Com. v. Layer, S.

J-E03002-24                     

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 SAQUANA TAWANE LAYER                     :   No. 1489 MDA 2022

              Appeal from the Order Entered October 13, 2022
  In the Court of Common Pleas of York County Criminal Division at No(s):
                         CP-67-CR-0005925-2021


BEFORE: LAZARUS, P.J., BOWES, J., OLSON, J., KUNSELMAN, J., NICHOLS,
        J., MURRAY, J., KING, J., BECK, J., and LANE, J.

DISSENTING OPINION BY BOWES, J.:                       FILED: JUNE 25, 2025

      I agree with my learned colleagues that the police officers in this matter

were justified in performing a protective sweep of the upper floor of the house.

However, I find that the Majority misapplies the law pertinent to plain view as

it relates to protective sweeps, and therefore erroneously affirms the trial

court’s order granting suppression. As such, I respectfully dissent.

      The Majority accurately and cogently recites the background of this

case, so I need not repeat it at length.      I would only recount that after

beginning the process of arresting Hightower on the front porch of the

residence, officers performed a protective sweep of the upstairs master

bedroom of the house. The door to the bedroom could not be fully opened so

as to be flush with the wall, since the dresser in question was behind it. See

Defendant’s Hearing Exhibit 6. Therefore, to ascertain whether someone was

hiding in the corner of the room behind the door, Officer Fouad was required
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to step into the room and partially pull the door closed so that he could look

behind it. See N.T. Suppression Hearing, 4/8/22, at 54, 60, 63-64. As he did

so, the top of the dresser was immediately present before him, in plain view

and close proximity. Id. at 81 (Officer Fouad testifying that the top of the

dresser was about the same height as his shoulders). From his vantage point,

without manipulation of any items, he saw (1) loose marijuana, (2) a box of

clear sandwich baggies, and (3) a stack of large resealable packets containing

cartoon depictions of anthropomorphic fruit, with bloodshot eyes, smoking

marijuana cigarettes. The bundle of resealable packets sat on the corner of

the dresser next to the hinge of the bedroom door, closest in point to where

any reasonable officer would look to see if someone was hiding behind the

door. See Majority Opinion, Appendix A (Defendant’s Hearing Exhibit 4). The

bits of marijuana leaf, while not particularly large, appeared vibrant yellow in

color and were close to the other contraband in the center of the dresser. Id.

(Defendant’s Hearing Exhibit 5).

      I next reiterate the salient legal principles. If supported by the certified

record, we are bound by a suppression court’s findings of fact.                See

Commonwealth v. Ross, 

 (Pa.Super. 2023) (citation

omitted).   “The suppression court’s conclusions of law, however, are not

binding on an appellate court, whose duty is to determine if the suppression

court properly applied the law to the facts.” 

 (citation omitted).

      It is well-settled that, since “[t]here can be no reasonable expectation

of privacy in an object that is in plain view,” there is no constitutional violation

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for “the warrantless seizure of an object when: (1) an officer views the object

from a lawful vantage point; (2) it is immediately apparent to him that the

object is incriminating; and (3) the officer has a lawful right of access to the

object.”   Commonwealth v. Heidelberg, 

 (Pa.Super.

2022) (en banc) (cleaned up). “To judge whether the incriminating nature of

an object was immediately apparent to the police officer, reviewing courts

must consider the totality of the circumstances. In viewing the totality

of the circumstances, the officer’s training and experience should be

considered.” 

 (cleaned up, emphasis added).

      This Court has defined a protective sweep as “a quick and limited search

of premises, incident to an arrest and conducted to protect the safety of police

officers or others.” Commonwealth v. Potts, 

 (Pa.Super.

2013). Consistent with that purpose, we have stated that a search for persons

“cannot be lengthy or unduly disruptive.” Commonwealth v. Crouse, 

 (Pa.Super. 1999).       Nonetheless, an officer conducting this

search is not required to avert his gaze from contraband visible from his lawful

vantage point. See Potts, 

 (concluding that “officers were

not required to ignore the marijuana they saw in [the a]ppellant’s bedroom

while conducting [a protective] sweep”).

