Com. v. Jones, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JEROME JONES
Appellee No. 930 EDA 2014
Appeal from the Order February 28, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0017542-2013
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY MUNDY, J.: FILED JANUARY 05, 2016
The Commonwealth appeals from the February 28, 2014 order
reversing the municipal court order of December 18, 2013, and granting
suppression in favor of Appellee, Jerome Jones. After careful review, we
reverse and reinstate the December 18, 2013 judgment of sentence.
The trial court summarized the facts of this case as follows.
The Commonwealth presented the testimony of
Philadelphia Police Officer Brian Wolf at the
evidentiary hearing on [Appellee’s] motion to
suppress evidence. Officer Wolf testified that he and
his partner were on routine bicycle patrol on the
1600 block of Granite Street on May 4, 2013 at
approximately 11:40 p.m. when he smelled what he
believed to be the strong odor of PCP in the area.
The officer likened the smell to the odor of cat urine.
Officer Wolf observed [Appellee] walk over to a silver
SUV and throw an unknown amount of cigarettes
onto the rear floor of the vehicle. [Appellee] then
walked around to the driver’s side where he tried to
enter the vehicle. He was stopped and detained by
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Officer Wolf’s partner while still outside the SUV.
Officer Wolf acknowledged that [Appellee] was not
free to leave at that point. After [Appellee] was
secured, Officer Wolf looked through the rear window
of the vehicle and observed two yellowish cigarettes
on the floor. The officer then opened the rear door,
reached into the vehicle and seized two cigarettes
dipped in PCP.
Trial Court Opinion, 1/16/15, at 2.
The trial court further detailed the procedural history of this case as
follows.
On May 4, 2013, [Appellee] was arrested on
the 1600 block of Granite Street in Philadelphia and
charged with possession of a controlled substance. [1]
An evidentiary hearing on the motion to suppress
physical evidence filed[2] by [Appellee] was held on
August 16, 2013 before Municipal Court Judge
Jacqueline Frazier-Lyde. At the close of the hearing,
Judge Frazier-Lyde denied the motion. On December
18, 2013, the Honorable Craig Washington found
[Appellee] guilty and sentenced him to a term of 6 to
23 months[’] incarceration. A motion for
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1
35 P.S. § 780-113(a)(16).
2
Neither the certified record nor the trial court’s docket contains an entry for
a written suppression motion. However, Pennsylvania Rule of Criminal
Procedure 575 permits oral motions at the discretion of the suppression
court. See Pa.R.Crim.P. 575(A)(1) (stating, “[a]ll motions shall be in
writing, except as permitted by the court or when made in open court during
a trial or hearing[ ]”). At the beginning of the suppression hearing,
Appellee’s counsel stated “[t]his is a motion to suppress” and proceeded to
state the reasons he sought suppression. N.T., 8/16/13, at 4. Immediately
thereafter, the municipal court conducted a suppression hearing. Therefore,
we presume it was an oral motion to suppress permitted by the municipal
court.
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reconsideration of sentence was denied by Judge
Washington on January 10, 2014.
On January 17, 2014[, Appellee] filed a Writ of
Certiorari with [the trial court] alleging that the
motion to suppress had been erroneously denied.
On February 28, 2014, [the trial court] granted the
writ and ordered the case against [Appellee]
discharged. The Commonwealth thereafter filed the
instant [] appeal.[3]
Id. at 1.
On appeal, the Commonwealth presents the following issue for our
review.
Did the [trial] court, sitting as an appellate
court, err in reversing [Appellee’s] Municipal Court
conviction and discharging him on the ground that
his motion to suppress should have been granted for
supposed lack of reasonable suspicion or probable
cause to arrest, where an experienced officer
smelled the distinct odor of PCP, saw [Appellee]
throw yellowish cigarettes characteristic of having
been dipped in PCP into a car, and when he
approached [Appellee] saw the cigarettes on the
floor of the car in plain view?
Commonwealth’s Brief at 3.4
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3
The Commonwealth and the trial court have complied with Pennsylvania
Rule of Appellate Procedure 1925.
