J. S07044/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. : No. 1325 EDA 2017

:

DATWAN Q. BROOKINS :

Appeal from the Order, March 22, 2017,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CR-51-CR-0006119-2016

BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 01, 2018

The Commonwealth appeals from the March 22, 2017 order entered in 

the Court of Common Pleas of Philadelphia County that granted, in part, the 

motion to suppress evidence filed by appellee, Datwan Q. Brookins. After 

careful review, we affirm.

The trial court set forth the following:

[Appellee] was arrested on June 9, 2016 and 

charged on July 5, 2016 with Possession with Intent 

to Deliver, Possession of a Controlled Substance, and 

Possession of a Small Amount of Marijuana[

1]. 

Following a preliminary hearing, the charges were 

held, and the trial court scheduled a hearing on 

[appellee’s] Motion to Suppress.

The Commonwealth called Police Officer 

David O’Connor to testify. He was the only witness 

in this proceeding. Officer O’Connor is an 11[-]year 

 

1 35 P.S. § 780-113(a)(30), (a)(16), and (a)(31), respectively.
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veteran, assigned to the 14th District, who has made 

numerous narcotics arrests during his tenure.

Officer David O’Connor and his partner were riding in 

a marked police car on June 8, 2016 about 10 p.m. 

in the neighborhood of 5700 Anderson Street in 

Philadelphia, Pennsylvania. According to 

Officer O’Connor, this area is partially residential, but 

known for drug activity and drug trafficking. 

Officer O’Connor could not recall making any other 

drug arrests on this block for at least a month prior 

to his arrest of [appellee]. Officer O’Connor does not 

have specialized training in narcotics. He does 

receive instruction as to narcotics during annual

trainings.

On this night, the officers noticed a tan Buick fail to 

signal while making a left turn on the 58th block of 

Anderson Street. The vehicle did not have a working 

rear passenger brake light. The officers stopped the 

Buick, which [appellee] was operating.

Officer O’Connor testified that he first could smell the 

odor of fresh marijuana when [appellee] began to 

speak with him—Officer O’Connor did not describe

the odor as strong or overpowering. [Appellee] 

complied with the officers’ requests for identification 

and requests for information.

After running [appellee’s] ID and vehicle information 

through the database, the officers confirmed that the 

vehicle was owned by [appellee’s] mother. 

[Appellee] advised the officers that he had 

permission from his mother to use the vehicle. 

The officers asked [appellee] to exit the vehicle and 

placed him at the rear of the police car, pending the 

outcome of the investigation. Officer O’Connor 

testified that [appellee] gave the officers no reason 

to believe that he had a weapon inside the car. 

When he asked [appellee] to step out of the car, 

Officer O’Connor did not ask [appellee] about the 

odor of marijuana that he said he could smell, but 

only about weapons even though the officers had no 
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fear there was a weapon in the car. [Appellee] told 

them there were no weapons in the car, just “weed”

in the console.

Officer O’Connor said that “based on the odor, as 

well as [his] admission to the marijuana” he did not 

really need [appellee’s] permission to search the

vehicle under a 2014 Pennsylvania Supreme Court 

case, but he did so anyway. On 

cross[-]examination, Officer O’Connor testified that 

he did ask [appellee] if it “[was] okay if I search 

[his] vehicle” and that [appellee] said that the 

officers could search and that “there was a little bit 

of weed in the center console[.”] As 

Officer O’Connor testified, [appellee] only made 

reference to the center console; he was never 

presented with the option to terminate the search 

beyond the center console.

Officer O’Connor’s testimony on the issue of consent 

shifted over the course of cross-examination. 

Officer O’Connor amended his testimony to suggest

that he not only asked [appellee] whether it was 

“okay” to conduct the search, but then also told 

[appellee] that he had a right to consent or not 

consent to the search. We find it unlikely that 

Officer O’Connor told [appellee] that he could refuse 

consent to the search while this officer had been 

operating under the assumption that a 2014 court 

decision allowed him to conduct the search “whether 

(the defendant) affirmed or denied it.”

Officer O’Connor searched the center console and 

located one clear “dime” bag of marijuana, which 

turned out to be the only plausible source of the 

odor. Officer O’Connor testified that he then 

checked the vehicle for “the rest” of the marijuana, 

based on his observations, what he smelled, and his 

“years as a police officer[,”] although we are 

skeptical of these aspects of his testimony. As no

marijuana was ever recovered from the areas where 

they removed the car seats or inside the front panel, 

the record does not support a finding that the 

officers could actually smell the odor of any 
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marijuana, that is, the very “object of the search[,”]

in those parts of the car.

