J-S13006-17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

CHRISTOPHER BAILEY

Appellee No. 1412 EDA 2016

Appeal from the Order April 12, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0000202-2016

BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.: FILED JULY 17, 2017

The Commonwealth of Pennsylvania appeals from the trial court’s 

order granting Christopher Bailey’s motion to suppress1a loaded firearm, 

found in the center console of a vehicle he was driving, seized during a 

warrantless search. Here, the officers did not need a warrant to search 

Bailey’s car because they had probable cause to believe that more 

contraband was inside the car. Thus, we reverse and remand.

Philadelphia Police Officer Michael Copestick testified that at 

approximately 10:20 a.m. on December 22, 2015, he and his partner were 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 The Commonwealth has certified in its notice of appeal that the 

interlocutory suppression order terminates or substantially handicaps the 

prosecution. See Pa.R.A.P. 311(d).
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conducting routine patrol, in a marked police car, in the area of Ardleigh and 

East Rittenhouse Streets in Philadelphia. The officers observed Bailey, who 

was driving Eastbound on Rittenhouse Street in a white Ford Escape, 

“disregard a stop sign[.]” N.T. Suppression Motion, 4/12/16, at 8. Officer 

Copestick testified that he activated his vehicle’s lights and sirens, and 

proceeded to conduct a vehicle stop. Bailey pulled his vehicle over 

immediately; the officers approached Bailey’s vehicle on foot. Id. 

As Officer Copestick approached the driver’s side of the vehicle and 

Bailey lowered the driver’s side window, he testified that he “immediately 

smelled an odor of marijuana” and that the odor was “heavy.” Id. at 9, 20. 

Officer Copestick asked Bailey if he had a driver’s license, to which he 

replied, “No.” Id. The officer then asked Bailey to step out of the vehicle. 

As Bailey was getting out of the SUV, Officer Copestick observed a bag of 

marijuana in between the door and the driver’s seat. Id. Bailey then went 

to the back of the police vehicle with Officer Copestick’s partner, and Officer 

Copestick recovered the bag of marijuana. Id. Believing that there could 

have been more marijuana in the vehicle, Officer Copestick immediately 

“opened up the center console and [saw] a firearm.” Id. at 11.
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On April 8, 2016,2 Bailey filed a motion to suppress, claiming that 

“[b]ecause the police seized the evidence from [his] car without a search 

warrant, and because no exception to the search warrant requirement was 

present, the evidence should be suppressed.” Motion to Suppress, 4/8/16, 

at 1. After a hearing held on April 12, 2016, the court granted Bailey’s 

motion to suppress. On April 15, 2016, the Commonwealth filed a motion to 

reconsider. On that same date, the court entered an order vacating its order 

granting suppression, pending reconsideration, and scheduled a hearing on 

the motion for April 25, 2016. On April 27, 2016, the trial court denied the 

Commonwealth’s motion to reconsider. On May 11, 2016, the 

Commonwealth filed a timely notice of appeal from the trial court’s 

suppression order.

On appeal, the Commonwealth raises the following issue: Did the 

lower court err in suppressing a firearm found in the center console of a car 

[Bailey] was driving where the police had probable cause to believe 

marijuana was in the car, and they found a weapon while searching for the 

marijuana? Commonwealth’s Brief, at 4.

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 

____________________________________________

2 Bailey originally entered a guilty plea to firearms not to be carried without 

a license, 18 Pa.C.S. § 6106(a)(1). However, the court granted his motion 

to withdraw the plea on March 10, 2016.
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uncontradicted. In our review, we are not bound by the 

suppression court’s conclusions of law, and we must determine if 

the suppression court properly applied the law to the facts. We 

defer to the suppression court’s findings of fact because, as the 

finder of fact, it is the suppression court’s prerogative to pass on 

the credibility of the witnesses and the weight to be given to 

their testimony.

Commonwealth v. Hudson, 92 A.3d 1235, 1241 (Pa. Super. 2014) 

(citations omitted).

