MEMORANDUM
McLAUGHLIN, J.
Darnell
Harold Kellam appeals from the order denying his Post
Conviction Relief Act ("PCRA") petition.
See 42 Pa.C.S.A. §§ 9541-9546. Kellam
argues his trial counsel was ineffective for failing to
successfully argue his motion to suppress, and that he is
entitled to relief pursuant to Commonwealth v
Alexander, 243 A.3d 177 (Pa. 2020). We affirm.
In
early 2017, the police stopped Kellam's automobile for a
violation of the motor vehicle code and searched it without a
warrant. They thereafter charged Kellam with persons not to
possess firearms, firearms not to be carried without a
license, and possession with intent to deliver
(heroin).[1]
Before
trial, Kellam filed a motion to suppress the evidence. The
court held a hearing in June 2017. It later summarized the
evidence presented at the hearing as follows:
At the time of [Kellam's] arrest [on February 10, 2017],
[Officer Joshua] Bell had over five years of experience as a
law enforcement officer with the Williamsport Bureau of
Police, having joined the Bureau in August of 2011. Bell had
additional law enforcement experience prior to his tenure
with the Williamsport police, including narcotic agent
training through the Attorney General's office and
significant experience with narcotic interdiction policing.
On February 10, 2017, Bell was operating a marked patrol car
and was patrolling the area of Campbell Street and High
Street when he observed a black Nissan Altima travelling
south on Campbell Street. Bell observed that the vehicle was
equipped with heavy window tint which prevented him from
observing the interior of the vehicle. Bell recognized that
the color, make, and model of the car, along with the heavy
window tint, matched the description of a vehicle that a
confidential informant had previously indicated was involved
in trafficking heroin from Philadelphia to Williamsport. The
confidential informant who shared this information with Bell
had made a number of controlled purchases for Bell in the
past during his narcotic interdiction efforts. Bell's
prior interdiction efforts had a strong record of
corroborating the information obtained from this informant.
Bell effected a vehicle stop due to the heavy window tint on
the vehicle in the area of Market Street and Little League
Boulevard. Upon talking with [Kellam] and collecting
[Kellam's] license, vehicle registration, and insurance,
[Bell] verified that [Kellam] was the owner of the vehicle,
and that the area of registration was Philadelphia.
While Bell was speaking to [Kellam] from outside of the
driver's side window, Bell's attention was drawn to
several rubber bands hanging from the windshield wiper
control arm. Bell recognized from his experience in narcotics
trafficking investigations that these rubber bands were often
used to bundle large amounts of money, and that in his
experience, a vehicle control arm is a common location for
drug traffickers to keep such rubber bands.
Bell later testified that he had encountered rubber bands
fashioned this way in vehicle stops that have led to arrests
between eight and ten times prior to his encounter with
[Kellam] in the present case.
When Bell asked [Kellam] what the rubber bands were for, he
responded that he just "had them," and that Bell
was the first officer who ever asked him about the rubber
bands. Bell asked [Kellam] where he was coming from, to which
[Kellam] responded that he had been visiting family. Bell
asked [Kellam] where his family lived, and [Kellam] responded
"Louisa." Motor Vehicle Recording (MVR) at 4:09.
Bell asked [Kellam] what block of Louisa his family lived on,
and [Kellam] responded, "Right there where everything be
happening." Id. at 4:18. Bell recognized the
area [Kellam] was referring to as the area colloquially known
as the "400 block," an area known for its high
criminal drug activity. Bell asked [Kellam] for confirmation,
whether he was talking about the 400 block, and [Kellam]
confirmed it. Id. at 4:21.
Bell returned to his patrol car with [Kellam's] license
and vehicle documentation, and proceeded to contact county
control to conduct a criminal history inquiry of [Kellam]. At
this time, another officer with the Williamsport Bureau of
Police arrived at the scene. Dispatch advised Bell that
[Kellam] had been arrested multiple times in the past several
years for firearms violations and narcotics violations. Bell
returned to [Kellam's] vehicle and asked [Kellam] to step
out of the vehicle. [Kellam], Officer Bell, and the second
officer relocated to a space in between the two marked patrol
cars.
