Com. v. Wedderburne, S.

J-S10018-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
STAFFORD ALPHANSO : No. 1102 MDA 2021
WEDDERBURNE :
Appeal from the Order Entered August 3, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004833-2020
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: JULY 15, 2022
The Commonwealth appeals the grant of Stafford Alphanso
Wedderburne’s motion to suppress evidence seized during a vehicle stop. The
Commonwealth maintains that the trial court erred in granting the motion
because police had probable cause and there were exigent circumstances. It
further maintains that the search is supported by the doctrines of plain view,
inventory search, and inevitable discovery. We affirm.
Following a traffic stop, an officer searched Wedderburne’s vehicle and
recovered loose marijuana, marijuana cigarettes, loose bullets, and a firearm.
The Commonwealth charged Wedderburne with multiple offenses including
persons not to possess a firearm and possession of a small amount of
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* Retired Senior Judge assigned to the Superior Court.
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marijuana.1 He filed a motion to suppress, arguing that the police officer
lacked probable cause and that there were no exigent circumstances sufficient
to excuse the failure to get a warrant. See Omnibus Pretrial Motion, filed
3/24/21, at ¶¶ 17-18. The trial court held a hearing on the motion.
Officer Brian Aponte testified that on September 17, 2020, around 1
a.m., he observed a Hyundai sedan with a nonfunctioning left brake light.
N.T., Suppression Hearing, 5/3/21, at 5. Officer Aponte stopped the vehicle
because of the brake light. Id. at 6. He approached the vehicle and observed
Wedderburne in the driver’s seat. Id. at 8. He also testified that there were
two other individuals in the car, one in the back passenger-side seat and one
in the front passenger seat. Id. at 7. After approaching the vehicle on the
front passenger side, he asked Wedderburne to roll down the window. Id.
Officer Aponte noticed an odor of marijuana coming from the car and
marijuana “blunts” or “roaches” in the center console, underneath the radio.
Id. at 8. Officer Aponte requested backup “due to the time of the night and
the amount of people in the vehicle.” Id.
Officer Aponte explained to Wedderburne the reason for the traffic stop
and asked for the insurance and registration for the vehicle. Id. at 9.
Wedderburne told the officer that his sister was the owner of the vehicle and
that he would try to find the paperwork. Id. at 9, 10. Officer Aponte suggested
that he look in the glove compartment, and without “even try[ing] to go in
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1 18 Pa.C.S.A. § 6105(a)(1) and 35 P.S. § 780-113(a)(32), respectively.
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there,” Wedderburne replied that it was not located in the glove compartment.
Id. at 10. Officers Prisbe and D’Arcy arrived as backup for Officer Aponte. Id.
at 12.2 Officer Aponte asked Wedderburne for his license, who replied that he
did not have one and retrieved his Pennsylvania identification card (“ID”) from
a bookbag. Id. at 9, 13. Officer Aponte saw that Wedderburne’s license was
suspended and told him that based on the smell of marijuana and the
marijuana blunts in the vehicle, he was going to search the vehicle. Id. at 13,
14. Wedderburne started to reach for the marijuana blunts, and Officer Aponte
“advised him to just leave them alone, that we would get to it[.]” Id. at 14.
Officer Aponte asked for consent to search the vehicle, but Wedderburne said
that he could not give consent because it was not his vehicle. Id. at 14.
Officer Aponte testified that it was his understanding that the vehicle
search was allowed based on the smell of marijuana. Id. at 12. He removed
Wedderburne from the vehicle and asked him to stand by the backup officers
who were on the sidewalk. Id. at 14-15. Officer Aponte then had the
passengers exit the vehicle. Id. at 15.
After all the occupants were out of the car, Officer Aponte searched it.
During the search, all the occupants were standing on the sidewalk next to
the backup officers. Id. at 15. He found a plastic baggie of leafy vegetable
substance that appeared to be marijuana and marijuana roaches in the center
console. Id. He also found duct tape, latex gloves, a bandana, and several
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2 The first name of these officers is not provided in the transcript.
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loose 9-millimeter bullets in the bookbag from which Wedderburne had
retrieved his ID. Id. at 16. Officer Aponte also discovered a firearm in the
glove compartment. He later learned the gun was stolen and that
Wedderburne had a prior felony that prevented him from lawfully possessing
a firearm. Id. at 18, 29. Police placed all occupants under arrest and
conducted a search incident to arrest. Officer Aponte recovered from
Wedderburne’s person marijuana, latex gloves, and a bandana. The latex
gloves and bandana appeared to match those found in the bookbag. Id. at
20. The court had the parties submit briefs and, with court permission, the
Commonwealth also submitted a copy of a police mobile video audio recording
(“MVR”) of the incident. See id. at 28.
