Com. v. Sullivan, A. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANGELINA SULLIVAN : No. 757 EDA 2022
Appeal from the Order Entered February 11, 2022
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0001539-2021
BEFORE: LAZARUS, J., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 1, 2023
The Commonwealth appeals from the order of the Court of Common
Pleas of Delaware County, which reinstated a previous order to suppress
evidence recovered during a vehicle stop of Angelina Sullivan’s (Appellee) car.
The Commonwealth argues the suppression court erred by finding the
detective unlawfully detained Appellee and that her subsequent consent to
search her vehicle was involuntary. The Commonwealth also argues the
detective did not exceed the scope of Appellee’s consent during the search of
her vehicle. After review of the record, we affirm, albeit on a different basis
than the suppression court.
On December 1, 2017, around 10:30 p.m., Marcus Hook Police Detective
Daniel Barnett initiated a traffic stop of a white Toyota due to a broken
taillight. N.T. 9/3/21, at 4, 8. After issuing verbal warnings to the occupants
— Appellee and Thomas Boscher — related to the traffic stop, the detective
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requested permission to search the vehicle. Id. at 9-10. Appellee, the owner
of the white Toyota, consented to the search and Detective Barnett found,
inter alia, a makeup bag inside the passenger side glove compartment, which
contained two glassine bags of heroin. Id. at 10-11, 13. Detective Barnett
arrested Appellee for possession of a controlled substance and possession of
drug paraphernalia.1
Appellee filed an omnibus pre-trial motion seeking, inter alia, the
suppression of evidence stemming from the traffic stop. Appellee’s Omnibus
Pre-Trial Motion, 7/21/21, at 1-2 (unpaginated). On September 3, 2021, the
suppression court held a hearing regarding the motion where the
Commonwealth offered the testimony of Detective Barnett, as summarized
below.
Detective Barnett testified that on the day in question, he observed
Appellee’s vehicle driving with a broken taillight and proceeded to initiate a
traffic stop. N.T. 9/3/21, at 8. The detective did not recall whether he asked
for a secondary car to assist him, but at some point, Officer Dalrymple2 arrived
on the scene in a second patrol car.3 Id. at 18, 27. When Detective Barnett
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1 35 P.S. §§ 780-113(a)(16), (32). For reasons not explained in the certified
record or docket, the matter went dormant for approximately three and a half
years.
2 Officer Dalrymple’s first name is not apparent from the record.
3Detective Barnett also did not recall at what point during the stop Officer
Dalrymple arrived. N.T. 9/3/21, at 18.
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approached the car, Boscher was driving and Appellee was in the passenger
seat. Id. at 8-9. Detective Barnett indicated Boscher did not have a valid
driver’s license, but Appellee explained that “she was not feeling well” and had
asked Boscher to drive. Id. at 9. The detective testified that he issued both
occupants verbal warnings — Boscher for driving without a license and
Appellee for the taillight — and allowed them to “switch positions” in the
vehicle. Id. He stated he classified the traffic stop as an “unknown risk” stop,
meaning he had “no information that led [him] to believe that there was any
threat or immediate risk or criminal activity” other than the traffic violation.
Id. at 19.
After Appellee and Boscher switched positions in the car and put their
seatbelts on, Detective Barnett stated he
told them they were free to leave and they could go. [He] then
turned around and started walking back to the patrol vehicle[,] at
which point[, the detective] stopped after several steps, came
back up to the driver’s side, which was where [Appellee] was now
seated, and . . . asked her if she would mind if [he] conducted a
search of the vehicle.
N.T. 9/3/21, at 10. Further, the detective testified that as a “general rule”
during a traffic stop, he “would make it at least halfway back to [his] car and
turn around and come back.” Id. at 30.
