J-A27039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEITH ALEXANDER : : Appellant : No. 3246 EDA 2017
Appeal from the Judgment of Sentence Entered September 12, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005971-2016
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 05, 2019
Keith Alexander appeals the judgment of sentence entered on
September 12, 2017, after the trial court found him guilty of knowing and
intentional possession of a controlled substance (“K&I”) and possession with
intent to deliver a controlled substance (“PWID”).1 Alexander maintains that
the police officers who conducted a traffic stop of his vehicle lacked probable
cause to search his vehicle and a locked container they found in his vehicle.
He also suggests that our Supreme Court’s decision in Commonwealth v.
Gary, 91 A.3d 102 (Pa. 2014), should be overruled. We affirm.
The facts and procedural history giving rise to this appeal are as follows.
The Commonwealth charged Alexander with a number of drug offenses
including the above referenced offenses. The charges arose after Alexander
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1 35 P.S. §§ 780-113(a)(16), (30). J-A27039-18
was arrested for driving under the influence of narcotics. While searching his
vehicle, policer officers recovered ten bundles of heroin. Alexander filed a
Motion to Suppress the narcotics recovered as well as any statement made by
him, arguing that the police officers lacked reasonable suspicion and probable
cause to “detain, stop, frisk, search, or question” him. N.T., Suppression
Motion, 6/5/17 at 3.
The Commonwealth presented the following evidence at the Motion to
Suppress hearing. Officer Joshua Godfrey testified that on the day in question,
he was on duty with his partner Officer Catherine Ernst and around 2:30 a.m.
he observed Alexander driving a vehicle. Id. at 3-4. There were no other
vehicles on the road at the time. Id. at 6-7. While waiting at a red light, Officer
Godfrey noticed an “extremely overpowering smell of burnt marijuana”
coming from Alexander’s vehicle, which was in front of him. Id. Officer
Godfrey testified that the windows of his vehicle, as well as Alexander’s
windows, were down. He said he pulled next to Alexander’s vehicle after the
light turned green. Id. at 7, 14. Officer Godfrey continued to follow Alexander
for approximately nine blocks, during which time he continued to smell
marijuana. Id. at 8. The only vehicles on the road the entire time were Officer
Godfrey’s and Alexander’s. Id. Officer Godfrey then conducted a traffic stop
of Alexander’s vehicle. Id. Officer Godfrey got out of his vehicle and
approached Alexander, who was in the driver’s seat. There was also a woman
in the front passenger seat. Id. at 8, 11. He testified that when he approached
the vehicle, the smell of marijuana became stronger. Id. He also observed
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that Alexander’s eyes were bloodshot, and Alexander spoke slowly and in “a
hush, little whisper.” Id. at 8-9. Officer Godfrey asked Alexander if there was
marijuana in the vehicle and Alexander gave him one baggie of marijuana that
he pulled from his crotch. Id. at 10. Alexander also admitted “he had just
smoked–he and his passenger just smoked a blunt.” Id. at 10.
Officer Godfrey then placed Alexander under arrest for suspicion of
driving under the influence of narcotics. Id. at 11. Officer Godfrey testified
that based on his one and one half years’ experience as a police officer; his
personal experience of being a manager of nightclubs in Atlantic City;
encountering individuals under the influence of marijuana at least 50 times in
his life; Alexander’s speech; the overpowering smell of marijuana; Alexander’s
admission that he had just smoked a “blunt” in the vehicle; as well as the
marijuana that he handed over, Officer Godfrey believed that Alexander was
under the influence of marijuana and unfit to drive. Id. at 9-10. After arresting
Alexander, Officer Godfrey found a locked silver box behind the driver’s seat.
Id. at 12. The key for the lockbox was in Alexander’s pocket and Officer
Godfrey took the key and unlocked it. Id. at 12-13. Officer Godfrey recovered
a total of ten bundles of heroin, packaged in paper packages stamped
“Buddha,” from inside the lockbox. Id. at 11-12.
The trial court denied the motion and Alexander waived his right to a
jury trial and proceeded with a bench trial the same day. Id. at 30. The trial
court found him guilty of PWID and K&I. It sentenced him on a later date. This
timely appeal followed.
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Alexander raises the following issues:
I. Did not the lower court err in denying [Alexander’s] motion to suppress evidence recovered from a locked metal safe, where officers took a key from [Alexander’s] pocket and opened the lockbox but lacked probable cause to search the vehicle and a warrant to search the lockbox?
II. Should not Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), be overruled as an anomaly inconsistent with the fundamental principles of Article I, Section 8 of the Pennsylvania Constitution and other cases of the Pennsylvania Supreme Court?
Alexander’s Br. at 3.
Our standard of review of the denial of a motion to suppress is “limited
to determining whether the suppression court’s factual findings are supported
by the record and whether the legal conclusions drawn from those facts are
correct.” Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015)
(citation omitted).