The trial court granted the suppression motion. See Order of Court, filed
8/2/21. It concluded that exigent circumstances did not exist for the officer’s
safety or to preserve potential evidence in the vehicle. See Memorandum
Opinion and Order of Court, filed 8/2/21, at 5-6. It concluded that the plain
view doctrine did not cure the illegality of the search of the vehicle because
“exigent circumstances did not exist, and the officer did not have some prior
justification to give him lawful access to the items” that were seized. Id. at 7.
The court noted that the Commonwealth argued that the evidence could have
been inevitably discovered because officers could have conducted an
inventory search of the vehicle. However, the court was unpersuaded by this
argument, concluding that the MVR showed that officers merely moved the
car to a parking lot for Wedderburne’s sister to pick up and did not impound
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it. See id. at 8. It also concluded that the inevitable discovery doctrine applies
to what “would have been discovered,” not what could have been lawfully
discovered. See id.
The Commonwealth timely appealed. It raises one issue: “Whether the
trial court erred in granting [Wedderburne’s] suppression motion where law
enforcement possessed probable cause and exigency to conduct the search in
question, which was also supported by the doctrines of plain view, inventory
searches, and inevitable discovery[.]” Commonwealth’s Br. at 4.
When reviewing the grant of a motion to suppress, we “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.” Commonwealth v. Korn, 139 A.3d 249, 252 (Pa.Super.
2016). We are bound by factual findings of the suppression court that are
supported by the record. Id. We review the legal conclusions de novo. See
id. at 252-53.
The Commonwealth argues that the trial court erred in granting
suppression. It maintains that Wedderburne did not properly preserve a
challenge under Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020)
(requiring probable cause and exigent circumstances for warrantless search
of vehicle) because he only argued that exigent circumstances did not exist.
It further argues that exigent circumstances did exist, and that the doctrines
of inevitable discovery and plain view render suppression improper.
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Exigent Circumstances
The United States and Pennsylvania Constitutions protect against
unreasonable searches and seizures. See Commonwealth v. Newsome,
170 A.3d 1151, 1154 (Pa.Super. 2017). “[A] warrant stating probable cause
is required before a police officer may search for or seize evidence” unless an
exception to the warrant requirement applies. Commonwealth v. Anderson,
40 A.3d 1245, 1248 (Pa.Super. 2012). As applied to vehicle searches,
Pennsylvania law requires police to have a warrant unless probable cause and
exigent circumstances exist. Alexander, 243 A.3d at 181.
Exigent circumstances will excuse a warrantless search or seizure where
the Commonwealth establishes that there is a “compelling need [by officers]
for official action and no time to secure a warrant.” Commonwealth v.
Trahey, 228 A.3d 520, 530 (Pa. 2020) (citation omitted). The compelling
need usually exists “either because evidence is likely to be destroyed, or
because there exists a threat of physical harm to police officers or other
innocent individuals.” Commonwealth v. Stewart, 740 A.2d 712, 717
(Pa.Super. 1999) (citation omitted). Determining whether exigent
circumstances exist requires a consideration of the totality of circumstances
and entails a case-by-case assessment. Trahey, 228 A.3d at 530, 531.
The Commonwealth claims exigent circumstances existed here because
Wedderburne “made a motion consistent with attempting to dispose” of the
marijuana blunts. Id. at 15, 16. It also cites concerns about officer’s safety.
The Commonwealth notes that because of the number of occupants in the
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vehicle at the time of the traffic stop, and the time of day, Officer Aponte felt
that it was necessary to call backup. It also maintains that Wedderburne
waived any challenge to the search pursuant to Alexander because he only
challenged the exigent circumstances and not the probable cause to search
the vehicle. Id. at 14. In support, the Commonwealth cites Wedderburne’s
brief following the suppression hearing. Id.
Wedderburne properly preserved his challenge under Alexander by
raising it in his motion to suppress. See Omnibus Pre-Trial Motion at ¶¶ 17-
18. He further developed and briefed the applicability of Alexander in his
post-suppression hearing brief. See Defendant's Brief in Support of Omnibus
Pretrial Motion, filed 5/21/21, at 6-9 (unnumbered). Although he limited his
argument in that brief to contending that the Commonwealth had failed to
establish exigent circumstances, and did not discuss probable cause, that does
not mean he waived all arguments under Alexander.
As to the Commonwealth’s argument on exigency, it is meritless. First,
there was no testimony that Wedderburne was trying to “dispose of” the burnt
marijuana blunts. Rather, Officer Aponte testified that after he told
Wedderburne that he saw the blunts, Wedderburne reached toward them, at
which point Officer Aponte told him to leave them and that he would get them.
