Com. v. Davis, M.

J-S37027-22

2022 PA Super 216

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MARKEE DAVIS :

:

Appellant : No. 30 EDA 2022

Appeal from the Judgment of Sentence Entered November 23, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0002484-2020

BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.

OPINION BY LAZARUS, J.: FILED DECEMBER 16, 2022

Markee Davis appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after being convicted,

following a stipulated non-jury trial, of various firearms charges. On appeal,

Davis challenges the partial denial1 of his pre-trial motion to suppress a

warrantless vehicle search. After careful review, we affirm.

In January 2020, Davis was arrested and charged with possession with

intent to deliver,2 firearms not to be carried without a license,3 possession of

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1 The court suppressed marijuana and packaging material recovered during

the stop, as well as custodial statements Davis made to police officers.

2 35 P.S. § 780-113(a)(30).

3 18 Pa.C.S § 6106(a)(1).

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a controlled substance,4 possession of drug paraphernalia,5 carrying firearms

publicly in Philadelphia,6 terroristic threats,7 obliterating mark of

identification,8 and resisting arrest.9 The charges stemmed from a traffic stop

conducted on the evening of January 16, 2020, on 22nd Street in Philadelphia.

Davis, the driver of a dark blue Acura with dark-tinted windows, was observed

by Philadelphia Police Officers Daniel Levitt and Paul Narrigan traveling

southbound at a high rate of speed, passing cars, driving on the road’s

shoulder, and then, without using his vehicle’s turn signal, making a hard right

turn onto Allegheny Avenue. N.T. Suppression Hearing, 8/12/21, at 11. The

officers, in a marked patrol vehicle, activated their lights and sirens to

effectuate a traffic stop. Id. at 12. Davis pulled the car over and illegally

parked it on the side of Allegheny Avenue. Id. at 26.10

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4 35 P.S. § 780-113(a)(16).

5 Id. at § 780-113(A)(32).

6 18 Pa.C.S. § 6108.

7 Id. at § 2706(a)(1).

8 Id. at § 6117(a).

9 Id. at § 5104.

10 Davis does not contest the legality of the car stop.

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Officer Levitt, a ten-year veteran of the Northwest Division of the

Philadelphia Police Department,11 testified that he approached Davis’ vehicle

and asked him for his driver’s license, vehicle registration, and insurance

information. Id. Davis was unable to produce any of the requested

documents. Id. Officer Levitt testified that he noticed Davis was “breathing

very heavy, shaking, fast talking, [and] appeared very nervous.” Id. Officer

Levitt also testified that there was a “very strong odor of marijuana coming

from the vehicle[12] and [that] some marijuana and packaging[13] [were] in

plain view on the passenger seat in the center console area” of the car. Id.

at 12-13. At this point, Officer Levitt called a supervisor, id. at 13, and asked

Davis to step out of the vehicle so he could identify Davis and determine who

owned the vehicle. Id. Despite Officer Levitt’s request to exit the car, Davis

“attempted to put the car in gear and drive away.” Id. (Officer Levitt

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11 Officer Levitt testified that he had been on the force for at least 10 years at

the time of the incident, having worked his entire career in the Northwest

Division, with three of those years in the Northwest Task Force. Id. at 22-23.

He also testified that he had made thousands of vehicle stops and countless

arrests for firearms, possession of marijuana, assault, and homicide. Id. at

23-24. Many of those arrests occurred in the exact area where he and Officer

Narrigan stopped Davis, which Officer Levitt testified was “one of the most

violent districts in the city.” Id. at 24.

12 Recently, in Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), our

Supreme Court held that the “odor of marijuana may be a factor, but not a

stand-alone one, in evaluating the totality of the circumstances for purposes

of determining whether police had probable cause to conduct a warrantless

search.” Id. at 41.

13Officer Levitt testified the packaging looked like “[p]lastic tubes of sorts.”

Id. at 13.

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testifying Davis “put his hand on the shifter and tried to put it into drive”). At

that point, Officer Levitt opened the driver’s side door, grabbed Davis, and

pulled him out of the vehicle. Id. at 13-14.

