Com. v. Harris, M. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHELLE LEE HARRIS :
:
Appellant : No. 1128 WDA 2021
Appeal from the Judgment of Sentence Entered August 23, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003130-2020
BEFORE: KUNSELMAN, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: NOVEMBER 29, 2022
Michelle Lee Harris (Appellant) appeals from the judgment of sentence
entered in the Allegheny Court of Common Pleas. At the conclusion of a
stipulated non-jury trial, the court convicted her of possession of a controlled
substance, driving an unregistered vehicle, operation of a motor vehicle
without required financial responsibility, operation of a vehicle without official
certificate of inspection, and operation of a motor vehicle without emission
inspection certificate.1 Appellant contends the trial court erred when it denied
her pretrial motion to suppress evidence, alleging: (1) the inventory search
and impoundment of her car were improper; and (2) even if the search was
permissible, the digital scale found in her vehicle did not support a finding that
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1 18 Pa.C.S. § 780-113(a)(16); 75 Pa.C.S. §§ 1301(a), 1786(f), 4703(a),
4706(c)(5).
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the police officer possessed probable cause to arrest and search her person.
For the reasons below, we affirm.
We glean the facts of the underlying incident from the trial court opinion:
On September 10, 2019, [at approximately 2:17 a.m.,]
Officer Jason Braun of the City of Pittsburgh Bureau of Police
conducted a traffic stop of a vehicle operated by [Appellant]
because the license plate and registration of the vehicle were
expired. The stop occurred in the intersection of North Braddock
Avenue and Hamilton Avenue in the City of Pittsburgh. Officer
Braun approached the driver’s side of the vehicle and addressed
[Appellant]. [She] immediately became argumentative with
Officer Braun. Because the vehicle was parked in the intersection
and was impeding traffic and because the vehicle had an expired
registration and license plate, Officer Braun made the
determination that [Appellant] could not continue to drive the
vehicle. He determined that the vehicle would have to be towed
from the scene. [Appellant] exited the vehicle and began to walk
away from the scene of the traffic stop.
After requesting a tow, Officer Braun conducted an
inventory search of the vehicle. A black pocket scale with white
residue was recovered from an area next to the center console.
Pursuant to Officer Braun’s training and experience, he believed
the scale and white powder indicated that the scale had been used
for weighing drugs. Immediately upon discovering the scale,
Officer Braun informed [Pittsburgh Detective] G[i]no Macioce of
the discovery of the scale and he requested [Detective] Macioce
to arrest [Appellant]. [Detective] Macioce then approached
[Appellant, who] was passively resistant, but . . . eventually
placed under arrest for possession of drug paraphernalia[2] and
transported from the scene in a police vehicle.
After [Appellant] was removed from the police vehicle, a
police officer located two crack pipes in a compartment of the
police cruiser that transported her. After a search incident to
arrest was conducted, a small amount of crack cocaine was
located in [Appellant’s] jacket pocket.
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2 35 P.S. § 780-113(a)(32).
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Trial Ct. Op., 6/19/22, at 1-2 (paragraph breaks inserted); N.T. Supp. H’rg,
4/28/21, at 35. Relevant to Appellant’s argument, Officer Braun stated that
at the time of the incident, he was at “the beginning of [his] career” as a police
officer and at the time of the September 2019 hearing, he had been an officer
for two years and had conducted “[a]pproximately 12” traffic stops. N.T.
Supp. H’rg at 34-35, 44-45.
In addition to possession of drug paraphernalia, Appellant was also
charged with prohibited offensive weapons, resisting arrest, possession of a
controlled substance, possession of a small amount of marijuana, driving an
unregistered vehicle, operation of a motor vehicle without required financial
responsibility, operation of a vehicle without official certificate of inspection,
and operation of a motor vehicle without emission inspection certificate.3
On December 31, 2020, Appellant filed an omnibus pretrial motion
seeking to suppress evidence found in her car and on her person obtained as
a result of two purportedly illegal searches. Appellant’s Omnibus Pre-Trial
Motion for Suppression of Evidence and for Writ of Habeas Corpus, 12/31/20,
at 5-9. Appellant specifically argued: (1) the search of her car was an
improper inventory search, and as such, anything recovered during that
search must be suppressed; and (2) her subsequent arrest was not supported
by probable cause, and thus all evidence found incident to that search must
also be suppressed. Id.
