Com. v. Brown, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIF SALAH BROWN :
:
Appellant : No. 2897 EDA 2019
Appeal from the Judgment of Sentence Entered September 10, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0004051-2018
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 14, 2020
Sharif Salah Brown appeals from the judgment of sentence, entered in
the Court of Common Pleas of Lehigh County, after he was convicted by a jury
of one count each of possession with intent to deliver (PWID) a controlled
substance—cocaine,1 possession of a controlled substance—cocaine,2
possession of drug paraphernalia,3 and possession of a small amount of
marijuana.4 After careful review, we affirm.
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
2 35 P.S. § 780-113(a)(16).
3 35 P.S. § 780-113(a)(32).
4 35 P.S. § 780-113(a)(31).
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At approximately 2:00 p.m. on July 25, 2018, plain-clothed Detective
Evan Weaver of Allentown Police Department was conducting surveillance on
the 500 block of Pioneer Street in an unmarked vehicle. N.T. Suppression
Hearing, 12/17/18, at 8-9. Detective Weaver, an FBI task-force officer, was
surveilling a window tint and audio shop after having been told by “cooperating
individuals” that marijuana was being sold out of the garage. Id. at 8-10.
Detective Weaver, assigned to the Vice and Intelligence Unit since 2001,
classified the area as a “high drug area.” Id. at 10. Detective Weaver had
conducted prior investigations and made arrests in that vicinity. Id. Detective
Weaver observed an “orangish-color” BMW arrive at the garage and park on
Pioneer Street. Id. The car’s driver and sole occupant exited the car with
nothing in his hands, entered the garage, and exited the garage less than one
minute later holding “a small object.” Id. at 10-11. The driver then reentered
the BMW and pulled out into traffic. Id. at 11. Detective Weaver subsequently
identified Brown as the driver of the BMW. Id.
Detective Weaver followed the BMW as it proceeded south on Pioneer
Street and then westbound to Liberty Street. Id. As the BMW headed south
on 9th Street, Detective Weaver observed the car drive through a steady red
light at the intersection of 9th and Chew Streets. Id. At that moment,
Detective Weaver called for a marked police unit to stop the vehicle for the
traffic infraction. Id. at 12. Uniformed Police Officer Talden Cashatt
responded to the detective’s request and effectuated a traffic stop of the BMW
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at the 1000 block of Linden Street. Id. at 13.5 Brown immediately pulled
over and parked the BMW. Id. Officer Cashatt approached the driver’s side
of the vehicle and asked Brown for his license and registration. Id. at 40-41.
Brown handed the officer his Pennsylvania Driver’s license and registration.
Id. at 41.
Detective Weaver observed Officer Cashatt pull over the BMW; the
detective parked his own unmarked car approximately 200 feet away in an
open parking spot. Id. Detective Weaver and two other detectives then
approached the driver’s side of the BMW as Office Cashatt returned to his
marked patrol car with Brown’s license and registration. Id. at 13-14, 40.
Detective Weaver, with his badge around his neck, identified himself to Brown
as a member of the Vice Unit, and spoke with him briefly. Id. at 13-14. At
that point, Detective Weaver testified that he “immediately observed a change
in [Brown’s] demeanor. He became very nervous. He began sweating
profusely.” Id. at 13. Detective Weaver then asked Brown to step out of the
car and move to the rear of the vehicle “so [he] could talk to him.” Id. Brown
complied, exited the BMW, and walked to the back of the vehicle. Id. at 15.
Detective Weaver said Brown was very “cordial” and “nice” as they talked6 at
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5 Officer Cashatt testified that he kept in constant contact with Detective
Weaver when he was effectuating the traffic stop, receiving updated locations
of the BMW from the detective. N.T. Suppression Hearing, 12/17/18, at 39.
6 Detective Weaver testified that he asked Brown “where he had come from
[so that he could] see if [Brown] was going to be truthful [and] tell[ him] he
stopped at the garage.” Id. at 15-16.
