J.S20038/14 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT 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 Court decided after we 

previously issued a judgment order in this matter. The Commonwealth 

originally took this appeal from the order of the Erie 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. 
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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 three 

others drove through Erie’s West Side to buy cigarettes. 

Afterwards, as they drove down Brown Avenue, [Appellee] 

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 passengers 

exited the car and searched the pedestrian’s pockets. 

When the search was finished, and [Appellee] and the 

passenger reentered the car with the pedestrian’s cell 

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 and moved 

out of sight. Five minutes later he returned holding a cell 

phone and ear buds, and declared that he had just robbed 

a person. 

Two days later, in the early morning hours of October 6, 

2012, [Appellee] drove Edin Kantarevic (hereinafter

“Edin”) and another passenger in the same Jeep Cherokee 

to a beer distributor. As they passed Coach’s Tavern at 

38th and Raspberry, they became aware of a visibly 

intoxicated man standing near the entrance to the bar. 

[Appellee] handed Edin the BB gun and stopped the car. 

He then told Edin to hit the man and rob him, and when 

Edin expressed that he did not want to, [Appellee] taunted 

and pressured Edin. Eventually, Edin exited the car and 

pointed the gun at the man. The other passenger got 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 

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a wallet and a cell phone. They took those items, 

reentered the car, and drove away.[2]

About that time, Officers [David] Stucke and 

Szoszorkek3 of the Erie Police Department received a call 

of an armed robbery at Coach’s Bar involving a 1990s 

model black Jeep Cherokee. They began searching that 

area for the suspect vehicle before going to the 3600 block 

of Post Avenue because another police officer had 

previously told Officer Stucke that a vehicle matching this 

description had been seen there. Further, one of the 

residents at that address was known to be an Iraqi male 

and the description of some of the actors in the Coach’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 fogged 

over and the officers could not tell if occupants were 

inside. When another unit had arrived for support, the 

officers approached the Cherokee cautiously and found it 

to be unoccupied, though the hood above the radiator was 

warm, indicating it had been recently driven. Officer 

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 identif[i]ed 

using the license plate number by the dispatcher due to an 

error with the identifying system. Unsure of what to do, 

and feeling exposed in the presence of possible armed 

robbers, Officer Stucke chose to enter the vehicle and look 

for a registration to ascertain the owner of the vehicle. He 

found none, but an examination of the ID card on the 

floorboard showed the card belonged to the victim of the 

 

2

 The trial court, in the first two paragraphs recited above, relied on the 

transcript of the preliminary hearing in this matter. However, a transcript of 

the preliminary hearing was not included in the certified record or the 

reproduced record in this appeal. We include these paragraphs from the 

trial court’s opinion for the purposes of context to the trial court’s 

suppression ruling. We offer no comment upon the validity of the allegations 

set forth in the first two paragraphs. 

3

 Neither a first name, nor a correct spelling of Officer Szoszorkek’s last 

name is apparent from the record. 
J. S20038/14 

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Coach’s Tavern incident. Stemming from that discovery, 

Patrolman Stucke radioed for assistance, and [Appellee] 

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 the 

evidence in the vehicle, and the search garnered goods 

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 officers 

detained all the occupants of the house, including 

[Appellee], at the police station to interview them. 

[Appellee] was eventually charged with counts stemming 

from all three armed robberies. 

Trial Ct. Op., 9/4/13, at 1-4 (record citations omitted). 

Appellee, on April 30, 2013, filed an omnibus pretrial motion seeking, 

inter alia, suppression of all evidence obtained by the police. The motion 

stated, in relevant part: 

7. [Officer] Stucke was driving around the area when 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 property, 

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 of cards, 

etc., from the floor of the front passenger area which 

included the ID of the alleged victim [of the October 6, 

2012 robbery]. 

* * * 

 

WHEREFORE, [Appellee] respectfully requests that this 

Honorable Court schedule an evidentiary hearing and . . . 

enter an Order suppressing any and all physical evidence 

seized from the vehicle illegally entered at [Appellee’s 

residence] . . . . 
J. S20038/14 

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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 omnibus pretrial motion on 

June 3, 2013, and issued its ruling granting Appellee’s suppression motion 

on September 4, 2013. The court concluded Officer Stucke had probable 

cause to search the Jeep Cherokee, but suppressed the evidence under preGary law, concluding the officer’s search of the vehicle 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 7th, and this Panel 

granted reconsideration without ordering new briefs. 

