Com. v. Sabir, M. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARVIN SABIR :
:
Appellant : No. 442 EDA 2024
Appeal from the Judgment of Sentence Entered October 4, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002695-2023
BEFORE: MURRAY, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 26, 2024
Marvin Sabir (Appellant) appeals from the judgment of sentence
imposed following his nonjury convictions of possession with intent to deliver
a controlled substance (PWID), possession of a controlled substance,
possession of drug paraphernalia, persons not to possess firearms, and
possession of an instrument of crime (PIC). 1 We affirm.
In its opinion, the trial court summarized the relevant factual history:
Police Officer Robert Vazquez (hereinafter “PO Vazquez”)
testified to the following at the evidentiary hearing on Appellant’s
[pretrial] suppression motion: on February 14, 2023, at 6:40
p.m., he and his partner, Police Officer Joshua Rubin (hereinafter
“PO Rubin”)[,] were patrolling a high crime area of 1400 South
Allison Street [in the city of Philadelphia] when he saw a running
car with no plates or tags parked in an abandoned lot. [] PO
Vazquez approached the vehicle on foot and observed Appellant
behind the wheel as the sole occupant. Appellant turned on the
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1 35 P.S. § 780-113(a)(16), (30), (32); 18 Pa.C.S.A. §§ 6105(a)(1), 907.
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dome lights and made direct eye contact with [PO Vazquez] before
placing an unknown object under the driver’s seat. PO Vazquez
asked [Appellant] what he placed under his seat, and Appellant
responded, “just weed.” PO Vazquez inquired if there were any
firearms in the vehicle, to which Appellant responded, “No.” Then
Appellant spontaneously handed over marijuana that was located
on the passenger side of the vehicle.
Appellant complied with PO Vazquez’s request to exit the
vehicle and was placed in handcuffs. PO Vazquez and PO Rub[i]n
searched Appellant, finding additional marijuana, 6 unused
packets, and a black scale. PO Vazquez observed a third bag of
marijuana protruding beneath the driver’s seat. As [PO Vazquez]
went to retrieve the contraband, a black firearm was discovered
behind the drugs. PO Vazquez alerted PO Rub[i]n to the gun using
the code signal “it’s going to rain,” but left the weapon in the
vehicle.
PO Vazquez [determined Appellant did not have a valid
license to carry a firearm.] PO Vazquez also checked the VIN
[(vehicle identification number)] of the vehicle, which yielded no
registration, title, or insurance. Appellant repudiated ownership
of the vehicle, stating, “that’s not my car.”
Trial Court Opinion, 5/8/24, at 3 (citations omitted).
On the same date, Detective Rosalind Jordan (Detective Jordan) applied
for and obtained a search warrant for the vehicle. Pursuant to the search
warrant, police seized a loaded semiautomatic handgun. The Commonwealth
subsequently charged Appellant with the above-described offenses. 2
On April 23, 2023, Appellant filed a motion to suppress the physical
evidence recovered during the vehicle stop. He argued 1) police had neither
probable cause nor a warrant to support his arrest, search, and seizure; 2)
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2 The Commonwealth also charged Appellant with one count of firearms not
to be carried without a license, 18 Pa.C.S.A. § 6106, which was nolle prossed.
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police lacked reasonable suspicion or probable cause to seize evidence; and
3) Appellant did not consent to the search. The trial court heard testimony on
Appellant’s suppression motion on August 10, 2023. The trial court denied
Appellant’s suppression motion.
The case immediately proceeded to a bench trial that same day. The
parties agreed to incorporate the testimony presented during the suppression
hearing. The parties additionally stipulated that Commonwealth’s Exhibits C-
4 (property receipt pertaining to paraphernalia and narcotics recovered from
Appellant’s person) and C-5 (property receipt pertaining to narcotics
recovered from the vehicle) “are fair and accurate depictions of the property
receipts prepared as relates to this case.” N.T., 8/10/23, at 55-56.
Further, the parties stipulated:
[Appellant] is ineligible to possess a firearm due to a disqualifying
offense under [Crimes Code] Section 6105[.] … [A]dditionally, …
there’s a stipulation by and between counsel that if called, [a]
narcotics expert, Kevin Keys, would testify that, first, he is an
expert in the area of narcotics use, distribution and possession.
