J-S16022-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD LEE WAY                             :
                                               :
                       Appellant               :   No. 1449 EDA 2019

         Appeal from the Judgment of Sentence Entered April 16, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0003558-2018


BEFORE: DUBOW, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                             Filed: July 30, 2020

       Donald Lee Way appeals from the judgment of sentence entered

following his convictions for possession with intent to deliver a controlled

substance (“PWID”), possession of drug paraphernalia, and institutional

vandalism.1 He challenges the trial court’s denial of his motion to suppress.

We affirm.

       Way’s convictions stem from what began as a traffic stop. During this

traffic stop, officers searched Way’s vehicle and they arrested and charged

him with the above referenced offences. Way filed a motion to suppress

arguing that the search of the vehicle was illegal because the officers did not

have probable cause. See N.T., Motion to Suppress, 10/19/18, at 3.


____________________________________________


1 35 Pa.C.S. §§ 780-113(a)(30), (32) and 18 Pa.C.S.A. § 3307(a)(3),
respectively.
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     The trial court summarized its findings of facts from the motion to

suppress hearing as follows:

        On April 9, 2018, at approximately 8:30 PM, in the area of
        Bailey Road and Orchard Avenue in Yeadon, Delaware
        County, Officer Leah Cesanek initiated a stop on a Honda
        Coupe with expired registration. (N.T. 10/19/18, p. 6). The
        vehicle turned onto Orchard Road and pulled over to the side
        of the road. (N.T. 10/19/18, p. 7). When the vehicle
        stopped, [Way] stepped out and despite being ordered back
        into the car, refused to do so. (N.T. 10/19/18, p. 9) [Way]
        did not park the car legally. (N.T. 10/19/18, p. 12). [Way]
        was the sole occupant in the car. (N.T. 10/19/18, p. 9).
        Once again, after the Officer told [Way] to get back into the
        car, he refused and proceeded to run up Orchard Avenue.
        (N.T. 10/19/18, p. 9). [Way] did not close the driver's side
        door. (N.T. 10/19/18, p. 19). Officer Cesanek pursued
        [Way], who was caught by another officer. (N.T. 10/19/18,
        p. 9). Sergeant Reynolds stayed with the vehicle during the
        pursuit. (N.T. 10/19/18, p. 9). [Way] was searched and then
        placed in the back of Officer McGrenera's patrol car. (N.T.
        10/19/18, p. 9). Upon inspection of [Way’s] car, Officer
        Cesanek observed through the open driver's side door a
        clear plastic baggie with "green vegetable -like matter" that
        the officer believed to be marijuana. (N.T. 10/19/18, p. 13).
        Officer Cesanek also smelled a strong odor of fresh
        marijuana coming from the vehicle. (N.T. 10/19/18, p. 13).

        A search of [Way’s] vehicle led to the discovery of two
        additional green plastic vials containing suspected
        marijuana and one plastic baggie containing a second
        baggie within that bag containing suspected marijuana.
        (N.T. 10/19/18, p. 14). In the rear of the car was a Mason
        jar containing 16 clear plastic baggies containing marijuana,
        and an unopened box of plastic baggies that were identical
        to the other plastic baggies in the car. (N.T. 10/19/18, p.
        15). [Way’s] vehicle was subsequently towed. (N.T.
        10/19/18, p. 16).




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Trial Ct. Op., filed 10/24/19, at 2. The court did not rule on the motion at the

hearing but eventually entered an order denying the motion. See Order, filed

10/22/18.

      Way proceeded with a stipulated bench trial. See N.T., Trial 4/15/19 at

11. The next day, the court found Way guilty of the above-referenced offenses

and imposed concurrent sentences on each conviction: 11-1/2 to 23 months’

incarceration for PWID; 12 months’ probation for possession of drug

paraphernalia; and nine months’ probation for institutionalized vandalism.

See N.T., 4/16/19, at 3, 6. This timely appeal followed.

      Way presents one issue before this Court:

           Whether the suppression court erred when it failed to find
           that the police conducted an unconstitutional, warrantless
           search of Appellant's parked vehicle in light of the physical
           evidence presented at the suppression hearing that the
           vehicle door could not have remained open following
           Appellant's exit, thus not subject to a permissible
           warrantless search?

