Com. v. Dunbar, B.

J-A07027-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BILLY DUNBAR :
:
Appellant : No. 413 EDA 2022
Appeal from the Judgment of Sentence Entered September 1, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006369-2018
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 06, 2023
Billy Dunbar appeals from the judgment of sentence entered following
his convictions for persons not to possess a firearm, carrying a firearm without
a license, and carrying a firearm in public in Philadelphia.1 Dunbar challenges
the trial court’s denial of his motion to suppress. We affirm.
We glean the following facts from the hearing on the motion to suppress.
On June 26, 2018, around 9:00 p.m., Sergeant Matthew Notiff of the
Philadelphia Police Department was on assigned patrol on Frankford Avenue,
in Philadelphia, along with Officers Manes and Halloway. N.T., 6/17/21, at 6.
Sergeant Notiff testified that Frankford Avenue is a high-crime area and his
team specialized in shootings, robberies, and aggravated assaults. Id. He
stated that he received a flash report over the police radio that there was a
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1 18 Pa.C.S.A. §§ 6105, 6106, and 6108, respectively.
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shooting at 5140 Leaper Street and that “a known doer, Billy Dunbar, [was]
wanted for an [aggravated] assault with a handgun.” Id. at 6, 12. Sergeant
Notiff testified that the officers’ flash report was a “really detailed, good
verified flash” and identified Dunbar by name. Id. at 6, 16. It also stated that
he was a black male wearing a white button-up shirt, carrying a duffle bag
over his shoulder with a handgun inside, and was last seen in the area of
Brian’s Sports Bar on Frankford Avenue, which is three blocks away from 5140
Leaper Street. Id. at 6-7, 10-11, 16. Sergeant Notiff further testified that his
team had “a picture of Mr. Dunbar, a physical description, and his face that
was pulled up on the mobile data terminal, so we knew what his facial features
looked like.” Id. at 8.
Sergeant Notiff and Officers Manes and Halloway went to Brian’s Sports
Bar and observed Dunbar seated at the bar. Id. at 7. There were at least five
other patrons at the bar. Id. at 12-13. Sergeant Notiff asked Dunbar his name
at least twice, but he did not respond. Id. at 7, 18. Dunbar finally said his
name was “William.” Id. Sergeant Notiff stated that Dunbar matched the exact
description of the person on the flash report that was sent out over the police
radio. Id. at 7, 14. He observed that Dunbar was carrying a duffle bag “around
his chest, draped over his shoulder.” Id. at 7-8. Sergeant Notiff testified that
the duffle bag was in the front region of Dunbar’s body near his chest and was
“[i]n his immediate area of control.” Id. at 15. The officers then detained
Dunbar and “took the duffle bag for safety[.]” Id. at 8. Sergeant Notiff stated
that after he took the duffle bag, he immediately felt something weighing it
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down, and based on his experience as a police officer, he could tell a firearm
was inside the bag. Id. at 8, 15-16, 19. He said that the heaviness felt like
when he would transport his own handgun in a duffle bag. Id. at 8, 16-17.
Sergeant Notiff testified that based off the verified information in the flash
report that Dunbar was carrying a handgun in a duffle bag, he secured the
weapon. Id. at 17. Sergeant Notiff opened the bag and recovered a loaded
semi-automatic handgun with an extended magazine in it, as well as an
additional magazine. Id. at 9-10.
The trial court denied Dunbar’s motion to suppress. Dunbar proceeded
to a bench trial, and the court found him guilty of the above-referenced
offenses. The court sentenced him to five to ten years of incarceration and a
consecutive seven-year term of probation. This appeal followed.
Dunbar raises the following issue:
Did not the trial court err in denying the motion to suppress
evidence where an officer, without a warrant or exigent
circumstances, seized a backpack from [Dunbar’s] person, opened
and viewed the contents of that backpack, and then further
searched the backpack, retrieving from that backpack a handgun
and gun clips?
Dunbar’s Br. at 3.
