3 of the Erie Police Department received a call of an armed robbery at Coach’s Bar involving a 1990 s model black Jeep Cherokee. They began searching th at area for the suspect vehicle before going to the 36 00 block of Post Avenue because another police officer had previously told Officer Stucke that a vehicle match ing this description had been seen there. Further, one of t he residents at that address was known to be an Iraqi male and the description of some of the actors in the Co ach’s robbery included Iraqi or Arabic males. As soon as the officers turned onto Post Avenue, they saw a Jeep Cherokee that perfectly fit the description of the suspect vehicle parked in a driveway. The windows were fog ged over and the officers could not tell if occupants w ere inside. When another unit had arrived for support, the officers approached the Cherokee cautiously and fou nd it to be unoccupied, though the hood above the radiato r was warm, indicating it had been recently driven. Offi cer Stucke looked in a front window and saw an ID card and bank cards on the passenger side floor boards. At this point, ownership of the vehicle had not been identi f[i]ed using the license plate number by the dispatcher du e to an error with the identifying system. Unsure of what to do, and feeling exposed in the presence of possible arm ed robbers, Officer Stucke chose to enter the vehicle and look for a registration to ascertain the owner of the ve hicle. He found none, but an examination of the ID card on th e floorboard showed the card belonged to the victim o f the

2 The trial court, in the first two paragraphs recit ed above, relied on the transcript of the preliminary hearing in this matte r. However, a transcript of the preliminary hearing was not included in the cer tified record or the reproduced record in this appeal. We include these paragraphs from the trial court’s opinion for the purposes of context t o the trial court’s suppression ruling. We offer no comment upon the v alidity of the allegations set forth in the first two paragraphs.

3 Neither a first name, nor a correct spelling of Of ficer Szoszorkek’s last name is apparent from the record.J. S20038/14

- 4

- Coach’s Tavern incident. Stemming from that discov ery, Patrolman Stucke radioed for assistance, and [Appel lee] and numerous other young men and women were removed from the house on Post Avenue. The police searched the house pursuant to a search warrant granted due to t he evidence in the vehicle, and the search garnered go ods stolen in two armed robberies which had occurred on the night of October 4, 2012 as well as BB gun handguns which looked identical to actual firearms. The off icers detained all the occupants of the house, including [Appellee], at the police station to interview them

. [Appellee] was eventually charged with counts stemm ing from all three armed robberies. Trial Ct. Op., 9/4/13, at 1-4 (record citations omi tted). Appellee, on April 30, 2013, filed an omnibus pretr ial motion seeking,

inter alia , suppression of all evidence obtained by the polic e. The motion stated, in relevant part:

7. [Officer] Stucke was driving around the area whe n he viewed a parked Jeep Cherokee in the driveway of a residence where [Appellee] and several other of the individuals implicated herein were living . . . at approximately 0148 hours. 8. [Officer] Stucke entered onto the private proper ty, went to the vehicle in the driveway and finding the door unlocked, entered the vehicle. While searching the vehicle, the [officer] first searched the glove box for vehicle registration, then . . . picked up a pile o f cards, etc., from the floor of the front passenger area wh ich included the ID of the alleged victim [of the Octob er 6, 2012 robbery].

* * * WHEREFORE, [Appellee] respectfully requests that th is Honorable Court schedule an evidentiary hearing and

. . . enter an Order suppressing any and all physical evi dence seized from the vehicle illegally entered at [Appel lee’s residence] . . . .J. S20038/14

- 5

-

Appellee’s Omnibus Pre-Trial Mot. & Pet. for Habeas Corpus, 4/30/13, at 3-5 (unpaginated). The trial court held a hearing on Appellee’s omnibu s pretrial motion on June 3, 2013, and issued its ruling granting Appell ee’s suppression motion on September 4, 2013. The court concluded Officer Stucke had probable cause to search the Jeep Cherokee, but suppressed t he evidence under preGary law, concluding the officer’s search of the vehicl e was not accompanied by exigent circumstances. Trial Ct. Op. at 5-7. The Commonwealth took this appeal. 4 This Panel, on April 23, 2014, previously affirmed the order granting suppression. However, six days after our decision, on April 29th, the Pennsylvania Supreme Court decided Gary . The Commonwealth timely filed a motion for reargument or reconsideration on May 7 th, and this Panel granted reconsideration without ordering new briefs

. The Commonwealth has presented the following quest ion on appeal:

Whether the appropriate standard when evaluating warrantless vehicle searches should require either probable cause alone or probable cause which arose unexpecte dly in circumstances that prevented police from securing a warrant in advance?

Commonwealth’s Brief at 3.