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the back of the BMW. Id. Moments after Brown exited the car and walked
to the back of the vehicle, Officer Cashatt notified Detective Weaver that there
were drugs, in plain view, inside Brown’s vehicle. Id. at 15-16. Officer
Cashatt testified that, based on his training and experience, the item on the
car’s floorboard, in plain view, appeared to be a bag of marijuana. Id. Officers
subsequently conducted a search of the interior of the BMW. Id. at 42-43.
Pursuant to that search, Officer Cashatt discovered more suspected narcotics,
later determined to be powder and crack cocaine, in the vehicle’s center
console. Id. at 43.7
Brown was handcuffed, placed in Officer Cashatt’s marked patrol
vehicle, and taken to the police station.8 Id. at 16. At the station, Brown
signed a Miranda9 waiver and agreed to speak with Detective Weaver and
Allentown Police Detective Brian Murray. Brown admitted that he had
purchased the cocaine found in the center console and intended to sell it. He
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7The items found in the center console included two knotted bags containing
powder cocaine, one knotted bag that contained crack cocaine, and two
smaller bags that contained crack cocaine, with a total weight of
approximately 8 grams. Id. at 44.
8 In exchange for his agreement to cooperate with law enforcement, Brown
was not cited for the offenses on the day of the stop. Id. After several
unsuccessful attempts to reach Brown following his release on the date of the
stop, Detective Brian Murray filed a warrant on the above-referenced drug
charges. Id.
9 Miranda v. Arizona, 384 U.S. 436 (1966).
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further admitted that he attempted to convert the powder cocaine into crack
cocaine, but was unable to do so because of the poor quality of the product.
Brown was arrested on August 21, 2018, and charged with the above-
stated offenses. On November 14, 2018, Brown filed a pre-trial motion to
suppress all of the items seized from his person and vehicle, as well as any
statements that he made to law enforcement officials on the day of the vehicle
stop. In the motion, Brown alleged that the officers had no legal justification
to stop his vehicle, detain him after his car was stopped, or search his vehicle
and seize him. He further argued that because the search and seizure was
unconstitutional, any statements he made to investigating officers when he
was questioned at the station following the stop were the “fruit of the
poisonous tree” and should be suppressed.
On December 17, 2018, the court held a suppression hearing where
Detective Weaver, Officer Cashatt and Detective Murray testified. At the
conclusion of the suppression hearing, the court asked defense counsel
whether he wished to make argument or submit a memo on the suppression
issues. Id. at 55.10 Counsel stated that he wished to submit a memorandum
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10We recognize, however, that under Pennsylvania Rule of Criminal Procedure
518 (I):
At the conclusion of the hearing, the judge shall enter on the
record a statement of findings of fact and conclusions of law as to
whether the evidence was obtained in violation of the defendant’s
rights, or in violation of these rules or any statute, and shall make
an order granting or denying the relief sought.
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of law. Id. Counsel submitted a memo on January 29, 2019; on February 8,
2019, the Commonwealth filed a brief in opposition. The court denied the
suppression motion on February 13, 2019. In its opinion accompanying the
order denying suppression, the court found that even though Detective
Weaver’s stop was pretextual, because he also observed a violation of the
Motor Vehicle Code (MVC), he legally stopped Brown’s car. Trial Court Pre-
Trial Suppression Opinion, 2/13/19, at 3. The court further concluded that it
was of no moment that the detective did not cite Brown for a MVC violation
where such a decision is within the officers’ discretion. Id. at 4. Finally, the
court found that Detective Weaver was permitted to request that Brown exit
his car during a lawful traffic stop. Id. at 5. In its summation, the court
stated:
Accordingly, the stop of the vehicle was lawful, the marijuana
observed by Officer Cashatt was in plain view, Officer Cashatt’s
observations of the marijuana established probable cause to
search the vehicle, and it was lawful to require [Brown] to alight
from the vehicle. In light of the propriety of the search, the
statements made by [Brown] were not “fruit of the poisonous
tree.”
