Com. v. Heidelberg, C.

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2021 PA Super 229COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAL HEIDELBERG :
:
Appellant : No. 1342 WDA 2019
Appeal from the Judgment of Sentence Entered August 20, 2019
In the Court of Common Pleas of Erie County
Criminal Division at CP-25-CR-0002293-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON,
J., DUBOW, J., KUNSELMAN, J., MURRAY, J., and McCAFFERY, J.
OPINION BY MURRAY, J.: FILED: NOVEMBER 23, 2021
Cal Heidelberg (Appellant) appeals pro se from the judgment of
sentence imposed after a jury found him guilty of four counts of possession of
a controlled substance, as well as one count each of firearms not to be carried
without a license, possession with intent to deliver a controlled substance,
possession of a small amount of marijuana, and possession of drug
paraphernalia.1 Appellant challenges the lawfulness of his arrest and the
denial of his motion to suppress contraband recovered from his vehicle
following the arrest. After careful consideration, we affirm.
On August 11, 2018, Erie Police Department Corporal James Langdon
(Corporal Langdon), while on foot patrol, saw Appellant seated in the driver’s
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1 35 P.S. § 780-113(a)(16); 18 Pa.C.S.A. § 6106(a)(1); 35 P.S. §§ 780-
113(a)(30), (31) and (32).
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seat of a green BMW parked on West 19th Street. N.T. (suppression hearing),
1/28/19, at 8. Corporal Langdon was familiar with Appellant and his BMW
from a prior drug arrest. Id. at 8-9, 15. Corporal Langdon radioed police
dispatch and relayed Appellant’s name and the license plate number of the
vehicle to check for any active warrants for Appellant. Id. at 9. Dispatch
checked the National Crime Information Center (NCIC) database 2 and
informed Corporal Langdon that Appellant had an “active Erie County arrest
warrant,” and confirmed the BMW was registered to Appellant. Id.
As Corporal Langdon approached the BMW, Appellant exited the vehicle
and walked to the front porch of his cousin’s nearby house. Id. Corporal
Langdon followed Appellant and asked him “to identify himself, which he did.”
Id. Corporal Langdon radioed the information to dispatch. Id. Dispatch
“confirmed the warrant” and sent additional officers to the scene. Id.
Shortly thereafter, Corporal Curtis Waite (Corporal Waite) and
Patrolman Daniel Post (Patrolman Post) arrived. Id. 21-22, 36. The officers
placed Appellant under arrest; he was placed in handcuffs, walked to a police
cruiser, and seated in the back. Id. at 10, 22, 36.
Corporal Langdon observed the BMW’s “windows were down, [and] I
believe [the] sunroof was open.” Id. at 17. Appellant indicated to Corporal
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2 NCIC is a computerized database comprised of information (including names
of individuals with active arrest warrants) available to federal, state, and local
law enforcement.
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Langdon that he did not want anyone to go near or touch his vehicle. Id. at
10. However, Corporal Waite and Patrolman Post had “already” approached
the vehicle to secure it. Id. at 10, 43. Corporal Waite explained:
We saw that his driver’s side window was halfway down. It’s
our responsibility as police officers and it’s in our policy that we
are responsible for the vehicle, so we were going to secure the
vehicle and make sure it was legally parked.
Id. at 37.
On cross-examination, he reiterated:
It’s our responsibility to make sure your vehicle is secured.
That way if it’s not secured, if anybody does anything to your
vehicle, takes anything out of your vehicle, we are responsible.
You are in our custody, therefore, we are responsible for your
vehicle. So we went to go secure your vehicle. Your window was
halfway down and it was illegally parked.
Id. at 43.
Corporal Waite further testified, “on the driver’s side driver’s seat, we
s[aw] a clear bag with suspected crack [cocaine] in it.” Id. at 37. Corporal
Waite opened the door and removed the bag. Id.; see also id. (stating “the
door was open”). Corporal Waite also “saw, in plain view on the ash tray,
there were two more bags of suspected crack cocaine.” Id. After removing
the suspected crack cocaine, the officers “secured the vehicle, and it was
towed to the city garage.” Id.
Patrolman Post’s testimony was consistent with Corporal Waite’s
testimony. Patrolman Post stated, “we went to secure [Appellant’s] 1997
green BMW, and as we walked over, the window was halfway down. In plain
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view, you could see a bag of suspected crack on the driver’s seat and two
more bags of suspected crack in the cup holder.” Id. at 22. Patrolman Post
testified that after the officers removed the bags that appeared to contain
crack cocaine, “we shut the car door, and we transported [Appellant] back to
the station. We called for a tow for his vehicle so it could be towed to the city
garage.” Id. at 22-23.
