J. A04042/12

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
ERIC DUNN,                                  :
                                            :
                          Appellee          :     No. 1568 EDA 2011


                   Appeal from the Order Entered May 6, 2011
               In the Court of Common Pleas of Delaware County
                    Criminal No(s).: CP-23-CR-0004639-2009

BEFORE: BENDER, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 29, 2014

        This Commonwealth appeal returns to this panel after our Supreme

Court vacated our decision in this suppression/vehicle stop case, 1 affirming

of the order of the Delaware County Court of Common Pleas, granting in part

and denying in part the suppression motion of Appellee, Eric Dunn.      This

panel applied the then-

required both probable cause and exigent circumstances for a warrantless

search of a vehicle.     Our Supreme Court reversed and remanded to this

Court in light of Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which

*
    Former Justice specially assigned to the Superior Court.
1
  Commonwealth v. Dunn, 777 MAL 2012 (order) (Pa. filed Jul. 1, 2014)
(vacating Commonwealth v. Dunn, 1568 EDA 2011 (unpublished
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abandoned the limited automobile exception. We now hold that the search

of the vehicle was legal under Gary, and furthermore that the search of a

closed safe in plain view was legal.2          Accordingly, we reverse the

                                                    le.3

      The    underlying   order   suppressed   evidence    obtained   from   the
                                                4
                                                    including the contents of a



                                                    gs of fact as follows.   See

Adjudication at 1-7.5

      On the evening of September 27, 2007, Collingdale Borough Police

Officer Robert Marvil was wearing plain clothes and operating an unmarked

                                                                        up from

            Id. at 1.   The car swerved and passed the officer on his right,

almost striking his vehicle. Officer Marvil followed the car, a silver Mercury


2
  As we discuss infra, the safe had a latch on it, but the latch was not
locked.
3
  The Commonwealth does not challenge the portion of the order denying
A
disturb that portion.
4
  Appellee was the driver of the vehicle and the vehicle was registered to
him. Adjudication, 5/6/11, at 17. The trial court held that Appellee
established a privacy interest in the car and thus standing to challenge the
search of it. Id. at 16-17.
5




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sedan, but having no emergency lights or warning devices, he was unable to

signal the car to

passing both to the left and right of other traffic almost striking another

             Id. at 2.      Officer Marvil reported this incident via radio and



        The car sto

          Id.   Officer Marvil exited his vehicle, approached the Mercury,



shut-                       Id. As he came within f

                                           Id.

        Officer Marvil again followed the vehicle, and Darby Borough Police

Officer Brian Evans, who had heard the radio reports, took pursuit in his

marked police vehicle, with his ligh

                                                              Id. at 3.   The car



                      Id.                                                 ed upon

the subject vehicle to render it clearly illuminated and assure the police

                                                                Id. Other officer

                -                                              Id.

        Officer Evans approached the car and saw the driver, who was



                                                 Id.   Officer Evans stood at the



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marijuana waf                       Id.



                       Id.



      The officers removed Appellee, as well as a juvenile front passenger

and a driver-side rear passenger from the car, and took them to the rear of



       Id. at 4.   Because the area was a high crime and drug area, and

because of                                                     -down search

of Appellee and the occupants. They recovered approximately $885 and a




The officer                                         -latch was unlocked and

the top of its lid powdered with a white residue, which he believed was . . .

          Id.                                                   Id.

the officer entered the passenger compartment to inspect the safe . . . it

became clear that the odor of fresh marijuana was emanating from the

       Id.    Officer Evans retrieved and opened the safe at the scene.    It

contained:

         one clear plastic bag containing 39 small red glassine bags
         containing a white powdery substance; one clear plastic
         bag containing 22 small red baggies containing a white



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           containing 16 glassine bags containing a white powdery
           substance; one clear plastic bag containing three tin foil
           balls each containing a white powdery substance; one
           clear plastic bag containing four glassine bags containing a
           green vegetable-like matter; four clear plastic bags
           containing a loose vegetable-like matter; several new
           baggies commonly used to package crack cocaine or
           marijuana; [$50]; and[ ] a small composition notebook.

