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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY LAZARUS, J.:                                     FILED JULY 17, 2017

        The Commonwealth of Pennsylvania appeals from the trial court’s

order granting Christopher Bailey’s motion to suppress 1 a loaded firearm,

found in the center console of a vehicle he was driving, seized during a

warrantless search.         Here, the officers did not need a warrant to search

Bailey’s car because they had probable cause to believe that more

contraband was inside the car. Thus, we reverse and remand.

        Philadelphia   Police    Officer       Michael   Copestick   testified   that   at

approximately 10:20 a.m. on December 22, 2015, he and his partner were

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
   The Commonwealth has certified in its notice of appeal that the
interlocutory suppression order terminates or substantially handicaps the
prosecution. See Pa.R.A.P. 311(d).
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conducting routine patrol, in a marked police car, in the area of Ardleigh and

East Rittenhouse Streets in Philadelphia. The officers observed Bailey, who

was driving Eastbound on Rittenhouse Street in a white Ford Escape,

“disregard a stop sign[.]” N.T. Suppression Motion, 4/12/16, at 8. Officer

Copestick testified that he activated his vehicle’s lights and sirens, and

proceeded to conduct a vehicle stop.         Bailey pulled his vehicle over

immediately; the officers approached Bailey’s vehicle on foot. Id.

      As Officer Copestick approached the driver’s side of the vehicle and

Bailey lowered the driver’s side window, he testified that he “immediately

smelled an odor of marijuana” and that the odor was “heavy.” Id. at 9, 20.

Officer Copestick asked Bailey if he had a driver’s license, to which he

replied, “No.” Id.   The officer then asked Bailey to step out of the vehicle.

As Bailey was getting out of the SUV, Officer Copestick observed a bag of

marijuana in between the door and the driver’s seat. Id. Bailey then went

to the back of the police vehicle with Officer Copestick’s partner, and Officer

Copestick recovered the bag of marijuana. Id. Believing that there could

have been more marijuana in the vehicle, Officer Copestick immediately

“opened up the center console and [saw] a firearm.” Id. at 11.




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        On April 8, 2016,2 Bailey filed a motion to suppress, claiming that

“[b]ecause the police seized the evidence from [his] car without a search

warrant, and because no exception to the search warrant requirement was

present, the evidence should be suppressed.” Motion to Suppress, 4/8/16,

at 1.    After a hearing held on April 12, 2016, the court granted Bailey’s

motion to suppress. On April 15, 2016, the Commonwealth filed a motion to

reconsider. On that same date, the court entered an order vacating its order

granting suppression, pending reconsideration, and scheduled a hearing on

the motion for April 25, 2016. On April 27, 2016, the trial court denied the

Commonwealth’s         motion     to   reconsider.   On   May   11,   2016,   the

Commonwealth filed a timely notice of appeal from the trial court’s

suppression order.

        On appeal, the Commonwealth raises the following issue:          Did the

lower court err in suppressing a firearm found in the center console of a car

[Bailey] was driving where the police had probable cause to believe

marijuana was in the car, and they found a weapon while searching for the

marijuana? Commonwealth’s Brief, at 4.

        When the Commonwealth appeals from a suppression order, this
        Court may consider only the evidence from the defendant's
        witnesses together with the evidence of the prosecution that,
        when read in the context of the record as a whole, remains
____________________________________________


2
  Bailey originally entered a guilty plea to firearms not to be carried without
a license, 18 Pa.C.S. § 6106(a)(1). However, the court granted his motion
to withdraw the plea on March 10, 2016.



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      uncontradicted. In our review, we are not bound by the
      suppression court’s conclusions of law, and we must determine if
      the suppression court properly applied the law to the facts. We
      defer to the suppression court’s findings of fact because, as the
      finder of fact, it is the suppression court’s prerogative to pass on
      the credibility of the witnesses and the weight to be given to
      their testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014)

(citations omitted).

      Instantly, the Commonwealth contends that because Officer Copestick

was justified in believing additional marijuana would likely be found in

Bailey’s car, i.e., probable cause was present, the officer’s warrantless

search of the console was permitted under the automobile exception to the

warrant requirement and suppression was improper.

