J-S59010-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CAHMAR JOHNSON :
:
Appellee : No. 3824 EDA 2017
Appeal from the Order Entered October 30, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003759-2017
BEFORE: GANTMAN, P.J., LAZARUS, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 18, 2018
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Philadelphia County Court of Common Pleas, which denied in
part and granted in part the suppression motion of Appellee, Cahmar
Johnson.1 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 need to
restate them.
____________________________________________
1 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-S59010-18
The Commonwealth raises the following issue for our review:
DID THE [TRIAL] COURT ERR IN CONCLUDING THAT ONCE
THE POLICE FOUND A BAG OF COCAINE AND A BAG OF
MARIJUANA INSIDE [APPELLEE’S] CAR THEY WERE
PRECLUDED FROM SEARCHING THE VEHICLE ANY
FURTHER, AND THUS THE LOADED FIREARM
SUBSEQUENTLY FOUND IN THE TRUNK HAD TO BE
SUPPRESSED?
(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 Stella M. Tsai,
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 January 23, 2018, at 7-9) (finding:
police officers had probable cause based on odor of marijuana to search
passenger compartment of Appellee’s car, including any containers therein,
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J-S59010-18
for marijuana; Officer Hasara recovered bag of marijuana and crack cocaine
hidden inside shoe in backseat area of vehicle; shoe reasonably could have
concealed marijuana that officers had smelled; nevertheless, Commonwealth
did not present credible testimony or other evidence to suggest continued
search of car was reasonable after they recovered marijuana and crack
cocaine in shoe; Officer Dobson did not testify that odor of marijuana lingered
in or around car after officers found shoe or that officers smelled marijuana
near trunk during investigation; officers offered no reasonable basis to explain
foundation for probable cause to open and search trunk of vehicle; police do
not have carte blanche to seek out and seize evidence in vehicle beyond what
might conceal object of search; officers went beyond scope of warrantless
search of vehicle; court properly suppressed gun recovered from trunk liner
of car). The record and particular circumstances of this case support the trial
court’s rationale. Accordingly, we affirm on the basis of the trial court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/18
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,. IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNIY
FIRST JUDICIAL DISTRICT
TRIAL DIVISION - CRIMINAL SECTION
COMMONWEALTH OF : _ . . ... QP-51-CR-0003759-2017
PENNSYLVANIA, CP·51-CR.()[)OJ759-2017 Comm, v Johnson. Cahmar
Opcnlon
Appellant
v.
111111111111111 IIII II I Ill
8058800191
CAHMARJOHNSON,
Defendant-Appellee
FILED
OPINION
JAN 2 3 2018
Tsai, J. Office of Judiclal Records
Appeals/Post Trial
I. Introduction
The Commonwealth contends that the trial court erred in granting, in part, the
Motion to Suppress filed by Defendant-Appellee Cahmar Johnson. We found that the
police officers lacked probable cause to search the trunk of Mr. Johnson's car - after
they had already seized all of the narcotics (i.e., marijuana and cocaine) that there was
to recover in the vehicle from the passenger compartment. As the record made at the
suppression hearing does not justify this separate, distinct, and unreasonable intrusion
of the defendant's rights of privacy, our decision should be affirmed,
II. Factual and Procedural History
The Commonwealth appeals from our October 30, 2017 order granting Mr.
Johnson's motion to suppress with respect to a firearm recovered from the trunk of his
car.1 Mr. Johnson was arrested on April 14, 2017 and charged on April 15, 2017 with
IWe denied Mr. Johnson's motion to suppress with respect to the marijuana and crack
cocaine recovered from the passenger compartment of his car. N.T. 10/30/17 at 6-7.
1
Carrying a Firearm without a License, Possession of a Controlled Substance, Possession
of a Small Amount of Marijuana, and Carrying a Firearm on the Streets of Philadelphia.2
Following a preliminary hearing, the charges were bound over for trial on May 1, 2017.
Defendant Johnson's counsel filed a Motion to Suppress Physical Evidence on August
21, 2017.
