J-A18032-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
AL-TARIQ SHARIF ALI BYRD, A/K/A : No. 1817 WDA 2016
JAMES T. BYRD :
:
Appeal from the Order Entered October 31, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0002875-2015
BEFORE: BOWES, J., LAZARUS, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED MARCH 26, 2018
The Commonwealth appeals1 from the orders entered October 31, 2016,
in the Court of Common Pleas of Allegheny County, granting, in part, and
denying, in part, Al-Tariq Sharif Ali Byrd, a/k/a James T. Byrd’s motion to
suppress. The Commonwealth claims the trial court erred in finding that: (1)
certain jail visitation recordings were made in violation of the Pennsylvania
Wiretapping and Electronic Surveillance Control Act (“the Wiretap Act”)2 and
the two-party consent exception did not apply; and (2) the warrantless search
____________________________________________
1 The Commonwealth has certified in its notice of appeal that the suppression
order will terminate or substantially handicap its prosecution of the case. See
Pa.R.A.P. 311(d).
2 18 Pa.C.S. § 5701, et seq.
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of Byrd’s vehicle was not within the parameters of the Pennsylvania Supreme
Court’s newly recognized vehicle exception.3 After a thorough review of the
submissions by the parties, the certified record, and relevant law, we reverse
the court’s suppression of the jail visitation recordings and certain evidence
(the 20 bags of heroin, lockbox, vest, and cell phone) seized from Byrd’s
vehicle, and remand for further proceedings.
The trial court set forth the factual history as follows:
The uncontradicted evidence presented at the suppression
hearing established that on February 23, 2015 at approximately
6:00 p.m., Officer Ross Weimer of the McKeesport Police
Department was dispatched to 807 Leech Street for a call of a
female receiving threatening calls with a suspect parked outside
the residence in a grey F-150 truck. When Officer Weimer arrived
at the residence, he noted a grey F-150 truck parked a few houses
away. Upon entering the residence, he spoke to Ms. Velez, who
told him that a man known to her as “Reek” had threatened to kill
her, had a gun and was parked outside her house. Ms. Velez
pointed out the grey truck previously referenced. Officer Weimer
approached the truck, which initially drove directly at him but did
stop on command. The driver, later identified as [Byrd], initially
opened the window 2-3 inches and eventually opened it all the
way. Officer Weimer detected a strong odor of marijuana through
the open window. Officer Weimer described [Byrd] as acting in a
nervous manner with shaking hands and rapid breathing and
called for back-up. When Officer Krejdovsky arrived, Officer
Weimer asked [Byrd] to exit the vehicle and although he
eventually opened the door, [Byrd] refused to get out. Officer
Weimer pulled him out of the truck and a struggle ensued during
which Officer Krejdovsky slipped on some ice and fell down a small
hill. [Byrd] continued to struggle with Office[r] Weimer and was
eventually able to break free after shedding his coat and shirt.
____________________________________________
3 The Commonwealth filed an appeal in an unrelated matter with respect to
Byrd at Docket No. 1818 WDA 2016. In that appeal, the Commonwealth
raised only the issue regarding the Wiretap Act. The trial court addressed
both cases in its January 12, 2017, opinion.
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[Byrd] ran and Officer Weimer chased him and attempted to use
his taser, but he missed [Byrd]. [Byrd] eventually slipped on
some ice near Officer Weimer’s police vehicle and suffered a
seizure while on the ground. Medics were called to attend to
[Byrd]. Officer Krejdovsky testified that he observed a gun
magazine under a piece of cloth on the front seat of the truck and
he lifted the cloth to discover a .40 caliber handgun.