At the same time, Corporal Waite and Patrolman Post applied for a
warrant to search Appellant’s vehicle. Id. at 23-24, 37-38. Corporal Waite
completed an affidavit of probable cause.3 A Magisterial District Judge
approved and signed the search warrant the same day, and delivered the
warrant to police by fax. Id. at 24, 38, 41. When the warrant was executed,
police recovered additional crack cocaine, a small amount of marijuana, and
drug paraphernalia. Id. at 25, 39. They also found a handgun. Id.
The Commonwealth charged Appellant with various drug and firearm
offenses, and the trial court appointed counsel for Appellant. Appellant asked
to proceed pro se. On October 30, 2018, following a Grazier4 hearing, the
court granted Appellant’s request and appointed standby counsel.
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3The search warrant and attached affidavit of probable cause was admitted
as Commonwealth Exhibit 1. Id. at 24. The affidavit alleged probable cause
based on the officers’ plain view observations of suspected crack cocaine.
4 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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On November 29, 2018, Appellant filed a pro se omnibus pretrial motion
(OPT motion) and petition for writ of habeas corpus. The trial court denied
the petition for writ of habeas corpus. In the OPT motion, Appellant argued,
inter alia, that his arrest was unlawful and not supported by probable cause,
and therefore, “all items which are obtained from this illegal search [must] be
suppressed, [as being] fruits of a poisonous tree.” OPT Motion, 11/29/18, at
2. The court held a suppression hearing at which Appellant, Corporal Langdon,
Corporal Waite, and Patrolman Post testified. By order entered January 30,
2019, the court denied Appellant’s motion to suppress, summarily finding:
“[Appellant’s] arrest, pursuant to an outstanding sheriff’s warrant, and
subsequent search of his vehicle, are legal,” and “the [c]ourt finds that the
evidence was obtained legally.” Order, 1/30/19, at 1.
The case proceeded to trial, and a jury convicted Appellant of the
aforementioned offenses. On August 20, 2019, the trial court sentenced
Appellant to an aggregate 6 to 11 years’ imprisonment, followed by 1 year of
probation. Appellant did not file post-sentence motions.
Appellant timely filed a pro se notice of appeal, followed by a court-
ordered Pa.R.A.P. 1925(b) concise statement. The trial court issued a one
page, two paragraph Rule 1925(a) opinion. Without addressing Appellant’s
“multiple reasons” for appealing, the court incorporated its January 30, 2019
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order and recommended the appeal be dismissed.5 Memorandum Opinion,
9/17/19.
Appellant presents four issues for our consideration:
1. Did the trial court abuse its discretion in denying Appellant’s
motion to suppress and that police had no grounds to detain or
question Appellant where police believed that Appellant had a
Sheriff’s warrant for his arrest was based [sic] on false
information, the fruits of the illegal arrest and search should
have been suppressed as required by the Fourth Amendment
of the United States Constitution and Article I Section 8 of the
Pennsylvania Constitution?
2. Did the trial court abuse its discretion in denying Appellant’s
motion to suppress when the visual contact between Magistrate
and Affiant required under Pa.R.Crim.P. 203(c), where the
Affiant who sought the warrant via - advanced communication
technology rather than in person was missing, given that the
warrant was procured by telephone and/or fax only?
3. Did the trial court abuse its discretion in denying Appellant’s
Motion to Suppress where the actual search warrant,
affidavit(s) and inventory of the items seized were never filed
with the Cl[e]rk of Courts as required by Pa.R.Crim.P. 210?
4. Did the trial court abuse its discretion in denying Appellant’s
Motion to Suppress where the trial court did not consider the
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5 The “Rules of Appellate Procedure make the filing of a 1925(a) opinion
mandatory and the Rule 1925(a) opinion must set forth the reasons for the
rulings of the trial judge or must specify in writing the place in the record
where the reasons may be found.” Commonwealth v. Hood, 872 A.2d 175,
178 (Pa. Super. 2005). “It is incumbent upon a trial court to provide this
Court with its Rule 1925(a) opinion addressing an appellant’s issues, with
citation to the record, to permit a meaningful and effective review of the issues
raised and efficient use of judicial resources.” Commonwealth v. Widger,
237 A.3d 1151, 1165 n.5 (Pa. Super. 2020); but see also id. (“Although we
do not approve of or sanction the trial court’s failure to comply with its
obligations under Rule 1925(a), the lack of a Rule 1925(a) opinion does not
preclude this Court’s review of the merits of [a]ppellant’s issues based upon
our review of the record, including the notes of testimony[.]”).