      Until recently, in order for police officers to conduct a lawful search of

an automobile without a warrant, the officers were required to have

probable cause and exigent circumstances.       Commonwealth v. Hudson,

92 A.3d 1235 (Pa. Super. 2014). However, in Commonwealth v. Gary, 91

A.3d 102 (Pa. 2014) (opinion announcing judgment of the Court), our

Supreme Court adopted the federal automobile search incident to arrest

exception.   The Court’s holding simplified the standard regarding vehicular

searches and seizures in this Commonwealth.        To effectuate this interest,

the Court held:

      [I]n this Commonwealth, the law governing warrantless searches
      and seizures of motor vehicles is coextensive with federal law
      under the Fourth Amendment.         The prerequisite for a
      warrantless search of a motor vehicle is probable cause to
      search; no exigency beyond the inherent mobility of a

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         motor vehicle is required.          The consistent and firm
         requirement for probable cause is a strong and sufficient
         safeguard against illegal searches of motor vehicles, whose
         inherent mobility and the endless factual circumstances that
         such mobility engenders constitute a per se exigency allowing
         police officers to make the determination of probable cause in
         the first instance in the field.

Id. at 138 (emphasis added).

         Our 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.

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 likely inference.” Commonwealth v. Spieler, 887 A.2d

1271, 1275 (Pa. Super 2005) (quotations omitted; emphasis added).

         In Hudson, supra, officers lawfully stopped a vehicle for a broken tail

light.    While effectuating the stop, officers noticed the defendant reaching

toward the center console of the vehicle.          Upon reaching the vehicle, an

officer    asked   for   and   obtained   the   defendant’s   license   and   vehicle

registration. The officers then asked the defendant and the car’s passengers

to exit the vehicle, at which point the officers conducted a protective sweep



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of the car for safety purposes.    During the sweep, an officer opened the

center console and saw three pill bottles; two bottles had the labels partially

removed, while the third bottle’s label was intact and bore defendant’s

name.   The pill bottles were seized and the officers arrested defendant.

Later, it was determined that the bottles contained prescription pain

medication.

      The trial court granted the defendant’s motion to suppress.            On

appeal, our Court affirmed the suppression of evidence, stating:

      Here, the suppression court, after finding that the stop of the
      vehicle and the officers’ protective sweep of the car were lawful,
      concluded that it was impossible for the officers in this case to
      determine that these prescription bottles contained illegal
      substances because the contents of the bottles were not
      immediately apparent.

                                     *   *     *
      We agree with the suppression court's conclusion that while the
      pill bottles themselves were in plain view, the contents of those
      bottles were not immediately apparent, and a pill bottle by itself
      is not contraband. The potentially incriminating contents of the
      pill bottles were not discovered until after they were improperly
      seized, searched, and tested, thereby proving that the
      "immediately apparent" requirement for the plain view exception
      had not been satisfied. Id.

                                     *     *   *

      []The two pill bottles that had their labels partially removed were
      next to a pill bottle with an intact label bearing Appellee’s name,
      and the pill bottles alone were not "immediately apparent" as
      contraband. The fact that Appellee had pill bottles in his car, with
      one bearing his name, without more, did not place the contents
      of the bottles in plain view and did not establish probable cause.

      Pursuant to Gary, absent probable cause, the warrantless search
      of the pill bottles in Appellant’s vehicle was unlawful, and based

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       on our standard of review, we discern no reason to overturn the
       suppression court's ruling. See Commonwealth v. Kelly, []
       409 A.2d 21 (Pa. 1979) (plain view observation of [] prescription
       pill bottle containing foil packets did not give rise to probable
       cause to search defendant's vehicle as nature of [] pill bottle was
       not "immediately apparent" and police had no other indication of
       drug related activity).