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3 18 Pa.C.S. §§ 908(a), 5104; 35 P.S. § 780-113(a)(31).
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On April 28, 2021, the trial court held a suppression hearing where the
Commonwealth presented the testimony of Officer Braun and Detective
Macioce as summarized above.4 Appellant did not present any evidence. On
August 19, 2021, the trial court denied Appellant’s motion to suppress.
This case proceeded to a stipulated non-jury trial on August 23, 2021,
where the trial court found Appellant guilty of possession of a controlled
substance, driving an unregistered vehicle, operation of a motor vehicle
without required financial responsibility, operation of a vehicle without official
certificate of inspection, and operation of a motor vehicle without emission
inspection certificate, and not guilty of the remaining charges. That same
day, Appellant was sentenced to a two-year term of probation for possession
of a controlled substance, and no further penalty for the remaining offenses.
This timely appeal follows.5
Appellant raises the following claims:
Did the [trial court] err in denying Appellant’s pretrial motion to
suppress physical evidence, given that[:]
(A) the warrantless inventory search of her car was improper,
given that immobilization rather than impoundment of her car was
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4 In its brief, the Commonwealth stated it conferred with Appellant’s counsel
who “indicated that he [would] be filing a petition to supplement the certified
record to include bodycam videos marked at trial as Commonwealth Exhibit
1.” Commonwealth Brief at 12 n.2. Upon our review of the record, this
petition has not been filed at the trial court level or in this Court. This,
however, does not impact our review.
5Appellant complied with the trial court’s order to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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called for, with immobilization being an action for which an
inventory search is not permitted; and
(B) even if a warrantless inventory search of Appellant’s car was
permissible, what was discovered during that search (a portable
food scale having white residue on it) was not an object permitting
Appellant’s arrest for the crime of Possession of Drug
Paraphernalia (thus making the search incident to arrest
exception to the warrant requirement inapplicable to her case)?
Appellant’s Brief at 3 (paragraph breaks inserted).
Our review of a trial court’s order denying a pretrial motion to suppress
is guided by the following:
[O]ur standard of review . . . is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. We are
bound by the suppression court’s factual findings so long as they
are supported by the record; our standard of review on questions
of law is de novo. Where, as here, the defendant is appealing the
ruling of the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the defense
as remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations &
footnote omitted). “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given
their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.
Super. 2006) (citation omitted).
Preliminarily, it merits mention that in her first argument, Appellant
does not challenge the validity of the traffic stop or Officer Braun’s
determination that she could not “drive away” in her vehicle due to its expired
registration. Appellant’s Brief at 22-23. Rather, she argues that the police
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did not have proper justification to seize and search her vehicle after the traffic
stop. Id. at 21. Appellant contends the impoundment of her car was not
necessary, thus making the warrantless inventory search of her car unlawful.
Id. at 23. Appellant insists that even though her car was illegally parked after
the traffic stop, she should “have been permitted to move her car to a legal
parking space, at which time it could have been immobilized, thereby
obviating the need for an inventory search.” Id. at 27. Appellant points out
that she “did not decide to stop her car on her own[,]” but stopped “where
she was instructed to” do so. Id. at 28 (emphasis omitted). Appellant
maintains that by following Officer Braun’s order to stop, any danger her
vehicle posed to incoming traffic was a police-created exigency, and as such,
did not justify a warrantless search. Id. In support of her argument,
Appellant relies on Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013),
and distinguishes Commonwealth v. Palmer, 145 A.3d 170 (Pa. Super.
2016).
“The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution, protect individuals from
unreasonable searches and seizures.” Lagenella, 83 A.3d at 102. To conduct
an investigatory search, police must first obtain a warrant. Id. “[H]owever,
there are certain exceptions to the warrant requirement[,]” one of them being
an inventory search. Id.
