Commonwealth v. Smith

285 A.3d 328

COMMONWEALTH of Pennsylvania, Appellant

v.Malik SMITH

No. 1279 EDA 2021

Superior Court of Pennsylvania.

Submitted July 25, 2022

Filed November 4, 2022

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

Michael L. Erlich, assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Joseph L. Coleman, Philadelphia, for appellee.

BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.^*

OPINION BY PANELLA, P.J.:

The Commonwealth brings this appeal after the trial court granted Malik Smith's motion to suppress evidence seized following a motor vehicle stop, during which a firearm was observed in the back seat of the car. Upon careful review, we reverse the order and remand for further proceedings.

In the evening of August 15, 2020, Philadelphia Police Officers Kyle Smith and Clifford Gilliam stopped the vehicle being driven by Smith (hereinafter "Appellee"). The officers stopped Appellee's car because it was being operated with excessive tint on the windows in violation of the Motor Vehicle Code.¹

At the time that Appellee pulled over his vehicle, Officer Gilliam used a loudspeaker to direct Appellee to roll down all the windows. During the stop, Officer Gilliam approached the driver's side of the vehicle and Officer Smith approached the passenger side. Appellee was the only person in the vehicle. While Officer Gilliam requested that Appellee produce his driver's license and vehicle registration, Officer Smith used a flashlight to illuminate the interior of the vehicle. At that point, Officer Smith observed, through an open passenger window, a firearm on the rear floorboard of the car. Officer Smith alerted Officer Gilliam of his observation, and Officer Gilliam immediately placed Appellee in handcuffs. Appellee was then removed from his vehicle and placed in the rear of the police cruiser. After Appellee was in the police cruiser, Officer Smith retrieved the gun from the rear of Appellee's car. Appellee was charged with person not to possess a firearm, firearms not to be carried without a license, carrying firearms in public in Philadelphia, and sun screening and other materials prohibited.²

Appellee filed a motion to suppress. The trial court held a hearing on June 8, 2021. On June 11, 2021, the trial court heard additional testimony from Appellee regarding his permission to use the vehicle. Thereafter, the trial court entered an order granting Appellee's motion to suppress evidence. The Commonwealth filed this timely appeal.³ Both the Commonwealth and the trial court complied with Pa.R.A.P. 1925.

In its sole issue, the Commonwealth questions whether the trial court properly suppressed the firearm. See Commonwealth's Brief at 8-14. The Commonwealth contends that the officers were permitted to restrain Appellee and access the gun for their own safety. In addition, the Commonwealth asserts that the plain view doctrine permits the admission of the firearm. In its opinion authored pursuant to Pa.R.A.P. 1925(a), the trial court indicated that it agrees with the Commonwealth and "opines that it erred in granting Appellee's suppression motion." Trial Court Opinion, 10/4/21, at 3. Upon careful consideration of the pertinent law and factual record, we agree.⁴

When reviewing an order granting a defendant's motion to suppress evidence, "we 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." Commonwealth v. Wallace , 615 Pa. 395, 42 A.3d 1040, 1048 (2012) (citation omitted). "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 courts." Id . (citation omitted). Moreover, our scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing.

See In re L.J. , 622 Pa. 126, 79 A.3d 1073, 1087 (2013).

Further, Pa.R.Crim.P. 581 provides that "[t]he Commonwealth shall have the burden ... of establishing that the challenged evidence was not obtained in violation of the defendant's rights." Pa.R.Crim.P. 581(H). Specifically, the Commonwealth has the burden of "establish[ing] by a preponderance of the evidence that the evidence was properly obtained." Commonwealth v. Galendez , 27 A.3d 1042, 1046 (Pa. Super. 2011) (citation omitted).