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cumulative effect of all the violations taken together, which
would have been fatal to the warrant itself?
Appellant’s Brief at ii (brackets omitted).
In reviewing these issues, it is well settled:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are 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. Bumbarger, 231 A.3d 10, 15 (Pa. Super. 2020) (citation
and ellipses omitted). Our scope of review is limited to the evidence presented
at the suppression hearing. Commonwealth v. Bellamy, 252 A.3d 656, 663
(Pa. Super. 2021). With respect to a suppression court’s factual findings, “it
is the sole province of the suppression court to weigh the credibility of the
witnesses. Further, the suppression court judge is entitled to believe all, part
or none of the evidence presented.” Commonwealth v. Caple, 121 A.3d
511, 516-17 (Pa. Super. 2015) (citation omitted).
At a suppression hearing, “the Commonwealth has the burden of
establishing by a preponderance of the evidence that the evidence was
properly obtained.” Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa.
Super. 2011) (en banc) (citation, quotation marks, and brackets omitted);
see also Pa.R.Crim.P. 581(H) (at a suppression hearing, the Commonwealth
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“shall have the burden . . . of establishing that the challenged evidence was
not obtained in violation of the defendant’s rights.”). The preponderance of
the evidence is “the lowest burden of proof in the administration of justice,
and it is defined as the greater weight of the evidence, i.e., to tip a scale
slightly in one’s favor.” Commonwealth v. Ortega, 995 A.2d 879, 886 n.3
(Pa. Super. 2010).
Appellant first argues his arrest was unlawful (and the trial court abused
its discretion in failing to suppress the contraband recovered from his vehicle)
because the Commonwealth failed to prove the existence of a valid arrest
warrant. Appellant’s Brief at 10, 15. Appellant emphasizes the
Commonwealth did not produce the arrest warrant at the suppression hearing,
and asserts “there is nothing in the record that reflects proof positive an active
Sheriff’s warrant ever existed[.]” Id. at 12. Alternatively, Appellant contends
that even if there was a valid arrest warrant, his arrest for the new charges
with respect to the contraband in his vehicle was unlawful and unsupported
by probable cause. Id. at 14-15.
The Commonwealth counters:
Given the circumstances, and the information provided to Corporal
Langdon, the trial court had enough information to find Corporal
Langdon properly relied upon dispatch’s representation of
information and that the information conveyed was from a reliable
source. Thus, the arrest is proper, even though the
Commonwealth did not produce the warrant.
Commonwealth Substitute Brief at 6-7.
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A lawful arrest must be supported by probable cause. Commonwealth
v. Smith, 836 A.2d 5, 10 (Pa. 2003); see also Commonwealth v. Clark,
735 A.2d 1248, 1251 (Pa. 1999) (describing circumstances whereby police
may effectuate a warrantless arrest). In determining whether probable cause
exists, we examine the totality of the circumstances. See Commonwealth
v. Martin, 101 A.3d 706, 721 (Pa. 2014). When an officer effectuates an
unlawful arrest, “any evidence seized during a search incident to the arrest
must be suppressed. Consequently, the propriety of a search depends upon
the validity of the arrest.” Clark, 735 A.2d at 1251 (citation omitted). The
remedy for illegal searches and seizures is exclusion of the evidence.
Commonwealth v. Johnson, 86 A.3d 182, 187 (Pa. 2014).
This Court recently examined a scenario similar to the one in this case
in Bumbarger, 231 A.3d at 10. A police officer, Trooper Murarik, was driving
his police cruiser when he noticed a white Chevy Impala, driven by the
appellant, pass in the opposite direction. Id. at 13. Trooper Murarik had
previous experience with appellant, who was a known drug user, and knew he
drove a white Chevy Impala. Id. Trooper Murarik and other officers were
alerted to be on the lookout for a white Chevy Impala driven by appellant, as
there was an outstanding warrant for his arrest. Id. at 13, 17. Trooper
Murarik turned his cruiser around, began following appellant’s vehicle, and ran
appellant’s registration number through NCIC. Id. at 16. NCIC indicated the
white Impala was registered to appellant and there was an active warrant for
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his arrest from the State of Colorado “with full extradition.” Id. Trooper
Murarik stopped appellant’s vehicle and confirmed appellant was the driver.
Id. He asked appellant to exit the vehicle and placed him in custody based
on the arrest warrant. Id. at 14. Trooper Murarik then approached the front
passenger side of the vehicle, where a woman was seated. Id. The woman,
a known drug user, appeared intoxicated. Id. Trooper Murarik asked her to
exit the vehicle. Id. When she exited, Trooper Murarik saw, in plain view,
two unsecured hypodermic syringes partway under the front passenger seat.
