Com. v. Dunn, E.

J. A04042/12
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ERIC DUNN, :
:
Appellee : No. 1568 EDA 2011
Appeal from the Order Entered May 6, 2011
In the Court of Common Pleas of Delaware County
Criminal No(s).: CP-23-CR-0004639-2009
BEFORE: BENDER, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 29, 2014
This Commonwealth appeal returns to this panel after our Supreme
Court vacated our decision in this suppression/vehicle stop case, 1 affirming
of the order of the Delaware County Court of Common Pleas, granting in part
and denying in part the suppression motion of Appellee, Eric Dunn. This
panel applied the then-
required both probable cause and exigent circumstances for a warrantless
search of a vehicle. Our Supreme Court reversed and remanded to this
Court in light of Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which
*
Former Justice specially assigned to the Superior Court.
1
Commonwealth v. Dunn, 777 MAL 2012 (order) (Pa. filed Jul. 1, 2014)
(vacating Commonwealth v. Dunn, 1568 EDA 2011 (unpublished
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abandoned the limited automobile exception. We now hold that the search
of the vehicle was legal under Gary, and furthermore that the search of a
closed safe in plain view was legal.2 Accordingly, we reverse the
le.3
The underlying order suppressed evidence obtained from the
4
including the contents of a
gs of fact as follows. See
Adjudication at 1-7.5
On the evening of September 27, 2007, Collingdale Borough Police
Officer Robert Marvil was wearing plain clothes and operating an unmarked
up from
Id. at 1. The car swerved and passed the officer on his right,
almost striking his vehicle. Officer Marvil followed the car, a silver Mercury
2
As we discuss infra, the safe had a latch on it, but the latch was not
locked.
3
The Commonwealth does not challenge the portion of the order denying
A
disturb that portion.
4
Appellee was the driver of the vehicle and the vehicle was registered to
him. Adjudication, 5/6/11, at 17. The trial court held that Appellee
established a privacy interest in the car and thus standing to challenge the
search of it. Id. at 16-17.
5
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sedan, but having no emergency lights or warning devices, he was unable to
signal the car to
passing both to the left and right of other traffic almost striking another
Id. at 2. Officer Marvil reported this incident via radio and
The car sto
Id. Officer Marvil exited his vehicle, approached the Mercury,
shut- Id. As he came within f
Id.
Officer Marvil again followed the vehicle, and Darby Borough Police
Officer Brian Evans, who had heard the radio reports, took pursuit in his
marked police vehicle, with his ligh
Id. at 3. The car
Id. ed upon
the subject vehicle to render it clearly illuminated and assure the police
Id. Other officer
- Id.
Officer Evans approached the car and saw the driver, who was
Id. Officer Evans stood at the
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marijuana waf Id.
Id.
The officers removed Appellee, as well as a juvenile front passenger
and a driver-side rear passenger from the car, and took them to the rear of
Id. at 4. Because the area was a high crime and drug area, and
because of -down search
of Appellee and the occupants. They recovered approximately $885 and a
The officer -latch was unlocked and
the top of its lid powdered with a white residue, which he believed was . . .
Id. Id.
the officer entered the passenger compartment to inspect the safe . . . it
became clear that the odor of fresh marijuana was emanating from the
Id. Officer Evans retrieved and opened the safe at the scene. It
contained:
one clear plastic bag containing 39 small red glassine bags
containing a white powdery substance; one clear plastic
bag containing 22 small red baggies containing a white
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containing 16 glassine bags containing a white powdery
substance; one clear plastic bag containing three tin foil
balls each containing a white powdery substance; one
clear plastic bag containing four glassine bags containing a
green vegetable-like matter; four clear plastic bags
containing a loose vegetable-like matter; several new
baggies commonly used to package crack cocaine or
marijuana; [$50]; and[ ] a small composition notebook.
Id.6 Subsequent testing confirmed that the white powder and vegetable-like
contents Id. at 6.
The trial court found that Officer Marvil possessed reasonable suspicion
to conduct a vehicle stop for suspected reckless driving, careless driving,
driving at an unsafe speed, and improper passing to the right. Id. at 19-20.
The court also found that the officers lawfully conducted a pat-down search
recovered from his person. Id. at 22.
However, the court found that by removing the occupants of the car to
need . . . to enter the vehicle for self- Id. at 11. The court
Id. at 23.
6
In addition, Officer Evans testi
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figuratively) reeked of the prospect of the possession of marijuana and
information to suggest the continuing and actual presence of contraband
was generated only after Officer Evans entered the car and retrieved the
Id.
of the vehicle nor his removal of the safe . . . was conducted incident to an
Id. at 24. The court thus
held the
suppress evidence obtained from the passenger compartment and from the
safe. Id.
Appellee was arrested and charged with possession of a controlled
substance, possession with intent to deliver a controlled substance,
possession of drug paraphernalia, and eight violations of the Motor Vehicle
Code, including, careless driving and reckless driving. He filed a motion to
suppress, and the court held a hearing on May 27, 2010. After the
suppression judge passed away, the matter was reassigned to another
recovered from his vehicle. Id. at 24.
