Com. v. Faison, L.

J-S49022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LATEEF FAISON
Appellee No. 3076 EDA 2013
Appeal from the Order October 4, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006929-2012
BEFORE: OLSON, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED APRIL 10, 2015
The Commonwealth appeals1 from the order dated October 4, 2013,
entered in the Court of Common Pleas of Philadelphia County, granting
Lateef Faison’s motion to suppress physical evidence obtained by the police
following the warrantless search of his vehicle. The Commonwealth claims
the trial court erred in suppressing a baggie of pills found in the car because
the contraband was observed in plain view during a lawful traffic stop. After
a thorough review of the submissions by the parties, the certified record,
and relevant law, we affirm.
____________________________________________
1
The Commonwealth has certified in its notice of appeal that the
suppression order will terminate or substantially handicap its prosecution of
the case. See Pa.R.A.P. 311(d).
J-S49022-14
The trial court recounted the testimony from the suppression hearing
as follows:
On May 26, 2012 at approximately 6:30 p.m., Defendant
Lateef Faison made an illegal left turn on a red light. Officers
witnessed [Faison]’s illegal traffic maneuver and immediately
followed [Faison]. [Faison] parked his vehicle on the pavement,
exited the vehicle, and walked away while the vehicle was still
running. As [Faison] walked away, officers pulled up and parked
behind [Faison]’s parked car. An officer exited the vehicle,
stopped [Faison], and brought [him] back to [his] vehicle to
issue a citation.
As the officer opened [Faison]’s driver-side door to place
[Faison] back in the vehicle, the officer noticed a gun between
the driver seat and the console. [Faison] was able to produce a
valid permit to carry a firearm and at no time did [Faison] reach
for the gun. In reaching into the vehicle to secure the weapon
and unload it, the officer noticed a bag of blue pills on the floor
of the passenger’s side of the vehicle. The officer called Poison
Control in order to identify the pills, because he did not know
what they were. After describing the markings, Poison Control
told the officer that the pills were Schedule II narcotics.
[Faison] was arrested and charged with Manufacture,
Delivery, or Possession with Intent to Manufacture or Deliver (35
P.S. § 780-113(a)(30)), Intentional Possession of a Controlled
Substance (35 P.S. § 780-113(a)(16)), and Possessing
Instruments of Crime (18 Pa.C.S.A. § 907(a)).
Trial Court Opinion, 4/1/2014, at 1-2 (record citations omitted).
On July 17, 2013, Faison filed a motion to suppress the drugs seized
during the search of his car. On October 4, 2013, a suppression hearing was
-2-
J-S49022-14
held, and the trial court granted Faison’s motion. The Commonwealth filed
this timely appeal.2
In its sole issue on appeal, the Commonwealth argues the trial court
erred in suppressing the pills found in Faison’s car because the seizure of the
drugs was proper where the officers observed the contraband in plain view.
Commonwealth’s Brief at 8. The Commonwealth contends it met all of the
requirements of the “plain view” test based on the following. First, Police
Officer Chris Sharamatew was at a lawful vantage point when he observed
the bag of pills on the floor of the car after conducting a proper traffic stop.
Id. Second, the incriminating nature of the bag of pills was immediately
apparent. Id. at 9. Third, the Commonwealth states the officer had a lawful
right of access to the baggie of pills under the automobile exception to the
warrant requirement. Id. at 11, citing Commonwealth v. Gary, 91 A.3d
102 (Pa. 2014).
With regard to the “immediately apparent” factor, the Commonwealth,
relying on Commonwealth v. Liddie, 21 A.3d 229 (Pa. Super. 2011),
maintains the officer need not be absolutely certain that the substance is
____________________________________________
2
The Commonwealth’s appeal was originally dismissed for failure to file a
docketing statement under Pa.R.A.P. 3517. The Commonwealth then filed a
motion to reinstate the appeal due to a breakdown in the notification
process. On January 21, 2014, by per curiam order, this Court granted to
the motion to reinstate the appeal.
In a related matter, Faison did not file an appellee’s brief in this
appeal.
-3-
J-S49022-14
incriminating and that his belief need only be supported by probable cause.
Id. Moreover, it alleges that based on the totality of the circumstances,
there was probable cause, in the present case, to support the officer’s belief
that the pills were incriminating. The Commonwealth points to the
following: “[Faison] walked away from his car while it was still running after
being stopped for a traffic violation. Further, the pills were packaged in a
plastic baggie, [Faison] did not produce a prescription for them, and they
were in close proximity to a gun.” Id. at 10.
