Com. v. Cheatom, M. ( 2021 )

J-A18033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL CHEATOM :
:
Appellant : No. 1851 WDA 2019
Appeal from the Judgment of Sentence Entered November 26, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0008523-2018
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
DISSENTING STATEMENT BY MUSMANNO, J.:FILED: DECEMBER 15, 2021
I respectfully dissent from the Majority’s conclusion that the nature of
the chalky pill bottle and the notebook were “readily apparent” to Sergeant
Gault. Rather, I would reverse the suppression court’s ruling and remand for
further proceedings absent that evidence and all evidence obtained as a result
of fruit of the poisonous tree.
Initially, the Majority concludes that “nothing in the record establishes
the order in which Sergeant Gault observed each item and when he concluded
that the notebook related to controlled substances.” See Majority at 7. I
respectfully disagree. Both our Supreme Court, and this Court, have
previously determined that pill bottles themselves are not contraband. See
Commonwealth v. Stevenson, 744 A.2d 1261, 1266-67 (Pa. 2000); see
also Commonwealth v. Hudson, 92 A.3d 1235, 1242 (Pa. Super. 2014)
J-A18033-21
(abrogated on other grounds) (wherein this Court concluded that a police
officer could not seize pill bottles in plain view, despite partially removed
labels, because the Officer testified that it was not immediately apparent that
the pill bottles contained illegal drugs; he did not know what the pill bottles
contained; and he had to call Poison Control to determine that the drugs were
illegal narcotics).
In my view, the uncontradicted testimony of Sergeant Gault reveals that
he opened the chalky pill bottle prior to making his conclusions about the owe
sheet. At the suppression hearing, Sergeant Gault testified that he viewed
two pill bottles, one containing rubber bands and the other having a chalky
coating that he could not see through. See N.T. (Suppression Hearing),
3/25/19, at 16-17, 25. After viewing these pill bottles, Sergeant Gault
testified that he opened the chalky pill bottle and viewed multiple differently
colored pills. See id. at 17-18, 25. Sergeant Gault also testified that there
was an open notebook near the two pill bottles. See id. at 18, 29. Sergeant
Gault specifically testified that, based upon the “totality of the
circumstances of everything that I saw that night led me to conclude
that[] it was probably an owe sheet or a ledger or some sort related
to drugs.” See id. at 30 (emphasis added). Furthermore, Sergeant Gault
testified that, despite his years of narcotics experience, he had never seen a
chalky pill bottle like the one in this case. See N.T. (Suppression Hearing),
3/25/19, at 26-27. Sergeant Gault further testified that he was unable to
-2-
J-A18033-21
determine what the chalky pill bottle contained prior to opening it. See id. at
17, 25 (wherein Sergeant Gault testified that he could see that the pill bottle
contained pills, but he could not identify the kind of pills).
Thus, Sergeant Gault’s uncontradicted testimony clearly established
that the contents of the chalky pill bottle were not readily apparent to
Sergeant Gault, and that Sergeant Gault made no conclusions regarding the
owe sheet until after he had opened the chalky pill bottle and viewed its
contents. See Stevenson, supra; Hudson, supra. Consequently, Sergeant
Gault’s search of the chalky pill bottle was unsupported by probable cause,
and his conclusion, as well as the subsequently obtained search warrant,
regarding the owe sheet, constituted fruit of the poisonous tree. See
Stevenson, supra; Hudson, supra.Moreover, the record reflects that Sergeant Gault was at Cheatom’s
residence in response to a burglary call. See N.T. (Suppression Hearing),
3/25/19, at 5-6. Upon arrival, Sergeant Gault received express permission to
enter Cheatom’s home to search for burglars. Id. Based upon the facts of
this case, and the limited scope of consent to search Cheatom’s residence, I
cannot conclude that Cheatom’s consent to search extended to Sergeant
Gault’s warrantless search of the chalky pill bottle. See Commonwealth v.
Valdivia, 195 A.3d 855, 862 (Pa. 2018) (stating that “[i]f consent is given
voluntarily, the ensuing search must be conducted within the scope of that
-3-
J-A18033-21
consent[, and t]he standard for measuring the scope of an individual’s consent
is one of [‘]objective reasonableness[’]) (emphasis added).
Accordingly, I respectfully dissent from the Majority that the nature of
the chalky pill bottle and the notebook were readily apparent to Sergeant
Gault. On this basis, I would reverse the suppression court’s ruling and
remand for further proceedings, absent all evidence acquired from Sergeant
Gault’s unlawful search and seizure, as well as the subsequent warrant which
led to the discovery of the firearm.
-4-