Appellee consented to the search. Id. 10-11. Detective Barnett
testified that he did not tell Appellee what he was searching for or why he
wanted to search the vehicle. Id. at 31-32. He also stated that at the time
he requested permission to search the car, he: (1) did not raise his voice; (2)
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could not remember if Officer Dalrymple was standing next to him or on the
sidewalk; (3) was not displaying his gun; (4) did not threaten, coerce, or
pressure Appellee into consenting to the search; (5) did not “recall” Appellee
hesitating when she gave consent; (6) stated Appellee “seemed to
understand” what he was saying “throughout [the] incident[;]” and (7) did
not suspect Appellee was intoxicated or under the influence of narcotics. Id.
at 11-12, 24-25.
Detective Barnett then stated that during the search, he found a “zipper
makeup bag” inside of the glove compartment. N.T. 9/3/21, at 13. He
detailed the makeup bag was made of “solid cloth[,]” did not appear “out of
the ordinary[,]” and he did not believe the bag contained a firearm. Id. at
33-34. The detective did not specifically ask Appellee if he could search the
makeup bag because it was his “belief” that when he asked to search the
vehicle, the consent would include “anything within the vehicle, any
containers[, and] personal possessions that were . . . not part of it[.]” Id. at
32.
Upon opening the makeup bag, he located “two glassine bags”
containing heroin. Id. at 13. Detective Barnett testified that after searching
the makeup bag, he found a “small pill container” containing a “partial piece”
of suboxone inside the glove compartment. See id. at 15, 35. Detective
Barnett also located “smaller ziploc style bags on the floor of the front
passenger . . . floor board[,]” but specified the contents of the makeup bag
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were “probably the first . . . thing indicative” of criminal activity because he
could not remember when he observed the small plastic bags. Id. at 35.
On October 28, 2021, the suppression court granted Appellee’s motion
to suppress the evidence obtained as a result from the vehicle search.
Suppression Ct. Op. 10/28/21, at 1.4 The Commonwealth filed a motion for
reconsideration and on November 30, 2021,5 the court vacated its suppression
order pending the motion. Order, 11/30/21. On January 26, 2022,6 the court
denied the Commonwealth’s motion for reconsideration. Order, 1/26/22.
Then, on February 11, 2022, the court reinstated its order suppressing the
evidence from the traffic stop. Order, 2/11/22.7 The Commonwealth filed the
present appeal and timely complied with the court’s order to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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4 In its May 2, 2022, opinion, the trial court adopted the findings of fact,
conclusions of law, and discussion in its October 28, 2021, order pertaining to
Appellee’s suppression motion. Trial Ct. Op. 5/2/22, at 2.
5The suppression court dated its order November 29, 2021, but it was not
entered on the docket until November 30th.
6The suppression court’s order is dated January 25, 2022, but was not entered
onto the docket until January 26th.
7 The February 11th order stated:
[T]he Commonwealth’s Motion for Reconsideration having been
DENIED, [Appellee’s] Motion to Suppress is hereby GRANTED as
outlined in this court’s order of October 28, 2021.
Order, 2/11/22.
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In its Rule 1925(b) statement, the Commonwealth raised one issue:
[The suppression court] erred by granting [Appellee’s] Motion to
Suppress the physical evidence recovered and statements made
by [Appellee] where [she] consented to the search.
Commonwealth’s Concise Statement of Errors Complained of on Appeal
Pursuant to Pa.R.A.P. 1925(b), 4/6/22.
Now, on appeal, the Commonwealth raises the following three claims:
1. Did the suppression court err by misapplying the law and
determining that [Appellee] was subject to an illegal
investigatory detention and not a lawful mere encounter where
the initial traffic stop was completed, the detective was not in
possession of [Appellee’s] identification or paperwork, and
[she] was specifically told she was free to leave?
2. Did the suppression court err in determining that [Appellee’s]
consent to search her vehicle was not voluntarily given where
the consent to search flowed from a lawful mere encounter,
was a product of free and unconstrained choice, and was given
absent any threat, coercion, or duress?
3. Whether it is objectively reasonable to conclude that the scope
of consent to search a car includes a glove compartment and
its contents where an individual gives overall consent and does
not limit the scope of consent at any time during the search?
