J-S76039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    MARVIN THOMAS,

                             Appellant               No. 2079 EDA 2017


              Appeal from the Judgment of Sentence May 17, 2017
               in the Court of Common Pleas of Delaware County
               Criminal Division at No.: CP-23-CR-0000844-2013


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 18, 2018

        Appellant, Marvin Thomas, appeals from the judgment of sentence

entered on May 17, 2017, following his non-jury conviction of one count each

of persons not to possess firearms and firearms not to be carried without a

license,1 and two counts each of possession with intent to deliver (PWID),

possession of a controlled substance, and possession of drug paraphernalia.2

On appeal, Appellant challenges the trial court’s denial of his motion to


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*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1), respectively.

2   35 P.S. § 780-113(a)(30), (16) and (32), respectively.
J-S76039-17


suppress. For the reasons discussed below, we affirm in part and vacate in

part.3

         We take the underlying facts and procedural history in this matter from

the trial court’s February 17, 2017 memorandum, the notes of testimony of

the July 2, 2013 suppression hearing, this Court’s November 23, 2016 opinion

on Appellant’s first direct appeal, and our independent review of the certified

record.

         On January 9, 2013, at approximately two p.m., Chester City Police

Department Detective Calvin Butcher, a twenty-year veteran with extensive

narcotics experience, was with a group of officers who had been dispatched

to the 1400 block of Congress Street in Chester.        (See N.T. Suppression

Hearing, 7/02/13, at 24-30). The area was a high-crime area, known for drug

dealing and shootings; within the prior two weeks there had been two

homicides and multiple shootings within two to four blocks of this area. (See

id. at 25-26). The group was directed to break up large groups of loitering

individuals, obtain identifications, issue citations, and, if necessary, make

arrests. (See id.).




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3 Although we affirm in part, our reasoning is different from that of the trial
court. See Commonwealth v. Harper, 611 A.2d 1211, 1213 n.1 (Pa. Super.
1992) (“It is well-settled that an appellate court may affirm the decision of
the trial court if there is any basis on the record to support the trial court’s
action. This is so even if we rely upon a different basis in our decision to
affirm.”) (citations omitted).

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       The group of police arrived in full uniform in a marked police vehicle;

Detective Butcher immediately saw a group of men congregating on the

sidewalk in front of several apartment buildings. (See id. at 30). As the

police cars came to the area, the men scattered in various directions. (See

id. at 32-33).     Detective Butcher noticed one man, later identified as

Appellant, who was carrying a backpack, because he moved away quickly

while nervously gazing behind him in the direction of the police and their

parked cars. (See id. at 33-34). Detective Butcher directed Chester City

Police Officer George Gizzi to obtain identification from Appellant. (See id. at

35).   Detective Butcher did not witness Appellant engage in any criminal

activity. (See id. at 38).

       Officer Gizzi, a veteran police officer, with training in the detection of

the scent of fresh and burnt marijuana, approached Appellant, who was about

to enter his vehicle, and asked him for identification. Appellant said he did

not have any. (See id. at 44-46, 51-52). Officer Gizzi did not stop Appellant

from attempting to enter his car, did not draw his weapon, did not tell

Appellant that he was under arrest, and did not tell Appellant that he was not

free to leave. (See id. at 51-52). From a distance of approximately two feet

from Appellant, Officer Gizzi detected the smell of marijuana emanating from

him. (See id. at 52). He observed Appellant fumbling with his backpack,

putting it on the roof of the car, and trying to push it away. (See id. at 54).

Officer Gizzi told Appellant that his actions were making him nervous and that


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he was going to pat him down for weapons. (See id.). He did not find any.

(See id.).    He then realized that the backpack also smelled strongly of

marijuana. (See id.). He pulled it open and saw marijuana on top, in plain

sight. (See id. at 54-55). Officer Gizzi was concerned that there might be a

weapon in the bag, he looked further into it and found more marijuana,

nineteen bags of suspected cocaine, a used pill bottle, and eleven other bags

hidden in a candy box.     (See id. at 55-56).   He arrested Appellant and

conducted what he termed as an “inventory” of his car. (See id. at 56-57).

