OPINION BY STEVENS, P.J.:
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Chester County following Appellant's conviction by a jury on the charges of driving while under the influence of alcohol or a controlled substance (DUI), 75 Pa.C.S.A. § 3802(a)(1), careless driving, 75 Pa.C.S.A. § 3714(a), reckless driving, 75 Pa.C.S.A. § 3736(a), accidental damage to unattended vehicle or property, 75 Pa. C.S.A. § 3745(a), and duties at a stop sign, 75 Pa.C.S.A. § 3323(b). Appellant's sole contention is the lower court erred in denying his motion to suppress three beer bottles, which the police seized without a warrant after entering his Chevrolet Blazer. We affirm.
The relevant facts and procedural history are as follows: Appellant was arrested and, on February 25, 2011, he filed a counseled omnibus pre-trial suppression motion. On July 25, 2011, Appellant proceeded to a suppression hearing at which Oxford Borough Police Officer Brian Dever was the sole testifying witness. Specifically, Officer Dever, an eleven-year veteran of the police department, testified that, on March 19, 2010, at approximately 8:24 p.m., he was on routine patrol travelling
N.T. 7/25/11 at 19.
As the Chevrolet Blazer hit the parked vehicle, a piece of the Chevrolet Blazer's side mirror "flew into the air and into [the officer's] lane of travel." N.T. 7/25/11 at 20. Despite the fact the Chevrolet Blazer had just struck a parked vehicle, the Chevrolet Blazer continued driving northbound and, as Officer Dever approached from the opposite direction in his police vehicle, he made eye contact with the driver. N.T. 7/25/11 at 20. Officer Dever made a U-turn, activated his police cruiser's lights, and within half a block, caught up to the Chevrolet Blazer. N.T. 7/25/11 at 20. The Chevrolet Blazer continued travelling northbound on 5th Street and, when the vehicle came to a stop sign at the intersection of Market and 5th Streets, the Chevrolet Blazer went through the stop sign without stopping. N.T. 7/25/11 at 21. In response, Officer Dever activated his cruiser's audible siren; however, the Chevrolet Blazer did not stop. N.T. 7/25/11 at 21-22. Instead, the Chevrolet Blazer turned left onto Railroad Alley, made a left into a driveway located at the rear of 437 and 439 Market Street, which is Section 8 housing, and then came to a stop. N.T. 7/25/11 at 22-23.
As the driver of the Chevrolet Blazer began to exit the vehicle, Officer Dever quickly approached and ordered the driver, who was later identified as Appellant, to remain inside of the vehicle. N.T. 7/25/11 at 22-23. Upon initial contact with Appellant, Officer Dever detected a strong odor of alcohol emanating from Appellant's breath, his eyes were blood shot, and his speech was slow and slurred. N.T. 7/25/11 at 23. As Officer Dever stood by the driver's side door, he was able to view the inside of the Chevrolet Blazer, which was illuminated by surrounding outside lights. N.T. 7/25/11 at 26-27. Sitting in the front console's cup holder, Officer Dever observed in clear view an unopened Heineken beer bottle. N.T. 7/25/11 at 27. Officer Dever testified that, in his experience, Heineken is an alcoholic beverage, and he recognized the bottle as being a Heineken beer bottle based on its green coloring, as well as the cap. N.T. 7/25/11 at 28.
Officer Dever asked Appellant for his license, registration, and insurance card. Appellant provided Officer Dever with a Pennsylvania identification card and valid registration card; however, he did not have in his possession a driver's license or a valid car insurance card. N.T. 7/25/11 at 24. Officer Dever requested that Appellant step out of the Chevrolet Blazer for a field sobriety test and, as Appellant did so, he "staggered, almost fell. He had to lean on the car. [Officer Dever's] partner grabbed a hold of him." N.T. 7/25/11 at 24.
Concluding it was not safe for Appellant to attempt to perform field sobriety tests, and Appellant was under the influence to an extent rendering him incapable of safe driving, Officer Dever placed Appellant under arrest for suspicion of DUI. N.T. 7/25/11 at 25. Officer Dever searched Appellant's person incident to the arrest and discovered a pill bottle, which had labeling
Following the search of his person, Appellant was placed in the rear of Officer Dever's patrol vehicle, and Officer Dever returned to the Chevrolet Blazer. N.T. 7/25/11 at 35. Regarding Officer Dever's actions upon returning to the Chevrolet Blazer, the following relevant exchange occurred on direct examination:
N.T. 7/25/11 at 35-37.
