J-A18032-17

                                  2018 PA Super 102


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.

OPINION BY OTT, J.:                                   FILED APRIL 30, 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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J-A18032-17


       [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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J-A18032-17


       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

                                       -5-
J-A18032-17


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.”)

                                           -6-
J-A18032-17


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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J-A18032-17


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.




____________________________________________


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.

                                           -8-
J-A18032-17


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

                                     -9-
J-A18032-17


     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.

                                    - 10 -
J-A18032-17


       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.

                                          - 11 -
J-A18032-17


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.

                                          - 12 -
J-A18032-17


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.”).



                                          - 13 -
J-A18032-17


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).

                                          - 14 -
J-A18032-17


     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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J-A18032-17



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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J-A18032-17


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: 4/30/2018

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