J-A22002-15

                              2015 PA Super 188

IN THE INTEREST OF: I.M.S., A MINOR,            IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




                                                     No. 691 MDA 2015


               Appeal from the Dispositional Order March 9, 2015
             In the Court of Common Pleas of Cumberland County
              Juvenile Division at No(s): CP-21-JV-0000238-2014


BEFORE: BOWES, JENKINS, AND PLATT,* JJ.

OPINION BY BOWES, J.:                          FILED SEPTEMBER 08, 2015

       I.M.S. appeals from the dispositional order entered by the juvenile

court adjudicating him delinquent for the commission of acts constituting

possession of marijuana and possession of drug paraphernalia. We affirm.

       Juvenile was a passenger in a vehicle stopped as a result of an

inoperable driver’s side headlight.    Officer Brian Barnes effectuated the

traffic stop along with his partner. After the driver of the car, Jordan Cox,

provided several inconsistent answers to questions regarding his travel,

Officer Barnes asked him to exit the vehicle and step to the rear of the

automobile. At that time, Mr. Cox admitted that Juvenile had been smoking

marijuana in the car.    He also informed the officer that he was unsure if

Juvenile had marijuana in a drawstring knapsack Juvenile possessed in the


*
    Retired Senior Judge assigned to the Superior Court.
J-A22002-15



vehicle. Officer Barnes then removed Juvenile from the car and questioned

him.   When he did so, he noticed marijuana flakes on Juvenile’s shirt and

pants. He also detected an odor of burnt marijuana.

       Juvenile    acknowledged       that        his   bag   contained   marijuana   and

paraphernalia. Officer Barnes then asked Mr. Cox for permission to search

the car. Mr. Cox consented to a search of the vehicle. Officer Barnes, in the

process of searching the car, also searched Juvenile’s bag and found

marijuana, rolling papers, a grinder, a scale, and a glass smoking pipe. The

bag was not on Juvenile’s person, but was located within reach in the

backseat floor area behind the driver’s seat.                 Juvenile was arrested and

charged     with    delinquent     acts      of     possessing    marijuana   and     drug

paraphernalia.

       Juvenile filed a motion to suppress.             The suppression court ruled that

under Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (plurality),1

wherein our Supreme Court adopted the federal warrantless automobile

search exception, Officer Barnes had authority to search a passenger’s

belongings.     Thereafter, the matter proceeded to an adjudicatory hearing.

The juvenile court found Juvenile delinquent. Juvenile timely appealed. He

presents one issue for our review.
____________________________________________


1
  A majority of justices agreed to align Pennsylvania constitutional law with
the Fourth Amendment jurisprudence of the United States Supreme Court
with respect to warrantless vehicle searches.



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      I. Whether evidence found inside the Appellant’s drawstring bag
      during a search of an automobile in which Appellant was a
      passenger should have been suppressed, when the evidence
      demonstrated that the officer knew the bag belonged to the
      Appellant, searched the bag by relying only upon the consent of
      the driver who did not have actual or apparent authority to
      consent to the search of [the] bag, and the Appellant never
      consented to the search of his belongings?

Appellant’s brief at 5.

      In reviewing a juvenile court order denying a suppression motion, we

consider the factual findings of the juvenile court and whether they are

supported by record evidence.    In re T.B., 11 A.3d 500, 505 (Pa.Super.

2010).   We consider only the evidence of the Commonwealth’s witnesses

and testimony of the defendant’s witnesses that are not contradicted by the

suppression record. Id. Where the evidence supports the juvenile court’s

factual findings, we are bound by them and will reverse only where the legal

conclusions derived from those facts are in error. Id.

      Juvenile argues that, under the Fourth Amendment and Article I, § 8

of the Pennsylvania Constitution, the warrantless search of his bag was

unconstitutional.   He contends that he had a reasonable expectation of

privacy in his own backpack and that a warrantless search of his personal

luggage, which was closed, violated his protected privacy interests.      In

addition, Juvenile maintains that Mr. Cox’s consent to search the vehicle did

not include consent to search Juvenile’s personal belongings.        In this

respect, Juvenile also suggests that because Officer Barnes testified to



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conducting the search based on consent, the federal warrantless automobile

jurisprudence articulated by the United States Supreme Court and recently

adopted in Gary, supra, is not controlling.

      The Commonwealth responds that since the officer had probable cause

to search the vehicle after a lawful stop, Gary applies. It adds that because

Pennsylvania has now adopted the federal warrantless automobile search

exception, under United States Supreme Court precedent, specifically,

Wyoming v. Houghton, 526 U.S. 295 (1999), such a search can include

containers belonging to passengers in the vehicle.