Id.6 Subsequent testing confirmed that the white powder and vegetable-like



contents                                                    Id. at 6.

        The trial court found that Officer Marvil possessed reasonable suspicion

to conduct a vehicle stop for suspected reckless driving, careless driving,

driving at an unsafe speed, and improper passing to the right. Id. at 19-20.

The court also found that the officers lawfully conducted a pat-down search



recovered from his person. Id. at 22.

        However, the court found that by removing the occupants of the car to




need . . . to enter the vehicle for self-                Id. at 11.     The court



                                                                        Id. at 23.


6
    In addition, Officer Evans testi




                                       -5-
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figuratively) reeked of the prospect of the possession of marijuana and



information to suggest the continuing and actual presence of contraband

was generated only after Officer Evans entered the car and retrieved the

       Id.

of the vehicle nor his removal of the safe . . . was conducted incident to an

                                                   Id. at 24. The court thus

held the

suppress evidence obtained from the passenger compartment and from the

safe. Id.

     Appellee was arrested and charged with possession of a controlled

substance, possession with intent to deliver a controlled substance,

possession of drug paraphernalia, and eight violations of the Motor Vehicle

Code, including, careless driving and reckless driving. He filed a motion to

suppress, and the court held a hearing on May 27, 2010.            After the

suppression judge passed away, the matter was reassigned to another




recovered from his vehicle. Id. at 24.




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        The Commonwealth took this timely appeal.7 On September 5, 2012,

this panel affirmed the suppression order. As stated above, we applied the

then-

vehicle searches must be accompanied not only by probable cause, but also



10 (citing Commonwealth v. Liddie, 21 A.3d 229, 233 (Pa. Super. 2011)

(en banc

from its federal     corollary   which permits the   warrantless seizure    of

contraband from a vehicle without first establishing certain additional

                                                                 Liddie, 21

A.3d at 234 n.7). We further noted that in May of 2012, the Pennsylvania

Supreme Court granted allowance of appeal in Commonwealth v. Gary, 44




10-11 n.8.

        The Supreme Court issued a decision in Gary on April 29, 2014, the

holding of which we will discuss infra. On July 1, 2014, the Court vacated

our decision and remanded this case in light of Gary.     This panel did not

request new briefs from the parties.

        The Commonwealth presents the following questions for our review:


7
  Our review of the record indicates there was no Pa.R.A.P. 1925(b) order
and no 1925(b) statement filed by the Commonwealth.



                                       -7-
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         1. Did the trial court err as a matter of law by suppressing
         evidence of illegal drugs seized from an unlocked safe
         which smelled of marijuana, had cocaine residue on its lid
         and was located in plain view on the front seat of a vehicle
         during the course of a lawful vehicle stop?

         2. Did the trial court err by concluding that the police
         lacked probable cause to search the vehicle where the
         strong odor of marijuana coming from the vehicle was
         immediately obvious to the officer?



         conclude that the police could lawfully enter the vehicle to
         search for the marijuana?

         4. Did the trial court err by concluding that the police
         could not lawfully seize the drugs from within the unlocked
         safe where: (a) the police had lawful access to the safe

         of marijuana in the safe was immediately apparent, and
         (c) the police observed the safe from a lawful vantage
         point?




legal authority                                                    Id. at 12.

First, the Commonwealth argues the court erred in finding the police lacked

probable cause to search the car, and maintains that the odor of marijuana



believe that a crime was being committed and that contraband was in

                   Id. at 17-18. The Commonwealth then alleges the court

erred in applying the limited automobile exception because the officers did



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not



                                8
                                    Id. at 26, 27.   The Commonwealth also



apparent to the police based upon the white powder on its lid and the odor

                                                      Id. at 27. Pursuant to

Gary, we hold the search of the interior of the vehicle and seizure of its

contents was legal.