He found a black handgun in the glove box. (See id. at 57-58).

     The police took Appellant back to the station. (See id. at 59). During

booking, the police recovered another thirty bags of cocaine from Appellant’s

person. (See id. at 60).

     On March 6, 2013, the Commonwealth filed a criminal information. On

April 9, 2013, Appellant filed a motion to suppress. A hearing on Appellant’s

motion to suppress took place on July 2, 2013. The trial court did not issue

any written orders with respect to the motion. A bench trial took place on

stipulated facts on November 19, 2013. The trial court found Appellant guilty

of the aforementioned charges and found that the crimes occurred in a school

zone and that the gun was in close proximity to the drugs.

     On March 19, 2014, immediately prior to sentencing, the parties reached

an agreement regarding Appellant’s sentence, which they placed on the

record. In exchange for Appellant waiving his appellate and Post-Conviction


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Relief Act rights, the Commonwealth agreed to a sentence of incarceration of

not less than eight and one-half nor more than twenty years. The trial court

sentenced Appellant in accordance with the terms of the agreement.

      On March 28, 2014, Appellant filed a pro se motion for reconsideration

of sentence and change of appointed counsel, which was denied by operation

of law. On February 27, 2015, Appellant filed pro se motions to correct the

sentence sheet nunc pro tunc and for appointment of counsel. The motions

asserted a violation of Alleyne v. United States, 133 S. Ct. 2151 (2013).

After the motions were denied by operation of law, Appellant filed a notice of

appeal.

      On November 23, 2016, this Court vacated the judgment of sentence

because the trial court sentenced Appellant to an unconstitutional mandatory

minimum sentence and remanded the matter for resentencing.                  (See

Commonwealth v. Thomas, No. 668 EDA 2016, unpublished memorandum

at 6-7 (Pa. Super. filed Nov. 23, 2016)). Importantly, this Court held it could

not address Appellant’s claim concerning the trial court’s denial of his motion

to suppress because the record contained neither an order denying the motion

nor any findings of fact or conclusions of law with respect to the motion. (See

id. at 10-11). We directed that, on remand, the trial court should enter such

findings of fact and conclusions of law prior to resentencing. (See id.).

      On remand, the trial court complied with our directives with respect to

the suppression motion and resentenced Appellant to an aggregate term of


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incarceration of not less than eight nor more than twenty years. The instant,

timely appeal followed. On July 11, 2017, the trial court directed Appellant to

file a concise statement of errors complained of on appeal.       See Pa.R.A.P.

1925(b). On July 28, 2017, Appellant timely filed a Rule 1925(b) statement.

See id. On August 17, 2017, the trial court filed an opinion. See Pa.R.A.P.

1925(a).

      On appeal, Appellant raises the following issue for our review:

            Whether the [trial] court erred when it refused to suppress
      the fruits of the illegal stop and searches at issue herein, which
      police conducted without legal justification, and in violation of the
      rights guaranteed to Appellant by the Fourth and Fourteenth
      Amendments of the United States Constitution, and Article I,
      Section 8 of the Pennsylvania Constitution?

(Appellant’s Brief, at 6).

      On appeal, Appellant challenges the denial of his motion to suppress.

(See id. at 16-40). When we review a ruling on a motion to suppress, “[w]e

must determine whether the record supports the suppression court’s factual

findings and the legitimacy of the inferences and legal conclusions drawn from

these findings.”   Commonwealth v. Holton, 906 A.2d 1246, 1249 (Pa.

Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation omitted).