Also introduced into evidence was a stipulation that 20
stamp bags of heroin were found in an unlocked lockbox on the
passenger seat of the vehicle, a bulletproof vest was found in the
back seat of the vehicle and two (2) cell phones and a scale were
also found in the vehicle (their location was not specified). Also
stipulated to was that upon his arrest, 44 individually wrapped
bags of marijuana, 10 individually wrapped bags of powder
cocaine, four (4) bags of crack cocaine and $205.00 were found
in [Byrd]’s pockets. The Commonwealth did not present any
evidence regarding how the search of the truck was effectuated,
but rather argued that it was appropriate due to the automobile
exception to the search warrant requirement or, alternately, a
search incident to arrest.
Trial Court Opinion, 1/12/2017, at 3-4 (footnote omitted).
Byrd was charged with persons not to possess firearms, carrying a
firearm without a license, three counts of possession with intent to deliver,
and three counts of possession of controlled substance. 4 Byrd filed a motion
to suppress on February 10, 2016, in which he alleged the stop and
subsequent search was unreasonable, illegal, and violated his constitutional
rights. He filed an amended suppression motion on May 18, 2016, requesting
the court exclude further evidence related to the search of his person.
____________________________________________
4 18 Pa.C.S. §§ 6105(a)(1) and 6106(a)(1), and 35 P.S. §§ 780-113(a)(30)
and (a)(16), respectively.
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Subsequently, the Commonwealth notified Byrd of its intent to present certain
evidence against him that was obtained as a result of recording his
conversations with visitors at the Allegheny County Jail.5 Byrd filed a second
amended motion to suppress on October 11, 2016, arguing these jail
recordings violated his constitutional rights and the Wiretap Act. A hearing
was held on October 31, 2016.6 That same day, the court entered two orders:
(1) granting Byrd’s suppression motion as to the 20 bags of heroin, lockbox,
vests, and two cell phones that were found in the vehicle, but denying his
request as to remaining evidence seized from the vehicle; and (2) granting
Byrd’s motion to suppress all recordings of his jail visits. The Commonwealth
filed a motion to reconsider, which was denied November 29, 2016. This
appeal followed.7
____________________________________________
5 Specifically, the Commonwealth sought to admit the following: (1) a partial
transcript of a recording from a jail visit on August 14, 2015, in which Byrd
made statements referencing his possession of a firearm; and (2) a recording
of a jail visit from March 25, 2016 wherein Byrd and a visitor, Brandi Wilson,
discussed Byrd’s possession of body armor due to previously having been
shot. See Byrd’s Second Amended Motion to Suppress Pursuant to
Pa.R.Crim.P. 581, 10/11/2016, at 3.
6 At the hearing, the court addressed the jail visitation recordings as they
relate to this matter and the matter at Docket No. 1818 WDA 2016.
7 On December 6, 2016, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth filed a concise statement on December 14,
2016 The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
January 12, 2017.
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In its first issue, the Commonwealth contends the trial court erred in
rejecting its argument that Byrd’s jail visit recordings “were permitted under
the two-party consent exception to the Wiretap Act, finding the
Commonwealth failed to prove that [Byrd] heard the recording warning which
was played each time an inmate used the phone system to talk to a visitor.”
Commonwealth’s Brief at 15.
Our standard of review of a trial court’s order granting a
defendant/appellee’s motion to suppress evidence is well established:
When the Commonwealth appeals from a suppression order, we
follow a clearly defined standard of review and 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. The suppression court’s
findings of fact bind an appellate court if the record supports those
findings. 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. Miller, 2012 PA Super 251, 56 A.3d 1276,
1278-79 (Pa. Super. 2012) (citations omitted). “Our standard of
review is restricted to establishing whether the record supports
the suppression court’s factual findings; however, we maintain de
novo review over the suppression court’s legal conclusions.”
Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476
(2010) (citation omitted).
Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa. Super. 2016), appeal
denied, 159 A.3d 933 (Pa. 2016). “It is within the suppression court’s sole
province as factfinder to pass on the credibility of witnesses and the weight to
be given to their testimony. The suppression court is free to believe all, some
or none of the evidence presented at the suppression hearing.”
Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (citations
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omitted), appeal denied, 847 A.2d 58 (Pa. 2004). Nevertheless, the
suppression court’s conclusions of law are not binding on an appellate court,
and are subject to plenary review. Commonwealth v. Johnson, 969 A.2d
565, 567 (Pa. Super. 2009) (citations omitted).
Generally, the Wiretap Act “prohibits the interception, disclosure or use
of any wire, electronic or oral communication.” Commonwealth v. Deck,
954 A.2d 603, 607 (Pa. Super. 2008), citing 18 Pa.C.S. § 5703, appeal denied,
964 A.2d 1 (Pa. 2009).8 18 Pa.C.S. § 5704 identifies “exceptions to Section
5703’s prohibitions and allows for the interception of a wire, electronic or oral
communication in designated circumstances.” Deck, 954 A.2d at 607.9
Pertinent to this case, Subsection 5404(4) states: “It shall not be unlawful
and no prior court approval shall be required under this chapter for . . . [a]
person, to intercept a wire, electronic or oral communication, where all parties
____________________________________________
8 An “oral communication” is defined as follows: “Any oral communication
uttered by a person possessing an expectation that such communication is not
subject to interception under circumstances justifying such expectation. The
term does not include any electronic communication.” 18 Pa.C.S. § 5702.
9 The parties originally disputed whether the recordings fell within the county
correctional facility telephone call exception to the Wiretap Act. See 18
Pa.C.S. § 5704(14); Trial Court Opinion, 1/12/2017, at 11. However, at the
suppression hearing, the Commonwealth conceded that the telephone jail visit
system was not a “telephone,” and therefore, Subsection 5704(14) did not
apply. See N.T., 10/31/2016, at 38; see also Commonwealth v. Fant, 146
A.3d 1254, 1265 (Pa. 2016) (holding inmate visit conversations using a
telephone device “are not ‘telephone calls,’ and they are not subject to the
county correctional facility ‘telephone’ exception under the Wiretap Act.”)
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to the communication have given prior consent to such interception.” 18
Pa.C.S. § 5704(4).
Turning to the present matter, the Commonwealth states:
Inmates and visitors at the Allegheny County Jail are
notified that their conversations may be monitored or recorded
immediately prior to each visit conversation. By engaging in a
conversation after receiving notice that the conversation may be
monitored or recorded, the participants consent to the
interception. Each of the conversations at issue in the instant case
carried the warning that the conversation could be monitored or
recorded. As such, visit recordings comply with the Wiretap Act,
and any incriminating statements obtained from these recordings
are admissible as evidence at trial.
Commonwealth’s Brief at 18. The Commonwealth points to several
conversations as instances in which Byrd and his visitors “actually intimated
that they knew they were being recorded:”10 (1) Byrd telling his fiancée, Dana
Heaps, he could not communicate the way he wanted to because of the prison
setting;11 (2) Byrd talking at normal volume and then moving to whispered
tones in certain conversations;12 (3) Byrd telling Heaps, “I swear to God, and
– and – I’m gonna say it on the phone, I don’t give a fuck;”13 and (4) Heaps
having to repeat herself during one visit because she spoke before the
____________________________________________
10 Commonwealth’s Brief at 18.
11 N.T., 10/31/2016, at 23.
12 Id. at 24.
13 Id. at 24.
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recorded message played regarding the recording and monitoring of prison
phone calls.14 Id. at 18–20. Relying on Commonwealth v.
Baumhammers, 960 A.2d 59 (Pa. 2008), cert. denied, 558 U.S. 821
(2009),15 the Commonwealth states:
These conversations indicate actual acknowledgment that [Byrd]
and Ms. Heaps knew they were being recorded during the visits[.]
…
Like the defendant in Baumhammers, supra, [Byrd] and
his visitor were notified, prior to beginning their conversations,
that each conversation was subject to recording. Pursuant to the
Court’s holding in Baumhammers with regard to jail calls, the
audio warning heard by [Byrd] and Ms. Heaps prior to the
[Allegheny County Jail] visits provided sufficient notice to make
all parties actually aware that their conversation was subject to
recording. Moreover, Ms. Heaps testified that she knew she was
being recorded and [Byrd]’s behavior and statements
demonstrated that he believed that they were being recorded as
well.