A suppression hearing was held on October 18, 2017. Commonwealth called
Police Officer John Dobson to testify. He was the only witness in this proceeding.
Officer Dobson has three years of experience as a police officer. N.T. (Suppression
Hearing) ("N.T.") 10/18/17 at 5.
On April I'+, 2017 around 7 p.m., Officer Dobson and his partner, Officer Hasara,
were travelling in a marked police car in the vicinity of 4900 Sheldon Street in
Philadelphia, Pennsylvania. N.T. 10/18/17 at 6. According to Officer Dobson, the area
around 4900 Sheldon is a known gang area, and he had previously made between three
and five arrests for firearms, and also had made several more arrests for narcotics, in
that area. Id. at 6-7, 27.
On this night, the officers observed a silver 2003 Chevrolet Impala make a right
turn from Sheldon onto Wister Street without using its turn signal, which is a violation
of the Motor Vehicle Code. N.T. 10/18/17 at 8, 21. The officers followed the Chevrolet
and stopped it on the 5100 block of Belfield Avenue. Id. at 8. Defendant Cahmar
Johnson was the driver, and sole occupant, of the Chevro]et. Id. at 8-9.
The Commonwealth has not sought appellate review of this portion of our decision. See
Commonwealth's 1925(b) statement filed November 27, 2017.
2
18 Pa.C.S.A. § 6106(a)(1); 35 P.S. § 780-113(a)(16)); 35 P.S. § 780-113(a)(31); 18
Pa.C.S.A. § 6108.
2
Officer Dobson testified that he could smell the faint odor of marijuana when he
first approached the Chevrolet and asked Mr. Johnson to produce his identification and
paperwork for the vehicle. N.T. 10/18/17 at 9-11, 23. The officers returned to their
patrol car to use the computer in their vehicle to check all of Defendant's documents.
Id. at 10-11. While they were in their patrol car, Officer Hasara altered Officer Dobson
to Defendant moving around inside the Chevrolet, specifically that Defendant was
reaching into the backseat. Id. at 11-12. Officer Dobson did not personally observe this
reaching motion; he only saw Defendant's head moving up and down in the driver's
seat. Id. at 12-13, 26, 34.
Upon returning to Defendant's vehicle, Officer Dobson had noticed that the odor
of marijuana had gotten stronger and he ordered Mr. Johnson to exit the vehicle. N.T.
10/18/17 at 13, 28. Defendant was frisked, but the officers did not locate any
contraband on his person. Id. at 14. The odor of marijuana continued to emanate from
the vehicle. Id. The officers then placed Defendant in the back of their patrol car, but
did not handcuff him. Id.
The officers then proceeded to search the passenger compartment of Defendant's
vehicle. In the backseat, the officers found a shoe containing two Ziploc bags, one of
which contained alleged marijuana and the other containing alleged crack cocaine. N.T.
10/18/17 at 14, 30-31. No other drugs were recovered from the vehicle.
There was no evidence of a lingering odor or other evidentiary clue that suggested
more marijuana was concealed elsewhere in the vehicle. The officers nevertheless
opened up the trunk of the Defendant's vehicle and searched it. Officer Dobson testified
that the liner of the trunk near the driver's side tail light was not secured to the wall of
the trunk, as if it had been pulled away, creating a gap. Id. at 15-16. Again, although
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there was no odor or anything to suggest that any contraband was concealed within this
gap, Officer Dobson shined his flashlight into that gap and saw a silver and black .40
caliber Smith & Wesson handgun concealed within. Id. Officer Dobson recovered the
handgun from its hiding place in the trunk. Id.
We held the motion to suppress under advisement, and reconvened on October
30, 2017 to deliver our findings of fact and conclusions oflaw. Based on the totality of
the circumstances, we denied the Motion to Suppress with respect to the marijuana and
cocaine found in the passenger compartment, but granted it with respect to the gun
concealed in the liner of the trunk. See N.T. (Suppression Hearing) 10/30/17 at 2-7.