Id. Trooper Murarik then conducted a warrantless search of the vehicle and
found numerous narcotics as well as a handgun on the rear seat. Id.
The appellant in Bumbarger filed a pretrial motion to suppress,
asserting the contraband was the product of an unlawful arrest and search.
Id. at 13, 14. The appellant argued, inter alia, that the arrest warrant was
not valid, and thus Trooper Murarik lacked authority to stop and arrest him.
Id. at 15. Following the denial of appellant’s suppression motion, and
conviction of drug and gun charges, appellant appealed. Id. at 14.
This Court upheld the denial of suppression, reasoning:
[T]here was no dispute that on April 1, 2018, N.C.I.C. alerted
Trooper Murarik to an outstanding, active arrest warrant for
appellant. Because of his prior involvement with appellant,
Trooper Murarik was familiar with appellant and his vehicle. The
driver of the vehicle resembled appellant. The registration
reflected that the white Chevy Impala was registered to appellant.
Thus, Trooper Murarik had probable cause to stop appellant’s
vehicle and arrest appellant. As this Court has explained:
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We have previously held that the information
contained in a[n] N.C.I.C. report is so inherently
reliable that such information is, in and of itself,
sufficient to form the basis of a finding of probable
cause for a police officer who receives such information
from an N.C.I.C. report to make an on the spot arrest.
Commonwealth v. Cotton, 740 A.2d 258, 264-65 (Pa. Super.
1999) [(emphasis added) (holding arresting officer’s reliance on
hearsay information gathered from NCIC report, broadcasted over
police radio by dispatch, that appellant was wanted pursuant to
two bench warrants was sufficient for probable cause to arrest)]
(citing Commonwealth v. Feflie, 581 A.2d 636, 642 (Pa. Super.
1990)); see also Commonwealth v. Bolton, 831 A.2d 734, 736
(Pa. Super. 2003) (“This Court has consistently found that a report
from the [N.C.I.C.] is sufficient to form reasonable and articulable
grounds, i.e., probable cause, that a crime is being committed or
has been committed.”) Thus, Trooper Murarik’s stop and
subsequent arrest of appellant on April 1, 2018, was lawful.
Bumbarger, 231 A.3d at 16 (citations modified); see also id. at 17 (“any
argument that Trooper Murarik erred by ‘assuming’ that the warrant was valid
and therefore lacked authority to stop [appellant] is meritless.”).
We find Bumbarger analogous. Appellant points out that unlike this
situation, where Corporal Langdon was on foot patrol and advised by radio
dispatch of the NCIC information, the officer in Bumbarger personally used
his police cruiser computer to check NCIC. See Appellant’s Supplemental Brief
at 1-2. The distinction is not meaningful. This Court has held:
An arresting officer, in executing a valid arrest, may rely upon
radio broadcasts emanating from police facilities provided,
however, that the arresting officer has been either (1) ordered or
directed to perform the arrest by an officer in possession of facts
justifying the arrest; (2) received information justifying
arrest; or (3) heard information which, coupled with facts he
personally observed, provided probable cause to arrest.
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Commonwealth v. Evans, 494 A.2d 383, 388 (Pa. Super. 1985) (emphasis
added); see also id. (where arresting officer was informed by radio dispatch
that an NCIC check revealed appellant’s vehicle was stolen and used in a
criminal act and occupants were armed, the information was sufficient in and
of itself to justify the warrantless arrest of appellant). We have stated, “[t]he
fact that [an] arrest was made by police officer who had knowledge of the
arrest warrant, but did not have physical possession of it at time of arrest
would not affect its validity.” Commonwealth v. Blakney, 396 A.2d 5, 7
(Pa. Super. 1978) (citing Commonwealth v. Gladfelter, 324 A.2d 518, 519
(Pa. Super. 1974)).
Here, both Corporal Langdon and Corporal Waite testified that Erie
police dispatch, a reliable source, confirmed the existence of an Erie County
sheriff’s warrant for Appellant’s arrest. See N.T., 1/28/19, at 9, 36.6 The
suppression court credited this testimony, which we may not disturb,
regardless of whether the arrest warrant was produced at the suppression
hearing. See Cotton, 740 A.2d at 265 (“The suppression court found [the
arresting officer’s] testimony that he was relying on the N.C.I.C. report of the
bench warrants[, relayed by the police dispatcher,] at the time of arrest, as
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6 Further, Appellant’s identity was not in question. Appellant gave, i.e.,
confirmed, his name and date of birth to Corporal Langdon, who was familiar
with Appellant and his vehicle. See N.T., 1/28/19, at 9 (Corporal Langdon
testifying he “informed dispatch that I had made contact with Cal. I asked
Cal to identify himself, which he did[.]”).