Hudson, 92 A.3d at 1242-43 (citations to record omitted).3
____________________________________________


3
  The dissent would affirm the trial court’s suppression order by relying on
three specific cases; notably, each of these cases was decided prior to Gary
– before adoption of the federal automobile exception. Moreover, the
dissent’s reliance on Commonwealth v. Stoner, 344 A.3d 633 (Pa. Super.
1975) is misplaced as it actually supports reversal of suppression under the
facts of the case. In Stoner, our Court analogized the plain smell concept
with the plain view doctrine, and held that the plain smell of marijuana, by
an officer trained in identifying the substance by its smell, is sufficient to
establish probable cause for a search of the vehicle as long as the officer is
legally justified in being where he is. In fact, in Stoner, the Court stated,
“The marijuana which was in plain view was sufficient to establish probable
cause for the search of the car.” Id. at 635. At that point, the Court held
that under the law, the entire car could be searched based on the fact that
the officer observed drugs in plain view. Merely because the Court iterated
that it “need not base [its] decision solely on the evidence in plain view,” id.,
does not mean that it did not make such a simplified holding. The further
discussion regarding the “very strong odor of marijuana coming from inside
the car” is superfluous; it provides additional justification for the search, but
is not necessary to its central holding.

In Commonwealth v. Bailey, 545 A.2d 942 (Pa. Super. 1988), another
case cited by the dissent, the arresting officer searched the interior of the
defendant’s vehicle after recovering apparent drugs in a baggie from the
defendant’s shirt pocket. As the Court states, “Miranda warnings were
subsequently administered, whereupon [the] Officer placed the appellant in
his vehicle and proceeded to conduct a search of the Chevrolet sedan.” Id.
at 943. “During the course of this search [the officer] detected a ‘chemical-
type smell.’” Id. At that point, the officer proceeded to search the trunk of
the vehicle where he found more drugs and drug paraphernalia. Id. at 944.
The issue on appeal in Bailey concerned the legality of the search of the
locked trunk, not the passenger compartment as in our case. These factual
distinctions are critical.
(Footnote Continued Next Page)


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      Here, like in Hudson, the stop of Bailey’s vehicle was legal where

Officer Copestick pulled over Bailey for a Motor Vehicle Code violation.

Commonwealth v. Ibrahim, 127 A.3d 819 (Pa. Super. 2015).                          After

pulling over    the vehicle, Officer             Copestick approached the   car    and

“immediately” smelled a heavy odor of fresh marijuana upon reaching the

driver’s side window which “hit [him] right in the face.”          N.T. Suppression

Hearing, 4/12/16, at 21.          Officer Copestick then asked Bailey whether he

had a driver’s license, to which Bailey responded in the negative.           At this

point, Officer Copestick was justified in asking Bailey to step out of the

vehicle. See Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super.

2002) (en banc) (during routine traffic stop, police officer may order driver

out of vehicle for officer’s safety).


                       _______________________
(Footnote Continued)


Finally, the dissent cites to Commonwealth v. Duell, 451 A.2d 724 (Pa.
Super. 1982), to advance the theory that a police officer needs to articulate
specific facts to demonstrate probable cause “to believe that more
contraband was in the vehicle.” Dissenting Opinion, at 2. In Duell, a
Commonwealth appeal, our Court found suppression of evidence seized from
the defendant’s automobile was not warranted where the officer smelled an
odor of burning marijuana, but only saw a partially full bottle of wine on the
floor of the car. In justifying the officer’s seizure of a brown paper bag on
the front seat of the car (which ultimately was determined to contain
marijuana), our Court held that the officers “had probable cause to believe
that the car might contain further contraband in the form of marijuana or
alcohol.” Id. at 725. Officer Copestick’s belief that “there could have been
more marijuana in the vehicle,” N.T. Suppression Hearing, 4/12/16, at 11, is
just as definitive as an officer’s belief that a car “might” contain further
contraband.



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       As the door opened and Bailey stepped out of the vehicle, Officer

Copestick saw, in plain view, a small, clear bag of what he suspected to be

marijuana between the driver’s seat and door. Unlike the facts in Hudson,

the unlawful nature of the drugs was immediately apparent to Officer

Copestick, who had come into contact with marijuana every day in the eight

years he had been on the force. See Commonwealth v. Evans, 685 A.2d

535 (Pa. 1996) (experienced officer’s observations of either drugs or

containers commonly known to hold drugs is one factor to be considered in

determining whether probable cause exists for warrantless arrest). Officer

Copestick properly retrieved the bag in plain view and placed it into his

pocket.    See Commonwealth v. Clelland, 323 A.2d 60, 61 (Pa. Super.

