Com. v. Dunn, E.

• Court: Superior Court of Pennsylvania
• Decided: September 29, 2014
• Docket: 1568 EDA 2011
• Status: Unpublished

Opinion

J. A04042/12

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : ERIC DUNN, : : Appellee : No. 1568 EDA 2011

Appeal from the Order Entered May 6, 2011 In the Court of Common Pleas of Delaware County Criminal No(s).: CP-23-CR-0004639-2009

BEFORE: BENDER, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 29, 2014

This Commonwealth appeal returns to this panel after our Supreme

Court vacated our decision in this suppression/vehicle stop case, 1 affirming

of the order of the Delaware County Court of Common Pleas, granting in part

and denying in part the suppression motion of Appellee, Eric Dunn. This

panel applied the then-

required both probable cause and exigent circumstances for a warrantless

search of a vehicle. Our Supreme Court reversed and remanded to this

Court in light of Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which

* Former Justice specially assigned to the Superior Court. 1 Commonwealth v. Dunn, 777 MAL 2012 (order) (Pa. filed Jul. 1, 2014) (vacating Commonwealth v. Dunn, 1568 EDA 2011 (unpublished J. A04042/12

abandoned the limited automobile exception. We now hold that the search

of the vehicle was legal under Gary, and furthermore that the search of a

closed safe in plain view was legal.2 Accordingly, we reverse the

le.3

The underlying order suppressed evidence obtained from the 4 including the contents of a

gs of fact as follows. See

Adjudication at 1-7.5

On the evening of September 27, 2007, Collingdale Borough Police

Officer Robert Marvil was wearing plain clothes and operating an unmarked

up from

Id. at 1. The car swerved and passed the officer on his right,

almost striking his vehicle. Officer Marvil followed the car, a silver Mercury

2 As we discuss infra, the safe had a latch on it, but the latch was not locked. 3 The Commonwealth does not challenge the portion of the order denying A disturb that portion. 4 Appellee was the driver of the vehicle and the vehicle was registered to him. Adjudication, 5/6/11, at 17. The trial court held that Appellee established a privacy interest in the car and thus standing to challenge the search of it. Id. at 16-17. 5

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sedan, but having no emergency lights or warning devices, he was unable to

signal the car to

passing both to the left and right of other traffic almost striking another

Id. at 2. Officer Marvil reported this incident via radio and

The car sto

Id. Officer Marvil exited his vehicle, approached the Mercury,

shut- Id. As he came within f

Id.

Officer Marvil again followed the vehicle, and Darby Borough Police

Officer Brian Evans, who had heard the radio reports, took pursuit in his

marked police vehicle, with his ligh

Id. at 3. The car

Id. ed upon

the subject vehicle to render it clearly illuminated and assure the police

Id. Other officer

- Id.

Officer Evans approached the car and saw the driver, who was

Id. Officer Evans stood at the

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marijuana waf Id.

The officers removed Appellee, as well as a juvenile front passenger

and a driver-side rear passenger from the car, and took them to the rear of

Id. at 4. Because the area was a high crime and drug area, and

because of -down search

of Appellee and the occupants. They recovered approximately $885 and a

The officer -latch was unlocked and

the top of its lid powdered with a white residue, which he believed was . . .

Id. Id.

the officer entered the passenger compartment to inspect the safe . . . it

became clear that the odor of fresh marijuana was emanating from the

Id. Officer Evans retrieved and opened the safe at the scene. It

contained:

one clear plastic bag containing 39 small red glassine bags containing a white powdery substance; one clear plastic bag containing 22 small red baggies containing a white

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containing 16 glassine bags containing a white powdery substance; one clear plastic bag containing three tin foil balls each containing a white powdery substance; one clear plastic bag containing four glassine bags containing a green vegetable-like matter; four clear plastic bags containing a loose vegetable-like matter; several new baggies commonly used to package crack cocaine or marijuana; [$50]; and[ ] a small composition notebook.

Id.6 Subsequent testing confirmed that the white powder and vegetable-like

contents Id. at 6.

The trial court found that Officer Marvil possessed reasonable suspicion

to conduct a vehicle stop for suspected reckless driving, careless driving,

driving at an unsafe speed, and improper passing to the right. Id. at 19-20.

The court also found that the officers lawfully conducted a pat-down search

recovered from his person. Id. at 22.

However, the court found that by removing the occupants of the car to

need . . . to enter the vehicle for self- Id. at 11. The court

Id. at 23.

6 In addition, Officer Evans testi

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figuratively) reeked of the prospect of the possession of marijuana and

information to suggest the continuing and actual presence of contraband

was generated only after Officer Evans entered the car and retrieved the

of the vehicle nor his removal of the safe . . . was conducted incident to an

Id. at 24. The court thus

held the

suppress evidence obtained from the passenger compartment and from the

safe. Id.