The purpose of an inventory search is not to uncover
criminal evidence, but to safeguard items taken into police
custody in order to benefit both the police and the defendant. In
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the seminal case of [South Dakota v.] Opperman, [428 U.S.
364 (1976)], the high Court observed that inventory searches of
impounded vehicles serve several purposes, including (1)
protection of the owner’s property while it remains in police
custody; (2) protection of the police against claims or disputes
over lost or stolen property; (3) protection of the police from
potential danger; and (4) assisting the police in determining
whether the vehicle was stolen and then abandoned.
An inventory search of an automobile is permissible when
(1) the police have lawfully impounded the vehicle; and (2) the
police have acted in accordance with a reasonable, standard policy
of routinely securing and inventorying the contents of the
impounded vehicle.
Lagenella, 83 A.3d at 102 (some citations omitted).
As such, we must first address Appellant’s contention that the police
officers should have immobilized her car, rather than impound it. Officer
Braun initiated the traffic stop when he saw Appellant was driving a vehicle
with expired registration, a violation of Section 1301 of the Pennsylvania Motor
Vehicle Code (MVC). Section 1301 states that “[n]o person shall drive or
move and no owner or motor carrier shall knowingly permit to be driven or
moved upon any highway any vehicle which is not registered in this
Commonwealth unless the vehicle is exempt from registration. 75 Pa.C.S. §
1301(a). Consequently, the officer made the decision to impound the car
pursuant to Section 6309.2 of the MVC. “Section 6309.2 provides different
procedures for when a vehicle is immobilized, versus when it is impounded (or
towed and stored).” Commonwealth v. Peak, 230 A.3d 1220, 1226 (Pa.
Super. 2020).
Section 6309.2(a)(2) provides, in relevant part:
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If a motor vehicle . . . for which there is no valid registration or
for which the registration is suspended, as verified by an
appropriate law enforcement officer, is operated on a highway or
trafficway of this Commonwealth, the law enforcement officer
shall immobilize the motor vehicle . . . or, in the interest of
public safety, direct that the vehicle be towed and stored
by the appropriate towing and storing agent . . . and the
appropriate judicial authority shall be so notified.
75 Pa.C.S. § 6309.2(a)(2) (emphasis added). This Court has previously
stated: “Judges are not in a position to second-guess a police officer’s decision
to tow a vehicle which, in the officer’s opinion, may create a traffic hazard. To
do so would seriously handicap legitimate traffic-control activities.”
Commonwealth v. Henley, 909 A.2d 352, 364 (Pa. Super. 2006) (citation
omitted).
In Lagenella, which Appellant relies on, the defendant was subject to
a traffic stop after failing to use a turn signal. Lagenella, 83 A.3d at 96.
When the defendant stopped his car, it was not blocking traffic. Id. The
officer realized during the interaction that the defendant “did not have the
required emissions sticker” and his license was suspended. Id. The officer
decided to tow the vehicle due to the defendant’s suspended license and then,
pursuant to police policy, conducted an inventory search. Id. at 96-97.
During the search, the officer located an eyeglasses case containing marijuana
seeds, narcotics residue, and a box-cutter. Id. at 97. The officer also found
weapons in the trunk. Id. The defendant filed a motion to suppress the
physical evidence found in his car, arguing, inter alia, the officer “lacked
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authority to tow his vehicle pursuant to [Section] 6309.2 because the vehicle
did not present an issue of public safety.” Id.
During the suppression hearing, the officer “offered no testimony
indicating that [the defendant]’s vehicle posed an issue of public safety, . . .
there was no broken glass around the vehicle, and the parked vehicle was not
impeding the flow of traffic in any manner.” Lagenella, 83 A.3d at 101-02.
Additionally, there were “no items of value in plain view in the vehicle.” Id.
at 102. The trial court granted the motion regarding the drugs found in the
eyeglasses case, but denied the motion regarding the weapons. Id. The trial
court subsequently convicted the defendant of receiving stolen property and
unlawful possession of a firearm. Id.