Id.; see also Trial Court Rule 1925(a) Opinion, 2/3/20, at 8 (same).
After a jury trial, Brown was convicted of all charges. The court ordered
a presentence investigation report and mental health evaluation. On
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Pa.R.Crim.P. 508(I).
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September 10, 2019, the trial court sentenced Brown to 30-84 months’
imprisonment for PWID and ordered him to pay the costs of prosecution on all
other counts. Brown was deemed eligible to participate in the Risk Recidivism
Reduction Incentive (RRRI) program.11 Brown filed a timely notice of appeal12
and court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal. On appeal, Brown presents the following issue for our
consideration: “Whether the police, in stopping [Brown’s] vehicle and
confronting [him], had a lawful basis for doing so and whether or not the lower
court erred in denying [Brown’s] request to have the arrest, questioning[,
and] search of the vehicle suppressed?” Appellant’s Brief, at 7.
Our standard of review on appeal of the denial of a motion to suppress
is to determine whether the certified record supports the suppression court’s
factual findings and the legitimacy of the inferences and legal conclusions
drawn from those findings. Commonwealth v. Gould, 187 A.3d 927, 934
(Pa. Super. 2018). We consider only the evidence of the prosecution’s
witnesses and so much of the defense’s evidence as, fairly read in the context
of the record as a whole, remains uncontradicted. Id. If the record supports
the factual findings of the suppression court, we will reverse only if there is
an error in the legal conclusions drawn from those factual findings. Id.
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11 See 61 Pa.C.S. §§ 4504-4505.
12On October 8, 2019, trial counsel moved to withdraw. On October 28, 2019,
the court granted counsel’s request and appointed counsel for appeal, Joseph
Todd Schultz, Esquire.
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Where a traffic stop is “based on the observed violation of the Vehicle
Code or [an] otherwise non-investigable offense, an officer must have
probable cause to make a constitutional vehicle stop. [A] police officer has
probable cause to stop a motor vehicle if the officer observes a traffic code
violation, even if it is a minor offense.” Commonwealth v. Gurung, -- A.3d
--, 2020 Pa. Super. 226 at *6 (Pa. Super. 2020) (citations omitted). During a
stop, an officer has the right to check the vehicle registration, the driver’s
license, and any other information required to enforce the MVC.
Commonwealth v. Mack, 953 A.2d 587, 589 (Pa. Super. 2008). Moreover,
police may request a driver to alight from a lawfully stopped car, as a matter
of right, without reasonable suspicion that criminal activity is afoot.
Pennsylvania v Mimms, 434 U.S. 106 (1977); Commonwealth v. Brown,
654 A.2d 1096, 1102 (Pa. Super. 1995). See Commonwealth v. Pratt, 930
A.2d 561, 567-68 (Pa. Super. 2007) (“[A]llowing police officers to control all
movement in a traffic encounter . . . is a reasonable and justifiable step
towards protecting their safety.”). Finally, our United States Supreme Court
has held that any violation of the MVC, even a minor violation, “legitimizes a
stop, even if the stop is merely a pretext for an investigation of some other
crime.” Commonwealth v. Harris, 176 A.3d 1009, 1020 (Pa. Super. 2017)
(despite officer’s subjective motive (i.e., pretext) to stop defendant’s vehicle
to investigate potential drug crimes, uncontradicted evidence that defendant
violated MVC gave officer probable cause to stop vehicle, ask defendant
questions, and ask him to exit vehicle; based on totality of circumstances,
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officer had reasonable suspicion to detain defendant and conduct K-9 sniff of
exterior of vehicle after initial traffic stop).13
Here, Officer Cashatt acted lawfully in conducting a vehicle stop of
Brown’s BMW after Detective Weaver observed Brown drive through a steady
red traffic light, in violation section 3112(a)(3) of the MVC. See 75 Pa.C.S. §
3112(a)(3).14 Detective Weaver was also permitted to ask Brown to step out
of the car, even in the absence of any particularized suspicion of criminal
activity during the stop.15 Mimms, supra at 111 (“What is at most a mere
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13 To the extent that Brown argues the police were required to charge him
with an MVC violation, in Commonwealth v. Snell, 811 A.2d 581 (Pa. Super.