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well as his testimony that the bench warrants themselves were valid, to be
credible. Since evaluating the credibility of the witnesses is the
exclusive province of the factfinder in a suppression hearing, we are
compelled to affirm the suppression court’s factual determination and
conclude that it properly denied appellant’s suppression motion.” (emphasis
added; citation omitted)); see also id. at 262 (noting “Commonwealth did
not produce the [bench] warrants at [the] suppression hearing.”
(emphasis added)); see also Bumbarger, 231 A.3d at 15-16.
Although the Commonwealth did not produce absolute proof of the
existence of the arrest warrant, we ascertain no abuse of the trial court’s
discretion in finding it was more probable than not that a valid warrant
existed from the evidence adduced at the suppression hearing. See
Commonwealth v. Murray, 225 A.3d 1162, at *7-8 (Pa. Super. 2019)
(unpublished memorandum)7 (employing similar language under similar
facts); but see also id. at *8 n.4 (where arresting officer testified at
suppression hearing that another officer (who did not testify at suppression
hearing) verbally advised that NCIC database revealed there was an active
warrant for defendant’s arrest, and the suppression court “relied on [the
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7Contrary to the Commonwealth’s argument, citation to the non-precedential
Murray decision is not improper. See Petition for En Banc Review, 9/25/20,
at 1-2. The Rules of Appellate Procedure provide that non-precedential
decisions of this Court filed after May 1, 2019 “may be cited for their
persuasive value.” Pa.R.A.P. 126(b); see also Commonwealth v. Finnecy,
249 A.3d 903, 910 n.9 (Pa. 2021). Murray was filed on December 16, 2019.
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arresting officer’s] testimony in conjunction with” the arrest warrant that the
Commonwealth produced at suppression hearing, stating: “We do not suggest
by our decision today that we would reach the same conclusion had the
Commonwealth failed to produce a warrant at the suppression hearing[.]”).
Based on the foregoing, we conclude the Commonwealth met its burden
of proving by a preponderance of the evidence that a valid arrest warrant for
Appellant existed. Thus, the suppression court properly found, under the
totality of the circumstances, that the police officers had probable cause to
arrest him.
We next consider whether the police lawfully obtained the contraband
in Appellant’s vehicle. “Both 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. Newsome, 170 A.3d 1151, 1154 (Pa. Super.
2017). As a general rule, “a warrant stating probable cause is required before
a police officer may search for or seize evidence.” Commonwealth v.
Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012). “Absent the application
of one of a few clearly delineated exceptions, a warrantless search or seizure
is presumptively unreasonable.” Commonwealth v. Whitlock, 69 A.3d 635,
637 (Pa. Super. 2013).
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Notably, the Pennsylvania Supreme Court recently announced a new
rule of criminal law mandating probable cause and exigent circumstances8
for a warrantless search of an automobile. See Commonwealth v.
Alexander, 243 A.3d 177, 181 (Pa. Dec. 22, 2020) (overruling
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (adopting federal
“automobile exception” to the warrant requirement and holding police may
conduct a warrantless vehicle search based solely on probable cause, with no
exigency required beyond the inherent mobility of a motor vehicle)).
However, we have held that appellants are not automatically entitled
to retroactive application of the Alexander decision (which was decided
during the pendency of this appeal). See Commonwealth v. Grooms, 247
A.3d 31, 37 n.8 (Pa. Super. 2021). We explained:
The decision in Alexander, supra, overruling Gary, announced a
new criminal rule. When a United States Supreme Court decision
“results in a ‘new rule,’ that rule applies to all criminal cases still
pending on direct review.” Schriro v. Summerlin, 542 U.S. 348,
351 (2004) (citing Griffith v. Kentucky, 479 U.S. 314, 328
(1987)). “Case law is clear, however, that in order for a new rule
of law to apply retroactively to a case pending on direct appeal,
the issue had to be preserved at ‘all stages of adjudication up
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8 “[T]here is no definition of exigency that will apply to all scenarios; however,
the basic formulation of exigencies recognizes that in some circumstances the
exigencies of the situation make the needs of law enforcement so compelling
that the warrantless search is objectively reasonable under the Fourth
Amendment.” Commonwealth v. Shaw, 246 A.3d 879, 886 (Pa. Super.