Way’s Br. at 4.

      Our standard of review of the denial of a motion to suppress is well

settled:

           [An appellate court's] standard of review in addressing a
           challenge to the denial of a suppression motion is limited to
           determining whether the suppression court's factual
           findings are supported by the record and whether the legal
           conclusions drawn from those facts are correct. Because the
           Commonwealth prevailed before the suppression court, we
           may consider only the evidence of the Commonwealth and
           so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
           whole. Where the suppression court's factual findings are

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         supported by the record, [the appellate court is] bound by
         [those] findings and may reverse only if the court's legal
         conclusions are erroneous. Where ... the appeal of the
         determination of the suppression court turns on allegations
         of legal error, the suppression court's legal conclusions are
         not binding on an appellate court, whose duty it is to
         determine if the suppression court properly applied the law
         to the facts. Thus, the conclusions of law of the courts below
         are subject to [ ] plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa.Super. 2015) (quoting

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010)).

      Way claims that “the police were precluded from searching [Way’s]

parked vehicle without a warrant under [Arizona v.] Gant, [556 U.S. 332

(2009),] since he was secured by police away from the vehicle[.]” Way’s Br.

at 11. He also alleges that the warrantless search is not valid because the

officer’s would not have observed anything “if the driver’s side vehicle door

was actually closed.” Id. at 12.

      “Generally, a warrant stating probable cause is required before a police

officer may search for or seize evidence.” Commonwealth v. Bumbarger, -

-- A.3d ---, 2020 WL 1242438 at *7 (Pa.Super. 2020). However, the plain

view doctrine provides that “when an officer is lawfully in a position to view

an item, the incriminating nature of which is immediately apparent, he may

legitimately seize that item.” Commonwealth v. Zhahir, 751 A.2d 1153,

1160 (Pa. 2000). This doctrine applies if:

         1) police did not violate the Fourth Amendment during the
         course of their arrival at the location where they viewed the
         item in question; 2) the item was not obscured and could be
         seen plainly from that location; 3) the incriminating nature


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         of the item was readily apparent; and 4) police had the
         lawful right to access the item.

Commonwealth v. Anderson, 40 A.3d 1245, 1248 (Pa. Super. 2012)

(citation omitted).

      Here, Officer Cesanek testified that he initially conducted a traffic stop

of Way’s vehicle because his vehicle’s registration was expired. An officer has

authority to stop a vehicle when the officer observes the driver commit a traffic

violation, and Way does not dispute that Officer Cesanek had the authority to

conduct a traffic stop of Way’s vehicle for his expired registration. See

Commonwealth v. Calabrese, 184 A.3d 164, 167 (Pa.Super. 2018)

(“Pennsylvania law makes clear that a police officer has probable cause to stop

a motor vehicle if the officer observes a traffic code violation, even if it is a

minor offense.”) (citation omitted).

      Way’s argument is that Officer Cesanek could not have seen the drugs

in the vehicle because his driver side door was closed. However, the trial court

made a finding of fact that Way’s door was open, based on Officer Cesanek’s

testimony. Additionally, the trial court credited Officer Cesanek’s testimony

that he smelled a strong odor of marijuana as he approached the vehicle,

which invoked the plain smell doctrine, also giving him probable cause to

search the vehicle. See Commonwealth v. Stoner, 344 A.2d 633, 636

(Pa.Super. 1975) (plain smell of marijuana gives officer probable cause to

search vehicle); see also Commonwealth v. Batista, 219 A.3d 1199, 1206

(Pa.Super. 2019) (stating deference given to suppression court’s factual



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findings). As such, the trial court did not abuse its discretion in denying Way’s

motion to suppress.

      His citation to Gant is inapposite. The Court in Gant held that “[p]olice

may search a vehicle incident to a recent occupant's arrest only if the arrestee

is within reaching distance of the passenger compartment at the time of the

search or it is reasonable to believe the vehicle contains evidence of the

offense of arrest.” Gant, 533 U.S. at 351. The search here was not a search

incident to arrest. We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/30/20




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