J-S49022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

LATEEF FAISON

                            Appellee                 No. 3076 EDA 2013


                     Appeal from the Order October 4, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006929-2012


BEFORE: OLSON, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                               FILED APRIL 10, 2015

       The Commonwealth appeals1 from the order dated October 4, 2013,

entered in the Court of Common Pleas of Philadelphia County, granting

Lateef Faison’s motion to suppress physical evidence obtained by the police

following the warrantless search of his vehicle. The Commonwealth claims

the trial court erred in suppressing a baggie of pills found in the car because

the contraband was observed in plain view during a lawful traffic stop. After

a thorough review of the submissions by the parties, the certified record,

and relevant law, we affirm.


____________________________________________


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).
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      The trial court recounted the testimony from the suppression hearing

as follows:

            On May 26, 2012 at approximately 6:30 p.m., Defendant
      Lateef Faison made an illegal left turn on a red light. Officers
      witnessed [Faison]’s illegal traffic maneuver and immediately
      followed [Faison]. [Faison] parked his vehicle on the pavement,
      exited the vehicle, and walked away while the vehicle was still
      running. As [Faison] walked away, officers pulled up and parked
      behind [Faison]’s parked car. An officer exited the vehicle,
      stopped [Faison], and brought [him] back to [his] vehicle to
      issue a citation.

             As the officer opened [Faison]’s driver-side door to place
      [Faison] back in the vehicle, the officer noticed a gun between
      the driver seat and the console. [Faison] was able to produce a
      valid permit to carry a firearm and at no time did [Faison] reach
      for the gun. In reaching into the vehicle to secure the weapon
      and unload it, the officer noticed a bag of blue pills on the floor
      of the passenger’s side of the vehicle. The officer called Poison
      Control in order to identify the pills, because he did not know
      what they were. After describing the markings, Poison Control
      told the officer that the pills were Schedule II narcotics.

            [Faison] was arrested and charged with Manufacture,
      Delivery, or Possession with Intent to Manufacture or Deliver (35
      P.S. § 780-113(a)(30)), Intentional Possession of a Controlled
      Substance (35 P.S. § 780-113(a)(16)), and Possessing
      Instruments of Crime (18 Pa.C.S.A. § 907(a)).

Trial Court Opinion, 4/1/2014, at 1-2 (record citations omitted).

      On July 17, 2013, Faison filed a motion to suppress the drugs seized

during the search of his car. On October 4, 2013, a suppression hearing was




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held, and the trial court granted Faison’s motion. The Commonwealth filed

this timely appeal.2

       In its sole issue on appeal, the Commonwealth argues the trial court

erred in suppressing the pills found in Faison’s car because the seizure of the

drugs was proper where the officers observed the contraband in plain view.

Commonwealth’s Brief at 8. The Commonwealth contends it met all of the

requirements of the “plain view” test based on the following.      First, Police

Officer Chris Sharamatew was at a lawful vantage point when he observed

the bag of pills on the floor of the car after conducting a proper traffic stop.

Id.   Second, the incriminating nature of the bag of pills was immediately

apparent. Id. at 9. Third, the Commonwealth states the officer had a lawful

right of access to the baggie of pills under the automobile exception to the

warrant requirement. Id. at 11, citing Commonwealth v. Gary, 91 A.3d

102 (Pa. 2014).

       With regard to the “immediately apparent” factor, the Commonwealth,

relying on Commonwealth v. Liddie, 21 A.3d 229 (Pa. Super. 2011),

maintains the officer need not be absolutely certain that the substance is
____________________________________________


2
   The Commonwealth’s appeal was originally dismissed for failure to file a
docketing statement under Pa.R.A.P. 3517. The Commonwealth then filed a
motion to reinstate the appeal due to a breakdown in the notification
process. On January 21, 2014, by per curiam order, this Court granted to
the motion to reinstate the appeal.

     In a related matter, Faison did not file an appellee’s brief in this
appeal.



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incriminating and that his belief need only be supported by probable cause.

