J-S39035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

MICHAEL WHITEHEAD, :

:

Appellant : No. 2635 EDA 2014

Appeal from the Judgment of Sentence entered on June 19, 2014

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No. CP-51-CR-0005247-2012

BEFORE: BOWES, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 17, 2015

Michael Whitehead (“Whitehead”) appeals from the judgment of 

sentence imposed after he was convicted of possession of a controlled 

substance, and three violations of the Uniform Firearms Act (collectively, 

“the VUFA offenses”).1 We affirm.

The trial court set forth the relevant facts underlying this appeal as 

follows:

On March 7, 2012, at 1:20 pm, Philadelphia Police Officer 

Daniel McMonagle [“Officer McMonagle”] was on routine patrol in 

a marked patrol car when he observed [Whitehead] operating a 

2002 silver Chevy Impala on Upsal Street[,] and approaching the 

intersection of Belfield Street. The traffic light at the intersection 

was a “steady red” when [Whitehead] made a right turn onto 

Belfield Street without stopping or using a right turn signal. 

Officer McMonagle stopped [Whitehead’s] vehicle because 

[Whitehead] committed a motor vehicle violation. 

 

1 See 35 P.S. § 780-113(a)(16); 18 Pa.C.S.A. §§ 6105(a)(1), 6106(a)(1), 

6108.
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As Officer McMonagle approached the driver’s side of the 

vehicle, he observed [Whitehead] reaching across the vehicle[,] 

as well as leaning forward and reaching toward his sides. 

According to Officer McMonagle, [Whitehead] was “reaching 

around quite a bit” and was “reaching forward, down, and to his 

side all the way across the vehicle.” Officer McMonagle 

described [Whitehead’s] reaching movements as being “more 

than just going to the glove box to get paperwork.” Based upon 

the observed movements, Officer McMonagle “thought that 

[Whitehead] was possibly trying to conceal a weapon.”

Officer McMonagle ordered [Whitehead] to stop reaching 

and to provide his driver’s license, registration, and proof of 

insurance. In response, [Whitehead] stuttered and was fumbling

with paperwork. He produced a photocopy of a driver’s license 

with the name Percey Whitehead[,] and the photo [was] blacked 

out. [Whitehead] stated that he was the owner of the vehicle 

and that he was driving home. [Whitehead] appeared to be 

nervous and “slightly standoffish.”

During his interaction with [Whitehead], Officer McMonagle 

stood behind the door jam[b] of the vehicle and leaned forward 

toward the vehicle. He specifically testified that the door to the 

vehicle was closed and he “wasn’t in the vehicle.” From that 

viewpoint, he observed a clear, small Ziploc baggy – that he 

immediately recognized as narcotics packaging – on the floor 

mat at [Whitehead’s] feet. Based upon his observation of the 

narcotics packaging, Officer McMonagle removed [Whitehead] 

from his car and frisked him for weapons. [Officer McMonagle’s] 

partner detained [Whitehead] at the back of vehicle; 

[Whitehead] was not handcuffed at this time. 

Officer McMonagle went to the driver’s side of the vehicle 

to retrieve the narcotics packaging. As he was recovering the 

narcotics packaging, he observed that the plastic portion of the 

gear shifter was popped up and was cockeyed, or sitting off [] 

center by a quarter to one[-]half of an inch. He thought that the 

dislodged gear shifter was unusual so he used his flashlight to 

look into the gear shifter. When he did so, he immediately 

recognized – based upon his familiarity with firearms – that 

there was a firearm inside the gear shifter from his observation 

of the top of the barrel or the slide of the firearm. He did not 

touch or otherwise manipulate the gear shifter in order to make 

his observations. Officer McMonagle did not recover the firearm, 

but rather requested a search warrant for the vehicle. The 
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narcotics packaging and firearm were both recovered and placed 

on property receipts; the firearm was recovered pursuant to a 

search warrant obtained by Detective Linda Hughes. 

Officer McMonagle regards the area where [Whitehead] 

was stopped as an “extremely high[-]crime area known for a lot 

of shootings.” In his career as a police officer, Officer 

McMonagle has made more than 100 arrests for illegal narcotics. 

He is familiar with the type of narcotics packaging that he 

observed in [Whitehead’s] vehicle. He also has extensive 

familiarity with firearms. 

