COMMONWEALTH OF PENNSYLVANIA v. TIMOTHY OLIVER BARR II
No. 2347 EDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
SEPTEMBER 25, 2020
2020 PA Super 236
BENDER, P.J.E.
Appeal from the Order Entered August 2, 2019 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000279-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*
OPINION BY BENDER, P.J.E.: FILED SEPTEMBER 25,
This is a Commonwealth appeal from the trial court‘s order granting Appellee‘s, Timothy Oliver Barr II, motion to suppress and habeas corpus petition (“habeas petition”). In granting Appellee‘s suppression motion, the trial court held that the odor of marijuana no longer provides police with probable cause to search a motor vehicle from which the odor emanates because a substantial number of Pennsylvania citizens can now consume marijuana legally, calling into question the so-called
The Commonwealth charged Appellee with person not to possess a firearm,
FINDINGS OF FACT
- On November 7, 2018, at approximately 12:30 A.M., Trooper Edward Prentice and Trooper Danielle Heimbach of the Pennsylvania State Police, Fogelsville Barracks, Troop M, were on routine patrol in full uniform and in a marked police unit on Emaus Avenue in the area of the Liberty Park at Allentown apartment complex, Allentown, Lehigh County, Pennsylvania.5 At that time, Trooper Prentice observed a silver Chrysler 300 sedan making a U-turn in the Liberty Park at Allentown apartment complex on Allenbrook Drive, and then proceeding east on Emaus Avenue. Trooper Prentice turned his cruiser around and decided to follow the vehicle.6
- The subject vehicle drove eastbound on Emaus Avenue and made a left onto Devonshire Road/Mack Boulevard, Allentown, Lehigh County. Trooper Prentice noted that the vehicle was traveling at a fast rate of speed. However, the vehicle slowed down prior to approaching an overpass on which the vehicles are constrained to pass one at a time. Trooper Prentice and Trooper Heimbach observed that the subject vehicle failed to stop at the solid white stop line on the road at the stop sign controlling the single lane railroad overpass at Mack Boulevard and South 8th Street, Allentown, Lehigh County, Pennsylvania.7 Consequently, observing this motor vehicle violation, a traffic stop was effectuated.
The subject vehicle pulled over immediately. - As Trooper Prentice was “coaching” or training Trooper Heimbach, Trooper Heimbach took the lead and exited the police cruiser to investigate.8 Trooper Heimbach approached the passenger side of the vehicle to speak with the occupants. As she approached, she smelled the odor of burnt marijuana. The driver of the vehicle was a white female, later identified as Teri Barr, [Appellee]‘s wife. [Appellee] was seated in the front passenger seat and was speaking with Trooper Heimbach.9
- After Trooper Prentice completed his tasks in the police cruiser, he approached the vehicle on the driver‘s side. Upon approach, Trooper Prentice could smell the odor of both burnt and raw marijuana through the open window of the vehicle.10 At that time, Trooper Prentice asked the driver to exit the vehicle so that he could interview her and confirm that she was not under the influence and incapable of safe driving. He stepped back to make room for her egress from the vehicle. When Trooper Prentice overheard the passenger arguing with Trooper Heimbach and stating[,] “no one is getting out of this fucking car,” Trooper Prentice walked back to the driver‘s side door. The argument ensued for approximately two (2) to three (3) minutes, until members of the Allentown Police Department arrived as backup.11 When members of the Allentown Police Department arrived, [Appellee]‘s attitude changed and he became more cooperative. He exited the vehicle, along with the other occupants. They were patted down for officer safety.
- Trooper Prentice advised the occupants of the vehicle that he could search the vehicle pursuant to Commonwealth v. Gary, ... 91 A.3d 102 ([Pa.] 2014), as the odor of marijuana provided them with probable cause. At that time, [Appellee] presented Trooper Prentice with a medical marijuana identification card that allows him to
possess and ingest medical marijuana pursuant to this license.12 Trooper Prentice admitted that while he knew that green leafy marijuana was legal for medical purposes, he was not familiar with how a person ingests green leafy medical marijuana.13 Also, Trooper Prentice was under the misconception that medical marijuana, when ingested through a vaping pen, has no odor.14
- Trooper Heimbach and Trooper Prentice then conducted a probable cause search of the vehicle based on the odor of marijuana that they detected therein. The search of the vehicle yielded marijuana “shake”15 throughout the cabin area, as well as a sealed Ziploc plastic bag containing marijuana16 between the front passenger seat and the center console. The marijuana weighed .79 grams. The Ziploc plastic bag did not have any markings or barcodes on it that would be indicative of coming from a medical marijuana dispensary.17 Trooper Prentice indicated that the odor of burnt marijuana got stronger in the area of the center console of the vehicle.