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14 Id. at 24-25.
15 Baumhammers, supra, held that a recorded jail telephone conversation
between the defendant and his parents was permissible under Subsection
5704(14), even where there was no written notification that the conversation
would be recorded, because:
These individuals were actually aware that their telephone
conversation was being or could be intercepted and recorded by
prison authorities. Written notice to Appellant, assuming he never
received any, would not have afforded him any greater protection
of his right to privacy or that of his parents than the actual notice
they possessed at the time of the conversation.
Baumhammers, 960 A.2d at 79.
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Commonwealth’s Brief at 20-21. The Commonwealth concludes “the
intercepts were lawful” under the mutual consent exception to the Wiretap
Act. Id. at 23.
In suppressing the recordings, the court found the following:
The evidence presented at the suppression hearing
established that inmate visits at the Allegheny County Jail are
conducted over a closed-circuit system using telephone receivers.
A visitor arriving at the Allegheny County Jail is taken to a visitor
room with windowed cubicles, chairs and a telephone receiver.
The inmate is escorted to a room on the other side of the visitor
window with a telephone receiver below the window. There are
no cubicles or walls on the inmate side. The inmate picks up the
receiver, enters his or her jail telephone ID number and then the
visitor picks up his or her receiver. Before the parties are
connected, a recording stating that the visit “may be monitored or
recorded” is played. There is nothing in the inmate handbook
which indicates that the visits are recorded and there was no
testimony regarding whether [Byrd] heard the recording before
each visit. Ms. Heaps testified that she heard the recording
indicating that the conversation “may be monitored or recorded”
at each visit, but received no written documentation indicating
that the conversations would be monitored or recorded.
…
In support of its arguments, the Commonwealth presented the
testimony of Ms. Heaps, who testified that she heard a recorded
statement stating that the conversation “may be monitored or
recorded” prior to the connection of each visit call. Even though
Ms. Heaps was never informed of the policy in writing or gave her
consent in writing, the Commonwealth presumes that by
beginning to speak after the recorded statement, she signified her
consent. This Court accepts the Commonwealth’s presumption for
purposes of this analysis.
Nevertheless, the Commonwealth has failed to present any
evidence indicating that [Byrd] heard the recording. It is not
outside the realm of possibility that [Byrd] did not have the
receiver to his ear when the recording played, and therefore may
not have heard it. The Commonwealth conceded that [Byrd] was
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not provided with a written statement or agreement regarding
consent to be recorded, and similarly conceded that there was no
such provision in the inmate handbook.
At the conclusion of the suppression hearing, this Court
made the following findings:
THE COURT: But there is no direct evidence of what Mr.
Byrd may have known.
[THE COMMONWEALTH]: Well, Mr. [Samuel] Pastor
testified that both parties hear this on every visitation. And
he’s got to have the phone up to his ear when he’s punching
in – he picks up the phone and he punches in his ID number
and it says the call is being processed.
THE COURT: Well, but he doesn’t have to have the phone
to his ear.
…
THE COURT: Actually the inmates in the Allegheny County
Jail are told, as I heard on the recording that you played,
may be subject to recording. May be monitored or recorded.
[THE COMMONWEALTH]: I said it’s almost identical. What
the federal –
THE COURT: There’s a big difference between “is” and “may
be”.
…
THE COURT: The court finds that you have not proven the
consent of Mr. Byrd in this case. Relying on the Fant
decision, the jail visit conversations will be suppressed.
(S.H.T., pp. 33, 36, 38).
By failing to establish that [Byrd] was aware of the recording
and consented to it, the Commonwealth has not satisfied the
requirements on two-party consent exception to the Wiretap Act.
Trial Court Opinion, 1/12/2017, at 8, 11-12.
