Opinion
J-A20006-15 No. 1846 EDA 2014
08-04-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. CHRISTOPHER ROBINSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
Appeal from the Judgment of Sentence June 24, 2014, Court of Common Pleas, Monroe County, Criminal Division at No. CP-45-CR-0002139-2013 BEFORE: DONOHUE, SHOGAN and WECHT, JJ. MEMORANDUM BY DONOHUE, J.:
Appellant, Christopher Robinson ("Robinson"), appeals from the judgment of sentence entered on June 24, 2014 by the Court of Common Pleas of Monroe County following his convictions of possession of a controlled substance and possession of drug paraphernalia. For the reasons that follow, we affirm.
35 P.S. § 780-113(a)(16), (32).
The trial court summarized the factual and procedural history of this case as follows:
Following a traffic stop on Interstate 80, [Robinson] was arrested and charged with three drug offenses: Possession of Cocaine, Possession of Cocaine with Intent to Deliver, and Possession of Drug Paraphernalia.Trial Court Suppression Opinion, 3/10/14, at 1-4 (record citations omitted).
On August 23, 2013, [Robinson], who resides in the Bronx, New York, was traveling west near mile
marker 291.6 on Interstate 80 in his own vehicle, a 2003 Toyota Camry bearing a New York State registration, when he was observed by Trooper Gerald Lydon [("Trooper Lydon")] of the Pennsylvania State Police traveling in the left-hand lane despite an open right-hand lane. Trooper Lydon followed [Robinson] for more than five miles before activating his lights and siren. Pulling [Robinson] over, Trooper Lydon made contact with [Robinson], who presented Trooper Lydon with a New York State driver's license. Trooper Lydon asked [Robinson] where [he] was coming from and where he was going. [Robinson] replied that he was traveling from the Bronx to his girlfriend's house in Blakeslee, Pennsylvania, though [Robinson] did not know his girlfriend's address.
As detailed in the Affidavit of Probable Cause in support of the Criminal Complaint, while speaking to [Robinson], Trooper Lydon observed [him] to be "overly nervous," and detected "a slight odor of burnt marijuana emitting from the vehicle." At [the] hearing, Trooper Lydon testified to the same, and he further testified that he observed multiple air fresheners and a bottle of Febreze in [Robinson]'s vehicle, which, based on his training and experience, he knew were frequently used to mask drug odors.
After this initial contact, Trooper Lydon returned to his vehicle, where he ran a criminal history, which revealed [Robinson] had previously been arrested on ten occasions for drug violations, seven for drug delivery, and two other times for firearms violations. Trooper Lydon placed a call to another trooper, detailing [Robinson]'s criminal history and requesting the assistance of that trooper. Trooper Lydon placed a separate call to Trooper Anthony Doblovosky of the Bureau of Emergency & Special Operations, Canine Section to request a canine search of [Robinson]'s vehicle.
After the second trooper arrived, and while waiting for the K9 unit to arrive, Trooper Lydon emerged
from his vehicle and asked [Robinson] to step from his. The troopers conducted a precautionary pat down of [Robinson] before they began asking [him] a series of questions, including where he was going, if he had any luggage, and numerous questions about his girlfriend, to whose home [he] claimed to be traveling. [Robinson] informed the troopers he had been to his girlfriend's house in Blakeslee before, but he also indicated that he did not know the address and that she was going to text it to him when he got off the highway. The troopers further inquired if [Robinson] had anything in his care they "need[ed] to know about," including large amounts of cash, and Trooper Lydon plainly asked if [Robinson] had any marijuana, heroin, crack-cocaine or methamphetamines in his vehicle. [Robinson] replied that he had none of those things in his vehicle. Asked whether he had ever been in trouble with the law before, [Robinson] lied and said no.
Ultimately, Trooper Lydon asked [Robinson] for permission to search his vehicle. [Robinson] gave his consent, and Trooper Lydon returned to his vehicle to prepare the written consent form. Upon exiting his vehicle, Trooper Lydon explained the form to [Robinson], while pointing out that the portion of Interstate 80 they were on was considered part of a drug corridor. Trooper Lydon also informed [Robinson] that [he] had the right to refuse consent, but advised [Robinson] that if [he] refused, the troopers would call for the K9 unit to conduct an exterior search of the vehicle and had, in fact, already done so. Without reading the form, [Robinson] indicated that he would not sign it and told Trooper Lydon to "[f]orget it. Call the dog."