Officers Levitt and Narrigan escorted Davis to their patrol vehicle, where

Davis was placed in the back seat of the cruiser, without handcuffs, so that

the officers could further investigate the matter. Id. at 14. Officer Levitt

returned to Davis’ vehicle to obtain the car’s vehicle identification number

(VIN) and determine if it matched the license plate number from the motor

vehicle record system. Id. As he approached the vehicle, which had its

driver’s door still open, he saw a black semi-automatic handgun on the floor

sticking out from underneath the driver’s side seat. Id. at 14-15.14 At that

point, Officer Levitt returned to the police cruiser to ask Davis if he had a

permit to carry the gun; Davis indicated he did not have a permit. 15 Id. at

15. Officer Narrigan also checked the police record system to verify whether

Davis had a permit to carry a firearm, which confirmed Davis did not. Id. at

16. Officer Levitt then attempted to place Davis in handcuffs, but he resisted,

causing a “small scuffle in the back of the police car.” Id. at 16. Officer Levitt

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14The handgun was loaded with one live round in the chamber and eleven

rounds in the magazine. See Property Receipt, Commonwealth Exhibit 1,

1/16/20.

15 This statement was suppressed by the trial court. However, Davis “accepts

th[e] proposition [that O]fficer [Narrigan] had independently verified the lack

of a license thr[ough] police channels” and that it may be used to justify the

second prong of the plain view doctrine—that it was immediately apparent to

the officer that the firearm was incriminating. See Appellant’s Brief, at 16-

17.

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and Davis wrestled; the officer “struck [Davis] with his fist a few times in the

head,” and was then able to place Davis in handcuffs. Id.

Once Officer Levitt’s supervisor arrived on the scene, Officer Levitt

notified the supervisor about the odor of marijuana emanating from Davis’

vehicle and the gun on the floor of the car. Id. at 17. The officers then

recovered the gun and conducted a search of the vehicle, during which they

recovered a large amount of marijuana stowed in various areas of the car,

including the trunk. Id. The officers subsequently transported Davis back to

the police station. Id. During the car ride, Davis “did not stop cursing, calling

[Officer Levitt] names, yelling” and told Officer Levitt that “he just should have

shot [Officer Levitt].” Id.

On January 27, 2020, Davis filed a pre-trial motion to suppress physical

evidence—the handgun, marijuana, and drug paraphernalia uncovered from

the warrantless car search—and statements made by Davis—claiming that

Davis’ arrest and the search of the vehicle were illegal where they were

conducted without probable cause. Suppression Motion, 1/27/20, at 1. On

August 12, 2021, the court held a suppression hearing. On September 8,

2021, the trial court entered an order granting in part (Davis’ statements and

marijuana found in car trunk) and denying in part (handgun) Davis’

suppression motion. The court denied suppression of the handgun, concluding

that Officer Levitt saw the object in plain view during his investigation of the

matter.

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Following a stipulated bench trial, Davis was convicted of the firearms’

offenses. On November 23, 2021, Davis was sentenced to serve 11½-23

months in prison, with a three-year probation tail, for carrying a firearm

without a license and a concurrent sentence of 6-12 months in prison, with a

one-year probationary tail, for publicly carrying a firearm in Philadelphia. On

November 30, 2021, the court amended its sentence and granted Davis’

motion for immediate parole.

Davis filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.16 Davis raises

the following issue for our consideration:

[Whether t]he [trial] court erred when it denied [Davis’ m]otion

to [s]uppress contrary to Pennsylvania Supreme Court mandates

when it found a warrantless search of [Davis’] vehicle was

[c]onstitutional and within the bounds dictated by

Commonwealth v. Alexander[, 243 A.3d 177 (Pa. 2020),] in

that [o]fficers must have both probable cause and exigent

circumstances, when it found exigency existed because they had

to remove a car from where they exercised a traffic stop.

Appellant’s Brief, at 7.

When reviewing an order denying a motion to suppress evidence, we

must determine whether the trial court’s factual findings are supported by the

evidence of record. Commonwealth v. Blair, 860 A.2d 567, 571 (Pa. Super.