Commonwealth’s Brief at 3.
Preliminarily, we address Appellee’s contention that this Court should
quash the Commonwealth’s interlocutory appeal as untimely filed. Appellee’s
Brief at 8. Appellee asserts both that the Commonwealth’s appeal is
interlocutory and that the 30-day period for the Commonwealth to file a timely
appeal began with the suppression court’s January 26, 2022, order denying
the Commonwealth’s motion for reconsideration. Id. As such, Appellee
contends the Commonwealth’s March 11th notice of appeal was untimely. Id.
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We note that “the Commonwealth may take an appeal as of right from
an order that does not end the entire case where the Commonwealth certifies
in the notice of appeal that the order will terminate or substantially handicap
the prosecution.” Pa.R.A.P. 311(d). Moreover, a notice of appeal “shall be
filed within 30 days after the entry of the order from which the appeal is
taken.” Pa.R.A.P. 903(a).
Here, the suppression court entered its original order granting
suppression on October 28, 2021. However, after the Commonwealth filed a
motion for reconsideration, the court vacated this order on November 30th.8
The court then entered an order on January 26, 2022, denying
reconsideration. Notably, this order did not reinstate the previous order
granting Appellee’s suppression motion. See Order, 1/26/22. Therefore, on
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8Generally, a trial court has 30 days to modify or rescind an order. 42 Pa.C.S.
§ 5505. Under Section 5505, the 30-day period to modify the court’s grant of
Appellee’s motion to suppress would have ended on Saturday, November 27,
2021, allowing them until Monday, November 29th to enter the order. See 1
Pa.C.S. § 1908 (whenever the last day of a filing period falls on a weekend or
on any legal holiday, such day shall be omitted from the computation of time).
As noted supra, though the court dated the order November 29, 2021, it did
not enter its order onto the docket until November 30th, one day after the
expiration of the filing period.
However, an order granting a suppression motion is an interlocutory
order for which Section 5505 does not apply. See Commonwealth v.
James, 69 A.3d 180, 185-86 (Pa. 2013) (holding the Commonwealth’s ability
to appeal an interlocutory order did not transform it into a final order for
purposes of Section 5505 and the 30-day period to modify did not apply where
the Commonwealth filed a motion for reconsideration and the court now had
the authority to revisit its initial ruling). As such, the court was not confined
to a 30-day period for modification.
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February 11, 2022, the court entered another order wherein it granted the
suppression motion. The Commonwealth then filed this appeal on March 11th
— less than 30 days later — wherein it asserted the February 11th order
“terminate[d] or substantially handicap[ped] the prosecution.”
Commonwealth’s Notice of Appeal, 3/11/22. As such, the present appeal is
timely and properly before us. See Pa.R.A.P. 903(a); Pa.R.A.P. 311(d).
Turning to the Commonwealth’s claims on appeal, we note the relevant
standard of review:
When reviewing the propriety of a suppression order, an appellate
court is required to determine whether the record supports the
suppression court’s factual findings and whether the inferences
and legal conclusions drawn by the suppression court from those
findings are appropriate. [Where the defendant] prevailed in the
suppression court, we may consider only the evidence of the
defense and so much of the evidence for the Commonwealth as
remains uncontradicted when read in the context of the record as
a whole. Where the record supports the factual findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
However, where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s conclusions of law are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts.
Commonwealth v. Tillery, 249 A.3d 278, 280 (Pa. Super. 2021) (citations
omitted).
Because the Commonwealth’s first two claims on appeal are related, we
will address them together. In its first claim, the Commonwealth asserts the
suppression court erred and misapplied the law where it concluded the second
interaction between Detective Barnett and Appellee — after he told the two
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occupants they were free to go but then returned to the car and asked for
consent to search — was an illegal investigatory detention. Commonwealth’s
Brief at 11. Instead, it avers this interaction was a mere encounter because
(1) Detective Barnett informed Appellee she was free to leave, and (2) he was
not in possession of her identification. Id. at 14. The Commonwealth
suggests that because this interaction was a mere encounter, a reasonable
person would have believed they were free to leave and Detective Barnett was
free to ask Appellee for consent to search her vehicle. Id. at 14, 18.