Instantly, the Commonwealth contends that because Officer Copestick 

was justified in believing additional marijuana would likely be found in 

Bailey’s car, i.e., probable cause was present, the officer’s warrantless 

search of the console was permitted under the automobile exception to the 

warrant requirement and suppression was improper.

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. Commonwealth v. Hudson, 

92 A.3d 1235 (Pa. Super. 2014). However, in Commonwealth v. Gary, 91 

A.3d 102 (Pa. 2014) (opinion announcing judgment of the Court), our 

Supreme Court adopted the federal automobile search incident to arrest 

exception. The Court’s holding simplified the standard regarding vehicular 

searches and seizures in this Commonwealth. To effectuate this interest, 

the Court held:

[I]n this Commonwealth, the law governing warrantless searches 

and seizures 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 
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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.

Id. at 138 (emphasis added). 

Our standard for determining whether probable cause exists is well 

settled:

Probable cause is made out when the facts and circumstances 

which are within the knowledge of the officer at the time of the 

arrest, and of which he has reasonably trustworthy information, 

are sufficient to warrant a man of reasonable caution in the 

belief that the suspect has committed or is committing a crime. 

The question we ask is not whether the officer’s belief was 

correct or more likely true than false. Rather, we require only a 

probability, and not a prima facie showing of criminal activity.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (quotations 

and citations omitted). “Probable cause does not require certainty, but 

rather exists when criminality is one reasonable inference, not necessarily 

even the most likely inference.” Commonwealth v. Spieler, 887 A.2d 

1271, 1275 (Pa. Super 2005) (quotations omitted; emphasis added).

In Hudson, supra, officers lawfully stopped a vehicle for a broken tail 

light. While effectuating the stop, officers noticed the defendant reaching 

toward the center console of the vehicle. Upon reaching the vehicle, an 

officer asked for and obtained the defendant’s license and vehicle 

registration. The officers then asked the defendant and the car’s passengers 

to exit the vehicle, at which point the officers conducted a protective sweep 
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of the car for safety purposes. During the sweep, an officer opened the 

center console and saw three pill bottles; two bottles had the labels partially 

removed, while the third bottle’s label was intact and bore defendant’s 

name. The pill bottles were seized and the officers arrested defendant. 

Later, it was determined that the bottles contained prescription pain 

medication.

The trial court granted the defendant’s motion to suppress. On 

appeal, our Court affirmed the suppression of evidence, stating:

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 contents of the bottles were not 

immediately apparent.

* * *

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. The potentially incriminating contents of the 

pill bottles were not discovered until after they were improperly 

seized, searched, and tested, thereby proving that the 

"immediately apparent" requirement for the plain view exception 

had not been satisfied. Id. 

* * * 

[]The two pill bottles that had their labels partially removed were 

next to a pill bottle with an intact label bearing Appellee’s name, 

and the pill bottles alone were not "immediately apparent" as 

contraband. The fact that Appellee had pill bottles in his car, with 

one bearing his name, without more, did not place the contents 

of the bottles in plain view and did not establish probable cause. 

Pursuant to Gary, absent probable cause, the warrantless search 

of the pill bottles in Appellant’s vehicle was unlawful, and based 
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on our standard of review, we discern no reason to overturn the 

suppression court's ruling. See Commonwealth v. Kelly, [] 

409 A.2d 21 (Pa. 1979) (plain view observation of [] prescription 

pill bottle containing foil packets did not give rise to probable 

cause to search defendant's vehicle as nature of [] pill bottle was 

not "immediately apparent" and police had no other indication of 

drug related activity).

Hudson, 92 A.3d at 1242-43 (citations to record omitted).3

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3 The dissent would affirm the trial court’s suppression order by relying on 

three specific cases; notably, each of these cases was decided prior to Gary

– before adoption of the federal automobile exception. Moreover, the 

dissent’s reliance on Commonwealth v. Stoner, 344 A.3d 633 (Pa. Super. 