During cross-examination, [Whitehead’s] counsel 

repeatedly asked Officer McMonagle whether he “leaned in the 

vehicle” or “lean[ed] into the vehicle.” [Whitehead’s] counsel 

also showed the officer an arrest memo, which states that, 

“Police leaned into the vehicle to get a better view.” In 

response, Officer McMonagle testified that he “leaned forward up 

to the vehicle,” “leaned forward to the driver,” and “was not in 

the vehicle” prior to observing the narcotics packaging. He 

further testified that he could see the narcotics packaging from 

where he was standing and without leaning into the car. Officer 

McMonagle testified that his partner[,] Officer Berryman[,] 

prepared the arrest memo based, in part, on information 

received from Officer McMonagle, but that it was not a verbatim 

account of his statements to Officer Berryman.

Trial Court Opinion, 12/12/14, at 1-3 (citations to record omitted).

Following Whitehead’s arrest, the Commonwealth charged him with 

possession of a controlled substance and the VUFA offenses. Whitehead 

subsequently filed a Motion to suppress the evidence seized from his vehicle, 

asserting, inter alia, that Officer McMonagle’s warrantless search of the 

vehicle was constitutionally infirm because it did not meet the “plain view” 

exception to the warrant requirement. After conducting a suppression 

hearing on December 7, 2012, and considering the parties’ Memoranda of 

Law, the suppression court denied Whitehead’s Motion to suppress. 
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The matter eventually proceeded to a non-jury trial, before a different 

trial court judge, at the close of which the trial court found Whitehead guilty 

of the above-mentioned crimes. On June 19, 2014, the trial court sentenced 

Whitehead to an aggregate prison term of four to eight years. 

Whitehead timely filed a post-sentence Motion, challenging, inter alia, 

the denial of his Motion to suppress. After a hearing on August 15, 2014, 

the trial court denied the post-sentence Motion. Whitehead filed a timely 

Notice of Appeal. In response, the trial court ordered him to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. Whitehead 

timely filed a Concise Statement.

On appeal, Whitehead raises the following issues for our review:

1. Is a Philadelphia police officer in an unlawful vantage point 

to view an item he claims is in plain view[,] when he 

places his shoulder “in on a door jam[b]” of a car that has 

its window down[, and d]id the suppression court abuse its 

discretion by denying [Whitehead’s] Motion to suppress 

[on this basis]?

2. Is a small[,] clear Ziploc baggy, consistent with narcotics 

packaging, not immediately apparent to be contraband[, 

and d]id the suppression court abuse its discretion by 

denying [Whitehead’s] Motion to suppress [on this basis]?

Brief for Appellant at 6 (capitalization omitted).2

In reviewing the denial of a suppression motion, 

our role is to determine whether the record supports the 

suppression court’s factual findings and the legitimacy of the 

inferences and legal conclusions drawn from those findings. In 

making this determination, we may consider only the evidence of 

 

2 Whitehead admits that Officer McMonagle conducted a lawful traffic stop of 

his vehicle. See Brief for Appellant at 10.
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the prosecution’s witnesses and so much of the defense as, fairly 

read in the context of the record as a whole, remains 

uncontradicted. When the evidence supports the factual findings 

of the suppression court, we may reverse only if there is an error 

in the legal conclusions drawn from those factual findings. As a 

reviewing court, we are therefore not bound by the legal 

conclusions of the suppression court and must reverse that 

court’s determination if the conclusions are in error or the law is 

misapplied.

Commonwealth v. Page, 59 A.3d 1118, 1131 (Pa. Super. 2013) (citation 

and brackets omitted).

Both of Whitehead’s issues challenge the legality of Officer 

McMonagle’s seizure of the contraband in Whitehead’s vehicle under the 

“plain view” exception to the warrant requirement.

“A search warrant is required before police may conduct any 

search.” Commonwealth v. Williams, 2013 PA Super 172, 73 

A.3d 609, 614 (Pa. Super. 2013) (citation omitted). “Absent the 

application of one of a few clearly delineated exceptions, a 

warrantless search or seizure is presumptively unreasonable.” 

Id. One of these exceptions is the “plain view” doctrine ....

The plain view doctrine permits the warrantless search and 

seizure of an object when “(1) an officer views the object from a 

lawful vantage point; (2) it is immediately apparent to him that 

the object is incriminating; and (3) the officer has a lawful right 

of access to the object.” Commonwealth v. Whitlock, 2013 

PA Super 105, 69 A.3d 635, 637 (Pa. Super. 2013). In 

determining whether the incriminating nature of an object is 

“immediately apparent” to a police officer, courts should 

evaluate the “totality of the circumstances.” Id. “Although 

courts have recognized that a police officer can never be certain 

that an object in plain view is incriminating, the officer’s belief 

must be supported by probable cause.” Id.

Commonwealth v. Sodomsky, 2015 PA Super 133 ** 19-20 (Pa. Super. 

