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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