J-S83036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
JAMUAL OVERBY :
:
Appellee : No. 3032 EDA 2016
Appeal from the Order September 16, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008677-2015
BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY GANTMAN, P.J.: FILED JANUARY 30, 2018
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, which granted
the suppression motion of Appellee, Jamual Overby.1, 2 We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
____________________________________________
1Appellant’s first name is spelled variously throughout the certified record as
both “Jamual” and “Jamaal.”
2 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice
of appeal that the trial court’s suppression order substantially handicapped
or terminated the prosecution of the Commonwealth’s case. Accordingly,
this appeal is properly before us for review. See Commonwealth v.
Cosnek, 575 Pa. 411, 421 836 A.2d 871, 877 (2003) (stating Rule 311(d)
applies to pretrial ruling that results in suppression, preclusion or exclusion
of Commonwealth’s evidence).
J-S83036-17
restate them.
The Commonwealth raises the following issue for our review:
DID THE [TRIAL] COURT ERR IN SUPPRESSING EVIDENCE,
INCLUDING A FIREARM AND DRUGS FOUND IN THE
MINIVAN [APPELLEE] WAS DRIVING, WHERE THE POLICE
SAW SOME OF THE DRUGS IN PLAIN VIEW DURING A
LAWFUL TRAFFIC STOP AND, THUS, HAD PROBABLE
CAUSE TO SEARCH THE VAN AND ARREST [APPELLEE]?
(Commonwealth’s Brief at 4).
Our scope and standard of review when the Commonwealth appeals
from a suppression order are as follows:
[T]his Court may consider only the evidence from the
defendant’s witnesses together with the evidence of the
prosecution that, when read in the context of the record as
a whole, remains uncontradicted. In our review, we are
not bound by the suppression court’s conclusions of law,
and we must determine if the suppression court properly
applied the law to the facts. We defer to the suppression
court’s findings of fact because, as the finder of fact, it is
the suppression court’s prerogative to pass on the
credibility of the witnesses and the weight to be given to
their testimony.
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa.Super. 2014), appeal
denied, 630 Pa. 734, 106 A.3d 724 (2014) (internal citations omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Glynnis D.
Hill, we conclude the Commonwealth’s issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed February 27, 2017, at 4-9)
(finding: officers observed Appellee’s vehicle had broken brake light, which
-2-
J-S83036-17
justified lawful traffic stop; during stop, Officer Scott noticed Appellee had
pocketknife tucked into his waistband and asked Appellee to step out of
vehicle for officer safety; Officer Scott testified that he had no intent to
arrest Appellee for possession of pocketknife; while Appellee exited vehicle,
Officer Scott observed in plain view three loose pills in driver’s side-door
compartment; Officer Scott unequivocally testified that he could not
immediately identify pills with any certainty as over-the-counter,
prescription, legal, or illegal, based on appearance alone; Officer Scott did
not know incriminating nature of pills until after he seized and inspected
them, reported their description to poison control, and received confirmation
that pills were contraband; absent probable cause or warrant, search of
Appellant’s vehicle was unconstitutional; all evidence recovered from illegal
search was properly suppressed). Accordingly, we affirm based on the trial
court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2018
-3-
Circulated 01/09/2018 12:50 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA : TRIAL DIVISION
APPELLANT
V. CP-51-CR-0008677-201F1LED
JAMUAL OVERBY 3032 EDA 2016 FEB 2 7 20fit
OPINION Criminal Appeals L
First Judicial District I
This opinion addresses the Commonwealth's appeal of this Court's September 16, 2016
order granting the Defendant's Motion to Suppress Evidence. The issues raised by the
Commonwealth lack merit for the following reasons.
I. CASE HISTORY
On June 1, 2015, police arrested Jamual Overby (Defendant) for illegal possession of
narcotics and firearms. The Defendant was charged with Possession With Intent to Distribute a
Controlled Substance (PWID) (F), Possession of a Controlled Substance (M), Possession of a
Firearm Prohibited (F2), Firearms Carried Without a License (F3), and Carrying Firearms in
Public (MI).