4 The Commonwealth filed a timely notice of appeal w ith a separate certification that the trial court’s ruling termina ted or substantially handicapped the prosecution. See Pa.R.A.P. 311(d). The trial court did not order the filing of a Pa.R.A.P. 1925(b) statement.J. S20038/14

- 6

-

The Commonwealth’s sole contention is that exigent circumstances should not be required when considering a search of an automobile. Id. at 6. According to the Commonwealth, “The approach in Pennsylvania [to search a vehicle] should be coextensive with the fe deral approach under

the Fourth Amendment . . . requiring only probable cause.” Id. at 10 (citation omitted) (emphasis in original). Gary decided in favor of a similar argument while this appeal was pending, and held that in Pennsylvania, exigent cir cumstances are no longer required to justify a search of an automobile. See Gary , 91 A.3d at 112. Having reviewed the parties’ arguments in light of the relevant law and the record, we conclude Gary itself does not entitle the Commonwealth to relief in this matter. Rather, our review reveals outstan ding issues regarding the

trial court’s determination that the officer lawful ly obtained probable cause to enter the vehicle. Accordingly, we vacate the t rial court’s order and

remand for further consideration.

Our standard of review is as follows: When reviewing the propriety of a suppression order , an appellate court is required to determine whether th e record supports the suppression court’s factual findings a nd whether the inferences and legal conclusions drawn by the suppression court from those findings are appropria te. Where the defendant prevailed in the suppression co urt, we may consider only the evidence of the defense an d so much of the evidence for the Commonwealth as remain s uncontradicted when read in the context of the reco rd as a whole. Where the appeal of the determination of th e suppression court turns on allegations of legal err or, “the suppression court’s conclusions of law are not bind ing onJ. S20038/14

- 7

- an appellate court, whose duty it is to determine i f the suppression court properly applied the law to the f acts.”

Commonwealth v. Peterson , 17 A.3d 935, 937 (Pa. Super. 2011) (citations omitted). Once a suppression issue is p roperly raised, the Commonwealth bears the burden of proving the subjec t evidence was legally

obtained. Commonwealth v. Enimpah , 62 A.3d 1028, 1031 (Pa. Super. 2013), aff’d

106 A.3d 695 (Pa. 2014); see also Pa.R.Crim.P. 581(D), (H). This Court may affirm the trial court’s suppression ruling on any basis. Commonwealth v. McCulligan , 905 A.2d 983, 988 (Pa. Super. 2006). Preliminarily, we note:

The general rule followed in Pennsylvania is that w e apply the law in effect at the time of the appellat e decision. This principle applies with equal force to both civil and criminal proceedings. This means that we adhere to the principle that, “a party whose case is pendi ng on direct appeal is entitled to the benefit of changes in law which occurs before the judgment becomes final.” .

. . [A]t common law, a decision announcing a new princi ple of law is normally retroactive. [A]lthough retroactiv ity is the general rule, a sweeping rule of retroactive applic ation is not justified. Retrospective application is a matt er of judicial discretion which must be exercised on a ca se by case basis.

Blackwell v. State Ethics Comm’n , 589 A.2d 1094, 1099 (Pa. 1991) (citations omitted); see also Commonwealth v. Gray , 503 A.2d 921, 926- 27 (Pa. 1985) (holding this Court did not err in re troactively applying “common–sense, practical approach” to probable caus e standards when affirming trial court’s denial of suppression motio n). “However, it is wellsettled that in order for a new law to apply retroa ctively to a case pendingJ. S20038/14

- 8

-

on direct appeal, the issue had to be preserved in the trial court and at all subsequent stages of the adjudication up to and inc luding the direct appeal.”

Commonwealth v. Smith , 17 A.3d 873, 893-94 (Pa. 2011) (citations omitted). It appears Gary applies retroactively to cases that were decided u nder

pre- Gary

law and are pending on direct appeal. See Commonwealth v.

Dunn , 95 A.3d 272 (Pa. 2014) ( per curiam ) (vacating Superior Court decision and remanding in light of Gary ). We recognize, however, that the Commonwealth did not reserve an objection or claim it was not required to establish exigent circumstance until this appeal. 5 See Commonwealth’s Brief at 3. Nevertheless, under the circumstances of this case, an objection to the pre- Gary

state of the law would have been futile and does n ot require

waiver. See Cleveland v. Johns-Manville Corp. , 690 A.2d 1146 , 1151 (Pa. 1997) (“where a fundamental change in the law occurs after the lower court enters its order, but before the appellate co urt rules, the failure to

5 Instantly, Appellee properly preserved his suppres sion challenges in his omnibus pretrial motion and the Commonwealth attemp ted to carry its burden of proof under pre- Gary law by adducing evidence of exigent circumstances. See Pa.R.Crim.P. 581(D), (H). The Commonwealth did no t expressly object to the law in existence at the tim e of the suppression hearing. Rather, the trial court first suggested t he possibility of a change in the application of the law in its opinion in suppor t of suppression. See Trial Ct. Op. at 7 n.2 (“The requirement of exigent circu mstances may be ripe for appellate review . . . .”). The Commonwealth, in t urn, claimed that it was not required to establish exigent circumstance for the first time on appeal. See Commonwealth’s Brief at 3.J. S20038/14