On appeal, the defendant argued Section 6309.2 “allows for the towing
of a vehicle only if there is an issue of public safety,” which was not present
based on the circumstances. Lagenella, 83 A.3d at 98. A panel of this Court
affirmed the defendant’s sentence, determining the stop was valid and the
officer properly immobilized the vehicle. Id. The defendant filed a petition
for allowance to appeal to the Pennsylvania Supreme Court. Id.
The Supreme Court reversed this Court’s determination, stating:
“[B]ased on our review of the record, the Commonwealth failed to introduce
any evidence that [the officer]’s decision to tow [the defendant]’s vehicle was
based on public safety. Thus, . . . the Superior Court’s holding that [the
officer] engaged in a proper inventory search of [the defendant]’s vehicle was
erroneous.” Lagenella, 83 A.3d at 102 (footnote omitted). The Court
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concluded that since there was no “legal basis” for the officer to tow the
defendant’s car, the inventory search was “improper,” and “evidence of the
weapons found in the trunk . . . should have been suppressed.” Id. at 106
(footnote omitted).
Here, Officer Braun testified that he made the decision to tow Appellant’s
vehicle “being illegally parked” where the car “was forward of the stop line
impeding the intersection.” N.T. Supp. H’rg at 37. Detective Macioce testified
that the location of the car was a “concern” because there was a fire station
across the street it would have been difficult for “fire trucks to get in and out
of there [as well as] Port Authority buses that have to make those turns.” Id.
at 31-32. The detective further stated: “Where the vehicle was parked at, I
don’t believe that a large vehicle would be able to safely make a right turn
without going into the oncoming lane of traffic either straight away or to the
right. That’s why vehicles can’t be parked that close to the intersection.” Id.
at 32. He also indicated that the “flow of traffic” would have been “impeded.”
Id.
Based on this testimony, the trial court concluded the impoundment and
inventory search of Appellant’s car were legal, opining:
Officer Braun clearly testified that the registration and license
plate of [Appellant’s] vehicle was expired. The vehicle could not
be driven from the scene and it was stopped in a public
intersection blocking the flow of traffic. Additionally, the vehicle
would have been illegally parked if it had remained in the
intersection. Based on these facts, [the trial court] believes that
Officer Braun acted within the law in conducting an inventory
search and on having the vehicle towed from the scene.
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Trial Ct. Op. at 3. We agree.
As mentioned above, Appellant does not contest that her vehicle’s
registration was expired or that police were justified in initiating a traffic stop.
Instead, she insists she should have been allowed to move her vehicle to a
legal parking spot due to a police-created exigency. See Appellant’s Brief at
28. We reject this argument. Appellant seems to suggest that the police must
anticipate where and how a vehicle will park or that police should follow a
vehicle until it approaches a parking space before initiating a traffic stop. See
id. She offers no authority suggesting this is a reasonable request in any
fashion. Further, she asserts, without citation, she must have been allowed
the opportunity to move her vehicle into a legal parking spot. Contrary to her
argument, without valid registration, Appellant was not permitted to “drive or
move” her car “upon any highway.”6 See 75 Pa.C.S. § 1301(a). Because
Appellant’s vehicle was violating a parking ordinance, thereby jeopardizing
public safety (notably by preventing fire trucks from navigating the road), the
trial court’s conclusion – that towing her car was necessary, thereby justifying
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6 The Vehicle Code defines “highway” as follows:
The entire width between the boundary lines of every way publicly
maintained when any part thereof is open to the use of the public
for purposes of vehicular travel. The term includes a roadway open
to the use of the public for vehicular travel on grounds of a college
or university or public or private school or public or historical park.
75 Pa.C.S. § 102.
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an inventory search − is supported by the record. See 75 Pa.C.S. §
6309.2(a)(2); Yandamuri, 159 A.3d at 516; Lagenella, 83 A.3d at 102-03.