In the Commonwealth’s second claim, it maintains that the second
interaction between the detective and Appellee was a mere encounter, and as
such, Appellee’s consent to search the vehicle was given voluntarily.
Commonwealth’s Brief at 19. The Commonwealth asserts the following facts
support its contention that Appellee provided voluntary consent to the search:
(1) the suppression court made specific findings of fact that Detective Barnett
did not “threaten, coerce, or pressure” Appellee for her consent, and that the
detective advised Appellee she was free to leave; (2) Detective Barnett was
“cordial and calm” during both interactions with Appellee; (3) neither officer
“displayed their firearms or any additional behavior that could be inferred as
authoritative[;]” (4)Detective Barnett only asked for consent to search one
time before Appellee agreed; and (5) “there is no evidence in the record to
suggest that [Appellee] did not understand” the question. Id. at 20-21.
There are three categories of interactions between police and citizens:
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The first is a mere encounter, sometimes referred to as a
consensual encounter, which does not require the officer to have
any suspicion that the citizen is or has been engaged in criminal
activity. This interaction also does not compel the citizen to stop
or respond to the officer. A mere encounter does not constitute a
seizure, as the citizen is free to choose whether to engage with
the officer and comply with any requests made or, conversely, to
ignore the officer and continue on his or her way.
The second type of interaction, an investigative detention,
is a temporary detention of a citizen. This interaction constitutes
a seizure of a person, and to be constitutionally valid police must
have a reasonable suspicion that criminal activity is afoot.
The third, a custodial detention, is the functional equivalent
of an arrest and must be supported by probable cause. . . .
Commonwealth v. Adams, 205 A.3d 1195, 1199-1200 (Pa. 2019) (citations
omitted & paragraph breaks added). When determining whether a seizure
amounting to an investigatory detention has occurred, we look at whether a
reasonable person would have felt free to leave. This test
requires the court to determine “whether, taking into account all
of the circumstances surrounding the encounter, the police
conduct would ‘have communicated to a reasonable person that
he was not at liberty to ignore the police presence and go about
his business.’” “[W]henever a police detective accosts an
individual and restrains his freedom to walk away, he has ‘seized’
that person.”
Id. at 1200 (citations omitted). Further, in defining whether an interaction is
a mere encounter or an investigatory detention, “express admonition . . . that
the citizen-subject is free to depart is a potent, objective factor” favoring a
mere encounter. Commonwealth v. Strickler, 757 A.2d 884, 899 (Pa.
2000) (footnote omitted).
Regarding voluntary consent, this Court has stated:
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The Commonwealth bears the burden of proving that the
defendant consented to a warrantless search. To establish a
voluntary consensual search, the Commonwealth must prove
“that a consent is the product of an essentially free and
unconstrained choice — not the result of duress or coercion,
express or implied, or a will overborne — under the totality of the
circumstances.”
Commonwealth v. Randolph, 151 A.3d 170, 179 (Pa. Super. 2016) (citation
omitted).
In support of its first two arguments, the Commonwealth relies upon,
inter alia, Commonwealth v. Witherspoon, 756 A.2d 677 (Pa. Super.
2000). In Witherspoon, a police officer initiated a valid traffic stop of the
defendant. Witherspoon, 756 A.2d at 678. After issuing a citation, the
officer returned the defendant’s identification and paperwork and informed
him that he was free to leave. Id. The officer then asked the defendant for
permission to search the vehicle, and he agreed. Id. Upon searching, the
officer located marijuana in the trunk of the car and arrested the defendant.