- 9

-

raise the issue in the lower court will not preclud e appellate review of that issue”); Commonwealth v. Cheeks , 239 A.2d 793, 796 (Pa. 1968) (“It would be manifestly unfair to hold [an] appellant t o a waiver when this waiver is alleged to have occurred at a time when n either the defendant nor his attorney had any way of knowing that there exis ted a right to be waived”) Thus, we conclude Gary applies retroactively in this matter and

will not find the issue waived. Cf. Gray , 503 A.2d at 926-27. The Pennsylvania Supreme Court decision in Gary 6 addressed a divergence between Pennsylvania law and the decisio ns of the United States Supreme Court regarding warrantless automobile sear ches. Gary , 91 A.3d

at 120. Prior to Gary , Pennsylvania courts applied a “limited automobile exception,” which required the Commonwealth to esta blish probable cause and exigent circumstances to justify a warrantless search of a motor vehicle. United States Supreme Court precedent on the Fourth Amendment, however, developed to permit a warrantless search o f an automobile based on probable cause alone. Id. at 119-20. The Gary Court noted, [T]here has been an evolution of the high Court’s jurisprudence concerning the automobile exception t o the

6 Justice McCaffery authored the lead decision in Gary , which was joined by Chief Justice Castille and Justice Eakin. Justice Saylor filed a concurring opinion. Justice Todd filed a dissenting opinion t hat was joined by Justice Baer. Justice Orie Melvin did not participate in t he decision. Although issued as an Opinion Announcing the Judgment of the Court, four Justices agreed upon the essential holding that only probabl e cause was required to search a motor vehicle. See id. ; id. at 138 (Saylor, J., concurring).J. S20038/14

- 10 - warrant requirement. While the early holdings of [ Carroll v. United States , 267 U.S. 132 (1925),] and [ Chambers v. Maroney , 399 U.S. 42 (1970),] relied on the impracticability of obtaining a warrant for a motor vehicle in transit with contraband or evidence of a crime, more recent cases from the high Court have made clear th at the impracticability of obtaining a warrant, unforeseen events, or any other exigent circumstances—beyond the inher ent ready mobility of a motor vehicle—are not required f or application of the automobile exception to the warr ant requirement. As the high Court stated in [ Maryland v. Dyson , 527 U.S. 465, 466–67 (1999)], since 1982, the only requirement for application of the automobile exception, permitting warrantless search of a motor vehicle under federal law, is a finding of probable cause. [7]

7 We are mindful that litigants and our sister court s continue to refer to Coolidge v. New Hampshire , 403 U.S. 443 (1971), to suggest a search of a vehicle is held to differing standards when the v ehicle is found on public versus private property. See e.g. , United States v. Fields , 456 F.3d 519, 525 (5th Cir. 2006) (distinguishing Coolidge by noting, “The Fourth Amendment concerns that arise when the police searc h a car that is parked in the driveway of a home, without a warrant, are n ot present here.”). Although not expressly abrogated, the rationale of Coolidge has been undercut by more recent United States Supreme Court decisions. See Dyson , 527 U.S. at 466–67 (1999); United States v. Smith , 533 F. Supp. 2d 227, 232-33 (D. Mass. 2008); see also Gary , 91 A.3d at 112. Moreover, as the Smith court observed, there are several decisions of the United States Circuit Courts of Appeals applying th e “automobile exception” to unoccupied vehicles in private driveways. Smith , 533 F.Supp. 2d at 233 (citing United States v. Hines , 449 F.3d 808 (7th Cir. 2006); United States v. Brookins , 345 F.3d 231 (4th Cir. 2003); United States v. Fladten , 230 F.3d 1083 (8th Cir. 2000); United States v. Markham , 844 F.2d 366 (6th Cir. 1988); United States v. Hamilton , 792 F.2d 837 (9th Cir. 1986)); see also Pennsylvania v. Labron , 518 U.S. 938 (1996) ( per curiam ). The court, however, also observed other Circuit Courts of Appeals suggest a “heightened privacy interests may be trig gered when a vehicle is encountered on private property.” Smith , 533 F. Supp. 2d at 232-33 (quoting Brookins , 345 F.3d at 237 n.8, and citing Fields , 456 F.3d at 525). In light of Gary , we decline to consider whether greater privacy interests attach to an unoccupied vehicle on a resi dential driveway.J. S20038/14

- 11 -

Id. at 112.