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We are constrained to disagree for several reasons. First, we conclude
the factual findings made by the trial court are belied by the record. We
reiterate that, as the trial court noted: (1) before an inmate and visitor can
converse with one another, a recording stating that the visit “may be
monitored or recorded” is played;16 and (2) Heaps acknowledged at the
suppression hearing that during every one of her visits with Byrd at the jail,
she heard a prerecorded messaged that those visits would be recorded or
monitored, and still decided to speak with him. See N.T., 10/31/2016, at 22,
27. Additionally, one can readily infer that Byrd was aware the conversations
were being recorded as evidenced by his statements and behavior. For
example, he specifically told Heaps, “I'm gonna say it on the phone. I don't
give a fuck.” Id. at 24. The mutual consent exception permits interception
of conversations in instances where the defendant “knew, or should have
known, that the conversation was recorded.” Commonwealth v. Diego, 119
A.3d 370, 377 (Pa. Super. 2015), appeal denied, 129 A.3d 1240 (Pa. 2015).17
Based on the environment in which Byrd conversed with Heaps, an open
____________________________________________
16 Trial Court Opinion, 1/12/2017, at 8.
17 In Diego, supra, the defendant engaged in a text message conversation
with the informant, which the Commonwealth sought to admit into evidence.
In concluding there was no violation of the Wiretap Act, a panel of this Court
stated: “It is the sender’s knowledge that the communication will
automatically be recorded, surmised from the very nature of the selected
means of transmission, that is dispositive of the sender’s lack of an
expectation of privacy or, at least, the lack of any reasonable expectation of
privacy.” Diego, 119 A.3d at 377.
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visitation area in the jail, he should have known that their conversations could
be recorded.
Second, we find the trial court’s hyper-technical analysis requires that
in these instances, the Commonwealth must always establish on the record
that the inmate had the telephone to his ear, listened to the message that
announced the conversation may be recorded, and then consented to the
message. This type of requirement is unreasonable because under such
scrutiny and logic, an inmate could easily avoid the consent element by simply
holding the phone away from his ear for a period of time prior to speaking
with a visitor, in order to evade hearing that message. As such, the trial
court’s decision is misplaced with respect to the both its findings of fact and
conclusions of law. See Korn, supra. Accordingly, we conclude no Wiretap
Act violation occurred as the two-party consent exception applies and,
therefore, the trial court erred when it granted suppression on that basis. 18
In its second issue, the Commonwealth argues the warrantless search
of Byrd’s vehicle was conducted within the parameters of the newly recognized
vehicle exception to the warrant requirement, set forth in Commonwealth v.
Gary, 91 A.3d 102 (Pa. 2014), and therefore, the court erred in granting
____________________________________________
18 It bears remarking that the trial court analyzed this issue as it related to
the unrelated matter at Docket No. 1818 WDA 2016. In its brief related to
the present appeal, the Commonwealth fails to address what prejudice it
would incur if these conversations were not admitted with respect to Byrd’s
gun and drug possession charges.
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Byrd’s motion to suppress the fruits of the search of his vehicle.
Commonwealth’s Brief at 25.
Keeping in mind our standard of review regarding suppression motions,
we are guided by the following. The Fourth Amendment of the United States
Constitution provides, “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated ….” U.S. Const. amend. IV. The Pennsylvania Constitution
also protects this interest by ensuring, “[t]he people shall be secure in their
persons, houses, papers and possessions from unreasonable searches and
seizures ….” Pa. Const. Art. I, § 8. Moreover, “a lawful search generally
extends to the entire area in which the object of the search may be found.”
Commonwealth v. Rega, 933 A.2d 997, 1013 (Pa. 2007) (citation omitted),
cert. denied, 552 U.S. 1316 (2008).