A short while later, Trooper Lydon asked [Robinson] several more questions about [his] girlfriend, and he told [Robinson] that, if the search revealed nothing, they would let [him] go free with only a warning for the traffic violation. Thereafter, Trooper Doblovosky arrived on the scene with Micho, a state police drug detection canine certified in the detection of, among
other things, cocaine hydrochloride and cocaine base. Beginning at the rear of the vehicle, Trooper Doblovosky then led Micho around [Robinson]'s vehicle. As they approached the front fender on the driver's side of [Robinson] vehicle, the MVR reveals that Micho became excited, bounding back and forth. Trooper Doblovosky led Micho to the driver's side door, helping Micho place his paws up on the ledge of the open window. Micho got down on his own and then leapt through the driver's window on his own, indicating the presence of drugs. [Robinson] was then placed in investigatory detention while Trooper Lydon applied and served on [Robinson]'s vehicle a search warrant. Magisterial District Judge Anthony Fluegel authorized the warrant, and a search of the vehicle revealed in the trunk a scale and a glass mason jar containing four plastic bags each holding a white powdery substance. A NIK test revealed the white powdery substance was cocaine. The mason jar held a total of fifty-one grams of cocaine. Questioned about the cocaine, [Robinson] admitted knowing it was there but was not certain how much was there, only that it was more than forty grams. [Robinson] was subsequently placed under arrest.
On October 31, 2013, Robinson filed an omnibus pre-trial motion to suppress the evidence of his traffic stop arguing that the stop, search, and seizure of his vehicle were all illegal. On March 10, 2014, the trial court denied Robinson's motion to suppress. On April 10, 2014, a jury found Robinson guilty of possession of a controlled substance and possession of drug paraphernalia. The jury could not come to a decision on the charge of possession within intent to deliver and the trial court declared a mistrial as to that offense.
On June 24, 2014, the trial court sentenced Robinson to one to two years of incarceration plus a twenty-five dollar fine for the traffic violation. On June 30, 2014, Robinson filed a timely notice of appeal. On July 1, 2014, the trial court ordered Robinson to file a concise statement of the errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure. On July 21, 2014, Robinson filed his timely Rule 1925(b) statement.
On appeal, Robinson raises the following issues for our review and determination:
[1.] Whether the lower court erred in denying [Robinson]'s motion to suppress where the only basis for the traffic stop was that [Robinson] was travelling in the left lane of a divided highway?Robinson's Brief at 5.
[2.] Whether the lower court erred in denying [Robinson]'s motion to suppress where the Commonwealth failed to produce evidence as to the drug dog's certification and reliability?
In both issues he raises on appeal, Robinson argues that the trial court erred in denying his motion to suppress. When reviewing a challenge to a trial court's denial of a suppression motion, our standard of review is as follows:
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts areCommonwealth v. McAdoo , 46 A.3d 781, 783-84 (Pa. Super. 2012) (quoting Commonwealth v. Hoppert , 39 A.3d 358, 361-62 (Pa. Super. 2012)). "It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Clemens , 66 A.3d 373, 378 (Pa. Super. 2013).
correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
We note that there is no suppression hearing transcript in the certified record on appeal. Though the record does reflect that hearings on Robinson's suppression motion took place on November 26, 2013 and December 11, 2013, see Trial Court Order, 12/3/13, there is no indication that these hearings were transcribed or that Robinson requested that they be transcribed. We are able, however, to decide Robinson's issues based on the remaining portions of the certified record on appeal. See McAdoo , 46 A.3d at 783-84. We acknowledge that in In re L.J., 79 A.3d 1073 (Pa. 2013), our Supreme Court applied prospectively a new rule regarding the scope of review in suppression matters. Id. at 1088-89. Specifically, it clarified that an appellate court's scope of review in suppression matters only includes the suppression hearing record, and not evidence elicited at trial. Id. at 1085. As the litigation in this case commenced prior to the decision in L.J., it has no impact on the instant matter. See id. at 1088-89 ("[T]he best course in this case, to ensure the fair administration of justice for all parties and to cases already commenced ... is to give this decision prospective effect.").