On August 31, 2016, the Defendant filed a Motion to Suppress Evidence.1 On September
6, 2016, the Honorable Glynnis D. Hill conducted a Motion to Suppress Hearing and held the
case under advisement.2 On September 16, 2016, Judge Hill granted the Defendant's Motion to
Suppress Evidence.
CP-51-CR0008677-2015 Comm v. Overby. Jamual
Opinion
111111171j111)1171)611,1111111
I The Defendant contended the search of his vehicle violated his rights secured to him by the Fourth and Fourteenth
Amendments to the U.S. Constitution, Article Section 8 of the Pennsylvania Constitutions, and the Pennsylvania
1
Rules of Criminal Procedure.
2 On September 7, 2016. the Defendant's Motion to Suppress was further held under advisement pending receipt of
the Notes of Testimony.
1
On September 26, 2016, the Commonwealth of Pennsylvania filed an interlocutory
appeal to the Superior Court and a 1925(b) statement alleging:3
1. The trial court erred in granting the Defendant's motion to suppress on the grounds
that the officer did not immediately recognized the loose pills in plain view as illegal.
II. FACTS OF THE CASE
On June 1, 2015, Philadelphia Public Housing Authority (PHA) Officers Nathan Scott
and Andrew Cikanovich were in a marked unit patrolling the Wilson Park Housing Development
in Phi ladelphia.4 The officers had been assigned to patrol Wilson Park because of the
Development's high rate of illegal drugs, gun violence, and gang related crimes.' At
approximately 3:56pm, Officers Scott and Cikanovich were parked at a stop sign on 26th and
Jackson.6 While parked, they saw the Defendant driving a red Dodge Caravan down Jackson
Street from 26th to 25th street.' They noticed that the rear middle break light was outs Officer
Scott then stopped the Defendant on the 2400 block of Fitzgerald,'
Officer Scott approached the driver's side of the vehicle where the Defendant was seated,
and his partner Officer Cikanovich approached the front passenger side of the vehicle where a
male passenger was seated.'" When Officer Scott approached the Defendant, he asked for his
license, registration, and insurance.'' Officer Scott also asked the Defendant if there were any
3 The Commonwealth filed a Statement of Matters Complained of on Appeal in anticipation of an order Pursuant to
Pa. R.A.P. 1925(b).
N.T., September 2, 2016, pg. 9-10. The officers were located at cross streets 25th and Jackson in Philadelphia.
5 Id. at 12, 39.
6 Id. at 13-14, 64.
Id. at 14,65.
"Id.
9 Id. at 14-16. Officer Scott testified that they waited to pull the Defendant over until he made a left turn onto
Fitzgerald Street because the vehicle could not be safely pulled over on the 25th block due to concrete pillars from a
freight railway along the street.
19 Id. at 16, 17.
"id at 17.
2
drugs or weapons he should be made aware of in the vehicle.' 2 The Defendant stated no.I3 When
the Defendant reached over to his glove box to retrieve his information, his shin lifted. Officer
Scott observed the tip of a pocket knife tucked into the waistband of the Defendant's pants. °a
Officer Scott then asked the Defendant to step out of the vehicle.15 However, Officer
Scott testified that he did not arrest (and had no intentions of arresting) the Defendant for the
pocket Icnife.16 As the Defendant stepped out, Officer Scott noticed three loose oval shaped gray
pills in the bottom compartment of the vehicle door, along with four small Altoid mint
containers." Officer Scott testified he did not know what the pills were, whether legal or
illegal, prescription or over the counter, but his training and experience gave him reason to
suspect they might be prescription pills.' Officer Scott retrieved the loose pills from the door
8
compartment, took them back to his police car, and called poison control. Meanwhile, the
Defendant and the other passenger were made to wait at the rear of the vehicle facing towards
Officer Scott's police car.° Officer Scott described the pills to poison control, who
eventually informed Officer Scott that the pills were Oxycodone 20 milligrams.20
After Officer Scott learned the identity of the pills, the Defendant was placed under
arrest?' Officer Scott then went back into the vehicle to conduct a search.22 Officer Scott
12 Id. at 17, 55-56. On cross examination, Officer Scott confirmed that his PARS report was accurate, but nowhere in
the report did it mention that he questioned the Defendant about weapons in the vehicle. On redirect, Officer Scott
stated that the report does not always document everything that is done, especially habitual actions such as license
and registration checks.