      We note the relevant standard of review:

        When the Commonwealth appeals from a suppression
        order, this Court may consider only the evidence from the

        prosecution that, when read in the context of the record as
        a whole, remains uncontradicted. In our review, we are

        and we must determine if the suppression court properly
        applied the law to the facts. We defer to the suppression


        credibility of the witnesses and the weight to be given to
        their testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (citations omitted).

      In Gary, the Pennsylvania Supreme Court announced:

        [W]e now hold that with respect to a warrantless search of
        a motor vehicle that is supported by probable cause,

8
  A careful review of the Commo
claims the limited automobile exception applied in this case, its
arguments instead relate to the plain view doctrine. Nevertheless, we
now consider this appeal under Gary, which abandoned the limited
automobile exception.



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         Article I, Section 8 of the Pennsylvania Constitution affords
         no greater protection than the Fourth Amendment to the
         United States Constitution. Accordingly, we adopt 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 require any
         exigency beyond the inherent mobility of a motor vehicle.

Gary, 91 A.3d at 104. It further stated:

         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.

      We also note:


                                                                       a
         prudent   individual   in   believing   that an   offense   was

         determining whether probable cause exists, we must
         consider the totality of the circumstances as they appeared
         to the arresting officer.      Additio
         required to establish probable cause for a warrantless
         search must be more than a mere suspicion or a good faith


Commonwealth v. Copeland, 955 A.2d 396, 400 (Pa. Super. 2008)

(citations omitted).




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        It is not the mere possession of such containers, but rather
        the totality of the circumstances which dictated the

        the package contained narcotics constituted a reasonable
        inference based on the facts known to him at the time of
        the arrest.] In none of the [federal cases cited by the
        defendant] did the courts find that the mere observation of
        a container or package, the likes of which an officer has
        known, in the past, to contain narcotics, was sufficient to
        establish probable cause. Instead, it was the holdings of
        those courts that when viewed together with the additional
        incrimin
        of suspect containers and/or packages are appropriate
        factors to consider in ascertaining whether the warrantless
        arrest was supported by probable cause.

Hudson, 92 A.3d at 1243 n.6 (quoting Commonwealth v. Evans, 685

A.2d 535, 538 (Pa. 1996)).

     Pursuant to Gary and Hudson, we review whether the officers had

probable cause to conduct, first, the warrantless search of the vehicle and

second, the warrantless search of the safe. See Gary 91 A.3d at 104, 138;

Hudson, 92 A.3d at 1241 (stating that under Gary, salient question for

suppression court was whether police officers had probable cause to conduct

warrantless search).

     The suppression court found the officers had reasonable suspicion to

stop Appellee for suspected violation of Vehicle Code offenses:


        wildly   reckless   maneuvers   which   reasonably   offered

        the Vehicle Code. See generally 75 Pa.C.S.A. § 3736
        (Reckless driving), § 3714 (Careless driving), § 3361
        (Driving at safe safe) & § 3304 (Improper passing to the
        right). See also 75 Pa.C.S.A. § 6308 (Investigation by
        Police Officer-Duty of Operator to Stop[).]


                                    - 11 -
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                                  *     *      *

         [ ] The circumstances presented to Officer Marvil after
         seeing the Mercury nearly strike his unmarked police car
         and thereafter proceed through other traffic in a hazardous

         justifying a traffic stop to issue a ticket to the vehicle
         operator.

Adjudication at 19, 20.

      However, we hold that under Commonwealth v. Chase, 960 A.2d

108 (Pa. 2008), the proper quantum of cause was probable cause.9 See

Chase, 960 A.2d at 116 (requiring police to have probable cause to conduct



purposes of a Terry stop do not exist maintaining the status quo while



Nevertheless, we would hold that Officer Marvil possessed the requisite




      We next consider whether the officers had probable cause to conduct a

warrantless search of the vehicle. See Gary, 91 A.3d at 104, 138. Under

the totality of the circumstances as found by the trial court, we hold Officer


9
  See also Commonwealth v. Landis, 89 A.3d 694, 703 (Pa. Super. 2014)
(holding that under Chase, showing of probable cause was necessary to
justify vehicle stop for violation under driving roadways laned for traffic, 75
Pa.C.S. § 3309, where there was no express indication that trooper stopped
defendant in order to conduct additional investigations into DUI or other
impairments of his ability to drive safely).