1975) is misplaced as it actually supports reversal of suppression under the 

facts of the case. In Stoner, our Court analogized the plain smell concept 

with the plain view doctrine, and held that the plain smell of marijuana, by 

an officer trained in identifying the substance by its smell, is sufficient to 

establish probable cause for a search of the vehicle as long as the officer is 

legally justified in being where he is. In fact, in Stoner, the Court stated, 

“The marijuana which was in plain view was sufficient to establish probable 

cause for the search of the car.” Id. at 635. At that point, the Court held 

that under the law, the entire car could be searched based on the fact that 

the officer observed drugs in plain view. Merely because the Court iterated 

that it “need not base [its] decision solely on the evidence in plain view,” id., 

does not mean that it did not make such a simplified holding. The further 

discussion regarding the “very strong odor of marijuana coming from inside 

the car” is superfluous; it provides additional justification for the search, but 

is not necessary to its central holding.

In Commonwealth v. Bailey, 545 A.2d 942 (Pa. Super. 1988), another 

case cited by the dissent, the arresting officer searched the interior of the 

defendant’s vehicle after recovering apparent drugs in a baggie from the 

defendant’s shirt pocket. As the Court states, “Miranda warnings were 

subsequently administered, whereupon [the] Officer placed the appellant in 

his vehicle and proceeded to conduct a search of the Chevrolet sedan.” Id.

at 943. “During the course of this search [the officer] detected a ‘chemicaltype smell.’” Id. At that point, the officer proceeded to search the trunk of 

the vehicle where he found more drugs and drug paraphernalia. Id. at 944. 

The issue on appeal in Bailey concerned the legality of the search of the 

locked trunk, not the passenger compartment as in our case. These factual 

distinctions are critical.

(Footnote Continued Next Page)
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Here, like in Hudson, the stop of Bailey’s vehicle was legal where 

Officer Copestick pulled over Bailey for a Motor Vehicle Code violation. 

Commonwealth v. Ibrahim, 127 A.3d 819 (Pa. Super. 2015). After 

pulling over the vehicle, Officer Copestick approached the car and 

“immediately” smelled a heavy odor of fresh marijuana upon reaching the 

driver’s side window which “hit [him] right in the face.” N.T. Suppression 

Hearing, 4/12/16, at 21. Officer Copestick then asked Bailey whether he 

had a driver’s license, to which Bailey responded in the negative. At this 

point, Officer Copestick was justified in asking Bailey to step out of the 

vehicle. See Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 

2002) (en banc) (during routine traffic stop, police officer may order driver 

out of vehicle for officer’s safety). 

(Footnote Continued) _______________________

Finally, the dissent cites to Commonwealth v. Duell, 451 A.2d 724 (Pa. 

Super. 1982), to advance the theory that a police officer needs to articulate 

specific facts to demonstrate probable cause “to believe that more

contraband was in the vehicle.” Dissenting Opinion, at 2. In Duell, a 

Commonwealth appeal, our Court found suppression of evidence seized from 

the defendant’s automobile was not warranted where the officer smelled an 

odor of burning marijuana, but only saw a partially full bottle of wine on the 

floor of the car. In justifying the officer’s seizure of a brown paper bag on 

the front seat of the car (which ultimately was determined to contain 

marijuana), our Court held that the officers “had probable cause to believe 

that the car might contain further contraband in the form of marijuana or 

alcohol.” Id. at 725. Officer Copestick’s belief that “there could have been 

more marijuana in the vehicle,” N.T. Suppression Hearing, 4/12/16, at 11, is 

just as definitive as an officer’s belief that a car “might” contain further 

contraband.
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As the door opened and Bailey stepped out of the vehicle, Officer 

Copestick saw, in plain view, a small, clear bag of what he suspected to be 

marijuana between the driver’s seat and door. Unlike the facts in Hudson, 

the unlawful nature of the drugs was immediately apparent to Officer 

Copestick, who had come into contact with marijuana every day in the eight 

years he had been on the force. See Commonwealth v. Evans, 685 A.2d 

535 (Pa. 1996) (experienced officer’s observations of either drugs or 

containers commonly known to hold drugs is one factor to be considered in 

determining whether probable cause exists for warrantless arrest). Officer 

Copestick properly retrieved the bag in plain view and placed it into his 

pocket. See Commonwealth v. Clelland, 323 A.2d 60, 61 (Pa. Super. 