4
Appellee argues that the Commonwealth, in its voluntarily filed
Pennsylvania Rule of Appellate Procedure 1925(b) statement, did not
preserve the issue that the trial court erred in reversing the decision of the
municipal court denying Appellee’s motion to suppress. See
Commonwealth v. Snyder, 870 A.2d 336, 341 (Pa. Super. 2005)
(concluding the appellant waived all the issues not contained in his voluntary
Rule 1925(b) statement; “[i]t is of no moment that [the] appellant was not
(Footnote Continued Next Page)
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We begin by noting our well-settled standard of review.
When the Commonwealth appeals from a
suppression order, this Court may consider only the
evidence from the defendant’s witnesses together
with the evidence of the prosecution that, when read
in the context of the record as a whole, remains
uncontradicted. In our review, we are not bound by
the suppression court’s conclusions of law, and we
must determine if the suppression court properly
applied the law to the facts. We defer to the
suppression court’s findings of fact because, as the
finder of fact, it is the suppression court’s
prerogative to pass on the credibility of the
witnesses and the weight to be given to their
testimony.
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)
(internal quotation marks and citations omitted), appeal denied, 106 A.3d
724 (Pa. 2014).
The Fourth Amendment of the United States Constitution provides,
“[t]he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated
….” U.S. Const. amend. IV. Likewise, Article I, Section 8 of the
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(Footnote Continued)
ordered to file a 1925(b) statement[]”). Appellee argues that the
Commonwealth framed its Rule 1925(b) in terms of whether the discharge
was proper, and it did not encompass whether the underlying reversal of the
municipal court’s decision denying suppression was correct. Appellee’s Brief
at 11. We disagree. Contrary to Appellee’s view, the Commonwealth in its
Rule 1925(b) statement was not challenging whether discharge or remand to
the municipal court for a new trial was the proper remedy. Id. at 13.
Instead, the Rule 1925(b) statement raised the issue of whether the
underlying reason for the discharge was correct, i.e., whether the evidence
should have been suppressed. Therefore, we conclude that the
Commonwealth has preserved the issue for our review.
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Pennsylvania Constitution states, “[t]he people shall be secure in their
persons, houses, papers and possessions from unreasonable searches and
seizures ….” Pa. Const. Art. I, § 8. In general, prior to conducting a search,
the police must obtain a warrant from an independent judicial officer by
demonstrating probable cause. Commonwealth v. Gary, 91 A.3d 102, 106
(Pa. 2014) (plurality opinion). Moreover, “[w]arrantless searches or seizures
are presumptively unreasonable subject to certain established exceptions.”
Hudson, supra (citation omitted).
One such exception to the warrant requirement is when evidence is
seized from an automobile. In Pennsylvania, “[u]ntil recently, in order for
police officers to conduct a lawful search of an automobile without a warrant,
the officers were required to have probable cause and exigent
circumstances.” Id. (emphasis added). However, our Supreme Court
recently “adopt[ed] the federal automobile exception to the warrant
requirement, which allows police officers to search a motor vehicle when
there is probable cause to do so and does not require any exigency beyond
the inherent mobility of a motor vehicle.” Gary, supra at 104.5
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5
Gary is a plurality opinion, authored by Justice McCaffery and joined by
Justices Castille and Eakin. However, in his concurring opinion, Justice
Saylor specifically stated that he “join[ed] the lead Justices in adopting the
federal automobile exception.” Gary, supra at 138 (Saylor, J., concurring)
(writing separately to highlight the “inconsistency in the courts’ rejection of
bright-line rules restraining law enforcement as a means of protecting
individual rights, while simultaneously embracing such rules when they
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In this case, the Commonwealth contends the trial court erred by
concluding that the warrantless search of Appellee’s vehicle was
unconstitutional because the Commonwealth did not show there were
exigent circumstances. Commonwealth’s Brief at 7. We agree that this is a
misstatement of the law following Gary.6 The Commonwealth needed to
establish only that the police possessed probable cause in order to search
the interior of the vehicle. Even though the trial court did not opine whether
the Commonwealth demonstrated probable cause,7 we may consider the
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(Footnote Continued)
facilitate law enforcement”) (footnote omitted). Accordingly, the adoption of
the federal automobile exception is precedential, as four justices out of six
agreed to adopt it. See Commonwealth v. Brown, 23 A.3d 544, 556 (Pa.
Super. 2011) (explaining, “[i]n cases where a concurring opinion
enumerates the portions of the plurality opinion in which the author joins or
disagrees, those portions of agreement gain precedential value[]”).
