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- A15044

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2023 PA Super 224

COMMONWEALTH OF PENNSYLVANIA

v.

JACQUAY T. HALL

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 718 WDA 2022

Appeal from the Judgment of Sentence Entered May 18, 2022

In the Court of Common Pleas of Allegheny County

Criminal Division at CP

- 02

- CR

- 0004956

- 2021

BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J. *

OPINION BY MURRAY, J.: FILED: November 3, 2023

Jacquay T. Hall (Appellant) appeals from the judgment of sentence

imposed following his jury conviction of fleeing or attempting to elude a police

officer

, accidents involving death or personal injury

, accidents involving

damage to an attended vehicle or property

, and fal se reports by reporting an

offense that did not occur. 1 After careful review, we affirm Appellant ’ s

judgment of sentence.

Relevant to this appeal, the facts established at the suppression hearing

are not in dispute. On April 26, 2021, at around 4:00 a .m., Pittsburgh Police

Officer Phillip Szalla and his partner , Officer Zachary Swarrow, observed a

2014 Nissan Altima exceeding the speed limit in a residential area. When the

officer s initiated a traffic stop , the Nissan pulled to the side of the road with

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 See 75 Pa.C.S.A. §§ 3733(a), 3742(a), 3743(a); 18 Pa.C.S.A. § 4906(b)(1).J

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its brake lights engaged. However, the vehicle was not placed in “park.” As

the officer s exited their vehicle , the Nissan fled the scene. The officers issued

a radio alert about the incident and began canvassing the area.

M inutes later, Off icers Szalla and Swarrow received an emergency call

about a nearby motor vehicle accident

. A rriving at the scene, they found an

accident involving the Nissan A ltima that fled the ir traffic stop. The Nissan

had collided

, head

- on

, with a sport utility vehicle (SUV)

. The two occupants

of the SUV stood outside their vehicle. After speaking with the SUV’s

occupants, the officer s approached the Nissan to check for injured passengers.

Upon opening the driver ’ s door, Officer Szalla saw, in plain view, a firearm on

the driver ’ s floorboard ; a cell phone on the driver ’ s seat ; 2 and a small amount

of marijuana near the gearshift. Because the Nissan was disabled and

obstructing traffic , the officers arranged to have the ve hicle towed. For safety

reasons, the officers seized the firearm prior to towing

.

The officers subsequently discovered the Nissan was registered to

Appellant. Officers went to Appellant ’ s house between 5:00 and 6:00 a.m.

that morning, but no one answered the door. At about 9:00 a.m., Appellant

called police and reported that his Nissan had been stolen. Appellant also told

police that his cell phone was in the Nissan. A ccording to Appellant, only he

knew the passcode to unlock the cell phone.

_________________ __________ ______ ____ _______

2 The cell phone was receiv ing text messages and phone calls.J

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P olice applied for a search warrant for the contents of Appellant ’ s cell

phone

. The warrant application, submitted by Officer S warrow, identified the

following material as the items to be searched:

All data with time stamps includi ng personal communications in

the form of text, writings, phone numbers, contacts, call history,

SMS messages, images or videos contained in the devices as well

as information stored, and/or attached to the body of the phone

associated with Gray iPhone wit h black and blue case.

Omnibus Pretrial Motion, 10/14/2021, Exh. B at 1.

Officer Swarrow ’ s affidavit of probable cause

, attached to the warrant

application

, detailed the scope of the requested search of the cell phone:

I am respectfully requesting a sear ch warrant for the Gr a y i Phone

with black and blue case recovered from the driver ’ s seat of the

vehicle during the incident on 04/26/2021. I am requesting to

search any texts, calls or other media [

- ] related application that

have time stamped messages and information to assist with my

investigation to find out the driver of the vehicle. Based on this

warrant, I am requesting a search of Gr a y i Phone with black and

blue case for all and any time stamped information or data stored

with in the body of the cell phone[], to include [SIM] card and

phone memory, including any contacts, phone numbers,

messages instant or text, all pictures and all video stored.

Incoming and outgoing calls, carrier IP Number and voice

messages and missed calls. Along wi th any data which is related

to the distribution, sale or arrangement of drug transactions

contained within the cell phone[].

Id. at 3.