Officer O’Connor agreed that [appellee] never gave 

him consent to dismantle the back seat cushions to 

search under these seats. After forcibly removing 

the seat cushions, Officer O’Connor recovered three 

amber tinted pill bottles which contained 

256 different pills mixed up in a single container. 

The prescription labels were torn or scratched off. It 

was Officer O’Connor’s belief that the prescriptions 

were narcotics because they did not match the pills 

in the bottle. Officer O’Connor also said, however, 

that he could not confirm the contents of the pill 

bottles until he contacted poison control and had 

never received specialized training in the pill 

identification. He never asked [appellee] whether he 

had a prescription for the pills they recovered. The 

officers also pried apart the driver door panel, which 

“was stapled together” and “loose fitting[,”] and 

recovered a white sock with $3000 USC.[Footnote 1] 

After recovering the narcotics “without prescription 

labels” they found under the seats, they arrested 

[appellee] and handcuffed him. During the search 

incident to arrest, the police officers recovered $165 

in USC from [appellee] and drug paraphernalia.

[Footnote 1] United States currency.

Trial court opinion, 7/18/17 at 2-5 (citations to notes of testimony omitted; 

emphasis and some brackets in original).

The record reflects that following the suppression hearing, the trial 

court denied appellee’s motion to suppress as to the marijuana, but granted 

the motion as to the remainder of the physical evidence. The 

Commonwealth then filed a timely notice of appeal to this court. Within its 

notice of appeal, the Commonwealth certified that the suppression court’s 

order would terminate or substantially handicap the appellee’s prosecution. 
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See Pa.R.A.P. 311(d) (permitting Commonwealth appeal from an 

interlocutory order if it certifies that the order will terminate or substantially 

handicap the prosecution). The Commonwealth simultaneously filed a 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Thereafter, the trial court filed its Rule 1925(a) opinion.

The Commonwealth raises the following issue for our review:

Did the lower court err by ruling that the police had 

no probable cause to search [appellee’s] car after 

lawfully recovering narcotics from the center 

console?

Commonwealth’s brief at 3.2

When the Commonwealth appeals from a 

suppression order, we follow a clearly defined 

standard of review and consider only the evidence 

from the defendant’s witnesses together with the 

evidence of the prosecution that, when read in the 

context of the entire record, remains uncontradicted. 

The suppression court’s findings of fact bind an 

appellate court if the record supports those findings. 

The suppression court’s conclusions of law, however, 

are not binding on an appellate court, whose duty is 

to determine if the suppression court properly 

applied the law to the facts.

Our standard of review is restricted to establishing 

whether the record supports the suppression court’s 

factual findings; however, we maintain de novo

review over the suppression court’s legal 

conclusions.

 

2 We note that appellee’s brief was due on December 21, 2017. Appellee 

neither requested an extension of time to file his brief nor did he file an 

appellee’s brief.
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Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa.Super. 2016) 

(internal citations and quotation marks omitted).

In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (opinion 

announcing judgment of the court),

3

the Pennsylvania Supreme Court

adopted the federal automobile exception to the warrant requirement, which 

allows police officers to search a motor vehicle when there is probable cause 

to do so and does not require any exigency beyond the inherent mobility of 

the motor vehicle. Gary, 91 A.3d at 104. Therefore, [“t]he prerequisite for 

a warrantless search of a motor vehicle is probable cause to search.” Id. at 

138.

Our standard for determining whether probable cause exists is as 

follows:

Probable cause is made out when the facts and 

circumstances which are within the knowledge of the 

officer at the time of the [stop], 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. In 

determining whether probable cause exists, we apply 

a totality of the circumstances test.

 

3 We note that although Gary is a plurality opinion, the result is precedential 

due to the nature of Justice Saylor’s concurring opinion. Gary, 91 A.3d at 

138 (“I join the lead Justices in adopting the federal automobile 

exception.”).
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Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (citation 

omitted; emphasis in original), cert. denied, 136 S. Ct. 201, 193 L. Ed. 2d 

155 (U.S. 2015).