Because the suppression court in the instant matter found for the prosecution,

we will consider only the testimony of the prosecution’s witnesses and any

uncontradicted evidence supplied by Appellant.       See id.    If the evidence

supports the suppression court’s factual findings, we can reverse only if there

is a mistake in the legal conclusions drawn by the suppression court. See id.

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      Appellant first contends that he was subjected to an illegal investigative

detention when Officer Gizzi approached him and asked him for identification.

(See Appellant’s Brief, at 17, 25). We disagree.

      Initially, we note that this Court has held that there are three levels of

interaction between citizens and police officers:     (1) mere encounter, (2)

investigative detention, and (3) custodial detention. See Commonwealth v.

Jones, 874 A.2d 108, 116 (Pa. Super. 2005). Thus, we have stated:

             A mere encounter can be any formal or informal interaction
      between an officer and a citizen, but will normally be an inquiry
      by the officer of a citizen. The hallmark of this interaction is that
      it carries no official compulsion to stop or respond.

            In contrast, an investigative detention, by implication,
      carries an official compulsion to stop and respond, but the
      detention is temporary, unless it results in the formation of
      probable cause for arrest, and does not possess the coercive
      conditions consistent with a formal arrest. Since this interaction
      has elements of official compulsion it requires reasonable
      suspicion of unlawful activity. In further contrast, a custodial
      detention occurs when the nature, duration and conditions of an
      investigative detention become so coercive as to be, practically
      speaking, the functional equivalent of an arrest.

Id. (citation omitted).

             In determining whether an interaction should be considered
      a mere encounter or an investigative detention, the focus of our
      inquiry is on whether a seizure of the person has occurred. Within
      this context, our courts employ the following objective standard
      to discern whether a person has been seized: [w]hether, under all
      the circumstances surrounding the incident at issue, a reasonable
      person would believe he was free to leave. Thus, a seizure does
      not occur simply because a police officer approaches an individual
      and asks a few questions.




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Commonwealth v. Cooper, 994 A.2d 589, 592 (Pa. Super. 2010), appeal

denied, 13 A.3d 474 (Pa. 2010) (citations, quotation marks, and ellipses

omitted). We look to the following factors in determining whether there was

a seizure: “the number of officers present during the interaction; whether the

officer informs the citizen they are suspected of criminal activity; the officer’s

demeanor and tone of voice; the location and timing of the interaction; the

visible presence of weapons on the officer; and the questions asked.”

Commonwealth v. Collins, 950 A.2d 1041, 1047 n.6 (Pa. Super. 2008) (en

banc).

      Here, Officer Gizzi was part of a task force attempting to disburse large

gatherings and obtain identifications in a high-crime area notable for drugs

and shootings. (See N.T. Suppression Hearing, at 24-30). A fellow officer

asked him to get an identification from a man, carrying a backpack, who fled

at the sight of the police and kept looking back toward them. (See id. at 33-

34). Officer Gizzi approached Appellant on foot as Appellant was beginning to

unlock his car. (See id. at 51-52). Officer Gizzi did not try to stop Appellant

from entering his vehicle but merely asked him for identification. (See id. at

51-53).   Appellant did not have any.       (See id.).   At no time did he tell

Appellant that he was not free to leave, he did not make any physical moves

to prevent Appellant from leaving, did not threaten or command him, and did

not draw his weapon.     (See id.).    At the distance of about two feet from




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Appellant, he smelled marijuana emanating from him, at which point he

detained him. (See id.).

      Based upon our review of the record, we hold that Officer Gizzi’s initial

meeting with Appellant was a “mere encounter.” Here, Officer Gizzi did not

attempt to stop him from entering his vehicle but merely asked him for

identification. This is an encounter. See Commonwealth v. Downey, 39

A.3d 401, 405 (Pa. Super. 2012), appeal denied, 50 A.3d 124 (Pa. 2012)

(noting that initial encounter where officer asked to talk to appellant was mere

encounter); see also Commonwealth v. Blair, 860 A.2d 567, 573 (Pa.