- In addition, Trooper Prentice searched the rear of the vehicle. On the floor of the rear passenger compartment, tucked halfway under the front driver‘s seat, Trooper Prentice located a jacket with “OBH” markings on it rolled up in a ball. Therein, Trooper Prentice found a loaded black handgun, with one (1) bullet in the chamber and four (4) rounds in the magazine. Trooper Prentice believed the jacket to belong to [Appellee]. Consequently, Trooper Prentice advised the members of the Allentown Police Department to detain the three (3) occupants of the vehicle. Further search of the vehicle yielded an Apple logo baggie with new clear plastic baggies therein. These small baggies were located in the trunk of the vehicle. Trooper Prentice testified that they were consistent with the packaging of drugs for distribution,
as well as the baggie of marijuana found between the front passenger seat and the center console. - David Gordon, M.D., a retired heart and lung surgeon in the Lehigh Valley and an expert in the field of medical marijuana, is one of the pioneer physicians in Pennsylvania to assess patients and determine if they have a qualifying condition under the law to be prescribed medical marijuana. Dr. Gordon was the physician who made the recommendation that [Appellee] qualified for a medical marijuana card based on his underlying medical condition/diagnosis.
- Dr. Gordon explained that there is no distinguishable physical difference between the green leafy medical marijuana and regular marijuana purchased on the streets. Indeed, the chemical compositions are the same. Dr. Gordon further explained how a person lawfully ingests green leafy medical marijuana. He indicated that the green leafy marijuana is placed in a battery-operated vaping pen that heats up the marijuana without combustion, producing a vapor. A person then breathes in the vapors through the vaping pen. Dr. Gordon indicated it is a violation of regulations to smoke medical marijuana without a vaping pen, such as placing it into cigarettes or pipes.
- Dr. Gordon stated that there is no difference in odor of ingesting the medical marijuana when utilizing a vaping pen and the odor of smoking regular marijuana from an unlawful source.
- Dr. Gordon is familiar with the packaging of medical marijuana and explained that it can be dispensed in a plastic container similar to a pill bottle, which then has a plastic bag in it containing the medical marijuana. Dr. Gordon believed that the inner plastic bag does contain some marking on it to reflect that it was purchased at a medical marijuana dispensary, but he was not certain. Dr. Gordon advises all of his patients to maintain their receipts to evidence what was purchased.
- As of now, there are more than 143,000 patients in Pennsylvania legalized to obtain, possess, and ingest medical marijuana.
- Dr. Gordon opined that there is a clear disconnect between the medical community and the law enforcement community with respect to the legalization of marijuana.
Trial Court Opinion (TCO), 8/2/19, at 2-8 (citations to hearing exhibits omitted).
The Commonwealth now presents the following questions for our review:
I. Did the trial court err in granting [Appellee]‘s motion to suppress the drugs and firearm seized by Pennsylvania State Police where the search of the vehicle in which [he] was a passenger was supported by probable cause?
II. Did the trial court err in granting [Appellee]‘s [habeas petition] with regard to Count 3, [PSAM,] at the same time it granted [his] [m]otion to [s]uppress and where the Commonwealth established that it was more probable than not that [he] possessed the marijuana in violation of the Controlled Substances Act,
35 P.S. § 780-113(a)(31)(i) ?
Commonwealth‘s Brief at 4.
I
The Commonwealth‘s first claim presents a multipart argument that the trial court erred in determining that the police lacked probable cause to conduct a warrantless search of Appellee‘s vehicle.3
We begin by noting that where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant‘s witnesses and so much of the evidence for the prosecution as read in
the context of the record as a whole remains uncontradicted.
Commonwealth v. DeWitt, 608 A.2d 1030, 1031 (Pa. 1992) (citations omitted).