      The Fourth Amendment provides,

      The right of the people to be secure in their persons, houses,
      papers, and effects, against unreasonable searches and seizures,
      shall not be violated, and no Warrants shall issue, but upon
      probable cause, supported by Oath or affirmation, and
      particularly describing the place to be searched, and the persons
      or things to be seized.

U.S. Const. Am. IV. Similarly, Article I, § 8 of the Pennsylvania Constitution

reads,

      The people shall be secure in their persons, houses, papers and
      possessions from unreasonable searches and seizures, and no
      warrant to search any place or to seize any person or things
      shall issue without describing them as nearly as may be, nor
      without probable cause, supported by oath or affirmation
      subscribed by the affiant.

Pa.Const. Art. I, § 8.

      The   United   States   Supreme   Court   has   opined,   under   similar

circumstances, “In determining whether a particular governmental action

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violates [the Fourth Amendment], we inquire first whether the action was

regarded as an unlawful search or seizure under the common law when the

Amendment was framed.” Houghton, supra at 299. As recently noted by

this Court, the original purpose of the early search and seizure amendments

was aimed at prohibition of general warrants. Commonwealth v. Haynes,

116 A.3d 640, 648 (Pa.Super. 2015).

       Indeed,    anti-federalist    writings    condemned   the   original   federal

constitution’s absence of a bill of rights, claiming that it would allow

unreasonable searches and seizures. These writings, however, focused not

on warrantless searches as occurred here, which were generally illegal

because they were unauthorized by common law or statute save for limited

circumstances, but on the issuance of general warrants.              For example,

Pennsylvania anti-federalist writer, Centinel,2 in the first of his eighteen

articles printed in Philadelphia between October 5, 1787 and April 9, 1788,

wrote the following:

       Your present frame of government, secures to you a right to
       hold yourselves, houses, papers and possessions free from
       search, and therefore warrants granted without oaths or
       affirmations first made, affording sufficient foundation for them,
       whereby any officer or messenger may be commanded or
       required to search your houses or seize your persons or
       property, not particularly described in such warrant, shall not be
       granted.
____________________________________________


2
  Centinel was a pseudonym for Samual Bryan, son of George Bryan, the
latter of whom was a member of the early Pennsylvania Supreme Court.



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Letters of Centinel, No. 1., reprinted in The Anti-Federalist Papers and the

Constitutional Convention Debates (Ralph Ketcham, ed. 1986). He added,

“you yourselves are called upon to say, whether your houses shall continue

to be your castles; whether your papers, your persons and your property,

are to be held sacred and free from general warrants[.]”        Id. (emphasis

omitted).

      Those    Pennsylvania   representatives   who   opposed    the   federal

constitution at the Pennsylvania ratification convention issued a minority

report complaining of the lack of a bill of rights.       They proffered an

amendment stating, “warrants unsupported by evidence, whereby any

officer or messenger may be commanded or required to search suspected

places, or to seize any person or persons, his or their property, not

particularly described, are grievous and oppressive, and shall not be granted

. . . .” The Address and Reasons of Dissent of the Minority of the Convention

of Pennsylvania to their Constituents, reprinted in The Anti-Federalist Papers

and the Constitutional Convention Debates, 239 (Ralph Ketcham, ed. 1986).

      Modern day jurisprudence, however, has focused on warrantless

searches and seizures, a problem that largely did not exist at the time of

ratification due to the extremely limited authority possessed by peace

officers.   See Haynes, supra at 651 (discussing limited authority of

constables).    While some warrantless arrests would not have been

considered against common law and therefore unreasonable, the type of

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warrantless arrest allowed at that time was far more circumscribed than

exists today. See id.

        Even more restricted was a warrantless search, which was essentially

permissible only in the context of a lawful arrest or perhaps if authorized by

statute for purposes of enforcing commercial laws, i.e., civil regulatory

searches. Id. at 653 (“there was no common law authority for a warrantless

search in a home, other than a search for the fleeing individual or of an

individual's person incident to an arrest.”); See also Thomas K. Clancy, The

Importance of James Otis, Mississippi Law Journal,        Vol. 82:2, 513 (2013)

(“The [United States Supreme] Court’s initial cases were notable for their

premise that a warrant complying with the specifications of the Warrant

Clause was required for all searches.            The Court’s only acknowledged

exception in those early cases was for searches incident to arrest, which had

a strong historical pedigree.”); Agnello v. United States, 269 U.S. 20, 33

(1925) (“Save in certain cases as incident to arrest, there is no sanction in

the decisions of the courts, federal or state, for the search of a private

dwelling house without a warrant.”); Collection Act of 1789, 1 Stat. 29

(federal statute authorizing warrantless searches of ships to prevent

smuggling);3 see also Act of Dec. 21, 1780, ch. 190, § 10 (reprinted in The

____________________________________________


3
    The relevant portion of the Collection Act read,

(Footnote Continued Next Page)


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First Laws of the Commonwealth of Pennsylvania 422, 424-25 (John D.