Id.   Moreover, it alleges that based on the totality of the circumstances,

there was probable cause, in the present case, to support the officer’s belief

that the pills were incriminating.      The Commonwealth points to the

following: “[Faison] walked away from his car while it was still running after

being stopped for a traffic violation. Further, the pills were packaged in a

plastic baggie, [Faison] did not produce a prescription for them, and they

were in close proximity to a gun.” Id. at 10.

      Our standard of review is as follows:

      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. Baker, 946 A.2d 691, 693 (Pa. Super. 2008) quoting

Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 2005). “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 omitted).       Nevertheless, the

suppression court’s conclusions of law are not binding on an appellate court,

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and are subject to plenary review. Commonwealth v. Johnson, 969 A.2d

565, 567 (Pa. Super. 2009) (citations omitted).

        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).

        We note that “[u]ntil recently, 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.”         Hudson, 92 A.3d at

1241.    However, in Gary, supra, the Pennsylvania Supreme Court, in an

Opinion Announcing the Judgment of the Court (“OAJC”),3 “adopt[ed] the

____________________________________________


3
   It merits mention that 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.”).

     Moreover, we note that Gary was decided on April 29, 2014, after the
suppression hearing in this case. Neither this Court nor the Supreme Court
(Footnote Continued Next Page)


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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 require any exigency beyond the inherent mobility of a motor

vehicle.” Gary, 91 A.3d at 104.4 Here, the Commonwealth does not allege

exigent circumstances justified the warrantless search of Faison’s vehicle.




                       _______________________
(Footnote Continued)

has explicitly addressed the issue of whether Gary applies retroactivity.
Nevertheless, “the general rule in Pennsylvania is to apply the law in effect
at the time of the appellate decision.” Commonwealth v. Housman, 986
A.2d 822, 840 (Pa. 2009).

      Furthermore, in Hudson, supra, a panel of this Court analyzed and
applied Gary to the Commonwealth’s appeal when the suppression hearing
was held before Gary was decided. Similarly, in Commonwealth v. Dunn,
95 A.3d 272 (Pa. 2014), the Pennsylvania Supreme Court vacated a decision
of this Court, filed pre-Gary, and remanded for reconsideration in light of
Gary. On remand, a panel of this Court then applied Gary to the matter.
Commonwealth v. Dunn, 2014 Pa. Super. LEXIS 4775 [1568 EDA 2011]
(Pa. Super. Sept. 29, 2014) (unpublished memorandum).
4
    Further, the Court determined:

       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.




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Therefore, our review in this matter is confined to the plain view exception

to the search warrant requirement.

       Warrantless     searches    or    seizures    are   presumptively
       unreasonable subject to certain established exceptions. One
       exception, the plain view doctrine, permits the warrantless
       seizure of an object when: (1) an officer views the object from a
       lawful vantage point; (2) it is immediately apparent to him that
       the object is incriminating; and (3) the officer has a lawful right
       of access to the object.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)

(emphasis added), appeal denied, 2014 Pa. LEXIS 3507 [323 EAL 2014] (Pa.

Dec. 30, 2014).

       In determining whether the incriminating nature of an object [is]
       immediately apparent to the police officer, we look to the totality
       of the circumstances. An officer can never be one hundred
       percent certain that a substance in plain view is incriminating,
       but his belief must be supported by probable cause. In viewing
       the totality of the circumstances, the officer’s training and
       experience should be considered.

Commonwealth v. Miller, 56 A.3d 424, 430 (Pa. Super. 2012) (citations

and quotation marks omitted).5

       Here, the trial court found the following:

       [Faison] properly argues that the incriminating nature of the bag
       of pills had to be readily apparent to the police officer in order
       for the warrantless search and seizure to be conducted. The
       arresting officer admits that he did not know the nature of the
____________________________________________


5
    “Immediately apparent” has been defined in plain feel exception cases,
which are analogous to plain view exception matters, as that which “the
officer readily perceives, without further exploration or searching[.]”
Commonwealth v. Stevenson, 744 A.2d 1261, 1265 (Pa. 2000).



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      pills when he recovered them from [Faison]’s vehicle. N.T.
      10/04/2013, at 8-9. The officer clearly indicated that he “did not
      know what the pills were at the time.” N.T. 10/04/2013, at 10.
      It was not until the officer later contacted Poison Control that he
      learned the identity of the pills. Id. The incriminating nature of
      the pills was therefore not immediately apparent to the officer as
      is needed for the plain view exception to the warrant
      requirement to apply.

