Com. v. Cottman, L. ( 2018 )

J-S48003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LOVELETTE ATLAS COTTMAN :
:
Appellant : No. 2133 EDA 2017
Appeal from the Judgment of Sentence May 31, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003159-2015
BEFORE: DUBOW, J., MURRAY, J., and PLATT, J.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 27, 2018
Lovelette Atlas Cottman (Appellant) appeals from his May 31, 2017
Judgment of Sentence of three to six years’ imprisonment following his
nonjury convictions for Possession with Intent to Deliver (PWID) and
Possession of Drug Paraphernalia.1 Specifically, Appellant challenges the
denial of his suppression motion. We affirm.
We glean the following factual and procedural history from the certified
record. In connection with an ongoing narcotics investigation targeting
Appellant as a possible distributor of PCP, law enforcement officers, including
Officer William Carey of the City of Chester Police Department Narcotics Unit,
conducted a search pursuant to a warrant at Appellant’s home. During the
search, the officers detected a strong odor of PCP and found an illegal weapon
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1 35 P.S. § 780-113(a)(30) and 35 P.S. § 780-113(a)(32), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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in the residence. Id. at 11. As a result, the Commonwealth issued an arrest
warrant for Appellant. Id. at 11-12.
On February 24, 2015, Officer Carey responded to a call for back up at
the intersection of Ninth Street and Kerlin Street in Chester because a fellow
officer had located Appellant sitting in a parked car near a gas station. Id. at
10. The officers arrested Appellant without incident. While arresting
Appellant, Officer Carey detected a strong odor of PCP emanating from the
car. Id. at 12-13.2
Officer Carey then conducted a warrantless search of the automobile at
the scene during which he observed a small piece of a tissue hanging out of a
crevice between the driver’s side floorboard and the center console. Id. at
14-15. He pulled on the tissue which revealed a clear vial with a black lid and
an eyedropper wrapped in more tissue paper. Id. at 15-16. The vial
contained 61.6 grams of PCP. Id. at 17-18.
As a result, the Commonwealth charged Appellant with, inter alia, the
above offenses.
Prior to trial, Appellant filed a motion to suppress the PCP, asserting that
the police officers unlawfully searched his vehicle without a warrant. The court
held a hearing on January 24, 2017. On March 7, 2017, the court denied
Appellant’s motion, finding that the arresting officer had probable cause to
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2 Officer Carey has ten years’ experience with the Chester Police Department,
four of them with the Narcotics Unit. He has come into contact with PCP
numerous times, and is able to identify its unique odor because of his
experience as an officer. N.T., 1/24/17, at 51-52.
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search the vehicle and the warrantless search was lawful under
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). Trial Court Opinion,
3/6/17, at 4-5.
A trial court held a stipulated bench trial on April 26, 2017 and convicted
Appellant of PWID and Possession of Drug Paraphernalia. On May 31, 2017,
the court sentenced Appellant to an aggregate term of three to six years’
incarceration followed by 11 years’ probation.
Appellant timely filed a notice of appeal. Appellant presents the
following question for this Court's consideration:
Whether the trial court erred in failing to grant suppression of the
drugs found in the vehicle in question since the search of the
vehicle required the issuance of a warrant in order to be legal[?]
Appellant’s Brief at 7.
This Court's well-settled standard of review of a denial of a motion to
suppress evidence is as follows:
An appellate court’s standard of review in addressing a challenge
to the denial of a suppression motion 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. Because the Commonwealth prevailed before
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, the appellate court is bound by those
findings and may reverse only if the court's legal conclusions are
erroneous. Where ... the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
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court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation
omitted).
With respect to a warrantless search of a vehicle, Pennsylvania’s law is
“coextensive” with federal law under the Fourth Amendment of the U.S.
Constitution. Gary, 91 A.3d 102, 120 (Pa. 2014) (OAJC). In Gary, a plurality
of our Supreme Court held that “[t]he 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.” Id. at 138. Thus, we must determine
whether the officers had probable cause to search Appellant’s vehicle.
Probable cause exists where the facts and circumstances within the
officer's knowledge are sufficient to warrant a person of reasonable caution to
believe that a defendant has or is committing an offense. Commonwealth
v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) (citation omitted). “The
evidence required to establish probable cause for a warrantless search must
be more than a mere suspicion or a good faith belief on the part of the police
officer.” Id. The well-established standard for evaluating whether probable
cause exists is consideration of the “totality of the circumstances.” Id.
Appellant challenges the validity of the vehicle search following his
arrest. Under the totality of the circumstances, we conclude the police officers
had probable cause to search the vehicle without a warrant.
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When police officers arrested Appellant, Officer Carey, an experienced
narcotics officer who had obtained the arrest warrant based on the odor of
PCP in Appellant’s home, detected the same unique odor of PCP emanating
from the vehicle. Under the totality of these circumstances, we conclude that
the trial court had sufficient basis to conclude that the officers had probable
cause to believe that Appellant had committed an offense. Pursuant to Gary
and Runyan, the warrantless search of the vehicle was proper.
Appellant’s argument that the Appellant did not own or lease the vehicle
does not alter our analysis under Gary and Runyan. It was the odor of PCP
that provided the police officer with a sufficient basis to find probable cause.
The fact that Appellant did not own or lease the vehicle is irrelevant to the
probable cause analysis.
Accordingly, we conclude that the suppression court properly denied
Appellant’s motion to suppress the drugs found in the vehicle. We, thus,
affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/18
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