J-S13006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

CHRISTOPHER BAILEY,

                            Appellee                  No. 1412 EDA 2016


                  Appeal from the Order Entered April 12, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000202-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

DISSENTING MEMORANDUM BY BENDER, P.J.E.:                FILED JULY 17, 2017

        I respectfully disagree with the Majority that the evidence presented at

the suppression hearing was sufficient to demonstrate that Officer Copestick

had probable cause to search Bailey’s vehicle for more marijuana.

Therefore, I dissent.

        Initially, I feel it is important to point out that Officer Copestick

testified at Bailey’s suppression hearing that he opened the car’s console

because he “believed that there could have been more marijuana in the

vehicle.” N.T. Suppression Hearing, 4/12/16, at 11 (emphasis added). This

testimony failed to demonstrate that the officer had “more than a mere

suspicion or a good faith belief” that additional marijuana would likely be

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*
    Former Justice specially assigned to the Superior Court.
J-S13006-17



found in Bailey’s vehicle. Commonwealth v. Copeland, 955 A.2d 396, 400

(Pa. Super. 2008) (“[T]he evidence required to establish probable cause for

a warrantless search must be more than a mere suspicion or a good faith

belief on the part of the police officer.”). As enunciated by the United States

Supreme Court, an officer is required to have “probable cause … to believe

[the vehicle] contains contraband” before conducting a warrantless search,

not probable cause to believe the vehicle could contain contraband.

Pennsylvania v. Labron, 518 U.S. 938, 940 (1996) (emphasis added).

      I also would affirm the trial court’s order granting suppression because

I find distinguishable the three main cases on which the Commonwealth

relies to support its position that Officer Copestick possessed probable cause

to search Bailey’s car. In each of those cases, the police officer articulated

specific facts demonstrating his probable cause to believe that more

contraband was in the vehicle. See Commonwealth v. Bailey, 545 A.2d

942, 943 (Pa. Super. 1988) (concluding the officer had probable cause to

search the trunk of a vehicle for more drugs where the trooper “detected a

‘chemical-type smell[,]’” despite that the appellant and the drugs he had on

his person were no longer in the car); Commonwealth v. Duell, 451 A.2d

724, 725 (Pa. Super. 1982) (finding that officers had probable cause to

search a brown paper bag found in Duell’s vehicle where they smelled a

strong odor of marijuana, but had only seen open wine bottles in plain

view); Commonwealth v. Stoner, 344 A.2d 633, 634, 635 (Pa. Super.

1975) (holding that an officer had probable cause to search Stoner’s vehicle

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where he smelled “a very strong odor of marijuana coming from inside the

car[,]” yet he only observed marijuana seeds and leaves in plain view inside

the vehicle, and the officer testified that “he was certain that the odor was

too strong to be coming from the small amount of the drug he could see”).

      I recognize that in all three of the above-cited cases, certain illegal

items were discovered by the officers before their search was conducted.

However, the officers in Stoner and Duell had not found the marijuana that

they believed was emitting the odor that they smelled, and the officer in

Bailey continued to smell a ‘chemical-type’ odor emanating from the vehicle

even after removing the appellant and the drugs he was carrying on his

person. In other words, in each of these cases, the officer articulated facts

to demonstrate his probable cause to believe that there was additional

contraband in the car that he had yet to find.

      To the contrary, in this case, Officer Copestick smelled fresh marijuana

and then he found a bag of fresh marijuana in plain view in the vehicle.

The officer never testified that he continued to smell marijuana in the car

after Bailey and that bag of marijuana were removed. He also never stated

that the small amount of marijuana in the bag did not align with the strength

of the odor of marijuana that he smelled. In other words, Officer Copestick

did not provide any specific facts that led him to conclude there was more

marijuana, or some other contraband, contained in Bailey’s car.      Instead,

the officer simply stated that he believed more marijuana ‘could be’ inside

the vehicle because he had found one bag already.          In my view, this

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J-S13006-17



testimony was insufficient to establish that the officer had probable cause to

conduct the warrantless search of Bailey’s vehicle.1       Therefore, I would

affirm the trial court’s order granting Bailey’s motion to suppress.




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1
   I also disagree with the Majority’s conclusion that the search of Bailey’s
vehicle was “justified as a search incident to arrest.” Majority at 8 n.3.
While conceding that the Commonwealth did not raise any such argument in
its brief, the Majority finds this omission “not dispositive,” relying on In re
I.M.S., 124 A.3d 311 (Pa. Super. 2015). Id. (“In In re I.M.S., this Court
found that a search incident to arrest would have been legal, despite the
issue not being presented in the Commonwealth’s brief.”). However, in In
re I.M.S., the Commonwealth was not the appellant, and this Court was
affirming the trial court’s decision, which we have the authority to do “on
any valid basis, as long as the court came to the correct result….” Wilson
v. Transport Ins. Co., 889 A.2d 563, 577 n.4 (Pa. Super. 2005) (citations
omitted).     Here, however, the Majority creates an argument for the
appellant, i.e., the Commonwealth, and would reverse the trial court’s
decision on that basis, but for reversing on other grounds. This is improper.
See, e.g., Wiegand v. Wiegand, 337 A.2d 256, 257 (Pa. 1975) (holding
that issues neither raised nor preserved for appellate review are waived and
may not constitute the basis for reversal of a trial court’s decision); see also
Knarr v. Erie Insurance Exchange, 723 A.2d 664 (1999) (holding that if
an appellant fails to present an issue on appeal, the Superior Court is not
permitted to address it, even if a trial court’s disposition was fundamentally
wrong); Phillips Home Furnishings, Inc. v. Continental Bank, 354 A.2d
542 (Pa. 1976) (stating that the Superior Court is not permitted to reverse a
case based on a claim not raised by the appellant).



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