2015) (brackets omitted). 
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In his first issue, Whitehead argues that the evidence should have 

been suppressed because Officer McMonagle was not at a lawful vantage 

point when he viewed the alleged narcotics packaging,3and, therefore, the 

first prong of the plain view doctrine was not met. See Brief for Appellant at 

11-13. Whitehead contends that Officer McMonagle was impermissibly 

leaning into Whitehead’s car when he viewed the packaging. See id. at 12-

13; see also id. at 13 (arguing that Officer McMonagle “did not have 

permission to place his shoulder ‘in on’ the [door] jam[b].”).

Here, the trial court concluded, in its Pa.R.A.P. 1925(a) Opinion, that 

“the suppression court’s factual findings are supported by the record, i.e., 

that Officer McMonagle observed the narcotics packaging while standing 

outside of [Whitehead’s] vehicle.” Trial Court Opinion, 12/12/14, at 6 

(emphasis added). We agree. The following testimony at the suppression 

hearing supports this conclusion:

Q. [The prosecutor]: What, if anything, did you do next[, i.e., 

after Whitehead had given Officer McMonagle his identification 

paperwork during the stop]?

A. [Officer McMonagle]: As of having our exchange, he has the 

paperwork, I’m standing behind the door jam[b] of the vehicle 

leaning forward and I observed what I believe to be narcotics 

packaging. ... As I leaned in, I was able to observe what I 

believed to be narcotics packaging at [Whitehead’s] feet.

Q. Now, you said you were leaning forward and looking in. At 

this point was the car door open or shut?

 

3 We separately address below, in connection with Whitehead’s second issue, 

his assertion that the packaging in question, i.e., a small Ziploc bag, was not 

immediately identifiable as narcotics packaging.
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A. The door was shut. I wasn’t in the vehicle. Leaning forward.

*** 

A. My shoulder was in on the door jam[b] of the vehicle.

N.T., 12/7/12, at 14-15. Later, the following exchange transpired on crossexamination:

Q. [Defense counsel]: At some point in time you leaned in 

[Whitehead’s] vehicle, is that right?

A. [Officer McMonagle]: Yes. Like I said, I leaned forward up to 

the vehicle.

* * *

Q. So you didn’t lean into the vehicle? 

A. I leaned forward to the driver.

Q. Did you lean into the vehicle? The third time.

A. I was not in the vehicle.

* * *

Q. This bag that you saw, where was it?

A. It was on the floor at the driver’s feet.

* * *

Q. Where you were standing[,] not leaning into the car[,] you 

could see it [the Ziploc bag]?

A. Yes.

Id. at 28-31.

Accordingly, the record supports the suppression and trial courts’ 

determinations that Officer McMonagle observed the narcotics packaging 
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from a lawful vantage point for purposes of the plain view doctrine, and that 

he was not in Whitehead’s vehicle. See Page, supra (stating that a

suppression court’s findings of fact, where supported by the record, are 

binding on a reviewing court); see also Commonwealth v. Colon, 777 

A.2d 1097, 1103-04 (Pa. Super. 2001) (stating that “[t]here is no reason a 

police officer should be precluded from observing as an officer what would 

be entirely visible to him as a private citizen. There is no legitimate 

expectation of privacy shielding that portion of the interior of an automobile 

which may be viewed from outside the vehicle by either inquisitive passersby 

or diligent police officers.”) (citation, brackets and ellipses omitted). 

To the extent Whitehead emphasizes that Officer McMonagle used the 

phrase “[a]s I leaned in,” N.T., 12/7/12, at 15, Whitehead overlooks the 

main substance of the Officer’s testimony, and seeks to cast it in a light 

most favorable to the defense, contrary to our standard of review. See 

Page, supra. Officer McMonagle expressly testified that he never leaned 

into Whitehead’s vehicle, and that he could see the narcotics packaging 

without leaning into the vehicle. Moreover, the mere fact that Officer 

McMonagle had, at one point, leaned his shoulder on the door jamb of 

Whitehead’s closed driver’s side door does not mean that he viewed the 

narcotics packaging from an unlawful vantage point. Thus, this claim is 

without merit.

In his second issue, Whitehead contends that “[e]ven if this Honorable 

Court were to conclude that [] Officer [McMonagle] was in a lawful vantage 
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point, his observations do not fulfill the second prong of the plain view 

doctrine[,] which requires the incriminating nature of [the] item to be 

immediately apparent.” Brief for Appellant at 13. Whitehead points out that 

although Officer McMonagle testified that he saw what he believed to be 

narcotics packaging (i.e., the small Ziploc bag) on the floor of Whitehead’s 

vehicle, he conceded that he did not see any narcotics. Id. at 14 (citing 

N.T., 12/7/12, at 33, 51, and Commonwealth v. Stackfield, 651 A.2d 

558, 562 (Pa. Super. 1994) (holding that the warrantless, protective patdown search of the defendant’s person did not meet the “plain feel” warrant 

exception, and stating that “[a] zip-lock baggie is not per se contraband, 

although material contained in a zip-lock baggie may well be.”)).