Id.The defendant then filed a motion to suppress the evidence, which the
trial court granted, reasoning “one can never validly consent to having his car
searched, subsequent to being stopped for speeding, without reasonable
suspicion or probable cause.” Witherspoon, 756 A.2d at 679. The
Commonwealth appealed to this Court, arguing the officer legally obtained
voluntary consent to search the defendant’s vehicle. Id. at 678-79. This
Court reversed the trial court’s order, concluding that while the initial traffic
stop was a valid investigatory detention, the officer ended that interaction
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when he returned the defendant’s paperwork and told him he was free to
leave. Id. at 680. This Court stated that though the encounter began as an
investigatory detention, it converted into a mere encounter by the officer’s
actions. Specifically, this Court noted:
Whenever the surrounding circumstances indicate that police
conduct would have communicated to a reasonable person that he
was at liberty to ignore the police presence and go about his
business, the investigative detention converts into a mere
encounter with all of its attendant consequences. One
consequence of a mere encounter is that neither reasonable
suspicion nor probable cause is required to foster the contact. As
long as the detainee knows that he is not bound to answer the
police detective ’s questions, he may voluntarily consent to a valid
search.
Id. (citation omitted). We conclude that the present facts are substantially
similar to Witherspoon, and therefore, it is controlling.
In the present case, the suppression court determined Detective
Barnett’s subsequent interaction with Appellee was an unlawful investigatory
detention, and as such the consent to search her car was involuntary.
Suppression Ct. Op. at 6-7. Specifically, it opined:
The evidence is uncontradicted that the purpose of the traffic stop
. . . was concluded when Detective Barnett re-approached the
vehicle and asked [Appellee] if she would consent to a vehicle
search. Since she had just been detained, it is reasonable that
[Appellee] believed she was still being detained at the time her
consent . . . was requested. . . .
Id. at 6. The court also made specific findings of fact that: (1) the detective
informed Appellee she was free to leave; (2) Detective Barnett began to walk
away, then after “several steps” came back to the vehicle to request consent
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to search; (3) when asking for consent to search, the detective did not
threaten, coerce, or pressure Appellee; (4) and Appellee consented to the
search. Id. at 2. To the extent that the court concluded Detective Barnett
initiated an investigatory detention and Appellee’s consent was not voluntary,
we disagree, pursuant to Witherspoon, supra.Here, the detective issued Appellee and Boscher verbal warnings and
informed them that they were free to go. Appellee and Boscher then put their
seatbelts on, presumably preparing to leave, and Detective Barnett began to
walk away. See N.T. 9/3/21, at 10. The detective decided to return to
Appellee’s car and requested permission to search. As pointed out by the
suppression court, Detective Barnett did not raise his voice, did not threaten
Appellee, and did not show his gun during the interaction. Id. at 11-12;
Suppression Ct. Op. at 2. As these specific findings are supported by the
record, the totality of the circumstances does not support a conclusion that
the second interaction constituted an investigatory detention, and therefore,
we conclude the suppression court erred. See Witherspoon, 756 A.2d at
680 (finding investigatory detention ended when officer retuned paperwork
and told the defendant he was free to leave and therefore, investigatory
detention becomes a mere encounter where surrounding circumstances would
communicate to a reasonable person that they were free to leave); Strickler,
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757 A.2d at 899 (express admonition that one may leave favors a
determination that an interaction is a mere encounter).9
Since we conclude the interaction between Appellee and Officer Barnett
was a mere encounter, it follows that a reasonable person would believe they
were free to terminate the contact and drive away. See Adams, 205 A.3d at
1200. Further, the encounter did not amount to a seizure when the detective
did not threaten, coerce, or pressure Appellee into giving him consent to
search the vehicle. Therefore, her acquiescence was voluntary. See
Randolph, 151 A.3d at 179.