Super. 2004) (stating that initial interaction was “mere encounter” when

officer, responding to report of domestic dispute and aware that domestic

disputes are volatile, approached vehicle parked directly in front of address in

question and spoke to occupants).

      There is no evidence that Officer Gizzi blocked or restricted Appellant’s

movement. See Downey, supra at 405.              Indeed, Appellant continued to

attempt to unlock his vehicle while Officer Gizzi spoke to him.               See

Commonwealth v. Jones, 874 A.2d 108, 116 (Pa. Super. 2005) (stating that

“[a] mere encounter can be any formal or informal interaction between an

officer and a citizen, but will normally be an inquiry by the officer of a citizen.

The hallmark of this interaction is that it carries no official compulsion to stop

or respond.”) (citation omitted). The fact that Officer Gizzi requested

identification from Appellant, without any other action, does not demonstrate


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that the encounter escalated into an investigative detention.              See

Commonwealth v. Au, 42 A.3d 1002, 1009 (Pa. 2012) (holding that officer’s

request for identification after approaching parked vehicle did not, by itself,

transform encounter into investigatory detention where officer did not

“activate the emergency lights on his vehicle; position his vehicle so as to

block the car that [a]ppellee was seated in from exiting the parking lot;

brandish his weapon; make an intimidating movement or overwhelming show

of force; make a threat or a command; or speak in an authoritative tone.”)

(citations omitted); see also Commonwealth v. Lyles, 97 A.3d 298, 303

(Pa. 2014) (noting that “a seizure does not occur where officers merely

approach a person in public and question the individual or request to see

identification.”) (citations omitted).   Thus, we conclude that Officer Gizzi’s

initial interaction with Appellant was a mere encounter and did not constitute

a seizure. See Lyles, supra at 303; Au, supra at 1008-09.

      Appellant next argues that the police lacked reasonable suspicion and/or

probable cause to justify the pat-down search of his person and the search of

his backpack. (See Appellant’s Brief, at 26-32). Again, we disagree.

      We again note that the initial meeting between Appellant and Officer

Gizzi was a mere encounter. However, once Officer Gizzi smelled marijuana

on Appellant, and told him he was going to search his person, we find that the




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police subjected Appellant to an investigative detention.4              This Court has

stated: “. . . an ‘investigative detention’ . . . carries an official compulsion to

stop and respond . . . . Since this interaction has elements of official

compulsion      it   requires    reasonable        suspicion   of   unlawful   activity.”

Commonwealth v. Mackey, --- A.3d ---, 2017 WL 6506599, at *3 (Pa.

Super. filed Dec. 20, 2017) (citation omitted). We have defined reasonable

suspicion thusly:

                     Reasonable suspicion is a less stringent
              standard than probable cause necessary to effectuate
              a warrantless arrest, and depends on the information
              possessed by police and its degree of reliability in the
              totality of the circumstances. In order to justify the
              seizure, a police officer must be able to point to
              specific and articulable facts leading him to suspect
              criminal activity is afoot. In assessing the totality of
              the circumstances, courts must also afford due weight
              to the specific, reasonable inferences drawn from the
              facts in light of the officer’s experience and
              acknowledge that innocent facts, when considered
              collectively, may permit the investigative detention.


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4 Our Supreme Court has stated “[t]he key difference between an investigative
and a custodial [detention] is that the latter involves such coercive conditions
as to constitute the functional equivalent of an arrest.” Commonwealth v.
Pakacki, 901 A.2d 983, 987 (Pa. 2006) (citation and internal quotation
omitted). In determining whether an encounter with the police is custodial,
“[t]he standard . . . is an objective one, with due consideration given to the
reasonable impression conveyed to the person interrogated rather than the
strictly subjective view of the troopers or the person being seized[,]” and
“must be determined with reference to the totality of the circumstances.”
Commonwealth v. Edmiston, 634 A.2d 1078, 1085-86 (Pa. 1993). Here,
Appellant was not restrained in any way, was not transported against his will,
and there was no use of force. (See N.T. Suppression Hearing, at 51-57).
Thus, it was an investigative detention rather than a custodial detention. See
Commonwealth v. Teeter, 961 A.2d 890, 899 (Pa. Super. 2008) (en banc).

