OPINION BY
The Commonwealth of Pennsylvania (“the Commonwealth”) appeals from the order entered on January 8, 2013, that granted the motion to suppress filed by Rameek Hudson (“Appellee”).
On July 26, 2011, Philadelphia Police Officers Gregory Caputo and Brian Younger conducted a traffic stop of Appellee’s car due to a broken tail light. While effectuating the traffic stop, the officers noticed Appellee reaching toward the center console of the automobile. Once the officers reached the vehicle, Officer Younger asked for and obtained Appellee’s license and vehicle registration. After obtaining the documents, the officers asked Appellee and his passenger to exit the vehicle, whereupon Officer Younger conducted a protective sweep of the car for the safety of the officers. It was during this search that Officer Younger opened the center console and saw three pill bottles. Two pill bottles had the labels partially removed, while the label on the third bottle was intact and bore Appelleе’s name. Officer Younger seized the pill bottles and arrested Appel-lee. The pill bottles were later determined to contain prescription pain medication. Appellee was charged with possession of a controlled substance with intent to deliver and possession of a controlled substance.
Appellee filed a motion to suppress that was granted following a hearing on January 8, 2013. On February 7, 2013, the Commonwealth filed a timely notice of appeal.
Before we may consider the issue the Commonwealth raised on appeal, we must first address a procedural and jurisdictional concern. As noted above, the suppression court granted Appellee’s motion to suppress on January 8, 2013, and the Commonwealth filed a timely appeal on February 7, 2013. Despite this timely appeal, the suppression court asserts the appeal should be quashed. Suppression Court Opinion, 7/19/13, at 2. The suppression court addressed its concern as follows:
On February 8, 2013, at a 30 day status listing, the Commonwealth requested that a voluntary nolle prosequi with prejudice of all charges against the [Appellee] be entered. [Appellee’s] counsel was present at this listing and did not oppose the entry of such a request, which was granted by this Court. Later that same day, this Court was served with the Commonwealth’s Notice of Appeal through the U.S. Postal Service.
“A nolle prosequi is a voluntary withdrawal by the prosecuting attorney of proceedings on a particular bill or information ...” Commonwealth v. Whiting,509 Pa. 20 ,500 A.2d 806 , 807 (Pa.1985). When a request for a nolle prosequi is made, the Court must consider two factors: “(1) is the reason given by the Commonwealth for requesting the nolle prosequi valid and reasonable, and (2) does the [Appellee], at the time the nolle prosequi is requested, have a valid speedy trial claim?” Commonwealth v. Reinhart,466 Pa. 591 ,353 A.2d 848 , 853 (Pa.1976); see also Commonwealth v. Rega,856 A.2d 1242 , 1245 (Pa.Super.2004). In this case, since the nolle prosequi was made with prejudice and there was no opposition from the [Appellee’s] counsel, this Court did not hold a hearing on thеse two considerations.
Granted, this Court is mindful of the automatic stay provisions imposed upon it under Pa.RA.P. 1701, however, the stay is limited only to matters in dispute on appeal per Pa.R.A.P. 1701(c), which states “Where only a particular item,claim or assessment adjudged in the matter is involved in an appeal, ... the appeal or petition for review proceeding shall operate to prevent the trial court ... from proceeding further with only such item ...” Commonwealth v. Moyer, 421 Pa.Super. 102 , 106-07,617 A.2d 744 , 747 (1992).
Since the nolle prosequi was not a matter in dispute on appeal, this Court did retain jurisdiction to accept the Commonwealth’s request to terminate the proceedings against the [Appellee]. As of the filing of this Opinion, the Commonwealth has not sought to vacate the nolle prosequi in light of the appeal taken by it a day earlier.
Given the Commonwealth’s subsequent voluntary dismissal of the charges with prejudice and the lack of effort to vacate the nolle prosequi, this Court respeсtfully requests that the Commonwealth’s appeal be quashed.
Suppression Court Opinion, 7/19/13, at 1-2 (emphasis in original).
While we can appreciate the suppression court’s rationale for its request to quash the appeal, we decline to do so. The suppression court correctly cites to Pa.R.A.P. 1701 in its discussion concerning trial court authority following the filing of an appeal. Pa.R.A.P. 1701 provides as follows:
Effect of Appeal Generally
(a) General rule. Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.
(b) Authority of a trial court or agency after appeal. After an appeal is taken or review of a quasijudicial order is sought, the trial-court or other government unit may:
(1) Take such action as may be necessary to preserve the status quo, correct formal errors in papers relating to thе matter, cause the record to be transcribed, approved, filed and transmitted, grant leave to appeal in forma pauperis, grant supersedeas, and take other action permitted or required by these rules or otherwise ancillary to the appeal or petition for review proceeding.
(2) Enforce any order entered in the matter, unless the effect of the order has been superseded as prescribed in this chapter.
