Com. v. Fulton, A.

2025 Pa. Super. 211

• Court: Superior Court of Pennsylvania
• Decided: September 19, 2025
• Docket: 686 EDA 2025
• Status: Published

Opinion

J-S30019-25

2025 PA Super 211

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ANDRE N. FULTON : No. 686 EDA 2025

Appeal from the Order Entered February 13, 2025 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003402-2023

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E. *

DISSENTING OPINION BY FORD ELLIOTT, P.J.E.:

FILED SEPTEMBER 19, 2025

I respectfully dissent from the Majority determination that the search of

the opaque black bag in Appellee’s car was beyond the scope of the consent

given by Appellee to the troopers.

The Majority correctly relies on the rule in Commonwealth v. Valdiva,

195 A.3d 855, 868 (Pa. 2018), that the “the scope of a search is controlled by

the scope of consent given, which, in turn, is determined pursuant to a

reasonable person standard under the circumstances at the time the exchange

between the officer and the suspect occurs.” Under the facts and credibility

determinations presented here, I believe the troopers acted within the scope

of the consent provided by Appellee for the troopers to enter his car and find

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* Retired Senior Judge assigned to the Superior Court. J-S30019-25

both his cell phone and key fob for the car while he was being treated by

ambulance personnel.

In asking the troopers to search his car for the phone and fob, Appellee

did not specify where the requested items would be found inside his car.

Although seeing the phone immediately upon entry, the troopers could not

locate the key fob in any of the first locations inspected. Importantly, the

troopers confirmed that the fob likely was inside the car, as the engine turned

on at the press of the start button.

At that point, it was reasonable for the troopers to continue to search

the interior of the car for the key fob, consistent with Appellee’s request. Based

on the broad consent given to retrieve the requested items, I believe the

troopers had Appellee’s permission to look under the seats, in a closed purse

or valise, a jacket pocket, and even the black shopping bag in the back seat.

These are locations where someone is likely to have placed their car key. In

other words, the unsealed plastic shopping bag in the back seat of the car was

within “the scope of consent [] based on what a reasonable person would have

understood by the exchange that occurred between” the troopers and

Appellee. Valdivia, 195 A.3d at 869. Notably, the troopers did not disturb the

sealed box in the back seat, where the key fob could not reasonably be

believed to be located.

As I believe the suppression court erred in this matter, I would remand

for trial.

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