Cushing ed., 1984) (Pennsylvania statute authorizing warrantless searches

of ships by customs official but requiring a warrant for dwellings suspected

of housing smuggled goods).4

      The United States Supreme Court first addressed a Fourth Amendment

challenge to a warrantless search of a car in Carroll v. United States, 267

US. 132 (1925).           Carroll stands for the proposition that warrantless

searches of automobiles would not have been considered unreasonable at

the time of ratification of the Fourth Amendment because Congress, under

                       _______________________
(Footnote Continued)

      That every collector, naval officer and surveyor, or other person
      specially appointed by either of them for that purpose, shall have
      full power and authority, to enter any ship or vessel, in which
      they shall have reason to suspect any goods, wares or
      merchandise subject to duty shall be concealed; and therein to
      search for, seize, and secure any such goods, wares or
      merchandise; and if they shall have cause to suspect a
      concealment thereof, in any particular dwelling house, store,
      building, or other place, they or either of them shall, upon
      application on oath or affirmation to any justice of the peace, be
      entitled to a warrant to enter such house, store, or other place
      (in the daytime only) and there to search for such goods, and if
      any shall be found, to seize and secure the same for trial; and all
      such goods, wares and merchandise, on which the duties shall
      not have been paid or secured, shall be forfeited.
4
  A 1783 Massachusetts revenue search statute permitted warrantless
searches by customs officials of ships and commercial premises if they
provided a sworn writing showing just cause to suspect that uncustomed
goods were being concealed. Virginia also authorized warrantless revenue
searches of ships. Va. Acts, ch. 40, §§ 10-11 (1782) (reprinted in Virginia:
The State at Large, 501 (William Waller Hening ed., 1822).



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admiralty law and customs statutes, permitted the warrantless seizure and

search of ships. Nonetheless, the Court therein set forth that whenever

practicable, a warrant should be sought and used. Carroll, supra at 156.

       The Carroll Court did not discuss or marshal a single case where the

Fourth Amendment was even suggested to apply to a ship seizure, perhaps

because ships were not considered to fall within the ambit of the Fourth

Amendment’s protections.         A more apt analogy was to personal carriages.

Justice Scalia, who authored Houghton, supra, himself has analogized cars

to carriages with respect to the Fourth Amendment. See United States v.

Jones, 132 S.Ct. 945, 951 n.3 (2012). In this respect, Carroll did cite to a

short-lived 1815 statute, and wartime measure, authorizing warrantless

searches by customs officers of any vessel, carriage, beast, or person whom

they suspected possessed smuggled goods. Act of March 3, 1815, ch. 94 §

2, 3 Stat. 231.        That law, never challenged on constitutional grounds,

authorized customs officials statutory warrantless authority to search those

engaged in commercial transportation.5 Importantly, of course, Carroll was




____________________________________________


5
  There are, of course, limits to the presumption that statutes passed near in
time to the ratification of the federal constitution reflect evidence of that
constitution’s meaning.     For example, few contend that the Alien and
Sedition Acts were totally consistent with various constitutional protections.




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not discussing common law and the laws being analyzed were premised on

statutory grants of power to government agents.6

       The common law did not authorize warrantless searches of any person

traveling; rather, an officer could conduct a search pursuant to express

statutory authority or after lawfully arresting the person. Thus, under the

common law, absent statutory authority, peace officers could not conduct

warrantless searches of those traveling via carriage unless done as a lawful

search incident to an arrest. Nevertheless, the Houghton Court applied the


____________________________________________


6
  Frequently overlooked in discussion of warrantless searches is that they
were only permitted, outside the context of a search incident to an arrest, if
express statutory authority existed authorizing the government official to
perform the search. While courts have concluded that the existence of these
early statutes permitting warrantless searches for smuggled goods suggests
that the framers would not have viewed warrantless searches outside a
home as unreasonable, they have not considered that the framers expressly
limited warrantless searches via the legislation permitting them. In the
absence of such statutory law, the search would almost certainly have been
considered against the law of the land, i.e., unlawful, because there was an
absence of authority to perform such a search.