Upon approval of the search warrant, police extracted data from the cell

phone implicating Ap pellant in the head

- on collision and flight from the prior

traffic stop

. O fficers learned from the phone ’ s data that several outgoing calls

were made after the Niss a n was purportedly stolen

. One call lasted 35

minutes and was made to a one of the phone’s saved contact s

. Extracted cellJ

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phone data rebutted Appellant ’ s claim that his vehicle had been stolen and

driven by someone else at the time of the traffic stop and collision.

Prior to trial, Appellant filed a motion to suppress evid ence recovered

from his cell phone and Nissan. Suppression Motion, 10/14/21. Appellant

claimed officers lacked probable cause or exigent circumstances to seize the

items from his vehicle. Id. ¶ ¶ 9

- 11. According to Appellant, the items were

not in plain view, as office rs had no lawful right to open the vehicle ’ s door and

look inside

. Id. at ¶¶ 16

- 17. Appellant f urther claimed police had no basis to

search the contents of his phone , and the search warrant was

unconstitutionally overbroad. Id. ¶¶ 27

- 31.

The trial court conducted a suppression hearing on October 28, 2021

.

Following the hearing, the suppression court denied Appellant ’ s motion

. See

N.T. ( Findings and Conclusions) , 11/18/2021, at 9. The court found the

Nissan’s driver had fled the scene and “ the car was left abandon[ed], thus

relinquishing a reasonable expectation of privacy in the vehicle. ” Id. at 7.

The suppression court further found officers had opened the Nissan ’ s door “ to

ensure there was no one inside or injured in the vehicle ” ; “ observed in plain

view the firearm in question laying on the driver ’ s side floor boar d ” ; and

“ observed the marijuana on or near the center console, and the cell phone,

which was on the driver ’ s side seat. ” Id. T he suppression court explained,

t he car was properly towed and the search warrant applied for.

The police were authorized to [tow the vehicle] by the City of

Pittsburgh Police policy , as well as Title 75 [Pa.C.S.A. §]

3352(c)(5) and 3352(b) to tow an abandoned vehicle obstructing

traffic, and also a danger to the flow of traffic.J

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Id. at 7

- 8

.

T he suppression cou rt further found the seizure of the firearm was

supported by probable cause and exigent circumstances. Id. at 8.

Additionally, the suppression court found any illegality related to the seizure

would have been cured by the firearm ’ s inevitable discovery pursuant to an

inventory search. See id.

As to the search of the cell phone ’s data, the court found

t he cell phone was found abandoned in the vehicle and likely

contained evidence of the owner or user of that phone at or around

the time of the crimes in question.

Id. at 9. The suppression court ruled the search warrant was not overbroad

.

Id.

The case proceeded to trial . A jury convi cted Appellant of the above

offenses , and the trial court sentenced Appellant to an aggregate prison term

of one to two years, followed by one year of probation. Appellant timely filed

the instant appeal . Appellant and the tri a l court have complied with Pa.R.A.P.

1925.

Appellant presents the following issues f or review:

I. Whether the suppression court erred in denying

[Appellant ’ s] omnibus pre

- trial motion to suppress the gun

and cell phone, where the police searched his vehicle

without a warrant and there were no exigent circumstances?

II. Whether the suppression court erred in denying

[Appellant ’ s] omnibus pre

- trial motion to suppress the cell

phone, where the search warrant failed to establish probable

cause and the warrant was impermissibly broad?J

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Appellant ’ s Brief at 6 (capitalization modified).

A ppellant first argues the suppression improperly de nied suppression of

the firearm , cell phone and marijuana police found inside the Nissan. Id. at

15. Appellant claims “ police did not have exigent circumstances to justify their

warrantless entry and search of ” the Nissan

. I d. Appellant disputes th e

finding that officers opened the vehicle ’ s door “ to ensure there were no injured

occupants inside. ” Id. at 16. Appellant relies on Officer Szalla ’ s testimony

that, looking thr ough the Nissan ’ s windows , he saw no one inside

. Id.

Additionally, Appellant claims the occupants of the SUV involved in the crash

informed police that the Nissan ’ s driver had fled

. Id. Appellant asserts,

[b] ased on the above facts, the officers clearly knew prior to the

opening of the Nissan ’ s door that the vehicle contained only one

occupant, the driver, and that he was no longer inside but had left

the area. As such, there [were] no exigent circumstances

justifying the officers ’ immediate warrantless entry and sear ch of

the Nissan.

Id. Appellant contends officers “ did not have specific and articulable facts

from which to believe [Appellant] needed aid. ” Id. at 18.