                                      - 12 -
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Marvil had probable cause to believe that Appellee possessed an illegal

substance in the vehicle. See Copeland, 955 A.2d at 400. As Officer Evans




            rom the vehicle when Appellee opened his window. Id.

     We must further consider, however, the distinct question of whether

the police could search the contents of the closed safe.        In the recent

Superior Court opinion of Hudson, decided post-Gary, this Court affirmed

the suppression of pill bottles found in the center console of a car. Hudson,

92 A.3d at 1242-43. In that case, police officers conducted a valid vehicle

stop of the defendant. Id. at 1242.

        While effectuating the traffic stop, the officers noticed [the
        defendant] reaching toward the center console of the
        automobile. [After the officers reached the vehicle and

        the officers asked [the defendant] and his passenger to
        exit the vehicle, whereupon [one of the officers] conducted
        a protective sweep of the car for the safety of the officers.
        It was during this search that [the officer] opened the
        center console and saw three pill bottles. Two pill bottles
        had the labels partially removed, while the label on the

        [The officer] seized the pill bottles and arrested [the
        defendant]. The pill bottles were later determined to
        contain prescription pain medication. [The defendant] was
        charged with possession of a controlled substance with
        intent to deliver and possession of a controlled substance.




                                    - 13 -
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Id.



Id. at 1242.

      The trial court suppressed the pill bottles. Id.

that it was impossible for the officers . . . to determine that these

prescription bottles contained illegal substances because the contents of the

bottles wer                                    Id. at 1242. The court noted that



Poison Control to conduct testing in order to determine that these were

                  Id. The trial court further found:

         These officers should have secured the vehicle and
         obtained a proper warrant in order to open the pill bottles
         and conduct testing on the contents therein.           The
         reasonableness for a warrantless search ceased when [the
         officer] observed the bottles in the compartment but could
         not immediately recognized [sic] the contents. His intent
         in conducting this search was for weapons for officer
         safety. Once no weapon was observed, any warrantless
         basis for his search ended due to his acknowledged
         inability to make a determination that the pill bottles
         contained contraband just by plain observation.

Id. (emphasis added).

      On appeal, this Court agreed:


         that while the pill bottles themselves were in plain
         view, the contents of those bottles were not
         immediately apparent, and a pill bottle by itself is
         not contraband. The potentially incriminating contents of
         the pill bottles were not discovered until after they were
         improperly seized, searched, and tested, thereby proving



                                      - 14 -
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        view exception had not been satisfied.

                                 *     *      *

        . . . The two pill bottles that had their labels partially
        removed were next to a pill bottle with an intact label
        bearing [the

        that [the defendant] had pill bottles in his car, with one
        bearing his name, without more, did not place the contents
        of the bottles in plain view and did not establish probable
        cause.[ ]

Id. at 1242-43.

     We find the facts in the case sub judice are distinguishable from those

in Hudson. Here, as Officer Evans approached the vehicle, he saw Appellee

                                                            at as if he were



present in Hudson,10 in this case we have the additional factor of Officer



when Appellee opened his window. Id. Furthermore, the safe was in plain

                                                             Id. at 4. After

Appellee and his passengers were removed from the vehicle, the officers

conducted a valid   under Gary       warrantless search of the car.   Officer

Evans observed a white residue on the top of the safe, which he believed

was cocaine. Id. at 5. Although the contents of the safe were not visible, it


10
   See Hudson, 92 A.3d at 1236 (stating as officers approached vehicle,
they noticed defendant reaching toward center console).



                                     - 15 -
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fro               Id.



Id.   We hold that the totality of the circumstances lended the officer

probable cause to search the safe for narcotics. See Hudson, 92 A.3d at

1243 n.6. Accordingly, after applying the dictates of Gary and Hudson, we



vehicle. We thus reverse the portion of the order granting Appel

to suppress this evidence.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2014




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