13 Id. at 17.
14 Id. at 17-18, 43-45.
15 Id. at 19, 99.
16 Id. at 18-19, 23-25, 48-49.
17 Id. at 19-21, 26, 47-48. The vehicle's door contained a compartment on the bottom of the door that protruded out,
allowing Scott to see its contents while standing alongside the car as the Defendant exited the vehicle. See Appendix
A for example of Altoid containers and Oxycodone 20 mg pills.
18 Id. at 22-23, 48-49. Officer Scott did not know the designation of the loose pills when he first observed them.
I' Id. at 21, 23, 25, 103. The Defendant was not arrested for possession of the knife.
20 Id. at 23-24, 49. Officer Scott testified that he spoke to badge number 47 at poison control.
21 Id. at 24, 49.
22 Id, at 25, 49.
3
removed the four Altoid containers he observed earlier in the vehicle door compartment and
examined their contents.23 Each tin contained various pills inside.24
During the subsequent search of the vehicle, Officer Cikanovich recovered a black and
silver revolver handgun from the center console?' The officers also recovered a box of
ammunition from the trunk, and $1,238 from the Defendant's pockets.26
III. DISCUSSION
I. The Trial Court Did Not Err When it Granted the Defendant's Motion to Suppress
Evidence
The Commonwealth asserts that the trial court erred when granting the Defendant's
Motion to Suppress Evidence on the grounds that the Officer did not immediately recognize the
loose pills in plain view as illegal. The Commonwealth's contention lacks merit.
The Fourth Amendment to the United States Constitution and Article I, Section 8 of the
Pennsylvania Constitution saf6guards Pennsylvanians against warrantless searches and seizures.
Pa. Const. Art. I, § 8. A warrantless search is only proper where certain enumerated exceptions
apply, and police have probable cause to believe a crime has been or is being committed, Corn.
v. Petroll, 738 A.2d 993, 998-99 (Pa. 1999), Exceptions to the warrant requirement include
actual consent, implied consent, search incident to arrest, and exigent circumstances. a In order
to effect a warrantless search, police officers must have probable cause to search and exigent
circumstances must exist. To search a vehicle without a warrant, the limited automobile
exception requires probable cause, but "no exigency beyond the inherent mobility of a motor
vehicle is required." Com. v. Gary, 91 A.3d 102, 138 (Pa. 2014). In Corn. Newman, the
23 Id. at 25-26.
24 Id. at 27, 49.
25
Id at 60.
26 Id. at 61-63,
4
Pennsylvania Supreme Court found that absent probable cause, a warrantless search for illegal
drugs was not covered by the limited automobile exception, 84 A.3d 1072, 1080 (Pa, Super.
2014). In order to satisfy probable cause for a warrantless vehicle search, the Commonwealth
must satisfy the Plain View Doctrine. Corn. v. Milyak, 493 A.2d 1346, 1348 (Pa. 1985).
The Plain View Doctrine permits officers to establish probable cause and conduct a
warrantless search and seizure where an incriminating object is in plain view of the officer. In
order for the Commonwealth to show that the warrantless search was permitted under the Plain
View Doctrine, the Commonwealth must prove that: (I) the officer viewed the object from a
lawful vantage point and (2) it was immediately apparent to the officer the object was
incriminating. Corn. v. Newman, 84 A.3d 1072, 1078 (Pa. Super. 2014).