Whitehead has waived this claim by his failure to include it in his 

court-ordered Rule 1925(b) Concise Statement.4 See Pa.R.A.P. 

1925(b)(4)(vii) (providing that “[i]ssues not included in the Statement ... are 

waived.”); see also Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 

1998) (holding that “[a]ny issues not raised in a 1925(b) statement will be 

 

4 The only issue in Whitehead’s Concise Statement that relates to 

suppression/plain view doctrine states as follows: “The [suppression c]ourt 

improperly denied a [M]otion to suppress a search of [Whitehead’s] 

vehicle[,] as the police unlawfully gained a vantage point to the vehicle

without reasonable suspicion or probable cause, thus tainting the 

subsequent search of the vehicle[,] which uncovered narcotics and a 

firearm[.]” Concise Statement, 9/25/14, ¶ 3 (emphasis added); see also 

Pa.R.A.P. 1925(b)(4)(ii) (providing that “[t]he Statement shall concisely 

identify each ruling or error that the appellant intends to challenge with 

sufficient detail to identify all pertinent issues for the judge.”). Here, the 

trial court did not address Whitehead’s instant claim in its Rule 1925(a) 

Opinion.
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deemed waived.”); Commonwealth v. Deck, 954 A.2d 603, 610 (Pa. 

Super. 2008) (indicating that there must be strict compliance with Pa.R.A.P. 

1925(b)).

Even if this claim was not waived, however, we would conclude that it 

lacks merit. Though it is true that Officer McMonagle saw only a small Ziploc 

bag, and such bags can be used for purposes aside from storing narcotics, 

see Stackfield, supra, Officer McMonagle testified that (1) he had made 

more than 100 prior narcotics arrests; (2) during “several” of these arrests, 

he had found narcotics contained in the same packaging that he saw on 

Whitehead’s floor mat; and (3) he “immediate[ly]” thought that the Ziploc 

bag in question may have contained narcotics. See N.T., 12/7/12, at 16-17. 

It was not necessary for Officer McMonagle to be certain that the Ziploc bag 

contained narcotics to meet the plain view exception; rather, he needed only 

possess probable cause that it did. See Sodomsky, supra; see also 

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

“[t]he 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.”) (citations and quotation marks omitted). 

Moreover, Officer McMonagle’s viewing the Ziploc bag must be viewed under 

the totality of the circumstances. See Sodomsky, supra; Thompson, 985 

A.2d at 931. The traffic stop occurred late at night in an “extremely high[-

]crime area,” Whitehead was visibly nervous, and he made excessive 
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movements, which, Officer McMonagle testified, raised his suspicion that 

Whitehead was concealing contraband.

Based upon the foregoing, we conclude that Whitehead was not 

entitled to suppression of the contraband found in his vehicle. All of the 

prongs of the plain view exception were met in this case, and therefore, the 

warrantless search and seizure of the contraband was proper.5

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2015

 

5 As an addendum, we are persuaded by the Commonwealth’s rationale that, 

even if Officer McMonagle had not seen any narcotics packaging in 

Whitehead’s vehicle, this would not require suppression of the seized 

contraband, since, under the totality of the circumstances of the traffic stop, 

Officer McMonagle could have legitimately conducted a protective search of 

the passenger compartment of Whitehead’s vehicle. See Brief for the 

Commonwealth at 22-23 (pointing out that the traffic stop occurred late at 

night, in a high-gun-crime area, and Officer McMonagle testified that 

Whitehead was visibly nervous, and engaged in excessive and suspicious 

hand movements); id. at 23 (citing Commonwealth v. Murray, 936 A.2d 

76, 80 (Pa. Super. 2007) (where the traffic stop occurred at night in a “high 

narcotics area,” and the officer observed the defendant engage in excessive 

hand movements inside the car, holding that the officer had sufficient 

reasonable suspicion that the defendant may have been armed and 

dangerous to conduct a lawful protective search of the car), and Illinois v. 

Wardlow, 528 U.S. 119, 124 (2000) (recognizing that nervous, evasive 

behavior is a pertinent factor in determining whether reasonable suspicion is 

present)); see also N.T., 8/15/14 (post-trial Motion hearing), at 6-7 

(wherein the trial court stated that the totality of the circumstances of the 

encounter would have permitted Officer McMonagle to conduct a protective 

search of Whitehead’s vehicle).