On cross-examination, Officer Dever indicated that, after he placed Appellant in
At the conclusion of all evidence, the lower court denied Appellant's pre-trial suppression motion in part,
Appellant's sole contention is the lower court erred in denying his motion to suppress three beer bottles, which the police seized following the stop of his motor vehicle. Specifically, Appellant contends that neither the plain view exception nor the limited automobile exception apply, and therefore, the police should have secured a warrant prior to searching Appellant's vehicle.
We begin with our standard of review.
Commonwealth v. Brown, 23 A.3d 544, 549 (Pa.Super.2011) (en banc) (quotations and citations omitted).
As indicated supra, Appellant has limited his appellate argument to challenge the police entering his Chevrolet Blazer and making a warrantless seizure of the three beer bottles therefrom.
"[B]oth the Fourth Amendment [of the United States Constitution] and Article I, Section 8 [of the Pennsylvania Constitution] protect individuals against unreasonable searches and seizures, and warrantless searches or seizures are presumptively constitutionally unreasonable, subject to certain established exceptions." Brown, 23 A.3d at 552-53. Since Appellant challenges the applicability of the plain view doctrine, which the Commonwealth used to establish the constitutionality of the warrantless seizure of the three beer bottles, we review Appellant's claim under our recent en banc Opinions in Commonwealth v. Brown, 23 A.3d 544 (Pa.Super.2011) (en
Liddie, 21 A.3d at 234-235 (citations and footnotes omitted) (footnote added).
Specifically, with regard to the first-prong of the plain view doctrine test, whether Officer Dever viewed the initial, unopened beer bottle from a lawful vantage point, we conclude it is unnecessary to analyze this prong since Appellant specifically concedes that this prong has been met. See Appellant's Brief at 10.
With regard to the second-prong of the plain view doctrine test, whether the incriminating evidentiary nature of the unopened beer bottle was immediately apparent to Officer Dever, we conclude that this prong was met. "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. Turner, 982 A.2d 90, 92 (Pa.Super.2009). In viewing the totality of the circumstances, the officer's training and experience should be considered. See Liddie, supra.
In the case sub judice, Officer Dever, who is an eleven-year veteran of the police force, observed Appellant's vehicle strike a parked vehicle and subsequently run a stop sign. Despite the fact the officer followed Appellant's vehicle with his cruiser's lights and sirens activated, Appellant did not stop his vehicle; but rather, he continued to drive until he came to a driveway at the rear of 437 and 439 Market Street. Officer Dever approached the driver's side window of Appellant's vehicle and detected a strong odor of alcohol emanating from Appellant's breath, his eyes were blood shot, and his speech was slow and slurred. Sitting in the front console's cup holder, Officer Dever observed a green bottle. Based on the color of the bottle and the cap, as well as his training and experience, Officer Dever believed the bottle was a bottle of Heineken beer, which is an alcoholic beverage. Officer Dever did not immediately seize the bottle of beer; however, after Appellant staggered and almost fell in exiting his vehicle, Officer Dever concluded Appellant was under the influence of alcohol, and he placed Appellant under arrest. A search of Appellant's person incident to the arrest revealed a valid prescription bottle of Oxycodone pills. At this point, Officer Dever went inside of Appellant's Chevrolet Blazer and seized the unopened bottle of Heineken beer, which Officer Dever had observed previously.
Based on the totality of the circumstances, we conclude the incriminating nature of the Heineken beer bottle was immediately apparent. See Turner, supra. We find no merit to Appellant's argument that "[a]n unopened beer bottle is not inherently incriminating in a DUI case." Appellant's Brief at 10. Here, the bottle, which Officer Dever recognized as containing an alcoholic beverage, was found in an area accessible to Appellant (the driver), and in fact, it was sitting in the front drink holder. Whether Appellant had already opened the beer bottle and the cap was just sitting on the bottle or whether Appellant had not yet opened the bottle but apparently intended to do so as it was sitting in a "ready position," the incriminating nature of the bottle was immediately apparent under the totality of the circumstances. See Turner, supra.
Finally, with regard to the third-prong of the plain view doctrine test, whether Officer Dever had a lawful right of access to the initial, unopened beer bottle,
Having determined that all three prongs of the plain view doctrine test have been met, we conclude the trial court did not err in denying Appellant's motion to suppress the three beer bottles recovered from his vehicle. Accordingly, we affirm.
Affirmed.