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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JERREL BIRCH
Appellee No. 63 EDA 2014
Appeal from the Order December 6, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009203-2013
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 03, 2016
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, which granted
the motion to suppress evidence filed on behalf of Appellee, Jerrel Birch. We
affirm in part, reverse in part, and remand for further proceedings.
The relevant facts and procedural history of this appeal are as follows:
Officer Yancer was on duty in full uniform and in a marked
police vehicle with his partner, Officer Makus, on June 29,
2013. At approximately 3:15 p.m., their tour of duty
brought them to the area of 4061 [Frankford] Avenue in
the City and County of Philadelphia. Officer Yancer
testified that he [smelled] the odor of burnt marijuana and
pulled into a gas station behind a grey Pontiac. Officer
Yancer observed [Appellee] standing outside the driver
side door of the vehicle. Officer Yancer then observed
[Appellee] grab something from his waistband and reach
toward the center console of the vehicle. Officer Yancer
approached the vehicle, which had two male passengers
and a female passenger. Once he arrived at the vehicle,
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he observed four vials of marijuana in plain view in the cup
holder. Officer Yancer then reached in and opened the
center console of the vehicle, and found a silver 380
Larson handgun. [Appellee] began walking away, and
Officer Yancer caught up with him, frisked him, and placed
him under arrest. [Appellee] admitted that he did not
have a license to carry a handgun. Officer Yancer then
obtained consent to search the vehicle from the vehicle’s
owner, who was one of the other passengers. No other
contraband was found in the vehicle.
(Trial Court Opinion, filed July 21, 2015, at 2) (internal citations omitted).
Procedurally, Appellee filed a suppression motion on November 18,
2013. The court held a suppression hearing on December 4, 2013, and
granted Appellee’s suppression motion on December 6, 2013. On January 6,
2014, the Commonwealth timely filed a notice of appeal1 and a voluntary
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The court also ordered the Commonwealth to file a Rule 1925(b)
statement on May 8, 2014, and the Commonwealth timely refiled the same
statement on May 15, 2014.
The Commonwealth raises the following issue for our review:
WHERE AN OFFICER APPROACHED A CAR BECAUSE IT
SMELLED LIKE MARIJUANA, SAW [APPELLEE] LEAN INTO
____________________________________________
1
The Commonwealth’s notice of appeal certifies that the court’s order
granting Appellee’s motion to suppress terminates or substantially handicaps
the prosecution. See Pa.R.A.P. 311(d); Commonwealth v. Huntington,
924 A.2d 1252, 1254 n.1 (Pa.Super. 2007), appeal denied, 593 Pa. 746, 931
A.2d 656 (2007) (stating: “The Commonwealth may take an appeal as of
right from an order that does not end the entire case if the Commonwealth
certifies in the notice of appeal that the order will terminate or substantially
handicap the prosecution”).
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THE CAR AND PUT AN OBJECT FROM HIS WAISTBAND
INTO THE CENTER CONSOLE, SAW MARIJUANA IN PLAIN
VIEW IN THE CAR, AND THEN OPENED THE CONSOLE AND
FOUND A GUN INSIDE, DID THE [SUPPRESSION] COURT
ERR IN SUPPRESSING THE MARIJUANA AND GUN ON THE
GROUND THAT THE OFFICER CONTINUED TO SEARCH THE
CAR, WITHOUT OBTAINING A WARRANT, AFTER FINDING
EVIDENCE OF A CRIME?
(Commonwealth’s Brief at 4).
The Commonwealth argues Officer Yancer had probable cause to
search the vehicle, based on the smell of marijuana, his observation of
marijuana in plain view in the cup holder of the vehicle, and the fact that he
saw Appellee put an unidentified object into the center console of the
vehicle. The Commonwealth submits the console search was lawful because
Officer Yancer had probable cause to believe there was contraband inside
the console, having seen marijuana in plain view in the cup holder. The
Commonwealth also asserts the search of the center console was proper as a
protective search because Officer Yancer and his partner were outnumbered
and Officer Yancer saw Appellee take an object from his waistband and put it
into the center console of the vehicle. The Commonwealth concludes we
should reverse the suppression court’s order. We agree in part.
When the Commonwealth appeals from a suppression order, the
relevant scope and standard of review are:
[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. As long as there is some
evidence to support them, we are bound by the
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suppression court’s findings of fact. Most importantly, we
are not at liberty to reject a finding of fact which is based
on credibility.
The suppression court’s conclusions of law, however, are
not binding on an appellate court, whose duty is to
determine if the suppression court properly applied the law
to the facts.
Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),
appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and
quotation marks omitted).
“[T]he Fourth Amendment to the United States Constitution and Article
I, § 8 of the Pennsylvania Constitution protect citizens from unreasonable
searches and seizures and, to that end, a search conducted without a
warrant is generally presumed unreasonable unless it is undertaken
pursuant to a recognized exception to the warrant requirement.”
Commonwealth v. Lechner, 685 A.2d 1014, 1016 (Pa.Super. 1996).
The level of probable cause necessary for warrantless
searches of automobiles is the same as that required to
obtain a search warrant. The well-established standard for
evaluating whether probable cause exists is the “totality of
the circumstances” test. This test allows for a flexible,
common-sense approach to all circumstances presented.