And he would testify, based on all of his training and experience,
which span[s] over 30 years with the Philadelphia Police
Department in narcotics, based upon the circumstances of this
case, he would testify that the narcotics in question … were
possessed with the intent to deliver.
And then, lastly, the Commonwealth and defense ha[ve]
stipulated that if called to testify, forensic scientist, Jency Skaria,
would testify that the narcotics in this case were tested by the lab
and found to be marijuana, a Schedule I substance. And that
would be specifically for her report, Commonwealth’s Exhibit C-
11, which pertain[s] to two exhibits of two separate bags of 110
grams of marijuana and one bag of approximately 27 grams of
marijuana.
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Id. at 56-57. At the close of the bench trial, the trial court found Appellant
guilty of the above-mentioned offenses. The court deferred sentencing and
ordered completion of a pre-sentence investigation report.
On October 4, 2023, the trial court sentenced Appellant to an aggregate
6 to 12 years in prison, with credit for time served. On October 10, 2023,
Appellant timely filed a post-sentence motion challenging the denial of his
suppression motion.
On January 26, 2024, before the trial court ruled on Appellant’s post-
sentence motion, Appellant filed a pro se notice of appeal.3 Appellant’s
privately-retained trial counsel subsequently filed a motion to withdraw from
representation, asserting that Appellant did not retain him for direct appeal.
By order filed February 12, 2024, the trial court denied Appellant’s post-
sentence motion by operation of law.4 The court did not rule on trial counsel’s
motion to withdraw.
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3 Generally, “no defendant has a constitutional right to hybrid representation,
either at trial or on appeal.” Commonwealth v. Staton, 184 A.3d 949, 957
(Pa. 2020) (citation omitted). Nevertheless, “when a counseled defendant
files a pro se notice of appeal, the appeal is not a legal nullity[,] and has legal
effect.” Commonwealth v. Hopkins, 228 A.3d 577, 580-81 (Pa. Super.
2020) (citation omitted); see also Commonwealth v. Williams, 151 A.3d
621, 624 (Pa. Super. 2016) (“Because a notice of appeal protects a
constitutional right, it is distinguishable from other filings that require counsel
to provide legal knowledge and strategy in creating a motion, petition, or
brief.”).
4 The 120th day after Appellant’s October 10, 2023, post-sentence motion was
February 7, 2024. Thus, the trial court did not render a decision on Appellant’s
(Footnote Continued Next Page)
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On February 12, 2024, trial counsel filed in this Court a motion to
withdraw as counsel reiterating that Appellant did not retain him for appeal.
This Court granted trial counsel’s motion to withdraw and directed the trial
court to determine Appellant’s eligibility for court-appointed counsel. The trial
court subsequently appointed Appellant counsel for direct appeal.
Appellant, through appellate counsel, filed a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal on April 2, 2024. 5 The trial court
subsequently issued a Rule 1925(a) opinion.
On appeal, Appellant raises the following issue for review:
1. Whether the [trial] court erred and abused its discretion when
it denied [Appellant’s] motion to suppress physical evidence by
order of August 10, 2023[,] since the Commonwealth failed to
demonstrate the constitutional muster of the stop, arrest, and
warrantless search of [Appellant] and the subsequent search of
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post-sentence motion within 120 days as required by Pa.R.Crim.P.
720(B)(3)(1) (“the judge shall decide the post-sentence motion … within 120
days of the filing of the motion. If the judge fails to decide the motion within
120 days, or to grant an extension as provided in paragraph (B)(3)(b), the
motion shall be deemed denied by operation of law.”). The trial court did not
grant an extension pursuant to Rule 720(B)(3)(b). Accordingly, the clerk of
courts was required to enter an order denying the post-sentence motion by
operation of law on February 7, 2024. See Pa.R.Crim.P. 720(B)(3)(c) (“When
a post-sentence motion is denied by operation of law, the clerk of courts shall
enter forthwith an order on behalf of the court … that the post-sentence
motion is deemed denied.”). The late filing of the order denying Appellant’s
post-sentence motion by operation of law constitutes a breakdown in the court
system. See Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super.