Appellee was arrested and charged with possession of a controlled

substance, possession with intent to deliver a controlled substance,

possession of drug paraphernalia, and eight violations of the Motor Vehicle

Code, including, careless driving and reckless driving. He filed a motion to

suppress, and the court held a hearing on May 27, 2010. After the

suppression judge passed away, the matter was reassigned to another

recovered from his vehicle. Id. at 24.

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The Commonwealth took this timely appeal.7 On September 5, 2012,

this panel affirmed the suppression order. As stated above, we applied the

then-

vehicle searches must be accompanied not only by probable cause, but also

10 (citing Commonwealth v. Liddie, 21 A.3d 229, 233 (Pa. Super. 2011)

(en banc

from its federal corollary which permits the warrantless seizure of

contraband from a vehicle without first establishing certain additional

Liddie, 21

A.3d at 234 n.7). We further noted that in May of 2012, the Pennsylvania

Supreme Court granted allowance of appeal in Commonwealth v. Gary, 44

10-11 n.8.

The Supreme Court issued a decision in Gary on April 29, 2014, the

holding of which we will discuss infra. On July 1, 2014, the Court vacated

our decision and remanded this case in light of Gary. This panel did not

request new briefs from the parties.

The Commonwealth presents the following questions for our review:

7 Our review of the record indicates there was no Pa.R.A.P. 1925(b) order and no 1925(b) statement filed by the Commonwealth.

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1. Did the trial court err as a matter of law by suppressing evidence of illegal drugs seized from an unlocked safe which smelled of marijuana, had cocaine residue on its lid and was located in plain view on the front seat of a vehicle during the course of a lawful vehicle stop?

2. Did the trial court err by concluding that the police lacked probable cause to search the vehicle where the strong odor of marijuana coming from the vehicle was immediately obvious to the officer?

conclude that the police could lawfully enter the vehicle to search for the marijuana?

4. Did the trial court err by concluding that the police could not lawfully seize the drugs from within the unlocked safe where: (a) the police had lawful access to the safe

of marijuana in the safe was immediately apparent, and (c) the police observed the safe from a lawful vantage point?

legal authority Id. at 12.

First, the Commonwealth argues the court erred in finding the police lacked

probable cause to search the car, and maintains that the odor of marijuana

believe that a crime was being committed and that contraband was in

Id. at 17-18. The Commonwealth then alleges the court

erred in applying the limited automobile exception because the officers did

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not

8 Id. at 26, 27. The Commonwealth also

apparent to the police based upon the white powder on its lid and the odor

Id. at 27. Pursuant to

Gary, we hold the search of the interior of the vehicle and seizure of its

contents was legal.

We note the relevant standard of review:

When the Commonwealth appeals from a suppression order, this Court may consider only the evidence from the

prosecution that, when read in the context of the record as a whole, remains uncontradicted. In our review, we are

and we must determine if the suppression court properly applied the law to the facts. We defer to the suppression

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

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (citations omitted).

In Gary, the Pennsylvania Supreme Court announced:

[W]e now hold that with respect to a warrantless search of a motor vehicle that is supported by probable cause,

8 A careful review of the Commo claims the limited automobile exception applied in this case, its arguments instead relate to the plain view doctrine. Nevertheless, we now consider this appeal under Gary, which abandoned the limited automobile exception.

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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 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.

We also note:

a prudent individual in believing that an offense was

determining whether probable cause exists, we must consider the totality of the circumstances as they appeared to the arresting officer. Additio required to establish probable cause for a warrantless search must be more than a mere suspicion or a good faith

Commonwealth v. Copeland, 955 A.2d 396, 400 (Pa. Super. 2008)

(citations omitted).

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It is not the mere possession of such containers, but rather the totality of the circumstances which dictated the

the package contained narcotics constituted a reasonable inference based on the facts known to him at the time of the arrest.] In none of the [federal cases cited by the defendant] did the courts find that the mere observation of a container or package, the likes of which an officer has known, in the past, to contain narcotics, was sufficient to establish probable cause. Instead, it was the holdings of those courts that when viewed together with the additional incrimin of suspect containers and/or packages are appropriate factors to consider in ascertaining whether the warrantless arrest was supported by probable cause.

Hudson, 92 A.3d at 1243 n.6 (quoting Commonwealth v. Evans, 685

A.2d 535, 538 (Pa. 1996)).

Pursuant to Gary and Hudson, we review whether the officers had

probable cause to conduct, first, the warrantless search of the vehicle and

second, the warrantless search of the safe. See Gary 91 A.3d at 104, 138;

Hudson, 92 A.3d at 1241 (stating that under Gary, salient question for

suppression court was whether police officers had probable cause to conduct

warrantless search).

The suppression court found the officers had reasonable suspicion to

stop Appellee for suspected violation of Vehicle Code offenses:

wildly reckless maneuvers which reasonably offered

the Vehicle Code. See generally 75 Pa.C.S.A. § 3736 (Reckless driving), § 3714 (Careless driving), § 3361 (Driving at safe safe) & § 3304 (Improper passing to the right). See also 75 Pa.C.S.A. § 6308 (Investigation by Police Officer-Duty of Operator to Stop[).]

