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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                          Appellant         :
                                            :
                     v.                     :         No. 1325 EDA 2017
                                            :
DATWAN Q. BROOKINS                          :


                     Appeal from the Order, March 22, 2017,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CR-51-CR-0006119-2016


BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JUNE 01, 2018

        The Commonwealth appeals from the March 22, 2017 order entered in

the Court of Common Pleas of Philadelphia County that granted, in part, the

motion to suppress evidence filed by appellee, Datwan Q. Brookins.        After

careful review, we affirm.

        The trial court set forth the following:

              [Appellee] was arrested on June 9, 2016 and
              charged on July 5, 2016 with Possession with Intent
              to Deliver, Possession of a Controlled Substance, and
              Possession of a Small Amount of Marijuana[1].
              Following a preliminary hearing, the charges were
              held, and the trial court scheduled a hearing on
              [appellee’s] Motion to Suppress.

              The     Commonwealth       called   Police    Officer
              David O’Connor to testify. He was the only witness
              in this proceeding. Officer O’Connor is an 11[-]year

1   35 P.S. § 780-113(a)(30), (a)(16), and (a)(31), respectively.
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          veteran, assigned to the 14th District, who has made
          numerous narcotics arrests during his tenure.

          Officer David O’Connor and his partner were riding in
          a marked police car on June 8, 2016 about 10 p.m.
          in the neighborhood of 5700 Anderson Street in
          Philadelphia,     Pennsylvania.         According      to
          Officer O’Connor, this area is partially residential, but
          known for drug activity and drug trafficking.
          Officer O’Connor could not recall making any other
          drug arrests on this block for at least a month prior
          to his arrest of [appellee]. Officer O’Connor does not
          have specialized training in narcotics. He does
          receive instruction as to narcotics during annual
          trainings.

          On this night, the officers noticed a tan Buick fail to
          signal while making a left turn on the 58th block of
          Anderson Street. The vehicle did not have a working
          rear passenger brake light. The officers stopped the
          Buick, which [appellee] was operating.

          Officer O’Connor testified that he first could smell the
          odor of fresh marijuana when [appellee] began to
          speak with him—Officer O’Connor did not describe
          the odor as strong or overpowering.           [Appellee]
          complied with the officers’ requests for identification
          and requests for information.

          After running [appellee’s] ID and vehicle information
          through the database, the officers confirmed that the
          vehicle was owned by [appellee’s] mother.
          [Appellee] advised the officers that he had
          permission from his mother to use the vehicle.

          The officers asked [appellee] to exit the vehicle and
          placed him at the rear of the police car, pending the
          outcome of the investigation.       Officer O’Connor
          testified that [appellee] gave the officers no reason
          to believe that he had a weapon inside the car.
          When he asked [appellee] to step out of the car,
          Officer O’Connor did not ask [appellee] about the
          odor of marijuana that he said he could smell, but
          only about weapons even though the officers had no


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          fear there was a weapon in the car. [Appellee] told
          them there were no weapons in the car, just “weed”
          in the console.

          Officer O’Connor said that “based on the odor, as
          well as [his] admission to the marijuana” he did not
          really need [appellee’s] permission to search the
          vehicle under a 2014 Pennsylvania Supreme Court
          case,     but    he    did    so   anyway.         On
          cross[-]examination, Officer O’Connor testified that
          he did ask [appellee] if it “[was] okay if I search
          [his] vehicle” and that [appellee] said that the
          officers could search and that “there was a little bit
          of    weed    in   the    center  console[.”]      As
          Officer O’Connor testified, [appellee] only made
          reference to the center console; he was never
          presented with the option to terminate the search
          beyond the center console.

          Officer O’Connor’s testimony on the issue of consent
          shifted over the course of cross-examination.
          Officer O’Connor amended his testimony to suggest
          that he not only asked [appellee] whether it was
          “okay” to conduct the search, but then also told
          [appellee] that he had a right to consent or not
          consent to the search.     We find it unlikely that
          Officer O’Connor told [appellee] that he could refuse
          consent to the search while this officer had been
          operating under the assumption that a 2014 court
          decision allowed him to conduct the search “whether
          (the defendant) affirmed or denied it.”