2002), we pointed out that the issuance of a citation by an officer for a
violation of the MVC is a matter within the sole discretion of that officer. Id.
at 584. See Commonwealth v. Spieler, 887 A.2d 1271 (Pa. Super. 2005)
(even though officer stopped car for suspected MVC violations and only
arrested defendant for DUI, stop proper because officer articulated sufficiently
specific facts for probable cause that defendant had violated MVC).
14 While the trial court did not explicitly state that it found Detective Weaver’s
testimony credible on this point, it essentially verified his credibility when it
stated that “[t]he uncontradicted testimony of Detective Weaver
demonstrates a Vehicle Code transgression, and probable cause to stop the
vehicle was established.” Trial Court Pre-Trial Suppression Opinion, 2/13/19,
at 4.
15 Although not legally necessary, see Mimms, supra, Brown’s sudden
change in behavior, once Detective Weaver identified himself as a member of
the vice squad, certainly raised the detective’s suspicion that criminal activity
may be afoot. Moreover, where Officer Cashatt had not yet returned Brown’s
license and registration to him and told him he was free to leave, this is not a
situation where we have either an impermissible extension of an initial valid
stop or an illegal detention that would require reasonable suspicion or
probable cause. Cf. Commonwealth v. Dales, 820 A.2d 807 (Pa. Super.
2003) (when purpose of initial, valid traffic stop has concluded and reasonable
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inconvenience [to a driver who is asked to step out of his or her car during a
traffic stop] cannot prevail when balanced against legitimate concerns for the
officer’s safety). Commonwealth v. Freeman, 757 A.3d 903, 907 n.4 (Pa.
2000) (following lawful traffic stop, officer may order both driver and
passengers of vehicle to exit vehicle for duration of initial stop, even absent
reasonable suspicion that criminal activity is afoot). Just moments after
Brown exited and walked to the back of his vehicle, Officer Cashatt observed
drugs in plain view on the driver’s side floor of the BMW. N.T. Suppression
Hearing, 12/17/18, at 42 (Officer Cashatt testified that “as soon as [Brown]
stepped out of the vehicle and started walking toward the back [of the car],
in plain view on the driver’s side on the floor board was a clear plastic bagg[ie]
containing green vegetable matter that is common with the appearance of
marijuana.”); id. at 16 (Detective Weaver testified that “[I]t was relatively
quick when they located the drugs.”). See also id. at 30 (Detective testifying
at suppression hearing that “[i]t was very early on [in the stop] when [I] first
spoke [] with Brown.”).
Instantly, the trial court found that Officer Cashatt had probable cause
to conduct a warrantless search of the interior of Brown’s vehicle once he
observed the marijuana in plain view on the floor of the BMW. See Trial Court
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person would not have believed he was free to leave, subsequent round of
questioning by police not supported by reasonable suspicion or probable cause
is unlawful detention; even consensual search is illegal where preceded by
unlawful detention unless Commonwealth proves sufficient break in causal
chain between illegality and seizure of evidence).
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Pre-Trial Suppression Opinion, 2/13/19, at 2, 5; Trial Court Rule 1925(a)
Opinion, 2/3/20, at 8. In Horton v. California, 496 U.S. 128 (1990), the
United States Supreme Court adopted a three-pronged test for application of
the plain view doctrine: (1) the police must observe the object from a lawful
vantage-point; (2) the incriminating character of the object must be
immediately apparent; and (3) the police must have a lawful right of access
to the object. Id. at 136-37. The Pennsylvania Supreme Court adopted this
three-pronged test in two subsequent cases, Commonwealth v. McCullum,
602 A.2d 313, 320 (Pa. 1992), and Commonwealth v. Graham, 721 A.2d
1075, 1079 (Pa. 1998). In Commonwealth v. Brown, 23 A.3d 544 (Pa.
