J-S15009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMAL GREEN,

                            Appellant                  No. 745 EDA 2014


           Appeal from the Judgment of Sentence February 26, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0009471-2012


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 03, 2016

        Appellant, Jamal Green, appeals from the judgment of sentence of 3-6

years’ incarceration, and a consecutive 6-year term of probation, imposed

following his conviction for gun and drug offenses. Appellant’s sole issue on

appeal is whether the trial court erred in denying his motion to suppress the

contraband discovered in the backpack he was wearing when he was

arrested. Appellant claims the search of his backpack was unlawful because

the police did not first obtain a warrant, whereas the trial court found that

the search was lawful pursuant to the search-incident-to-arrest exception to

the warrant requirement. After careful review, we affirm.

        The trial court summarized the pertinent facts of this case as follows:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           At the [suppression] motion hearing, the Commonwealth
     presented the testimony of Philadelphia Police Officers Brian
     Geer and Frederick Clough[,] while [Appellant] presented the
     testimony of Barbara Brown.       Testimony established the
     following.

            On September 19, 2012, at approximately 3:56 pm, police
     officers Geer and Clough were on uniform bike patrol in the area
     of Chew and Chelten in Philadelphia [C]ounty. The officers
     observed Lauren Greenburg (a/k/a Grouper), a known drug user
     and prostitute, wandering around for several minutes. When
     [Appellant] approached the area, Ms. Greenburg immediately
     walked over to him and they briefly conversed before entering
     the laundro[ma]t at 737 Chelten. [Appellant] was carrying a
     backpack on his person[,] however[,] neither he nor Ms. Grouper
     had any laundry when they entered the laundromat. Officer
     Geer rode to the laundromat and observed Ms. Greenburg accept
     a small object from [Appellant,] which she placed in her right
     front pocket. Officer Geer entered the laundromat and ordered
     both [Appellant] and Ms. Greenburg to stop; [Appellant],
     however, disregarded the command and walked away. When
     Officer Geer repeated his command, [Appellant] ran toward the
     back of the laundromat where he tried to enter the manager's
     office. [Appellant] turned toward Officer Geer with his hands
     behind his back. [Appellant] did not comply with Officer Geer's
     command to take his hands from behind his back. Officer
     Clough, who entered the laundromat shortly after Officer Geer,
     assisted Officer Geer in securing and handcuffing [Appellant].

           Officer Geer then exited the laundromat and pursued Ms.
     Greenburg. In pursuit, Officer Geer observed her remove an
     unknown object from her right pocket and put it into her mouth.
     Officer Geer caught up to and struggled with Ms. Greenburg and
     she swallowed the object. Officer Clough searched the front part
     of [Appellant]'s book bag, which contained marijuana. Officer
     Hart who arrived at the laundromat approximately two minutes
     after Officers Geer and Clough, recovered a semi-automatic
     weapon, a digital scale, and two criminal law books from the
     book bag. Recovered from [Appellant]'s right front pants pocket
     was United States currency.

Trial Court Opinion (TCO), 4/8/15, at 2-3.




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        Appellant’s suppression motion was denied by the trial court on April

2, 2013, following a hearing. Following his non-jury trial held on February

26, 2014, Appellant was convicted of possession with intent to deliver, 35

P.S. § 780-113(a)(30), and person not to possess a firearm, 18 Pa.C.S. §

6105.    Appellant was sentenced that same day to 3-6 years’ incarceration

for the gun offense, and to a consecutive term of 6 years’ probation for the

drug offense.

        Appellant filed a timely appeal.     He filed a timely, court-ordered

Pa.R.A.P. 1925(b) statement on September 24, 2014. The trial court issued

its Rule 1925(a) opinion on April 8, 2015.        Appellant now presents the

following question for our review:

        Did not the lower court err in denying [Appellant]'s motion to
        suppress evidence in that, after [Appellant] was detained and
        arrested, [his] backpack was opened and searched without a
        warrant or any exception to the warrant requirement?

Appellant’s Brief, at 3.

        Our standard of review of a denial of a motion to suppress evidence 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 supported by the record, [the appellate court
        is] bound by [those] findings and may reverse only if the court's


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      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, 988 A.2d 649, 654 (Pa. 2010) (internal citations

and quotation marks omitted).