2003). Moreover, though Appellant filed his pro se notice of appeal prior to
the 120th day following the filing of his post-sentence motion, we deem the
appeal timely filed.
5 The trial court did not order Appellant to file a Rule 1925(b) concise
statement.
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the vehicle[ ]in[ ]question that violated the Fourth Amendment of
the United States Constitution and Article I, Section Eight and Nine
of the Pennsylvania Constitution, in violation of his rights against
unreasonable searches and seizures?
A. There was no reasonable suspicion nor probable cause to
stop and detain [Appellant] and conduct a warrantless search
of his person and property.
B. [Appellant] did not consent to the search of his person or
property.
C. There was no probable cause nor exigent circumstances
present to support the warrantless search and subsequent
seizure in violation of Commonwealth v. Alexander, [243
A.3d 177] (Pa. 2020), reaffirming prior decisions that the
Pennsylvania Constitution required both a showing of probable
cause and exigent circumstances to justify a warrantless
search of an automobile, neither of which existed relative to
the search of the vehicle [] which [Appellant] occupied.
Appellant’s Brief at 6 (footnote omitted).
Our standard of review is well settled:
Our 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, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. 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 our plenary review.
Commonwealth v. Carey, 249 A.3d 1217, 1223 (Pa. Super. 2021) (citation
omitted).
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Appellant challenges the trial court’s denial of his pre-trial motion to
suppress physical evidence. In his statement of questions, Appellant identifies
three separate arguments to support his claim. However, in the argument
section of his brief, Appellant advances only two arguments, abandoning his
assertion that he did not consent to the search. Any challenge to the search
based on lack of consent is therefore waived. See Pa.R.A.P. 2119(a) (“The
argument shall be divided into as many parts as there are questions to be
argued….”); see also Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa.
Super. 2017) (stating that “[t]his Court will not act as counsel and will not
develop arguments on behalf of an appellant.” (citation and quotation marks
omitted)). We address Appellant’s two remaining arguments in turn.
First, Appellant argues he was subject to a custodial detention, which
was not supported by probable cause. See Appellant’s Brief at 12-16.
Appellant claims the officers therefore conducted an illegal warrantless search
of his person. Id. at 12. Further, Appellant contends the officers never
ascertained whether he was licensed to possess marijuana under the Medical
Marijuana Act (MMA), 35 P.S. §§ 10231.101-10231.2110. 6
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6 The MMA “allows for the use of medical marijuana under very specific
guidelines which, when followed, will not lead to criminal punishment.”
Commonwealth v. Jezzi, 208 A.3d 1105, 1114 (Pa. Super. 2019). Notably,
Appellant makes no assertion that he is authorized to possess marijuana under
the MMA. Moreover, Appellant did not raise an argument relating to the
applicability of the MMA at any time before the trial court; this portion of his
argument is therefore waived. Pa.R.A.P. 302(a) (“Issues not raised in the trial
court are waived and cannot be raised for the first time on appeal.”).
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The Commonwealth counters that the interaction began as a mere
encounter when PO Vazquez walked toward Appellant. Commonwealth Brief
at 7. The Commonwealth argues PO Vazquez developed reasonable suspicion
to support an investigative detention based on 1) the vehicle’s location in an
abandoned lot, in a high crime area; 2) the vehicle’s lack of a license plate
despite the fact that it was running; and 3) Appellant’s act of furtively placing
an item under his seat after making eye contact with PO Vazquez. Id. After
Appellant informed PO Vazquez that the item was marijuana, the
Commonwealth asserts PO Vazquez had probable cause to arrest Appellant.
Id. at 8.
“The Fourth Amendment of the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution guarantee individuals freedom from
unreasonable searches and seizures.” Commonwealth v. Singletary, 267
A.3d 1267, 1274 (Pa. Super. 2021). Our courts have consistently identified
varying categories of police interaction:
To secure the right of citizens to be free from unreasonable search
and seizure, courts in Pennsylvania require law enforcement
officers to demonstrate ascending levels of suspicion to justify
their interactions with citizens to the extent those interactions
compromise individual liberty. For this purpose, courts in
Pennsylvania have defined three types of police interactions: a
mere encounter, an investigative detention, and a custodial
detention. A mere encounter is characterized by limited police
presence, and police conduct and questions that are not
suggestive of coercion. Such encounters do not obligate the
citizen to stop or respond and, consequently, need not be
supported by any level of suspicion. Thus, the hallmark of a mere
encounter is that the subject is free to decline to interact with the
police or to answer questions, and is also free to leave at any time.
