Com. v. Johnson, J. ( 2019 )

J-A05017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORDAN MONEE JOHNSON :
:
Appellant : No. 850 WDA 2018
Appeal from the Judgment of Sentence February 26, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0010529-2017
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 28, 2019
Appellant, Jordan Monee Johnson, appeals from the judgment of
sentence entered on February 26, 2018, following her convictions for firearms
not to be carried without a license and carrying a loaded weapon other than
firearms.1 Appellant argues that the trial court erred in denying her motion
to suppress, which was filed on January 25, 2018. After careful review, we
affirm.
The trial court set forth the following factual history:
The facts presented at the suppression hearing established
the following. Trooper James R. Sellers has been a Pennsylvania
State Trooper for approximately three years and, prior to that, he
was employed as a local law enforcement officer for approximately
four years. Hrg. Tran. P. 4 (02/26/18). On July 28, 2017, Trooper
Sellers was performing speed enforcement on State Route 28 in
Allegheny County when he observed a vehicle traveling at 82
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1 18 Pa.C.S. § 6106(a)(1) and 18 Pa.C.S. § 6106.1(a), respectively.
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m.p.h. in a 55 m.p.h. zone. Id. at 5. Trooper Sellers initiated a
traffic stop of the vehicle. Id. Trooper Sellers then verified that the
driver of the vehicle had a valid license. Id. Appellant was seated
in the rear passenger seat of the vehicle. Id. Immediately upon
making contact with the vehicle and its occupants, Trooper Sellers
observed a smell of marijuana coming from the vehicle. Id. at 6.
Trooper Sellers testified that the front seat passenger, Taalibe
Glover, admitted that they had been smoking in the vehicle shortly
before the traffic stop. Id. Additionally, Glover admitting to having
marijuana on his person and provided a small bag of marijuana to
Trooper Sellers. Id. at 6. At that time, Trooper Sellers requested
permission from the driver to search the vehicle, and the driver
consented. Id. at 6-7. Trooper Sellers testified that had the driver
refused to consent, he would have conducted the search of the
vehicle in any event on the basis of probable cause that there was
additional marijuana in the vehicle. Id. at 8. While searching the
vehicle, Trooper Sellers observed a black leather purse in the
backseat. Id. at 7. Trooper Sellers observed a black Smith and
Wesson 38 Special inside of the purse. Id. Trooper Sellers then
requested dispatch to run the serial number of the gun, which was
returned with no record of sale. Id. Trooper Sellers then asked
Appellant if the purse and gun belonged to her to which she
conceded they both did. Id. After running Appellant’s information,
Trooper Sellers determined that Appellant did not possess a
permit to carry a concealed firearm. Id. Appellant was then
arrested and charges were filed against her. Id.
Trial Court Opinion, 8/15/18, at 3–4.
Appellant was initially charged with carrying a firearm without a license
(count one), carrying a loaded weapon other than firearms (count two), and
disorderly conduct (count three). Prior to trial, Appellant filed a motion to
suppress the firearm that Trooper Sellers found in her purse, alleging that the
search was illegal under the Fourth Amendment of the United States
Constitution and Article 1, Section 8 of the Pennsylvania Constitution. Motion
to Suppress, 1/25/18, at unnumbered 2–3. Specifically, Appellant argued that
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Trooper Sellers lacked probable cause or valid consent to search her handbag.
Id. at 3.
The trial court held a hearing on the motion to suppress on February 26,
2018. The trial court denied the motion to suppress that same day, and the
case immediately proceeded to a nonjury trial. N.T. (Suppression), 2/26/18,
at 28. Following the nonjury trial, the trial court found Appellant guilty of
count one, carrying a firearm not to be carried without a license, and count
two, carrying a loaded weapon other than firearms. Id. at 54. The trial court
sentenced Appellant to twelve months of probation at count one and imposed
no further sentence at count two. Id. at 57; Order of Sentence, 2/26/18.
Appellant filed post-sentence motions on March 1, 2018, and April 16, 2018,
which the trial court denied on May 9, 2018. Order, 5/9/18. Appellant filed a
timely notice of appeal on June 7, 2018. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant presents the following question for our review:
I. Whether the trial court erred in denying [Appellant’s] Motion
to Suppress where police lacked a warrant supported by
probable cause or an exception to the warrant requirement
under the United States Constitution or the Pennsylvania
Constitution to search [Appellant’s] purse?
Appellant’s Brief at 4.
With respect to an appeal from the denial of a motion to suppress, our
Supreme Court has stated the following:
Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
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supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing the ruling of a
suppression court, we must consider only the evidence of the
prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record ....
Where the record supports the findings of the suppression court,
we are bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
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). Moreover, we note that our scope of review from a suppression ruling
is limited to the evidentiary record that was created at the suppression
hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013). In addition, questions
of the admission and exclusion of evidence are within the sound discretion of
the trial court and will not be reversed on appeal absent an abuse of discretion.
Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).
In support of her appeal, Appellant argues that Trooper Sellers’ search
of her purse lacked probable cause and was based “on nothing more than a
hunch.”2 Appellant’s Brief at 9. Specifically, Appellant avers there was
nothing in her interaction with Trooper Sellers that suggested she was
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2 Appellant also argues that the driver’s consent to search the vehicle was
invalid because the driver did not have authority over Appellant’s belongings.
Appellant’s Brief at 17. Because we find Trooper Sellers had probable cause
to search the automobile and the containers within the automobile, we need
not address Appellant’s consent argument.
