J-A05017-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JORDAN MONEE JOHNSON                       :
                                               :
                       Appellant               :   No. 850 WDA 2018

            Appeal from the Judgment of Sentence February 26, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0010529-2017


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED JUNE 28, 2019

        Appellant, Jordan Monee Johnson, appeals from the judgment of

sentence entered on February 26, 2018, following her convictions for firearms

not to be carried without a license and carrying a loaded weapon other than

firearms.1 Appellant argues that the trial court erred in denying her motion

to suppress, which was filed on January 25, 2018.         After careful review, we

affirm.

        The trial court set forth the following factual history:

              The facts presented at the suppression hearing established
        the following. Trooper James R. Sellers has been a Pennsylvania
        State Trooper for approximately three years and, prior to that, he
        was employed as a local law enforcement officer for approximately
        four years. Hrg. Tran. P. 4 (02/26/18). On July 28, 2017, Trooper
        Sellers was performing speed enforcement on State Route 28 in
        Allegheny County when he observed a vehicle traveling at 82
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1   18 Pa.C.S. § 6106(a)(1) and 18 Pa.C.S. § 6106.1(a), respectively.
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      m.p.h. in a 55 m.p.h. zone. Id. at 5. Trooper Sellers initiated a
      traffic stop of the vehicle. Id. Trooper Sellers then verified that the
      driver of the vehicle had a valid license. Id. Appellant was seated
      in the rear passenger seat of the vehicle. Id. Immediately upon
      making contact with the vehicle and its occupants, Trooper Sellers
      observed a smell of marijuana coming from the vehicle. Id. at 6.
      Trooper Sellers testified that the front seat passenger, Taalibe
      Glover, admitted that they had been smoking in the vehicle shortly
      before the traffic stop. Id. Additionally, Glover admitting to having
      marijuana on his person and provided a small bag of marijuana to
      Trooper Sellers. Id. at 6. At that time, Trooper Sellers requested
      permission from the driver to search the vehicle, and the driver
      consented. Id. at 6-7. Trooper Sellers testified that had the driver
      refused to consent, he would have conducted the search of the
      vehicle in any event on the basis of probable cause that there was
      additional marijuana in the vehicle. Id. at 8. While searching the
      vehicle, Trooper Sellers observed a black leather purse in the
      backseat. Id. at 7. Trooper Sellers observed a black Smith and
      Wesson 38 Special inside of the purse. Id. Trooper Sellers then
      requested dispatch to run the serial number of the gun, which was
      returned with no record of sale. Id. Trooper Sellers then asked
      Appellant if the purse and gun belonged to her to which she
      conceded they both did. Id. After running Appellant’s information,
      Trooper Sellers determined that Appellant did not possess a
      permit to carry a concealed firearm. Id. Appellant was then
      arrested and charges were filed against her. Id.
Trial Court Opinion, 8/15/18, at 3–4.

      Appellant was initially charged with carrying a firearm without a license

(count one), carrying a loaded weapon other than firearms (count two), and

disorderly conduct (count three). Prior to trial, Appellant filed a motion to

suppress the firearm that Trooper Sellers found in her purse, alleging that the

search was illegal under the Fourth Amendment of the United States

Constitution and Article 1, Section 8 of the Pennsylvania Constitution. Motion

to Suppress, 1/25/18, at unnumbered 2–3. Specifically, Appellant argued that


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Trooper Sellers lacked probable cause or valid consent to search her handbag.

Id. at 3.

        The trial court held a hearing on the motion to suppress on February 26,

2018.        The trial court denied the motion to suppress that same day, and the

case immediately proceeded to a nonjury trial. N.T. (Suppression), 2/26/18,

at 28. Following the nonjury trial, the trial court found Appellant guilty of

count one, carrying a firearm not to be carried without a license, and count

two, carrying a loaded weapon other than firearms. Id. at 54. The trial court

sentenced Appellant to twelve months of probation at count one and imposed

no further sentence at count two. Id. at 57; Order of Sentence, 2/26/18.

