from the Judgment of Sentence, October 24, 2017, in the Court
of Common Pleas of Montgomery County, Criminal Division at
BEFORE: BENDER, P.J.E., LAZARUS, J. and KUNSELMAN, J.
Rostro Davis, III, appeals from the judgment of sentence
after his conviction on three drug-related charges. Because
the Commonwealth's search of Davis' automobile
unreasonably violated his constitutional right of privacy, we
facts of this case, which the arresting police officer -
Thomas Byrne - related at the suppression hearing, are
approximately 1:25 a.m. on March 1, 2017, Officer Byrne and
his partner responded to a reported car accident in a
residential neighborhood, on the southeastern edge of
Montgomery County. When they arrived, Philadelphia police
were already on the scene. N.T. at 6. Philadelphia's officers
quickly left, and nothing of record reflects that they
believed crime was afoot. Id. at 15. Additionally,
there was no evidence of any damage to property or personal
injuries; thus, the report of a car accident was mistaken.
Instead, Davis had parked his vehicle on the sidewalk without
trespassing on anyone's private property or obstructing
the roadway. Id. at 5. Davis, whose door was ajar,
"looked like he was passed out" in the driver's
seat. Id. at 5-6. The officer attempted to wake him
first by yelling and then by rubbing his sternum.
gradually regained his senses and informed the officer that
he had driven there from a nearby friend's house. A
paramedic team arrived, interrupting the investigation. They
examined Davis for five to ten minutes. He declined
treatment, so emergency medical services (EMS) departed
without indicating that anything was amiss with Davis or that
he could not safely drive. Id. at 15.
the policeman instructed Davis to step outside the vehicle
and place his hands upon the car. Davis complied; the officer
frisked him but found "nothing." Id. at
16. He then handcuffed Davis and locked him in the back of
the police car. The officer did not have Davis perform a
sobriety test, nor was there evidence of bloodshot, glassy
eyes or a smell of alcohol or drugs about Davis or his car.
Id. at 23. The officer admitted on cross examination
that he "wasn't going the route of DUI."
Id. at 24.
locking Davis in his cruiser, the officer then returned to
Davis' vehicle and saw a cigarette box in the compartment
of the open, driver-side door. The cigarette container was
closed, so the officer could not see its contents. When asked
what the cigarette box implied, Officer Byrne explained that
"people tend to hide drugs, paraphernalia or other
contraband inside empty cigarette packs." Id.
at 9. But, on cross examination, he contradicted himself by
agreeing with defense counsel that cigarettes are
"frequently found" in their boxes. Id. at
18. Officer Byrne testified that he has found drugs in
cigarette packs approximately 20 to 25 times over the course
of 14 years on the force. Id.
Byrne seized the cigarette container and placed it on the
roof of the car. He then sat in the driver's seat and
began looking around. Id. at 20. His search
uncovered a small, plastic baggie containing marijuana in the
opened sunglass holder above the rearview mirror, which he
seized. The policeman then exited the car, opened the
cigarette box, and discovered two small baggies of rocklike
substances. Id. at 9-13. He seized these as well.
suppression court ruled that Officer Byrne had probable cause
to search Davis' car and refused to suppress the
Commonwealth's evidence. Davis appeals one issue.
"Did the suppression court erroneously deny [Davis']
motion to suppress physical evidence where the police
arrested [him], searched his automobile, and seized evidence
from closed containers without probable cause, in violation
of the Fourth Amendment to the United States Constitution and
Article I Section 8 of the Pennsylvania Constitution?"
Davis' Brief at 4.
Fourth Amendment to the Constitution of the United States
dictates that "the right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated . .
." Moreover, "no Warrant shall issue, but upon
probable cause, supported by Oath or affirmation, and
particularly describing the places to be searched, and the
persons or things to be seized." U.S. Const. Amend. IV.
Similarly, Article I, § 8 of the Constitution of the
Commonwealth of Pennsylvania provides:
The people shall be secure in their persons, houses, papers
and possessions from unreasonable searches and seizures, and
no warrant to search any place or to seize any person or
things shall issue without describing them as nearly as may
be, nor without probable cause, supported by oath or
affirmation subscribed to by the affiant.
a general rule, a search conducted without a warrant is
presumed to be unreasonable unless it can be justified under
a recognized exception to the search warrant
requirement." Commonwealth v. Agnew, 600 A.2d
1265, 1271 (Pa. Super. 1991). One such exception is a
vehicle, because it can drive away. See Commonwealth v.
Gary, 91 A.3d 102 (Pa. 2014) (plurality opinion). In
Gary, the Supreme Court of Pennsylvania
reinterpreted Article I, § 8 as paralleling the Fourth
Amendment's protections against warrantless searches of
automobiles, because "it is desirable to maintain a
single, uniform standard for a warrantless search of a motor
vehicle, applicable in federal and state court, to avoid
unnecessary confusion, conflict, and inconsistency in this
often-litigated area." Id. at
Hence, Pennsylvania now follows federal law on this issue;
"where police possess probable cause to search a car, a
warrantless search is permissible." In re
I.M.S., 124 A.3d 311, 317 (Pa. Super. 2015) (discarding
Supreme Court of Pennsylvania case law to apply federal,
which holds that the probable cause to search a vehicle also
licenses an officer to search all sealed containers therein,