Bell proceeded to advise [Kellam] that . . . he was aware of
[Kellam's] criminal history, and made [Kellam] aware of
his concern that [Kellam] had either firearms or narcotics on
his person or in his vehicle. Bell asked [Kellam] if he was
in possession of any narcotics or firearms either on his
person or in his vehicle, and [Kellam] responded that he was
not. Bell then asked [Kellam], "Alright, is there any
issue with me looking?" while pointing at [Kellam's]
vehicle, and [Kellam] replied, "Nope." MVR at
18:35.
Taking [Kellam's] response as consent to perform a
vehicle search, Bell began walking towards the passenger
compartment of [Kellam's] vehicle. When [Kellam] asked
Bell if he could return to his vehicle, Bell directed
[Kellam] to stand next to the second officer on the scene
while he performed the search. As Bell continued to approach
the driver door of [Kellam's] vehicle,
[Kellam] said, "Oh, you're gonna check the
car?" to which Bell responded, "Yeah." MVR at
18:40.
During the search, Bell observed that [Kellam] was in
possession of three cellular phones, which he recognized as
an additional indicia of drug sale activity. Bell also
observed that the headliner of the vehicle appeared as though
it had previously been pulled away from its corresponding
connection point with the roof of the vehicle. Bell knew from
previous narcotics investigations that the inside of a
vehicle's headliner is a common location to conceal
contraband.
Finally, Bell exited the driver's side door of the
vehicle, walked around the vehicle, and began searching via
the passenger's side door. Bell observed that part of the
panel of the center console was loose and appeared to have
been previously removed. Bell pulled on the panel slightly,
causing it to fall off. Concealed under the air vent, Bell
located a firearm and identified its serial number. Dispatch
advised Bell that the firearm, a .40 caliber Ruger pistol,
had been reported stolen out of Milton, Pennsylvania. In the
same area where he located the pistol, Bell also found a
green bag containing a clear sandwich bag, which Bell
recognized as being commonly used as a distribution bag for
controlled substances. Bell proceeded to take [Kellam] into
custody.
Once in custody, a search of [Kellam] incident to arrest
yielded three blue wax bags of heroin in [Kellam's] left
sock, $1,100 concealed in [Kellam's] underwear, an
additional $125 in [Kellam's] pockets, and packages of
black rubber bands often used to bundle heroin for sale in
[Kellam's] shoe.
Commonwealth v. Kellam, No. 1149 MDA 2018, 2019 WL
3021156, at *2- 4 (Pa.Super. 2019) (unpublished memorandum)
(quoting Trial Court Opinion and Order, 7/18/17, at 1-5).
The
court denied the suppression motion, and, following a bench
trial, convicted Kellam of the above charges.[2] The court
sentenced him to five to 10 years' incarceration.
Kellam
filed a direct appeal, arguing the court erred in denying his
suppression motion because Officer Bell had lacked probable
cause to search his vehicle. Kellam argued the vehicle stop
was based only on the color, make, and window tint of his
vehicle, and its Philadelphia registration, "a city of
millions within three hours of Williamsport."
Kellam's Direct Appeal Brief at 12. Kellam also argued
that Officer Bell had failed to testify regarding the details
of the confidential informant's controlled drug buys, and
that Kellam had never told Officer Bell which block of Louisa
Street he was coming from. Kellam further argued that common
rubber bands are not indicative of criminal activity, and
that Officer Bell had not testified as to whether any of
Kellam's previous arrests had resulted in convictions.
We
affirmed in July 2019. We applied the standard announced in
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014)
(opinion announcing judgment of the Court) - that the police
needed only probable cause to search a vehicle without a
warrant, because the inherent mobility of an automobile
creates exigent circumstances. Kellam, 2019 WL
3021156, at *2. We affirmed the court's conclusion that
probable cause had existed, based on the following:
Specifically, a credible informant alerted Officer Bell to
illegal narcotics activity being conducted by a vehicle
fitting the description of the one being operated by
[Kellam]. In addition, Officer Bell observed indications of
narcotics trafficking, such as rubber bands hanging on the
steering column, heavily tinted windows, and the presence of
multiple cell phones in the vehicle. Also, [Kellam] told
Officer Bell that he was coming from Louisa Street, an area
which is known as a narcotics trafficking area, as well as
for "officer safety issues." Finally, Officer Bell
requested a
criminal history check on [Kellam], which returned
information
...
