Com. v. Davis, M.

J-S37027-22
2022 PA Super 216COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARKEE DAVIS :
:
Appellant : No. 30 EDA 2022
Appeal from the Judgment of Sentence Entered November 23, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002484-2020
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
OPINION BY LAZARUS, J.: FILED DECEMBER 16, 2022
Markee Davis appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after being convicted,
following a stipulated non-jury trial, of various firearms charges. On appeal,
Davis challenges the partial denial1 of his pre-trial motion to suppress a
warrantless vehicle search. After careful review, we affirm.
In January 2020, Davis was arrested and charged with possession with
intent to deliver,2 firearms not to be carried without a license,3 possession of
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1 The court suppressed marijuana and packaging material recovered during
the stop, as well as custodial statements Davis made to police officers.
2 35 P.S. § 780-113(a)(30).
3 18 Pa.C.S § 6106(a)(1).
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a controlled substance,4 possession of drug paraphernalia,5 carrying firearms
publicly in Philadelphia,6 terroristic threats,7 obliterating mark of
identification,8 and resisting arrest.9 The charges stemmed from a traffic stop
conducted on the evening of January 16, 2020, on 22nd Street in Philadelphia.
Davis, the driver of a dark blue Acura with dark-tinted windows, was observed
by Philadelphia Police Officers Daniel Levitt and Paul Narrigan traveling
southbound at a high rate of speed, passing cars, driving on the road’s
shoulder, and then, without using his vehicle’s turn signal, making a hard right
turn onto Allegheny Avenue. N.T. Suppression Hearing, 8/12/21, at 11. The
officers, in a marked patrol vehicle, activated their lights and sirens to
effectuate a traffic stop. Id. at 12. Davis pulled the car over and illegally
parked it on the side of Allegheny Avenue. Id. at 26.10
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4 35 P.S. § 780-113(a)(16).
5 Id. at § 780-113(A)(32).
6 18 Pa.C.S. § 6108.
7 Id. at § 2706(a)(1).
8 Id. at § 6117(a).
9 Id. at § 5104.
10 Davis does not contest the legality of the car stop.
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Officer Levitt, a ten-year veteran of the Northwest Division of the
Philadelphia Police Department,11 testified that he approached Davis’ vehicle
and asked him for his driver’s license, vehicle registration, and insurance
information. Id. Davis was unable to produce any of the requested
documents. Id. Officer Levitt testified that he noticed Davis was “breathing
very heavy, shaking, fast talking, [and] appeared very nervous.” Id. Officer
Levitt also testified that there was a “very strong odor of marijuana coming
from the vehicle[12] and [that] some marijuana and packaging[13] [were] in
plain view on the passenger seat in the center console area” of the car. Id.
at 12-13. At this point, Officer Levitt called a supervisor, id. at 13, and asked
Davis to step out of the vehicle so he could identify Davis and determine who
owned the vehicle. Id. Despite Officer Levitt’s request to exit the car, Davis
“attempted to put the car in gear and drive away.” Id. (Officer Levitt
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11 Officer Levitt testified that he had been on the force for at least 10 years at
the time of the incident, having worked his entire career in the Northwest
Division, with three of those years in the Northwest Task Force. Id. at 22-23.
He also testified that he had made thousands of vehicle stops and countless
arrests for firearms, possession of marijuana, assault, and homicide. Id. at
23-24. Many of those arrests occurred in the exact area where he and Officer
Narrigan stopped Davis, which Officer Levitt testified was “one of the most
violent districts in the city.” Id. at 24.
12 Recently, in Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), our
Supreme Court held that the “odor of marijuana may be a factor, but not a
stand-alone one, in evaluating the totality of the circumstances for purposes
of determining whether police had probable cause to conduct a warrantless
search.” Id. at 41.
13Officer Levitt testified the packaging looked like “[p]lastic tubes of sorts.”
Id. at 13.
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testifying Davis “put his hand on the shifter and tried to put it into drive”). At
that point, Officer Levitt opened the driver’s side door, grabbed Davis, and
pulled him out of the vehicle. Id. at 13-14.