1974) (holding “warrantless seizure” of marijuana observed in plain view 

inside vehicle supported by probable cause).4 At this point, under the 

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4 Under the facts of this case, a full search of Bailey’s vehicle was also 

justified as a search incident to arrest. While it is true that the 

Commonwealth did not address this issue in its brief, this is not dispositive. 

In In re I.M.S., supra, this Court found that a search incident to arrest 

would have been legal, despite the issue not being presented in the 

Commonwealth’s brief. 

Moreover, in this case . . . police did have probable cause to 

believe that [Defendant] was committing a crime. Here, the 

officer had probable cause to arrest [Defendant] after he 

admitted to possessing drugs. The officer, therefore, would have 

been authorized to conduct a search incident to arrest of the 

backpack.

Id. 124 A.3d at 317. Similarly, here, police had probable cause to arrest 

Bailey once they discovered the marijuana in plain view in the vehicle. 

(Footnote Continued Next Page)
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totality of the circumstances, we find that Officer Copestick had established 

sufficient probable cause for a search of the entire vehicle after he observed 

illegal drugs, in plain view, and where he believed that the car likely 

contained more marijuana.5 See In re I.M.S., 124 A.3d 311 (Pa. Super. 

2015). Accordingly, after applying the dictates of Gary, we hold the trial 

court erred in suppressing the evidence (gun) retrieved from Bailey’s 

vehicle; the trial court did not properly apply the law to the facts of the case. 

Hudson, supra.

6

(Footnote Continued) _______________________

Officer Copestick, therefore, would have been authorized to conduct a search 

of the vehicle incident to arrest.

5 Although not binding, we also recognize that several other jurisdictions 

have held that the discovery of drugs provides probable cause to search the 

entire vehicle without a warrant, where officers have probable cause to 

believe that the vehicle contains contraband. See Johnson v. State, 157 

A.3d 338 (Md. App. 2017); United States v. McCarty, 612 F.3d 1020 (8th

Cir. 2010); McDaniel v. State, 990 S.W.2d 515 (Ark. 1999); United 

States v. Powell, 732 F.3d 361 (5th Cir. 2013); State v. Buckner, No. 

21892 2007 Ohio App. LEXIS 3877 (Ohio Aug. 24, 2007).

6 The dissent contends that the probable cause to further search the interior 

of Bailey’s vehicle would have been established had Officer Copestick simply 

testified that “the small amount of marijuana in the bag did not align with 

the strength of the odor of marijuana that he smelled.” Dissenting Opinion, 

at 3. However, making officers use these “magic words” to establish 

probable cause after they have seen illegal substances in plain view would 

create a dangerous precedent regarding the governmental interest in 

confiscating illegal substances. For example, based on the dissent’s 

reasoning, a clever drug dealer could intentionally travel with one small bag 

of marijuana (or any illegal substance) in plain view in case he or she is 

pulled over, while secretly carrying large amounts elsewhere in the vehicle. 

If the officer does not explicitly testify to his or her certainty that more drugs 

are suspected to be in the vehicle, any further search would be deemed 

(Footnote Continued Next Page)
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Order reversed. Case remanded. Jurisdiction relinquished.7

Justice Fitzgerald concurs in the result 

President Judge Emeritus Bender files a Dissenting Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2017

(Footnote Continued) _______________________

illegal. In Gary, our Supreme Court sought to eliminate exactly that kind of 

hyper-technicality and to simplify the law surrounding search and seizure of 

automobiles. In short, the dissent’s logic “turn[s] on small details in the 

midst of a complex factual scenario.” Gary, 91 A.3d at 137.

7

Interestingly enough, at the conclusion of the suppression hearing in the 

instant case, the Honorable Tracy Brandeis-Roman explained: 

Officer Copestick, I know that it’s very confusing regarding what 

you can search, when can you not search. There [is] a change 

in the law. I know that it’s confusing, and I think it’s no 

reflection upon you or your police work. None.

N.T. Suppression Hearing, 4/12/16, at 46.