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                                          *        *     *

            The determination of whether an officer had reasonable
      suspicion that criminality was afoot so as to justify an
      investigatory detention is an objective one, which must be
      considered in light of the totality of the circumstances. It is the
      duty of the suppression court to independently evaluate whether,
      under the particular facts of a case, an objectively reasonable
      police officer would have reasonably suspected criminal activity
      was afoot. . . .

Commonwealth v. Holmes, 14 A.3d 89, 95, 96 (Pa. 2011) (internal

citations, quotations, and emphasis omitted).                However, while reasonable

suspicion of unlawful activity is sufficient to justify a forcible stop, it does not

always justify a frisk for weapons. See Mackey, supra at *3.

      Here, as discussed above, Appellant, who was part of a group of men

loitering in a high-crime area, fled at the sight of the police.               (See N.T.

Suppression Hearing, at 25-26, 29-30, 33-34). When Officer Gizzi approached

Appellant he noted the strong smell of marijuana, and that he was fiddling

with his backpack in a furtive manner. (See id. at 51-52). This was sufficient

reasonable    suspicion    to   justify       an       investigative   detention.   See

Commonwealth v. Smith, 85 A.3d 530, 537 (Pa. Super. 2014) (holding

smell of marijuana constituted sufficient reasonable suspicion to justify a

seizure); see also Commonwealth v. Bailey, 947 A.2d 808, 815 (Pa. Super.

2008), appeal denied, 959 A.2d 927 (Pa. 2008).

      Moreover, with respect to the pat-down search of an appellant, we have

stated:




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      An overt threat by the suspect or clear showing of a weapon is not
      required for a frisk. It is well-established that [t]he officer need
      not be absolutely certain that the individual is armed; the issue is
      whether a reasonably prudent man in the circumstances would be
      warranted in the belief that his safety or that of others was in
      danger.

Commonwealth v. Mack, 953 A.2d 587, 591 (Pa. Super. 2008) (citations

and quotation marks omitted).

      Here, Officer Gizzi was in high-crime area in which numerous shootings

and two homicides had recently occurred. (See N.T. Suppression Hearing, at

25-26, 29-30). Appellant fled at the sight of police, holding a backpack. (See

id. at 33-34). Appellant smelled of marijuana and when speaking with Officer

Gizzi acted in a suspicious manner, fiddling with the backpack and trying to

move it away from the police.        (See id. at 52-54).       Officer Gizzi, an

experienced police officer, stated that Appellant’s activities were making him

nervous. (See id.). We find that this was sufficient to justify a protective

frisk. See Commonwealth v. Carter, 105 A.3d 765, 774-75 (Pa. Super.

2014) (en banc), appeal denied, 117 A.3d 295 (Pa. 2015) (holding that police

officer had reasonable suspicion to conduct protective frisk, where defendant

was in high-crime area, tried to leave area at sight of police, had bulge in coat

pocket, was aware of police presence, and deliberately turned his body away

several times to conceal bulge); Commonwealth v. Brown, 904 A.2d 925,

928 (Pa. Super. 2006), appeal denied, 919 A.2d 954 (Pa. 2007) (stating that

unprovoked flight in high-crime area from persons identifiable as police

officers is sufficient to establish reasonable suspicion to support investigative

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detention).   Accordingly, Appellant’s claim that that the police lacked

reasonable suspicion for a pat-down search lacks merit.

      Appellant also contends that the police lacked probable cause to search

his backpack. (See Appellant’s brief, at 26-32). The Commonwealth argues

that the warrantless search of Appellant’s backpack was justified under the

“plain smell” doctrine. (See Commonwealth’s Brief, at 17-22). We agree.