2021) (citation omitted); see also Commonwealth v. Lee, 972 A.2d 1, 5
(Pa. Super. 2009) (Exigent circumstances may arise where “the need for
prompt police action is imperative, either because the evidence sought to be
preserved is likely to be destroyed or secreted from investigation, or because
the officer must protect himself from danger[.]” (citation omitted)).
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to and including the direct appeal.’” Commonwealth v. Tilley,
780 A.2d 649, 652 (Pa. 2001) ([emphasis added;] citation
omitted); see also Commonwealth v. Newman, 99 A.3d 86,
90 (Pa. Super. 2014) (en banc) (“To be entitled to retroactive
application of a new constitutional rule, a defendant must have
raised and preserved the issue in the court below.”). Appellant
here did not challenge the Gary automobile exception. Thus, to
the extent relevant to the disposition of this appeal, and consistent
with Tilley and Newman, appellant cannot rely on Alexander to
challenge the warrantless search of his vehicle.
Grooms, 247 A.3d at 37 n.8 (citations modified). Further:
Because appellant did not contest the application of the
automobile exception announced in Gary, which now has been
overruled by Alexander, he logically had no occasion to address
whether exigent circumstances existed to justify the officers’
judgment that obtaining a warrant was not reasonably practicable.
Thus, because appellant did not raise the issue of exigency before
the trial court or in his Rule 1925(b) statement, the issue is
waived. See Commonwealth v. Hill, 16 A.3d 484, 492 (Pa.
2011) (citing Commonwealth v. Lord, 719 A.2d 306, 309 (Pa.
1998)); Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the
Statement and/or not raised in accordance with the provisions of
this paragraph (b)(4) are waived.”); see also Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”).
Grooms, 247 A.3d at 37 n.9 (citations modified).
Here, as in Grooms, Appellant did not preserve a challenge to the
application of the automobile exception and the existence of exigent
circumstances because he never raised the issue with the trial court or in his
Pa.R.A.P. 1925(b) concise statement. Moreover, Appellant has not cited
Alexander in his appellate briefs, which he filed months after Alexander was
decided. Accordingly, we do not apply Alexander. See Grooms, 247 A.3d
at 37 n.9; see also Commonwealth v. Aursby, 2021 Pa. Super. Unpub.
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LEXIS 1788, at *16, 2021 WL 2826473, at *6 (Pa. Super. July 7, 2021)
(unpublished memorandum) (declining to apply Alexander, pursuant to
Grooms, where appellant failed to raise and preserve the issue); cf.
Commonwealth v. Lowe, 2021 Pa. Super. Unpub. LEXIS 2044, at *12-13,
2021 WL 3259388, at *5 (Pa. Super. July 30, 2021) (unpublished
memorandum) (finding appellant “sufficiently preserved his challenge to the
exigency requirement before the suppression court,” and remanding for
further proceedings where development of record was necessary to decide
appellant’s suppression claim in light of Alexander).
Next, we consider whether the initial search of Appellant’s vehicle met
an established exception to the warrant requirement. As described above,
Corporal Waite and Patrolman Post walked to Appellant’s nearby vehicle after
Appellant was placed under arrest. See N.T., 1/28/19, at 22, 36. Their
actions were based on Appellant being in custody and their responsibility for
securing his vehicle. See id. at 36-37, 42-43. The driver’s side window was
down and the vehicle was parked illegally. Id. at 37, 43. The officers saw, in
plain view, clear plastic bags containing suspected crack cocaine. Id. at 22
(Patrolman Post stating: “In plain view, you could see a bag of suspected crack
on the driver’s seat and two more bags of suspected crack in the cup holder.”
(emphasis added)); id. at 37 (Corporal Waite stating that in addition to seeing
suspected crack cocaine on the driver’s seat, he “saw, in plain view on the ash
tray, there were two more bags of suspected crack cocaine.” (emphasis
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added)). The officers retrieved the bags in plain view and called for a tow
truck. Id. at 22-23, 37.
The Commonwealth argues the “plain view” exception to the warrant
requirement. See Commonwealth v. McCree, 924 A.2d 621, 627 (Pa.
2007); see also Petition for En Banc Review, 9/25/20, at 8-10. We have
explained:
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. There can be no reasonable expectation of privacy in
an object that is in plain view. To judge whether the incriminating
nature of an object was immediately apparent to the police officer,
reviewing courts must consider the totality of the circumstances.
In viewing the totality of the circumstances, the officer’s training
and experience should be considered.