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The Commonwealth took this timely appeal.7 On September 5, 2012,
this panel affirmed the suppression order. As stated above, we applied the
then-
vehicle searches must be accompanied not only by probable cause, but also
10 (citing Commonwealth v. Liddie, 21 A.3d 229, 233 (Pa. Super. 2011)
(en banc
from its federal corollary which permits the warrantless seizure of
contraband from a vehicle without first establishing certain additional
Liddie, 21
A.3d at 234 n.7). We further noted that in May of 2012, the Pennsylvania
Supreme Court granted allowance of appeal in Commonwealth v. Gary, 44
10-11 n.8.
The Supreme Court issued a decision in Gary on April 29, 2014, the
holding of which we will discuss infra. On July 1, 2014, the Court vacated
our decision and remanded this case in light of Gary. This panel did not
request new briefs from the parties.
The Commonwealth presents the following questions for our review:
7
Our review of the record indicates there was no Pa.R.A.P. 1925(b) order
and no 1925(b) statement filed by the Commonwealth.
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1. Did the trial court err as a matter of law by suppressing
evidence of illegal drugs seized from an unlocked safe
which smelled of marijuana, had cocaine residue on its lid
and was located in plain view on the front seat of a vehicle
during the course of a lawful vehicle stop?
2. Did the trial court err by concluding that the police
lacked probable cause to search the vehicle where the
strong odor of marijuana coming from the vehicle was
immediately obvious to the officer?
conclude that the police could lawfully enter the vehicle to
search for the marijuana?
4. Did the trial court err by concluding that the police
could not lawfully seize the drugs from within the unlocked
safe where: (a) the police had lawful access to the safe
of marijuana in the safe was immediately apparent, and
(c) the police observed the safe from a lawful vantage
point?
legal authority Id. at 12.
First, the Commonwealth argues the court erred in finding the police lacked
probable cause to search the car, and maintains that the odor of marijuana
believe that a crime was being committed and that contraband was in
Id. at 17-18. The Commonwealth then alleges the court
erred in applying the limited automobile exception because the officers did
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not
8
Id. at 26, 27. The Commonwealth also
apparent to the police based upon the white powder on its lid and the odor
Id. at 27. Pursuant to
Gary, we hold the search of the interior of the vehicle and seizure of its
contents was legal.
We note the relevant standard of review:
When the Commonwealth appeals from a suppression
order, this Court may consider only the evidence from the
prosecution that, when read in the context of the record as
a whole, remains uncontradicted. In our review, we are
and we must determine if the suppression court properly
applied the law to the facts. We defer to the suppression
credibility of the witnesses and the weight to be given to
their testimony.
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (citations omitted).
In Gary, the Pennsylvania Supreme Court announced:
[W]e now hold that with respect to a warrantless search of
a motor vehicle that is supported by probable cause,
8
A careful review of the Commo
claims the limited automobile exception applied in this case, its
arguments instead relate to the plain view doctrine. Nevertheless, we
now consider this appeal under Gary, which abandoned the limited
automobile exception.
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Article I, Section 8 of the Pennsylvania Constitution affords
no greater protection than the Fourth Amendment to the
United States Constitution. Accordingly, we adopt 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, 91 A.3d at 104. It further stated:
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.
We also note:
a
prudent individual in believing that an offense was
determining whether probable cause exists, we must
consider the totality of the circumstances as they appeared
to the arresting officer. Additio
required to establish probable cause for a warrantless
search must be more than a mere suspicion or a good faith
Commonwealth v. Copeland, 955 A.2d 396, 400 (Pa. Super. 2008)
(citations omitted).
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It is not the mere possession of such containers, but rather
the totality of the circumstances which dictated the
the package contained narcotics constituted a reasonable
inference based on the facts known to him at the time of
the arrest.] In none of the [federal cases cited by the
defendant] did the courts find that the mere observation of
a container or package, the likes of which an officer has
known, in the past, to contain narcotics, was sufficient to
establish probable cause. Instead, it was the holdings of
those courts that when viewed together with the additional
incrimin
of suspect containers and/or packages are appropriate
factors to consider in ascertaining whether the warrantless
arrest was supported by probable cause.
Hudson, 92 A.3d at 1243 n.6 (quoting Commonwealth v. Evans, 685
A.2d 535, 538 (Pa. 1996)).
Pursuant to Gary and Hudson, we review whether the officers had
probable cause to conduct, first, the warrantless search of the vehicle and
second, the warrantless search of the safe. See Gary 91 A.3d at 104, 138;
Hudson, 92 A.3d at 1241 (stating that under Gary, salient question for
suppression court was whether police officers had probable cause to conduct
warrantless search).