      Our standard of review for determining probable cause is well settled.

“Probable cause exists where the facts and circumstances within the officer’s

knowledge are sufficient to warrant a prudent individual in believing that an

offense was committed and that the defendant has committed it.”

Commonwealth v. Griffin, 24 A.3d 1037, 1042 (Pa. Super. 2011), appeal

denied, 34 A.3d 82 (Pa. 2011) (citation omitted). We do not ask 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.”

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citations and

quotation marks omitted, emphasis in original).      When assessing whether

probable cause was present, “we must consider the totality of the

circumstances as they appeared to the arresting officer.” Griffin, supra at

1042 (citation and internal quotation marks omitted). Further, an officer’s

experience is a relevant factor in determining probable cause if the officer

demonstrates a nexus between his experience and the search or seizure. See

Thompson, supra at 935.


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      In Pennsylvania, “plain smell” is a concept that is analogized to “plain

view” to establish probable cause. See Commonwealth v. Stoner, 710 A.2d

55, 59 (Pa. Super. 1998). In an earlier decision, we recognized that a police

officer is assumed to know how to recognize the odor of marijuana:           “[i]t

would have been a dereliction of duty for [the arresting officer] to ignore the

obvious aroma of an illegal drug which he was trained to identify.”

Commonwealth v. Stoner, 344 A.2d 633, 635 (Pa. Super. 1975) (holding

that so long as officer is justified in being where he is, odor of marijuana is

sufficient to establish probable cause). In Commonwealth v. Stainbrook,

471 A.2d 1223 (Pa. Super. 1984), we stated:

            We also agree with the Commonwealth’s next argument
      regarding the search of the [defendant’s] jacket. The law is clear
      that a warrantless search is proper if incident to a lawful arrest.
      A warrantless arrest is lawful if the facts and circumstances within
      the arresting officer’s knowledge are such as would warrant a
      person of reasonable caution to believe an offense has been or is
      being committed and the person to be arrested is probably the
      perpetrator. Under the circumstances of this case which include
      the surreptitious behavior of the [defendant], the odor of burning
      marijuana and the discovery of the marijuana underneath the
      [defendant’s] jacket, we believe that there was probable cause to
      arrest the [defendant].         The subsequent search of the
      [defendant’s] jacket and the seizure of the evidence contained
      therein, were, therefore, valid as incident to this lawful arrest.

Stainbrook, supra 1225 (citations omitted).

      Here, the record supports the trial court’s holding that the search was

lawful under the plain smell doctrine. Officer Gizzi was an experienced police

officer with special training in detecting the smells of fresh and burnt

marijuana. (See N.T. Suppression Hearing, at 43-46). He was in a high-

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crime area especially noted for drugs and shooting. (See id. at 47-49). He

was standing next to Appellant in a parking lot; Appellant was fiddling with

the backpack and trying to push it away from the police when Officer Gizzi

noted a very strong smell of marijuana emanating from the bag, thus making

the incriminating nature of it immediately apparent.              (See id. at 52-56).

Moreover, the record shows that the police had a lawful right of access to the

marijuana because they had no advance notice that Appellant would be

present carrying a backpack reeking of marijuana and thus no opportunity to

obtain a warrant before smelling the backpack and seizing it. Thus, we find

that the trial court did not err in denying Appellant’s motion to suppress

evidence found in the search of the backpack.5                 See Commonwealth v.

