Com. v. McMahon, J.

J-S20021-22

2022 PA Super 133

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.

OPINION BY MURRAY, J.: FILED: August 8, 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

cigarettes were “brown in color with green vegetable matter in the

interior with orange crystalline features” that he found to be

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1 35 P.S. §§ 780-113(a)(16), (31).

J-S20021-22

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 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.

Appellant raises a single issue for our review:

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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

both a showing of probable cause and exigent circumstances to justify a

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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. See 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.

The trial court explained its reasoning for denying suppression of the

burnt marijuana cigarettes as follows:

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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

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.

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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

(Footnote Continued Next Page)

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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),

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

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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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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’s 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, “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).

In addition, 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 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

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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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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

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

lawful, the trial court did not abuse its discretion in denying suppression of the

marijuana cigarettes.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/8/2022

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