Appellant also claims the suppressio n court improperly applied the

inevitable discovery doctrine. Id. Appellant argues the doctrine does not

apply where the search warrant was premised, “ even in part, on information

obtained from an unlawful search. ” Id. Appellant points out Officer Swarrow ’ s

admission that he did not conduct an inventory search of the Nissan. Id. at

19.J

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When reviewing a ruling on a suppression motion, o ur standard of

review is well settled:

[W]e are bound by the suppression court ’ s factual findings that

are supported by the record [,] but we review its legal

conclusions de novo

. Our scope of review is limited to the record

developed at the suppression hearing, considering the evidence

presented by the Commonwealth as the prevailing party an d any

uncontradicted evidence presented by [the defendant].

Commonwealth v. Kane

, 210 A.3d 324, 329 (Pa. Super. 2019) (citations

and quotation marks omitted).

I t is the suppression court ’ s sole province

, as factfinder

, “ to pass on

the credibility of witnesses and the weight to be given to their testimony

. ”

Commonwealth v. Dutrieville

, 932 A.2d 240, 242 (Pa. Super. 2007)

(quoting Commonwealth v. Elmobdy , 823 A.2d 180, 183 (Pa. Super. 2003)

(citation omitted) )

. “ If the evidence supp orts the findings of the trial court,

those findings bind us and we may reverse only if the suppression court drew

erroneous legal conclusions from the evidence. ” Dutrieville , 932 A.2d at 242

(citation omitted)

.

As this Court has explained,

[b] oth the Fourth Amendment to the United States Constitution

and Article I, Section 8 of the Pennsylvania Constitution protect

individuals from unreasonable searches and seizures by police in

areas where individuals have a r easonable expectation of

privacy. An expectation of privacy exists if a person has a

subjective expectation of privacy that society is willing to

recognize as legitimate and reasonable. Where there exists a

reasonable expectation of privacy, Article I, S ection 8 and the

Fourth Amendment generally require police to obtain a warrant,

issued by a neutral and detached magistrate and founded upon

probable cause, prior to conducting a search or seizure of a personJ

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and/or a person ’ s property, unless one of the few well delineated

exceptions apply.

Commonwealth v. Loughnane

, 173 A.3d 733, 741 (Pa. 2017) (citations

omitted). “ In determining whether a person ’ s expectation of privacy is

legitimate or reasonable, we must consider the totality of the circumstanc es [,]

and the determination ultimately rests upon a balancing of the societal

interests involved. ” Kane

, 210 A.3d at 330 (citation omitted).

To prevail on a suppression motion,

a defendant must demonstrate a legitimate expectation of privacy

in the area searched or effects seized, and such expectation

cannot be established where a defendant has meaningfully

abdicated his control, ownership [,] or possessory

interest. Simply put, no one has standing to complain of a

search or seizure of property that he has voluntarily

abandoned.

Id. (emphasis added) ; see also Commonwealth v. B y rd

, 987 A.2d 786,

790 (Pa. Super. 2009) ( “ It is axiomatic that a defendant has no standing to

contest the search and seizure of items which he has voluntarily abandoned. ”

(citation omitted)).

Abandonment is primarily a question of intent, and intent may be

inferred from words spoken, acts done, and other objective facts.

All relevant circumstances existing at the time of the alleged

abandonment should be co nsidered. The issue is no t

abandonment in the strict property

- right sense, but whether the

person prejudiced by the search had voluntarily discarded, left

behind, or otherwise relinquished his interest in the property in

question so that he could no longe r retain a reasonable

expectation of privacy with regard to it at the time of the search.

Byrd

, 987 A.2d at 790 ( emphasis in original) ( quoting Commonwealth v.

Shoatz

, 366 A.2d 1216

, 1220 (Pa. 1976)).J

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Instantly

, t he suppression court found that following the collision

, the

Nissan ’ s driver “ fled the scene, and the car was left abandon[ed], thus

relinquishing a reasonable expectation of privacy in the vehicle. ” N.T.,

11/18/21, at 7. The suppression court ’ s finding is supported by the evidence.

At the suppression hearing, Officer Szalla testified that on April 26,

2021, at around 4:00 a.m., he and his partner observed a 2014 Nissan Altima

speeding through a residential area. N.T. (Suppression Hearing) , 10/28/22,

at 4

. Officer Szalla pulled his police cruiser behind the Nissan and initiated a

traffic stop. Id. at 5. Although the Nissan pulled over with its brake lights

activated, t he vehicle was not placed in “ park. ” Id. As Officer Szalla

approached, the Nissan fled at a high rate of speed. Id. at 5. After issuing a

radio alert, Officer Szalla and his partner, Officer Swarrow, began canvasing

the area. Id. at 5

- 6.