Officers Levitt and Narrigan escorted Davis to their patrol vehicle, where
Davis was placed in the back seat of the cruiser, without handcuffs, so that
the officers could further investigate the matter. Id. at 14. Officer Levitt
returned to Davis’ vehicle to obtain the car’s vehicle identification number
(VIN) and determine if it matched the license plate number from the motor
vehicle record system. Id. As he approached the vehicle, which had its
driver’s door still open, he saw a black semi-automatic handgun on the floor
sticking out from underneath the driver’s side seat. Id. at 14-15.14 At that
point, Officer Levitt returned to the police cruiser to ask Davis if he had a
permit to carry the gun; Davis indicated he did not have a permit. 15 Id. at
15. Officer Narrigan also checked the police record system to verify whether
Davis had a permit to carry a firearm, which confirmed Davis did not. Id. at
16. Officer Levitt then attempted to place Davis in handcuffs, but he resisted,
causing a “small scuffle in the back of the police car.” Id. at 16. Officer Levitt
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14The handgun was loaded with one live round in the chamber and eleven
rounds in the magazine. See Property Receipt, Commonwealth Exhibit 1,
1/16/20.
15 This statement was suppressed by the trial court. However, Davis “accepts
th[e] proposition [that O]fficer [Narrigan] had independently verified the lack
of a license thr[ough] police channels” and that it may be used to justify the
second prong of the plain view doctrine—that it was immediately apparent to
the officer that the firearm was incriminating. See Appellant’s Brief, at 16-
17.
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and Davis wrestled; the officer “struck [Davis] with his fist a few times in the
head,” and was then able to place Davis in handcuffs. Id.
Once Officer Levitt’s supervisor arrived on the scene, Officer Levitt
notified the supervisor about the odor of marijuana emanating from Davis’
vehicle and the gun on the floor of the car. Id. at 17. The officers then
recovered the gun and conducted a search of the vehicle, during which they
recovered a large amount of marijuana stowed in various areas of the car,
including the trunk. Id. The officers subsequently transported Davis back to
the police station. Id. During the car ride, Davis “did not stop cursing, calling
[Officer Levitt] names, yelling” and told Officer Levitt that “he just should have
shot [Officer Levitt].” Id.
On January 27, 2020, Davis filed a pre-trial motion to suppress physical
evidence—the handgun, marijuana, and drug paraphernalia uncovered from
the warrantless car search—and statements made by Davis—claiming that
Davis’ arrest and the search of the vehicle were illegal where they were
conducted without probable cause. Suppression Motion, 1/27/20, at 1. On
August 12, 2021, the court held a suppression hearing. On September 8,
2021, the trial court entered an order granting in part (Davis’ statements and
marijuana found in car trunk) and denying in part (handgun) Davis’
suppression motion. The court denied suppression of the handgun, concluding
that Officer Levitt saw the object in plain view during his investigation of the
matter.
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Following a stipulated bench trial, Davis was convicted of the firearms’
offenses. On November 23, 2021, Davis was sentenced to serve 11½-23
months in prison, with a three-year probation tail, for carrying a firearm
without a license and a concurrent sentence of 6-12 months in prison, with a
one-year probationary tail, for publicly carrying a firearm in Philadelphia. On
November 30, 2021, the court amended its sentence and granted Davis’
motion for immediate parole.
Davis filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.16 Davis raises
the following issue for our consideration:
[Whether t]he [trial] court erred when it denied [Davis’ m]otion
to [s]uppress contrary to Pennsylvania Supreme Court mandates
when it found a warrantless search of [Davis’] vehicle was
[c]onstitutional and within the bounds dictated by
Commonwealth v. Alexander[, 243 A.3d 177 (Pa. 2020),] in
that [o]fficers must have both probable cause and exigent
circumstances, when it found exigency existed because they had
to remove a car from where they exercised a traffic stop.
Appellant’s Brief, at 7.
When reviewing an order denying a motion to suppress evidence, we
must determine whether the trial court’s factual findings are supported by the
evidence of record. Commonwealth v. Blair, 860 A.2d 567, 571 (Pa. Super.
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16 On December 15, 2021, trial counsel, Gary S. Silver, Esquire, filed a motion
to withdraw. The court granted counsel’s request and, on December 30, 2021,
appointed W. Christ Montoya, Esquire, to represent Davis on appeal. Attorney
Montoya filed a motion for extension within which to file Davis’ Rule 1925(b)
statement, which the court granted on January 24, 2022.
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2004). “When reviewing the ruling of a suppression court, we must consider
only the evidence of the prosecution and so much of the defense as remains
uncontradicted when read in the context of the record.” Commonwealth v.
Bumbarger, 231 A.3d 10, 15 (Pa. Super. 2020). If the evidence supports
the trial court’s findings, we are bound by them and may reverse only if the
legal conclusions drawn therefrom are erroneous. Blair, supra at 571.
