Commonwealth v. Newman, PICS Case No. 14-0037 (Pa. Super. Jan. 6, 2014) Bender, J. (15 pages).

SUPERIOR COURT

The Legal Intelligencer

EVIDENCE - ADMISSIBILITY

Admissibility of Evidence

Commonwealth v. Newman, PICS Case No. 14-0037 (Pa. Super. Jan. 6, 2014) Bender, J. (15 pages).

Commonwealth appealed the order granting appellee defendant's suppression motion and denying Commonwealth's motion for reconsideration. The order is affirmed.

Defendant was arrested following police surveillance of numerous drug transactions. Police testimony admitted that defendant was not observed in any of the money for drugs transactions, but was stopped after receiving a black plastic bag from a person under surveillance. The testifying officer stated that, following information received from another officer of a black plastic bag having been handed from one suspect to defendant, he stopped defendant's vehicle after he activated his lights and sirens. The officer requested defendant to vacate the vehicle for his safety and saw the black plastic bag on the vehicle's floor; he felt the bag for a weapon but described feeling "glass vials". Defendant was subsequently arrested.

Defendant was charged with possession, possession with intent to deliver and conspiracy. Defendant filed to suppress the physical evidence (the vials of crack cocaine) arguing it was seized in violation of his Fourth Amendment rights. Following a hearing, the court granted the motion to suppress ruling that, although probable cause existed to stop the vehicle, the officer conducted a warrantless search which uncovered the vials absent exigent circumstances. Commonwealth moved to reconsider arguing lack of expectation of privacy in the searched vehicle and an exception to the warrant requirement; the motion was denied. Commonwealth timely appealed arguing lack of privacy for search, plain view exception, and limited automobile exception.

The appellate court upheld the motion to suppress ruling that defendant had a reasonable expectation of privacy in the vehicle given the facts as a whole: he was operating the vehicle, objected to being stopped and made no attempt to flee. Further, the court held commonwealth waived its "plain view exception" argument for failure to present said claim to the trial court in its 1925b concise statement. Even had the exception not been waived, the court found the claim to be meritless as the drugs were in a black plastic bag blocking the view of the vials.

Finally, the court found the officers did not have reasonable suspicion that defendant was involved in drug transactions as the officers testified they did not witness his participation; therefore, the limited automobile exception which permitted warrantless searches did not apply.