The Gary

Court determined prior Pennsylvania courts did not thoroughly inquire as to whether greater protection s were required by Article I, Section 8 of the Pennsylvania Constitution. Id. at 120. The Gary Court

conducted an Edmunds 8 analysis and announced:

[W]e now hold that with respect to a warrantless se arch of a motor vehicle that is supported by probable cause , Article I, Section 8 of the Pennsylvania Constituti on affords no greater protection than the Fourth Amendment to the United States Constitution. Accordingly, we adopt the federal automobile exception to the warrant require ment, which allows police officers to search a motor vehi cle when there is probable cause to do so and does not requi re any exigency beyond the inherent mobility of a motor ve hicle. Gary , 91 A.3d at 104. It further stated:

The prerequisite for a warrantless search of a moto r vehicle is probable cause to search; no exigency be yond the inherent mobility of a motor vehicle is require d. The consistent and firm requirement for probable cause is a strong and sufficient safeguard against illegal sea rches of motor vehicles, whose inherent mobility and the end less

8 Commonwealth v. Edmunds , 586 A.2d 887 (Pa. 1991). An Edmunds analysis pertains to whether the Pennsylvania Const itution provides greater protection than the United States Constitution and

encompasses at least the following four factors: 1) text of the Pennsylvania constitutional provisio n; 2) history of the provision, including Pennsylvania case-law; 3) related case-law from other states; [and] 4) policy considerations, including unique issues of state and local concern, and applicabilit y within modern Pennsylvania jurisprudence. Gary , 91 A.3d at 124 (citation omitted).J. S20038/14

- 12 - factual circumstances that such mobility engenders constitute a per se exigency allowing police officers to make the determination of probable cause in the fir st instance in the field.

Id. at 138. In aligning Pennsylvania law with the federal auto mobile exception,

the Gary

Court referred to several policy considerations. For example, the Court noted that a finding of exigent circumstances “often turned on small details in the midst of a complex factual scenario, details which have been given varying emphasis over time by different membe rs of this Court.” Id. at 137. The Court suggested, “To provide greater u niformity in the assessment of individual cases and more consistency with regard to the admissibility of the fruits of vehicular searches b ased on probable cause, a more easily applied rule—such as that of the federal automobile exception—

is called for.” Id. (citation omitted). In light of Gary , the trial court’s reason for suppressing the evid ence in this case— i.e. , that probable cause existed to search the vehicle , but exigent circumstances did not—no longer comports wit h the law of Pennsylvania. See id. at 104; accord Dunn , 95 A.3d at 272; Gray , 503 A.2d at 926-27. However, because this Court may af firm on any basis apparent in the record, see McCulligan , 905 A.2d at 988, we review the trial court’s determination that the officer posses sed probable cause to

search the vehicle.J. S20038/14

- 13 -

The following principles govern our review. “Proba ble cause” is defined as information that permits a “‘neutral’ an d ‘detached’” determination that (1) criminal activity occurred a nd (2) “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Woosnam , 819 A.2d 1198, 1208 (Pa. Super. 2003) (citation omitted).

In determining whether probable cause exists, we mu st consider the totality of the circumstances as they appeared to the arresting officer. Additionally, “[t]he evi dence required to establish probable cause for a warrantl ess search must be more than a mere suspicion or a good faith belief on the part of the police officer.” Commonwealth v. Copeland , 955 A.2d 396, 400 (Pa. Super. 2008) (citations omitted). “[W]hat facts and circumstanc es amount to probable cause is a question of law.” Commonwealth v. Newman , 84 A.3d 1072, 1079 (Pa. Super. 2014) (citation omitted), appeal denied , 99 A.3d 925 (Pa. 2014).

A “search” occurs when “the Government obtains info rmation by physically intruding” on a constitutionally protect ed area. Commonwealth v. Sodomsky , ___ A.3d ___, ___, 2015 WL 3533863, at *6 (Pa. Su per. June 5, 2015) (citation omitted). This Court has s tated:

Absent probable cause and exigent circumstances, warrantless searches and seizures in a private home violate both the Fourth Amendment and Article 1 § 8 of the Pennsylvania Constitution. These constitutional protections have been extended to the curtilage of a person’s home. In determining what constitutes “curtilage,” we consider “factors that determine wh etherJ. S20038/14

- 14 - an individual reasonably may expect that an area immediately adjacent to the home will remain privat e. Curtilage is entitled to constitutional protection from unreasonable searches and seizures as a place where the occupants have a reasonable expectation of privacy that society is prepared to accept.”

Commonwealth v. Bowmaster , 101 A.3d 789, 792 (Pa. Super. 2014) (citations omitted).