Moreover, we reiterate that judges are not in a position to second-guess an
officer’s decision to tow a car that may create a traffic hazard. See Henley,
909 A.2d at 364.
Relevant to Appellant’s argument, we now examine Palmer, as she
contends that this case was not applicable. See Appellant’s Brief at 27. In
Palmer, the officer was driving when he spotted the defendant, who he knew
from prior interactions, in a vehicle with two other occupants. Palmer 145
A.3d at 171. The officer also recognized the driver, who he knew did not
possess a valid driver’s license, and initiated a traffic stop. Id. During the
stop, the defendant did not comply with the officer’s request to keep his hands
visible, and instead “kept putting his hands in his pockets or down near the
side of his legs.” Id. The vehicle was located in an illegal parking space and
the officer determined that since none of the occupants had a valid driver’s
license, he needed to arrange for the car to be towed. Id. The officer asked
the defendant and the two other occupants to exit the vehicle. Id. The
defendant exited and “became very nervous[.]” Id. Due to the defendant’s
nervous demeanor, his initial non-compliance with instructions, and his
“repeated reaching movements[,]” the officer searched him and found heroin
and a firearm. Id.
The defendant filed a motion to suppress, arguing “because the traffic
stop had ended before [he] was ordered to exit the vehicle, police lacked
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reasonable suspicion to justify the frisk[,]” which the trial court denied.
Palmer, 145 A.3d at 172. After a stipulated bench trial, the defendant was
convicted of, inter alia, carrying a firearm without a license. He then appealed
to this Court, arguing the traffic stop concluded prior to his exit from the
vehicle and the trial court erred in denying his motion to suppress when it
considered impermissible factors to justify the officer’s search. Id. at 172-
73. This Court affirmed the trial court’s decision and determined: (1) none of
the occupants had a valid driver’s license, and as such none of them could
legally move the vehicle; (2) towing the vehicle was necessary because it was
in an illegal parking space; and (3) that because towing was necessary, the
traffic stop was ongoing after the defendant and the other occupants left the
vehicle, making the search of the defendant legal. Id. at 173-74. Referencing
Lagenella, the Palmer Court stated: “Where an unlicensed driver parks
illegally or pulls into a place that impedes the flow of traffic, an officer may
have the vehicle towed in the interest of public safety.” Palmer, 145 A.3d at
174 (citation omitted).
Regarding Appellant’s assertion that the present facts are analogous
with Lagenella instead of Palmer, we disagree. Unlike Lagenella, here,
there was evidence that Appellant’s vehicle was an impediment to public
safety, thereby justifying the impoundment. Moreover, similar to Palmer,
Appellant was unable to legally move her vehicle that was improperly parked.
See 75 Pa.C.S. § 1301(a) (no person shall drive a vehicle upon a highway in
the Commonwealth that is not registered); 75 Pa.C.S. § 6309.2(a)(2) (when
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a vehicle does not have valid registration and is operated on a highway in the
Commonwealth, an officer “shall immobilize the motor vehicle . . . or, in the
interest of public safety, direct that the vehicle be towed . . .”); see also
Palmer, 145 A.3d at 173-74. Since the vehicle was in an illegal parking spot
and impeding the roadway, Officer Braun determined it posed a safety risk
and properly arranged to tow the car, making the inventory search valid. See
75 Pa.C.S. § 6309.2(a)(2); Lagenella, 83 A.3d at 102-03.7
Accordingly, Appellant’s first claim has no merit as the trial court
properly found that there was evidence to support the officer’s decision to tow
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7 We also find guidance from this Court’s decision in Peak, supra. In Peak,
an officer stopped the defendant’s vehicle at a gas station after the defendant
stopped it in the middle of an intersection and eventually made a left turn
without using a turn signal. Peak, 230 A.3d at 1222. The officer determined
during the stop that the defendant had a suspended license and advised him
that the car would be towed. Id. at 1222-23. The defendant allegedly stated
during the stop that his mother was coming to move the vehicle out of the
illegal parking spot. Id. at 1223. During an inventory search, the officer
located narcotics and placed him under arrest. Id.