Officer Aponte did not say that Wedderburne thereafter continued to reach
toward the blunts, or that he believed Wedderburne was attempting to discard
or destroy them.
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Second, the claim that the officers’ safety was at risk when Officer
Aponte searched the vehicle lacks substantiation in the record. Officer Aponte
did not search the car until all the occupants had gotten out of it and were
standing next to the backup officers. Moreover, no testimony suggests the
occupants did anything at the time of the search that could reasonably pose
a risk to officer safety. The record does not support a conclusion that “the
exigencies of the situation ma[d]e the needs of law enforcement so compelling
that the warrantless search [was] objectively reasonable[.]” Alexander, 243
A.3d at 208. The trial court did not err in rejecting the claim of exigent
circumstances.
Inevitable Discovery
The inevitable discovery doctrine provides that suppression of evidence
seized without a warrant can be avoided where the Commonwealth shows by
a “preponderance of the evidence that the illegally obtained evidence
ultimately or inevitably would have been discovered by lawful means[.]”
Commonwealth v. King, 259 A.3d 511, 522 (Pa.Super. 2021) (citation
omitted) (emphasis added). The Commonwealth “must demonstrate that the
evidence would have been discovered absent the police misconduct, not
simply that they somehow could have lawfully discovered it.”
Commonwealth v. Perel, 107 A.3d 185, 196 (Pa.Super. 2014) (emphasis in
original).
The Commonwealth argues that the evidence would have been
discovered because officers “could have impounded the vehicle and conducted
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an inventory search.” Commonwealth’s Br. at 18 (emphasis added). As the
trial court stated, the Commonwealth must demonstrate that the officers
would have discovered the evidence. Nothing in the record shows that Officer
Aponte conducted an inventory search of the vehicle or even that police
attempted to impound the vehicle. Rather, the MVR showed that police left
the car in a parking lot for Wedderburne’s sister to retrieve. The
Commonwealth at most has shown that the police “somehow could have
lawfully discovered” the evidence. Perel, 107 A.3d at 196. The trial court did
not err in finding that the inevitable discovery doctrine was inapplicable here.
Plain View
The plain view doctrine allows police to seize evidence without a warrant
where: “(1) an officer views the object from a lawful vantage point; (2) it is
immediately apparent to [the officer] that the object is incriminating; and (3)
the officer has a lawful right of access to the object.” Commonwealth v.
Heidelberg, 267 A.3d 492, 504 (Pa.Super. 2021) (citation omitted).
The Commonwealth maintains that “the search of the vehicle was
justified by plain view[.]” Commonwealth’s Br. at 16. It states that Officer
Aponte conducted a lawful traffic stop based on probable cause because
Wedderburne’s brake light was not working. It states that Officer Aponte was
in a lawful vantage point while conducting the traffic stop when he smelled
the odor of marijuana and saw the marijuana blunts in the center console.
Officer Aponte also testified that he observed what he described as marijuana
blunts or roaches in the center console, evidence which the Commonwealth
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contends he believed to be incriminating considering that he then conducted
a search of the vehicle after this observation. The Commonwealth argues that
because the first two prongs of the plain view doctrine are satisfied, “the
limited automobile exception afforded Officer Aponte lawful access to the
evidence since the probable cause arose suddenly without advance warning
that [Wedderburne] or his vehicle would be the target of a police
investigation.” Commonwealth’s Br. at 17-18.
The Commonwealth’s argument fails for several reasons. First, the plain
view doctrine applies to the seizure of evidence. It cannot serve to justify the
search of the car, as the Commonwealth suggests. See Commonwealth v.
Lutz, 270 A.3d 571, 577 (Pa.Super. 2022) (“the plain view doctrine provides
that evidence in plain view of the police can be seized without a warrant”)
(quoting Commonwealth v. Luczki, 212 A.3d 530, 546 (Pa.Super. 2019)
(emphasis added). Second, there is no evidence that Officer Aponte could view
the duct tape, latex gloves, bandana, bullets, or gun from a lawful vantage
point. According to the testimony, he did not see any of them until he
conducted the illegal search of the car.
Regarding the marijuana blunts, even assuming the first two prongs of
the doctrine are met – view from a lawful vantage point and immediately
apparent incrimination – Officer Aponte did not have a lawful right of access.
As explained above, pursuant to Alexander, the Commonwealth’s claim to
Pennsylvania’s “limited automobile exception” fails. The trial court did not err
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by concluding that the plain view doctrine was not applicable. We affirm the
order granting Wedderburne’s motion to suppress.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/15/2022
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