Commonwealth v. Scott

210 A.3d 359

COMMONWEALTH of Pennsylvania, Appellant

v.Travis SCOTT

No. 3994 EDA 2017

Superior Court of Pennsylvania.

Submitted December 17, 2018

Filed May 10, 2019

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Benjamin Cooper, Philadelphia, for appellee.

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

OPINION BY NICHOLS, J.:

The Commonwealth appeals from the order granting Appellee Travis Scott's suppression motion.¹ The Commonwealth asserts that the trial court erred in concluding that police lacked probable cause to search the trunk of Appellee's vehicle. We affirm.

The trial court summarized the relevant facts of this case as follows:

A suppression hearing was held on October 30, 2017. [The] Commonwealth called Police Officer Louis Kerr to testify. He was the only witness in this proceeding. Officer Kerr has three and a half years of experience as a police officer, and is assigned to the 35th District.

Officer Kerr and his partner, Officer Tamamoto, were traveling in a marked police car, and on February 1, 2017 around 10:00 p.m., they were in the vicinity of 5800 North 16th Street in Philadelphia, Pennsylvania. According to Officer Kerr, this area is a high crime area where numerous shootings and robberies have occurred.

On this night, the officers noticed a 2000 Nissan Altima traveling north on 16th [Street] with a malfunctioning center brake light. The officers initiated a traffic stop of the Nissan; [Appellee] was the driver, and sole occupant, of the Nissan. During the investigation, it was established that [the] car was registered to [Appellee's] mother ....

Officer Kerr testified that he could smell the strong odor of burnt marijuana when he approached the Nissan, and saw that smoke was still emanating from the vehicle. He also saw [Appellee] attempt to place a blunt in the center console. The officers ordered [Appellee] to exit the vehicle, and the officers patted him down, but found nothing. [Appellee] was then placed in the back seat of the police car, but he was not handcuffed.

The officers then proceeded to search the passenger compartment of [Appellee's] vehicle. The officers did not ask for [Appellee's] consent to search the vehicle. In the center console, Officer Kerr recovered the blunt he saw [Appellee] place there. In the driver's side door, the officers found a jar with an orange lid that contained alleged marijuana. The officers also found a black ski mask in the back seat area of [the] car. At this time, the officers could only smell the odor of burnt marijuana, the smoke from which was still present in the vehicle.

Trial Ct. Op., 1/30/18, at 2-3 (record citations omitted).

Officer Kerr acknowledged that the smell from the blunt continued to linger in the vehicle as he continued his search:

[Commonwealth's counsel:] When you got to the back seat and found the ski mask, could you still smell marijuana in the car?

[Officer Kerr:] Yeah. Like I said, once we came up to the vehicle at the very beginning, there was still smoke omitting [sic] from the vehicle, so it was just smoked. The smell wasn't going to go away.

[Commonwealth's counsel:] And that smell was throughout the car?

[Officer Kerr:] That's correct.

N.T. Suppression Hr'g, 10/30/17, at 15.

The officers then searched the trunk of [Appellee's] vehicle; therein Officer Kerr found a loaded .38 caliber revolver wrapped up in clothes. Officer Kerr did not investigate [Appellee] for possible DUI, nor did Officer Kerr request a drug sniffing dog to come to the scene.

Trial Ct. Op. at 3 (record citations omitted).

On March 28, 2017, the Commonwealth filed a criminal information charging Appellee with carrying a firearm without a license, carrying a firearm on public streets in Philadelphia, carrying a loaded weapon, possession of a small amount of marijuana, and the summary traffic offense of operating a motor vehicle while consuming a controlled substance.²

The trial court conducted a hearing on October 30, 2017, at which time Appellee litigated a motion to suppress the firearm recovered from the trunk of his vehicle. Conceding that the officers possessed reasonable suspicion to conduct a traffic stop, Appellee argued that the officers conducted an illegal, warrantless search of the trunk. N.T. Suppression Hr'g, 10/30/17, at 28, 30. Appellee declined to challenge the officers' recovery of the marijuana from the passenger compartment of his vehicle. Id. at 30.

