Com. v. McElroy, U. ( 2018 )

J-S22043-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
URSULA MCELROY :
:
Appellant : No. 2776 EDA 2017
Appeal from the Judgment of Sentence July 24, 2017
in the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0000122-2016
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED JUNE 26, 2018
Appellant, Ursula McElroy, appeals from the judgment of sentence
imposed following her jury conviction of possession with intent to deliver a
controlled substance (PWID) and possession of a controlled substance.1 We
affirm.
We take the following relevant facts and procedural history of this case
from our independent review of the certified record. On December 1, 2015,
at approximately 11:30 a.m., police officers from the Delaware County
Narcotics Task Force executed a search warrant for a property in Clifton
Heights. Appellant’s co-defendant and then-boyfriend Ryan McConnell resided
at the property, and police had conducted controlled buys of cocaine from
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1 35 P.S. §§ 780-113(a)(30) and (16), respectively.
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* Retired Senior Judge assigned to the Superior Court.
J-S22043-18
him.2 The search warrant authorized the officers to search for cocaine or any
other controlled substances, along with any money, assets, records, cellular
phones, weapons, or items related to the distribution of controlled substances.
Upon entry into the residence, police detained Mr. McConnell, and
observed Appellant sleeping in the only bedroom. Police recovered from this
room a digital scale with white powder residue; brand new packaging with red
lips stamped on it typically used for narcotics; a plastic spoon with white
residue; and a small hammer used to break up and package rock cocaine.
Police also recovered from a dresser drawer six bags of rock cocaine with red
lips stamped on them. Next to Appellant on the floor was a purse containing
eleven bags of white powder cocaine with the same red lips stamped on them,
and Appellant’s identification. Police also observed items indicating that
Appellant lived at the residence, including mail in her name, and female
clothing and make-up.
On April 25, 2016, Appellant filed an omnibus pre-trial motion seeking
suppression of the evidence found in her purse. The trial court denied the
motion following a hearing, and issued findings of fact and conclusions of law
on August 29, 2016. On May 31, 2017, a jury convicted Appellant of the
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2The search warrant lists Mr. McConnell as the owner, occupant or possessor
of the property and does not mention Appellant, who was a guest. (See N.T.
Suppression, 6/07/16, at 12-14; see also Commonwealth’s Exhibit 1, Search
Warrant, 11/30/15, at unnumbered page 1; Trial Court Opinion, 9/22/17, at
2, 5).
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above-mentioned offenses following a two-day trial. The trial court sentenced
her to a term of not less than twelve nor more than twenty-four months’
incarceration, followed by three years of probation on July 24, 2017. This
timely appeal followed.3
Appellant raises the following issue for our review:
Did the trial court err in denying Appellant’s Motion To Suppress
the personal items of Appellant, specifically the purse of Appellant,
for which there was no probable cause, nor was there a lawful
search warrant, nor was the Appellant identified in a search
warrant as a resident of the premises or as a party to be searched,
or for her personal belongings to be searched; and at the time of
the search of Appellant’s person and purse law enforcement had
no probable cause or reasonable suspicion to believe that she had
engaged in criminal behavior?
(Appellant’s Brief, at 4) (italics omitted).
Appellant’s issue challenges the trial court’s denial of her motion to
suppress. She argues that the search of her purse was unlawful, where law
enforcement had no information that she resided at the property or that she
had any connection to the sale of drugs, and she was not referenced at all in
the search warrant. (See id. at 10-11, 13-14, 16, 18). She contends that
her purse was not a part of the general content of the property, where police
admitted that they assumed that it belonged to her. (See id. at 11, 16-17).
This issue does not merit relief.
Our standard of review is as follows:
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3Appellant timely filed a court-ordered concise statement of errors complained
of on appeal on September 13, 2017. The trial court entered an opinion on
September 22, 2017. See Pa.R.A.P. 1925.
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[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 court properly applied the law to the facts. Thus, the
conclusions of law of the courts below are subject to [ ] plenary
review.
Commonwealth v. Tyrrell, 177 A.3d 947, 950 (Pa. Super. 2018) (citation
omitted).
“In appeals from suppression orders, our scope of review is limited to
the evidence presented at the suppression hearing.” Commonwealth v.
Caple, 121 A.3d 511, 517 (Pa. Super. 2015), appeal denied, 179 A.3d 7 (Pa.
2018) (citation omitted).
The United States Supreme Court has advised that a valid search
warrant authorizes the search of any container found on the
premises that might contain the object of the search. United
States v. Ross, 456 U.S. 798, 820, 102 S.Ct. 2157, 72 L.Ed.2d
572 (1982).
[W]here a search warrant adequately describes
the place to be searched and the items to be seized
the scope of the search extends to the entire area in
which the object of the search may be found and
properly includes the opening and inspection of
containers and other receptacles where the object
may be secreted.