      My colleagues and I agree that since the protective sweep was proper,

there is no dispute that Officer Fouad was in a “legal vantage point” when he

saw the alleged contraband, and thus the first prong of plain view is satisfied.

See Heidelberg, 

. Nonetheless, in affirming the trial court,

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the Majority maintains that “the search of the top of the dresser exceeded the

scope of a quick, cursory inspection for harmful items.” Majority Opinion at

18. It first asserts that there was insufficient evidence as to the incriminating

nature of the packing materials and marijuana flakes observed by Officer

Fouad.   Id. at 20.   The Majority specifically finds that the officer “did not

identify any incriminating characteristics of the de minimis specks pictured on

top of the dresser,” and further appears to deem inadequate the officer’s

assertion that the foil bags and sandwich baggies were used as drug packaging

materials without additional explanation.     Id.   Thus, it concludes that the

Commonwealth did not meet its burden of demonstrating that it was

“immediately apparent” to the officer that any of the objects were

incriminating, which is the second prong required to establish plain view. See

Heidelberg, 

.

      I, however, find the incriminating nature of the items observed on top

of the dresser to be readily apparent to a layperson, let alone a trained police

officer. To begin, the rubber-banded stack of large gelato foil bags did not

merely state “Lemon Cherry Gelato” on them with no indication of potential

purpose. Instead, as can be seen within Appendix A of the Majority opinion,

the packaging depicts in bright, vibrant colors cherry and lemon cartoon

characters holding lit marijuana cigarettes. Both of the fruits in question have

bloodshot eyes and are grinning.     Officer Fouad observed the stack within

inches of a box of clear sandwich baggies and marijuana detritus. He testified




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that based on his training and experience, these items are used as “packaging

for weed, for marijuana.”1 N.T. Suppression Hearing, 4/8/22, at 65.

       From these uncontroverted facts, I cannot agree with my learned

colleagues or the trial court that the officer exceeded the scope of the sweep

by observing these items. The evidence does not suggest that he engaged in

any “lengthy or unduly disruptive” search while performing the sweep. See

Crouse, 

. Nor is there any support for the contention that

Officer Fouad’s observations entailed closely looking at the dresser in a way

that exceeded the scope of the protective sweep.          With respect to the

resealable foil bags, these were not small packages that would require any

prolonged viewing to see. Indeed, they are strikingly colorful and substantially

larger than the wallet upon which they were partially stacked. See Majority

Opinion, Appendix A (Defendant’s Hearing Exhibit 4). Concerning the loose

marijuana, while certain photographs of the dresser from a distance made it

difficult to discern the specks, Officer Fouad was clear in his testimony that

his point of view at the time of the sweep was not as far away as the

perspective in most of the photos. Rather, he was close to the dresser, the

top of which was roughly at shoulder height. See N.T. Suppression Hearing,

4/8/22, at 66, 81.
____________________________________________


1 In its substituted brief, the Commonwealth does not contest the trial court’s

finding that Officer Fouad was incredible with respect to observing cash in the
partially open top dresser drawer. See Commonwealth’s substituted brief at
10 n.1. Based on this, and consistent with the Majority’s analysis as to that
issue, I do not factor this piece of evidence in considering whether the ensuing
search warrant was adequate.

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      To the extent the Majority’s holding suggests that items of a certain

small size must necessarily be excluded if seen during a protective sweep,

despite actually being observed, I find no basis for that in the law.         In

considering if an officer exceeded the scope of a protective sweep, the

question is whether any search was “lengthy or unduly disruptive” or

potentially within areas outside of “living spaces.” See Crouse, 

. Excessiveness does not hinge on the dimensions of the object being

observed, but rather the impropriety of the officer’s actions. I believe that

the Majority’s interpretation of the plain-view doctrine would unreasonably

require a police officer who sees drug-packing items in plain view to close his

eyes and disregard other incriminating items nearby simply because of their

size, despite a dearth of evidence of a lengthy search. I cannot countenance

such a restrictive interpretation.