      Frankly, the historical distinction between statutory authorization and
common law authority is an important one. Here, the First Congress’
passage of statutory law permitting limited warrantless searches of
commercial vehicles and merchants is evidence that a modern day statute
authorizing such limited power to government officials would not run afoul of
the Fourth Amendment. It, however, is not altogether strong evidence that
police could conduct warrantless searches based on the common law. See
e.g., Tracy Maclin, The Complexity of The Fourth Amendment: A Historical
Review, 77 B.U. L.Rev. 925, 945 (2014) (discussing colonial Massachusetts
opposition to ex officio warrantless searches by customs officers).




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Carroll holding that warrantless searches of cars are not unreasonable

where probable cause exists.

      In Houghton, supra, Wyoming Highway Patrol effectuated a traffic

stop of a car for speeding and driving with a broken brake light.        Three

individuals were in the car. While questioning the driver, an officer noticed a

hypodermic syringe in the driver’s shirt pocket. The driver admitted that he

used the syringe for drugs. Police then removed the two passengers, both

women, from the car and searched the passenger compartment for drugs.

In the backseat was a purse that belonged to Houghton, one of the

passengers.   Inside, police found a brown pouch and black wallet.         The

brown pouch contained methamphetamine and a syringe and the black

wallet held an additional syringe with methamphetamine.

      The suppression court denied a suppression motion and a jury

convicted Houghton.     The Wyoming Supreme Court reversed, concluding

that police did not have probable cause to believe the passenger had

committed a crime and therefore there was no probable cause to search her

personal items.   Although asserting that its Fourth Amendment analysis

should begin with an examination of the common law at the time of the

passage of the Fourth Amendment, the Houghton Court proceeded directly

to discussing Carroll, supra, which analyzed statutory law at the time of

the founding rather than common law.




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     The Court then relied on United States v. Ross, 456 U.S. 798

(1982), which also had based its analysis on Carroll. The Ross Court found

that statutes allowing warrantless searches of vessels and beasts that

imported merchandise showed that lawful searches of the vessel included

any container that could contain the object of the search.             Houghton,

supra at 301 (citing Ross, supra at 820 n.26). Accordingly, the Houghton

Court reasoned that where “there is probable cause to search for contraband

in a car, it is reasonable for police officers-like customs officials in the

founding era-to examine packages and containers without a showing of

individualized probable cause for each one.” Houghton, supra at 302.

     Houghton,     however,    did    not     have   a   substantial   impact   in

Pennsylvania when it was decided since, at the time, Pennsylvania case law

interpreting Article I, § 8 of our state constitution provided Pennsylvanians

with greater privacy protections. A warrantless search of an automobile was

permissible if police had probable cause to search and exigent circumstances

existed beyond the mobility of the car. See Commonwealth v. White, 669

A.2d 896 (Pa. 1995); see also Commonwealth v. Rosenfelt, 662 A.2d

1131 (Pa.Super. 1995), abrogated by Gary, supra.

     In Gary, supra, the Pennsylvania Supreme Court switched course

from its earlier mid-1990’s cases that provided greater protections to

citizens of Pennsylvania in their automobiles.           It aligned Pennsylvania

jurisprudence with the United States Supreme Court’s interpretation of the

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Fourth Amendment with regard to vehicle searches. In Gary, Philadelphia

police observed a vehicle with tinted windows that they believed violated the

Motor Vehicle Code. After stopping the automobile, the police detected the

smell of marijuana emanating from the vehicle. Gary told police that there

was marijuana in the car and police summoned a canine unit to conduct a

sniff of the vehicle.   Gary, who had been placed in the back of a police

cruiser, then attempted to flee but was captured. Police found two pounds

of marijuana under the front hood of the car.

      Gary unsuccessfully litigated a suppression motion and was found

guilty of possession with intent to deliver marijuana.           This Court reversed

and remanded for a new trial, concluding that, because Gary was in custody

at the time of the search of the automobile, no exigent circumstances

existed for the search.       The Pennsylvania Supreme Court reversed this

Court, finding that the only exigent circumstance required of an automobile

is its mobility.   Thus, it held that, where police possess probable cause to

search a car, a warrantless search is permissible.

      The Gary Court, nonetheless, did not face the situation where a

passenger was also in the automobile and whether probable cause to search

the car also authorized a search of a passenger’s belongings therein.

However, in light of the Gary Court’s clear holding that Pennsylvania

automobile    search    and   seizure   law      and   federal   Fourth   Amendment

jurisprudence are coextensive, Houghton necessarily now applies.

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      Application of Houghton herein compels affirmance. Moreover, in this

case, unlike Houghton, police did have probable cause to believe that

Juvenile was committing a crime. Here, the officer had probable cause to

arrest Juvenile after he admitted to possessing drugs. The officer, therefore,

would have been authorized to conduct a search incident to arrest of the

backpack. Juvenile’s claim fails.

      Dispositional order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2015




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