Com. v. Way, D.

J-S16022-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD LEE WAY :
:
Appellant : No. 1449 EDA 2019
Appeal from the Judgment of Sentence Entered April 16, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003558-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: Filed: July 30, 2020
Donald Lee Way appeals from the judgment of sentence entered
following his convictions for possession with intent to deliver a controlled
substance (“PWID”), possession of drug paraphernalia, and institutional
vandalism.1 He challenges the trial court’s denial of his motion to suppress.
We affirm.
Way’s convictions stem from what began as a traffic stop. During this
traffic stop, officers searched Way’s vehicle and they arrested and charged
him with the above referenced offences. Way filed a motion to suppress
arguing that the search of the vehicle was illegal because the officers did not
have probable cause. See N.T., Motion to Suppress, 10/19/18, at 3.
____________________________________________
1 35 Pa.C.S. §§ 780-113(a)(30), (32) and 18 Pa.C.S.A. § 3307(a)(3),
respectively.
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The trial court summarized its findings of facts from the motion to
suppress hearing as follows:
On April 9, 2018, at approximately 8:30 PM, in the area of
Bailey Road and Orchard Avenue in Yeadon, Delaware
County, Officer Leah Cesanek initiated a stop on a Honda
Coupe with expired registration. (N.T. 10/19/18, p. 6). The
vehicle turned onto Orchard Road and pulled over to the side
of the road. (N.T. 10/19/18, p. 7). When the vehicle
stopped, [Way] stepped out and despite being ordered back
into the car, refused to do so. (N.T. 10/19/18, p. 9) [Way]
did not park the car legally. (N.T. 10/19/18, p. 12). [Way]
was the sole occupant in the car. (N.T. 10/19/18, p. 9).
Once again, after the Officer told [Way] to get back into the
car, he refused and proceeded to run up Orchard Avenue.
(N.T. 10/19/18, p. 9). [Way] did not close the driver's side
door. (N.T. 10/19/18, p. 19). Officer Cesanek pursued
[Way], who was caught by another officer. (N.T. 10/19/18,
p. 9). Sergeant Reynolds stayed with the vehicle during the
pursuit. (N.T. 10/19/18, p. 9). [Way] was searched and then
placed in the back of Officer McGrenera's patrol car. (N.T.
10/19/18, p. 9). Upon inspection of [Way’s] car, Officer
Cesanek observed through the open driver's side door a
clear plastic baggie with "green vegetable -like matter" that
the officer believed to be marijuana. (N.T. 10/19/18, p. 13).
Officer Cesanek also smelled a strong odor of fresh
marijuana coming from the vehicle. (N.T. 10/19/18, p. 13).
A search of [Way’s] vehicle led to the discovery of two
additional green plastic vials containing suspected
marijuana and one plastic baggie containing a second
baggie within that bag containing suspected marijuana.
(N.T. 10/19/18, p. 14). In the rear of the car was a Mason
jar containing 16 clear plastic baggies containing marijuana,
and an unopened box of plastic baggies that were identical
to the other plastic baggies in the car. (N.T. 10/19/18, p.
15). [Way’s] vehicle was subsequently towed. (N.T.
10/19/18, p. 16).
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Trial Ct. Op., filed 10/24/19, at 2. The court did not rule on the motion at the
hearing but eventually entered an order denying the motion. See Order, filed
10/22/18.
Way proceeded with a stipulated bench trial. See N.T., Trial 4/15/19 at
11. The next day, the court found Way guilty of the above-referenced offenses
and imposed concurrent sentences on each conviction: 11-1/2 to 23 months’
incarceration for PWID; 12 months’ probation for possession of drug
paraphernalia; and nine months’ probation for institutionalized vandalism.
See N.T., 4/16/19, at 3, 6. This timely appeal followed.
Way presents one issue before this Court:
Whether the suppression court erred when it failed to find
that the police conducted an unconstitutional, warrantless
search of Appellant's parked vehicle in light of the physical
evidence presented at the suppression hearing that the
vehicle door could not have remained open following
Appellant's exit, thus not subject to a permissible
warrantless search?
Way’s Br. at 4.
Our standard of review of the denial of a motion to suppress is well
settled:
[An appellate court's] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court's factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we
may consider only the evidence of the Commonwealth and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the suppression court's factual findings are
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supported by the record, [the appellate court is] bound by
[those] findings and may reverse only if the court's legal
conclusions are erroneous. Where ... the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court's legal conclusions are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below
are subject to [ ] plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa.Super. 2015) (quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).
Way claims that “the police were precluded from searching [Way’s]
parked vehicle without a warrant under [Arizona v.] Gant, [556 U.S. 332(2009),] since he was secured by police away from the vehicle[.]” Way’s Br.
at 11. He also alleges that the warrantless search is not valid because the
officer’s would not have observed anything “if the driver’s side vehicle door
was actually closed.” Id. at 12.
“Generally, a warrant stating probable cause is required before a police
officer may search for or seize evidence.” Commonwealth v. Bumbarger, -
-- A.3d ---, 2020 WL 1242438 at *7 (Pa.Super. 2020). However, the plain
view doctrine provides that “when an officer is lawfully in a position to view
an item, the incriminating nature of which is immediately apparent, he may
legitimately seize that item.” Commonwealth v. Zhahir, 751 A.2d 1153,
1160 (Pa. 2000). This doctrine applies if:
1) police did not violate the Fourth Amendment during the
course of their arrival at the location where they viewed the
item in question; 2) the item was not obscured and could be
seen plainly from that location; 3) the incriminating nature
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of the item was readily apparent; and 4) police had the
lawful right to access the item.
Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012)
(citation omitted).
Here, Officer Cesanek testified that he initially conducted a traffic stop
of Way’s vehicle because his vehicle’s registration was expired. An officer has
authority to stop a vehicle when the officer observes the driver commit a traffic
violation, and Way does not dispute that Officer Cesanek had the authority to
conduct a traffic stop of Way’s vehicle for his expired registration. See
Commonwealth v. Calabrese, 184 A.3d 164, 167 (Pa.Super. 2018)
(“Pennsylvania law makes clear that 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.”) (citation omitted).
Way’s argument is that Officer Cesanek could not have seen the drugs
in the vehicle because his driver side door was closed. However, the trial court
made a finding of fact that Way’s door was open, based on Officer Cesanek’s
testimony. Additionally, the trial court credited Officer Cesanek’s testimony
that he smelled a strong odor of marijuana as he approached the vehicle,
which invoked the plain smell doctrine, also giving him probable cause to
search the vehicle. See Commonwealth v. Stoner, 344 A.2d 633, 636
(Pa.Super. 1975) (plain smell of marijuana gives officer probable cause to
search vehicle); see also Commonwealth v. Batista, 219 A.3d 1199, 1206
(Pa.Super. 2019) (stating deference given to suppression court’s factual
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findings). As such, the trial court did not abuse its discretion in denying Way’s
motion to suppress.
His citation to Gant is inapposite. The Court in Gant held that “[p]olice
may search a vehicle incident to a recent occupant's arrest only if the arrestee
is within reaching distance of the passenger compartment at the time of the
search or it is reasonable to believe the vehicle contains evidence of the
offense of arrest.” Gant, 533 U.S. at 351. The search here was not a search
incident to arrest. We therefore affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/20
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