For his first issue on appeal, Robinson argues that Trooper Lydon did not have probable cause to stop his vehicle because he did not violate section 3313(d) of the Motor Vehicle Code, which requires drivers to keep their vehicles in the right lane on limited access highways with more than two lanes. Robinson's Brief at 8-12. Robinson asserts that probable cause was necessary here because no further investigation was required following the stop to determine whether he violated section 3313(d). See id. at 8. Robinson asserts that he was not in violation of section 3313(d) because he was passing other vehicles while in was in the left lane of Interstate 80. Id. at 11-12.
Robinson's first issue implicates the quantum of cause required for a law enforcement officer to stop a vehicle for an alleged violation of the Motor Vehicle Code. The relevant statutory authority is section 6308(b) of the Motor Vehicle Code, which provides:
Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to 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).
Thus, section 6308(b) requires only reasonable suspicion in support of a vehicle stop for gathering information necessary to enforce the Vehicle Code violation. However, a police officer must have probable cause to support a vehicle stop where the officer's investigation following the stop serves no "investigatory purpose relevant to the suspected [Motor Vehicle Code] violation." Commonwealth v. Feczko , 10 A.3d 1285, 1291 (Pa. Super. 2010) (en banc), appeal denied, 25 A.3d 397 (Pa. 2011). Our Supreme Court has explained:
Indeed, the language of § 6308 reflects this very intent. Stops based on reasonable suspicion are allowed for a stated investigatory purpose: "to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title." 75 Pa.C.S. § 6308(b). This is conceptually equivalent to the purpose of a Terry [] stop. It does not allow all stops to be based on the lower quantum—it merely allows this for investigatory stops, consistent with the requirements of both federal and state constitutions. We interpret the legislature's modification of § 6308 as merely eliminating the statutory requirement of a greater level of information for a stop under the Vehicle Code than is constitutionally required for all other stops.Commonwealth v. Chase , 960 A.2d 108, 116 (Pa. 2008). "[I]f the officer has a legitimate expectation of investigatory results, the existence of reasonable suspicion will allow the stop—if the officer has no such expectations of learning additional relevant information concerning the suspected criminal activity, the stop cannot be constitutionally permitted on the basis of mere suspicion." Id. at 115. Therefore, "when the existence of reasonable suspicion combines with the expectation that the stop will allow light to be shed on the relevant matters, the stop is not unconstitutional." Id.
Terry v. Ohio , 392 U.S. 1 (1968).
Section 3313(d) of the Motor Vehicle Code states the following:
(d) Driving in right lane.--
(1) Except as provided in paragraph (2) and unless otherwise posted, upon all limited access highways having two or more lanes for traffic moving in the same direction, all vehicles shall be driven in the right-hand lanes when available for traffic except when any of the following conditions exist:
75 Pa.C.S.A. § 3313(d).(i) When overtaking and passing another vehicle proceeding in the same direction.
(ii) When traveling at a speed greater than the traffic flow.
(iii) When moving left to allow traffic to merge.
(iv) When preparing for a left turn at an intersection, exit or into a private road or driveway when such left turn is legally permitted.
We agree with Robinson that probable cause was necessary to support a vehicle stop under section 3313(d) of the Motor Vehicle Code. When Trooper Lydon stopped Robinson's vehicle for violating section 3313(d) he would have already known whether Robinson was improperly driving in the left lane and whether any of the four permissible exceptions existed. There were no further questions that Trooper Lydon could have asked following the stop of Robinson's vehicle that would have served any investigatory purpose relevant to the suspected Motor Vehicle Code violation. See Feczko , 10 A.3d at 1291.
Based on our review of the certified record on appeal, we conclude that the record supports the trial court's determination that Trooper Lydon had probable cause to stop Robinson's vehicle for violating section 3313(d). Probable cause exists "where the facts and circumstances within the officers' knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed." Commonwealth v. Stultz , ___ A.3d ___, 2015 WL 19057922015 at *13 (Pa. Super. 2015).