Appellant filed post-sentence motions on March 1, 2018, and April 16, 2018,

which the trial court denied on May 9, 2018. Order, 5/9/18. Appellant filed a

timely notice of appeal on June 7, 2018. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

        Appellant presents the following question for our review:

        I.      Whether the trial court erred in denying [Appellant’s] Motion
                to Suppress where police lacked a warrant supported by
                probable cause or an exception to the warrant requirement
                under the United States Constitution or the Pennsylvania
                Constitution to search [Appellant’s] purse?

Appellant’s Brief at 4.

        With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

        Our standard of review in addressing a challenge to a trial court’s
        denial of a suppression motion is whether the factual findings are


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       supported by the record and whether the legal conclusions drawn
       from those facts are correct. When reviewing the ruling of a
       suppression court, we must consider only the evidence of the
       prosecution and so much of the evidence of the defense as
       remains uncontradicted when read in the context of the record ....
       Where the record supports the findings of the suppression court,
       we are bound by those facts and may reverse only if the legal
       conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006). Moreover, we note that our scope of review from a suppression ruling

is limited to the evidentiary record that was created at the suppression

hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013). In addition, questions

of the admission and exclusion of evidence are within the sound discretion of

the trial court and will not be reversed on appeal absent an abuse of discretion.

Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).

       In support of her appeal, Appellant argues that Trooper Sellers’ search

of her purse lacked probable cause and was based “on nothing more than a

hunch.”2    Appellant’s Brief at 9.        Specifically, Appellant avers there was

nothing in her interaction with Trooper Sellers that suggested she was


____________________________________________


2 Appellant also argues that the driver’s consent to search the vehicle was
invalid because the driver did not have authority over Appellant’s belongings.
Appellant’s Brief at 17. Because we find Trooper Sellers had probable cause
to search the automobile and the containers within the automobile, we need
not address Appellant’s consent argument.

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engaged in criminal activity.        Id. Appellant posits that probable cause to

search the automobile was not established despite the fact that Trooper

Sellers smelled burnt marijuana, Mr. Glover admitted that they had just

smoked marijuana, and Mr. Glover gave Trooper Sellers a small bag of

marijuana. Id. at 10.       Appellant further avers that although the automobile

exception to the search warrant requirement allowed police to search the

vehicle without a search-warrant pursuant to Commonwealth v. Gary, 91

A.3d 102 (Pa. 2014) (plurality), she retained an expectation of privacy in her

purse. Appellant’s Brief at 15.

       Appellant’s reliance on Gary is misplaced. In that case, our Supreme

Court addressed the requirements for a warrantless search of a motor vehicle

in the Commonwealth. Gary, 91 A.3d at 104. In Gary, a majority of Justices

agreed to align Pennsylvania constitutional law with federal constitutional law

as it relates to the automobile exception. Id. 138. Pursuant to the federal

automobile exception to the warrant requirement, police may search an

automobile upon a showing of probable cause without an additional showing

of exigency.3 Id. The Court held:

       [O]ur review reveals no compelling reason to interpret Article I,
       Section 8 of the Pennsylvania Constitution as providing greater
       protection with regard to warrantless searches of motor vehicles
       than does the Fourth Amendment. Therefore, we hold that, in this
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3 Prior to our Supreme Court’s adoption of the federal automobile exception,
Pennsylvania law required police to have both probable cause and exigent
circumstances before conducting a warrantless search of an automobile.
Gary, 91 A.3d at 120.

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      Commonwealth, the law governing warrantless searches of motor
      vehicles is coextensive with federal law under the Fourth
      Amendment.

Gary, 91 A.3d at 138. Given our Supreme Court’s holding in Gary that federal

and Pennsylvania law are coextensive on this issue, we look to the

jurisprudence of the Supreme Court of the United States as it relates to

warrantless searches of an automobile. See In re I.M.S., 124 A.3d 311, 317

(Pa. Super. 2015) (“[I]n light of the Gary Court’s clear holding that

Pennsylvania automobile search and seizure law and federal Fourth

Amendment Jurisprudence are coextensive, [Wyoming v. Houghton, 526

U.S. 295 (1999)] necessarily now applies.”).