Both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures by police in areas where individuals have a reasonable expectation of privacy. An expectation of privacy exists if a person has a subjective expectation of privacy that society is willing to recognize as legitimate and reasonable. Where there exists a reasonable expectation of privacy, Article I, Section 8 and the Fourth Amendment generally require police to obtain a warrant, issued by a neutral and detached magistrate and founded upon probable cause, prior to conducting a search or seizure of a person and/or a person‘s property, unless one of the few well delineated exceptions apply. One such exception is the automobile exception, adopted by this Court in Gary, which permits the search and/or seizure of a motor vehicle if supported by probable cause—no separate finding of exigent circumstances is required. Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa. 2017) (some citations omitted).
In the case sub judice, it is undisputed that the automobile exception applies if the police possessed probable cause to believe that a search of the vehicle would uncover evidence of a crime. “In determining whether probable cause exists, we apply a totality of the circumstances test.” Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009). “Probable cause is a practical, nontechnical conception: it is a fluid concept-turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules.” Commonwealth v. Glass, 754 A.2d 655, 663 (Pa. 2000) (cleaned up).
The Commonwealth first asserts that it has long been the case that the odor of marijuana is alone sufficient to demonstrate probable cause to conduct a search. Commonwealth‘s Brief at 14-15. Second, the Commonwealth argues that, contrary to the trial court‘s analysis, this long-held rule has neither been altered by intervening legislation, namely, the Medical Marijuana Act (“MMA”),
Prior Precedent
The Commonwealth first argues that prior precedent firmly establishes that the odor of marijuana, alone, provides probable cause to search a vehicle. Appellee partially concedes this point. See Appellee‘s Brief at 12-13 (stating that in Commonwealth v. Stoner, 334 A.2d 633 (Pa. Super. 1975), “the [C]ourt adopted the rationale in United States v. Ventresca, 380 U.S. 102 (1965)[,] and Johnson v. United States, 333 U.S. 10 (1948)[,] that an odor may be sufficient to establish probable cause for the issuance of a search warrant[,]” and that “Pennsylvania courts held thereafter that the plain smell of marijuana alone was sufficient to establish probable cause due to marijuana‘s distinctive odor and illegal status”). Appellee rejects the notion that the Stoner Court adopted a per se legal rule. However conceived, Appellee maintains, and the trial court agreed, that the plain smell doctrine was contingent upon the previously universal factual premise that the possession of marijuana was always and necessarily illegal; i.e., the detection of marijuana by smell was previously always evidence of criminal activity. They argue that the MMA changed that universal factual assumption in Pennsylvania and, applying the reasoning of Hicks, the odor of marijuana is no longer alone sufficient to establish probable cause to believe criminal activity is afoot.
Initially, we agree with the Commonwealth that prior cases in this Commonwealth established that the odor of marijuana may be alone sufficient to establish probable cause for a search, as conceded by Appellee. We need not belabor that point; however, clarification of the nature of that rule is warranted. The Commonwealth seems to further argue that the odor of marijuana is always sufficient to establish probable cause under the prior precedent, suggesting the existence of a per se rule of law that applies regardless of any other circumstances known to an officer prior to his conducting a search. We disagree with this conception of the plain smell doctrine as a per se legal rule.
To the contrary, courts have routinely held that the odor of marijuana is a factor for consideration in a determination of the existence of probable cause, a factor that was dispositive, or almost always controlling, in the prior factual context of the substance‘s universal illegality. As this Court stated in Commonwealth v. Trenge, 451 A.2d 701 (Pa. Super. 1982), “[a]t least since the Supreme Court of the United States decided Johnson v. United States, 333 U.S. 10 ... (1948), it has been clear that probable cause may be established” by the odor of marijuana alone. Trenge, 451 A.2d at 706 (emphasis added). In Johnson, the Supreme Court explained:
If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.
Johnson, 333 U.S. at 13 (emphasis added). Justice Jackson did not articulate a per se rule regarding the odor of obvious contraband in Johnson. Instead, he clearly expressed that the odor of a “forbidden” substance is a factor that “might” constitute evidence of the “most persuasive character” when considered in the totality-of-the-circumstances test for probable cause. Id.
In Stoner, this Court explicitly adopted the reasoning of Johnson, stating that the “Supreme Court of the United States has held that an odor may be sufficient to establish probable cause for the issuance of a search warrant.” Stoner, 344 A.2d at 635 (citing Johnson) (emphasis added).