6
We note that at the time the trial court made its decision, on February 28,
2014, our Supreme Court had not yet issued Gary, which was decided on
April 29, 2015. However, the trial court’s January 16, 2015 opinion
maintained that the automobile exception required the Commonwealth to
prove exigency. Even though Gary was announced after the trial court
decided to grant suppression, it appears Gary applies retroactively to cases
pending on direct appeal. See Commonwealth v. Dunn, 95 A.3d 272 (Pa.
2014) (per curiam) (vacating Superior Court decision based on a pre-Gary
application of the automobile exception and remanding in light of Gary).
Therefore, we apply Gary to this case because it was pending on direct
appeal when Gary was decided.
7
The trial court explicitly stated, “even assuming arguendo that Officer Wolf
had probable cause to believe that the cigarettes he observed through the
window of the vehicle contained PCP, no exigency existed to excuse the
warrantless entry and seizure of items.” Trial Court Opinion, 1/16/15, at 3.
The Commonwealth erroneously states that the trial court “accepted that
Officer Wolf had probable cause[.]” Commonwealth’s Brief at 7.
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issue as it presents a question of law. See Commonwealth v. Newman,
84 A.3d 1072, 1080 (Pa. Super. 2014) (citation omitted), appeal denied, 99
A.3d 925 (Pa. 2014).
“Probable cause exists where the facts and circumstances within the
officer’s knowledge are sufficient to warrant a prudent individual in believing
that an offense was committed and that the defendant has committed it.”
Commonwealth v. Griffin, 24 A.3d 1037, 1042 (Pa. Super. 2011) (citation
omitted), appeal denied, 34 A.3d 82 (Pa. 2011). We do not ask 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.” Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009)
(citations and quotation marks omitted, italics in original). When assessing
whether probable cause was present, “we must consider the totality of the
circumstances as they appeared to the arresting officer.” Griffin, supra.(citation and quotation marks omitted). Further, an officer’s experience is a
relevant factor in determining probable cause if the officer demonstrates a
nexus between his experience and the search or seizure. Thompson,
supra at 935.
Further, the “plain view” exception to the warrant requirement applies
in this case. “[T]he plain view doctrine, permits the warrantless seizure of
an object when: (1) an officer views the object from a lawful vantage point;
(2) it is immediately apparent to him that the object is incriminating; and
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(3) the officer has a lawful right of access to the object.” Hudson, supra
(citation omitted).
In determining whether the incriminating nature of
an object [is] immediately apparent to the police
officer, we look to the totality of the circumstances.
An officer can never be one hundred percent certain
that a substance in plain view is incriminating, but
his belief must be supported by probable cause. In
viewing the totality of the circumstances, the
officer's training and experience should be
considered.
Commonwealth v. Miller, 56 A.3d 424, 430 (Pa. Super. 2012) (citations
and quotation marks omitted).
Here, we conclude the seizure of the PCP-coated cigarettes was
constitutionally permissible because Officer Wolf had probable cause to seize
the contraband without a warrant under the plain view and automobile
exceptions. Specifically, the uncontradicted evidence presented by the
Commonwealth at the suppression hearing was as follows. Officer Wolf and
his partner were on bicycle patrol at night in an area known for narcotics.
N.T., 8/16/13, at 9. As Wolf passed Appellee, who was the only person in
the area at the time, he noticed “a strong odor of PCP [] in the air.” Id. at
7-8. Wolf explained that in his career he had made 10-15 arrests for PCP
possession and that the aroma of PCP is distinct, unmistakable, and “very
similar to cat urine.” Id. at 8-9. In addition, through his experience, he
knew that PCP is typically consumed by smoking marijuana joints or
cigarettes that have been dipped into PCP. Id. at 12. After smelling the
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PCP, Wolf watched Appellee as he abruptly approached a parked vehicle,
opened the rear door, and threw cigarettes into the vehicle. Id. at 8. At
that point, Wolf and his partner approached Appellee. Id. Wolf testified,
“[t]he smell of PCP coming from the entire car in his area was extremely
strong. And I could tell it was coming from the car.” Id. While Wolf’s
partner detained Appellee, Wolf looked through the vehicle’s rear passenger
window and observed two cigarettes on the rear floor that looked “wet” and
“yellowish.” Id. at 10. Based on these circumstances, Wolf opened the rear
door and seized the cigarettes. Id. at 21.