Super. 2011), our Court defined what the phrase lawful right of access to an
object means under the plain view doctrine, stating “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 officer with a lawful right of access to seize the object.”
Id. at 556-67.
Here, Officer Cashatt observed the substance of the clear baggie on the
floor of the BMW from a lawful vantage point—a public street. Moreover,
based on the officer’s professional experience, he believed that the green
vegetable-like matter was marijuana. Finally, because the officer was in the
process of conducting a lawful traffic stop and it was not reasonably
practicable to expect him to obtain a warrant prior to seizing the contraband,
he had a lawful right of access to the object. Brown, supra. Thus, we find
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that the plain view doctrine applies and that Officer Cashatt had probable
cause to seize the suspected marijuana he saw on the driver’s side floor board
of Brown’s vehicle.
We also conclude, based on a totality of the circumstances, that Officer
Cashatt had probable cause to conduct a warrantless search of the interior of
Brown’s vehicle and seize the contraband found therein.16 In
Commonwealth v. Luv, 735 A.2d 87 (Pa. 1999), our Supreme Court stated:
Probable cause exists where the facts and circumstances within
the officers’ knowledge are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is
being committed. With respect to probable cause, this [C]ourt
adopted a “totality of the circumstances” analysis [which] . . .
dictates that we consider all relevant facts, when deciding whether
[the officer had] probable cause.
Id. at 90 (citations omitted). Here, the following additional factors contributed
to the finding of probable cause to search Brown’s vehicle following Officer
Cashatt’s plain view of marijuana on the car’s floor: (1) the fact that Detective
Weaver had just seen Brown, immediately prior to the lawful traffic stop, enter
and quickly exit a garage that was being surveilled as the subject of a narcotics
investigation, with a small object in his hand; (2) Brown’s drastic change in
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16Although not specifically raised on appeal, we note that Officer Cashatt was
permitted to search the center console of the vehicle. If police have the
requisite probable cause to search a vehicle for contraband, they are
permitted to search the passenger compartment where the contraband in
question could be concealed, such as a center console. See Commonwealth
v. Scott, 210 A.3d 359 (Pa. Super. 2019).
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demeanor (nervousness and profuse sweating) upon Detective Weaver
identifying himself at the initiation of the stop; (3) the fact that the stop
occurred in a high-crime area;17 (4) Officer Cashatt’s 11 years of experience
on the police force during which he has made numerous arrests for marijuana;
and (5) Detective Weaver’s more than 6½ years of narcotics experience and
position on the FBI task-force. See Scott, supra (where officer smelled odor
of burnt marijuana and saw small amount of contraband in plain view in
vehicle, probable cause existed to search passenger compartment, not trunk,
of vehicle); Commonwealth v. Runyan, 160 A.3d 831 (Pa. Super. 2017)
(police officer had probable cause to conduct warrantless search of vehicle
after detecting odor of burnt marijuana coming from vehicle’s area, observing
what appeared to be small bag of marijuana on back seat passenger side floor,
and noticing driver’s furtive behavior when police brought bag of marijuana to
attention of car’s occupants). See also Commonwealth v. Gary, 91 A.3d
102, 138 (Pa. 2014) (plurality) (“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.”); Commonwealth v. McCree, (Pa.
2007) (probable cause to search interior of vehicle existed based on limited
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17 But see Commonwealth v. Barr, -- A.3d --, 2020 Pa. Super. 236, at *57
(Pa. Super. 2020) (Strassburger, J., concurring) (“I write separately to note
my discontent with the Commonwealth’s reliance on the “high-crime area”
factor in support of a finding of probable cause. I believe that the status of
the neighborhood at issue as a “high-crime area” should not be relevant to
the probable cause determination. People who live in poor areas that are
riddled with crime do not have fewer constitutional rights than people who
have the means to live in “nice” neighborhoods.”).