(3) Grant reconsideration of the order which is the subject of the appeal or petition, if:
(i) an application for reconsideration of the order is filed in the trial court or other government unit within the time provided or prescribed by law; and
(ii) an order expressly granting reconsideration of such prior order is filed in the trial court or other government unit within the time prescribed by these rules for the filing of a notice of appeal or petition for review of a quasijudicial order with resрect to such order, or within any shorter time provided or prescribed by law for the granting of reconsideration.
A timely order granting reconsideration under this paragraph shall render inoperative any such notice of appeal or petition for review of a quasijudicial order theretofore or thereafter filedor docketed with respect to the prior order. The petitioning party shall and any party may file a praecipe with the prothonotary of any court in which such an inoperative notice or petition is filed or docketed and the prothono-tary shall note on the docket that such notice or petition has been stricken under this rule. Where a timely order of reconsideration is entered under this paragraph, the time for filing a notice of appeal or petition for review begins to run anew after the entry of the decision on reconsideration, whether or not that decision amounts to a reaffirmation of the pri- or determination of the trial court or other government unit. No additional fees shall be required for the filing of the new notice of appeal or petition for review.
(4) Authorize the taking of depositions or the preservation of testimony where required in the interest of justice.
(5) Take any action directed or authorized on application by the appellate court.
(6) Proceed further in any matter in which a nonappealable interlocutory order has been entered, notwithstanding the filing of a notice of appeal or a petition for review of the order.
(c) Limited to matters in dispute. Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, or in a petition for review proceeding relating to a quasiju-dicial order, the appeal or petition for review proceeding shall operate to prevent the trial court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the trial court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant.
(d) Certain petitions for review. The filing of a petition for review (except a petition relating to a quasijudicial order) shall not affect the power or authority of the government unit to proceed further in the matter but the government unit shall be subject to any orders entered by the appellate court or a judge thereof pursuant to this chapter.
Pa.R.A.P. 1701.
In Commonwealth v. Hairston,
Here, the suppression court, as support for its position that the instant case is distinguishable from the general rule set forth in Pa.R.A.P. 1701, cites to Pa.R.A.P. 1701(c) and Commonwealth v. Moyer,
In Moyer, the trial court imposed a mandatory life sentence for first-degree murder pursuant to Pennsylvania’s Special Rules For Cases In Which Death Sentence Is Authorized pursuant to former Pa. R.Crim.P. 351-360.
Here, the Commonwealth filed its nolle prosequi after the appeal was filed. Additionally, while the suppression court considered the nolle prosequi to be an item not in dispute for purposes of appeal pursuant to Pa.R.A.P. 1701(c), we cannot agree. It is apparent from the above discussion that it was the special rules concerning death penalty cases in Moyer that bifurcated the appeals. It was this bifurcation that distinguished the procedure followed in Moyer from the general rule employed in Hairston regarding Pa.R.A.P. 1701. The bifurcated procedure followed
In the case at bar, there is no bifurcation or procedural hybrid and, therefore, Moyer is inapplicable. Here, the Commonwealth certified in its notice of appeal that the order granting the suppression motion terminates or substantially handicaps the prosecution of the case. Notice of Appeal, 2/7/13. Thus, the entire case was at issue, and Pa.R.A.P. 1701(c) is inapplicable. Moreover, the untimely filing of the nolle prosequi and the subsequent order were nullities as the suppression court was without authority to proceed any further due to the pending appeal. Hairston,
In its appeal, the Commonwealth argues that the suppression court erred in suppressing the сontents of the two prescription pill bottles that had their labels partially removed. The Commonwealth claims that the pill bottles were observed in plain view during a lawful traffic stop and protective search. Commonwealth’s Brief at 23. The Commonwealth claims that under the totality of the circumstances, there was probable cause to arrest Appellant, and the order should be reversed. Id. Because we conclude that there was no probable cаuse, we disagree with the Commonwealth’s argument and affirm the order of the suppression court.
When the Commonwealth appeals from a suppression order, this Court may consider only the evidence from the defendant’s witnesses together with the evidence of the prosecution that, when read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Whitlock,
The Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals against unreasonable searches and seizures. Commonwealth v. Miller,
As noted above, the search at issue in the instаnt case transpired in an automobile. Until recently, in order for police officers to conduct a lawful search of an automobile without a warrant, the officers were required to have probable cause and exigent circumstances. However, recently, our Supreme Court, in an Opinion Announcing the Judgment of the Court, removed the dual requirement of probable cause and exigency for a warrantless search of an automobile in Pennsylvania. In Commonwealth v. Gary, - Pa. -,
In sum, our reviеw reveals no compelling reason to interpret Article I, Section. 8 of the Pennsylvania Constitution as providing greater protection with, regard to warrantless searches of motor vehicles than does the Fourth Amendment. Therefore, we hold that, in this Commonwealth, the law governing war-rantless searches of motor vehicles is coextensive with federal law under the Fourth Amendment. The prerequisite for a warrantless search of a motor vehicle is probable cause to search; no exigency beyond the inherent mobility of a motor vehicle is required. The consistent and firm requirement for probable cause is a strong and sufficient safeguard against illegal searches of motor vehicles, whose inherent mobility and the endless factual circumstances that such mobility engenders constitute a per se exigency allowing police officers to make the determination of probable cause in the first instance in the field.