Applying the plain view exception to these facts, we conclude the
seizure was proper. First, Wolf viewed the incriminating contraband, two
apparently PCP-coated cigarettes, in plain view on the floor of a vehicle from
a lawful vantage point, on a public street. See Hudson, supra. Second,
Wolf had probable cause to conclude that the incriminating nature of the
contraband was immediately apparent. He smelled PCP, which he was
familiar with through his experience, both when Appellee passed him on the
street and again when he approached the vehicle. He watched Appellee toss
cigarettes into the car after the officers passed him. Wolf knew one typical
method used to consume PCP was to dip a cigarette into PCP and then
smoke it. The cigarettes on the floor of the car appeared wet, as if they had
been dipped into a liquid, and were discolored. The totality of these
circumstances, viewed through Wolf’s experience, gave rise to probable
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cause that the cigarettes were incriminating. See Miller, supra. Third,
Wolf had a lawful right to access the contraband under the automobile
exception to the warrant requirement. As explained above, once an officer
has probable cause that evidence of a crime is in an automobile, the officer
may conduct a warrantless search of the vehicle. See Gary, supra.
Therefore, the seizure of the PCP-coated cigarettes was constitutionally
permissible.
In his brief, Appellee does not contest that the Commonwealth
established probable cause to conduct a warrantless search of his vehicle
under the plain view and automobile exceptions. Instead, he argues that his
stop was an investigative detention that was not supported by reasonable
suspicion or probable cause. Appellee’s Brief at 18. Appellee contends that
the recovery of the contraband must be suppressed as the fruit of his illegal
stop. Id. at 20. Assuming that Appellee was subjected to an investigative
detention,8 the police must have possessed a reasonable suspicion that
Appellee was engaged in criminal activity. Commonwealth v. McAdoo, 46
A.3d 781, 784 (Pa. Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013).
Our Supreme Court has explained reasonable suspicion as follows.
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8
At the suppression hearing, Wolf testified that Appellee was held for an
investigative detention and he was not free to leave. N.T., 8/16/13, at 21.
The Commonwealth and the trial court did not address the legality of the
stop.
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Reasonable suspicion is a less stringent
standard than probable cause necessary to
effectuate a warrantless arrest, and depends on the
information possessed by police and its degree of
reliability in the totality of the circumstances. In
order to justify the seizure, a police officer must be
able to point to specific and articulable facts leading
him to suspect criminal activity is afoot. In
assessing the totality of the circumstances, courts
must also afford due weight to the specific,
reasonable inferences drawn from the facts in light of
the officer’s experience and acknowledge that
innocent facts, when considered collectively, may
permit the investigative detention.
Commonwealth v. Holmes, 14 A.3d 89, 95-96 (Pa. 2011) (internal
citations, quotation marks, and emphasis omitted).
The totality of the evidence presented at the suppression hearing
established reasonable suspicion to subject Appellee to an investigative
detention. As described above, Wolf immediately identified the distinct smell
of PCP as Appellee passed him. See Commonwealth v. Stoner, 344 A.2d
633, 635 (Pa. Super. 1975) (explaining that “plain smell” may provide
probable cause and opining “[i]t would have been a dereliction of duty for
[the officer] to ignore the obvious aroma of an illegal drug which he was
trained to identify[]”). Appellee was the only other person present on the
block, a known high drug area, at that time of night. Wolf then observed
Appellee react to the police presence by abruptly discarding cigarettes,
which he knew from his experience to be a typical means to ingest PCP, into
a vehicle. The totality of these circumstances in the light of the officer’s
experience gave rise to reasonable suspicion that Appellee was in possession
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of PCP. See Holmes, supra. Therefore, we conclude the police had
reasonable suspicion to conduct an investigative detention of Appellee. See
id.
Based on the foregoing, we conclude that the trial court erred as a
matter of law by reversing the municipal court and suppressing the evidence
against Appellee. See id. Accordingly, the trial court’s February 28, 2014
order is reversed, and Appellee’s December 18, 2013 judgment of sentence
is reinstated.
Order reversed. Judgment of sentence reinstated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2016
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