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engaged in criminal activity. Id. Appellant posits that probable cause to
search the automobile was not established despite the fact that Trooper
Sellers smelled burnt marijuana, Mr. Glover admitted that they had just
smoked marijuana, and Mr. Glover gave Trooper Sellers a small bag of
marijuana. Id. at 10. Appellant further avers that although the automobile
exception to the search warrant requirement allowed police to search the
vehicle without a search-warrant pursuant to Commonwealth v. Gary, 91
A.3d 102 (Pa. 2014) (plurality), she retained an expectation of privacy in her
purse. Appellant’s Brief at 15.
Appellant’s reliance on Gary is misplaced. In that case, our Supreme
Court addressed the requirements for a warrantless search of a motor vehicle
in the Commonwealth. Gary, 91 A.3d at 104. In Gary, a majority of Justices
agreed to align Pennsylvania constitutional law with federal constitutional law
as it relates to the automobile exception. Id. 138. Pursuant to the federal
automobile exception to the warrant requirement, police may search an
automobile upon a showing of probable cause without an additional showing
of exigency.3 Id. The Court held:
[O]ur review reveals no compelling reason to interpret Article I,
Section 8 of the Pennsylvania Constitution as providing greater
protection with regard to warrantless searches of motor vehicles
than does the Fourth Amendment. Therefore, we hold that, in this
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3 Prior to our Supreme Court’s adoption of the federal automobile exception,
Pennsylvania law required police to have both probable cause and exigent
circumstances before conducting a warrantless search of an automobile.
Gary, 91 A.3d at 120.
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Commonwealth, the law governing warrantless searches of motor
vehicles is coextensive with federal law under the Fourth
Amendment.
Gary, 91 A.3d at 138. Given our Supreme Court’s holding in Gary that federal
and Pennsylvania law are coextensive on this issue, we look to the
jurisprudence of the Supreme Court of the United States as it relates to
warrantless searches of an automobile. See In re I.M.S., 124 A.3d 311, 317
(Pa. Super. 2015) (“[I]n light of the Gary Court’s clear holding that
Pennsylvania automobile search and seizure law and federal Fourth
Amendment Jurisprudence are coextensive, [Wyoming v. Houghton, 526
U.S. 295 (1999)] necessarily now applies.”).
In Houghton, the Supreme Court of the United States held that “a
passenger’s personal belongings, just like the driver’s belongings or containers
attached to the car like a glove compartment, are ‘in’ the car, and the officer
has probable cause to search for contraband in the car.” Houghton, 526 U.S.
at 302. Moreover, the Court noted that once probable cause to search for
contraband in a car has been established, the police may search packages and
containers in the car without a showing of individualized probable cause for
each item. Id. The Houghton Court also held passengers:
possess a reduced expectation of privacy with regard to the
property that they transport in cars, which travel public
thoroughfares, seldom serve as the repository for personal
effects, are subjected to police stop and examination to enforce
pervasive governmental controls as an everyday occurrence and,
finally, are exposed to traffic accidents that may render all their
contents open to public scrutiny.
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Id. at 303. See also Commonwealth v. Runyan 160 A.3d 831, 837 (Pa.
Super. 2018) (citing Houghton, and concluding if the officer had probable
cause to search the vehicle for contraband, “he was also permitted to search
any container found therein where the contraband could be concealed,
including Appellee’s purse.”) and I.M.S., 124 A.3d at 317 (finding that where
an officer has probable cause to search a vehicle, that officer may search any
container therein where contraband could be concealed).
The standard for determining whether probable cause exists is well
settled:
Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
arrest, 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. Thompson, 985 A.2d 928, 931 (Pa. 2009) (quotations
and citations omitted). “Probable cause does not require certainty, but rather
exists when criminality is one reasonable inference, not necessarily even the
most reasonable inference.” Commonwealth v. Spieler, 887 A.2d 1271,
1275 (Pa. Super. 2005).
Probable cause existed in the instant case. Trooper Sellers smelled
burnt marijuana when he approached the car. N.T. (Suppression), 2/26/18,
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at 6. It is well established in this Commonwealth that “where an officer is
justified in being where he is, his detection of the odor of marijuana is
sufficient to establish probable cause.” Commonwealth v. Stainbrook, 471
A.2d 1223, 1225 (Pa. Super. 1984) (citing Commonwealth v. Stoner, 344
A.2d 633 (1975)). Further, it is undisputed that Mr. Glover admitted to
Trooper Sellers that the individuals in the car had just smoked marijuana prior
to being pulled over, and Mr. Glover handed Trooper Sellers a small bag of
marijuana. N.T. (Suppression), 2/26/18, at 6. Moreover, we note that
Trooper Sellers testified that he has conducted over 1,000 traffic stops and
would search a vehicle if he smelled marijuana or saw contraband in plain
sight. Id. at 5. He further testified that he would search any compartment
in the vehicle where the marijuana or paraphernalia could be found, because
“often [times] there is a second stash in the vehicle.” Id. at 14.
The trial court did not err when it found Trooper Sellers possessed
probable cause to search the vehicle and the containers therein. See
Commonwealth v. Hoffman, 589 A.2d 737, 744 (Pa. Super. 1991) (finding
probable cause existed to search “the passenger compartment, the field
jacket, and containers therein, as possible places where drugs may be found”
in a car after a Trooper observed a waterpipe or “bong” in the interior of
Appellant’s car); see also Commonwealth v. Gelineau, 696 A.2d 188, 192
(Pa. Super. 1997) (finding that probable cause existed to search a vehicle
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when Trooper smelled burnt marijuana and saw marijuana residue in one of
the vehicle’s passenger’s pockets).
As we find no merit to the issue raised in this appeal, we affirm the
judgment of sentence. Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2019
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