Two minutes later, the officers received an emergency call reporting a

vehicle accident. Id. at 6. At the accident scene, Officer Szalla found the

Nissan had collided

, head

- on

, with an SUV. I d. Officer Szalla found two

women standing near the SUV. Id. at 6

- 7. After making certain the women

were not injured, Officer Szalla asked if they “ observed the driver. And they

repeated several times, get him, get him. ” Id. at 8. The women indicated

the Nissan had “ wrecked into them. ” Id.

The Nissan was approximately 50 yards from the SUV and stopped in

the middle of Lemington Avenue in Pittsburgh

. Id. at 8, 10. Officer Szalla

recognized the Nissan as the same vehicle that had fled the ir traffic st op. Id.J

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at 8. As the officer s approached the Nissan , they saw “ disabling damage to

the front end consistent with a head

- on collision. ” Id. at 9. Officer Szalla

opened the Nissan’s driver ’ s side door to see if there were injured occupants

inside. Id. He explained, “ I was making sure that the driver was not injured,

or that he would not be underneath the steering wheel, or anything like that. ”

Id. at 13.

After opening the door, Officer Szalla saw the Nissan ’ s driver

- side airbag

was deployed. Id. at 19, 41. In plain view, he observed “ a firearm on the

driver floorboard and a small amount of marijuana near the gearshift[.] ” Id.

at 9. Officers also found a cell phone, on the driver ’ s seat, in plain view. Id

.

Upon check ing the Nissan ’ s license plate, officers learned the vehicle was

registered to Appellant. Id. at 16.

Officer Swarrow secured the firearm for safety reasons: “ I observed the

firearm, it looked in good operable shape. I could not tell if the safety was on

the firearm or not. ” Id. at 28. According to Officer Swarrow , he sei zed the

firearm so “ it will not discharge or anything during the tow. ” Id. In addition,

Officer Swarrow stated :

T here was a cell phone on the driver ’ s seat of the vehicle. And

the cell phone was receiving incoming text messages and calls at

the time.

....

... W e seized the cell phone for evidence because we observed it

had a low battery and in our training and knowledge, once the

phone reaches a certain low battery percentage or i t dies, there ’ s

a lot of data that ’ s lost.J

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Id. at 18. Appellant later confirmed tha t he, alone, had the passcode to unlock

the phone. Id. at 37.

The officers had the vehicle towed to the police station pending their

application for a search warrant. Id. at 18. According to Officer Swarrow,

the vehicle was towed because it was in operable and obstructing traffic. Id.

at 32.

Officers went to Appellant ’ s house between 5:00 and 6:00 a.m. that

morning, but no one answered the door. Id. at 35. At ab out 9:00 a.m. that

same day, Appellant reported to police that his Nissan Altima was stolen. Id.

at 36. Appellant told police his cell phone was inside of the vehicle. Id. at

37. Appellant confirmed that he, alone, knew the cell phone ’ s unique

passcode. Id. at 47.

Based on the foregoing, the record supports the suppression court ’ s

finding that Appellant had abandoned the vehicle following the collision.

Consequently , Appellant lacked standing to “ contest the search and seizure of

items which he has voluntarily abandoned. ” Byrd

, 987 A.2d at 790 (citation

omitted)

.

However, e ven if Appellant had not abandoned the vehicle and its

contents, we would affirm the suppression court ’ s ruling. One exception to

the warrant requirement is the “ emergency aid exception, ” which our Supreme

Court has characterized as belonging to a broader group of exceptions justified

by the “ community caretaking doctrine. ” Commonwealth v. Livingstone

,

174 A.3d 609, 627 (Pa. 2017). Under the community caretaking doctrine,J

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certain warrantless actions of pol ice officers do not offend constitutional

principles

, because police are motivated by a “ desire to render aid or

assistance, rather than the investigation of criminal activity. ” Id. at 627.

The Fourth Amendment does not prevent police officers from conducting

a warrantless entry and search when they reasonably believe a person needs

immediate aid

. Commonwealth v. Edgin

, 273 A.3d 573, 584 (Pa. Super.

2022).