This is assuming, of course, yet another factual premise upon which all plain smell cases are contingent—that the odor in question is emanating from the location sought to be searched. See, e.g., Commonwealth v. Scott, 210 A.3d 359, 365 (Pa. Super. 2019) (holding “the odor of burnt marijuana and small amount of contraband recovered from the passenger compartment of the vehicle did not create a fair probability that the officer could recover additional contraband in the trunk” because, citing the suppression court in that case, the “officers could only smell burnt marijuana as a result of [the defendant‘s] having just smoked a blunt in the car and therefore they could not discern the odor of fresh marijuana that would lead them to reasonably believe additional narcotics had been concealed within the vehicle”). While that factor is not at issue in this case, it further serves to demonstrate the absence of a per se rule giving police carte blanche authority to search based on the odor of marijuana despite any circumstances that might serve to undermine the otherwise strong inference of criminal activity that the odor typically implied. A per se rule undermines the very nature of the totality-of-the-circumstances test for probable cause, which is “a fluid concept-turning on the assessment of probabilities in particular factual contexts not readily, or even usefully, reduced to a neat set of legal rules.” Glass, 754 A.2d at 663 (emphasis added).
Thus, contrary to the Commonwealth‘s claim, there is no preexisting, per se rule that the odor of marijuana is always sufficient to establish probable cause to believe a crime is being committed. Rather, the existing rule, properly stated, is that the odor of marijuana may alone be sufficient to establish probable cause to search in particular factual contexts. In practical terms, historically, the circumstances wherein the odor of marijuana would not alone be sufficient to establish probable cause were necessarily rare or even nonexistent when marijuana was, in all or virtually all circumstances, illegal to possess. To the extent that the Commonwealth suggests a per se rule existed prior to, much less survived the MMA, and that the trial court erred by failing to mechanically follow that rule once it deemed credible that the odor had been detected by the police, we deem that aspect of its claim to be meritless. The trial court was free to weigh the inference of criminality implied by the odor of marijuana against other relevant facts known to the officers in determining whether they possessed probable cause to conduct the search.
MMA
Next, the Commonwealth contends that the MMA “did not legalize nor did it render possession or use of marijuana presumptively legal.” Commonwealth‘s Brief at 18. Thus, the Commonwealth argues that the “MMA merely constitutes one limited exception” to the Controlled Substance, Drug, Device, and Cosmetic Act
In Commonwealth v. Jezzi, 208 A.3d 1105 (Pa. Super. 2019), this Court described the interplay between the MMA and the CSA as follows:
This appeal involves the interplay of two public safety statutes; the first statute is the CSA, which describes five schedules of controlled substances.
35 P.S. § 780-104 . In outlining the Schedule I substances, the Act states:§ 780-104. Schedules of controlled substances
(1) Schedule I—In determining that a substance comes within this schedule, the secretary shall find: a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision. The following controlled substances are included in this schedule:
***
(iv) Marihuana.
35 P.S. § 780-104(1)(iv) (effective June 14, 1972).The second statute is the MMA, which states in its declaration of policy:
§ 10231.102. Declaration of policy
The General Assembly finds and declares as follows:
(1) Scientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance quality of life.
(2) The Commonwealth is committed to patient safety. Carefully regulating the program which allows access to medical marijuana will enhance patient safety while research into its effectiveness continues.
(3) It is the intent of the General Assembly to:
(i) Provide a program of access to medical marijuana which balances the need of patients to have access to the latest treatments with the need to promote patient safety.
(ii) Provide a safe and effective method of delivery of medical marijuana to patients.
(iii) Promote high quality research into the effectiveness and utility of medical marijuana.
(4) It is the further intention of the General Assembly that any Commonwealth-based program to provide access to medical marijuana serve as a temporary measure, pending Federal approval of and access to medical marijuana through traditional medical and pharmaceutical avenues.
35 P.S. § 10231.102(1)-(4) (emphasis added). In essence, the MMA creates a temporary program for qualified persons to access medical marijuana, for the safe and effective delivery of medical marijuana, and for research into the effectiveness and utility of medical marijuana. Id.;35 P.S. § 10231.301 . Significantly, the MMA does not declare that marijuana is safe and effective for medical use; instead, the MMA is a temporary vehicle to access the substance pending research into its medical efficacy and utility.35 P.S. § 10231.102(1)-(4) .Section 10231.303 of the MMA allows for the limited lawful use of medical marijuana, and pertinent to this case, Section 10231.304 emphasizes the unlawful use of medical marijuana:
§ 10231.304. Unlawful use of medical marijuana (a) General rule.—Except as provided in section 303, section 704, Chapter 19 or Chapter 20, the use of medical marijuana is unlawful and shall, in addition to any other penalty provided by law, be deemed a violation of the [CSA].
