Com. v. McMahon, J. ( 2022 )

J-S20021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAROD MAURICE MCMAHON :
:
Appellant : No. 778 WDA 2021
Appeal from the Judgment of Sentence Entered June 3, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at CP-02-CR-0007086-2020
BEFORE: NICHOLS, J., MURRAY, J., and KING, J.
MEMORANDUM BY MURRAY, J.: FILED: JUNE 28, 2022
Jarod Maurice McMahon (Appellant) appeals from the judgment of
sentence imposed after the trial court convicted him of one count of
possession of a controlled substance and one count of possession of
marijuana.1 After careful review, we affirm.
The trial court summarized the facts as follows:
On May 21, 2020, Sergeant [Harrison] Maddox and Detective
[Nathan] Dettling of the City of Pittsburgh Bureau of Police
encountered [Appellant] while on routine patrol. Both officers
were aware, from previous encounters with [Appellant], that he
did not possess a valid driver’s license. Consequently, they
conducted a traffic stop of [Appellant]. Sergeant Maddox testified
that upon approaching the vehicle he smelled marijuana
emanating from the vehicle. Sergeant Maddox clearly observed
two (2) burnt marijuana cigarettes in the center cupholder sitting
in plain view. Sergeant Maddox further testified that the
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1 35 P.S. §§ 780-113(a)(16), (31).
J-S20021-22
cigarettes were “brown in color with green vegetable matter in the
interior with orange crystalline features” that he found to be
indicative of marijuana. At that time, [Appellant] was removed
from the inside of the vehicle; detained; and searched incident to
arrest. The search of [Appellant] resulted in the recovery of one
and a half pills that were later determined to be Oxycodone.
Sergeant Maddox subsequently searched the vehicle and
recovered three (3) additional bags of marijuana from inside the
center console of the vehicle.
Trial Court Opinion, 11/8/21, at 2 (unnumbered) (footnotes omitted).
The Commonwealth charged Appellant with the forementioned offenses.
On February 2, 2021, Appellant filed a motion to suppress the marijuana
cigarettes, the bags of marijuana found in the center console, and the
Oxycodone pills. Defense counsel requested, and was granted, the
opportunity to brief the issues.
The trial court held a suppression hearing, and following oral argument
on June 3, 2021, granted Appellant’s motion to suppress the bags of
marijuana found in the center console, but denied suppression of the
marijuana cigarettes and Oxycodone pills. That same day, following a
stipulated non-jury trial, the court found Appellant guilty of the possessing a
controlled substance and possessing marijuana. The court immediately
sentenced Appellant to a six-month term of probation for possession of
Oxycodone; the court imposed no further sentence for possession of
marijuana. Appellant filed a motion for reconsideration, which the trial court
denied on June 21, 2021. This timely appeal followed. Appellant and the trial
court have complied with Pa.R.A.P. 1925.
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Appellant raises a single issue for our review:
I. Did the [trial] court err in denying [Appellant’s] motion to
suppress evidence under the plain view doctrine because officers
had no lawful right of access to items inside the vehicle at the time
of the seizure and no other exigency applies?
Appellant’s Brief at 5.
Pertinently, our review of the denial of suppression
is limited to determining whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. We are bound by the suppression
court’s factual findings so long as they are supported by the
record; our standard of review on questions of law is de novo.
Where, as here, the defendant is appealing the ruling of the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted. Our scope of review of suppression
rulings includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted).
“Both the Fourth Amendment of the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution guarantee individuals
freedom from unreasonable searches and seizures.” Commonwealth v.
Heidelberg, 267 A.3d 492, 502 (Pa. Super. 2021) (en banc) (citation omitted,
appeal denied, -- A.3d ---, 2022 WL 1656792 (Pa. May 25, 2022). “As a
general rule, ‘a warrant stating probable cause is required before a police
officer may search for or seize evidence.’” Id. (citation omitted). Regarding
automobiles, “Article I, Section 8 affords greater protection to our citizens
than the Fourth Amendment, and . . . the Pennsylvania Constitution requires
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both a showing of probable cause and exigent circumstances to justify a
warrantless search of an automobile.” Commonwealth v. Alexander, 243
A.3d 177, 181 (Pa. 2020) (overruling Commonwealth v. Gary, 91 A.3d 102(Pa. 2014) (adopting federal “automobile exception” to the warrant
requirement and holding police may conduct a warrantless vehicle search
based solely on probable cause, with no exigency required beyond the
inherent mobility of a motor vehicle)). “Absent the application of one of a few
clearly delineated exceptions, a warrantless search or seizure is presumptively
unreasonable.” Heidelberg, 267 A.3d at 502 (citation omitted). Such
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, emphases added).
Here, the trial court suppressed the three bags of marijuana found in
the console of the vehicle pursuant to Alexander. See Trial Court Opinion,
11/8/21, at 3 (unnumbered). The trial court denied suppression of the
Oxycodone pills, which Appellant does not challenge. Appellant’s Brief at 9-
10. Thus, the only issue on appeal concerns the seizure of the burnt marijuana
cigarettes that police recovered from the center cup holder of Appellant’s
vehicle.
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The trial court explained its reasoning for denying suppression of the
burnt marijuana cigarettes as follows:
The [Pennsylvania Supreme] Court in Alexander [ ] did not go as
far as establishing a warrant requirement for items found in plain
view. In the most recent case to address the “plain view”
standard, Commonwealth v. McCree states that in order for an
item to be seized by police officers it must meet three prongs: (1)
the police must be at a lawful vantage point, (2) the incriminating
nature of the object must be immediately apparent, and (3) the
police must have a lawful right of access to the object.
