By Burt Rose
The en banc Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Marcus BROWN, Appellant, No. 2351 EDA 2008, 2011 WL 1228350, 2011 PA Super 67 (April 4, 2011), an appeal from a Judgment of Sentence in the Court of Common Pleas, Delaware County, Criminal Division at No. CP–23–CR–0005741–2006. Hon. Ann A. Osborne was the trial judge. George B. Dawson, Esq., represented the Appellant. The judges were FORD ELLIOTT, MUSMANNO, BENDER, BOWES, DONOHUE, SHOGAN, ALLEN, OLSON, and OTT. Judge Donohue wrote the Opinion for a unanimous court.
Marcus Brown was convicted of robbery, 18 Pa.C .S.A. § 3701(a)(1)(ii), aggravated assault of a police officer, 18 Pa .C.S.A. § 2702(a)(3), and possession of an instrument of crime, 18 Pa.C.S.A. § 907(a). Brown contended that the police stop of his van and the subsequent detention of Brown that followed violated his rights under the Fourth Amendment of the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution in that the police did not have reasonable suspicion that criminal activity was afoot, and that as a result the vehicle stop and his detention were unconstitutional.
While stopped at a traffic light, an officer observed Brown peeking in a suspicious manner from behind a dumpster area at a convenience store. The officer noted that Brown, who was standing five or six feet away, was wearing a black knit cap and a three-quarter length leather coat, even though it was April and not very cold outside. When two customers left after pumping gas, the officer watched Brown walk quickly into the convenience store. Approximately a minute later, Brown came running out of the store, through the parking lot, and into a nearby alley. The officer radioed dispatch to call the convenience store to see if they had had any problems, while he followed Brown in his vehicle and watched him jump into the driver’s seat of a maroon minivan. At that point, the officer stopped Brown’s vehicle and asked him for his driver’s license and registration. Brown supplied the requested documents. Meanwhile, the officer heard a radio call placed by dispatch stating that they had a language barrier with the employee at the convenience store and could not gather whether anything had happened there. The officer radioed for backup officers to stand by Brown’s vehicle while he went to the store where he learned that an attempted robbery with a gun had occurred. The officer testified that only a few minutes passed between the time he saw Brown run from the store and his conversation with the store clerk. At that point, he called the other officers to advise them of the attempted robbery and to tell them to arrest Brown. Judge Donohue ruled that this was sufficient reasonable suspicion to detain Brown.
The Court En Banc further ruled that application of the plain view doctrine allowed the seizure of a gun from the van. This doctrine requires a determination of whether the police have a lawful right of access to the object. Where police officers 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 does not prevent the officers from having a lawful right of access to seize the object in question. Also, where there is a potential danger to police or others in the context of a vehicle stop, exigency has been established for purposes of a warrantless search.
Applying these rules to the case sub judice, the detaining officers observed what appeared to be incriminating contraband, a black handgun, in plain view on the floor of Brown’s minivan behind the driver’s seat, and did so from a legal vantage point (to wit, the public street). The police had no time or opportunity to obtain a warrant before observing the gun and clothing in plain view behind the driver’s seat of the minivan. Under these circumstances, it was not reasonably practicable to expect the police to obtain a warrant prior to the seizure of the contraband. Accordingly, the seizure of the gun and clothing was constitutionally permissible. Therefore, the judgment of sentence was affirmed.
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