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If, however, a police presence becomes too intrusive, the
interaction must be deemed an investigative detention or seizure.
An investigative detention, by implication, carries an official
compulsion to stop and respond. [Where an] interaction has
elements of official compulsion[,] it must be supported by a
reasonable and articulable suspicion that the person seized is
engaged in criminal activity and may continue only so long as is
necessary to confirm or dispel such suspicion. Finally, an arrest
or custodial detention must be supported by probable cause to
believe the person is engaged in criminal activity.
Commonwealth v. Hampton, 204 A.3d 452, 456-57 (Pa. Super. 2019)
(citations omitted).
Instantly, the trial court concluded the officers had reasonable suspicion
to stop Appellant based on his Vehicle Code violation. Trial Court Opinion,
5/8/24, at 5-6. Further, the trial court concluded the search of Appellant’s
person was a lawful search incident to arrest. Id. at 6-8.
A vehicle stop constitutes a “seizure” under the Fourth Amendment.
See Commonwealth v. Ruffin, 282 A.3d 796, 800 (Pa. Super. 2022).
Generally, a police officer may stop a vehicle based on reasonable suspicion
that a violation of the Vehicle Code “is occurring or has occurred.” 75
Pa.C.S.A. § 6308(b). However, “in circumstances where the violation is such
that it requires no additional investigation, the officer must possess probable
cause before initiating the traffic stop.” Ruffin, 282 A.3d at 800.
During the suppression hearing, PO Vazquez testified he was on duty on
February 14, 2023. N.T., 8/10/23, at 10. At approximately 6:40 p.m., while
he was on regular patrol, PO Vazquez observed a vehicle parked in an empty
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lot. Id. at 11-12. PO Vazquez stated the vehicle was running and the taillights
were on, but the vehicle did not have a license plate. Id. PO Vazquez parked
his police cruiser and approached the vehicle. Id. at 12-13.
The evidence adduced at the suppression hearing confirms PO Vazquez
first approached the vehicle because it did not have a license plate. See N.T.,
8/10/23, at 11 (wherein PO Vazquez testified he “observed a vehicle that was
turned on with no plates, at which point I issued an investigation.”). Section
1332(a) of the Vehicle Code provides:
Every registration plate shall, at all times, be securely fastened to
the vehicle to which it is assigned or on which its use is authorized
in accordance with regulations promulgated by the department.
75 Pa.C.S.A. § 1332(a). Further investigation would not have provided PO
Vazquez with additional information concerning whether a violation of Section
1332(a) had occurred. Therefore, he was required to possess probable cause
in order to stop Appellant.7 See generally Ruffin, 282 A.3d at 800
(concluding a violation of Section 1332(b) (concerning obscured license
plates) required no additional investigation, and therefore, officer was
required to have probable cause). PO Vazquez’s testimony indicates the
vehicle’s lack of license plate was immediately apparent. See N.T., 8/10/23,
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7 While we disagree with the trial court’s application of the less stringent
reasonable suspicion standard, we note that we may affirm for any reason
that is supported by the record. See In re A.J.R.-H., 188 A.3d 1157, 1175-
76 (Pa. 2018) (“The ‘right for any reason’ doctrine allows an appellate court
to affirm the trial court’s decision on any basis that is supported by the
record.”).
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at 11. Thus, PO Vazquez had probable cause stop the vehicle for violation of
Section 1332(a).
Then, according to PO Vazquez:
As I got closer, [Appellant] turned on the dome lights in the
vehicle. At which point, when I got even closer, we eventually
made eye contact, which is when I observed him place an
unknown object underneath his car seat.
Id. at 13. PO Vazquez stated that Appellant was the only individual in the
vehicle. Id.