In Commonwealth v. Gibbs , 981 A.2d 274 (Pa. Super. 2009), this Court held that a front porch to a residence was no t constitutionally protected. Id. at 280. In that case, police officers conducted a n undercover investigation of drug sales at the defendant’s resi dence. Id. at 277. A confidential informant arranged for a third-party p urchase of crack cocaine.

Id. The third-party entered the defendant’s home and purchased drugs

from an individual. Id. Officers arrested the purchaser as he was leaving the scene and seized the narcotics in his possessio n. Id. An officer applied for a search warrant, but concerned evidence would be destroyed, directed other officers to distract the occupants of the res idence by knocking on the door and engaging them in conversation. Id. The remaining officers entered onto the porch, at which time the defendant opened the front door.

Id. at 277-78. “From their vantage point on the porch , the officers observed stacks of cash and bags of apparent crack cocaine o n the kitchen counter

within two or three feet of” the defendant. Id. at 278.

The defendant in Gibbs was convicted of drug trafficking offenses and took an appeal to this Court asserting, inter alia , “[t]he front porchJ. S20038/14

- 15 -

constituted curtilage and thus the police viewed th e contraband from an unlawful vantage point.” Id. at 278-89. The Gibbs Court concluded:

There is no evidence in the record, and [the defend ant] has provided no legal support for his claim that th e porch constituted curtilage. The evidence established th at there was no front yard or other enclosed space preceding or surrounding the porch; rather, the porch “butt[ed] up” against the sidewalk. There was no gate blocking e ntry to the porch and nothing else which would indicate tha t the porch was closed to members of the general public. Further, the porch was an empty, unenclosed, concre te slab that was used by deliverymen and visitors to t he apartment. Lastly, the evidence reflects that, wit hin minutes of the police entry onto the porch, the por ch was also used by a pizza deliveryman and a couple of individuals attempting to purchase contraband.

Id. at 280 (citations omitted).

In Commonwealth v. Simmen , 58 A.3d 811 (Pa. Super. 2012), this Court subsequently held that a defendant did not ha ve a reasonable expectation of privacy in his driveway. Id. at 815. In Simmen , the defendant crashed into the retaining wall at the co mplainant’s residence, which was approximately one-and-a-half to two miles away from the

defendant’s home. Id. at 813. The complainant called 911 to report the accident, and an officer arrived five minutes later

. Id. The officer observed a burgundy bumper at the scene and a trail of fluid leading away from the

scene. Id. The officer followed the trail to the defendant’s residence and saw a burgundy vehicle in the driveway, approximate ly twenty feet from the

road. Id. The officer then “walked up the driveway,” and no ticed that the vehicle was leaking fluid, its bumper was missing, and its airbag wasJ. S20038/14

- 16 -

deployed. Id. The officer knocked on the front door of the resi dence and was permitted into the residence by the defendant’s wife. The officer ultimately encountered and later arrested the defen dant for driving under

the influence. Id. After his conviction for driving under the influenc e and related offenses, the defendant in Simmen appealed to this Court asserting, in relevant part, that the “arresting officer unlawful ly entered his property by walking up his driveway without a warrant.” Id. at 815. The Simmen Court, citing Gibbs , concluded the defendant’s driveway was not curtil age. See id. Based on the description of the driveway, and the

location of the car on it, there was no evidence presented at the time of the suppression hearing to support an assertion that there was any expectation of privacy in the area. The driveway was in the fr ont of the house, leading from the street to the garage contained within the actual residence. The car was parked in plain view of the street on the driveway, within twenty (20) feet of the road. There was no evidence of signs warning against trespass on the driveway or that the driveway was gated or fenced or shielded from the view of the street in any way. In fact, it appears from the description of the hou se that access to the front door of the residence was made via the driveway. . . . As [the defendant’s] driveway was accessible to the general public, [the officer] viewed [the defendant ’s] vehicle from a lawful vantage point when he walked up [the defendant’s] driveway, an area in which [the defendant] did not have a reasonable expectation of privacy.

Id. at 815-16 (citations omitted).J. S20038/14

- 17 -

Although Gibbs and Simmen focused on a defendant’s reasonable expectation of privacy in a front porch and drivewa y, respectively, the United States Supreme Court, in 2012, “rediscover[e d] the trespassory origins of the Fourth Amendment.” See Sodomsky , 2015 WL 3533863 at *6 (citation omitted). In United States v. Jones , 132 S. Ct. 945 (2012), the United States Supreme Court discussed “constitu tionally protected

areas” as follows: 9

Consistent with this understanding, our Fourth Amen dment jurisprudence was tied to common-law trespass, at l east until the latter half of the 20th century. . . . . Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States , 389 U.S. 347, 351 . . . (1967), we said that “th e Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping devic e to a public telephone booth. Our later cases have appli ed the analysis of Justice Harlan’s concurrence in that ca se, which said that a violation occurs when government office rs violate a person’s “reasonable expectation of priva cy.” . . . Fourth Amendment rights do not rise or fall w ith the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against gove rnment that existed when the Fourth Amendment was adopted. ” As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumera tes. Katz did not repudiate that understanding. . . .