Our standard of review is as follows:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and consider only the
evidence from the defendant’s witnesses together with the
evidence of the prosecution that, when read in the context of the
entire record, remains uncontradicted. The suppression court’s
findings of fact bind an appellate court if the record supports
those findings. The suppression court’s conclusions of law,
however, are not binding on an appellate court, whose duty is to
determine if the suppression court properly applied the law to
the facts.
Commonwealth v. Baker, 946 A.2d 691, 693 (Pa. Super. 2008) quoting
Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 2005). “It is
within the suppression court’s sole province as factfinder to pass on the
credibility of witnesses and the weight to be given to their testimony. The
suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003) (citations omitted). Nevertheless, the
suppression court’s conclusions of law are not binding on an appellate court,
-4-
J-S49022-14
and are subject to plenary review. Commonwealth v. Johnson, 969 A.2d
565, 567 (Pa. Super. 2009) (citations omitted).
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. The Pennsylvania Constitution also protects this
interest by ensuring, “[t]he people shall be secure in their persons, houses,
papers and possessions from unreasonable searches and seizures ….” Pa.
Const. Art. I, § 8. Moreover, “a lawful search generally extends to the entire
area in which the object of the search may be found.” Commonwealth v.
Rega, 933 A.2d 997, 1013 (Pa. 2007) (citation omitted), cert. denied, 552
U.S. 1316 (2008).
We note that “[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.” Hudson, 92 A.3d at
1241. However, in Gary, supra, the Pennsylvania Supreme Court, in an
Opinion Announcing the Judgment of the Court (“OAJC”),3 “adopt[ed] the
____________________________________________
3
It merits mention that while Gary is a plurality decision, the result is
precedential due to the nature of Justice Saylor’s concurring opinion. Gary,
91 A.3d at 138 (“I join the lead Justices in adopting the federal automobile
exception.”).
Moreover, we note that Gary was decided on April 29, 2014, after the
suppression hearing in this case. Neither this Court nor the Supreme Court
(Footnote Continued Next Page)
-5-
J-S49022-14
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, 91 A.3d at 104.4 Here, the Commonwealth does not allege
exigent circumstances justified the warrantless search of Faison’s vehicle.
_______________________
(Footnote Continued)
has explicitly addressed the issue of whether Gary applies retroactivity.
Nevertheless, “the general rule in Pennsylvania is to apply the law in effect
at the time of the appellate decision.” Commonwealth v. Housman, 986
A.2d 822, 840 (Pa. 2009).
Furthermore, in Hudson, supra, a panel of this Court analyzed and
applied Gary to the Commonwealth’s appeal when the suppression hearing
was held before Gary was decided. Similarly, in Commonwealth v. Dunn,
95 A.3d 272 (Pa. 2014), the Pennsylvania Supreme Court vacated a decision
of this Court, filed pre-Gary, and remanded for reconsideration in light of
Gary. On remand, a panel of this Court then applied Gary to the matter.
Commonwealth v. Dunn, 2014 Pa. Super. LEXIS 4775 [1568 EDA 2011]
(Pa. Super. Sept. 29, 2014) (unpublished memorandum).
4
Further, the Court determined:
The 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. The consistent and firm
requirement for probable cause is a strong and sufficient
safeguard against illegal searches of motor vehicles, whose
inherent mobility and the endless factual circumstances that
such mobility engenders constitute a per se exigency allowing
police officers to make the determination of probable cause in
the first instance in the field.
Id. at 138.
-6-
J-S49022-14
Therefore, our review in this matter is confined to the plain view exception
to the search warrant requirement.
Warrantless searches or seizures are presumptively
unreasonable subject to certain established exceptions. One
exception, the 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 (3) the officer has a lawful right
of access to the object.
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)
(emphasis added), appeal denied, 2014 Pa. LEXIS 3507 [323 EAL 2014] (Pa.
Dec. 30, 2014).
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).5
Here, the trial court found the following:
[Faison] properly argues that the incriminating nature of the bag
of pills had to be readily apparent to the police officer in order
for the warrantless search and seizure to be conducted. The
arresting officer admits that he did not know the nature of the
____________________________________________
5
“Immediately apparent” has been defined in plain feel exception cases,
which are analogous to plain view exception matters, as that which “the
officer readily perceives, without further exploration or searching[.]”
Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000).
-7-
J-S49022-14
pills when he recovered them from [Faison]’s vehicle. N.T.
10/04/2013, at 8-9. The officer clearly indicated that he “did not
know what the pills were at the time.” N.T. 10/04/2013, at 10.
It was not until the officer later contacted Poison Control that he
learned the identity of the pills. Id. The incriminating nature of
the pills was therefore not immediately apparent to the officer as
is needed for the plain view exception to the warrant
requirement to apply.
Trial Court Opinion, 4/1/2014, at 3-4.
Applying the three-part test of the plain view doctrine to the facts
presently, it is clear that the court found the Commonwealth did not meet its
burden with respect to the second prong, that the incriminating nature of the
bag of pills was immediately apparent to the officer. We agree with the
court’s finding.
Moreover, this case is substantially similar to Hudson, supra. In
Hudson, the police officers conducted a traffic stop of the defendant’s car
due to a broken tail light. Hudson, 92 A.3d at 1237. During the stop, the
officers noticed the defendant reaching for the center console area. Id. The
officers then conducted a protective search of the car, and when they
opened the console, they observed three pill bottles. Id. Two pill bottles
had the labels partially removed, while the label on third bottle was still
intact and bore the defendant’s name. Id. The bottles were seized and the
defendant was arrested. Id. The pills were later determined to be
prescription pain medication. Id. The defendant filed a motion to suppress,
which was granted. Id. The trial court found the following:
-8-
J-S49022-14
[The officer] was not able to testify that it was "immediately
apparent" to him that these pill bottles contained illegal drugs.
He admitted that he did not know what these bottles contained.
He had to call Poison Control to conduct testing in order to
determine that these were illegal narcotics. If such items were
immediately apparent to him to be contraband, there would have
been no need to have Poison Control conduct such tests.
Id. at 1242. On appeal, a panel of this Court affirmed the trial court’s order,
stating:
We agree with the suppression court's conclusion that while the
pill bottles themselves were in plain view, the contents of those
bottles were not immediately apparent, and a pill bottle by itself
is not contraband. Suppression Court Opinion, 7/19/13, at 1.
The potentially incriminating contents of the pill bottles were not
discovered until after they were improperly seized, searched,
and tested, thereby proving that the "immediately apparent"
requirement for the plain view exception had not been satisfied.
Id.We believe that this case warrants similar treatment. Indeed, Officer
Sharamatew testified:
And just so you know, Your Honor, before then, I did contact
Poison Control because I didn’t know what the pills were. So I
contacted Poison Control, described what the markings were on
the pills, and they notified me that it was [a] Schedule II
narcotic and at that point he was place[d] under arrest. I didn’t
know what the pills were at the time.
N.T., 10/4/2013, at 9-10. Without more evidence,6 the fact that Faison had
a bag of nondescript pills in his car did not place the drugs in plain view as
____________________________________________
6
We find the totality of the circumstances did not establish probable cause
to believe the bag of pills was incriminating. While Officer Sharamatew did
not need to be one hundred percent certain that the drugs were
(Footnote Continued Next Page)
-9-
J-S49022-14
their incriminating nature was not readily apparent. Consequently, the
Commonwealth did not establish the officer had probable cause to seize the
drugs.
Accordingly, pursuant to Gary and Hudson, the warrantless seizure of
the bag of pills in Faison’s car was unlawful, and we discern no reason to
reverse the trial court’s order. See Hudson, 92 A.3d at 1243. Accordingly,
the Commonwealth’s argument fails, and we affirm the trial court’s order
granting Faison’s motion to suppress.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/10/2015
_______________________
(Footnote Continued)
incriminating, he was very uncertain regarding their substance and there
was no testimony presented as to his training or experience with illegal
narcotics. See Miller, 56 A.3d at 430. Moreover, the record does not
support the Commonwealth’s implication that Faison fled, where he walked
away from the car while it was running after being stopped for a traffic
violation. See Commonwealth’s Brief at 10. The officer testified he
observed Faison make the illegal turn and followed, watching Faison pull
over and get out of the car. N.T., 10/4/2013, at 5-6. However, the officer
does not state that he turned on the lights or siren, and he did not verbally
tell Faison to stop. Likewise, we reject the Commonwealth’s assertion that
because the drugs were close in proximity to the gun, for which Faison had a
valid permit, there was probable cause to believe the pills were
incriminating.
- 10 -