J-S24006-22

2022 PA Super 187

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

MALIK SMITH

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1279 EDA 2021

Appeal from the Order Entered June 11, 2021

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0000500-2021

BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*

OPINION BY PANELLA, P.J.: FILED NOVEMBER 4, 2022

The Commonwealth brings this appeal after the trial court granted Malik 

Smith’s motion to suppress evidence seized following a motor vehicle stop, 

during which a firearm was observed in the back seat of the car. Upon careful 

review, we reverse the order and remand for further proceedings.

In the evening of August 15, 2020, Philadelphia Police Officers Kyle 

Smith and Clifford Gilliam stopped the vehicle being driven by Smith

(hereinafter “Appellee”). The officers stopped Appellee’s car because it was 

being operated with excessive tint on the windows in violation of the Motor 

Vehicle Code.1

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. § 4524(e).
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At the time that Appellee pulled over his vehicle, Officer Gilliam used a 

loudspeaker to direct Appellee to roll down all the windows. During the stop, 

Officer Gilliam approached the driver’s side of the vehicle and Officer Smith 

approached the passenger side. Appellee was the only person in the vehicle. 

While Officer Gilliam requested that Appellee produce his driver’s license and 

vehicle registration, Officer Smith used a flashlight to illuminate the interior of 

the vehicle. At that point, Officer Smith observed, through an open passenger 

window, a firearm on the rear floorboard of the car. Officer Smith alerted 

Officer Gilliam of his observation, and Officer Gilliam immediately placed 

Appellee in handcuffs. Appellee was then removed from his vehicle and placed 

in the rear of the police cruiser. After Appellee was in the police cruiser, Officer 

Smith retrieved the gun from the rear of Appellee’s car. Appellee was charged 

with person not to possess a firearm, firearms not to be carried without a 

license, carrying firearms in public in Philadelphia, and sun screening and 

other materials prohibited.2

Appellee filed a motion to suppress. The trial court held a hearing on 

June 8, 2021. On June 11, 2021, the trial court heard additional testimony 

from Appellee regarding his permission to use the vehicle. Thereafter, the trial 

court entered an order granting Appellee’s motion to suppress evidence. The 

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2 18 Pa.C.S.A. §§ 6105, 6106, 6108, and 75 Pa.C.S.A. § 4524(e), respectively.
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Commonwealth filed this timely appeal.3 Both the Commonwealth and the trial 

court complied with Pa.R.A.P. 1925.

In its sole issue, the Commonwealth questions whether the trial court 

properly suppressed the firearm. See Commonwealth’s Brief at 8-14. The 

Commonwealth contends that the officers were permitted to restrain Appellee

and access the gun for their own safety. In addition, the Commonwealth 

asserts that the plain view doctrine permits the admission of the firearm. In 

its opinion authored pursuant to Pa.R.A.P. 1925(a), the trial court indicated 

that it agrees with the Commonwealth and “opines that it erred in granting 

Appellee’s suppression motion.” Trial Court Opinion, 10/4/21, at 3. Upon 

careful consideration of the pertinent law and factual record, we agree.4

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3 Pursuant to Pa.R.A.P. 311(d), in its notice of appeal, the Commonwealth 

certified that the trial court’s suppression order terminates or substantially 

handicaps the prosecution.

4

In initially granting Appellee’s suppression motion, the trial court, to a certain 

extent, relied upon Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), 

wherein our Supreme Court held that, because a firearm may lawfully be 

carried and, alone, is not suggestive of criminal activity, police officers may 

not infer criminal activity merely from an individual’s possession of a 

concealed firearm in public. The Hicks Court further explained that, while the 

possession of a firearm “certainly can be” suspicious, it is but one factor to be 

considered under the totality of the circumstances presented. Id. at 939-40. 

However, Hicks did not involve an otherwise valid stop of the defendant 

during which the officers discovered a firearm in plain view. Rather, the Hicks

Court disclaimed any applicability of its decision under those circumstances.

As the Hicks Court aptly stated: “We stress, however, that our present 

analysis is confined to the antecedent justification for a ‘stop,’ and we 

accordingly offer no opinion as to whether a police officer who has effectuated 

(Footnote Continued Next Page)
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When reviewing an order granting a defendant’s motion to suppress 

evidence, “we are bound by that court’s factual findings to the extent that 

they are supported by the record, and we consider only the evidence offered 

by the defendant, as well as any portion of the Commonwealth’s evidence 

which remains uncontradicted, when read in the context of the entire record.” 