"The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures, thereby ensuring the right of each individual to be let alone." Commonwealth v. By , 812 A.2d 1250, 1254 (Pa. Super. 2002) (citations and quotation marks omitted). "A warrantless search or seizure is presumptively unreasonable under the Fourth Amendment and Article I, § 8, subject to a few specifically established, well-delineated exceptions." Commonwealth v. McCree , 592 Pa. 238, 924 A.2d 621, 627 (2007) (citation omitted). These exceptions include "the consent exception, the plain view exception, the inventory search exception, the exigent circumstances exception, the automobile exception, ... the stop and frisk exception, and the search incident to arrest exception." Commonwealth v. Simonson , 148 A.3d 792, 797 (Pa. Super. 2016) (citation omitted).

Regarding the automobile exception, in Commonwealth v. Alexander , ––– Pa. ––––, 243 A.3d 177 (2020), our Supreme Court reaffirmed that "the Pennsylvania Constitution requires both a showing of probable cause and exigent circumstances to justify a warrantless search of an automobile." Id . at 181. In reaching this conclusion, the Court expressly overruled Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102 (2014), which had adopted the federal automobile exception to the warrant requirement that allowed police to conduct a warrantless vehicle search based solely on probable cause, with no exigency required beyond the inherent mobility of a motor vehicle. However, the decision in Alexander does not address the plain view exception or any alterations to its requirements. Therefore, where the circumstances permit an application of the plain view exception, we need not apply Alexander . See Commonwealth v. McMahon , 280 A.3d 1069, 1074 (Pa. Super. 2022).

The plain view doctrine allows the admission of evidence seized without a warrant when: (1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object. See Commonwealth v. Collins , 950 A.2d 1041, 1045 (Pa. Super. 2008) (en banc ) (citing McCree ).

"There can be no reasonable expectation of privacy in an object that is in plain view." Commonwealth v. Bumbarger , 231 A.3d 10, 20 (Pa. Super. 2020). "The question [of] whether property in plain view of the police may be seized ... must turn on the legality of the intrusion that enables them to perceive and physically seize the property in question." Texas v. Brown , 460 U.S. 730, 737, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). As we have long observed, there is no legitimate expectation of privacy shielding the portion of the interior of an automobile that may be viewed from outside the vehicle by either an inquisitive passerby or diligent police officers. See Commonwealth v. Jones , 978 A.2d 1000, 1005 (Pa. Super. 2009) (citing Brown , 460 U.S. at 740, 103 S.Ct. 1535 ). Furthermore, we are mindful that the Motor Vehicle Code provides the statutory authorization for a police officer to stop a motor vehicle "[w]henever a police officer ... has reasonable suspicion that a violation of this title is occurring or has occurred [so that he may] secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title." 75 Pa.C.S.A. § 6308(b).

In determining whether the incriminating nature of an object is immediately apparent to the police officer, we look to the totality of the circumstances. An officer can never be one hundred percent certain that a substance in plain view is incriminating, but his belief must be supported by probable cause.

Commonwealth v. Johnson , 921 A.2d 1221, 1223 (Pa. Super. 2007) (citations, brackets and quotation marks omitted).

When reviewing whether an object's criminal nature is "immediately apparent," we note that probable cause

merely requires that the facts available to the officer would warrant a man of reasonable caution in the belief, that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A practical, non-technical probability that incriminating evidence is involved is all that is required.

Commonwealth v. McEnany , 446 Pa.Super. 609, 667 A.2d 1143, 1148 (1995) (citations, emphasis, and quotation marks omitted). "[W]here police officers observe incriminating-looking contraband in plain view in a vehicle from a lawful vantage-point, the lack of advance notice and opportunity to obtain a warrant provides the officers with a lawful right of access to seize the object in question." Commonwealth v. Brown , 23 A.3d 544, 557 (Pa. Super. 2011).

Here, the Commonwealth met the first requirement of the plain view test, because Officer Smith viewed the gun from a lawful vantage point. At the suppression hearing, Officer Gilliam testified that Appellee's vehicle stop occurred while the officers were on routine patrol. See N.T., 6/8/21, at 7-8. Officer Gilliam stated that the stop of the vehicle was precipitated by the observation of a Motor Vehicle Code violation, i.e. , excessive tint to the windows. See id . Officer Gilliam indicated that Appellee immediately pulled over when the patrol car activated its lights...