J-S61035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JOHN TORRES                                :   No. 3462 EDA 2017

                   Appeal from the Order September 27, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004488-2017


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY PANELLA, J.:                          FILED FEBRUARY 13, 2019

       The Commonwealth of Pennsylvania appeals1 from the order granting

the suppression motion of Appellee, John Torres. The Commonwealth

contends the suppression court erred in suppressing evidence obtained as a

result of a search of a vehicle Appellee was utilizing to deal drugs. After careful

review, we reverse.

       Following two warrantless searches of a black SUV,2 Appellee was

arrested and charged with possession of a controlled substance as well as

____________________________________________


1 The Commonwealth has certified that the trial court’s order substantially
handicaps its prosecution as required by Pa.R.A.P. 311(d).

2  While Appellee was not the registered owner of the SUV, both parties
stipulated that the owner of the SUV had given Appellee permission to drive
it. See N.T., Suppression Hearing, 9/20/17, at 4.
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possession with intent to deliver.3 Appellee moved to suppress the evidence

gained from the searches of his vehicle.

        At the hearing on Appellee’s motion to suppress, the Commonwealth

presented the testimony of Philadelphia police officer Jose Hamoy. On April

14, 2017, Officer Hamoy was on bicycle patrol in the area of E Street and

Ontario Street in Philadelphia. See N.T., Suppression Hearing, 9/13/17, at 8.

At approximately 6:20 p.m., Officer Hamoy observed Appellee, followed

closely by a black male, walking in the direction of a black SUV. See id., at 8-

9. After stopping his bicycle three feet in front of the SUV, Officer Hamoy

observed Appellee open the SUV’s passenger side door and remove a clear

plastic bag. See id., at 9, 12. Based upon his training and experience, Officer

Hamoy believed this bag contained marijuana and that he was witnessing a

drug sale. See id., at 9, 18. Once Appellee noticed Officer Hamoy stopped

nearby, he threw the clear plastic bag back onto the passenger seat of the

SUV. See id., at 10, 12.

        Officer Hamoy detained Appellee until his partner, Officer Halbherr,

arrived at the scene. See id., at 10. During this time, the passenger side door

to the SUV remained open. See id., at 13. Officer Hamoy observed two clear

plastic bags on the front passenger seat and an opaque grocery bag sitting on

the center console. See id., at 10, 31. One of the clear plastics bags was

identical to the bag Officer Hamoy observed Appellee holding earlier. See id.,

____________________________________________


3   35 Pa.C.S.A. §§ 780-113 (a)(16) and (a)(30), respectively.

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at 10. Once Officer Halbherr arrived on scene, Officer Hamoy placed Appellee

into custody and secured the clear plastic bags. See id., at 14.

       Officer Halbherr proceeded to conduct a second search of the vehicle.

During his search, he recovered the opaque grocery bag and $1,015.00 cash

from inside the center console. See id., at 10-11, 15. Subsequent testing

revealed that the grocery bag contained twenty-seven containers of crack

cocaine and twenty-two jars of marijuana. See id., at 10-11. Neither officer

obtained a search warrant or consent for either search of the vehicle. See id.,

at 32. Additionally, Officer Hamoy testified that there were no concerns of

danger to either police officer during the second search. See id., at 14.

Appellee presented no evidence at the suppression hearing.

       Following the hearing, the suppression court concluded that the second

warrantless search of the vehicle was not supported by probable cause

because “any probable cause [the police] had was resolved when they

recovered [the clear plastic bag] that was thrown.” N.T., Suppression Hearing,

9/27/17, at 12. Therefore, the suppression court granted Appellee’s motion to

suppress the contents of the opaque bag and the center console.4 This timely

appeal follows.

       On appeal, the Commonwealth presents the following issue for our

review:
____________________________________________


4 Prior to the suppression court’s ruling, Appellee withdrew his suppression
motion relating to Officer Hamoy’s initial search and the recovery of the two
clear plastic bags of marijuana. See N.T., Suppression Hearing, 9/13/17, at
35-36.

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      Did the lower court err in holding that the police were not
      permitted to search a bag sitting on the center console of an SUV,
      and the center console itself, when the police knew from their own
      observation that [Appellee] was using the vehicle to deliver drugs?

Commonwealth’s Brief, at 4.