 The Commonwealth has presented the following question on appeal: 

Whether the appropriate standard when evaluating 

warrantless vehicle searches should require either probable 

cause alone or probable cause which arose unexpectedly 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 with a separate 

certification that the trial court’s ruling terminated 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. 
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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 federal 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 circumstances 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 outstanding issues regarding the 

trial court’s determination that the officer lawfully obtained probable cause 

to enter the vehicle. Accordingly, we vacate the trial 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 the record 

supports the suppression court’s factual findings and 

whether the inferences and legal conclusions drawn by the 

suppression court from those findings are appropriate. 

Where the defendant prevailed in the suppression court, 

we may consider only the evidence of the defense and so 

much of the evidence for the Commonwealth as remains 

uncontradicted when read in the context of the record as a 

whole. Where the appeal of the determination of the 

suppression court turns on allegations of legal error, “the 

suppression court’s conclusions of law are not binding on 
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an appellate court, whose duty it is to determine if the 

suppression court properly applied the law to the facts.” 

Commonwealth v. Peterson, 17 A.3d 935, 937 (Pa. Super. 2011) 

(citations omitted). Once a suppression issue is properly raised, the 

Commonwealth bears the burden of proving the subject 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 we 

apply the law in effect at the time of the appellate 

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 pending 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 principle of 

law is normally retroactive. [A]lthough retroactivity is the 

general rule, a sweeping rule of retroactive application is 

not justified. Retrospective application is a matter of 

judicial discretion which must be exercised on a case 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 retroactively applying 

“common–sense, practical approach” to probable cause standards when 

affirming trial court’s denial of suppression motion). “However, it is wellsettled that in order for a new law to apply retroactively to a case pending 
J. S20038/14 

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on direct appeal, the issue had to be preserved in the trial court and at all 

subsequent stages of the adjudication up to and including 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 under 

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 not 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 court rules, the failure to 

 

5

 Instantly, Appellee properly preserved his suppression challenges in his 

omnibus pretrial motion and the Commonwealth attempted 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 not 

expressly object to the law in existence at the time of the suppression 

hearing. Rather, the trial court first suggested the possibility of a change in 

the application of the law in its opinion in support of suppression. See Trial 

Ct. Op. at 7 n.2 (“The requirement of exigent circumstances may be ripe for 

appellate review . . . .”). The Commonwealth, in turn, 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 

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raise the issue in the lower court will not preclude appellate review of that 

issue”); Commonwealth v. Cheeks, 239 A.2d 793, 796 (Pa. 1968) (“It 

would be manifestly unfair to hold [an] appellant to a waiver when this 

waiver is alleged to have occurred at a time when neither the defendant nor 

his attorney had any way of knowing that there existed 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 Gary6 addressed a 

divergence between Pennsylvania law and the decisions of the United States 

Supreme Court regarding warrantless automobile searches. Gary, 91 A.3d 

at 120. Prior to Gary, Pennsylvania courts applied a “limited automobile

exception,” which required the Commonwealth to establish 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 of 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 to 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 that was joined by Justice 

Baer. Justice Orie Melvin did not participate in the decision. Although 

issued as an Opinion Announcing the Judgment of the Court, four Justices 

agreed upon the essential holding that only probable cause was required to 

search a motor vehicle. See id.; id. at 138 (Saylor, J., concurring). 
J. S20038/14 

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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 that the 

impracticability of obtaining a warrant, unforeseen events, 

or any other exigent circumstances—beyond the inherent 

ready mobility of a motor vehicle—are not required for 

application of the automobile exception to the warrant 

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 courts 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 vehicle 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 search a car that is parked 

in the driveway of a home, without a warrant, are not 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 the “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 triggered 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 residential driveway. 
J. S20038/14 

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Id. at 112. 