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9 Though the specific circumstances are not entirely analogous with the
present matter, we also note the holding in Commonwealth v. Freeman,
757 A.2d 903 (Pa. 2000). In Freeman, the Court determined a prior seizure,
resulting from a valid traffic stop, ended when the officer returned the
defendant’s paperwork, issued a traffic citation, and informed the defendant
she was free to go. Freeman, 757 A.2d at 907. However, the Court
ultimately concluded the officer’s subsequent interaction with the defendant
was an unlawful seizure. Id. at 909. Specifically it stated that “the prior
detention d[id] not, in and of itself, convert the subsequent encounter into a
seizure[,]” but the officer’s “subsequent actions were inconsistent with his
statement to [the defendant] that she was free to leave,” when he: (1)
returned to her vehicle; (2) continued to question her about the traffic
violation; (3) pointed out her inconsistent statements about the surrounding
circumstances of the stop; and (4) “ultimately and most significantly, asked
her to step out of the vehicle prior to the request for consent. Such directive
constituted a greater show of authority than had previously been made (other
than the physical stop of [the] vehicle itself).” Id. at 907.
Similarly to Freeman, the traffic stop here ended when Detective
Barnett informed Appellee she was free to go and walked away from her
vehicle. However, unlike Freeman, the detective here made no “greater show
of authority” during their subsequent encounter where he asked Appellee for
consent to search without any further questioning and without directing her
to leave the vehicle. See Freeman, 757 A.2d at 907.
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For the above reasons, we agree with the Commonwealth on its first two
arguments. Nevertheless, we conclude no relief is due. In its third claim, the
Commonwealth argues the makeup bag containing the heroin was within the
scope of Appellee’s consent to search the vehicle. Commonwealth’s Brief at
22. The Commonwealth contends “any reasonable person would assume that
an unlocked glove compartment and the larger bags contained therein would
be a routine part of a vehicle search” and that Appellee did not limit or revoke
her consent to search. Id.
The Commonwealth also asserts this claim was not addressed by the
suppression court. Commonwealth Brief at 22. It states that despite the
court’s “lack” of analysis on the issue, the record demonstrates that Appellee
did not revoke or limit the consent to search. Id. at 23. The suppression
court did not address this argument because the Commonwealth failed to
preserve it in its court-ordered Rule 1925(b) statement. As mentioned above,
the Commonwealth raised only a question as to whether the Appellee
consented, not the scope of her consent. See Commonwealth’s Concise
Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b),
4/6/22. It is well-settled that when a party fails to rise a claim in its court-
ordered Rule 1925(b) statement, that issue is waived. See Pa.R.A.P.
1925(b)(4)(vii) (failure to raise a claim in a Rule 1925(b) statement results in
waiver); Commonwealth v. Edwards, 874 A.2d 1192, 1195-96 (Pa. Super.
2005) (Commonwealth’s failure to challenge reasonableness of defendant’s
expectation of privacy in Rule 1925(b) statement waived issue on appeal); We
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also note the Commonwealth did not argue the claim was properly preserved
in its brief. Accordingly, we find the Commonwealth’s final claim is waived.10
However, even if the argument were properly preserved, we would
conclude that the claim was unavailing. Where voluntary consent to search is
lawfully obtained, the scope of that search “must be conducted within the
scope of that consent.” Commonwealth v. Valdivia, 195 A.3d 855, 862 (Pa.
2018). We measure the scope of consent by the “objective reasonableness”
of what a person in that position believes they are allowing by consenting. Id.
at 862, 865 (citations omitted). The Pennsylvania Supreme Court has stated:
While an individual may place limits on the scope of any consent
given, or revoke consent altogether, the failure to do so does not
modify the consent to the search that was given, nor does it give
police carte blanche to conduct a search of limitless scope and
duration.
The scope of a search is controlled by the scope of
consent given, which, in turn, is determined pursuant to a
reasonable person standard under the circumstances at the
time the exchange between the officer and the suspect
occurs. The burden is on law enforcement officials to
conduct a search within those parameters. An individual is
not required to police the police; absent another exception to the
warrant requirement, when a search exceeds the scope of an
individual’s given consent, the search is illegal regardless of
whether the individual objected or revoked his or her consent. See
generally 68 Am. Jur. 2d Searches and Seizures § 271 (“A
general consent to a search on its own does not give an officer
unfettered search authority. Even when an individual gives a
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10 Even though the suppression court did not address the Commonwealth’s
third claim, we may affirm on any basis. See Commonwealth v. Venable,
200 A.3d 490, 499-500 n.6 (Pa. Super. 2018) (this Court may affirm a trial
court’s order on any basis).
