A blog of the Philadelphia Bar Association’s Criminal Justice Section


By Burt Rose

Com. v. Hudson, 2014 WL 2441931, 586 EDA 2013 (Pa.Super. 2014)


Philadelphia Police officers conducted a traffic stop of the Appellee’s car due to a broken tail light. While effectuating the traffic stop, the officers noticed Appellee reaching toward the center console of the automobile. Once the officers reached the vehicle, the officer asked for and obtained Appellee’s license and vehicle registration. The officer then asked Appellee and his passenger to exit the vehicle, whereupon the officer conducted a protective sweep of the car for the safety of the officers. It was during this search that the officer opened the center console and saw three pill bottles. Two pill bottles had the labels partially removed, while the label on the third bottle was intact and bore the Appellee’s name. The officer seized the pill bottles and arrested the Appellee. The pill bottles were later determined to contain prescription pain medication. Appellee was charged with possession of a controlled substance with intent to deliver.


In this appeal from the suppression order of Judge Angelo Foglietta of the Court of Common Pleas of Philadelphia County, Criminal Division, CP–51–CR–0003547–2012, the Commonwealth argued that the suppression court had erred in suppressing the contents of two prescription pill bottles that had their labels partially removed. The Commonwealth claimed that the pill bottles were observed in plain view during a lawful traffic stop and protective search, and that under the totality of the circumstances, there was probable cause to arrest the Appellant.


Until recently, in order for police officers to conduct a lawful search of an automobile without a warrant, the officers were required to have probable cause and exigent circumstances. However, recently, the PA Supreme Court removed the dual requirement of probable cause and exigency for a warrantless search of an automobile in Pennsylvania in Commonwealth v. Gary, 2014 WL 1686766 (Pa.2014). Now, the prerequisite for a warrantless search of a motor vehicle is probable cause to search; no exigency beyond the inherent mobility of a motor vehicle is required. Thus, the question for the suppression court was whether the police officers had probable cause to conduct the warrantless search.


Here, the suppression court, after finding that the stop of the vehicle and the officers’ protective sweep of the car were lawful, concluded that it was impossible for the officers in this case to determine that the prescription bottles contained illegal substances because the contents of the bottles were not immediately apparent. The officer admitted that he did not know what these bottles contained.


Thus while the pill bottles themselves were in plain view, the contents of those bottles were not immediately apparent, and a pill bottle by itself is not contraband. The potentially incriminating contents of the pill bottles were not discovered until after they were improperly seized, searched, and tested, thereby proving that the “immediately apparent” requirement for the plain view exception had not been satisfied. The two pill bottles that had their labels partially removed were next to a pill bottle with an intact label bearing Appellee’s name, and the pill bottles alone were not “immediately apparent” as contraband. The fact that the Appellee had pill bottles in his car, with one bearing his name, without more, did not place the contents of the bottles in plain view and did not establish probable cause.


In none of the cases cited by the Commonwealth did the courts find that the mere observation of a container or package, the likes of which an officer has known in the past to contain narcotics, was sufficient to establish probable cause. Instead, it was the holdings of those courts that when viewed together with additional incriminating facts, an officer’s observation and evaluation of suspect containers and/or packages are appropriate factors to consider in ascertaining whether the warrantless arrest was supported by probable cause.


Absent probable cause, the warrantless search of the pill bottles in Appellant’s vehicle was unlawful and the lower court’s suppression order was affirmed.


The Judges were SHOGAN, OTT and PLATT. Judge Shogan wrote the Opinion.

David M. Walker, Esq. represented the Appellee.

Appellate practitioners may wish to note that the case was not argued but was submitted on the briefs.

Click for Opinion


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