1974) (holding “warrantless seizure” of marijuana observed in plain view

inside vehicle supported by probable cause).4      At this point, under the
____________________________________________


4
  Under the facts of this case, a full search of Bailey’s vehicle was also
justified as a search incident to arrest.      While it is true that the
Commonwealth did not address this issue in its brief, this is not dispositive.
In In re I.M.S., supra, this Court found that a search incident to arrest
would have been legal, despite the issue not being presented in the
Commonwealth’s brief.

       Moreover, in this case . . . police did have probable cause to
       believe that [Defendant] was committing a crime. Here, the
       officer had probable cause to arrest [Defendant] after he
       admitted to possessing drugs. The officer, therefore, would have
       been authorized to conduct a search incident to arrest of the
       backpack.

Id. 124 A.3d at 317. Similarly, here, police had probable cause to arrest
Bailey once they discovered the marijuana in plain view in the vehicle.
(Footnote Continued Next Page)


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totality of the circumstances, we find that Officer Copestick had established

sufficient probable cause for a search of the entire vehicle after he observed

illegal drugs, in plain view, and where he believed that the car likely

contained more marijuana.5           See In re I.M.S., 124 A.3d 311 (Pa. Super.

2015).   Accordingly, after applying the dictates of Gary, we hold the trial

court erred in suppressing the evidence (gun) retrieved from Bailey’s

vehicle; the trial court did not properly apply the law to the facts of the case.

Hudson, supra.6

                       _______________________
(Footnote Continued)

Officer Copestick, therefore, would have been authorized to conduct a search
of the vehicle incident to arrest.
5
  Although not binding, we also recognize that several other jurisdictions
have held that the discovery of drugs provides probable cause to search the
entire vehicle without a warrant, where officers have probable cause to
believe that the vehicle contains contraband. See Johnson v. State, 157
A.3d 338 (Md. App. 2017); United States v. McCarty, 612 F.3d 1020 (8th
Cir. 2010); McDaniel v. State, 990 S.W.2d 515 (Ark. 1999); United
States v. Powell, 732 F.3d 361 (5th Cir. 2013); State v. Buckner, No.
21892 2007 Ohio App. LEXIS 3877 (Ohio Aug. 24, 2007).
6
  The dissent contends that the probable cause to further search the interior
of Bailey’s vehicle would have been established had Officer Copestick simply
testified that “the small amount of marijuana in the bag did not align with
the strength of the odor of marijuana that he smelled.” Dissenting Opinion,
at 3. However, making officers use these “magic words” to establish
probable cause after they have seen illegal substances in plain view would
create a dangerous precedent regarding the governmental interest in
confiscating illegal substances.        For example, based on the dissent’s
reasoning, a clever drug dealer could intentionally travel with one small bag
of marijuana (or any illegal substance) in plain view in case he or she is
pulled over, while secretly carrying large amounts elsewhere in the vehicle.
If the officer does not explicitly testify to his or her certainty that more drugs
are suspected to be in the vehicle, any further search would be deemed
(Footnote Continued Next Page)


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      Order reversed. Case remanded. Jurisdiction relinquished.7

      Justice Fitzgerald concurs in the result

      President Judge Emeritus Bender files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2017




                       _______________________
(Footnote Continued)

illegal. In Gary, our Supreme Court sought to eliminate exactly that kind of
hyper-technicality and to simplify the law surrounding search and seizure of
automobiles. In short, the dissent’s logic “turn[s] on small details in the
midst of a complex factual scenario.” Gary, 91 A.3d at 137.
7
  Interestingly enough, at the conclusion of the suppression hearing in the
instant case, the Honorable Tracy Brandeis-Roman explained:

      Officer Copestick, I know that it’s very confusing regarding what
      you can search, when can you not search. There [is] a change
      in the law. I know that it’s confusing, and I think it’s no
      reflection upon you or your police work. None.

N.T. Suppression Hearing, 4/12/16, at 46.



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