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16 On December 15, 2021, trial counsel, Gary S. Silver, Esquire, filed a motion

to withdraw. The court granted counsel’s request and, on December 30, 2021,

appointed W. Christ Montoya, Esquire, to represent Davis on appeal. Attorney

Montoya filed a motion for extension within which to file Davis’ Rule 1925(b)

statement, which the court granted on January 24, 2022.

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2004). “When reviewing the ruling of a suppression court, we must consider

only the evidence of the prosecution and so much of the defense as remains

uncontradicted when read in the context of the record.” Commonwealth v.

Bumbarger, 231 A.3d 10, 15 (Pa. Super. 2020). If the evidence supports

the trial court’s findings, we are bound by them and may reverse only if the

legal conclusions drawn therefrom are erroneous. Blair, supra at 571.

On appeal, Davis argues that under Alexander, supra, the

Commonwealth did not have the requisite exigent circumstances to justify a

warrantless search of Davis’ vehicle where Officer Levitt, under the guise of

plain view, did not have a lawful right of access to the gun. See Appellant’s

Brief, at 16-17; N.T. Suppression Hearing, 8/12/21, at 7. Specifically, Davis

claims that there was no dangerous situation or “urgent need” to move the

car to a legal parking space to support the officers’ claim that exigent

circumstances existed. Id. at 7-8.

In Alexander, supra, our Supreme Court overruled precedent

established in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), and held

that Article I, Section 8 of the Pennsylvania Constitution requires both a

showing of probable cause and exigent circumstances to justify a warrantless

search of an automobile. Id. at 118. Here, the police justified seizure of the

handgun pursuant to an exception to the warrant requirement, the plain view

doctrine. 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;

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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) (citation omitted) (emphasis added). “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. Brown, 23 A.3d 544, 557 (Pa. Super. 2011)

(en banc).

Recently, in Commonwealth v. Lutz, 270 A.3d 571 (Pa. Super. 2022),

our Court had the opportunity to reconsider, in light of Alexander, a trial

court’s denial of a defendant’s motion to suppress drug paraphernalia (metal

pipe commonly used for smoking marijuana) seized by an officer who saw the

pipe in plain view, as the driver’s-side door was open with the window down,

on the driver’s seat of the defendant’s still-running automobile. Lutz, supra

at 575. In denying the defendant’s suppression motion, the trial court noted

that “Alexander did not impact its 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 and search

incident to arrest[17] exceptions to the warrant requirement.’” Lutz, supra at

576 (citation omitted).

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17The search incident to arrest was used to justify the search of defendant’s

car after the metal pipe was seen in plain view and seized by the sergeant.

(Footnote Continued Next Page)

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The defendant in Lutz contended, like Davis does in the instant appeal,

that the court erred in denying her suppression motion because the officer

unlawfully seized the metal pipe from her vehicle because “he was not justified

in entering the car without a warrant” and “the plain view exception did not

relieve him of his obligation to obtain a search warrant.” Id. at 576-77. On

appeal, our Court specifically addressed the question of whether, in light of

the fact that Alexander requires exigent circumstances to enter the car, the

officer “had a lawful right to access [under the plain view doctrine] to go into

the car and seize the pipe [] without getting a warrant.” Id. at 579. In

concluding suppression of the pipe was not warranted, our Court stated “[i]n

this case, the still-running vehicle and open car door fulfilled the requirement

of exigent circumstances because the Sergeant needed to enter the car to turn

off the ignition. Once he entered the vehicle to safely secure the scene, he

had lawful access to the pipe sitting on the driver’s seat and seizure of it was

lawful under the plain view doctrine.” Id.

More recently, in Commonwealth v. McMahon, 280 A.3d 1069 (Pa.

Super. 2022), our Court reviewed a trial court’s partial denial of a defendant’s

motion to suppress drugs uncovered during a traffic stop. While the trial court

suppressed three bags of marijuana found in the console of the defendant’s

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Id. at 575. During that search, the police recovered an eyeglass case

containing suspected marijuana from underneath the driver’s seat and a bag

containing a blue pill and a cut straw from the area where the driver’s seat

meets the center console. Id.

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vehicle, it denied suppression of burnt marijuana cigarettes18 that the police

recovered from the center cup holder of the vehicle. The defendant, like

Davis, relied on Alexander to claim that “the officers had no lawful right to

access the interior of the car to seize th[e cigarettes].” McMahon, supra at

1073. Our Court disagreed, stating:

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.