Commonwealth v. Wallace, 42 A.3d 1040, 1048 (Pa. 2012) (citation 

omitted). “Our review of the legal conclusions which have been drawn from 

such evidence, however, is de novo, and, consequently, we are not bound by 

the legal conclusions of the lower courts.” Id. (citation omitted). Moreover, 

our scope of review from a suppression ruling is limited to the evidentiary 

record that was created at the suppression hearing. See In re L.J., 79 A.3d 

1073, 1087 (Pa. 2013).

Further, Pa.R.Crim.P. 581 provides that “[t]he Commonwealth shall 

have the burden ... of establishing that the challenged evidence was not 

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a lawful investigative detention may treat the suspect’s possession of a firearm 

as per se authorization to ‘frisk’ the detainee.” Hicks, 208 A.3d 934. The Court 

went on to explain, “[a]ccordingly, decisions addressing that separate 

question, and the consideration of whether an ‘armed’ individual is 

automatically ‘dangerous’ for purposes of a Terry frisk, see, e.g., United 

States v. Robinson, 846 F.3d 694 (4th Cir. 2017) (en banc), have no 

relevance to this appeal.” Id. Therefore, as the trial court aptly concluded in 

this case: “Hicks is not applicable because the observation of the firearm did 

not trigger the vehicle stop and investigation.” Trial Court Opinion, 10/4/21, 

at 8. Interestingly, although Appellee argued in the trial court claiming that 

Hicks is pertinent to this case, see N.T., 6/8/21, at 5, he has completely 

abandoned that contention in his brief to this Court, wherein he makes no 

reference to the Hicks decision. See Appellee’s Brief at 5-7.
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obtained in violation of the defendant’s rights.” Pa.R.Crim.P. 581(H). 

Specifically, the Commonwealth has the burden of “establish[ing] by a 

preponderance of the evidence that the evidence was properly obtained.” 

Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011) 

(citation omitted).

“The Fourth Amendment to the United States Constitution and Article I, 

Section 8 of the Pennsylvania Constitution protect individuals from 

unreasonable searches and seizures, thereby ensuring the right of each 

individual to be let alone.” Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. 

Super. 2002) (citations and quotation marks omitted). “A warrantless search 

or seizure is presumptively unreasonable under the Fourth Amendment and 

Article I, § 8, subject to a few specifically established, well-delineated 

exceptions.” Commonwealth v. McCree, 924 A.2d 621, 627 (Pa. 2007)

(citation omitted). These exceptions include “the consent exception, the plain 

view exception, the inventory search exception, the exigent circumstances 

exception, the automobile exception, ... the stop and frisk exception, and the 

search incident to arrest exception.” Commonwealth v. Simonson, 148 

A.3d 792, 797 (Pa. Super. 2016) (citation omitted).

Regarding the automobile exception, in Commonwealth v. 

Alexander, 243 A.3d 177 (Pa. 2020), our Supreme Court reaffirmed that “the 

Pennsylvania Constitution requires both a showing of probable cause and 

exigent circumstances to justify a warrantless search of an automobile.” Id.
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at 181. In reaching this conclusion, the Court expressly overruled 

Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which had adopted the 

federal automobile exception to the warrant requirement that allowed police 

to conduct a warrantless vehicle search based solely on probable cause, with 

no exigency required beyond the inherent mobility of a motor vehicle. 

However, the decision in Alexander does not address the plain view exception 

or any alterations to its requirements. Therefore, where the circumstances 

permit an application of the plain view exception, we need not apply 

Alexander. See Commonwealth v. McMahon, 280 A3d 1069, 1074 (Pa. 

Super. 2022).

The plain view doctrine allows the admission of evidence seized without 

a warrant 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. See Commonwealth v. 

Collins, 950 A.2d 1041, 1045 (Pa. Super. 2008) (en banc) (citing McCree).

“There can be no reasonable expectation of privacy in an object that is

in plain view.” Commonwealth v. Bumbarger, 231 A.3d 10, 20 (Pa. Super. 

2020). “The question [of] whether property in plain view of the police may be 

seized ... must turn on the legality of the intrusion that enables them to 

perceive and physically seize the property in question.” Texas v. Brown, 460 

U.S. 730, 737 (1983). As we have long observed, there is no legitimate 

expectation of privacy shielding the portion of the interior of an automobile 
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that may be viewed from outside the vehicle by either an inquisitive passerby 

or diligent police officers. See Commonwealth v. Jones, 978 A.2d 1000, 

1005 (Pa. Super. 2009) (citing Brown, 460 U.S. at 740). Furthermore, we 

are mindful that the Motor Vehicle Code provides the statutory authorization 

for a police officer to stop a motor vehicle “[w]henever a police officer ... has 

reasonable suspicion that a violation of this title is occurring or has occurred 

[so that he may] secure such other information as the officer may reasonably 

believe to be necessary to enforce the provisions of this title.” 75 Pa.C.S.A. § 

6308(b).