      The matter before us concerns the search-incident-to-arrest exception

to the prohibition against unreasonable searches provided by both the

Fourth Amendment to the United States Constitution, and Article I, Section 8

of the Pennsylvania Constitution. “[F]or a search to be reasonable under the

Fourth Amendment or Article I, Section 8, police must obtain a warrant,

supported by probable cause and issued by an independent judicial officer,

prior to conducting the search.   This general rule is subject to only a few

delineated exceptions[.]” Commonwealth v. Gary, 91 A.3d 102, 107 (Pa.

2014) (plurality).

      A search conducted incident to arrest is one of these exceptions:

            Under the Fourth and Fourteenth Amendments, an
      arresting officer may, without a warrant search a person validly
      arrested. The constitutionality of a search incident to an arrest
      does not depend on whether there is any indication that the
      person arrested possesses weapons or evidence. The fact of a
      lawful arrest, standing alone, authorizes a search.

Michigan v. DeFillippo, 443 U.S. 31, 35 (1979) (internal citations

omitted). Furthermore,

           [t]he Supreme Court of the United States and [the
      Pennsylvania Supreme] Court have held that the scope of a


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      search incident to arrest extends not only to the arrestee's
      person, but also into the area within the arrestee's immediate
      control. While the breadth of the area that falls within the
      arrestee's immediate control has been the subject of much
      debate, a warrantless search must be strictly circumscribed by
      the exigencies which justify its initiation. The two historical
      rationales for the search incident to arrest exception to the
      warrant requirement are (1) the need to disarm the suspect in
      order to take him into custody and (2) the need to preserve
      evidence for later use at trial.

Commonwealth v. Taylor, 771 A.2d 1261, 1271 (Pa. 2001) (internal

citations, quotation marks, and footnote omitted).

      The pertinent facts concerning the search incident to Appellant’s arrest

are not in dispute. The Commonwealth does not contest that Appellant was

already under arrest when his backpack was searched. Thus, there can be

no serious claim that the search was conducted for the purpose of ensuring

the officers’ safety, as Appellant could not access the bag once restrained.

Additionally, Appellant does not contest the legality of his arrest, and he

admits that he was wearing the at-issue backpack when he was arrested.

      Appellant claims, however, that:

      Where [Appellant] was handcuffed and in the custody of several
      police officers, and where [his] backpack was then taken from
      his person, it was incumbent upon the police to obtain a search
      warrant before searching the backpack.            Under these
      circumstances, where [Appellant] no longer had access to the
      backpack at the time it was searched, the warrantless search of
      the backpack could not be justified as a search pursuant to
      arrest. Nor were exigent circumstances presented, or any other
      exception to the warrant requirement demonstrated, by the
      Commonwealth to justify the warrantless search of the
      backpack. Consequently, the contents of the backpack should
      have been suppressed.

Appellant’s Brief, at 9-10.


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      In     support   of   this     claim,   Appellant   cites     and   discusses

Commonwealth v. Zock, 454 A.2d 35 (Pa. Super. 1982), Commonwealth

v. Martin, 626 A.2d 556 (Pa. 1993), and Commonwealth v. Taylor, 771

A.2d 1261 (Pa. 2001).       The Commonwealth contends that each of these

cases is inapposite or readily distinguishable from the facts in this case. We

agree with the Commonwealth.

      In Zock, police were serving an arrest warrant on William Jackson at

Jackson’s residence. Upon their arrival, they observed Zock “walking rapidly

into Jackson's residence.”         Zock, 454 A.2d at 36.          Another individual

answered the door, claimed to be in charge of the residence in Jackson’s

absence, and permitted police to enter in order to search for him.             Once

inside, police discovered approximately twenty-two pounds of marijuana in

plain sight. Police then secured the premises while they awaited the arrival

of a search warrant.

      Subsequently, police observed Zock running away from the house with

three suitcases that the police had seen in the room where the marijuana

was discovered.    Police gave chase, but when they captured Zock, he no

longer had the suitcases in his possession.        However, the suitcases were

later found in a building located along the path of Zock’s escape.              The

suitcases were returned to Jackson’s residence, where they were opened

when the search warrant arrived, revealing several additional pounds of

marijuana.