In Gary, supra, the Pennsylvania Supreme Court, in an Opinion
Announcing the Judgment of the Court (“OAJC”),19 “adopt[ed] the federal
automobile exception to the warrant requirement, which allows police officers
to search a motor vehicle when there is probable cause to do so and does not
____________________________________________
19 While Gary is a plurality decision, the result is precedential due to the
nature of Justice Saylor’s concurring opinion. Gary, 91 A.3d at 138 (“I join
the lead Justices in adopting the federal automobile exception.”).
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require any exigency beyond the inherent mobility of a motor vehicle.” Gary,
91 A.3d at 104.20 Further, former Justice Seamus McCaffery opined:
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. The consistent and firm
requirement for probable cause is a strong and sufficient
safeguard against illegal searches of motor vehicles, whose
inherent mobility and the endless factual circumstances that such
mobility engenders constitute a per se exigency allowing police
officers to make the determination of probable cause in the first
instance in the field.
Id. at 138.
The Pennsylvania Supreme Court has defined probable cause as follows:
Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
[stop], and of which he has reasonably trustworthy information,
are sufficient to warrant a man of reasonable caution in the belief
that the suspect has committed or is committing a crime. 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.
Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (citation omitted)
(emphasis in original), cert. denied, 136 S. Ct. 201 (U.S. 2015).
Turning to the present matter, at the conclusion of the suppression
hearing, the trial court made the following findings of fact:
____________________________________________
20 Before the Gary decision was announced, “in order for police officers to
conduct a lawful search of an automobile without a warrant, the officers were
required to have probable cause and exigent circumstances.”
Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014), appeal
denied, 106 A.3d 724 (Pa. 2014).
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THE COURT: Okay. The officers were told that [Byrd] had a gun
in his possession. They did what they were supposed to. They
went out and investigated. They smelled marijuana. [Byrd] was
nervous, uncooperative, tried to run, and the officers acted.
According to [Byrd]’s constitutional right [sic], the gun was found
in plain view.
When [Byrd] was searched, the 44 bags of marijuana, the ten
bags of cocaine, the four bags of crack and two something else
were on his person and are not suppressed. However, the 20 bags
in the lockbox, the vest and the two phones, the suppression is
granted.
N.T., 10/31/2016, at 64.
In its Rule 1925(a) opinion, the court further explained:
[A]s this Court noted in its findings at the conclusion of the
hearing, the police had been summoned for a call of an individual
threatening a woman and in possession of a gun. When Officer
Weimer attempt to speak to [Byrd], he acted strangely and then
attempted to run away. A gun was found in plain view on the
driver’s seat. The information given to the police (that [Byrd] had
made threats against a woman and had a gun) was sufficient to
support the actions taken by the police in removing the [Byrd]
from the vehicle (and then finding the gun in plain view), but they
did not give rise to any probable cause that would justify their
warrantless search of the vehicle. The police did not receive
information that [Byrd] was in possession of or selling drugs or
conducting any drug activity from his vehicle. The
Commonwealth’s argument is, essentially, that [Byrd] is a bad guy
and that is enough probable cause to justify the search of the
vehicle. The officers did not see any drug paraphernalia in plain
view and though Officer Weimer detected an odor of marijuana,
there was a large amount of marijuana found on [Byrd]’s person
when he was eventually subdued. The officers did not observe
[Byrd] buying, selling or otherwise transferring drugs to another
person. The officers did not observe [Byrd] weighing or packaging
drugs for sale. The officers did not see [Byrd] exchanging money
with anyone. The officers did not observe [Byrd] engaged in any
behavior typically noted in a drug transaction. The totality of the
circumstances supported a finding of probable cause for the
crimes of terroristic threats and possession of a firearm only, not
that drugs were being held and/or sold from the vehicle.
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Trial Court Opinion, 1/12/2017, at 6.
The Commonwealth counters the court’s findings with the following:
Here, Velez advised Officer Weimer that [Byrd] had
threatened to kill her, was parked outside her house and had a
gun. Officer Weimer confronted [Byrd], he opened the window
and the officer detected a strong odor of marijuana through the
open window. [Byrd] was acting nervously, his hands shaking.