          Officer O’Connor searched the center console and
          located one clear “dime” bag of marijuana, which
          turned out to be the only plausible source of the
          odor.    Officer O’Connor testified that he then
          checked the vehicle for “the rest” of the marijuana,
          based on his observations, what he smelled, and his
          “years as a police officer[,”] although we are
          skeptical of these aspects of his testimony. As no
          marijuana was ever recovered from the areas where
          they removed the car seats or inside the front panel,
          the record does not support a finding that the
          officers could actually smell the odor of any


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           marijuana, that is, the very “object of the search[,”]
           in those parts of the car.

           Officer O’Connor agreed that [appellee] never gave
           him consent to dismantle the back seat cushions to
           search under these seats. After forcibly removing
           the seat cushions, Officer O’Connor recovered three
           amber      tinted   pill  bottles    which    contained
           256 different pills mixed up in a single container.
           The prescription labels were torn or scratched off. It
           was Officer O’Connor’s belief that the prescriptions
           were narcotics because they did not match the pills
           in the bottle. Officer O’Connor also said, however,
           that he could not confirm the contents of the pill
           bottles until he contacted poison control and had
           never received specialized training in the pill
           identification. He never asked [appellee] whether he
           had a prescription for the pills they recovered. The
           officers also pried apart the driver door panel, which
           “was stapled together” and “loose fitting[,”] and
           recovered a white sock with $3000 USC.[Footnote 1]
           After recovering the narcotics “without prescription
           labels” they found under the seats, they arrested
           [appellee] and handcuffed him. During the search
           incident to arrest, the police officers recovered $165
           in USC from [appellee] and drug paraphernalia.

                    [Footnote 1] United States currency.

Trial court opinion, 7/18/17 at 2-5 (citations to notes of testimony omitted;

emphasis and some brackets in original).

      The record reflects that following the suppression hearing, the trial

court denied appellee’s motion to suppress as to the marijuana, but granted

the   motion   as   to   the   remainder   of   the   physical   evidence.   The

Commonwealth then filed a timely notice of appeal to this court. Within its

notice of appeal, the Commonwealth certified that the suppression court’s

order would terminate or substantially handicap the appellee’s prosecution.


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See   Pa.R.A.P.    311(d)   (permitting     Commonwealth      appeal   from    an

interlocutory order if it certifies that the order will terminate or substantially

handicap the prosecution).       The Commonwealth simultaneously filed a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Thereafter, the trial court filed its Rule 1925(a) opinion.

      The Commonwealth raises the following issue for our review:

            Did the lower court err by ruling that the police had
            no probable cause to search [appellee’s] car after
            lawfully recovering narcotics from the center
            console?

Commonwealth’s brief at 3.2

            When     the   Commonwealth       appeals   from     a
            suppression order, we follow a clearly defined
            standard of review and consider only the evidence
            from the defendant’s witnesses together with the
            evidence of the prosecution that, when read in the
            context of the entire record, remains uncontradicted.
            The suppression court’s findings of fact bind an
            appellate court if the record supports those findings.
            The suppression court’s conclusions of law, however,
            are not binding on an appellate court, whose duty is
            to determine if the suppression court properly
            applied the law to the facts.

            Our standard of review is restricted to establishing
            whether the record supports the suppression court’s
            factual findings; however, we maintain de novo
            review    over   the  suppression    court’s    legal
            conclusions.




2 We note that appellee’s brief was due on December 21, 2017. Appellee
neither requested an extension of time to file his brief nor did he file an
appellee’s brief.


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Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa.Super. 2016)

(internal citations and quotation marks omitted).

       In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (opinion

announcing judgment of the court),3 the Pennsylvania Supreme Court

adopted 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

the motor vehicle. Gary, 91 A.3d at 104. Therefore, [“t]he prerequisite for

a warrantless search of a motor vehicle is probable cause to search.” Id. at

138.

       Our standard for determining whether probable cause exists is as

follows:

            Probable cause is made out when the facts and
            circumstances which are within the knowledge of the
            officer at the time of the [stop], 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.




3We note that although Gary is a plurality opinion, the result is precedential
due to the nature of Justice Saylor’s concurring opinion. Gary, 91 A.3d at
138 (“I join the lead Justices in adopting the federal automobile
exception.”).


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Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (citation

omitted; emphasis in original), cert. denied, 136 S. Ct. 201, 193 L. Ed. 2d

155 (U.S. 2015).