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      The trial court ultimately found that the suitcases had been seized

unlawfully, because they were outside the scope of the warrant, and because

no exigency existed. The Commonwealth appealed, arguing, inter alia, that

the suitcases were lawfully seized incident to Zock’s arrest.      This Court

ostensibly rejected that argument, “in light of the general rule that luggage

lawfully seized during an arrest, and thereafter placed wholly within police

control can be searched only after a warrant is obtained.” Id. at 37 (citing

United States v. Ross, 456 U.S. 798 (1982)). However, the Zock Court

ultimately reversed the order granting suppression, accepting an alternative

argument that the suitcases were within the scope of the warrant obtained

to search Jackson’s house.

      In the instant case, the Commonwealth argues that the Zock Court’s

apparent ruling on the search-incident-to-arrest issues was mere dicta,

given that it was not critical to the actual holding of the Court in reversing

suppression. We agree. As we noted in Commonwealth v. Firman, 789

A.2d 297 (Pa. Super. 2001):

      “Dicta” is defined as “[o]pinions of a judge which do not embody
      the resolution or determination of the specific case before the
      court. Expressions in court's opinion which go beyond the facts
      before [the] court and therefore are individual views of [the]
      author of [the] opinion and [are] not binding in subsequent
      cases as legal precedent.” Black's Law Dictionary 454 (6th ed.
      1990).

Id. at 301 n.8.

      Clearly, because the Zock decision ultimately reversed suppression,

the Court’s rejection of the Commonwealth’s search-incident-to-arrest

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argument did not result in binding precedent.         Thus, we agree with the

Commonwealth that Zock is not controlling in this case.

      Nevertheless, Zock is also factually inapposite given that Zock was not

arrested with the suitcases in his possession—they were found in a building,

and Zock was arrested outside that building. Moreover, the Ross decision,

the keystone of the Zock Court’s search-incident-to-arrest discussion,

concerned    the   scope    of   the   automobile   exception   to   the   warrant

requirement. In that regard, Appellant’s case falls into an entirely different

category of Fourth Amendment jurisprudence, given that his backpack was

not seized as a result of a search of a vehicle; Appellant was wearing the

backpack at issue when arrested. Accordingly, we find Appellant’s reliance

on Zock is unpersuasive, dicta or not.

      Next, in Martin, police observed Martin and another man passing a

satchel back and forth at a table in a restaurant in what appeared to be a

drug deal.    Martin was stopped by police as he left the restaurant while

wearing that satchel.      He was told to place the satchel on the ground, at

which point a drug dog was permitted to examine it. “The dog indicated to

its handler that the satchel contained drugs.          Thereupon, one of the

detectives opened the satchel and found a small quantity of marijuana, an

address book, and $70,500 in consecutively numbered $100 bills.             Martin

was then arrested.”     Martin, 626 A.2d at 558-59.       Martin was convicted

following the trial court’s denial of his motion to suppress the evidence

uncovered by the search of his satchel. This Court affirmed, reasoning that:

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      [T]he canine sniff was supported by “reasonable suspicion” that
      a crime was in progress …. The court also held that the search
      of the bag was lawful because the cumulative observations of
      the detectives in the restaurant and the canine alert established
      probable cause to believe that drugs would be found in the
      satchel. The search was properly conducted without a warrant,
      according to the trial court, because it was conducted incident to
      a lawful arrest and exigent circumstances existed.

Commonwealth v. Martin, 626 A.2d 556, 559 (Pa. 1993) (explaining the

decision of the Superior Court).

      However, the Pennsylvania Supreme Court rejected this Court’s

analysis, stating:

      Because the search in this case involved Martin's person, we
      believe that in addition to being lawfully in place at the time of
      the search, the police must have probable cause to believe that
      a canine search of a person will produce contraband or evidence
      of a crime. Reasonable suspicion of criminal activity will not
      suffice. Moreover, because the intrusion concerns the person,
      we also hold that once the police have probable cause and a sniff
      search has been conducted pursuant to that probable cause,
      before any search, beyond that permitted by Terry v. Ohio, 392
      U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)[,] may be
      conducted (patting down outer garments to check for weapons
      upon reasonable suspicion that the suspect may be armed), the
      police must secure a search warrant and they may detain the
      suspect for a reasonable time while the warrant is sought.

Martin, 626 A.2d at 560-61 (footnotes omitted).