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automobile exception where, under totality of circumstances, officer observed
pill bottle in plain view in vehicle stopped in area well-known for illegal
prescription drug sales, officer was aware of other officer’s pre-planned drug
buy with passenger in defendant’s vehicle, and there was no advanced
warning that defendant or his car would be target of police investigation).
Having found probable cause existed to conduct a search of the interior
of Brown’s vehicle, the search and seizure were legal in the instant case, and
thus, any subsequent statements Brown made to detectives after being
Mirandized were not “fruit of the poisonous tree.” See Commonwealth v.
Shabezz, 166 A.3d 278, 287 (Pa. 2017) (holding that evidence derived from
illegal automobile search constitutes fruit of poisonous tree as result of illegal
seizure).
Judgment of sentence affirmed.18
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18 We recognize our Court’s recent decision, Barr, supra, where we addressed
whether the odor of marijuana alone per se establishes probable cause to
conduct a warrantless search of a vehicle (known as the “plain smell”
doctrine). There, our Court found that “[w]hile the odor of marijuana may
contribute to a finding of probable cause, as possession of marijuana remains
illegal generally, the odor alone does not imply individualized suspicion of
criminal activity.” Id. at *51 (emphasis added). Our Court discussed factors
that a trial court should consider, in addition to the odor of burnt marijuana,
which could support a finding of probable cause. See id. at *49-51.
Barr noted that the plain smell doctrine, which was premised upon “the
previously universal fact of marijuana’s illegality and its distinctive odor[,]” id.
at *25, “has necessarily been diminished by the M[edical] M[arijuana] A[ct]
in Pennsylvania.” Id. at *26. The Medical Marijuana Act (the Act), 35 P.S.
§§ 10231.1101-10231.2110, is “a temporary measure, pending Federal
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approval of and access to medical marijuana through traditional medical and
pharmaceutical avenues.” See 35 P.S. § 10231.102(4). The Pennsylvania
Department of Health (DOH) administers and enforces the Act, which was
approved on April 18, 2016, see Act 2016-16 (S.B. 3), § 102, and became
effective on May 18, 2016. Section 10231.303 of the Act allows for the limited
lawful use of medical marijuana. In its May 2020 report, the DOH noted that,
as a result of the Medical Marijuana Advisory Board’s recommendation in the
final report authorized by the Act, “dry leaf or plant form for
administration by vaporization became an acceptable form of medical
marijuana for Pennsylvania patients effective May 17, 2018.” PA
Department of Health Two-Year Final Report, 5/15/20, at 2 (emphasis added).
“Dry leaf was made available for purchase by certified patients and approved
caregivers in permitted dispensaries in August 2018.” Id. A “dispensary” is
defined under the Act as “[a] person, including a natural person, corporation,
partnership, association, trust or other entity, or any combination thereof,
which holds a permit issued by the [DOH] to dispense medical marijuana. The
term does not include a health care medical marijuana organization
under Chapter 19.” 35 P.S. § 10231.103 (emphasis added). See 35 P.S. §
10231.1901 (defining “Health care medical marijuana organization” as “[a]
vertically integrated health system approved by the department to dispense
medical marijuana or grow and process medical marijuana, or both, in
accordance with a research study under this chapter.”) (emphasis added).
Thus, a dispensary is not the sole means by which a certified patient or
approved caregiver could obtain medical marijuana, even prior to August
2018.
However, because we cannot ascertain from the record whether Brown,
specifically, could have legally obtained dry leaf marijuana before his vehicle
was searched, and where remanding this case for such a determination would
not change our result, we do not analyze or discuss the implications of
applying Barr to the instant facts. Rather, we leave for another day the issue
as to whether an officer’s observation of a legal form of medical marijuana
(such as dry leaf in the instant case) in a clear baggie in plain view during a
legal traffic stop per se establishes probable cause to conduct a warrantless
search of that vehicle.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/14/20
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