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Commonwealth v. Petty, 157 A.3d 953, 957 (Pa. Super. 2017), appeal
denied, 169 A.3d 1070 (Pa. 2017) (quotation marks and some citations
omitted).
In Petty, this Court considered whether police were authorized to
search, during the execution of a search warrant targeting another individual,
the defendant’s pants. See id. at 954-55. The pants were laying on the floor
next to where the defendant was in bed, and police had no prior contact with
him. See id. at 954-56. This Court expressly rejected the defendant’s
assertion that his pants were not a part of the general content of the premises
because police knew they belonged to him. See id. at 957. It held that
because he did not physically possess the pants when police found them, the
officers were authorized to search them. See id. The Court reasoned:
Clearly, the police are not prohibited from
searching a visitor’s personal property (not on the
person) located on premises in which a search warrant
is being executed when that property is part of the
general content of the premises and is a plausible
repository for the object of the search. Otherwise, it
would be impossible for police to effectively search a
premises where visitors are present because they
would not know which items, clothing and containers
could be searched and which could not be searched.
[Commonwealth v.] Reese, 549 A.2d [909, 911 (Pa. 1988)].
* * *
Because [Petty] did not physically possess his pants when police
officers found them, police were authorized to search them. See
Commonwealth v. Bleigh, 402 Pa.Super. 169, 586 A.2d 450(1991) (police had authority to search purse and briefcase found
in premises to be searched)[.]
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The Reese Court was clear that there is “a constitutional
difference between the search of a visitor’s person and the
search of a visitor’s personal property (property which is
not on the person) located on premises where a search
warrant is being executed. . . .” Reese, 549 A.2d at 910. In
upholding the search of the jacket on the kitchen chair, the Reese
Court explained, “The jacket was not being worn by Reese and
therefore, cannot be characterized as an extension of his person
so as to propel its search into a search of Reese’s person.” Id. at
911–912. We reject [Petty’s] assertion that his jeans were not
part of the content of the premises because police knew they
belonged to [him]. Such reasoning negates the underpinning of
the Reese decision. In Reese, our Supreme Court, in rejecting
a requirement that police distinguish between which
articles of clothing and personal property belong to a
resident and which belong to a visitor before beginning a
search, stated:
[V]isitors to the premises could frustrate the
efforts of police by placing contraband among their
unworn personal effects or by announcing ownership
of various articles of clothing and containers in order
to place those items beyond the scope of the warrant.
We cannot sanction any rule that through fraud and
gamesmanship erects barriers to the effective and
legitimate execution of search warrants.
Reese, 549 A.2d at 911.
Various state courts have grappled with the question of the
proper test to employ in the instant situation, and myriad
jurisdictions agree with this Commonwealth’s application of the
possession test implemented in Reese because of the test’s
simplicity, precision, and the guidance it offers to police and
courts. See, e.g., State v. Gilstrap, 235 Ariz. 296, 332 P.3d 43(2014) (search of visitor’s purse not in her possession was
proper); State v. Leiper, 145 N.H. 233, 761 A.2d 458 (2000)
(warrant authorizing search of premises included authority to
search visitor’s knapsack where knapsack was not in visitor’s
possession); State v. Jackson, 873 P.2d 1166 (Utah Ct. App.
1994) (search of visitor’s purse that was not in visitor’s possession
was proper)[.] As noted by the Gilstrap Court:
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The possession test provides a bright-line rule
that is clearly and easily applied. Adding a
“constructive” element to the possession test would
thwart this goal by requiring law enforcement officers
to guess whether items in proximity to a person not
identified in the warrant would soon be used by that
person.
Gilstrap, 332 P.3d at 46.
Id. at 956-58 (original emphasis, record citations, and some case citations
omitted; emphases added).
Here, police executed the search warrant authorizing them to search for
cocaine and related items at the subject residence, and searched Appellant’s
purse, which was laying on the floor, recovering eleven bags of cocaine from
it. (See N.T. Suppression, at 6-9). Police Officer Kevin Wiley testified that,
when executing search warrants at homes, he always searches the purses he
finds because people commonly “keep drugs, contraband, guns [and] knives”
in them. (Id. at 10). Although the search warrant did not mention Appellant,
under binding precedent, police were not required to “distinguish between
which articles of clothing and personal property belong to a resident and which
belong to a visitor before beginning a search[.]” Petty, supra at 957-58
(citation omitted). Thus, “[b]ecause [Appellant] did not physically possess
[her purse] when police officers found [it], police were authorized to search
[it].” Id. at 957 (citations omitted). Therefore, we conclude that the trial
court properly denied Appellant’s motion to suppress. Accordingly, Appellant’s
sole issue on appeal lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/18
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