Dunbar argues the court erred in denying his motion to suppress
because the warrantless search of his duffle bag was illegal. Id. at 14. He
contends that at the time of the search of the bag, he was under the custody
and control of the police officers and the bag was beyond his immediate reach.
Id. at 21. Dunbar argues he had complied with the officers’ directives, offered
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no resistance, and made no moves towards the bag when Sergeant Notiff
stepped away and looked inside of it. Id. at 13, 22. He maintains he had no
opportunity to access the bag once it was removed from his shoulder. Id. at
22. According to Dunbar, “even if the police possessed probable cause to
arrest [him] for firearms violations and assault, and even if the police had
probable cause to believe that the bag contained a firearm, no exigent
circumstances existed to justify the immediate search of the bag without first
obtaining a warrant.” Id. at 13.
We review a trial court’s denial of a suppression motion to determine
“whether the suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are correct.”
Commonwealth v. Mackey, 177 A.3d 221, 226 (Pa.Super. 2017) (quoting
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)). “Where the
suppression court’s factual findings are supported by the record, we are bound
by these findings and may reverse only if the court’s legal conclusions are
erroneous.” Id. (quoting Jones, 988 A.2d at 654). Our scope of review
includes only the suppression hearing record. Id. We view the record in the
light most favorable to the Commonwealth as the prevailing party. See
Commonwealth v. Mathis, 173 A.3d 699, 706 (Pa. 2017).
The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of the Pennsylvania Constitution protect against unreasonable
searches and seizures. “A search conducted without a warrant is deemed to
be unreasonable and therefore constitutionally impermissible, unless an
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established exception applies.” Commonwealth v. Romero, 183 A.3d 364,
396 (Pa. 2018) (citation omitted).
One such exception is the search incident to an arrest. Commonwealth
v. Simonson, 148 A.3d 792, 797 (Pa.Super. 2016). “The search incident to
arrest exception allows arresting officers, in order to prevent the arrestee from
obtaining a weapon or destroying evidence, to search both the person arrested
and the area within his immediate control.” Id. at 799 (citation and brackets
omitted). The scope of such a search includes containers and clothing that are
in the arrestee’s possession at the time of his arrest. See Commonwealth v.
Guzman, 612 A.2d 524, 526-27 (Pa.Super. 1992), abrogated on other
grounds, Commonwealth v. Bell, 645 A.2d 211 (Pa. 1994) (finding that
satchel carried by arrestee at time of arrest was lawfully searched incident to
the arrest); Commonwealth v. Trenge, 451 A.2d 701, 710 (Pa.Super. 1982)
(holding police lawfully searched shoulder bag that was on arrestee when he
was arrested). Additionally, a warrantless search incident to an arrest must
be “substantially contemporaneous with the arrest and [is] confined to the
immediate vicinity of the arrest.” Commonwealth v. Wright, 742 A.2d 661,
665 (Pa. 1999) (quoting Shipley v. California, 395 U.S. 818, 819 (1969)).
Here, Dunbar does not argue that the police lacked probable cause to
arrest him. Rather, he contends that the search of his bag was unlawful
because he could not exercise control over the bag once it was removed from
him. As previously noted, a search incident to an arrest includes the search of
the person and the immediate area in which he was detained, as well as
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clothing and containers in his possession at the time of arrest. The record
indicates that Dunbar was carrying the duffle bag over his shoulder at the time
the police had probable cause to arrest him. Further, the search of the bag
was made substantially contemporaneously with Dunbar’s arrest. See
Wright, 742 A.2d at 665. Since probable cause existed to arrest Dunbar, and
Dunbar’s person was searched incident to a legal arrest, the evidence obtained
from the search of his bag was properly admitted.2
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2023
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2 It is irrelevant whether the officers formally announced they were arresting
Dunbar before conducting their search. “[A] search conducted immediately
prior to an arrest is as valid as a search conducted subsequent and incident
to the arrest provided the officer had probable cause to arrest prior to the
search as long as the contraband discovered in the search is not used as
justification or probable cause for the arrest.” Trenge, 451 A.2d at 710, n.8.
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