      As an additional part of its decision, the Majority makes it a point to

assert that the resealable bags and box of sandwich baggies are not illegal to

own, and thus their presence on a bedroom dresser did not offer justification

for the subsequently obtained search warrant. See Majority Opinion at 19-20

(relying on Crouse). While it is true that one may legally possess those items,

that is not dispositive. Instead, the issue is whether the objects on the dresser

collectively were immediately incriminating.

      My reading of Crouse supports this notion and, in my opinion,

undermines the Majority’s position.     In Crouse, state police performed a

protective sweep of a bedroom while executing an arrest warrant.           While

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scanning a bedroom for weapons, a trooper “saw a smoking pipe in plain view

on the night stand” and seized it.    See Crouse, 

. In the

opinion denying Crouse’s motion to suppress, the trial court described the

contraband as a “marijuana pipe.” 

 On appeal after conviction, this Court

concluded that the sweep did not violate Crouse’s rights and affirmed the

finding that the pipe was in plain view. 

; 

 (“Moreover, the

. . . sweep of the second-floor area was limited to ‘living spaces.’ There is no

evidence of record that either the scope or duration of the search was

excessive.”).

      As in Crouse, Officer Fouad performed a protective sweep of a bedroom

while executing an arrest warrant. Even assuming, arguendo, that he did not

see the marijuana flakes, he did observe immediately apparent drug

paraphernalia, in this case the large, colorful foil bags and a box of clear

sandwich baggies.      These items are not illegal to own, as my learned

colleagues highlight, but neither was the smoking pipe possessed by Crouse

and seized during that sweep. The illegality of possessing the pipe arose from

its alleged illegal use, not its inherent nature. See, e.g., In re Firearms,

Eleven, 

 (Pa.Super. 2007) (“Derivative contraband is

property innocent by itself, but used in the perpetration of an unlawful act.”

(citation omitted)).

      As this Court has repeated, “even a combination of innocent facts, when

taken together, may warrant further investigation by the police officer.”

Commonwealth v. Metz, 

, 98-99 (Pa.Super. 2025) (citing

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Commonwealth v. Rogers, 

 (Pa. 2004)). Here, the proximity

of the marijuana detritus and the stack of foil bags and clear sandwich baggies

clearly revealed the incriminating nature of these objects.       Stated another

way, no further investigation was required because the marijuana flakes were

in plain view right beside the legal bags and packages, with each reinforcing

the nature of the other as furthering an illicit purpose. It is irrelevant that the

bags themselves were lawful to own, and it is not dispositive if the marijuana

flakes, had they been observed by themselves, were not immediately

identifiable as incriminating. Therefore, in the same way this Court upheld

the seizure of the smoking pipe in Crouse, I believe we likewise must find

that Officer Fouad properly and immediately ascertained the incriminating

nature of the items on the dresser, without an excessive search.2

       In its next reason for affirmance, the Majority contends that the search

was outside the bounds of plain view during a protective sweep because there

was a lack of testimony relating to Officer Fouad’s training and experience to

link the items to drugs or contraband.           See Majority Opinion at 20-22.

Specifically, my esteemed colleagues state that “the Commonwealth failed to
____________________________________________


2 Along that same line, I have no trouble concluding that the Commonwealth

satisfied the third prong of plain view, concerning the officer’s lawful right to
access the item. This is due to Officer Fouad’s unexpectedly seeing the
purported contraband from a legal vantage point after Hightower’s arrest, and
the contraband’s incriminating nature being immediately apparent to him.
See, e.g., Commonwealth v. Smith, 

 (Pa.Super. 2022)
(“Where police officers observe incriminating-looking contraband in plain view
. . . from a lawful vantage-point, the lack of advance notice and opportunity
to obtain a warrant provides the officers with a lawful right of access to
seize the object in question.”).

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establish how it was immediately apparent to Officer Fouad that the barely

visible specks were marijuana and that the gelato foil bags were drug

packaging materials based on the officer’s police training.” Id. at 21. In so

doing, the Court relies upon, inter alia, Commonwealth v. Randolph, 

 (Pa.Super. 2016) (holding that an officer’s bare “claim of

‘knowledge and experience’ was an empty phrase that failed to tilt the scales

toward probable cause” (citation omitted)).