      “It is well settled that an officer may stop a motor vehicle if the officer

reasonably believes that a provision of the Motor Vehicle Code is being

violated.    Incident to this stop, the [officer] may check the vehicle’s

registration and the driver’s license and issue a citation.” Commonwealth

v. Henley, 909 A.2d 352, 358 (Pa.Super. 2006) (citations and internal

quotation marks omitted), appeal denied, 927 A.2d 623 (Pa. 2007).

      Here, no dispute exists that Officer O’Connor lawfully stopped the

vehicle being driven by appellee for Motor Vehicle Code violations. Following

that lawful stop, Officer O’Connor approached the driver’s side of the vehicle

and began interacting with appellee, at which time he detected the odor of

marijuana.    (Notes of testimony, 3/2/17 23-25.)       At this point, appellee

denied having any weapons and informed Officer O’Connor that the center

console of the vehicle contained marijuana. (Id. at 30.) Although a dispute

exists as to whether appellee consented to the search, no dispute exists that

at this juncture, based on “plain smell,” Officer O’Connor developed the

requisite probable cause to conduct a search for the marijuana that appellee

told the officer was located in the center console. See Commonwealth v.

Smith, 85 A.3d 530, 537 (Pa.Super. 2014) (citations omitted) (reiterating

that this court has analogized a “plain smell” concept with that of plain view



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and has held that where an officer is justified in being where he is, the

officer’s detection of the odor of marijuana is sufficient to establish probable

cause); see also Commonwealth v. Copeland, 955 A.2d 396, 401

(Pa.Super. 2008) (law enforcement officer’s detection of odor of marijuana

sufficient to establish probable cause).

      At this point, Officer O’Connor recovered “a plastic bag filled with

weed” from the center console of the vehicle.          (Id. at 30-31.)    After

recovering the marijuana, Officer O’Connor then decided to remove the rear

seat of the vehicle, where he recovered three pill bottles, while another

police officer pried open the driver’s side door panel and recovered $3,000 in

cash. (Id. at 16, 31, 39-40.) Appellee was then arrested. (Id. at 16.) A

search incident to arrest recovered $165 in cash, as well as drug

paraphernalia. (Id.)

      With respect to that part of the search that followed the recovery of

the marijuana, the trial court concluded that it was “implausible that the

officers had sufficient probable cause to dismantle the rear seat cushions to

look beneath them or pry the driver’s door panel open.” (Trial court opinion,

7/18/17 at 9.)     The trial court further found that the Commonwealth

“adduced no credible testimony or other evidence” to suggest that this latter

part of the search was reasonable. (Id.) As such, the trial court found the

latter part of the search unlawful because the police officers took “it upon

themselves to expand the scope of the investigation without probable cause,



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going beyond those parts of the car that “may conceal the object of the

search.” (Id. (emphasis in original).)

      The United States Supreme Court has explained that:

              [t]he scope of a warrantless search of an automobile
              thus is not defined by the nature of the container in
              which the contraband is secreted.        Rather, it is
              defined by the object of the search and the places in
              which there is probable cause to believe that it may
              be found. Just as probable cause to believe that a
              stolen lawnmower may be found in a garage will not
              support a warrant to search an upstairs bedroom,
              probable cause to believe that undocumented aliens
              are being transported in a van will not justify a
              warrantless search of a suitcase. Probable cause to
              believe that a container placed in the trunk of a taxi
              contains contraband or evidence does not justify a
              search of the entire cab.

United States v. Ross, 456 U.S. 798, 823 (1982).

      Here,    the   object   of   the    search   was   marijuana.    Although

Officer O’Connor recovered a bag of marijuana from the center console, after

its recovery, he decided to remove the vehicle’s rear seat and another officer

removed the driver’s door panel.         Our review of the record demonstrates

that Officer O’Connor offered no testimony to support the conclusion that he

had reason to believe that additional marijuana was located within the

vehicle so as to justify the removal of the vehicle’s rear seat and the driver’s

door panel. Therefore, the record supports the trial court’s factual findings

that formed the basis of its legal conclusion that law enforcement lacked

probable cause to further search the vehicle by removing the rear seat and

the driver’s door panel.


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     With respect to consent, the trial court did not find Officer O’Connor’s

testimony credible and concluded that even if appellee consented to the

search of the vehicle’s center console, that consent “did not include the

forcible removal of the car’s rear seat cushions and front door panel.” (Trial

court opinion, 7/21/17 at 13.) Our review of the record supports the trial

court’s factual finding that appellee did not consent to this part of the

search.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 6/1/18




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