On appeal, Davis argues that under Alexander, supra, the
Commonwealth did not have the requisite exigent circumstances to justify a
warrantless search of Davis’ vehicle where Officer Levitt, under the guise of
plain view, did not have a lawful right of access to the gun. See Appellant’s
Brief, at 16-17; N.T. Suppression Hearing, 8/12/21, at 7. Specifically, Davis
claims that there was no dangerous situation or “urgent need” to move the
car to a legal parking space to support the officers’ claim that exigent
circumstances existed. Id. at 7-8.
In Alexander, supra, our Supreme Court overruled precedent
established in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), and held
that Article I, Section 8 of the Pennsylvania Constitution requires both a
showing of probable cause and exigent circumstances to justify a warrantless
search of an automobile. Id. at 118. Here, the police justified seizure of the
handgun pursuant to an exception to the warrant requirement, the plain view
doctrine. The plain view doctrine allows the admission of evidence seized
without a warrant when: (1) an officer views the object from a lawful vantage
point; (2) it is immediately apparent to him that the object is incriminating;
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and (3) the officer has a lawful right of access to the object. See
Commonwealth v. Collins, 950 A.2d 1041, 1045 (Pa. Super. 2008) (en
banc) (citation omitted) (emphasis added). “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. Brown, 23 A.3d 544, 557 (Pa. Super. 2011)
(en banc).
Recently, in Commonwealth v. Lutz, 270 A.3d 571 (Pa. Super. 2022),
our Court had the opportunity to reconsider, in light of Alexander, a trial
court’s denial of a defendant’s motion to suppress drug paraphernalia (metal
pipe commonly used for smoking marijuana) seized by an officer who saw the
pipe in plain view, as the driver’s-side door was open with the window down,
on the driver’s seat of the defendant’s still-running automobile. Lutz, supra
at 575. In denying the defendant’s suppression motion, the trial court noted
that “Alexander did not impact its ruling because its decision did not ‘rest
upon the analytical underpinnings of the automobile exception to the warrant
requirement, but[,] rather[,] upon an application of the plain view and search
incident to arrest[17] exceptions to the warrant requirement.’” Lutz, supra at
576 (citation omitted).
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17The search incident to arrest was used to justify the search of defendant’s
car after the metal pipe was seen in plain view and seized by the sergeant.
(Footnote Continued Next Page)
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The defendant in Lutz contended, like Davis does in the instant appeal,
that the court erred in denying her suppression motion because the officer
unlawfully seized the metal pipe from her vehicle because “he was not justified
in entering the car without a warrant” and “the plain view exception did not
relieve him of his obligation to obtain a search warrant.” Id. at 576-77. On
appeal, our Court specifically addressed the question of whether, in light of
the fact that Alexander requires exigent circumstances to enter the car, the
officer “had a lawful right to access [under the plain view doctrine] to go into
the car and seize the pipe [] without getting a warrant.” Id. at 579. In
concluding suppression of the pipe was not warranted, our Court stated “[i]n
this case, the still-running vehicle and open car door fulfilled the requirement
of exigent circumstances because the Sergeant needed to enter the car to turn
off the ignition. Once he entered the vehicle to safely secure the scene, he
had lawful access to the pipe sitting on the driver’s seat and seizure of it was
lawful under the plain view doctrine.” Id.
More recently, in Commonwealth v. McMahon, 280 A.3d 1069 (Pa.
Super. 2022), our Court reviewed a trial court’s partial denial of a defendant’s
motion to suppress drugs uncovered during a traffic stop. While the trial court
suppressed three bags of marijuana found in the console of the defendant’s
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Id. at 575. During that search, the police recovered an eyeglass case
containing suspected marijuana from underneath the driver’s seat and a bag
containing a blue pill and a cut straw from the area where the driver’s seat
meets the center console. Id.
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vehicle, it denied suppression of burnt marijuana cigarettes18 that the police
recovered from the center cup holder of the vehicle. The defendant, like
Davis, relied on Alexander to claim that “the officers had no lawful right to
access the interior of the car to seize th[e cigarettes].” McMahon, supra at
1073. Our Court disagreed, stating:
Appellant relies on Alexander to support his claim that exigent
circumstances were necessary for the lawful seizure of the
marijuana cigarettes. Appellant’s Brief at 24-25. However,
Alexander addresses the automobile exception to the warrant
requirement, not the plain view exception. Alexander, 247 A.3d
at 181; see also Simonson, 148 A.3d at 797.
Our Supreme Court has expressly recognized that
incriminating objects plainly viewable [in the] interior of a
vehicle are in plain view and, therefore, subject to seizure
without a warrant. This doctrine rests on the principle that
an individual cannot have a reasonable expectation of
privacy in an object that is in plain view.