      I find this position unavailing because, regardless of the record

testimony as to Officer Fouad’s training and experience, none of it is necessary

for a finding of probable cause supporting plain view.         Our High Court

specifically elucidated that such evidence is merely one factor to be

considered under the circumstances. See Commonwealth v. Thompson,

 (Pa. 2009) (considering whether external factors,

beyond the officer’s training and experience, supported the notion of probable

cause, including time of day of the seizure, the location, and the fact that the

search was to be conducted in an area that was considered to be high crime).

As we acknowledged in Randolph, “because experience is only ‘a relevant

factor,’ there may be occasions where [it] is not critical to the probable cause

calculus.” Randolph, 

. Accordingly, it is just one component

of the “totality of the circumstances” this Court is required to consider in

assessing plain view and the officer’s determination of whether an object is

incriminating. See Heidelberg, 

.




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       Moreover, there was more than a bald assertion of Officer Fouad’s

training and experience in this case. While I do not dispute that testimony

concerning this topic during the suppression hearing was relatively scant, I

note that there was more information included in the affidavit of probable

cause contained within the record. See Commonwealth’s Hearing Exhibit 1.

Therein, the officer noted that, in addition to his three years as a police officer,

he was sworn as a county detective and served as a member of the unit

responsible for investigating gun violence in high crime areas. See Application

for Search Warrant and Authorization, 11/3/21, at unnumbered 3.                The

affidavit also stated: “It is common in this officer’s training and knowledge

that those involved in drug sales store additional quantities of drugs, proceeds

of drug sales, [and] firearms to protect themselves in the course of their illicit

trade.” 

 Accordingly, I would find this evidence to be more than the bald

“claim of knowledge and experience” equivalent to the “empty phrase” that

has been discounted in the past by this Court. See Randolph, 

.

       I also find this case to be distinguishable from Randolph, relied upon

by my colleagues. There, the officers in question obtained a search warrant

to search a box welded to the undercarriage of a pickup truck. The trial court

granted suppression of the items found therein.             This Court affirmed,

concluding that the Commonwealth failed to establish a sufficient nexus

between the officer’s experience and his suspicion that there would be drugs

and weapons inside the box, particularly when a police K-9 did not alert while

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sniffing that general area of the truck. In particular, we emphasized the lack

of testimony connecting the officer’s training and experience to the welded

box being searched. We also noted that no other external factors worked to

establish probable cause. Randolph, 

 (discussing how the

Commonwealth asserted “an unusual set of circumstances, but not enough for

a search warrant, because they did not create a ‘fair probability’ that

contraband or evidence of crime would be found inside the hidden

compartment”).

      There is a critical difference between Randolph and this matter. The

welded box, though uncommon, did not have any of the inherent indicia of

containing contraband or weapons. It was simply an unmarked container. In

the case sub judice, however, the foil baggies, box of sandwich baggies, and

specks of marijuana were all indicative of drug trafficking, especially when

considering that they were located in close proximity in a bedroom of a house

where Hightower had been hiding to elude arrest under an active warrant.

Unlike in Randolph, Officer Fouad’s observations of the items atop the dresser

created a “fair probability” that other contraband or evidence of drug

trafficking would be located within the household, thus supporting the search

warrant. 

      In sum, I would hold that Officer Fouad’s observation of the marijuana

and packing materials on the dresser while he was performing a protective

sweep was proper under the plain-view doctrine and, consequently, the




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evidence obtained from execution of the search warrant was not excludable

as fruit of the poisonous tree.3

       Since I find that the trial court erred in suppressing the items ultimately

seized from the residence, I must dissent.



       Judge Olson, Judge King, and Judge Beck join this Dissenting Opinion.




____________________________________________


3 This would include the vehicle key fob suppressed by the trial court in co-

defendant Hightower’s case, which was seized while law enforcement
executed the initial search warrant herein.     As the Majority rightfully
acknowledges, “the issue of the legality of the [subsequent] warrants is
controlled by this Court’s disposition of the arguments concerning the
protective sweep and plain view doctrine.” See Majority Opinion at 5 n.2.

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