To satisfy the first prong of the Newman test, officers must view the incriminating object
from a lawful vantage point. Newman, 84 A.3d at 1078. In Com. v. Colon, the court held the
totality of the circumstances gave the officers probable cause to stop a vehicle. 777 A.2d 1097,
1102 (Pa. Super. 2001). After the vehicle's occupants were arrested, an officer secured the
vehicle. Id. at 1099, 1104. Standing outside of the vehicle, the officer saw a matchbox with the
word "TURB" written on it protruding from under the front seat.27 Id. at 1099. After searching
the matchbox, the officer learned it contained bags of heroin. Id. The court held that the
matchbox was observed in plain view. The court further reasoned that there can be no legitimate
expectation of privacy where a police officer views an object that is "entirely visible to him as a
private citizen." Id. at 1097.
27 Officer Joyce in Colon testified that "Turbo" is a common name stamped on heroin packets, and that he believed
"TURB" stood for "Turbo." Additionally, the officers had just seized four packets of heroin labeled "Turbo" from
the defendant's person.
5
The second Newman prong requires that it be immediately apparent to the officer that
the object he views in plain sight is incriminating. Newman, 84 A.3d at 1078. In Corn. v.
Hudson, police officers recovered three prescription pill bottles from the center console of
the defendant's car. Corn. v. Hudson, 92 A.3d 1235, 1237 (Pa. Super. 2014). Two of the
bottles' labels were partially removed while the label on the third bottle was intact and had
the defendant's name on it. Id, at 1237. An officer conducting a protective sweep of the car
saw the bottles in plain view. Id. at 1237, 41. Not knowing what the pills were, the officer
retrieved the pills from the vehicle and called poison control to identify the pills. Id. at 1242. At
trial, the officer also testified he did not know what the pills were and confirmed that he had to
call poison control in order to identify the pills in the bottle. Id. In Hudson, the Superior Court
suppressed the pills. The Court held that the three prescription pill bottles were in plain view, but
it reasoned that the incriminatory nature of the pills was not immediately apparent to the officer.
Id. at 43.
fp our case, the CpmmOuwealth has satisfied the first prong of the Newman test.28 The
Psfendant's car Was spotted with its tail light out, giving the officers a justificatlim to conduct a
traffic stop under Vehicle Code, 75 Pa.C.S. § 4303(b). During the stop, Officer Scott noticed the
Defendant had a pocket knife tucked into his waistband and asked the Defendant to step out of
the vehicle.29 The Fourth amendment permits an officer to require drivers to step out of their
vehicles if the officer believes his safety is at risk. Pennsylvania v. Mimms, 434 U.S. 106, 111
28 Officer Scott testified that he did not place the Defendant under arrest for possessing the knife. N.T.
9/2/2016, p. 23-25. He testified that the knife was approximately 3-4 inches long when folded and 7-8 inches
long when extended to its full length. Id. p. 54. Officer Scott asked the Defendant to step out of the car and
had him sit on the ground at the rear of the vehicle, but did not arrest the Defendant until after he spoke to
poison control and identified the pills as Oxycodone 20 mg. Under The Philadelphia Code Title 10 § 10-
820(2), "no person shall use or possess any cutting weapon upon the public streets or upon any public
property at any time." A cutting weapon includes "any knife or other cutting instrument." This is a summary
offense.
29 N.T. 9/2/2015, p. 23-25, 54.
(1977). However Officer Scott made it clear that he was not going to arrest the Defendant for
the pocket knife.
While the Defendant was stepping out of the vehicle, Officer Scott observed three loose
pills in the driver's side door compartment. As in Colon, Officer Scott observed the pills from a
legal vantage point as he stood outside the vehicle. Therefore, the first prong of the Newman test
was met.
However, the Commonwealth has failed to satisfy the second Newman prong. Like the
officer in Hudson, Officer Scott testified that he did not know whether the loose pills were
illega1.3° Officer Scott unequivocally testified on the record that he could not identify the
pills with any certainty as being over the counter, prescription, legal or illegal by their
appearance alone.3I It was only after he seized the pills, inspected them, and reported their
description to poison control that the pills' incriminating nature become apparent.32 Officer
Scott testified that he only arrested the Defendant after calling poison control to identify the
pills."
