J-A27039-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEITH ALEXANDER                            :
                                               :
                       Appellant               :   No. 3246 EDA 2017

      Appeal from the Judgment of Sentence Entered September 12, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005971-2016


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 05, 2019

        Keith Alexander appeals the judgment of sentence entered on

September 12, 2017, after the trial court found him guilty of knowing and

intentional possession of a controlled substance (“K&I”) and possession with

intent to deliver a controlled substance (“PWID”).1 Alexander maintains that

the police officers who conducted a traffic stop of his vehicle lacked probable

cause to search his vehicle and a locked container they found in his vehicle.

He also suggests that our Supreme Court’s decision in Commonwealth v.

Gary, 91 A.3d 102 (Pa. 2014), should be overruled. We affirm.

        The facts and procedural history giving rise to this appeal are as follows.

The Commonwealth charged Alexander with a number of drug offenses

including the above referenced offenses. The charges arose after Alexander

____________________________________________


1   35 P.S. §§ 780-113(a)(16), (30).
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was arrested for driving under the influence of narcotics. While searching his

vehicle, policer officers recovered ten bundles of heroin. Alexander filed a

Motion to Suppress the narcotics recovered as well as any statement made by

him, arguing that the police officers lacked reasonable suspicion and probable

cause to “detain, stop, frisk, search, or question” him. N.T., Suppression

Motion, 6/5/17 at 3.

      The Commonwealth presented the following evidence at the Motion to

Suppress hearing. Officer Joshua Godfrey testified that on the day in question,

he was on duty with his partner Officer Catherine Ernst and around 2:30 a.m.

he observed Alexander driving a vehicle. Id. at 3-4. There were no other

vehicles on the road at the time. Id. at 6-7. While waiting at a red light, Officer

Godfrey noticed an “extremely overpowering smell of burnt marijuana”

coming from Alexander’s vehicle, which was in front of him. Id. Officer

Godfrey testified that the windows of his vehicle, as well as Alexander’s

windows, were down. He said he pulled next to Alexander’s vehicle after the

light turned green. Id. at 7, 14. Officer Godfrey continued to follow Alexander

for approximately nine blocks, during which time he continued to smell

marijuana. Id. at 8. The only vehicles on the road the entire time were Officer

Godfrey’s and Alexander’s. Id. Officer Godfrey then conducted a traffic stop

of Alexander’s vehicle. Id. Officer Godfrey got out of his vehicle and

approached Alexander, who was in the driver’s seat. There was also a woman

in the front passenger seat. Id. at 8, 11. He testified that when he approached

the vehicle, the smell of marijuana became stronger. Id. He also observed

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that Alexander’s eyes were bloodshot, and Alexander spoke slowly and in “a

hush, little whisper.” Id. at 8-9. Officer Godfrey asked Alexander if there was

marijuana in the vehicle and Alexander gave him one baggie of marijuana that

he pulled from his crotch. Id. at 10. Alexander also admitted “he had just

smoked–he and his passenger just smoked a blunt.” Id. at 10.

      Officer Godfrey then placed Alexander under arrest for suspicion of

driving under the influence of narcotics. Id. at 11. Officer Godfrey testified

that based on his one and one half years’ experience as a police officer; his

personal experience of being a manager of nightclubs in Atlantic City;

encountering individuals under the influence of marijuana at least 50 times in

his life; Alexander’s speech; the overpowering smell of marijuana; Alexander’s

admission that he had just smoked a “blunt” in the vehicle; as well as the

marijuana that he handed over, Officer Godfrey believed that Alexander was

under the influence of marijuana and unfit to drive. Id. at 9-10. After arresting

Alexander, Officer Godfrey found a locked silver box behind the driver’s seat.

Id. at 12.   The key for the lockbox was in Alexander’s pocket and Officer

Godfrey took the key and unlocked it. Id. at 12-13. Officer Godfrey recovered

a total of ten bundles of heroin, packaged in paper packages stamped

“Buddha,” from inside the lockbox. Id. at 11-12.

      The trial court denied the motion and Alexander waived his right to a

jury trial and proceeded with a bench trial the same day. Id. at 30. The trial

court found him guilty of PWID and K&I. It sentenced him on a later date. This

timely appeal followed.

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      Alexander raises the following issues:

      I.    Did not the lower court err in denying [Alexander’s] motion
            to suppress evidence recovered from a locked metal safe,
            where officers took a key from [Alexander’s] pocket and
            opened the lockbox but lacked probable cause to search the
            vehicle and a warrant to search the lockbox?