* * *

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

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18The McMahon court also denied suppression of Oxycodone pills found

during a search incident to defendant’s arrest. However, defendant did not

challenge that ruling on appeal.

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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).

[Commonwealth v.] Heidelberg, 267 A.3d [492,] 505 [(Pa.

Super. 2021) (en banc)] ([]citation omitted).

McMahon, supra at 1073-74 (emphasis added).

Finally, most recently, in Commonwealth v. Smith, 2022 PA Super

187 (Pa. Super. filed Nov. 4, 2022), our Court reversed the suppression of a

gun found during a motor vehicle stop where an officer observed the gun,

through an open passenger door window, in plain view on the rear floorboard

of the defendant’s car. Id. at *2. Like Davis, the defendant was charged with

various firearms’ offenses. On appeal, the Commonwealth argued that

pursuant to the plain view doctrine, the firearm evidence was admissible

where the officers were permitted to restrain the defendant and access the

gun for their own safety. Id. at *3. Although the Court acknowledged the

holding in Alexander, supra, it found that “the decision in Alexander does

not address the plain view exception or any alterations to its requirements.”

Id. at *6. Specifically, the Court opined that “where the circumstances permit

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an application of the plain view exception, we need not apply Alexander.”

Id.

Thus, to the extent that Davis claims Alexander requires the

Commonwealth to prove exigent circumstances where the officers have

lawfully seized an object under the plain view doctrine, he is mistaken.19 See

Smith, supra at *5 (when plain view applies, Alexander not applicable);

McMahon, supra at 174 (declining to find Alexander modified plain view

doctrine); see also Lutz, supra at 576 (concluding Alexander did not impact

Court’s ruling because decision did not “rest upon the analytical underpinnings

of the automobile exception to the warrant requirement,” but upon, among

other things, application of plain view exception to warrant requirement). 20

With regard to the first and second prongs of the plain view doctrine,

Davis concedes that Officer Levitt saw the gun from a lawful vantage-point

(public sidewalk) and that the incriminating nature of the contraband was

immediately apparent to the officer where a police record check revealed that

Davis did not have a permit to carry the firearm. Collins, supra.

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19Although the trial court concluded that exigent circumstances existed in the

present case to further justify the warrantless seizure of the gun, it is well

settled that we may affirm the trial court on different grounds.

Commonwealth v. Thompson, 778 A.2d 1215, 1223 n.6 (Pa. Super. 2001).

20The Supreme Court in Alexander also acknowledged the defendant’s claim

that “the number of other exceptions to the warrant requirement often present

in automobile cases[], including voluntary consent, exigent circumstances

that make it too difficult to obtain a warrant, and plain view.” Alexander,

supra at 192 (emphasis added).

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With regard to the third prong of the doctrine, we conclude that the

Commonwealth proved that Office Levitt had a lawful right of access to the

gun where Davis was still under investigation, and, in securing Davis’ vehicle

that was illegally parked on the side of Allegheny Avenue with the driver’s

door open, the officers had no advance notice and opportunity to obtain a

warrant with respect to the gun they observed under the car’s driver's seat.

See Brown, supra at 557 (third prong of plain view doctrine satisfied where

officer observed, from legal vantage point (public street), what appeared to

be incriminating evidence (black handgun), in plain view on floor of

defendant’s minivan behind driver’s seat, and police had no advanced notice

of defendant’s decision to rob store or opportunity to obtain warrant before

observing gun in plain view; under such circumstance, not reasonably

practicable to expect police to obtain warrant); see also Heidelberg, supra

(officers had lawful right of access to vehicle where defendant was under

arrest, and, in securing defendant’s illegally-parked vehicle, they plainly saw,

through open driver’s side window, contraband on driver’s seat and center

console, and officers had no advance notice and opportunity to obtain warrant

with respect to contraband they observed).

Thus, because the trial court’s factual findings are supported by the

evidence of record and its legal conclusions are correct, Blair, supra, we

conclude that the trial court did not abuse its discretion in denying suppression

of the handgun.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2022

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