The Gary Court determined prior Pennsylvania courts did not

thoroughly inquire as to whether greater protections were required by Article 

I, Section 8 of the Pennsylvania Constitution. Id. at 120. The Gary Court 

conducted an Edmunds8 analysis and announced: 

[W]e now hold that with respect to a warrantless search of 

a motor vehicle that is supported by probable cause, 

Article I, Section 8 of the Pennsylvania Constitution affords 

no greater protection than the Fourth Amendment to the 

United States Constitution. Accordingly, we adopt the 

federal automobile exception to the warrant requirement, 

which allows police officers to search a motor vehicle when 

there is probable cause to do so and does not require any 

exigency beyond the inherent mobility of a motor vehicle. 

Gary, 91 A.3d at 104. It further stated: 

The prerequisite for a warrantless search of a motor 

vehicle is probable cause to search; no exigency beyond 

the inherent mobility of a motor vehicle is required. The 

consistent and firm requirement for probable cause is a 

strong and sufficient safeguard against illegal searches of 

motor vehicles, whose inherent mobility and the endless 

 

8 Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). An Edmunds

analysis pertains to whether the Pennsylvania Constitution provides greater 

protection than the United States Constitution and 

encompasses at least the following four factors: 

1) text of the Pennsylvania constitutional provision; 

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 applicability 

within modern Pennsylvania jurisprudence. 

Gary, 91 A.3d at 124 (citation omitted). 
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factual circumstances that such mobility engenders 

constitute a per se exigency allowing police officers to 

make the determination of probable cause in the first 

instance in the field. 

Id. at 138. 

 In aligning Pennsylvania law with the federal automobile 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 members of this Court.” Id. 

at 137. The Court suggested, “To provide greater uniformity in the 

assessment of individual cases and more consistency with regard to the 

admissibility of the fruits of vehicular searches based 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 evidence 

in this case—i.e., that probable cause existed to search the vehicle, but 

exigent circumstances did not—no longer comports with 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 affirm on any basis 

apparent in the record, see McCulligan, 905 A.2d at 988, we review the 

trial court’s determination that the officer possessed probable cause to 

search the vehicle. 
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The following principles govern our review. “Probable cause” is 

defined as information that permits a “‘neutral’ and ‘detached’” 

determination that (1) criminal activity occurred and (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 must 

consider the totality of the circumstances as they appeared 

to the arresting officer. Additionally, “[t]he evidence 

required to establish probable cause for a warrantless 

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 circumstances 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 information by 

physically intruding” on a constitutionally protected area. Commonwealth 

v. Sodomsky, ___ A.3d ___, ___, 2015 WL 3533863, at *6 (Pa. Super. 

June 5, 2015) (citation omitted). This Court has stated: 

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 whether 
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an individual reasonably may expect that an area 

immediately adjacent to the home will remain private. 

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 not constitutionally 

protected. Id. at 280. In that case, police officers conducted an undercover 

investigation of drug sales at the defendant’s residence. Id. at 277. A 

confidential informant arranged for a third-party purchase 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 possession. Id. An officer applied 

for a search warrant, but concerned evidence would be destroyed, directed 

other officers to distract the occupants of the residence 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 on 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 porch 
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constituted curtilage and thus the police viewed the contraband from an 

unlawful vantage point.” Id. at 278-89. The Gibbs Court concluded: 

There is no evidence in the record, and [the defendant] 

has provided no legal support for his claim that the porch 

constituted curtilage. The evidence established that 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 entry to 

the porch and nothing else which would indicate that the 

porch was closed to members of the general public. 

Further, the porch was an empty, unenclosed, concrete 

slab that was used by deliverymen and visitors to the 

apartment. Lastly, the evidence reflects that, within 

minutes of the police entry onto the porch, the porch 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 have a reasonable 

expectation of privacy in his driveway. Id. at 815. In Simmen, the 

defendant crashed into the retaining wall at the complainant’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, approximately twenty feet from the 

road. Id. The officer then “walked up the driveway,” and noticed that the 

vehicle was leaking fluid, its bumper was missing, and its airbag was 
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deployed. Id. The officer knocked on the front door of the residence and 

was permitted into the residence by the defendant’s wife. The officer 

ultimately encountered and later arrested the defendant for driving under 

the influence. Id. 