[Commonwealth v. McCree, 924 A.2d 621, 624 (Pa. 2007)].
Prior to the Court’s determination in Alexander, the limited
automobile exception would have served as a basis for the lawful
right of an officer to access an object seen in plain view inside a
vehicle. [Id. at 631.] . . . Applying this precedent to the case
here, Sergeant Maddox credibly testified that the incriminating
nature of the object was immediately apparent, as the cigarettes
looked and smelled like marijuana. Therefore, the officers had a
lawful right of access to the object. Upon approaching the vehicle,
Sergeant Maddox testified that he smelled burnt marijuana and
saw two (2) marijuana cigarettes in plain view. In order to
prevent the destruction of the evidence, the officers seized the
contraband and arrested [Appellant].
Trial Court Opinion, 11/8/21, at 3-5 (unnumbered) (footnotes omitted).
Appellant does not dispute that police viewed the marijuana cigarettes
from a lawful vantage-point, or that the incriminating nature of the marijuana
cigarettes was “immediately apparent.” See Appellant’s Brief at 9-10, 22-23.
Instead, he contends: “As there was no warrant the officers needed an
additional exigency besides probable cause in order to seize the items inside
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the vehicle.”2 Id. at 9. Appellant further maintains “the officers had no lawful
right to access the interior of the car to seize them.” Id. at 9-10. We disagree.
Appellant relies on Alexander to support his claim that exigent
circumstances were necessary for the lawful seizure of the marijuana
cigarettes. Appellant’s Brief at 24-25. However, Alexander addresses the
automobile exception to the warrant requirement, not the plain view
exception. Alexander, 247 A.3d at 181; see also Simonson, 148 A.3d at
797.
Our Supreme Court has expressly recognized that incriminating
objects plainly viewable [in the] interior of a vehicle are in plain
view and, therefore, subject to seizure without a warrant. This
doctrine rests on the principle that an individual cannot have a
reasonable expectation of privacy in an object that is in plain view.
Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009) (citations and
quotation marks omitted). The Pennsylvania Supreme Court has distinguished
the limited intrusion of the seizure of evidence in plain view from the greater
intrusion of an automobile search. McCree, 924 A.2d at 627.
Recently, this Court addressed the plain view doctrine in the context of
Alexander. In Commonwealth v. Lutz, 270 A.3d 571 (Pa. Super. 2022),
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2 While Appellant briefly mentioned the lack of exigent circumstances (lack of
lawful access) in his suppression motion, it was not the focus of his argument.
See Motion to Suppress, 2/2/21, at 2 (unnumbered). Appellant alluded very
briefly to the lack of exigent circumstances, but mainly argued the
incriminating nature of the marijuana cigarettes was not immediately
apparent, given Pennsylvania’s Medical Marijuana Act (MMA). See N.T.,
3/4/21, at 7-12, 13-14, 19-25. Appellant has abandoned this argument on
appeal. See Appellant’s Brief at 9-10, 22-23.
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police responded to a report of a suspicious vehicle parked near a private
community on a road owned by the local water authority. Id. at 574. As
police approached the vehicle, the sole occupant, the driver, staggered out of
the vehicle and walked toward police in a manner indicative of intoxication.
Id. at 574-75. Police were unable to conduct field sobriety tests or obtain an
accurate breathalyzer result because of the driver’s apparent impairment. Id.
at 575. As Sergeant Shawn Nunemacher approached the vehicle, which was
still running, he observed a marijuana pipe on the driver seat. Id. Sergeant
Nunemacher arrested the driver for suspicion of driving under the influence,
seized the pipe, and searched the vehicle. Id. at 576. Prior to trial, the driver
sought suppression. The trial court denied suppression of the marijuana pipe,
and we affirmed.3 We explained that “Alexander did not impact [the trial
court’s] ruling because its decision did not ‘rest upon the analytical
underpinnings of the automobile exception to the warrant requirement, but
rather upon an application of the plain view’” exception. Id. at 576 (citation
to trial court opinion omitted).
We briefly addressed whether the incriminating nature of the pipe was
immediately apparent, stating “it is clear from the record that Sergeant
Nunemacher was lawfully outside of Lutz’s still-running vehicle when he first
observed the pipe in plain view on the driver’s seat from the vantage point of
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3We reversed the trial court’s denial of suppression as to the vehicle search.
Lutz, 270 at 579-80.
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the open car door and window.” Id. at 578. We also stated, “the legality of
the seizure of the pipe hinges on whether its incriminating character was
readily apparent and whether the Sergeant had a lawful right of access to the
pipe itself.” Id.As discussed above, Alexander did not involve plain view. Appellant
points to nothing in Alexander which modified the plain view doctrine, and
thus we decline to apply Alexander. Rather,
“where 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. Miller, 56 A.3d 424, 429 (Pa.
Super. 2012) (quoting Commonwealth v. Brown, 23 A.3d 544,
557 (Pa. Super. 2011) (en banc)). Here, the officers had a lawful
right of access to the vehicle where [a]ppellant was under arrest,
and in securing his vehicle, they had no advance notice and
opportunity to obtain a warrant with respect to the bags they
observed on the driver’s seat and console of the vehicle. See,
e.g., Miller, 56 A.3d at 430-31 (holding police officer’s
warrantless seizure of beer bottles from inside appellant’s vehicle
was lawful under plain view exception where incriminating nature
of bottles was immediately apparent and officer lacked advance
notice and an opportunity to obtain warrant before commencing
search).
Heidelberg, 267 A.3d at 505 (one citation omitted).
Consistent with the foregoing, we conclude police had a lawful right of
access to the marijuana cigarettes observed in plain view. As the seizure was
not illegal, the trial court did not abuse its discretion in denying suppression.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2022
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