The certified record reflects the following. Trooper Lydon stated that he observed Robinson's vehicle traveling in the left lane of Interstate 80 while the right lane was completely open. Affidavit of Probable Cause, 8/23/13, at 1. Trooper Lydon observed Robinson's vehicle for approximately four to five miles during which Trooper Lydon stated Robinson had "ample opportunity" to move into the right lane. Id.; N.T., 9/12/13, at 7-8; N.T., 4/10/14, at 53. Although Trooper Lydon acknowledged that Robinson eventually began passing tractor trailers, N.T., 4/10/14, at 53, Trooper Lydon testified that he observed Robinson traveling in the left lane for at least a half mile while the right lane was readily available. Id. Based on this evidence, the certified record supports the trial court's determination that Trooper Lydon had probable cause to believe Robinson was in violation of section 3313(d) and therefore properly stopped Robinson's vehicle.
Robinson further asserts that Trooper Lydon did not have probable cause to believe that he was violating section 3313(d) because, in his view, "[t]his section of the Motor Vehicle Code, like other provisions of Chapter 33, 'Rules of the Road' is a safety provision, enacted primarily to provide a free lane of travel for emergency vehicles on a limited access highway." Robinson's Brief at 10. Robinson contends that there is no evidence that he obstructed traffic, impeded an emergency vehicle, or was otherwise driving in an unsafe manner. Id. at 10. We find this argument unavailing for two reasons. First, none of the cases Robinson cites supports his argument, as they are not applicable to this matter. Second, even if Robinson was not driving in an unsafe manner, he still was technically violating section 3313(d).
Robinson cites Commonwealth v. Samuel , 671 A.2d 772 (Pa. Super. 1995), which is an unpublished memorandum decision of this court. Samuel , like other unpublished decisions of this court, is non-binding and cannot be relied upon by either a party or this Court as binding precedent in deciding the case. Commonwealth v. Little , 903 A.2d 1269, 1272 (Pa. Super. 2006); see also I.O.P. § 65.37(A) ("An unpublished memorandum decision shall not be relied upon or cited by a Court or a party in any other action or proceeding[.]"). Robinson also cites Commonwealth v. Gleason , 785 A.2d 983 (Pa. 2001), which addressed a trial court decision to suppress the evidence obtained during a traffic stop for the alleged violation of section 3309(1) of the Motor Vehicle Code, "Driving within single lane." Id. at 985-86. Section 3309(1) provides as follows: "A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety." 75 Pa.C.S.A. § 3309(1). Our Supreme Court held that "the lack of any evidence at the suppression hearing that Appellant's driving created a safety hazard leads us to agree with the trial court that there was insufficient evidence to support a [s]ection 3309(1) violation." Id. at 989 (quotations and citation omitted). Gleason , however, in addition to only addressing section 3309(1), has been superseded by statute. See id. at 983. Lastly, Robinson relies on Commonwealth v. Cook , 865 A.2d 869 (Pa. Super. 2004). In Cook , this Court, though citing to the portion of Gleason quoted above, upheld the trial court's decision to deny the defendant's suppression motion based on a stop for a clear violation of section 3309(1). See id. at 874-75.
To the extent Robinson also argues that Trooper Lydon's ongoing detention of him was improper, see Robinson's Brief at 11, the record likewise supports the trial court's determination that Trooper Lydon appropriately detained Robinson. Where a police officer continues to detain an individual for investigation for reasons unrelated to the initial traffic stop, the interaction between the police and individual is an investigative detention that must be supported by reasonable suspicion. Commonwealth v. Kemp , 961 A.2d 1247, 1253-54 (Pa. Super. 2008).
To establish reasonable suspicion, the officer must "articulate specific observations which, in conjunction with reasonable inferences derived from those observations, led him to reasonably conclude, in light of his experience, that criminal activity was afoot and that the person he stopped was involved in that activity." Commonwealth v. Basinger , 982 A.2d 121, 125 (Pa. Super. 2009) (quoting Commonwealth v. Reppert , 814 A.2d 1196, 1203Commonwealth v. Caban , 60 A.3d 120, 128 (Pa. Super. 2012). The officer's reasons for the continued detention must be independent of any basis on which the officer relied on for the initial stop. Commonwealth v. Tam Thanh Nguyen , ___ A.3d ___, 2015 WL 1883050 at *10 (Pa. Super. 2015).
(Pa. Super. 2002)). To determine whether the officer had reasonable suspicion, the totality of the circumstances must be considered. In re D.M., [] 781 A.2d 1161, 1163 ([Pa.] 2001). In this regard, we must give "due weight ... to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience." Commonwealth v. Cook , [] 735 A.2d 673, 676 ([Pa.] 1999) (quoting Terry v. Ohio , 392 U.S. 1, 27 [] (1968)).