After his conviction for driving under the influence and related 

offenses, the defendant in Simmen appealed to this Court asserting, in 

relevant part, that the “arresting officer unlawfully 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 curtilage. 

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 front 

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 house 

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). 
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 Although Gibbs and Simmen focused on a defendant’s reasonable 

expectation of privacy in a front porch and driveway, respectively, the 

United States Supreme Court, in 2012, “rediscover[ed] 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 “constitutionally protected 

areas” as follows:9 

Consistent with this understanding, our Fourth Amendment 

jurisprudence was tied to common-law trespass, at least 

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 “the 

Fourth Amendment protects people, not places,” and found 

a violation in attachment of an eavesdropping device to a 

public telephone booth. Our later cases have applied the 

analysis of Justice Harlan’s concurrence in that case, which 

said that a violation occurs when government officers 

violate a person’s “reasonable expectation of privacy.” 

. . . Fourth Amendment rights do not rise or fall with the 

Katz formulation. At bottom, we must “assur[e] 

preservation of that degree of privacy against government 

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 enumerates. 

Katz did not repudiate that understanding. . . . 

 

9

 In Jones, the Court considered whether attaching a GPS tracking 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. 
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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 fifteen 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 down, which signaled the 

odor’s strongest point. Id. The officer obtained a search warrant based on 

this information, executed the warrant, and discovered marijuana plants in 

the home. Id. The Florida trial court suppressed the plants, concluding 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 suppression motion and 

two months before the suppression hearing. 
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engage in [a] physical intrusion of a constitutionally protected area.’”11 Id.

at 1414 (citation and quotation marks omitted). The lead opinion concluded, 

“The front porch is a classic exemplar of an area adjacent to the home and 

to which the activity of home life extends.” Id. at 1415 (citation omitted). 

We therefore regard the area “immediately surrounding 

and associated with the home”—what our cases call the 

curtilage—as “part of the home itself for Fourth 

Amendment purposes.” That principle has ancient and 

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 concurring opinion, in which 

Justice Ginsburg and Justice Sotomayor joined. The concurring opinion 

noted that although the lead opinion decided the case 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 police 

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” (the 

presence of certain substances) that they would not

otherwise have discovered without entering the premises. 

Id. at 1419. The concurring opinion, however, stated it “joined the Court’s 

opinion in full,” but “that a focus on [the defendant’s] privacy interest would 

make an ‘easy cas[e] easy’ twice over[.]” Id.

 Justice Alito, joined by Chief Justice Roberts, and 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 annals of Anglo-American 

jurisprudence.” Id. at 1420 (Alito, J., dissenting). It further found that both 

the lead and the concurring opinion were “also inconsistent with the 

reasonable-expectations-of-privacy test” set forth in Katz. Id. at 1421, 

1424. 
J. S20038/14 

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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 and 

privileges all its branches and appurtenants.” This area 

around the home is “intimately linked to the home, both 

physically and psychologically,” and is where “privacy 

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 terms of an express or implied 

license to trespass: 

Since the officers’ investigation took place in a 

constitutionally protected area, we turn to the question of 

whether it was accomplished through an unlicensed 

physical intrusion. While law enforcement officers need 

not “shield their eyes” when passing by the home “on 

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, visual 

observation of the home from “public navigable airspace,” 

we were careful to note that it was done “in a physically 

nonintrusive manner.” . . . “[O]ur law holds the property 

of every man so sacred, that no man can set his foot upon 

his neighbour’s close without his leave.” As it is

undisputed that the detectives had all four of their feet and 

all four of their companion’s firmly planted on the

constitutionally protected extension of [the defendant’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 English 

common law as to entry upon a close.” We have 

accordingly recognized that “the knocker on the front door 
J. S20038/14 

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is treated as an invitation or license to attempt an entry, 

justifying ingress to the home by solicitors, hawkers and 

peddlers of all kinds.” This implicit license typically 

permits the visitor to approach the home by the front path, 

knock promptly, wait briefly to be received, and then 

(absent invitation to linger longer) leave. Complying with 

the terms of that traditional invitation does not require 

fine-grained legal knowledge; it is generally managed 

without incident by the Nation’s Girl Scouts and trick-ortreaters.[ ] Thus, a police officer not armed with a warrant 

may approach a home and knock, precisely because that 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 incriminating 