      While favorable to Appellant’s claim at first glance, further inspection

and analysis demonstrates that Martin is inapplicable to the circumstances

before us.   Martin clearly holds that a warrant is required when probable

cause exists for a search but no exigent circumstances justify dispensing

with that requirement.    However, in Martin, the Pennsylvania Supreme

Court was operating under the presumption that, while there was probable


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cause to search Martin’s satchel, there was not (yet) probable cause to

justify his arrest. This is apparent when one reads the last line quoted from

Martin above, as there would be no need to “detain the suspect for a

reasonable time while the warrant is sought” if probable cause already

existed to arrest him. Id. at 61.

        Here, however, Appellant does not dispute the legality of his arrest.

Instead, he asserts that, despite the lawfulness of his arrest, the police were

required to obtain a warrant to search the backpack he was wearing because

of an absence of exigent circumstances.        However, as the United States

Supreme Court stated in DeFillippo, “The fact of a lawful arrest, standing

alone, authorizes a search.” DeFillippo, 443 U.S. at 35. In other words,

exigency is not required to conduct a search incident to arrest.

        A search incident to arrest is only circumscribed in physical terms, by

“the area within the arrestee's immediate control.”        Talyor, 771 A.2d at

1271.    While a Terry pat-down is similarly constrained, it is only justified

when police also possess a “reasonable belief that criminal activity is afoot,

and that the suspect may be armed and dangerous.” Commonwealth v.

Mesa, 683 A.2d 643, 646 (Pa. Super. 1996) (emphasis added).                    By

contrast, a search conducted incident to arrest is justified based on the

arrest itself; officer safety and exigency are irrelevant to the justification for

the search of satchels, backpacks, purses, and similar containers found

within the immediate sphere of an arrestee’s control at the time of his or her

lawful arrest.

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     Finally, in Taylor, police had secured a search warrant authorizing the

search of a convenience store based on complaints of drug activity

corroborated by surveillance and a controlled drug buy. After finding crack

cocaine behind the counter and detaining the owner,

     two officers went down a set of stairs and into the basement of
     the building. In the basement, the officers encountered Taylor,
     sitting in a barber's chair and wearing a black plastic apron over
     his torso. The police observed Mahone cutting Taylor's hair. The
     basement contained one other barber's chair and some hair-
     cutting equipment.

            After the officers announced their presence, Officer Richard
     Scott Adams (Officer Adams) noticed Taylor's hands moving
     underneath the plastic apron. Fearing that Taylor could be
     reaching for a weapon, Officer Adams removed the apron and
     patted the exterior of Taylor's pocket. Officer Adams felt a hard
     object and removed it from Taylor's pocket. The object was a
     plastic prescription bottle, which appeared to contain crack
     cocaine. After arresting Taylor and placing him in handcuffs,
     Officer Adams searched Mahone. Officer Adams did not find
     anything incriminating on Mahone.           Then, Officer Adams
     handcuffed Mahone, while Constable Gordon McIntyre (Constable
     McIntyre) searched two coats, which were draped on a chair ten
     feet from Taylor and Mahone. Constable McIntyre discovered
     additional pieces of crack in Taylor's coat and several baggies
     containing marijuana in Mahone's coat.

Taylor, 771 A.2d at 1264.

     The Taylor Court first concluded that the basement barber shop was

not within the scope of the warrant secured for the search of the

convenience store but, nevertheless, the Court found that the police were

permitted to conduct a protective sweep of the basement barber shop on

officer safety grounds.   The Court also held that the search of Taylor was

justified as a Terry pat-down.        However, the Court found that the


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warrantless search of the coats was not justified as a search incident to

arrest because “the two coats … were not within Taylor's immediate control.”

Id. at 1272.

      Taylor is clearly not analogous to the instant case.     Appellant was

wearing the at-issue backpack when he was lawfully arrested.           Taylor,

however, was not wearing either of the coats when he was arrested, nor

were they in an area within his immediate control.

      In sum, we agree with the trial court and the Commonwealth that the

search of Appellant’s backpack was justified, as a search incident to his

arrest, because the backpack was within his immediate control at the time of

his lawful arrest. Appellant’s arguments to the contrary are unconvincing, as

he has not cited any controlling authority establishing that additional

justification was required to permit such a search. Therefore, we hold that

the trial court’s ruling denying Appellant’s motion to suppress evidence

seized as a result of the warrantless search of his backpack is both

supported by the undisputed facts of record and free of legal error.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2016


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