Probable cause typically exists where the facts and
circumstances within the officer’s knowledge are sufficient
to warrant a person of reasonable caution in the belief that
an offense has been or is being committed. The evidence
required to establish probable cause for a warrantless
search must be more than a mere suspicion or a good faith
belief on the part of the police officer.
Id. (internal citations omitted).
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The Pennsylvania Supreme Court recently held in Commonwealth v.
Gary, 625 Pa. 183, 91 A.3d 102 (2014), that Article I, Section 8 of the
Pennsylvania Constitution affords no greater protection with respect to
warrantless searches of motor vehicles than does the Fourth Amendment to
the United States Constitution. Id. at 242, 91 A.3d at 138. Under either
constitutional provision, “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.” Id. Additionally, “[i]f a car is
readily mobile and probable cause exists to believe it contains contraband,
the Fourth Amendment permits police to search the vehicle without more.”
Id. at 199, 91 A.3d at 111-12 (quoting Pennsylvania v. Labron, 518 U.S.
938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed. 2d 1031, ___ (1996)).
“[W]here an appellate decision overrules prior law and announces a
new principle, unless the decision specifically declares the ruling to be
prospective only, the new rule is to be applied retroactively to cases where
the issue in question is properly preserved at all stages of adjudication up to
and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228,
233, 469 A.2d 146, 148 (1983). See also Commonwealth v. Hudson, 92
A.3d 1235 (Pa.Super. 2014), appeal denied, ___ Pa. ___, 106 A.3d 724
(2014) (reviewing order granting defendant’s motion to suppress; applying
standard enunciated in Gary, which was decided after search of defendant’s
car and after trial court’s ruling on suppression motion).
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“Probable cause is made out when the facts and circumstances which
are within the knowledge of the officer at the time of the arrest, and of
which he has reasonably trustworthy information, are sufficient to warrant a
[person] of reasonable caution in the belief that the suspect has committed
or is committing a crime.” Commonwealth v. Thompson, 604 Pa. 198,
203, 985 A.2d 928, 931 (2009) (internal quotation marks omitted).
The question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require
only a probability, and not a prima facie showing, of
criminal activity. In determining whether probable cause
exists, we apply a totality of the circumstances test.
Id. (emphasis in original) (internal citations and quotation marks omitted).
Additionally, any issue not raised in a Rule 1925(b) statement will be
deemed waived for appellate review. Commonwealth v. Castillo, 585 Pa.
395, 888 A.2d 775 (2005). An appellant’s concise statement must identify
the errors to be addressed on appeal with sufficient specificity.
Commonwealth v. Dowling, 778 A.2d 683 (Pa.Super. 2001).
Instantly, the Commonwealth presented one issue in its Rule 1925(b)
statement, challenging the court’s suppression of the gun only. (See
Commonwealth’s Rule 1925(b) Statement, filed 5/15/14, at 1.)
Consequently, any argument on appeal concerning suppression of the
marijuana is waived for failure to preserve it in the concise statement. See
Castillo, supra; Dowling, supra.
With respect to the court’s suppression of the gun recovered from the
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vehicle, however, Appellee’s motion to suppress was still pending when Gary
was decided. The Supreme Court did not specifically declare its ruling in
Gary to be prospective only. Therefore, it applies to Appellee’s case. See
Cabeza, supra. To defeat Appellee’s suppression motion, the
Commonwealth needed only to prove Officer Yancer had probable cause to
believe the vehicle in question contained contraband. No exigency beyond
the inherent mobility of the vehicle was required. See Gary, supra.
Here, the suppression court implicitly found the existence of probable
cause, but based its ruling on Appellee’s reasonable expectation of privacy,
and the Commonwealth’s failure to prove exigent or other circumstances
existed to permit Officer Yancer’s warrantless search of the vehicle after
seeing in plain view evidence of the crime he suspected had occurred
(marijuana). In light of the Pennsylvania Supreme Court’s recent adoption
of the federal standard for analyzing vehicle searches in Gary, however, the
suppression court stated that under this new standard, it would have
reached a different result regarding Appellee’s motion to suppress.
Furthermore, the uncontradicted evidence presented by the
Commonwealth established the following. Officer Yancer smelled an odor of
burnt marijuana while driving near the vehicle where Appellee was standing.
As Officer Yancer approached the vehicle, he saw Appellee remove an object
from his waistband and place it in the center console of the vehicle. When
Officer Yancer approached the driver side of the vehicle, he observed four
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vials of marijuana in plain view in the cup holder. Based on the totality of
the circumstances, Officer Yancer had probable cause to believe the vehicle
contained contraband, which was all that was necessary to justify the search
of the vehicle. See id.; Lechner, supra. Therefore, the officers recovered
the gun as a result of a lawful search. Thus, the court should have denied
Appellee’s motion to suppress the gun. Accordingly, we reverse the
suppression order in part concerning the gun, affirm the suppression order in
part regarding the marijuana on the basis of waiver, and remand for further
proceedings.
Order affirmed in part and reversed in part; case remanded for further
proceedings. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2016
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