The Commonwealth filed a timely notice of appeal on November 27, 2017, which
included a certification pursuant to Pa.R.A.P. 311(d) that our order terminates or
substantially handicaps the prosecution of this case. The Commonwealth
simultaneously filed a Statement of Errors Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b).
The Commonwealth presents a single claim in its Statement of Errors
Complained of on Appeal: "[w]hether the lower court erred in holding that the
automobile exception ceased to apply after officers found drugs in the back seat area of
the car."
III. I!iscussion
A. There is a reasonable expectation of privacy in the security of an
automobile against an unreasonable search and seizure.
With respect to a motion to suppress, "it is the Commonwealth's burden to prove,
by a preponderance of the evidence, that the challenged evidence was not obtained in
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violation of the defendant's rights." Commonwealth v. Wallace, 42 A.3d 1040, 1047-48
(Pa. 2012) (citations omitted). The Fourth Amendment to the United States
Constitution and Article I, Section 8 of the Pennsylvania Constitution protect citizens
from unreasonable searches and seizures at the hands of the government.
Commonwealth v. Chase, 960 A.2d 108, 112-13, 116 (Pa. 2008). When the police obtain
evidence in a manner that violates a defendant's constitutional rights, the proper relief
is to preclude the Commonwealth from introducing that evidence at trial.
Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa. Super. 2007). See also Commonwealth
v. Price, 672 A.2d 280, 284 (Pa. 1996) (discussing the rationale for the exclusionary
rule).
As a general rule, for a search to be reasonable under the Fourth and Fourteenth
Amendments or Article I, Section 8, police must obtain a warrant, supported by
probable cause and issued by an independent judicial officer, prior to conducting the
search. For this reason, a search conducted without a warrant is deemed to be
unreasonable and therefore constitutionally impermissible, unless the Commonwealth
is able to establish that one of the few delineated exceptions applies. Commonwealth v.
Strickler, 757 A.2d 884, 888 (Pa. 2000); Commonwealth v. Gary, 91 A.3d 102, 107 (Pa.
2014) (plurality). These exceptions include:
• a search that is conducted incident to a valid arrest of the defendant,
Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999);
• when a defendant consents to the search, Commonwealth v. Gillespie, 821
A.2d 1221, 1225 (Pa. 2003);
• when exigent circumstances exist, Commonwealth v. Holzer, 389 A.2d
101, 106 (Pa. 1978);
• if contraband can be detected by "plain view", Commonwealth v. Jones,
988 A.2d 649, 656 (Pa. 2010), or
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• if contraband can be detected by "plain smell", Commonwealth v. Gary, 91
A.3d 102, 138 (Pa. 2014) (plurality).
As to searches of motor vehicles, the Supreme Court of Pennsylvania determined
in Commonwealth v. Gary that the prerequisite for conducting a warrantless search of a
motor vehicle is "probable cause to search" and "no exigency beyond the inherent
mobility of a motor vehicle is required." 91 A.3d 102, 138 (Pa. 2014) (plurality)
(adopting the automobile exception to the Fourth Amendment's warrant requirement).e
In doing so the plurality held that individuals have an expectation of privacy in their
motor vehicles, albeit one that is "a diminished ... as compared to a residence, office, or
person." Id. at 128.
In Gary, police recovered two pounds of marijuana concealed under the front
hood of an SUV following a search. The officers were able to smell the odor of
marijuana "emanating" from both the driver and passenger sides of the vehicle as they
approached it. The defendant, Gary, admitted that there was some weed in his car in
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response to questioning. A canine unit was summoned to perform a sniff check of the
vehicle. Id. at 104 • .As the police officer and his dog, Leo, began to walk around the
SlN, Gary got out of the police cruiser and started running from the scene. Analyzing
these factors, the Supreme Court plurality found there was no dispute that the plain
smell of the marijuana which "emanated" from the vehicle, not to mention Gary's flight
3While Gary was a plurality opinion announcing the judgment of the Supreme Court,
the Superior Court has adopted the holdings of Gary in several of its published
decisions. See Commonwealth v. Hudson, 92 A.3d 1235:, 124t(Pa. Super. 2014) (stating
that under Gar!}, salient question for suppression court was whether police officers had
probable cause to conduct warrantless search). See also Commonwealth v. Freeman,
128 A.3d 1231, 1243 (Pa. Super. 2015); In re I.M.S., 124 A3d 311, 316-17 (Pa. Super.
2015).