PO Vazquez asked Appellant what he had placed beneath the seat, and
Appellant replied, “just weed.” Id. at 14. Appellant also handed PO Vazquez
a bag of marijuana, which had been located in the passenger side of the
vehicle. See id. at 23, 27. PO Vazquez testified the marijuana Appellant
handed him was “in a quantity that is still considered illegal.” Id. at 28; see
also Commonwealth’s Exhibit C-11 (lab report identifying two heat-sealed
bags containing over 110 grams of marijuana, and a knotted plastic bag
containing over 27 grams of marijuana). At that time, PO Vazquez asked
Appellant to exit the vehicle. N.T., 8/10/23, at 14, 28-29.
When Appellant stepped out of the car, Officer Vazquez observed a bag
of marijuana in plain view under the driver’s seat. Id. at 14. When PO
Vazquez retrieved the marijuana, he noticed a black firearm, which was also
under the seat, and alerted Officer Rubin. Id. at 14-15. The officers did not
retrieve the firearm, as Appellant was already detained. Id. at 15-16. The
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officers searched Appellant after detaining him, at which time they recovered
additional marijuana and drug paraphernalia. Id. at 16, 29.
Upon review, we conclude PO Vazquez had the requisite probable cause
to stop Appellant based on a violation of Section 1332(a). During the course
of the legal stop, PO Vazquez asked Appellant only a single question based on
his observation of Appellant moving something within the vehicle. See N.T.,
8/10/23, at 14. PO Vazquez did not improperly prolong the stop such that an
independent basis was required to support the question. See generally
Rodriguez v. United States, 575 U.S. 348, 254 (2015) (stating “the
tolerable duration of police inquiries in the traffic-stop context is determined
by the seizure’s ‘mission’—to address the traffic violation that warranted the
stop … and attend to related safety concerns….”); see also Commonwealth
v. Ross, 297 A.3d 787, 792 (Pa. Super. 2023) (explaining that tasks relating
to officer safety are part of a traffic stop’s mission, and concluding officer’s
inquiry of whether the appellant possessed a firearm did not unnecessarily
prolong the ongoing stop).
Appellant voluntarily admitted to possessing marijuana and handed PO
Vazquez a bag containing the substance. Appellant’s voluntary admission
provided probable cause for his arrest. See Commonwealth v. Young, 162
A.3d 524, 528 (Pa. Super. 2017) (concluding the defendant’s admission to
officers that he had marijuana gave police probable cause to arrest him for
possession of a controlled substance). “The officers were also authorized to
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search [Appellant] incident to that arrest….” Id. Based upon the foregoing,
we conclude the marijuana and drug paraphernalia were recovered during a
valid search incident to Appellant’s arrest. Appellant’s first claim merits no
relief.
In his second claim, Appellant asserts the officers did not have probable
cause to conduct a warrantless search of his vehicle. Appellant’s Brief at 16.
Appellant cites our Supreme Court’s holding in Alexander, supra,8 and argues
the police did not establish both probable cause and exigent circumstances to
support a warrantless search. Id. at 16-17. Additionally, Appellant claims
the search warrant obtained by Detective Jordan does not cure the illegal
seizure under the independent source doctrine. Id. at 17-18.
The Commonwealth counters Appellant lacked standing to challenge the
vehicle search because he failed to establish a legitimate expectation of
privacy in the vehicle. Commonwealth Brief at 10. The Commonwealth points
out that Appellant denied owning the vehicle. Id.
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8 In Alexander, our Supreme Court held:
Article I, Section 8 [of the Pennsylvania Constitution] affords
greater protection to our citizens than the Fourth Amendment, and
… the Pennsylvania Constitution requires both a showing of
probable cause and exigent circumstances to justify a warrantless
search of an automobile.
Alexander, 243 A.3d at 181. Appellant’s reliance on Alexander is misplaced
because, as we discuss below, Appellant fails to meet the threshold
requirement of establishing a privacy interest in the vehicle.
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To prevail on a suppression claim, “the defendant, as a preliminary
matter, must show that he had a privacy interest in the area searched.”