On November 15, 2017, the trial court announced its findings of fact and conclusions of law in open court. The court determined that the police "failed to articulate any facts that could have given them probable cause to use the key to open the trunk, search the trunk, and then the clothing which contained the firearm at issue in this case." N.T. Hr'g, 11/15/17, at 10. Consequently, the court granted Appellee's suppression motion.³

On December 11, 2017, the Commonwealth timely filed a notice of appeal and a voluntary Pa.R.A.P. 1925(b) statement. The trial court filed a responsive opinion pursuant to Pa.R.A.P. 1925(a), explaining that there was "no credible testimony or other evidence to suggest that it was reasonable for the officers to continue searching the vehicle for drugs after they recovered both the blunt and the jar of marijuana" from the passenger compartment of Appellee's vehicle. Trial Ct. Op. at 7.

On appeal, the Commonwealth raises the following question for our review: "Did the trial court err in concluding that, where the police searched a car with probable cause and found drugs in the passenger compartment, they were not permitted to search the trunk?" Commonwealth's Brief at 4.

The Commonwealth relies on Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102 (2014) (plurality), for the proposition that the Pennsylvania Supreme Court has adopted the federal automobile exception to the warrant requirement. Id. at 10. Under the federal automobile exception, the Commonwealth notes that "[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search." Id. at 11 (quoting United States v. Ross , 456 U.S. 798, 825, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) ). The Commonwealth emphasizes the trial court's finding that the officers possessed probable cause to search the passenger compartment of Appellee's vehicle based upon the smell of burnt marijuana inside the vehicle. Id. at 10. Based upon the existence of probable cause, as well as the officers' recovery of the blunt and an additional jar of marijuana from the passenger compartment, the Commonwealth insists that "the officers were entitled to search anywhere in the car, including the trunk, for additional" drugs.⁴ Id.

When reviewing an order granting a suppression motion,

we must determine whether the record supports the trial court's factual findings and whether the legal conclusions drawn from those facts are correct. We may only consider evidence presented at the suppression hearing. In addition, because the defendant prevailed on this issue before the suppression court, we consider only the defendant's evidence and so much of the Commonwealth's evidence as remains uncontradicted when read in the context of the record as a whole. We may reverse only if the legal conclusions drawn from the facts are in error.

Commonwealth v. Hemingway , 192 A.3d 126, 129 (Pa. Super. 2018) (citation omitted).

"The Fourth Amendment, by its text, has a strong preference for searches conducted pursuant to warrants." Commonwealth v. Kemp , 195 A.3d 269, 275 (Pa. Super. 2018) (citation omitted). In Gary , however, a majority of the Pennsylvania Supreme Court adopted the federal automobile exception to the warrant requirement:

Therefore, we hold that, in this Commonwealth, the law governing warrantless searches 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 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.

Gary , 91 A.3d at 138.

"The level of probable cause necessary for warrantless searches of automobiles is the same as that required to obtain a search warrant." Commonwealth v. Lechner , 454 Pa.Super. 456, 685 A.2d 1014, 1016 (1996) (citation omitted); accord Gary , 91 A.3d at 104. "Probable cause does not demand the certainty we associate with formal trials. Rather, a determination of probable cause requires only that the totality of the circumstances demonstrates a fair probability that contraband or evidence of a crime will be found in a particular place." Commonwealth v. Manuel , 194 A.3d 1076, 1081 (Pa. Super. 2018) (en banc ) (quoting Commonwealth v. Otterson , 947 A.2d 1239, 1244 (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." Commonwealth v. Copeland , 955 A.2d 396, 400 (Pa. Super. 2008) (internal quotation marks and citation omitted).

"The Supreme Court of the United States has held that an odor may be sufficient to establish probable cause ...." Commonwealth v. Stoner , 236 Pa.Super. 161, 344 A.2d 633, 635 (1975) (citing United States v. Ventresca , 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) ; Johnson v. United States , 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) ). "In Stoner , we analogized a ‘plain smell’ concept with that of plain view and held that where an officer is justified in being where he is, his detection of the odor of marijuana is sufficient...