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 knocking on the 

door is routine (even if sometimes unwelcome); to spot 

that same visitor exploring the front path with a metal 

detector, or marching his bloodhound into the garden 

before saying hello and asking permission, would inspire 

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. Consent at a 

traffic stop to an officer’s checking out an anonymous tip 

that there is a body in the trunk does not permit the officer 

to rummage through the trunk for narcotics. Here, the 

background social norms that invite a visitor to the 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 trial court’s following 

findings of fact and conclusions of law: 

In this case, the Jeep Cherokee matched the description 

of the vehicle used in a series of robberies that had 

recently occurred. Officer Stucke had been told it was at 

the residence or near the residence of a known Iraqi male, 

and one of the perpetrators of the robberies was alleged to 

be a Middle Eastern male. The hood of the car was still 
J. S20038/14 

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warm from being driven, and there was a pile of personal 

items on the floor of the passenger side of the car. Under 

the totality of the circumstances determination, Officer 

Stucke had sufficient probable cause to conduct a search. 

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 finding 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 testified 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 Avenue. 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 occurred two days earlier. Id. 

He was also aware that the previous robbery involved “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 of 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 the perpetrators or their 

ethnicities. 
J. S20038/14 

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information he obtained from the previous robbery.13 Id. at 5-6. The 

officer’s uncontradicted testimony was that after turning onto Post Avenue, 

“one house in, sitting in the driveway was a Cherokee 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 unit arrived” and exited his 

vehicle after backup arrived. Id. Less than twenty minutes passed between 

the broadcast of the report and the officer’s discovery 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 weapons drawn. Id. 

 

13 Neither party adduced evidence regarding the distance between the scene 

of the robbery and Appellee’s residence. 
J. S20038/14 

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Officer Stucke stated he was not still able to see if the vehicle was 

occupied because the windows were “heavily fogged over” 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 portion. Id. at 9. He looked 

inside the vehicle using a flashlight and saw the car was unoccupied. Id. At 

the same time, however, he saw “a pile of an ID card 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 that it had been recently 

driven.” Id. at 9. 

Officer Stucke radioed his dispatcher to ask whether 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 then opened the unlocked 

driver’s door. He testified, “I proceeded to go into the glove compartment of 

the vehicle, which was empty, in an attempt to locate a registration.”14 Id. 

 

14 On cross-examination, the officer testified, “[B]asically 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 

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Finding no paperwork associated with the car, he “recalled the ID card 

and bank cards” on the passenger side floor board and 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 garage, 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 units arrived to 

call the occupants out of the residence using a PA system. Id. 

We conclude that the discovery of the suspect vehicle 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 officer’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 search. 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 responded, “No. My reason for 

entering the vehicle was to find . . . who the registered owner of the vehicle 

was.” Id. 
J. S20038/14 

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order to run a license plate on the road through the 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 that probable cause existed. 

See Trial Ct. Op. at 5-6. On this question, we are constrained to conclude 

there are gaps in the trial court’s factual findings 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) the officer conducted a 

search when entering the driveway; (2) the search was reasonable; and (3) 

if the search was unreasonable, whether the fruits obtained from the illegal 

search would taint the trial court’s original probable cause determination. 

See generally Commonwealth v. Brown, 23 A.3d 544, 552 (Pa. Super. 

2011) (en banc) (reiterating plain view exception to warrant requirement 

requires “(1) the police . . . observe the object from a lawful vantage-point; 

(2) the incriminating character of the object . . . be immediately apparent; 

and (3) the police . . . have a lawful right of access to the object.”). Under 

these circumstances, it is prudent to permit the trial court in the first 

instance to find the relevant facts and render conclusions of law on these 

issues. The court may receive additional evidence or arguments from the 
J. S20038/14 

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parties as it deems necessary and shall enter an order granting or denying 

suppression. 

Order vacated. Case remanded. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/10/2015