263 A.3d 1193
Pa. Super. Ct.2021Background
- Police conducted mobile surveillance in Clairton for shootings/drug complaints; officer observed a car turn without signaling and stopped it.
- Officer smelled marijuana; passenger (Moore) moved a blue backpack from his lap to behind the driver’s seat before the stop; driver admitted smoking and produced 2.8g marijuana; officers found "roaches."
- Moore became irate, refused to ID, loudly protested the officers’ attempt to search his backpack, and left the scene to enter a nearby residence after being ordered to remain.
- Officers searched the backpack and recovered a .45 pistol, ammunition, marijuana, drug baggies, and (per the trial court) a 14-inch knife.
- Moore was convicted at a stipulated bench trial of illegal possession of a firearm (persons not to possess), carrying a firearm without a license, possession with intent to use drug paraphernalia, and possessing instruments of crime (PIC); sentenced to 5–10 years on the firearms count (no additional penalty for PIC).
- On appeal the Superior Court: (1) held Moore waived an Alexander-based exigency challenge and affirmed denial of suppression based on probable cause (driver’s admission, roaches, backpack movement, Moore’s flight/behavior); and (2) vacated the PIC conviction for insufficient evidence that a knife was proved to be in Moore’s possession.
Issues
| Issue | Commonwealth's Argument | Moore's Argument | Held |
|---|---|---|---|
| Whether the warrantless search of the vehicle and closed backpack was lawful | Officers had probable cause to search the vehicle (odor, driver’s admission, roaches, recovered marijuana) and could search containers in the car; Moore’s conduct (moving bag, protesting search, leaving scene) provided independent probable cause for the backpack | Search unconstitutional: under Alexander exigent circumstances required (waived at trial); under Barr/Scott the marijuana odor was accounted for and no independent probable cause existed to open the closed backpack | Moore waived an Alexander/exigency challenge; on the preserved probable-cause record the court affirmed denial of suppression — probable cause existed to search the vehicle and backpack given admissions, roaches, bag movement, accessible location, and Moore’s flight/behavior |
| Sufficiency of evidence for PIC (knife) | A knife was recovered from the backpack and trial counsel acknowledged a knife existed, supporting PIC and criminal intent | Commonwealth failed to introduce any testimonial or exhibit proving a knife was recovered or that Moore possessed it; counsel argument is not evidence; intent not proved | Vacated PIC conviction: Commonwealth failed to prove possession of an instrument of crime beyond a reasonable doubt; no resentencing required because PIC carried no additional penalty |
Key Cases Cited
- Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) (Pennsylvania Constitution requires probable cause plus exigent circumstances to justify warrantless vehicle searches)
- Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (pre-Alexander rule: probable cause alone sufficient for vehicle searches)
- Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020) (odor of marijuana after Medical Marijuana Act cannot alone establish per se probable cause; odor is a factor that must be coupled with other circumstances)
- Commonwealth v. Scott, 210 A.3d 359 (Pa. Super. 2019) (limits on searching closed containers in vehicle where contraband already found that accounts for the odor)
- In re I.M.S., 124 A.3d 311 (Pa. Super. 2015) (federal precedent allowing search of containers in vehicle if officer has probable cause to search vehicle generally)
- Commonwealth v. Brockington, 230 A.3d 1209 (Pa. Super. 2020) (elements of PIC: possession of an instrument of crime and intent to use it criminally)
- Wyoming v. Houghton, 526 U.S. 295 (U.S. 1999) (if probable cause to search vehicle exists, officers may search passengers’ containers)