      II.   Should not Commonwealth v. Gary, 91 A.3d 102 (Pa.
            2014), be overruled as an anomaly inconsistent with the
            fundamental principles of Article I, Section 8 of the
            Pennsylvania Constitution and other cases of the
            Pennsylvania Supreme Court?

Alexander’s Br. at 3.

      Our standard of review of the denial of a motion to suppress 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.” Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015)

(citation omitted).

      Alexander admits that “[t]he odor of burnt marijuana and [his]

admission that he had just smoked ‘a blunt’ gave Officer Godfrey probable

cause to arrest [him] for DUI.” Alexander’s Br. at 12. However, he maintains

that Officer Godfrey did not have probable cause to search the lockbox

because “there were no additional facts or circumstances articulated by Officer

Godfrey to justify a reasonable belief that more marijuana would be found in

a locked lockbox, an area where a driver would have a greater expectation of

privacy.” Id. In support of his argument he cites Commonwealth v. Long,

414 A.2d 113 (Pa. 1980), which held that a warrantless search of the trunk of



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an automobile was unreasonable where officers lacked probable cause to

search the vehicle. Long, 414 A.2d at 117. Alexander argues that “[a] locked

lockbox is similar to a locked trunk.” Alexander’s Br. at 12. We disagree.

      “As a general rule, for a search to be reasonable under the Fourth

Amendment [of the United States Constitution] or Article I, Section 8 [of the

Pennsylvania Constitution], police must obtain a warrant, supported by

probable cause and issued by an independent judicial officer, prior to

conducting the search.” Gary, 91 A.3d at 107. An exception to this general

rule is the search and seizure of vehicles. Id. Pennsylvania constitutional law

governing warrantless searches of motor vehicles is coextensive with federal

law under the Fourth Amendment. Id. at 138. A warrantless search of a

vehicle is appropriate where officers have probable cause to search. Id. “No

exigency beyond the inherent mobility of a motor vehicle is required.” Id.

Once an officer has probable cause to search a motor vehicle, the search of

that vehicle includes everything inside that the officer believes may contain

the contraband giving rise to the search. See Wyoming v. Houghton, 526

U.S. 295, 307 (1999) (“[S]uch a package may be searched, whether or not

its owner is present as a passenger or otherwise, because it may contain the

contraband that the officer has reason to believe is in the car.”); see also In

re I.M.S., 124 A.3d 311, 317 (Pa.Super. 2015) (stating rule of Houghton

applies in light of the holding in Gary).

      As stated above, Alexander acknowledges that Officer Godfrey had

probable cause to search his vehicle due to the heavy smell of marijuana,

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which is correct. See In Interest of A.A., 195 A.3d 896, 904 (Pa. 2018) (“the

odor of marijuana alone, particularly in a moving vehicle, is sufficient to

support at least reasonable suspicion, if not the more stringent requirement

of probable cause”); see also Commonwealth v. Stoner, 344 A.2d 633,

635 (Pa.Super. 1975) (analogizing plain smell of marijuana with plain view of

marijuana). However, he maintains that we should treat the lockbox like a

locked trunk, for which we have in some cases required police to obtain a

warrant before conducting a search. See Long, 414 A.2d at 116-17

(concluding search of a locked automobile trunk was unreasonable where

officers    lacked    probable     cause    to    search    the   vehicle);     see     also

Commonwealth v. Pleummer, 617 A.2d 718, 719 (Pa.Super. 1992).

        Alexander’s reliance on Long and Pleummer is misplaced. Those

decisions     predate      Gary,   which   adopted    federal     precedent      governing

automobile searches, including the automobile exception, and here there was

probable cause to search Alexander’s vehicle. As such, Officer Godfrey was

free to search any container within the vehicle that he reasonably believed

could      contain   the    contraband     that   gave     rise   to   the    arrest.   See

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

(concluding officer had probable to search vehicle and therefore was permitted

to search any container found in vehicle where contraband could be found).

Additionally, the fact that the lockbox was locked is immaterial because prior

to opening it, Officer Godfrey had probable cause to search the vehicle. See

Houghton, 526 U.S. at 307. No relief is due.

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     Next,     Alexander   argues   that   Gary   should   be   overruled.   He

acknowledges that “this Court cannot overrule a holding of the Pennsylvania

Supreme Court,” and apparently makes this claim only to preserve the

argument for further review. Alexander’s Br. at 20. We thus affirm the

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/19




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