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from the scene, gave the police officers probable cause to search Gary's motor vehicle.
Id. at 105, 138.
B. The officers lacked probable cause to search the trunk and its
liner following the recovery of drugs from the passenger
compartment of the car.
Under Superior Court case law applying Gary, when police establish "probable
cause" to search the interior of a vehicle, including closed containers, the search is still
subject to legal boundaries. To be lawful, the search must be "reasonable" and the
search of any closed containers inside the vehicle is restricted to the areas that may
conceal the object of the search. In re I.M.S., 124 A.3d 311, 316 (Pa. Super. 2015)
(applying Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)).
Applying these principles to the totality of the circumstances of the contested search, we
review whether the officers had probable cause to conduct,first, the warrantless search
of the passenger compartment of the vehicle and, second, the warrantless search of the
trunk of the vehicle. See Gary, 91 A.3d at 104, 138.
Based upon the odor of marijuana emanating from the vehicle, we concluded that
the police officers had probable cause to search the passenger compartment of the car,
including any containers therein, for marijuana. Officer Hasara recovered a bag of
marijuana, as well crack cocaine, hidden inside a shoe, which was a container that
reasonably could have concealed the fresh marijuana the officers had smelled.
The search of the trunk and the interior of its liner presents an entirely different
question. The Commonwealth adduced no credible testimony or other evidence to
suggest that it was reasonable for the officers to continue searching the vehicle for drugs
after they recovered the marijuana and crack cocaine in the shoe. No testimony was
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presented that the odor of marijuana continued to linger in or around the car after that
shoe was recovered. Further, there was no testimony that the officers could smell
marijuana near the trunk at any time during their investigation of Defendant's vehicle or
in the gap from which they recovered the firearm. The officers offered no reasonable
basis to explain why they had probable cause to open the trunk and search it.
The facts of this case are distinguishable from Gary, where the officers testified
that they could detect the odor of marijuana emanating from the driver and passenger
sides of the vehicle as they approached the vehicle, the officers then summoned a K-9
dog to conduct a search, and the defendant attempted to flee the scene. Nor do the facts
of the instant case resemble those of Commonwealth v. Stoner, where the police officer
described the smell emanating from the car that was later searched as being "similar to
· standing in the center of a field of marijuana" and was "certain that the odor was too
strong to be coming from the small amount of the drug he could see." Id, 344 A.2d 633,
634, 635 (Pa. Super. 1975).
Having "probable cause" under Gary or Stoner does not give the police carte
blanche to seek out and seize "evidence" in the vehicle beyond what "may conceal the
object of the search." In re I.M.S., 124 A.3d at 316. We did not err in suppressing the
firearm recovered from the liner of the trunk, to which the officers over-extended their
warrantless search in violation of the Fourth and Fourteenth Amendments of the U.S.
Constitution, and ArticJe I Section 8 of the Pennsylvania Constitution.
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IV. Conclusion
For the reasons discussed supra, we conclude that the police officers did not have
the "probable cause" under Gary or Stoner necessary to expand their search beyond the
passenger compartment of the vehicle where the odor of marijuana did not persist after
recovering the drugs. Without valid consent or true probable cause under the Fourth
and.Fourteenth Amendments or Article I Section 8 to search the trunk, the
Commonwealth cannot establish a valid exception to the warrant requirement and avoid
suppression of the gun recovered from the trunk liner of the car. We respectfully
request that our order of October 31, 2017 be affirmed.
BY THE COURT:
Stella Tsai, J.
January 23, 2018
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