In determining whether the incriminating nature of an object is 

immediately apparent to the police officer, we look to the totality 

of the circumstances. An officer can never be one hundred percent 

certain that a substance in plain view is incriminating, but his 

belief must be supported by probable cause.

Commonwealth v. Johnson, 921 A.2d 1221, 1223 (Pa. Super. 2007) 

(citations, brackets and quotation marks omitted).

When reviewing whether an object’s criminal nature is “immediately 

apparent,” we note that probable cause

merely requires that the facts available to the officer would 

warrant a man of reasonable caution in the belief, that certain 

items may be contraband or stolen property or useful as evidence 

of a crime; it does not demand any showing that such a belief be 

correct or more likely true than false. A practical, non-technical 

probability that incriminating evidence is involved is all that is 

required.

Commonwealth v. McEnany, 667 A.2d 1143, 1148 (Pa. Super. 1995) 

(citations, emphasis, and quotation marks omitted). “[W]here police officers 
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observe incriminating-looking contraband in plain view in a vehicle from a 

lawful vantage-point, the lack of advance notice and opportunity to obtain a 

warrant provides the officers with a lawful right of access to seize the object 

in question.” Commonwealth v. Brown, 23 A.3d 544, 557 (Pa. Super. 

2011).

Here, the Commonwealth met the first requirement of the plain view 

test, because Officer Smith viewed the gun from a lawful vantage point. At 

the suppression hearing, Officer Gilliam testified that Appellee’s vehicle stop 

occurred while the officers were on routine patrol. See N.T., 6/8/21, at 7-8. 

Officer Gilliam stated that the stop of the vehicle was precipitated by the 

observation of a Motor Vehicle Code violation, i.e., excessive tint to the 

windows. See id. Officer Gilliam indicated that Appellee immediately pulled 

over when the patrol car activated its lights and siren. See id. at 8. In 

addition, once the vehicle was stopped, Officer Gilliam used a loudspeaker and 

directed Appellee to roll down all four windows. See id. at 10-11. Appellee

complied with the officer’s directive. See id. at 11.

Officer Smith offered similar testimony regarding the police stop. 

Essentially, he stated that the vehicle was stopped for a Motor Vehicle Code

violation, Appellee properly pulled over when the sirens and lights were 

activated, and Appellee followed the directive to roll down the windows. See 

id. at 27-28. Officer Smith indicated that, while Officer Gilliam was speaking 

with Appellee, Officer Smith was standing at the passenger’s side of the car 
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and observed the gun in the back of the car by shining his flashlight into the 

vehicle. See id. at 28, 29. Accordingly, after the officers lawfully stopped 

Appellee, Officer Smith plainly saw, through an open passenger’s side window, 

a firearm on the rear floor of the vehicle. Therefore, Appellee lacked a 

reasonable expectation of privacy in the firearm left in plain view.

Under the second requirement of the plain view doctrine, the 

incriminating nature of the firearm was immediately apparent to the police. 

Officer Smith, who had been a police officer for 10 years, described seeing a 

tan and black firearm on the rear floorboard of the car. See N.T., 6/8/21, at 

29. Officer Smith indicated that an extended magazine immediately drew his 

attention to the gun. See id. at 30. Officer Smith unequivocally testified about 

the unique appearance of the gun and magazine stating, “I could recognize 

the tan handle of the firearm, but the magazine was very significant as well 

to me. You can’t hide it. It’s pretty hard to miss.” Id. at 31. When the trial 

court asked Officer Smith about the type of firearm, Officer Smith indicated 

that it was a “ghost gun.” See id. Officer Smith explained that ghost guns are 

“firearms that are made of homemade parts.” Id. Under the totality of these 

circumstances, including the officers’ experience, the incriminating nature of 

the gun was immediately apparent.

Finally, turning to the third prong of the plain view doctrine, we conclude 

Officer Smith had a lawful right of access to the interior of Appellee’s vehicle. 

Under the circumstances described above, Officer Smith’s observation of the 
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unique and incriminating appearance of the gun in Appellee’s car created 

probable cause to believe that a crime had been committed, and that evidence 

pertaining to the crime was present in Appellee’s vehicle. Accordingly, 

probable cause arose suddenly and without any advance warning that 

Appellee or his car would be the target of a police investigation. Therefore, 

since Officer Smith lacked advance notice and an opportunity to obtain a 

warrant before commencing a search, he had a lawful right of access to the 

interior of Appellee’s vehicle to recover the evidence. Because all three prongs 

of the plain view doctrine were satisfied, the seizure of the gun was 

constitutionally permissible, and the trial court erroneously granted Appellee’s 

motion to suppress the evidence.

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/4/2022