When asked to exit the vehicle, [Byrd] refused to get out, a
struggle ensued and [he] fled, ultimately being apprehended by
the police. Officer Krejdovsky observed a gun magazine under a
piece of cloth on the front seat of the truck and he lifted the cloth
to discover a .40 caliber handgun. Contrary to the conclusion of
the [trial] court, the police had probable cause to believe that
[Byrd] was in possession of drugs and guns, and therefore, had
sufficient information to support the warrantless search of the
vehicle pursuant to Gary, supra.
…
In finding Gary inapposite to the instant case, the
suppression court focused on the fact that, while the police had
been summoned for a call of a woman threatened by a man with
a gun, they had not received any information that regarding
[Byrd] selling drugs. Further, while acknowledging that the police
smelled the odor of marijuana, the court found that the fact that
they found marijuana on his person obviated the need for any
further research. Similarly, because the police found a gun in
plain view, the court concluded that the police could not make any
further search of the vehicle. Overlooked by the court is the fact
that these facts support the finding and confirmation of probable
cause, rather than negate it. The [trial] court was of the opinion
that once the officers found evidence that supported the initiation
of their search, they were required to stop and get a warrant. The
vehicle exception adopted in Gary supports the opposite.
Commonwealth’s Brief at 26-27.
Again, we are compelled to disagree with the trial court’s conclusion.
The court’s analysis is misplaced as it heavily focuses on the drug aspect of
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the search, highlighting the following: (1) that the police did not receive
information that Byrd was in possession of or selling drugs or conducting any
drug activity from his vehicle; (2) the officers did not see any drug
paraphernalia in plain view; and (3) Officer Weimer should have stopped his
search when he found a large amount of marijuana found on Byrd’s person.
The police did not have to stop searching once they observed the gun on the
front seat as the totality of the circumstances warranted further investigation.
Byrd’s initial acts established probable cause for the crimes of terroristic
threats and possession of a firearm and permitted the officers to continue
searching the vehicle for other contraband (i.e., ammunition, knives, other
weapons) related to these crimes even though they seized one gun and
removed Byrd from the vehicle. See Gary, supra.21 In fact, the police did
seize a bulletproof vest from the back seat of Byrd’s vehicle.
Moreover, the officers were permitted to search the unlocked lockbox
on the passenger seat of Byrd’s vehicle See Wyoming v. Houghton, 526
U.S. 295, 1303-1304 (1999) (“The sensible rule (and the one supported by
history and case law) is that...a package [in the car] may be searched,
whether or not its owner is present as a passenger or otherwise, because it
____________________________________________
21 We note that in Gary, the police detected the smell of marijuana emanating
from the defendant’s car, which the defendant acknowledged its presence.
The defendant was placed in the back of the police cruiser. He attempted to
flee but was captured. Police subsequently discovered two pounds of
marijuana under the front hood of the car. Gary, 91 A.3d at 104-105.
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may contain the contraband that the officer has reason to believe is in the
car.”); see also In re I.M.S., 124 A.3d 311 (Pa. Super. 2015) (holding that
Houghton applies in light of the Gary Court’s bright line rule),
Commonwealth v. Runyan, 160 A.3d 831, 838 (Pa. Super. 2017) (applying
I.M.S. and concluding police had “probable cause to believe the vehicle
contained contraband, which was all that was necessary to justify the
warrantless search of the vehicle, as well as the search of [the defendant]’s
purse where the contraband could be concealed.”). Accordingly, in applying
Gary and its progeny, we conclude the trial court did not properly apply the
law to the facts of the case, and therefore, erred in suppressing certain
evidence (the 20 bags of heroin, lockbox, vest, and cell phone) retrieved from
Byrd’s truck.
In sum, we find the trial court erred in suppressing the jail visitation
recordings and certain evidence seized from Byrd’s vehicle, and we remand
this matter to the court for further proceedings.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/2018
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