Commonwealth v. Burton, 973 A.2d 428, 434 (Pa. Super. 2009) (en banc)
(citation omitted); see also Commonwealth v. Enimpah, 106 A.3d 695,
698 (Pa. 2014) (explaining that while a defendant charged with a possessory
offense has automatic standing, the defendant still has the burden to establish
a “privacy interest in the place invaded or thing seized”).
An expectation of privacy is present when the individual, by his
conduct, exhibits an actual (subjective) expectation of privacy and
that the subjective expectation is one that society is prepared to
recognize as reasonable. The constitutional legitimacy of an
expectation of privacy is not dependent on the subjective intent
of the individual asserting the right but on whether the
expectation is reasonable in light of all the surrounding
circumstances. Pennsylvania law makes clear there is no legally
cognizable expectation of privacy in a stolen automobile.
Additionally, this Court has declined to extend an expectation of
privacy to an “abandoned” automobile.
Burton, 973 A.2d at 434 (citation and paragraph break omitted).
Here, the trial court concluded that Appellant failed to meet his burden
of establishing his legitimate expectation of privacy in the vehicle. Trial Court
Opinion, 5/8/24, at 9. We agree.
PO Vazquez testified the vehicle did not have a license plate, and
Appellant did not produce proof of insurance for the vehicle. N.T., 8/10/23,
at 11-12, 18. PO Vazquez’s search using the VIN revealed the vehicle was
not registered to any individual. Id. at 18, 19. No one else near the scene
claimed ownership of the vehicle. Id. at 19. Additionally, it is undisputed
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that when PO Rubin told Appellant that they found something in the vehicle,
Appellant replied, “It’s not my car.” See id. at 49; see also Appellant’s Brief
at 10 (stating “Appellant repudiated ownership of the vehicle”). 9
In sum, the vehicle was not registered in Appellant’s name, and
Appellant offered no other evidence that he had permission to use the vehicle.
Accordingly, the record supports the trial court’s findings, and its conclusion
that Appellant lacked a legitimate privacy interest in the vehicle is sound. See
Burton, 973 A.2d at 436 (concluding the appellant did not establish an
expectation of privacy in a vehicle where the appellant did not own the vehicle;
failed to establish the registered owner granted him permission to use the
vehicle; and offered no evidence to explain his connection to the registered
owner of the vehicle); see also Commonwealth v. Maldonado, 14 A.3d
907, 911 (Pa. Super. 2011) (concluding the appellant did not establish a
reasonable expectation of privacy in the vehicle at issue, which was registered
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9 We note that Appellant’s denial of ownership was presented to the trial court
through a recording from one of the officers’ body-worn cameras. See N.T.,
8/10/23, at 49 (prosecutor referencing the statement, as shown in the body-
worn camera footage); see also id. at 20-21 (wherein Commonwealth’s
Exhibit C-1 (recording from PO Vazquez’s body-worn camera) was admitted
into evidence), 24 (wherein Commonwealth’s Exhibit C-2 (recording from PO
Rubin’s body-worn camera) was admitted into evidence). The recordings were
not included with the certified record submitted to this Court. See generally
Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (“Our
law is unequivocal that the responsibility rests upon the appellant to ensure
that the record certified on appeal is complete….”). Nevertheless, the absence
of these recordings does not hinder our review.
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to the appellant’s girlfriend, because he failed to provide evidence that his
girlfriend authorized him to use her vehicle). Appellant’s second claim merits
no relief.10
Judgment of sentence affirmed.
Date: 11/26/2024
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10 The trial court also concluded the marijuana and firearm were admissible
under the plain view exception to the warrant requirement. See Trial Court
Opinion, 5/8/24, at 8-10 (stating the marijuana was plainly visible following
Appellant’s removal from the vehicle, and the firearm was plainly visible once
the officers retrieved the marijuana). Given our conclusion on this issue, we
need not fully address the applicability of the plain view exception. However,
we note briefly that Appellant’s own statements alerted PO Vazquez that
marijuana was located beneath the seat, and Appellant handed PO Vazquez
another bag of marijuana from the passenger side of the vehicle. PO Vazquez
observed the firearm while retrieving the bag from beneath the seat. See
N.T., 8/10/23, at 14. POs Vazquez and Rubin did not seize the firearm at that
time, and instead, Detective Jordan secured a search warrant.
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