“It is well settled that an officer may stop a motor vehicle if the officer 

reasonably believes that a provision of the Motor Vehicle Code is being 

violated. Incident to this stop, the [officer] may check the vehicle’s 

registration and the driver’s license and issue a citation.” Commonwealth 

v. Henley, 909 A.2d 352, 358 (Pa.Super. 2006) (citations and internal 

quotation marks omitted), appeal denied, 927 A.2d 623 (Pa. 2007).

Here, no dispute exists that Officer O’Connor lawfully stopped the 

vehicle being driven by appellee for Motor Vehicle Code violations. Following 

that lawful stop, Officer O’Connor approached the driver’s side of the vehicle

and began interacting with appellee, at which time he detected the odor of 

marijuana. (Notes of testimony, 3/2/17 23-25.) At this point, appellee

denied having any weapons and informed Officer O’Connor that the center 

console of the vehicle contained marijuana. (Id. at 30.) Although a dispute 

exists as to whether appellee consented to the search, no dispute exists that 

at this juncture, based on “plain smell,” Officer O’Connor developed the 

requisite probable cause to conduct a search for the marijuana that appellee 

told the officer was located in the center console. See Commonwealth v. 

Smith, 85 A.3d 530, 537 (Pa.Super. 2014) (citations omitted) (reiterating 

that this court has analogized a “plain smell” concept with that of plain view 
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and has held that where an officer is justified in being where he is, the 

officer’s detection of the odor of marijuana is sufficient to establish probable 

cause); see also Commonwealth v. Copeland, 955 A.2d 396, 401 

(Pa.Super. 2008) (law enforcement officer’s detection of odor of marijuana 

sufficient to establish probable cause).

At this point, Officer O’Connor recovered “a plastic bag filled with 

weed” from the center console of the vehicle. (Id. at 30-31.) After 

recovering the marijuana, Officer O’Connor then decided to remove the rear 

seat of the vehicle, where he recovered three pill bottles, while another 

police officer pried open the driver’s side door panel and recovered $3,000 in 

cash. (Id. at 16, 31, 39-40.) Appellee was then arrested. (Id. at 16.) A 

search incident to arrest recovered $165 in cash, as well as drug 

paraphernalia. (Id.)

With respect to that part of the search that followed the recovery of 

the marijuana, the trial court concluded that it was “implausible that the 

officers had sufficient probable cause to dismantle the rear seat cushions to 

look beneath them or pry the driver’s door panel open.” (Trial court opinion, 

7/18/17 at 9.) The trial court further found that the Commonwealth 

“adduced no credible testimony or other evidence” to suggest that this latter 

part of the search was reasonable. (Id.) As such, the trial court found the 

latter part of the search unlawful because the police officers took “it upon 

themselves to expand the scope of the investigation without probable cause, 
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going beyond those parts of the car that “may conceal the object of the 

search.” (Id. (emphasis in original).) 

The United States Supreme Court has explained that:

[t]he scope of a warrantless search of an automobile 

thus is not defined by the nature of the container in 

which the contraband is secreted. Rather, it is 

defined by the object of the search and the places in 

which there is probable cause to believe that it may 

be found. Just as probable cause to believe that a 

stolen lawnmower may be found in a garage will not 

support a warrant to search an upstairs bedroom, 

probable cause to believe that undocumented aliens 

are being transported in a van will not justify a 

warrantless search of a suitcase. Probable cause to 

believe that a container placed in the trunk of a taxi 

contains contraband or evidence does not justify a 

search of the entire cab.

United States v. Ross, 456 U.S. 798, 823 (1982).

Here, the object of the search was marijuana. Although 

Officer O’Connor recovered a bag of marijuana from the center console, after 

its recovery, he decided to remove the vehicle’s rear seat and another officer 

removed the driver’s door panel. Our review of the record demonstrates

that Officer O’Connor offered no testimony to support the conclusion that he 

had reason to believe that additional marijuana was located within the 

vehicle so as to justify the removal of the vehicle’s rear seat and the driver’s 

door panel. Therefore, the record supports the trial court’s factual findings 

that formed the basis of its legal conclusion that law enforcement lacked 

probable cause to further search the vehicle by removing the rear seat and 

the driver’s door panel.
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With respect to consent, the trial court did not find Officer O’Connor’s 

testimony credible and concluded that even if appellee consented to the 

search of the vehicle’s center console, that consent “did not include the 

forcible removal of the car’s rear seat cushions and front door panel.” (Trial 

court opinion, 7/21/17 at 13.) Our review of the record supports the trial 

court’s factual finding that appellee did not consent to this part of the 

search.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/1/18