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* * *

[ ] The circumstances presented to Officer Marvil after seeing the Mercury nearly strike his unmarked police car and thereafter proceed through other traffic in a hazardous

justifying a traffic stop to issue a ticket to the vehicle operator.

Adjudication at 19, 20.

However, we hold that under Commonwealth v. Chase, 960 A.2d

108 (Pa. 2008), the proper quantum of cause was probable cause.9 See

Chase, 960 A.2d at 116 (requiring police to have probable cause to conduct

purposes of a Terry stop do not exist maintaining the status quo while

Nevertheless, we would hold that Officer Marvil possessed the requisite

We next consider whether the officers had probable cause to conduct a

warrantless search of the vehicle. See Gary, 91 A.3d at 104, 138. Under

the totality of the circumstances as found by the trial court, we hold Officer

9 See also Commonwealth v. Landis, 89 A.3d 694, 703 (Pa. Super. 2014) (holding that under Chase, showing of probable cause was necessary to justify vehicle stop for violation under driving roadways laned for traffic, 75 Pa.C.S. § 3309, where there was no express indication that trooper stopped defendant in order to conduct additional investigations into DUI or other impairments of his ability to drive safely).

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Marvil had probable cause to believe that Appellee possessed an illegal

substance in the vehicle. See Copeland, 955 A.2d at 400. As Officer Evans

rom the vehicle when Appellee opened his window. Id.

We must further consider, however, the distinct question of whether

the police could search the contents of the closed safe. In the recent

Superior Court opinion of Hudson, decided post-Gary, this Court affirmed

the suppression of pill bottles found in the center console of a car. Hudson,

92 A.3d at 1242-43. In that case, police officers conducted a valid vehicle

stop of the defendant. Id. at 1242.

While effectuating the traffic stop, the officers noticed [the defendant] reaching toward the center console of the automobile. [After the officers reached the vehicle and

the officers asked [the defendant] and his passenger to exit the vehicle, whereupon [one of the officers] conducted a protective sweep of the car for the safety of the officers. It was during this search that [the officer] opened the center console and saw three pill bottles. Two pill bottles had the labels partially removed, while the label on the

[The officer] seized the pill bottles and arrested [the defendant]. The pill bottles were later determined to contain prescription pain medication. [The defendant] was charged with possession of a controlled substance with intent to deliver and possession of a controlled substance.

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Id. at 1242.

The trial court suppressed the pill bottles. Id.

that it was impossible for the officers . . . to determine that these

prescription bottles contained illegal substances because the contents of the

bottles wer Id. at 1242. The court noted that

Poison Control to conduct testing in order to determine that these were

Id. The trial court further found:

These officers should have secured the vehicle and obtained a proper warrant in order to open the pill bottles and conduct testing on the contents therein. The reasonableness for a warrantless search ceased when [the officer] observed the bottles in the compartment but could not immediately recognized [sic] the contents. His intent in conducting this search was for weapons for officer safety. Once no weapon was observed, any warrantless basis for his search ended due to his acknowledged inability to make a determination that the pill bottles contained contraband just by plain observation.

Id. (emphasis added).

On appeal, this Court agreed:

that while the pill bottles themselves were in plain view, the contents of those bottles were not immediately apparent, and a pill bottle by itself is not contraband. The potentially incriminating contents of the pill bottles were not discovered until after they were improperly seized, searched, and tested, thereby proving

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view exception had not been satisfied.

. . . The two pill bottles that had their labels partially removed were next to a pill bottle with an intact label bearing [the

that [the defendant] had pill bottles in his car, with one bearing his name, without more, did not place the contents of the bottles in plain view and did not establish probable cause.[ ]

Id. at 1242-43.

We find the facts in the case sub judice are distinguishable from those

in Hudson. Here, as Officer Evans approached the vehicle, he saw Appellee

at as if he were

present in Hudson,10 in this case we have the additional factor of Officer

when Appellee opened his window. Id. Furthermore, the safe was in plain

Id. at 4. After

Appellee and his passengers were removed from the vehicle, the officers

conducted a valid under Gary warrantless search of the car. Officer

Evans observed a white residue on the top of the safe, which he believed

was cocaine. Id. at 5. Although the contents of the safe were not visible, it

10 See Hudson, 92 A.3d at 1236 (stating as officers approached vehicle, they noticed defendant reaching toward center console).

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fro Id.

Id. We hold that the totality of the circumstances lended the officer

probable cause to search the safe for narcotics. See Hudson, 92 A.3d at

1243 n.6. Accordingly, after applying the dictates of Gary and Hudson, we

vehicle. We thus reverse the portion of the order granting Appel

to suppress this evidence.

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/29/2014

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