9 In Jones , the Court considered whether attaching a GPS trac king device to the defendant’s vehicle constituted a search. Jones 132 S. Ct. at 948. Jones was decided on January 23, 2012, after we decided Gibbs , but before we decided Simmen and the suppression proceedings in this case.J. S20038/14

- 18 -

Jones , 132 S. Ct. at 950 (citations and footnote omitted ). Following Jones , the United States Supreme Court decided Florida v.

Jardines , 133 S. Ct. 1409 (2013). 10 In Jardines , law enforcement officials “received an unverified tip” that the defendant was growing marijuana in his

home. Id. at 1413. Officers surveilled the residence for fi fteen minutes and observed no activity. Id. An officer then approached the front porch of the residence with a trained police dog, which smelled narcotics. Id. The

canine went to the base of the front door and sat d own, which signaled the odor’s strongest point. Id. The officer obtained a search warrant based on this information, executed the warrant, and discove red marijuana plants in

the home. Id. The Florida trial court suppressed the plants, co ncluding the officers engaged in an unreasonable search, and the Florida Supreme Court ultimately upheld the trial court’s decision. Id. The State appealed the decision to the United States Supreme Court. Id. The lead opinion in Jardines found the case was “a straightforward one,” in light of Jones and the principle that Katz “does not subtract anything from the Amendment’s protections ‘when the Government does

10 Jardines was decided on March 26, 2013, after we decided Gibbs and Simmen , but one month before Appellee filed his suppressi on motion and two months before the suppression hearing.J. S20038/14

- 19 -

engage in [a] physical intrusion of a constitutiona lly protected area.’” 11 Id. at 1414 (citation and quotation marks omitted). Th e lead opinion concluded, “The front porch is a classic exemplar of an area a djacent to the home and to which the activity of home life extends.” Id. at 1415 (citation omitted).

We therefore regard the area “immediately surroundi ng and associated with the home”—what our cases call th e curtilage—as “part of the home itself for Fourth Amendment purposes.” That principle has ancient an d durable roots. Just as the distinction between the home

11 Justice Scalia authored the lead opinion in Jardines , and was joined by Justice Thomas. Justice Kagan authored a concurrin g opinion, in which Justice Ginsburg and Justice Sotomayor joined. The concurring opinion noted that although the lead opinion decided the ca se under a “property rubric,” the Court could have done so by examining the defendant’s “privacy interests.” Id. at 1418 (Kagan, J., concurring). Under the latter approach, the concurring opinion concluded that a

“firm” and “bright” rule governs this case: The pol ice officers here conducted a search because they used a “device . . . not in general public use” (a trained drugdetection dog) to “explore details of the home” (th e presence of certain substances) that they would not otherwise have discovered without entering the prem ises.

Id. at 1419. The concurring opinion, however, stated it “joined the Court’s opinion in full,” but “that a focus on [the defenda nt’s] privacy interest would make an ‘easy cas[e] easy’ twice over[.]” Id. Justice Alito, joined by Chief Justice Roberts, an d Justices Kennedy and Breyer, authored a dissenting opinion in Jardines . The dissenting opinion concluded the lead opinion decided the case “based on a putative rule of trespass law that is nowhere to be found in the ann als of Anglo-American jurisprudence.” Id. at 1420 (Alito, J., dissenting). It further found that both the lead and the concurring opinion were “also inco nsistent with the reasonable-expectations-of-privacy test” set forth in Katz

. Id. at 1421, 1424.J. S20038/14

- 20 - and the open fields is “as old as the common law,” so too is the identity of home and what Blackstone called the “curtilage or homestall,” for the “house protects a nd privileges all its branches and appurtenants.” Thi s area around the home is “intimately linked to the home, both physically and psychologically,” and is where “priv acy expectations are most heightened.”

Id. at 1414-15 (citations omitted). Notably, the lead opinion in Jardines did not address any indicia regarding the defendant’s reasonable expectation of privacy in the front porch. See id. ; cf. Simmen , 58 A.3d at 815-16; Gibbs , 981 A.2d at 280. Instead, it analyzed the officer’s intrusion in ter ms of an express or implied license to trespass:

Since the officers’ investigation took place in a constitutionally protected area, we turn to the que stion of whether it was accomplished through an unlicensed physical intrusion. While law enforcement officers need not “shield their eyes” when passing by the home “o n public thoroughfares,” an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment ’s protected areas. In permitting, for example, visua l observation of the home from “public navigable airs pace,” we were careful to note that it was done “in a phys ically nonintrusive manner.” . . . “[O]ur law holds the p roperty of every man so sacred, that no man can set his foo t upon his neighbour’s close without his leave.” As it is undisputed that the detectives had all four of thei r feet and all four of their companion’s firmly planted on the constitutionally protected extension of [the defend ant’s] home, the only question is whether he had given his leave (even implicitly) for them to do so. He had not. “A license may be implied from the habits of the country,” notwithstanding the “strict rule of the E nglish common law as to entry upon a close.” We have accordingly recognized that “the knocker on the fro nt doorJ. S20038/14

- 21 - is treated as an invitation or license to attempt a n entry, justifying ingress to the home by solicitors, hawke rs and peddlers of all kinds.” This implicit license typi cally permits the visitor to approach the home by the fro nt path, knock promptly, wait briefly to be received, and th en (absent invitation to linger longer) leave. Comply ing with the terms of that traditional invitation does not r equire fine-grained legal knowledge; it is generally manag ed without incident by the Nation’s Girl Scouts and tr ick-ortreaters. [ ] Thus, a police officer not armed with a warrant may approach a home and knock, precisely because th at is “no more than any private citizen might do.” But introducing a trained police dog to explore the area around the home in hopes of discovering incriminati ng evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocki ng on the door is routine (even if sometimes unwelcome); to s pot that same visitor exploring the front path with a m etal detector, or marching his bloodhound into the garde n before saying hello and asking permission, would in spire most of us to—well, call the police. The scope of a license—express or implied—is limited not only to a particular area but also to a specific purpose. Co nsent at a traffic stop to an officer’s checking out an anonym ous tip that there is a body in the trunk does not permit t he officer to rummage through the trunk for narcotics. Here, the background social norms that invite a visitor to th e front door do not invite him there to conduct a search.

Jardines , 133 S. Ct. at 1415-16 (citations and footnotes omitted). Mindful of the foregoing precepts, we review the tr ial court’s following findings of fact and conclusions of law:

In this case, the Jeep Cherokee matched the descrip tion of the vehicle used in a series of robberies that h ad recently occurred. Officer Stucke had been told it was at the residence or near the residence of a known Iraq i male, and one of the perpetrators of the robberies was al leged to be a Middle Eastern male. The hood of the car was stillJ. S20038/14

- 22 - warm from being driven, and there was a pile of per sonal items on the floor of the passenger side of the car . Under the totality of the circumstances determination, Of ficer Stucke had sufficient probable cause to conduct a s earch. Trial Ct. Op. at 5-6. Thus, the court suggested a “search” first occurred when the officer entered the car. However, it did not address Appellee’s claim that the officer engaged in a search when he “entered onto the private property, went to the vehicle in the driveway and f inding the door unlocked,

entered the vehicle.” See Appellee’s Omnibus Pre-Trial Mot. and Pet. for Habeas Corpus at 3-4; N.T. at 20. The record reveals the following. Officer Stucke t estified that on October 6, 2012, he received a report of a gunpoint robbery at Coach’s Bar,

which was located on the 3800 block of Elmwood Aven ue. N.T. at 5. The report indicated a dark colored, older model, 1990’ s Jeep Cherokee was involved in the robbery. Id. The officer was aware that a similar vehicle was implicated in at least one robbery that occurre d two days earlier. Id. He was also aware that the previous robbery involve d “Iraqi males, or Arabic

males.” 12 Id. at 6. After receiving the report, Officer Stucke and his partner patrolled the “immediate area,” but then went to the 3600 block o f Post Avenue based on

12 The record does not indicate whether the October 6 , 2012 report of the robbery at Coach’s Bar contained a description of t he perpetrators or their ethnicities.J. S20038/14

- 23 -

information he obtained from the previous robbery. 13 Id. at 5-6. The officer’s uncontradicted testimony was that after t urning onto Post Avenue, “one house in, sitting in the driveway was a Cherok ee that perfectly fit the description of the suspect vehicle in the robbery.” Id. at 7. He further testified that the vehicle was parked “forwards” in the driveway. Id. at 8. The officer called for backup and relayed the plate number to his dispatcher.

Id. at 8. He testified he “stood by until another uni t arrived” and exited his vehicle after backup arrived. Id. Less than twenty minutes passed between the broadcast of the report and the officer’s disco very of the vehicle. See

id. at 10 (indicating that no more than twenty minutes between receiving report and later checking vehicle for occupants). Officer Stucke was not able to obtain registration information from his patrol vehicle’s computer and his dispatch center “ was not receiving returns from NCIC in regards to ownership of the vehicle.” N.T. at 10. Further, the rear windows of the vehicle were “completely fogged over[,]” and the officer was unable to tell if the vehicle was occupied. Id. at 8. When a backup unit arrived, the officers “approached the vehicle from directly behind,” to limit their visibility in case the vehicle was occupied. Id. Given the reports that the robbers were armed, the officers had their weap ons drawn. Id.