The defendant filed a motion to suppress the physical evidence, which
the trial court denied. Peak, 230 A.3d at 1223. The trial court then found
the defendant guilty of multiple narcotics and traffic violations. Id. The
defendant filed a notice of appeal to this Court, arguing towing the vehicle was
unnecessary because it was stopped on private property and not causing
concern for public safety, making the subsequent inventory search illegal. Id.
at 1224. This Court affirmed the trial court’s decision, stating: (1) the officer
reasonably called to tow the vehicle where it was blocking a gas pump and
“impeding the business’ right to do business[;]” (2) the phrase “in the interest
of public safety” encompasses when a vehicle is obstructing a gas pump Id.
at 1227. Like Peak, one could also infer that Appellant’s car obstructed the
Port Authority buses from conducting business by impeding their routes.
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her car because it created a public safety hazard; and therefore, the inventory
search was permissible.
In Appellant’s second argument, she claims that even if the
impoundment and inventory search of her car were proper, there was no
probable cause to support her warrantless arrest. Appellant’s Brief at 32-33.
Appellant contends that Officer Braun’s discovery of a simple portable scale
did not justify arresting her, and thus the search of her person was improper.
Id. at 30-31. Appellant maintains that portable kitchen scales, like the one
found in her car, “are legally permissible objects” and the unspecified amount
of “white residue” on it did not support a finding of probable cause. Id. at 34,
40-41. Further, she avers such an object cannot be presumed to be drug
paraphernalia unless “accompanied by other items associated with drug
trafficking, such as razor blades, plastic baggies, police scanners, and large
amounts of cash[.]” Id. at 35, citing Commonwealth v. Kelly, 409 A.2d 21(Pa. 1979). Relying on Kelly, Appellant avers that because her behavior was
“inconsistent with criminal activity” and Officer Braun only suspected that the
scale was contraband, its discovery did not rise to probable cause for arrest.
Id. at 35-38. Appellant also argues that because Officer Braun was an
unseasoned police officer at the time of the incident, his “inexperience
suggests the absence of probable cause, not its existence.” Id. at 38-39.
Appellant insists that because her arrest was not supported by probable cause,
the subsequent search was illegal and the evidence the officers seized –
namely the crack cocaine – should be suppressed. Appellant’s Brief at 33.
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Keeping our standard of review in mind, we note that the scale was
discovered during the inventory search. We reiterate that an inventory search
is valid where an officer has “lawfully impounded” a vehicle after determining
it posed a risk to public safety. Lagenella, 83 A.3d at 102-03. To determine
if an inventory search is reasonable, we look to the following:
An inventory search is reasonable if it is conducted pursuant
to reasonable standard police procedures and in good faith
and not for the sole purpose of investigation.
A protective vehicle search conducted in accordance with standard
police department procedures assures that “the intrusion [is]
limited in scope to the extent necessary to carry out the
caretaking function.”
Lagenella, 83 A.3d at 102-03 (citations omitted).
Moreover, an officer may effectuate a warrantless arrest when they have
probable cause to believe a criminal offense has been committed.
Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011). This
Court has previously stated:
Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
[stop], and of which he has reasonably trustworthy information,
are sufficient to warrant a man of reasonable caution in the belief
that the suspect has committed or is committing a crime. The
question we ask is not whether the officer’s belief was correct or
more likely true than false. Rather, we require only a probability,
and not a prima facie showing, of criminal activity. In determining
whether probable cause exists, we apply a totality of the
circumstances test.
Commonwealth v. Bozeman, 205 A.3d 1264, 1277 (Pa. Super. 2019)
(emphasis and citation omitted).
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After determining certain evidence supports an individual’s arrest, the
officer may conduct a search of their person:
The search incident to arrest exception allows “arresting officers,
in order to prevent the arrestee from obtaining a weapon or
destroying evidence, [to] search both the person arrested and the
area within his immediate control.” Moreover . . . the search
incident to arrest exception applies categorically. In other words,
the search incident to arrest exception permits a search of the
arrestee’s person as a matter of course — and without a “case-
by-case adjudication . . . [of] whether a search of a particular
arrestee is likely to protect officer safety or evidence.”