Alexander admits that “[t]he odor of burnt marijuana and [his]
admission that he had just smoked ‘a blunt’ gave Officer Godfrey probable
cause to arrest [him] for DUI.” Alexander’s Br. at 12. However, he maintains
that Officer Godfrey did not have probable cause to search the lockbox
because “there were no additional facts or circumstances articulated by Officer
Godfrey to justify a reasonable belief that more marijuana would be found in
a locked lockbox, an area where a driver would have a greater expectation of
privacy.” Id. In support of his argument he cites Commonwealth v. Long,
414 A.2d 113 (Pa. 1980), which held that a warrantless search of the trunk of
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an automobile was unreasonable where officers lacked probable cause to
search the vehicle. Long, 414 A.2d at 117. Alexander argues that “[a] locked
lockbox is similar to a locked trunk.” Alexander’s Br. at 12. We disagree.
“As a general rule, for a search to be reasonable under the Fourth
Amendment [of the United States Constitution] or Article I, Section 8 [of the
Pennsylvania Constitution], police must obtain a warrant, supported by
probable cause and issued by an independent judicial officer, prior to
conducting the search.” Gary, 91 A.3d at 107. An exception to this general
rule is the search and seizure of vehicles. Id. Pennsylvania constitutional law
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J-A27039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEITH ALEXANDER : : Appellant : No. 3246 EDA 2017
Appeal from the Judgment of Sentence Entered September 12, 2017 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005971-2016
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 05, 2019
Keith Alexander appeals the judgment of sentence entered on
September 12, 2017, after the trial court found him guilty of knowing and
intentional possession of a controlled substance (“K&I”) and possession with
intent to deliver a controlled substance (“PWID”).1 Alexander maintains that
the police officers who conducted a traffic stop of his vehicle lacked probable
cause to search his vehicle and a locked container they found in his vehicle.
He also suggests that our Supreme Court’s decision in Commonwealth v.
Gary, 91 A.3d 102 (Pa. 2014), should be overruled. We affirm.
The facts and procedural history giving rise to this appeal are as follows.
The Commonwealth charged Alexander with a number of drug offenses
including the above referenced offenses. The charges arose after Alexander
____________________________________________
1 35 P.S. §§ 780-113(a)(16), (30). J-A27039-18
was arrested for driving under the influence of narcotics. While searching his
vehicle, policer officers recovered ten bundles of heroin. Alexander filed a
Motion to Suppress the narcotics recovered as well as any statement made by
him, arguing that the police officers lacked reasonable suspicion and probable
cause to “detain, stop, frisk, search, or question” him. N.T., Suppression
Motion, 6/5/17 at 3.
The Commonwealth presented the following evidence at the Motion to
Suppress hearing. Officer Joshua Godfrey testified that on the day in question,
he was on duty with his partner Officer Catherine Ernst and around 2:30 a.m.
he observed Alexander driving a vehicle. Id. at 3-4. There were no other
vehicles on the road at the time. Id. at 6-7. While waiting at a red light, Officer
Godfrey noticed an “extremely overpowering smell of burnt marijuana”
coming from Alexander’s vehicle, which was in front of him. Id. Officer
Godfrey testified that the windows of his vehicle, as well as Alexander’s
windows, were down. He said he pulled next to Alexander’s vehicle after the
light turned green. Id. at 7, 14. Officer Godfrey continued to follow Alexander
for approximately nine blocks, during which time he continued to smell
marijuana. Id. at 8. The only vehicles on the road the entire time were Officer
Godfrey’s and Alexander’s. Id. Officer Godfrey then conducted a traffic stop
of Alexander’s vehicle. Id. Officer Godfrey got out of his vehicle and
approached Alexander, who was in the driver’s seat. There was also a woman
in the front passenger seat. Id. at 8, 11. He testified that when he approached
the vehicle, the smell of marijuana became stronger. Id. He also observed
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that Alexander’s eyes were bloodshot, and Alexander spoke slowly and in “a
hush, little whisper.” Id. at 8-9. Officer Godfrey asked Alexander if there was
marijuana in the vehicle and Alexander gave him one baggie of marijuana that
he pulled from his crotch. Id. at 10. Alexander also admitted “he had just
smoked–he and his passenger just smoked a blunt.” Id. at 10.
Officer Godfrey then placed Alexander under arrest for suspicion of
driving under the influence of narcotics. Id. at 11. Officer Godfrey testified
that based on his one and one half years’ experience as a police officer; his
personal experience of being a manager of nightclubs in Atlantic City;
encountering individuals under the influence of marijuana at least 50 times in
his life; Alexander’s speech; the overpowering smell of marijuana; Alexander’s
admission that he had just smoked a “blunt” in the vehicle; as well as the
marijuana that he handed over, Officer Godfrey believed that Alexander was
under the influence of marijuana and unfit to drive. Id. at 9-10. After arresting
Alexander, Officer Godfrey found a locked silver box behind the driver’s seat.
Id. at 12. The key for the lockbox was in Alexander’s pocket and Officer
Godfrey took the key and unlocked it. Id. at 12-13. Officer Godfrey recovered
a total of ten bundles of heroin, packaged in paper packages stamped
“Buddha,” from inside the lockbox. Id. at 11-12.