Trial Court Opinion, 4/1/2014, at 3-4.

      Applying the three-part test of the plain view doctrine to the facts

presently, it is clear that the court found the Commonwealth did not meet its

burden with respect to the second prong, that the incriminating nature of the

bag of pills was immediately apparent to the officer.     We agree with the

court’s finding.

      Moreover, this case is substantially similar to Hudson, supra.        In

Hudson, the police officers conducted a traffic stop of the defendant’s car

due to a broken tail light. Hudson, 92 A.3d at 1237. During the stop, the

officers noticed the defendant reaching for the center console area. Id. The

officers then conducted a protective search of the car, and when they

opened the console, they observed three pill bottles. Id. Two pill bottles

had the labels partially removed, while the label on third bottle was still

intact and bore the defendant’s name. Id. The bottles were seized and the

defendant was arrested.      Id.    The pills were later determined to be

prescription pain medication. Id. The defendant filed a motion to suppress,

which was granted. Id. The trial court found the following:




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       [The officer] was not able to testify that it was "immediately
       apparent" to him that these pill bottles contained illegal drugs.
       He admitted that he did not know what these bottles contained.
       He had to call Poison Control to conduct testing in order to
       determine that these were illegal narcotics. If such items were
       immediately apparent to him to be contraband, there would have
       been no need to have Poison Control conduct such tests.

Id. at 1242. On appeal, a panel of this Court affirmed the trial court’s order,

stating:

       We agree with the suppression court's conclusion that while the
       pill bottles themselves were in plain view, the contents of those
       bottles were not immediately apparent, and a pill bottle by itself
       is not contraband. Suppression Court Opinion, 7/19/13, at 1.
       The potentially incriminating contents of the pill bottles were not
       discovered until after they were improperly seized, searched,
       and tested, thereby proving that the "immediately apparent"
       requirement for the plain view exception had not been satisfied.

Id.

       We believe that this case warrants similar treatment. Indeed, Officer

Sharamatew testified:

       And just so you know, Your Honor, before then, I did contact
       Poison Control because I didn’t know what the pills were. So I
       contacted Poison Control, described what the markings were on
       the pills, and they notified me that it was [a] Schedule II
       narcotic and at that point he was place[d] under arrest. I didn’t
       know what the pills were at the time.

N.T., 10/4/2013, at 9-10. Without more evidence,6 the fact that Faison had

a bag of nondescript pills in his car did not place the drugs in plain view as

____________________________________________


6
  We find the totality of the circumstances did not establish probable cause
to believe the bag of pills was incriminating. While Officer Sharamatew did
not need to be one hundred percent certain that the drugs were
(Footnote Continued Next Page)


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their incriminating nature was not readily apparent.      Consequently, the

Commonwealth did not establish the officer had probable cause to seize the

drugs.

      Accordingly, pursuant to Gary and Hudson, the warrantless seizure of

the bag of pills in Faison’s car was unlawful, and we discern no reason to

reverse the trial court’s order. See Hudson, 92 A.3d at 1243. Accordingly,

the Commonwealth’s argument fails, and we affirm the trial court’s order

granting Faison’s motion to suppress.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015
                       _______________________
(Footnote Continued)

incriminating, he was very uncertain regarding their substance and there
was no testimony presented as to his training or experience with illegal
narcotics. See Miller, 56 A.3d at 430. Moreover, the record does not
support the Commonwealth’s implication that Faison fled, where he walked
away from the car while it was running after being stopped for a traffic
violation.   See Commonwealth’s Brief at 10.        The officer testified he
observed Faison make the illegal turn and followed, watching Faison pull
over and get out of the car. N.T., 10/4/2013, at 5-6. However, the officer
does not state that he turned on the lights or siren, and he did not verbally
tell Faison to stop. Likewise, we reject the Commonwealth’s assertion that
because the drugs were close in proximity to the gun, for which Faison had a
valid permit, there was probable cause to believe the pills were
incriminating.



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