Commonwealth v. Simonson, 148 A.3d 792, 799 (Pa. Super. 2016)
(citations omitted). Further, “in all cases of lawful arrests, police may fully
search the person incident to the arrest.” Commonwealth v. Lutz, 270 A.3d
571, 579-80 (Pa. Super. 2022).
Relevant to Appellant’s argument, we analyze the facts of Kelly. In
Kelly, police initiated a traffic stop of the defendant’s vehicle for having an
expired inspection sticker. Kelly, 409 A.2d at 22. The defendant and his two
passengers exited the car while one of the officers looked at the front seat to
ensure there were no weapons present. Id. The officer saw a small
prescription vial which bared a drugstore label with the defendant’s name on
it that “appeared to contain aluminum foil packets” and seized the item. Id.
The defendant opened the vial and determined there were nine aluminum
packets inside. Id. The defendant was arrested and taken to the police
station where officers determined the packets contained methamphetamine.
Id. at 22-23.
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The defendant argued, inter alia, the evidence seized and his arrest were
illegal. The trial court denied his petition and he appealed to this Court. See
Commonwealth v. Kelly, 378 A.2d 484, 484 (Pa. Super. 1977). This Court
affirmed the decision, stating the officers properly stopped the defendant and
searched his vehicle. Id. The defendant then filed a petition for allocatur with
the Pennsylvania Supreme Court, arguing the officers lacked probable cause
to seize the vial and effectuate arrest. Kelly, 409 A.2d at 23. The Supreme
Court agreed, reaching the “narrow holding that mere sight of the vial . . .
under the circumstances here . . . did not fulfill the probable cause
requirement” because there was nothing “immediately apparent” about the
item to demonstrate illegal activity to the officers. Id.
We find that Kelly is distinguishable from the present facts. In Kelly,
the officers observed a prescription vial branded with a drugstore label which
had the defendant’s name on it. Inside of the vial were aluminum packets,
which gave no indication of their contents. Further, the items in the vial could
have reasonably been in the legal possession of the defendant since the vial
had an official label on it bearing his name. Here, Appellant was in possession
of a portable scale with white residue on it, found in a pocket next to the
driver’s seat of her vehicle. Based on Officer Braun’s training and experience,
he knew that a “scale with white residue” on it was “used for the purchase
and distribution of illegal drugs.” N.T. Supp. H’rg at 39; see also Kelly, 409
A.3d at 23.
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Further, the trial court concluded Officer Braun “clearly” had probable
cause to believe Appellant possessed drug paraphernalia and stated the
standard was “easily satisfied.” Trial Ct. Op. at 4-5. The record supports this
conclusion. Officer Braun did not need to prove beyond a reasonable doubt
that Appellant was in possession of drug paraphernalia, but only that,
considering the totality of the circumstances, that there was a “probability” of
criminal activity. See Bozeman, 205 A.3d at 1277. Appellant’s argument
largely ignores the fact that Officer Braun found a portable scale with “white
residue” on it in the pocket next to the center console of the driver’s seat.
See Appellant’s Brief at 30-41. Within the context in which the officer located
the scale, he could reasonably deduce it was not an instrument that one would
normally find in a car. The trial court found the officer’s testimony, that he
suspected illegal activity based on the scale with white residue, credible. See
Gallagher, 896 A.2d at 585. Further, we reject Appellant’s argument that
Officer Braun’s short career at the time of the incident “suggests the absence
of probable cause[.]” See Appellant’s Brief at 38-39. While an officer’s
experience, or lack thereof, may be a factor in a probable cause
determination, it is not the only aspect on which a court should rest its
decision. Officer Braun’s experience and training dictated to him that the
presence of white residue on a portable scale demonstrated the probability of
criminal activity. See N.T. Supp. H’rg, at 39. The record supports the trial
court’s conclusion that the officers’ possessed probable cause to arrest
Appellant and the subsequent search of her person was legal. See
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Simonson, 148 A.3d at 799; Bozeman, 205 A.3d at 1277. Therefore,
Appellant’s second claim is without merit, and no relief is due.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2022
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