Gary,
Here, the suppression court, after finding that the stop of the vehicle and the officers’ protective sweep of the car were lawful, concluded that it was impossible for the officers in this case to determine that these prescription bottles contained illegal substances because the cоntents of the bottles were not immediately apparent. Suppression Court Opinion, 7/19/13, at 1, 12.
Officer Younger was not able to 'testify that it was “immediately apparent” to him that these pill bottles contained illegal drugs. He admitted that he did not know what these bottles contained. He had to call Poison Control to conduct testing in order to determine that these were illegal narcotics. If such items were immediately apparent to him to be contraband, there would have beеn no need to have Poison Control conduct such tests.
Id., at 12.
We agree with the suppression court’s conclusion that while the pill bottles themselves were in plain view, the contents of those bottles were not immediately apparent, and a pill bottle by itself is not contraband. Suppression Court Opinion, 7/19/13, at 1. The potentially incriminating contents of the pill bottles were not discovered until after they were improperly seized, searched, and tested, thereby proving that the “immеdiately apparent” requirement for the plain view exception had not been satisfied. Id.
The suppression court continued:
These officers should have secured the vehicle and obtained a proper warrant in order to open the pill bottles and conduct testing on the contents therein. The reasonableness for a warrantless search ceased when Officer Younger observed the bottles in the compartment but could not immediately recognized [sic] the contents. His intent in conducting this sеarch was for weapons for officer safety. Once no weapon was observed, any warrantless basis for his search ended due to his acknowledged inability to make a determination that the pill bottles contained contraband just by plain observation.
Suppression Court Opinion, 7/19/13, at 14.
We agree with the suppression court. The two pill bottles that had their labels partially removed were next to a pill bottle
Pursuant to Gary, absent probable cause, the warrantless search of the pill bottles in Appellant’s vehicle was unlawful, and based on our standard of review, we discern no reason to overturn the suppression court’s ruling. See Commonwealth v. Kelly,
Order affirmed.
Notes
. The Commonwealth may appeal an interlocutory order suppressing evidence when it provides a certification with its notice of appeal that the order terminates or substantially handicaps the prosecution. Commonwealth v. Whitlock,
. The record reflects that the Commonwealth's motion for the entry of a nolle prose-qui was granted in an order filed on February 8, 2013. Order, 2/8/13. The nolle prosequi was filed due to the mistaken belief that the Commonwealth had failed to file a timely appeal from the suppression order. Id. Thus, the nolle prosequi was filed in error because a timely appeal had in fact been filed on February 7, 2013.
. See also Commonwealth v. Pearson,
. The Special Rules For Cases In Which Death Sentence Is Authorized, Pa.R.Crim.P. 351-360, were renumbered and amended on March 1, 2000, and are now found at Pa. R.Crim.P. 800-811, effective April 1, 2001.
. We note that in its opinion, the suppression court mentions exigency, as that was the applicable standard at the time of the suppression court’s decision. As explained in Gary and as will be disсussed below, we need only review whether the police possessed probable cause to search the pill bottles.
. Our Supreme Court, in discussing plain view observations of containers that may hold contraband, has stated as follows:
It is not the mere possession of such containers, but rather the totality of the circumstances which dictated the Superior Court’s conclusion here. This is true, as well, with respect to the federal cases criticized by [a]ppellant. See, e.g., Texas v. Brown,460 U.S. 730 ,103 S.Ct. 1535 ,75 L.Ed.2d 502 (1983); United States v. Robles,37 F.3d 1260 (7th Cir.1994); United States v. Prandy-Binett,995 F.2d 1069 (D.C.Cir.1993), cert. denied510 U.S. 1167 ,114 S.Ct. 1196 ,127 L.Ed.2d 545 (1994); United States v. Moreno,897 F.2d 26 (2d Cir.1990), cert. denied497 U.S. 1009 ,110 S.Ct. 3250 ,111 L.Ed.2d 760 (1990); United States v. Cardona-Rivera,904 F.2d 1149 (7th Cir. 1990); United States v. Barrios-Moriera,872 F.2d 12 (2d Cir.1989), cert. denied493 U.S. 953 ,110 S.Ct. 364 ,107 L.Ed.2d 350 (1989). In nоne of the above-cited cases did the courts find that the mere observation of a container or package, the likes of which an officer has known, in the past, to contain narcotics, was sufficient to establish probable cause. Instead, it was the holdings of those courts that when viewed together with the additional incriminating facts, an officer's observation and evaluation of suspect containers and/or packages are appropriate factors to consider in ascertaining whether the warrantless arrest was supported by probable cause.
Commonwealth v. Evans,