Bumbarger, 231 A.3d at 19 (citations omitted); see also Commonwealth
v. Liddie, 21 A.3d 229, 236 (Pa. Super. 2011) (en banc) (“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.” (citation
omitted)). Further, “inherent in the plain view doctrine is the principle the
seized object must not have been put in plain view as a result of unlawful
police conduct.” Commonwealth v. Jeffries, 311 A.2d 914, 918 (Pa. 1973);
see also Texas v. Brown, 460 U.S. 730, 737 (1983) (the “question of
whether property in plain view of the police may be seized [] must turn on the
legality of the intrusion that enables them to perceive and physically seize the
property in question.”).
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We conclude the Commonwealth met the first requirement of the plain
view test, as the officers viewed the bags that appeared to contain crack
cocaine from a lawful vantage point. After they lawfully arrested Appellant,
the officers acted reasonably to secure his vehicle, when they plainly saw,
through the open driver’s side window, clear bags of what appeared to be
crack cocaine on the driver’s seat and center console (the officers also
determined the vehicle was parked illegally). Thus, Appellant lacked a
reasonable expectation of privacy in the objects left in plain view.
Under the second plain view requirement, the incriminating nature of
the clear bags was immediately apparent to the police. Corporal Waite, who
had been a police officer for 15 years, unequivocally described seeing “a clear
bag with suspected crack.” See N.T., 1/28/19, at 35, 37. Patrolman Post
corroborated Corporal Waite’s testimony. See id. at 22. Also, Corporal
Langdon testified to “knowing who” Appellant was because of “prior
involvement with [Appellant] including an arrest of drugs during a traffic stop
involving the same vehicle.” Id. at 14-15. Under the totality of these
circumstances, including the officers’ experience and familiarity with
Appellant’s criminal history, the incriminating nature of the bags of cocaine
was immediately apparent. See, e.g., Liddie, 21 A.3d at 236 (incriminating
nature of suspected crack cocaine police saw inside defendant’s vehicle, by
looking through a side window, was immediately apparent to arresting officer
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under totality of circumstances, including officer’s 21 years of police
experience and familiarity with drugs).
Finally, turning to the third plain view requirement of “lawful right of
access,” “where police officers observe incriminating-looking contraband in
plain view in a vehicle from a lawful vantage-point, the lack of advance notice
and opportunity to obtain a warrant provides the officers with a lawful right of
access to seize the object in question.” Commonwealth v. Miller, 56 A.3d
424, 429 (Pa. Super. 2012) (quoting Commonwealth v. Brown, 23 A.3d
544, 557 (Pa. Super. 2011) (en banc)). Here, the officers had a lawful right
of access to the vehicle where Appellant was under arrest, and in securing his
vehicle, they had no advance notice and opportunity to obtain a warrant with
respect to the bags they observed on the driver’s seat and console of the
vehicle. See, e.g., Miller, 56 A.3d at 430-31 (holding police officer’s
warrantless seizure of beer bottles from inside appellant’s vehicle was lawful
under plain view exception where incriminating nature of bottles was
immediately apparent and officer lacked advance notice and an opportunity to
obtain warrant before commencing search); Bumbarger, supra.
Also, even if the requirements of the plain view exception were not met,
the bags of crack cocaine would have been lawfully — and inevitably —
discovered during an inventory search of Appellant’s vehicle. The “inevitable
discovery” doctrine provides:
Evidence which would have been discovered was sufficiently
purged of the original illegality to allow admission of the evidence.
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Implicit in this doctrine is the fact that the evidence would have
been discovered despite the initial illegality. Evidence is
admissible under this doctrine where the Commonwealth
demonstrates by a preponderance of the evidence that the
illegally obtained evidence inevitably would have been discovered
through lawful means.
Anderson, 40 A.3d at 1249 n.6 (citations, ellipses and brackets omitted).
Here, Appellant’s vehicle was illegally parked on a city street and the
driver’s side window was down. See N.T., 1/28/19, at 22, 37, 43. The officers
removed the clear bags in plain view, but then “shut the door” and “secured
the vehicle”; they also “called for another officer [who] was going to stand by”
until the tow truck arrived to take the vehicle to the city garage. Id. at 22-
23, 37.9 Under these circumstances, the impoundment of the vehicle at the
city garage would have led to an inventory of the vehicle’s contents. See
e.g., South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976) (“Police . .
. frequently remove and impound automobiles which violate parking
ordinances and which thereby jeopardize both the public safety and the
efficient movement of vehicular traffic. The authority of police to seize and
remove from the streets vehicles impeding traffic or threatening public safety
and convenience is beyond challenge.”); accord Commonwealth v.
Hennigan, 753 A.2d 245, 255 (Pa. Super. 2000) (recognizing community
____________________________________________
9 Corporal Waite explained: “We called for another officer, I believe Officer
Rhoades. He was going to stand by. Corporal Langdon was doing the [foot]
patrol. We were going to take [Appellant] down to the police station[.]” N.T.,
1/28/19, at 37.