The suppression court found the officers had reasonable suspicion to
stop Appellee for suspected violation of Vehicle Code offenses:
wildly reckless maneuvers which reasonably offered
the Vehicle Code. See generally 75 Pa.C.S.A. § 3736
(Reckless driving), § 3714 (Careless driving), § 3361
(Driving at safe safe) & § 3304 (Improper passing to the
right). See also 75 Pa.C.S.A. § 6308 (Investigation by
Police Officer-Duty of Operator to Stop[).]
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* * *
[ ] The circumstances presented to Officer Marvil after
seeing the Mercury nearly strike his unmarked police car
and thereafter proceed through other traffic in a hazardous
justifying a traffic stop to issue a ticket to the vehicle
operator.
Adjudication at 19, 20.
However, we hold that under Commonwealth v. Chase, 960 A.2d
108 (Pa. 2008), the proper quantum of cause was probable cause.9 See
Chase, 960 A.2d at 116 (requiring police to have probable cause to conduct
purposes of a Terry stop do not exist maintaining the status quo while
Nevertheless, we would hold that Officer Marvil possessed the requisite
We next consider whether the officers had probable cause to conduct a
warrantless search of the vehicle. See Gary, 91 A.3d at 104, 138. Under
the totality of the circumstances as found by the trial court, we hold Officer
9
See also Commonwealth v. Landis, 89 A.3d 694, 703 (Pa. Super. 2014)
(holding that under Chase, showing of probable cause was necessary to
justify vehicle stop for violation under driving roadways laned for traffic, 75
Pa.C.S. § 3309, where there was no express indication that trooper stopped
defendant in order to conduct additional investigations into DUI or other
impairments of his ability to drive safely).
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Marvil had probable cause to believe that Appellee possessed an illegal
substance in the vehicle. See Copeland, 955 A.2d at 400. As Officer Evans
rom the vehicle when Appellee opened his window. Id.
We must further consider, however, the distinct question of whether
the police could search the contents of the closed safe. In the recent
Superior Court opinion of Hudson, decided post-Gary, this Court affirmed
the suppression of pill bottles found in the center console of a car. Hudson,
92 A.3d at 1242-43. In that case, police officers conducted a valid vehicle
stop of the defendant. Id. at 1242.
While effectuating the traffic stop, the officers noticed [the
defendant] reaching toward the center console of the
automobile. [After the officers reached the vehicle and
the officers asked [the defendant] and his passenger to
exit the vehicle, whereupon [one of the officers] conducted
a protective sweep of the car for the safety of the officers.
It was during this search that [the officer] opened the
center console and saw three pill bottles. Two pill bottles
had the labels partially removed, while the label on the
[The officer] seized the pill bottles and arrested [the
defendant]. The pill bottles were later determined to
contain prescription pain medication. [The defendant] was
charged with possession of a controlled substance with
intent to deliver and possession of a controlled substance.
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Id.
Id. at 1242.
The trial court suppressed the pill bottles. Id.
that it was impossible for the officers . . . to determine that these
prescription bottles contained illegal substances because the contents of the
bottles wer Id. at 1242. The court noted that
Poison Control to conduct testing in order to determine that these were
Id. The trial court further found:
These officers should have secured the vehicle and
obtained a proper warrant in order to open the pill bottles
and conduct testing on the contents therein. The
reasonableness for a warrantless search ceased when [the
officer] observed the bottles in the compartment but could
not immediately recognized [sic] the contents. His intent
in conducting this search was for weapons for officer
safety. Once no weapon was observed, any warrantless
basis for his search ended due to his acknowledged
inability to make a determination that the pill bottles
contained contraband just by plain observation.
Id. (emphasis added).
On appeal, this Court agreed:
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. The potentially incriminating contents of
the pill bottles were not discovered until after they were
improperly seized, searched, and tested, thereby proving
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view exception had not been satisfied.
* * *
. . . The two pill bottles that had their labels partially
removed were next to a pill bottle with an intact label
bearing [the
that [the defendant] had pill bottles in his car, with one
bearing his name, without more, did not place the contents
of the bottles in plain view and did not establish probable
cause.[ ]
Id. at 1242-43.
We find the facts in the case sub judice are distinguishable from those
in Hudson. Here, as Officer Evans approached the vehicle, he saw Appellee
at as if he were
present in Hudson,10 in this case we have the additional factor of Officer
when Appellee opened his window. Id. Furthermore, the safe was in plain
Id. at 4. After
Appellee and his passengers were removed from the vehicle, the officers
conducted a valid under Gary warrantless search of the car. Officer
Evans observed a white residue on the top of the safe, which he believed
was cocaine. Id. at 5. Although the contents of the safe were not visible, it
10
See Hudson, 92 A.3d at 1236 (stating as officers approached vehicle,
they noticed defendant reaching toward center console).
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fro Id.
Id. We hold that the totality of the circumstances lended the officer
probable cause to search the safe for narcotics. See Hudson, 92 A.3d at
1243 n.6. Accordingly, after applying the dictates of Gary and Hudson, we
vehicle. We thus reverse the portion of the order granting Appel
to suppress this evidence.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/29/2014
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