13 Neither party adduced evidence regarding the dista nce between the scene of the robbery and Appellee’s residence.J. S20038/14

- 24 -

Officer Stucke stated he was not still able to see if the vehicle was occupied because the windows were “heavily fogged o ver” due to an earlier

rain. Id. He approached the front passenger side door, and it was not until he reached the door that he found an unfogged porti on. Id. at 9. He looked inside the vehicle using a flashlight and saw the c ar was unoccupied. Id. At the same time, however, he saw “a pile of an ID car d and some bank cards” on the passenger side floorboard, where a passenger ’s left foot would be.

Id. at 8, 10. He testified that area was “one of the first places I was looking” and “I saw [the ID and bank cards] clearly there.” Id. at 10. He then went to the front of the vehicle, touched the hood, and felt a “good deal of heat coming from the vehicle, which indicated th at it had been recently

driven.” Id. at 9. Officer Stucke radioed his dispatcher to ask whethe r the NCIC

information on the vehicle had been obtained. Id. He testified, “Basically at that point in time I decided we were directly next to the house. I felt that any moment somebody could look out and see us.” Id. at 11. He went to the driver’s side of the vehicle for cover, and the n opened the unlocked driver’s door. He testified, “I proceeded to go in to the glove compartment of the vehicle, which was empty, in an attempt to loca te a registration.” 14 Id.

14 On cross-examination, the officer testified, “[B]a sically my reason for going inside the vehicle was to identify the owner of the vehicle.” N.T. at 21. He reasoned, “at that point in time I was not sure if this vehicle was specifically involved in the robbery. I had a very strong inclination . . .J. S20038/14

- 25 -

Finding no paperwork associated with the car, he “r ecalled the ID card and bank cards” on the passenger side floor board a nd seized them. Id. at

11. He read the name on the ID card and discovered it was the victim of the robbery earlier that night. Id. He radioed the officer investigating the robbery and confirmed the name of the victim. Id. at 11-12. The officer then “withdrew to a position of cover near the gara ge, and received a report that a door on the side of the garage was open and there was a light on

inside. Id. at 12. He maintained security while additional un its arrived to call the occupants out of the residence using a PA system. Id. We conclude that the discovery of the suspect vehic le before officers entered the driveway did not constitute a search. See Jardines , 133 S. Ct. at 1415 (reiterating “law enforcement officers need not shield their eyes when passing by the home on public thoroughfares”). No privacy or property interests were intruded upon by the office r’s actions when he

observed the vehicle. See id. Similarly, the officer’s observation of the vehicle’s license plate and his decision to search computer records for

information on the vehicle did not constitute a sea rch. See

Commonwealth v. Bolton , 831 A.2d 734, 737 (Pa. Super. 2003) (rejecting defendant’s claim “charging officer must have some level of suspicion in

[f]rom my prior experience on this job.” Id. at 22. When asked whether “there [was] absolutely no doubt you were entering the vehicle to find possible evidence of crime[,]” the officer responde d, “No. My reason for entering the vehicle was to find . . . who the regi stered owner of the vehicle was.” Id.J. S20038/14

- 26 -

order to run a license plate on the road through th e NCIC computer,” and noting, “we fail to see the need for some level of suspicion to check a license plate which is clearly in plain view.”). However, the officer’s observations after he entered the driveway

were critical to the trial court’s determination th at probable cause existed.

See Trial Ct. Op. at 5-6. On this question, we are co nstrained to conclude there are gaps in the trial court’s factual finding s and legal conclusions. Specifically, the trial court made no determination on whether Appellee had a privacy interest in the driveway. See Jardines , 133 S. Ct. at 1415-16;

Simmen , 58 A.3d at 815-16. Further, the current state of the record precludes this Court from determining whether (1) t he officer conducted a search when entering the driveway; (2) the search w as reasonable; and (3) if the search was unreasonable, whether the fruits obtained from the illegal search would taint the trial court’s original proba ble cause determination. See generally Commonwealth v. Brown , 23 A.3d 544, 552 (Pa. Super. 2011) ( en banc ) (reiterating plain view exception to warrant requ irement requires “(1) the police . . . observe the object f rom a lawful vantage-point; (2) the incriminating character of the object . . . be immediately apparent; and (3) the police . . . have a lawful right of acc ess to the object.”). Under these circumstances, it is prudent to permit the tr ial court in the first

instance to find the relevant facts and render conc lusions of law on these issues. The court may receive additional evidence or arguments from theJ. S20038/14

- 27 -

parties as it deems necessary and shall enter an or der granting or denying suppression. Order vacated. Case remanded. Jurisdiction relinq uished. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/10/2015