The calculus of reasonableness mu st embody allowance for the

fact that police officers are often forced to make split

- second

judgments

— in circumstances that are tense, uncertain, and

rapidly evolving. Additionally, it is a matter of common sense that

a combination of events [,] each of which is mundane when viewed

in isolation [,] may paint an alarming picture.

Commonwealth v. Coughlin

, 199 A.3d 401, 40 7 (Pa. Super. 2018) ( en

banc ) (citation omitted)

. T he intrusion “ must be co mmensurate with, and

limited to, the perceived need to provide immediate assistance [.] ”

Commonwealth v. Wilmer , 194 A.3d 564, 571 (Pa. 2018).

In addition, the “ plain view doctrine ” permits a valid warrantless seizure

of an item where: (1) the police have not violated the Fourth Amendment in

arriving at the location from which the item could be viewed; (2) the item is

in plain view; (3) the incriminating character of the item is immediately

apparent; and (4) the police have a lawful right of access to the item

itself. Commonwealth v. Luczki

, 212 A.3d 530, 546 (Pa. Super. 2019)

(citation omitted). Significantly, “ [p] o lice may seize any evidence that is inJ

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plain view during the course of their legitimate emergency activities. ” Mincey

v. Arizona , 437 U.S. 385, 393 (19 78).

Instantly, officers found the Nissan Altima at the accident scene with

s ignificant damage indicative of a head

- on collision. N.T. (Suppression

Hearing)

, 10/28/22, at 9. Officer Szalla opened the Nissan ’ s driver door to

check for injured occupants. Id. at 9, 13. As Officer Szalla explained, “ I was

making sure that the driver was not injured, or that he would not be

underneath the steering wheel, or anything like that. ” Id. at 13.

T h e suppression court found th e officers entered the vehicle because of

the potential fo r injured occupants who would need aid

. See N.T. (Findings

and Conclusions) , 11/18/22, at 8. Further, the officers observed the firearm,

marijuana and cell phone , in plain view, w hile perform ing the se legitimate

emergency duties

. See i d. Th us, the suppression court’s findings are

supported by the evidence discussed above. Even if Appellant had not

abandoned the vehicle and its contents, suppression of the firearm,

marijuana, and cell phone was not warranted. See Mincey , 437 U.S. at 393;

Livingstone , 174 A.2d at 627. Appellant ’ s first issue merits no relief.

Appellant next argues the trial court improperly denied suppression of

evidence resulting from the search of his cell phone

. Appellant ’ s Brief at 20

.

Appellant claim s the search warrant for the phone was unconstitutionally

overbroad, and police lacked pr obable cause to support the search. Id.

Appellant contends that after he had reported the Nissan and cell phone

stolen,J

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police had no reason to search the cell phone for the purpose of

discovering its owner, as they were already in possession of such

information

– it was [Appellant]. Besides, the warrant was not

supported by probable cause to believe that [Appellant ’ s] cell

phone contained evidence of criminal activity.

Id. at 21.

Appellant argues, e ven if probable cause exists, the search warrant was

overbroad. Id. at 22. Appellant asserts there was no justification to search

every call, communication, photo, video, or data on the phone ’ s SIM card. Id.

at 24

- 25. According to Appellant, “ The broad search authorized by the

warrant impermissibly revealed a large number of items unrelated to the

criminal investigation. ” Id. at 25. Appellant argues, “ there was an

unreasonable discrepancy between the limited reason for probable cause and

searchin g practically all the phone ’ s data. ” Id.

The suppression court rejected this claim :

As to the issue of the search warrant for the cell phone, the

[suppression c]ourt finds that based on the totality of the

circumstances, the cell phone was found abandon ed in the

vehicle and likely contained evidence of the owner or user of that

phone at or around the time of the crimes in question.

Id. at 9 (emphasis added). T he trial court reiterated, “ The cell phone was

clearly abandoned and likely contained evidence of the owner or user of the

phone at or around the time of the crimes. ” Trial Court Opinion, 9/28/22, at

11. The suppression court’s finding of abandonment is supported by the

evidence

. Because the phone was abandoned, Appellant lacked standing toJ

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contest its search and seizure. 3 See Kane

, 210 A.3d at 330

. Accordingly,

Appellant’s second issue d oes not meri t relief.

Judgment of sentence affirmed.

Judge McLaughin joins the opinion.

Judge Pellegrini files a dissenting opinion.

11/3/2023

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3 Given this disposition, we need not address whether the sea rch warrant was

unconstitutionally overbroad.