Copeland, 955 A.2d 396, 401 (Pa. Super. 2008), appeal denied, 962 A.2d

1194 (Pa. 2008) (holding odor of marijuana emanating from vehicle was

sufficient to establish probable cause for warrantless search); Stainbrook,

supra at 1224-25; see also Commonwealth v. Miller, 56 A.3d 424, 430-

31 (Pa. Super. 2012) (holding that police officer’s seizure of beer bottles from

inside   appellant’s    vehicle    lawful      under   plain   view   exception   where



____________________________________________


5 Moreover, since Officer Gizzi possessed probable cause to arrest Appellant
based on the events described above, the police would have inevitably
discovered the drugs contained in the backpack when they transported
Appellant to the police station and inventoried it. See Commonwealth v.
Zook, 615 A.2d 1 (Pa. 1992), cert. denied, 507 U.S. 974 (1993) (holding
police may, as part of standardized inventory procedure, search items in
defendant’s possession without warrant).

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incriminating nature of bottles was immediately apparent and officer lacked

advance notice and an opportunity to obtain warrant before commencing

search).

      In his final claim, Appellant contends that the search of his car was

unlawful. (See Appellant’s brief, at 33-40). In its brief, the Commonwealth

“concedes that the record does not support the warrantless search of

Appellant’s   vehicle   or   the   seizure   of   the   handgun   from   the   glove

compartment.”     (Commonwealth’s brief, at 23 (unnecessary capitalization

omitted); see id. at 23-24). On independent review, we agree.

      In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), the Pennsylvania

Supreme Court adopted the Federal automobile exception to the warrant

requirement, holding that only probable cause and no exigent circumstances

“beyond the inherent mobility of a motor vehicle is required.” Gary, supra

at 138.    In Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983), our

Supreme Court stated:

            Therefore, we hold that where an appellate decision
      overrules prior law and announces a new principle, unless the
      decision specifically declares the ruling to be prospective only, the
      new rule is to be applied retroactively to cases where the issue in
      question is properly preserved at all stages of adjudication up to
      and including any direct appeal. . . .

Cabeza, supra at 148.

      Our Supreme Court decided Gary on April 29, 2014, almost one year

after Appellant’s suppression hearing. However, in Cabeza, we stated that

“our rule in civil cases which applies the law in effect at the time of appellate


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decision applies with equal force to criminal proceedings.” Id. at 148 (citation

omitted). In addition, we note that retroactive application is not automatic,

and is a matter of judicial discretion.       See Blackwell v. State Ethics

Comm’n, 589 A.2d 1094, 1099 (Pa. 1991). While no decision has explicitly

addressed Gary’s retroactivity, both this Court and our Supreme Court have

assumed that it applies retroactively.    In Commonwealth v. Hudson, 92

A.3d 1235, 1241-43 & n.5 (Pa. Super. 2014), appeal denied, 106 A.2d 724

(Pa. 2014), a panel of this Court assumed that Gary applied to the

Commonwealth’s appeal from an order suppressing evidence, but ultimately

held that police lacked probable cause to search the defendant’s vehicle. In

Commonwealth v. Dunn, 95 A.3d 272, 273 (Pa. 2014) (per curiam), our

Supreme Court granted allowance of appeal, vacated a decision of this Court,

and remanded for reconsideration in light of Gary.            If Gary applied

prospectively only, there would be no need to order this Court to reconsider a

decision   applying   the   now-superseded     limited   automobile   exception.

Therefore, we hold that Gary applies retroactively to this case.

      Thus, the next question is whether the police had probable cause to

search Appellant’s vehicle. This Court has stated:

            The level of probable cause necessary for warrantless
      searches of automobiles is the same as that required to obtain a
      search warrant. The well-established standard for evaluating
      whether probable cause exists is the “totality of the
      circumstances” test. This test allows for a flexible, common-sense
      approach to all circumstances presented. Probable cause typically
      exists where the facts and circumstances within the officer’s
      knowledge are sufficient to warrant a person of reasonable caution


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      in the belief that an offense has been or is being committed. The
      evidence required to establish probable cause for a warrantless
      search must be more than a mere suspicion or a good faith belief
      on the part of the police officer.

Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) (citation

omitted).