Here, Trooper Lydon testified that after he stopped Robinson's vehicle and began questioning him, he smelled the slight odor of burnt marijuana emanating from the vehicle. Affidavit of Probable Cause, 8/23/13, at 1; N.T., 9/12/13, at 9. Trooper Lydon stated that he also observed the use of multiple air fresheners and a bottle of Febreze, which in his experience, are often used to mask the presence of drugs and narcotics. Affidavit of Probable Cause, 8/23/13, at 1; N.T., 9/12/13, at 9-10. Trooper Lydon further stated that Robinson appeared overly nervous. Affidavit of Probable Cause, 8/23/13, at 1. When Trooper Lydon ran a criminal history check on Robinson's license, Trooper Lydon discovered that Robinson had ten prior drug arrests. Affidavit of Probable Cause, 8/23/13, at 1; N.T., 9/12/13, at 10. Trooper Lydon stated that when he asked Robinson if he had ever been arrested before, Robinson lied and said that he had not. Affidavit of Probable Cause, 8/23/13, at 1. Accordingly, the certified record supports the trial courts conclusion that, based on the totality of the circumstances, Trooper Lydon had reason to believe that criminal activity was afoot and that Robinson was involved in that activity. Thus, the trial court did not abuse its discretion in determining that Trooper Lydon had the reasonable suspicion necessary to continue detaining Robinson following the initial traffic stop. Accordingly, Robinson's first issue does not entitle him to any relief.
At the end of his first issue, Robinson further asserts that Trooper Lydon "had no basis to inform [him] that [his] vehicle would be impounded" and that "there was nothing that occurred that would bring the stop of this vehicle to the level of requiring it to be impounded." Robinson's Brief at 11. This portion of Robinson's appellate brief is woefully underdeveloped, as it contains no meaningful argument. Robinson cites one case with no explanation of that case, the proposition it stands for, or how it relates to the instant matter. It is unclear how this argument relates to whether Trooper Lydon properly stopped his vehicle. Accordingly, we find this argument waived. See Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009) ("[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived."); Bolick v. Commonwealth , 69 A.3d 1267, 1269 (Pa. Super. 2013) (finding an issue raised on appeal waived because the appellant failed to present any argument), appeal denied, 84 A.3d 1061 (Pa. 2014). Waiver is further supported by Robinson's failure to include this issue in the statement of questions involved section of his appellate brief. See Pa.R.A.P. 2116(a) ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.").
For his second issue on appeal, Robinson argues that there was insufficient probable cause supporting the search warrant for his vehicle because the Commonwealth failed to introduce evidence of Micho's reliability or certification. Robinson's Brief at 12-13. Specifically, Robinson claims that the search warrant was invalid because "[t]he Commonwealth did not introduce any evidence of [Micho]'s reliability or certification as to what, if any, substances the dog was trained to detect, the number of years it had been trained, field accuracy or inaccuracy in relation to searches." Id. at 13.
In support of his claim, Robinson relies on Florida v. Harris , 133 S. Ct. 1050 (2013). In Harris , a canine trained to detect narcotics alerted police to the presence of narcotics in the defendant's vehicle. Id. at 1053-54. A search of the defendant's vehicle, however, revealed no substance that the canine was trained to detect, but did reveal the ingredients and equipment necessary for making methamphetamine. Id. at 1053-54, 1058-59. The defendant moved to suppress the evidence of the search arguing that the police officer did not have probable cause to search his vehicle because there was insufficient evidence of the canine's reliability. Id. at 1054. At the suppression hearing, the Commonwealth introduced extensive of evidence of the canine's training and reliability. Id. The United States Supreme Court held that there was sufficient evidence of the canine's reliability to support a finding of probable cause. Id. at 1058-59. The Supreme Court explained:
[E]vidence of a dog's satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog's alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.Id. at 1057-58.
* * *
A defendant, however, must have an opportunity to challenge such evidence of a dog's reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses. The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings.