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caretaking function and explaining warrantless inventory searches of
impounded vehicles). Thus, police would have inevitably discovered the bags
of crack cocaine. See, e.g., Commonwealth v. Bailey, 986 A.2d 860, 863
(Pa. Super. 2009) (“[B]ecause the police conduct routine inventory searches
whenever a car is towed, and an inventory search includes looking into obvious
storage places . . . the gun would have inevitably been discovered absent
police error or misconduct.”); see also Commonwealth v. Parker, 248 A.3d
510 at *19-20 (Pa. Super. Jan. 27, 2021) (unpublished memorandum) (citing
Bailey and applying inevitable discovery doctrine to hold that even if officer’s
warrantless search of appellant’s vehicle was unlawful, the illegally obtained
evidence inevitably would have been discovered by an inventory search
pursuant to a lawful impoundment and towing of the vehicle); see also id. at
*20 n.2 (“Similarly, to the extent that the officer’s warrantless search could
be viewed as not justified by an exigency under our Supreme Court’s recent
decision in Alexander, 243 A.3d 177, because the car was to be impounded
and towed, the evidence would have been inevitably discovered.” (citation
modified)). Accordingly, the suppression court did not abuse its discretion.
In Appellant’s second and third issues, which are related, he argues the
search warrant was technically defective because the Commonwealth failed to
comply with Rules of Criminal Procedure, and thus the contraband discovered
during execution of the search warrant should have been suppressed. See
Appellant’s Brief at 20-23. In sum, Appellant contends the search warrant
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was defective where the Commonwealth (a) obtained the warrant via fax, in
violation of Criminal Rule 203,10 id. at 20-21; (b) failed to submit an affidavit
of probable cause in connection with the application for search warrant, id. at
21; and (c) the magisterial district judge did not file the search warrant and
affidavit of probable cause with the clerk of court, in violation of Criminal Rule
210.11 Id. at 22-23.
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10 Rule 203 provides, in relevant part:
(B) No search warrant shall issue but upon probable cause
supported by one or more affidavits sworn to before the issuing
authority in person or using advanced communication technology.
The issuing authority, in determining whether probable cause has
been established, may not consider any evidence outside the
affidavits.
(C) Immediately prior to submitting a search warrant application
and affidavit to an issuing authority using advanced
communication technology, the affiant must personally
communicate with the issuing authority in person, by telephone,
or by any device which allows for simultaneous audio-visual
communication. During the communication, the issuing authority
shall verify the identity of the affiant, and orally administer an
oath to the affiant. In any telephonic communication, if the
issuing authority has a concern regarding the identity of the
affiant, the issuing authority may require the affiant to
communicate by a device allowing for two-way simultaneous
audio-visual communication or may require the affiant to appear
in person.
Pa.R.Crim.P. 203(B) & (C).
11 Rule 210 states: “The judicial officer to whom the warrant was returned
shall file the search warrant, all supporting affidavits, and the inventory with
the clerk of the court of common pleas of the judicial district in which the
property was seized.” Pa.R.Crim.P. 210.
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The record does not support Appellant’s claims. However, assuming,
arguendo, that there was evidence of record to support Appellant’s assertions
that the warrant was technically defective, Appellant would not be entitled to
relief because, as discussed above, the contraband would have been
discovered during an inventory of the vehicle’s contents when impounded.
See Bailey, supra; Parker, supra. The Pennsylvania Supreme Court has
instructed that suppression,
is not an appropriate remedy for every violation of the
Pennsylvania Rules of Criminal Procedure concerning searches and
seizures. It is only where the violation also implicates
fundamental, constitutional concerns, is conducted in bad-faith or
has substantially prejudiced the defendant that exclusion may be
an appropriate remedy.
Commonwealth v. Mason, 490 A.2d 421, 426 (Pa. 1985) (emphasis in
original). Here, even if the search warrant was technically defective, there is
no indication that the Commonwealth acted in bad faith or Appellant was
substantially prejudiced. Therefore, no relief is due.
In his final issue, Appellant argues the “cumulative” effect of the above
errors “render both the illegal warrant and illegal arrest illegitimate.”
Appellant’s Brief at 24. We disagree. As discussed, Appellant’s first three
issues are unavailing, and consequently his fourth issue lacks merit.
For the above reasons, we conclude Appellant’s arrest was lawful and
the contraband in his vehicle was lawfully obtained. Accordingly, the trial
court did not abuse its discretion in denying suppression.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/23/2021
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