      Moreover, in Arizona v. Gant, 556 U.S. 332 (2009), the United States

Suprme Court held, in pertinent part:

            Police 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. When these justifications are absent, a search of an
      arrestee’s vehicle will be unreasonable unless police obtain a
      warrant or show that another exception to the warrant
      requirement applies. . . .

Gant, supra at 351. Thus, Gant held that the search-incident-to-an-arrest

exception to the warrant requirements of the Fourth Amendment did not apply

to a vehicle where the defendant was arrested, could not access and would

not be returning to the vehicle. See id.

      Here, there was no motor vehicle stop. Rather, as discussed above,

Appellant was detained and subsequently arrested prior to his entering the

vehicle. The record at the suppression hearing is devoid of any testimony that

there was a smell of marijuana emanating from the vehicle or that the police

saw any contraband in plain sight. (See N.T. Suppression Hearing, 7/02/13,

at 56-58). Rather, the testimony demonstrates that the police searched the

vehicle as a matter of course incident to Appellant’s arrest. (See id.). Lastly,


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at the time of the search, the police had already arrested Appellant and he

had no access to his vehicle. Thus, we find the police lacked probable cause

to conduct a warrantless search of Appellant’s vehicle. See Gant, supra at

351; Gary, supra at 138; Runyan, supra at 837-38 (finding probable cause

for warrantless search of vehicle under Gary where police observed four

occupants in parked vehicle in high crime area, police smelled marijuana

coming from vehicle, observed bag of marijuana in plain view in vehicle, and

driver tried to escape from vehicle).

      Further, we agree with Appellant that the police lacked the authority to

impound and conduct an inventory search of the vehicle. Our Supreme Court

has stated:

            An inventory search of an automobile is permissible when
      (1) the police have lawfully impounded the vehicle; and (2) the
      police have acted in accordance with a reasonable, standard policy
      of routinely securing and inventorying the contents of the
      impounded vehicle. . . .

                    In determining whether a proper inventory
              search has occurred, the first inquiry is whether the
              police have lawfully impounded the automobile, i.e.,
              have lawful custody of the automobile. The authority
              of the police to impound vehicles derives from the
              police’s reasonable community care-taking functions.
              Such functions include removing disabled or damaged
              vehicles from the highway, impounding automobiles
              which     violate   parking    ordinances     (thereby
              jeopardizing public safety and efficient traffic flow),
              and protecting the community’s safety.

                    The second inquiry is whether the police have
              conducted a reasonable inventory search.         An
              inventory search is reasonable if it is conducted
              pursuant to reasonable standard police procedures

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J-S76039-17


            and in good faith and not for the sole purpose of
            investigation.

             A protective vehicle search conducted in accordance with
      standard police department procedures assures that the intrusion
      [is] limited in scope to the extent necessary to carry out the
      caretaking function.

Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013) (citations,

footnote, and quotation marks omitted).

      Here, the record is devoid of any information that Appellant was driving

without a license or was otherwise operating the vehicle unlawfully. Moreover,

nothing in the record shows that the vehicle was disabled, damaged, parked

in violation of any ordinances, or in any way jeopardizing public safety or

creating any type of traffic problems. (See N.T. Suppression Hearing, at 55-

56, 61, 67). Thus, we are constrained to conclude that the trial court erred

in finding that there was a lawful inventory search in the instant matter and

erred in failing to suppress the seized firearm. See Lagenella, supra at 102;

see also Holton, supra at 1249.

      Accordingly, for the reasons discussed above we affirm the trial court’s

denial of the motion to suppress in all respects with the exception of the search

of the motor vehicle.    Therefore, we affirm the judgment of sentence for

Appellant’s convictions of all counts of PWID, possession of a controlled

substance, and possession of drug paraphernalia.             However, we are

constrained to vacate the judgment of sentence for Appellant’s convictions of




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persons not to possess firearms and firearms not to be carried without a

license. We therefore remand the matter for resentencing.

     Judgment of sentence affirmed in part and vacated in part.    Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/18/18




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