      In Houghton, the Supreme Court of the United States held that “a

passenger’s personal belongings, just like the driver’s belongings or containers

attached to the car like a glove compartment, are ‘in’ the car, and the officer

has probable cause to search for contraband in the car.” Houghton, 526 U.S.

at 302. Moreover, the Court noted that once probable cause to search for

contraband in a car has been established, the police may search packages and

containers in the car without a showing of individualized probable cause for

each item. Id. The Houghton Court also held passengers:

      possess a reduced expectation of privacy with regard to the
      property that they transport in cars, which travel public
      thoroughfares, seldom serve as the repository for personal
      effects, are subjected to police stop and examination to enforce
      pervasive governmental controls as an everyday occurrence and,
      finally, are exposed to traffic accidents that may render all their
      contents open to public scrutiny.


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Id. at 303.   See also Commonwealth v. Runyan 160 A.3d 831, 837 (Pa.

Super. 2018) (citing Houghton, and concluding if the officer had probable

cause to search the vehicle for contraband, “he was also permitted to search

any container found therein where the contraband could be concealed,

including Appellee’s purse.”) and I.M.S., 124 A.3d at 317 (finding that where

an officer has probable cause to search a vehicle, that officer may search any

container therein where contraband could be concealed).

      The standard for determining whether probable cause exists is well

settled:

      Probable cause is made out when the facts and circumstances
      which are within the knowledge of the officer at the time of the
      arrest, and of which he has reasonably trustworthy information,
      are sufficient to warrant a man of reasonable caution in the belief
      that the suspect has committed or is committing a crime. The
      question we ask is not 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. In
      determining whether probable cause exists, we apply a totality of
      the circumstances test.

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

and citations omitted). “Probable cause does not require certainty, but rather

exists when criminality is one reasonable inference, not necessarily even the

most reasonable inference.” Commonwealth v. Spieler, 887 A.2d 1271,

1275 (Pa. Super. 2005).

      Probable cause existed in the instant case.      Trooper Sellers smelled

burnt marijuana when he approached the car. N.T. (Suppression), 2/26/18,



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at 6. It is well established in this Commonwealth that “where an officer is

justified in being where he is, his detection of the odor of marijuana is

sufficient to establish probable cause.” Commonwealth v. Stainbrook, 471

A.2d 1223, 1225 (Pa. Super. 1984) (citing Commonwealth v. Stoner, 344

A.2d 633 (1975)).     Further, it is undisputed that Mr. Glover admitted to

Trooper Sellers that the individuals in the car had just smoked marijuana prior

to being pulled over, and Mr. Glover handed Trooper Sellers a small bag of

marijuana.    N.T. (Suppression), 2/26/18, at 6.     Moreover, we note that

Trooper Sellers testified that he has conducted over 1,000 traffic stops and

would search a vehicle if he smelled marijuana or saw contraband in plain

sight. Id. at 5. He further testified that he would search any compartment

in the vehicle where the marijuana or paraphernalia could be found, because

“often [times] there is a second stash in the vehicle.” Id. at 14.

      The trial court did not err when it found Trooper Sellers possessed

probable cause to search the vehicle and the containers therein.          See

Commonwealth v. Hoffman, 589 A.2d 737, 744 (Pa. Super. 1991) (finding

probable cause existed to search “the passenger compartment, the field

jacket, and containers therein, as possible places where drugs may be found”

in a car after a Trooper observed a waterpipe or “bong” in the interior of

Appellant’s car); see also Commonwealth v. Gelineau, 696 A.2d 188, 192

(Pa. Super. 1997) (finding that probable cause existed to search a vehicle




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when Trooper smelled burnt marijuana and saw marijuana residue in one of

the vehicle’s passenger’s pockets).

     As we find no merit to the issue raised in this appeal, we affirm the

judgment of sentence. Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/2019




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