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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                                    -2-
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


                                              3
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



                                            4
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


                                                5
            • 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
                            '
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).


                                              6
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


                                              7
 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.




                                              8
       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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