The major difference between Hudson and our case is that the pills in Hudson were in
prescription bottles, two of which had partially removed labels.34 Hudson, 92 A.3d at 1237.
However, the immediately apparent doctrine applie,s in both cases. It was not immediately
apparent to the officer in Hudson that a bunch of pills in two prescription bottles without the
defendant's name on the bottles was contraband. Nor was it immediately apparent to Officer
3° N. T.September 2, 2016, 22-23, 48-49.
31 Id.
32 Id. at 23-24, 49.
" Id. at 49.
34 In Hudson two of the prescription bottles didn't have the defendant's name on them. Additionally, Officer Scott
testified that he did not place the Defendant under arrest for possession of the knife,
7
Scott that the three loose pills next to four small inconspicuous Altoid mint containers were
contraband. Hence, the second prong of the Newman test fails.
In summary, Officer Scott's actions constituted an illegal search and seizure under the
Fourth Amendment of the United States Constitution, and Article I, Section 8 of the
Pennsylvania Constitution, Under Gar_y, police officers must have probable cause to search a
vehicle without a warrant. However, Officer Scott never considered the folded -up pocket knife
as contraband, and he testified that he never would have arrested the Defendant for the small pen
knife. Hence Officer Scott needed probable cause to effectuate his search and/or seizure,
Under the Plain View Doctrine, the officers would have probable cause to arrest the
Defendant and search the vehicle if they saw the pills from a lawful vantage point and
immediately recognized the pills as contraband. However, Officer Scott's warrantless search
and seizure of the loose pills in the Defendant's vehicle were not legitimized under the Plain
View Doctrine. The Plain View Doctrine does not apply because the incriminating nature of the
pills was not immediately apparent to Officer Scott. Officer Scott only learned and confirmed
that the three pills, which clearly could have been Altoid mints, were contraband only after he
did a full investigation by calling poison control to determine the legitimacy of the pills.
Meanwhile, the Defendant and passenger were made to wait at the rear of the vehicle while the
police went on a fishing expedition to make a case. Without probable cause or a warrant, there
was an unconstitutional search and seizure. Therefore, the court did not err when it excluded the
evidence seized from the vehicle and any fruits from the poisonous tree.
IV. CONCLUSION
The Commonwealth contends that the Court erred by granting the Defendant's Motion to
Suppress Evidence on the grounds that the officer did not immediately recognize the loose pills
in plain view, o r, the Court disagrees.
The warrantless search of the Defendant's vehicle and subsequent seizure were illegal,
Moreover, the officers did not have probable cause to conduct a warrantless search and seizure of
the loose pills. To establish probable cause to support a warrantless search, the officer's search
must comply with the Plain View Doctrine. Under Corn, v. Newman, an officer must see the
object from a legal vantage point, and it must be immediately apparent that the object is
incriminating, In our case, Officer Scott saw three loose pills in the driver's side door
compartment from a legal vantage point when the Defendant stepped out of the vehicle.
However, Officer Scott did not know the incriminating nature of the pills until after he
confiscated them and called poison control to determine the nature of the pills. As it was not
immediately apparent to the officer that the pills were incriminating, the second prong of the
Plain View Doctrine was not met. For this reason, the Commonwealth's appeal should be
dismissed.
By the Court,
Glynnis D. Hill, Judge
APPENDIX A
Altoids mint containers
Altoids mints
WINTERGREEN CINNAMON
Oxycodone 20 mg pills
PROOF OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been sei-ved upon the
following persons on the 27th day of February, 2017.
Jamual Overby
005453
SCI Smithfield
1120 Pike Street
P.O. Box 999
Huntingdon, PA 16652
David Walker, Esquire
1420 Walnut St. Ste, 911
Philadelphia, PA 19102-4009
Hugh J. Bums, Esquire
Philadelphia District Attorney's Office
3 South Penn Square
Philadelphia, PA 19107
alpi 12-Q \
DATE
11