      When a suppression court has granted a defendant’s motion to suppress

evidence, our standard and scope of review is as follows:

      [W]e are bound by that court’s factual findings to the extent that
      they are supported by the record, and we consider only the
      evidence offered by the defendant, as well as any portion of the
      Commonwealth’s evidence which remains uncontradicted, when
      read in the context of the entire record. Our review of the legal
      conclusions which have been drawn from such evidence, however,
      is de novo, and consequently, we are not bound by the legal
      conclusions of the lower court.

Commonwealth v. Busser, 56 A.3d 419, 421 (Pa. Super. 2012) (citation

omitted) (italics added).

      The Commonwealth contends, and, in a reversal of its earlier decision,

the suppression court agrees, that because Officer Hamoy reasonably believed

Appellee was dealing drugs from his vehicle, the officers had probable cause

to believe more drugs and/or evidence of drug dealing would be discovered in

the vehicle. As probable cause is the only prerequisite for a warrantless search

of a motor vehicle under the “automobile exception,” the Commonwealth

argues that suppression of the evidence discovered during the second search

was improper. Conversely, Appellee contends the Commonwealth failed to

present sufficient evidence to justify a finding that there was probable cause

to believe further evidence of a crime would be found in the vehicle after the

two clear bags of marijuana were removed.


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        The Fourth Amendment to the United States Constitution guarantees,

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated….”

U.S. Const. amend. IV. The Pennsylvania Constitution also protects this

interest by ensuring, “[t]he people shall be secure in their persons, houses,

papers and possessions from unreasonable searches and seizures….” Pa.

Const. Art. I, Section 8. Therefore, “[a]s a general rule, a search conducted

without a warrant is presumed to be unreasonable unless it can be justified

under    a   recognized   exception   to   the   search   warrant   requirement.”

Commonwealth v. Agnew, 600 A.2d 1265, 1271 (Pa. Super. 1991)

(citations omitted).

        One such exception to the search warrant requirement is the automobile

exception. In Pennsylvania, “[t]he prerequisite for a warrantless search of a

motor vehicle is probable cause to search; no level of exigency beyond the

inherent mobility of a motor vehicle is required.” Commonwealth v. Gary,

91 A.3d 102, 138 (Pa. 2014) (opinion announcing the judgment of the court).

Further, if police have the requisite probable cause to search a vehicle for

contraband, they are permitted to search any container found therein where

the contraband in question could be concealed. See Wyoming v. Houghton,

526 U.S. 295, 307 (1999) (provided police are authorized to perform a

warrantless search of a vehicle, “a package [in the car] 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

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car”); see also In re I.M.S., 124 A.3d 311, 317 (Pa. Super. 2015) (holding

that in light of our adoption of the federal automobile exception in Gary, the

rule announced in Houghton applies).

      When reviewing a trial court’s probable cause determination, we are

mindful that:

      [t]he level of probable cause necessary for warrantless searches
      of automobiles is the same as that required to obtain a search
      warrant. The well-established standard for evaluating whether
      probable cause exists is the “totality of the circumstances” test.
      This test allows for a flexible, common-sense approach to all
      circumstances presented. Probable cause typically exists where
      the facts and circumstances within the officer’s knowledge are
      sufficient to warrant a person of reasonable caution in the belief
      that an offense had been or is being committed. The evidence
      required to establish probable cause for a warrantless search must
      be more than mere suspicion or a good faith belief on the part of
      the police officer.

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

omitted). “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) (quotation marks and citations omitted).

      Here, while standing only three feet away from Appellee, Officer Hamoy

witnessed Appellee remove a clear bag containing marijuana from the vehicle

and attempt what Officer Hamoy believed to be a drug sale. Upon seeing

Officer Hamoy, Appellee threw the bag of marijuana back into the vehicle.

Officer Hamoy recovered this bag, along with another clear bag containing

marijuana after observing them in plain view on the passenger seat of the


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vehicle. Based upon the totality of the circumstances, we conclude that Officer

Hamoy’s description of the attempted drug deal from the vehicle coupled with

discovery of an additional bag of marijuana in plain view establishes sufficient

probable cause for a search of the entire vehicle. Accordingly, applying Gary

and its progeny, the officers were permitted to perform a search of the vehicle

and its contents, which included the opaque bag and center console. See

Runyan, 160 A.3d at 838 (applying I.M.S. and determining police had

“probable cause to believe the vehicle contained contraband, which was all

that was necessary to justify the warrantless search of the vehicle, as well as

the search of [the defendant]’s purse where the contraband could be

concealed”). The trial court did not properly apply the law to the facts of the

case, and therefore, erred in suppressing the contents of the opaque bag and

the center console.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/13/19




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