Commonwealth v. Turner, [] 982 A.2d 90, 92 (Pa. Super. 2009)
(citations and quotation marks omitted). The Pennsylvania
Supreme Court has distinguished the limited intrusion of the
seizure of evidence in plain view from the greater intrusion of an
automobile search. McCree, 924 A.2d at 627.
* * *
As discussed above, Alexander did not involve plain view.
Appellant points to nothing in Alexander which modified the plain
view doctrine, and we decline to apply Alexander. Rather,
“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
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18The McMahon court also denied suppression of Oxycodone pills found
during a search incident to defendant’s arrest. However, defendant did not
challenge that ruling on appeal.
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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 [a]ppellant 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).
[Commonwealth v.] Heidelberg, 267 A.3d [492,] 505 [(Pa.
Super. 2021) (en banc)] ([]citation omitted).
McMahon, supra at 1073-74 (emphasis added).
Finally, most recently, in Commonwealth v. Smith, 2022 PA Super
187 (Pa. Super. filed Nov. 4, 2022), our Court reversed the suppression of a
gun found during a motor vehicle stop where an officer observed the gun,
through an open passenger door window, in plain view on the rear floorboard
of the defendant’s car. Id. at *2. Like Davis, the defendant was charged with
various firearms’ offenses. On appeal, the Commonwealth argued that
pursuant to the plain view doctrine, the firearm evidence was admissible
where the officers were permitted to restrain the defendant and access the
gun for their own safety. Id. at *3. Although the Court acknowledged the
holding in Alexander, supra, it found that “the decision in Alexander does
not address the plain view exception or any alterations to its requirements.”
Id. at *6. Specifically, the Court opined that “where the circumstances permit
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an application of the plain view exception, we need not apply Alexander.”
Id.
Thus, to the extent that Davis claims Alexander requires the
Commonwealth to prove exigent circumstances where the officers have
lawfully seized an object under the plain view doctrine, he is mistaken.19 See
Smith, supra at *5 (when plain view applies, Alexander not applicable);
McMahon, supra at 174 (declining to find Alexander modified plain view
doctrine); see also Lutz, supra at 576 (concluding Alexander did not impact
Court’s ruling because decision did not “rest upon the analytical underpinnings
of the automobile exception to the warrant requirement,” but upon, among
other things, application of plain view exception to warrant requirement). 20
With regard to the first and second prongs of the plain view doctrine,
Davis concedes that Officer Levitt saw the gun from a lawful vantage-point
(public sidewalk) and that the incriminating nature of the contraband was
immediately apparent to the officer where a police record check revealed that
Davis did not have a permit to carry the firearm. Collins, supra.
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19Although the trial court concluded that exigent circumstances existed in the
present case to further justify the warrantless seizure of the gun, it is well
settled that we may affirm the trial court on different grounds.
Commonwealth v. Thompson, 778 A.2d 1215, 1223 n.6 (Pa. Super. 2001).
20The Supreme Court in Alexander also acknowledged the defendant’s claim
that “the number of other exceptions to the warrant requirement often present
in automobile cases[], including voluntary consent, exigent circumstances
that make it too difficult to obtain a warrant, and plain view.” Alexander,
supra at 192 (emphasis added).
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With regard to the third prong of the doctrine, we conclude that the
Commonwealth proved that Office Levitt had a lawful right of access to the
gun where Davis was still under investigation, and, in securing Davis’ vehicle
that was illegally parked on the side of Allegheny Avenue with the driver’s
door open, the officers had no advance notice and opportunity to obtain a
warrant with respect to the gun they observed under the car’s driver's seat.
See Brown, supra at 557 (third prong of plain view doctrine satisfied where
officer observed, from legal vantage point (public street), what appeared to
be incriminating evidence (black handgun), in plain view on floor of
defendant’s minivan behind driver’s seat, and police had no advanced notice
of defendant’s decision to rob store or opportunity to obtain warrant before
observing gun in plain view; under such circumstance, not reasonably
practicable to expect police to obtain warrant); see also Heidelberg, supra
(officers had lawful right of access to vehicle where defendant was under
arrest, and, in securing defendant’s illegally-parked vehicle, they plainly saw,
through open driver’s side window, contraband on driver’s seat and center
console, and officers had no advance notice and opportunity to obtain warrant
with respect to contraband they observed).
Thus, because the trial court’s factual findings are supported by the
evidence of record and its legal conclusions are correct, Blair, supra, we
conclude that the trial court did not abuse its discretion in denying suppression
of the handgun.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2022
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