* * *
In short, a probable-cause hearing focusing on a dog's alert should proceed much like any other. The court should allow the parties to make their best case, consistent with the usual rules of criminal procedure. And the court should then evaluate the proffered evidence to decide what all the circumstances demonstrate. If the State has produced proof from controlled settings that a dog performs reliably in detecting drugs, and the defendant has not contested that showing, then the court should find probable cause. If, in contrast, the defendant has challenged the State's case (by disputing the reliability of the dog overall or of a particular alert), then the court should weigh the competing evidence. In all events, the court should not prescribe ... an inflexible set of evidentiary
requirements. The question—similar to every inquiry into probable cause—is whether all the facts surrounding a dog's alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.
We disagree with Robinson's reliance on Harris as it is inapplicable here. This case differs from Harris in that Trooper Lydon obtained a search warrant prior to searching Robinson's vehicle, while the police officer in Harris did not obtain a search warrant before searching the defendant's vehicle. See id. at 1053-54. This Court has held that
[i]n determining whether a search warrant is supported by probable cause, appellate review is confined to the four corners of the affidavit. Commonwealth v. Coleman , [] 830 A.2d 554, 560 ([Pa.] 2003). Probable cause, in turn, is a practical, non-technical concept which requires consideration of the totality of the circumstances. Id. The district judge that is requested to issue a warrant makes a practical, common-sense determination as to whether, given all of the facts and circumstances provided in the affidavit, including the veracity and basis of knowledge of the persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a certain locale. The duty of the reviewing court is to simply ensure that the district judge had a substantial basis for concluding that probable cause existed. Id. [] 830 A.2d at 560 (quoting Commonwealth v. Gray , [] 503 A.2d 921, 925 ([Pa.] 1985), in turn quoting Illinois v. Gates , 462 U.S. 213, 238-39[] (1983)).Commonwealth v. Galvin , 985 A.2d 783, 796 (Pa. 2009). Because the search of Robinson's vehicle involved a search warrant, we must adhere to the standard set forth in Galvin. Thus, Harris is not applicable to this case.
In the instant matter, Trooper Lydon based his application for a search warrant to search Robinson's vehicle on several of his own observations in addition to Micho's positive alert. See Affidavit of Probable Cause, 8/23/13, at 1. Trooper Lydon based his application for the search warrant on the following: the slight odor of burnt marijuana emanating from Robinson's vehicle; the use of multiple air fresheners and the presence of a bottle of Febreze, which in his experience, are often used to mask the presence of drugs and narcotics; his observation that Robinson appeared overly nervous; and that Robinson lied about his criminal history, which included several drug arrests. Affidavit of Probable Cause, 8/23/13, at 1. Under Galvin , our determination of whether a search warrant is supported by probable cause is limited to the four corners of the affidavit of probable cause. See Galvin , 985 A.2d at 796. Accordingly, based on the evidence contained in the above-referenced affidavit of probable cause, we conclude that the district judge had a substantial basis for concluding that probable cause existed and Robinson is not entitled to any relief. See id.
In the middle of this section of his appellate brief, Robinson asserts that the Micho did not actually alert to the presence of drugs while outside the vehicle. Robinson's Brief at 12. Robinson then concedes, however, that Micho gave a positive alert to presence of drugs when the police lifted him up to the open driver's window. Id. It is unclear how this portion of his appellate brief relates to the issue at hand, as Robinson fails to further develop this point.
Moreover, further supporting our determination that this issue does not entitle Robinson to any relief is that the affidavit of probable cause for the search warrant in this case contained information regarding Micho's certification. In the affidavit of probable cause, Trooper Lydon stated the following relating Micho's certification:
On 8/23/13 at approximately 1830 hours[,] I contacted Tpr. Anthony DOBLOVOSKY, Bureau of Emergency & Special Operations, Canine Section, deployed State Police drug detection canine "MICHO" to conduct an exterior only search of the vehicle. During the search, MICHO displayed an alert behavior by jumping into an open driver door window. SPDD Canine MICHO is certified in the detection of the odor of marijuana/hashish, cocaine hydrochloride/cocaine base, heroin hydrochloride, and d, 1-methamphetamine hydrochloride. He has been certified with this officer since January 15, 2013.Application for Search Warrant, 8/23/13, at 2. Thus, the affidavit of probable cause for the search warrant indicated that at the time of canine sniff of Robinson's vehicle, Micho was certified in the detection of cocaine (which was the drug found in Robinson's trunk) and had been since January 15, 2013. See id. Therefore, the record did contain evidence of Micho's certification.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015