The trial court denied the motion and Alexander waived his right to a
jury trial and proceeded with a bench trial the same day. Id. at 30. The trial
court found him guilty of PWID and K&I. It sentenced him on a later date. This
timely appeal followed.
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Alexander raises the following issues:
I. Did not the lower court err in denying [Alexander’s] motion to suppress evidence recovered from a locked metal safe, where officers took a key from [Alexander’s] pocket and opened the lockbox but lacked probable cause to search the vehicle and a warrant to search the lockbox?
II. Should not Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), be overruled as an anomaly inconsistent with the fundamental principles of Article I, Section 8 of the Pennsylvania Constitution and other cases of the Pennsylvania Supreme Court?
Alexander’s Br. at 3.
Our standard of review of the denial of a motion to suppress is “limited
to determining whether the suppression court’s factual findings are supported
by the record and whether the legal conclusions drawn from those facts are
correct.” Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015)
(citation omitted).
Alexander admits that “[t]he odor of burnt marijuana and [his]
admission that he had just smoked ‘a blunt’ gave Officer Godfrey probable
cause to arrest [him] for DUI.” Alexander’s Br. at 12. However, he maintains
that Officer Godfrey did not have probable cause to search the lockbox
because “there were no additional facts or circumstances articulated by Officer
Godfrey to justify a reasonable belief that more marijuana would be found in
a locked lockbox, an area where a driver would have a greater expectation of
privacy.” Id. In support of his argument he cites Commonwealth v. Long,
414 A.2d 113 (Pa. 1980), which held that a warrantless search of the trunk of
-4- J-A27039-18
an automobile was unreasonable where officers lacked probable cause to
search the vehicle. Long, 414 A.2d at 117. Alexander argues that “[a] locked
lockbox is similar to a locked trunk.” Alexander’s Br. at 12. We disagree.
“As a general rule, for a search to be reasonable under the Fourth
Amendment [of the United States Constitution] or Article I, Section 8 [of the
Pennsylvania Constitution], police must obtain a warrant, supported by
probable cause and issued by an independent judicial officer, prior to
conducting the search.” Gary, 91 A.3d at 107. An exception to this general
rule is the search and seizure of vehicles. Id. Pennsylvania constitutional law
governing warrantless searches of motor vehicles is coextensive with federal
law under the Fourth Amendment. Id. at 138. A warrantless search of a
vehicle is appropriate where officers have probable cause to search. Id. “No
exigency beyond the inherent mobility of a motor vehicle is required.” Id.
Once an officer has probable cause to search a motor vehicle, the search of
that vehicle includes everything inside that the officer believes may contain
the contraband giving rise to the search. See Wyoming v. Houghton, 526
U.S. 295, 307 (1999) (“[S]uch a package may be searched, whether or not
its owner is present as a passenger or otherwise, because it may contain the
contraband that the officer has reason to believe is in the car.”); see also In
re I.M.S., 124 A.3d 311, 317 (Pa.Super. 2015) (stating rule of Houghton
applies in light of the holding in Gary).
As stated above, Alexander acknowledges that Officer Godfrey had
probable cause to search his vehicle due to the heavy smell of marijuana,
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which is correct. See In Interest of A.A., 195 A.3d 896, 904 (Pa. 2018) (“the
odor of marijuana alone, particularly in a moving vehicle, is sufficient to
support at least reasonable suspicion, if not the more stringent requirement
of probable cause”); see also Commonwealth v. Stoner, 344 A.2d 633,
635 (Pa.Super. 1975) (analogizing plain smell of marijuana with plain view of
marijuana). However, he maintains that we should treat the lockbox like a
locked trunk, for which we have in some cases required police to obtain a
warrant before conducting a search. See Long, 414 A.2d at 116-17
(concluding search of a locked automobile trunk was unreasonable where
officers lacked probable cause to search the vehicle); see also
Commonwealth v. Pleummer, 617 A.2d 718, 719 (Pa.Super. 1992).
Alexander’s reliance on Long and Pleummer is misplaced. Those
decisions predate Gary, which adopted federal precedent governing
automobile searches, including the automobile exception, and here there was
probable cause to search Alexander’s vehicle. As such, Officer Godfrey was
free to search any container within the vehicle that he reasonably believed
could contain the contraband that gave rise to the arrest. See
Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa.Super. 2017)
(concluding officer had probable to search vehicle and therefore was permitted
to search any container found in vehicle where contraband could be found).
Additionally, the fact that the lockbox was locked is immaterial because prior
to opening it, Officer Godfrey had probable cause to search the vehicle. See
Houghton, 526 U.S. at 307. No relief is due.
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Next, Alexander argues that Gary should be overruled. He
acknowledges that “this Court cannot overrule a holding of the Pennsylvania
Supreme Court,” and apparently makes this claim only to preserve the
argument for further review. Alexander’s Br. at 20. We thus affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/5/19
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