J-S80044-18
2019 PA Super 154
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TRAVIS SCOTT : No. 3994 EDA 2017
Appeal from the Order November 15, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002581-2017
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
DISSENTING OPINION BY BOWES, J.: FILED MAY 10, 2019
I respectfully dissent from the majority’s decision herein. In my view,
the warrantless search of Appellee’s trunk was supported by probable cause
under controlling legal precedent, thereby requiring reversal of the trial court’s
suppression ruling.
The majority correctly recognizes that in Commonwealth v. Gary, 91
A.3d 102 (Pa. 2014) (plurality),1 the Pennsylvania Supreme Court aligned
Pennsylvania jurisprudence with the United States Supreme Court’s
interpretation of the Fourth Amendment with regard to vehicle searches. In
so doing, it held that, where police possess probable cause to search a car, a
warrantless search is permissible. Id. at 138 (holding that, in this
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1Gary was a plurality opinion announcing the judgment of the Supreme Court.
However, this Court has adopted the holdings of Gary in subsequent opinions.
See Commonwealth v. Freeman, 128 A.3d 1231, 1243 (Pa.Super. 2015);
In re I.M.S., 124 A.3d 311, 317 (Pa.Super. 2015).
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Commonwealth, the law governing warrantless searches of motor vehicles is
coextensive with federal law under the Fourth Amendment).
The majority also acknowledges that in United States v. Ross, 456
U.S. 798 (1982), the Supreme Court of the United States held that, “[i]f
probable cause justifies the search of a lawfully stopped vehicle, it justifies
the search of every part of the vehicle and its contents that may conceal
the object of the search.” Id. at 825 (emphasis added). In applying Ross,
this Court has ruled “if a police officer possesses probable cause to search a
motor vehicle, he may then conduct a search of the trunk compartment
without seeking to obtain probable cause relative to the particularized area.”
Commonwealth v. Bailey, 545 A.2d 942, 944 (Pa.Super. 1988).
Here, the majority tacitly concludes, as did the trial court, that the
officers lawfully stopped Appellee’s vehicle and developed probable cause to
conduct a warrantless search of the vehicle for contraband when they smelled
a strong odor of burnt marijuana and observed Appellee attempting to place
a marijuana blunt in the center console. Indeed, as the majority points out,
the trial court denied suppression as it related to the marijuana, even though
Appellee did not contest the search insofar as it encompassed the passenger
compartment of the vehicle. See Majority Opinion at 4 n.3. However, the
majority adopts the trial court’s finding that the probable cause that supported
the officers’ warrantless search of the passenger compartment of the vehicle
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did not support a search of the trunk compartment. Such a conclusion flies in
the face of Ross and Bailey, and is legally incorrect.
Under Ross, once the officers developed probable cause to conduct a
warrantless search of the vehicle, the scope of the search was not limited to
the passenger area of the vehicle, but broadly extended to “every part of the
vehicle . . . that may conceal the object of the search.” Ross, supra at 825;
see also Bailey, supra. The High Court explained that the scope of a
warrantless search of an automobile “is defined by the object of the search
and the places in which there is probable cause to believe that it may be
found.” Id. at 824 (emphasis added). The High Court specifically instructed
that
When a legitimate search is under way, and when its purpose and
its limits have been precisely defined, nice distinctions between
closets, drawers, and containers, in the case of a home, or
between glove compartments, upholstered seats, trunks,
and wrapped packages, in the case of a vehicle, must give
way to the interest in the prompt and efficient completion of the
task at hand.
Ross, supra at 821.
Here, it is undisputed that a legitimate warrantless search was
underway, and that the object of the search was contraband.2 Therefore,
under Ross and Bailey, the officers were permitted to search every part of
Appellee’s vehicle in which contraband might be found, including the trunk.
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2Philadelphia Police Officer Kerr testified at the suppression hearing that he
was searching the vehicle for narcotics. N.T., 10/30/17, at 11-12.
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Ross, supra at 825, Bailey, supra at 944. The majority’s attempt to exempt
the trunk compartment from a legitimate vehicle search constitutes the very
type of “nice distinctions” that the High Court expressly rejected in Ross.
Ross, supra at 821. It is also inconsistent with established Pennsylvania
precedent. See Commonwealth v. Runyan, 160 A.3d 831, 837-38
(Pa.Super. 2017) (holding that where police smelled burnt marijuana and
observed a small bag of what appeared to be marijuana, they had probable
cause to conduct a warrantless search of the vehicle for contraband, and were
permitted to search any container found therein where the contraband could
be concealed, including appellee’s purse); In re I.M.S., supra (holding that,
where driver admitted that his juvenile passenger had been smoking
marijuana in the car, and police smelled an odor of burnt marijuana and
observed marijuana flakes on the juveniles shirt and pants, the police had
probable cause to conduct a warrantless search of the automobile for
contraband, including a search the juvenile’s drawstring bag where
contraband could be concealed); Bailey, supra (holding that the officer’s
observance of a clear plastic baggie containing a white substance believed to
be a controlled substance, coupled with the officer’s detection of a “chemical-
type” smell, established probable cause to search the passenger area and
trunk of the vehicle); Commonwealth v. Stoner, 344 A.2d 633, 635
(Pa.Super. 1975) (holding that probable cause to search the vehicle for
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contraband arose after police observed marijuana seeds and leaves inside the
passenger compartment of the vehicle).
As I believe that the majority’s conclusion that the probable cause
supporting the warrantless search of the passenger compartment did not also
extend to the trunk of the vehicle is erroneous, I dissent.
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