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general consent without express limitations, the scope of a
permissible search has limits: it is constrained by the bounds of
reasonableness and what the reasonable person would expect.”).
Id. at 868 (emphases added).
In the present matter, Detective Barnett asked Appellee for general
consent to search her vehicle. At the suppression hearing, he stated he did
not ask to extend the search beyond the general vehicle, and he did not say
what he was searching for or why he requested to search the car. N.T. 9/3/21,
at 31-32. While the detective may have had a personal belief that this consent
included “anything within [the] vehicle, any containers[, and] personal
possessions that were . . . not part of it[,]” it is our determination that
“objective reasonableness” would not lend itself to this conclusion. See
Valdivia, 195 A.3d at 862; see also N.T. 9/3/21, at 32. He opened an
innocuous looking makeup bag that was found inside of a glove compartment
with no indication that he would find anything criminal inside to lend itself to
justify searching the contents. Based on the facts before us, a reasonable
person in this situation — a traffic stop where there is no suspicion of criminal
activity and the officer only issued a verbal warning — would not assume that
consent to search their vehicle included a solid cloth “zipper makeup bag”
inside of the closed glove compartment. See Valdivia, 195 A.3d at 868
(failure to limit or revoke consent does not allow an officer carte balance to a
limitless search); N.T. 9/3/21, at 13, 33-34. Appellee gave general consent
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to search her vehicle, but the detective’s search exceeded the scope of that
consent.11
Moreover, we note the cases the Commonwealth cites in support of its
argument do not apply to the present facts, and therefore are not persuasive.
See Commonwealth v. Sewell, 2019 WL 7290507 (Pa. Super. Dec. 30,
2019) (unpub. memo.) (motion to suppress properly denied where the
defendant did not limit consent and the officers found a gun immediately
visible upon opening the vehicle’s glove compartment); Commonwealth v.
Roberts, 2013 WL 11255589 (Pa. Super. Sept. 26, 2013) (unpub. memo.)
(search did not exceed scope of consent where officers asked to search the
vehicle based on the smell of marijuana and it is reasonable that marijuana
could be found in a purse); Commonwealth v. Yedinak, 676 A.2d 1217 (Pa.
Super. 1996) (affirming the denial of a suppression motion where officers
informed the defendant, they wanted to search his car for drugs and he
consented, thereby allowing the officers to search anything within the vehicle
that could conceivably hold drugs); Fla. V. Jimeno, 111 S. Ct. 1801 (1991)____________________________________________
11 We note the pill bottle that the officer found inside of Appellee’s unlocked
glove compartment falls under the scope of general consent. See Valdivia,
195 A.3d at 862. However, in its appellate brief, the Commonwealth does not
present any argument suggesting the trial court erred in suppressing this
evidence, instead focusing solely on protesting the suppression of the makeup
bag. Because the Commonwealth failed to put forth any assertion concerning
the suppression of the pill bottle, this claim would have also been waived. See
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot
be raised for the first time on appeal.”); Commonwealth v. Gibbs, 981 A.2d
274. 284 (Pa. Super. 2009) (concluding that where an appellant does not
develop an argument on appeal, that claim is waived).
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(holding where an officer informs a defendant they want to search a vehicle
for narcotics and the defendant consented, it is reasonable to assume the
scope of that consent would include containers that could contain narcotics).
Accordingly, even if the Commonwealth had preserved this claim, it would
have no merit. Therefore, the evidence obtained as a result of the search was
properly suppressed.
Order affirmed.
Judge Lazarus joins the Memorandum.
Judge Nichols Concurs in the Result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/01/2023
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