Lead Opinion
The Commonwealth appeals from an Order suppressing evidence
On appeal, the Commonwealth contends (1) under the circumstances of this case, Officer Laguna was justified in conducting a warrantless search of the appellant’s automobile; (2) thе appellant voluntarily consented to the search of his automobile; and (3) the search of the appellant’s jacket was valid as incident to a lawful arrest.
The deciding factor in determining whether a warrantless search of a motor vehicle is constitutionally permissible is the existenсe of reasonable or probable cause. Commonwealth v. Smith,
We agree with the Commonwealth that Officer Laguna was justified in conducting a search of the appellant’s truck. In addition to observing the furtivе behavior of the appellant who appeared to be stuffing something under his seat, Officer Laguna detected the order of burning marijuana. At the suppression hearing, he testified that it was part of his training at the police academy to be able to
We also agree with the Commonwealth’s next argument regarding the search of the appellant’s jacket. The law is clear that a warrantless search is proper if incident to a lawful arrest. Commonwealth v. Plusquellic,
In light of the foregoing considerations, we believe that is unnecessary to determine whether the appellant voluntarily consented to the search of his truck.
The Order of the court below is reversed and this case is remanded for trial. This court does not retain jurisdiction.
Notes
. Since the Order suppressing the evidence terminates or substantially handicaps the prosecution, such Order is immediately appealable by the Commonwealth. Commonwealth v. Bosurgi,
. The record discloses that Officer Laguna and Chief Beachley routinely patrolled this parking lot. Officer Laguna testified at the suppression hearing that, “he asked us, as the police department, to try to stop some of the loitering, due to all the broken beer bottles and things found every morning on the lot." (N.T. December 29, 1981, at 12). Officer Laguna also testified that loitering signs were posted on the doors of the bowling alley. Id.
. 35 P.S. § 780-113(16).
. Id. § 780-113(30).
Dissenting Opinion
dissenting:
I dissent because in my determination the warrantless search of appellee’s vehicle was unconstitutional. The majority justifies the search of the automobile on the basis of the “plain smell” of marijuana, in an analogy with the doctrine of “plain view.” The majority reasons that the police were justified in being where they were, and that the odor of marijuana was sufficient to establish probаble cause for a warrantless search.
There is no argument that the police were legitimately pursuing their duties in patrolling the parking lot for loiterers. There is also no argument that appellee was not a loiterer in the lot. He was seated in a legally parked vehicle. The pоlice approached the vehicle, which was parked at the far side of the parking lot from them, before any odor of an illegal substance had been detected. At trial, this initial approach, and its justification, were described thus:
Q. Now, did you speak with the persons in that vehicle?
*417 A. I approached the vehicle, and, as I aрproached the vehicle, I saw the defendant and the other person seated in the passenger seat bent over what appeared to be stuffing something down at, in—
MR. COOPER: Objection
A. —the lower part of the seat.
THE COURT: Well, it is a conclusion, yes. N.T. 10
Appellant now argues that this “furtive behavior” and the “plain smell” of marijuana justified the search, but no where in the record, and certainly not in the portion quoted above has appellant established a legitimate basis for the original approach.
I submit that “furtive behavior” to justify a police stop and search must be something more than bending forward while seated in a parked car. Appellee’s movemеnt does not constitute “such unusual and suspicious conduct ... that the policeman may reasonably conclude that criminal activity may be afoot____”. Commonwealth v. Barnett,
I find an instructive distinction between the situation in this case and two recent cases decided by our Court concerned with motions to suppress evidence seized from cars in parking lots. In Commonwealth v. Evans,
In the instant case, I do not believe the police had a valid reason to approach the car in the first instance. Nothing unusual giving rise to a suspicion of probable cause, or giving rise to a conclusion the police services were necessary had occurred. When they did approach the car, the police’s claim of furtive behavior on the part of the occupants giving rise to probable cause does not stand the test. The police placed themselves in an investigative posture that can not lawfully be supported. They therefore can not justify their action on the basis of the doctrine of plain smell. They cannot piggy back an unlawful action onto a lawful one in order to make the search lawful.
The “plain view” doctrine was elaborated in Coolidge v. New Hampshire,
What the “plain view” cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnectеd with a search directed against the accused — and permits the warrantless seizure. (At 466,91 S.Ct. at 2038 ,29 L.Ed.2d at 583 ) (emphasis added).
The first and most fundamental prerequisite to reliance upon “plain view” is that the initial intrusion which brings the police within the plain view of the article is itself lawful. “The ‘plain view doctrine’ is applicable only where thе
In Commonwealth v. Stoner,
“The government touches upon the theory sometimes advanced that the courts should acknowledge a ‘plain smell’ concept analogous to that of plain sight____ However, before the officer could rely upon his smelling marijuаna as probable cause, he would have to justify his presence at the place ... where he detected the odor, just as he would have to justify his presence at the place from which he saw the contraband in order to rely on the doctrine of plain view.” (236 Pa.Superior Ct. 166,344 A.2d at 635 ).
Since I аm unconvinced that the police were constitutionally questioning the occupants of the legally parked vehicle, I am unable to apply the “plain view/plain smell” analogy to these facts.
Certainly police officers may rely upon their sense of smell in deciding whether burning marijuanа is present. But odors alone do not authorize a search without a warrant. Pennsylvania cases which have incorporated the “plain smell” doctrine make this point clear. In Stoner, supra, the police stopped a moving vehicle for a traffic violation and observed a .38 calibre weаpon fall out of the glove compartment when the occupant of the car was producing the registration card. The odor of marijuana was detected after the suspects had been placed under arrest, and was the justification for a subsequent more extensive search of the car. The other cases cited by the majority to support the car search emphasize the same application of the doctrine. In Commonwealth v. Pullano,
In addition to these cases cited by the majority, Commonwealth v. Duett,
In the instant case, there was no traffic violation, no disturbance of the peace, nor any observed behavior which was inconsistent with an innocent presence in the parking lot. I agree with the lower court that the police lacked probable cause for the search of the vehicle, and I would therefore affirm the order granting the motion to suppress the seized evidence.