(b) Unlawful use described.—It is unlawful to:
(1) Smoke medical marijuana.
(2) Except as provided under subsection (c), incorporate medical marijuana into edible form.
(3) Grow medical marijuana unless the grower/processor has received a permit from the department under this act.
(4) Grow or dispense medical marijuana unless authorized as a healthy medical marijuana organization under Chapter 19.
(5) Dispense medical marijuana unless the dispensary has received a permit from the department under this act.
(c) Edible medical marijuana.—Nothing in this act shall be construed to preclude the incorporation of medical marijuana into edible form by a patient or a caregiver in order to aid ingestion of the medical marijuana by the patient.
35 P.S. § 10231.304 . Further, the MMA states: “The growth, processing, distribution, possession and consumption of medical marijuana permitted under [the MMA] shall not be deemed a violation of the [CSA]” and “[i]f a provision of the [CSA] relating to marijuana conflicts with a provision of [the MMA], [the MMA] shall take precedence.”35 P.S. § 10231.2101 . In other words, compliance with the MMA will not constitute a crime under the CSA. Id.
Jezzi, 208 A.3d at 1111–12 (footnotes omitted).
As established above, the plain smell doctrine is a specific application of the totality-of-the-circumstances test for probable cause, crafted in light of the previously universal fact of marijuana‘s illegality and its distinctive odor. The MMA has clearly altered the underlying factual context in which that probable cause test applies. See Amici Brief at 5 (“The logical nexus between smelling marijuana in a car and the likelihood of finding unlawfully possessed narcotics is not immune to the effects of time and changes in law; it is affected and altered by both.”). This much is true: marijuana is a prohibited substance under the CSA, despite the passage of the MMA.4 However, it is undisputed that a substantial number of Pennsylvania citizens may now possess and consume marijuana legally pursuant to the MMA.5 Previously, every instance in which marijuana was detected by smell indicated the commission of a crime. Soon, hundreds of thousands of Pennsylvanians will become potential lawful sources of that same odor. Thus, the strength of the inference of illegality stemming from the odor of marijuana has necessarily been diminished by the MMA in Pennsylvania.
First, in Commonwealth v. Handley, 213 A.3d 1030 (Pa. Super. 2019), the police responded to a report that Handley had an argument with a utility worker outside of his home, and that he had threatened to get a gun from inside the house. Id. at 1033. The worker also reported that he heard
“four or five gunshots” after Handley returned to his residence. Id. When police arrived, they detected “a strong odor of marijuana” coming from the house. Id. Handley did not respond when the officers knocked on his door. Id. Additionally, the police observed a firearm inside the house from their vantage point on the front porch, and they further discovered marijuana leaves and stems protruding from garbage bags that were outside the home. Id. at 1033-34. Based on this information, the police obtained a warrant to search the home. Id. at 1034. A subsequent search yielded “33 marijuana plants and numerous jars containing marijuana.” Id. Handley filed a suppression motion, which was denied.
On appeal, Handley argued that the police lacked probable cause to secure the search warrant. The Handley Court disagreed, stating, inter alia, that a “strong smell of marijuana emanating from a residence creates probable cause to procure a search warrant” and that “the odor of marijuana, in and of itself, was sufficient to support issuance of a warrant.” Id. at 1035 (citing Commonwealth v. Johnson, 68 A.3d 930 (Pa. Super. 2013) (hereinafter, “PA Johnson,” and Commonwealth v. Waddell, 61 A.3d 198 (Pa. Super. 2012))).
On first glance, Handley may appear to support the Commonwealth‘s position. However, under further scrutiny, it is easily distinguishable from the case sub judice. Although Handley was decided after passage of the MMA,
the search at issue in that case occurred several years prior.6 Thus, at the time the warrant in Handley was secured, there was no possibility that Handley lawfully possessed the marijuana detected by the investigating officers pursuant to the
Additionally, there were more circumstances known to
The Commonwealth also cites Scott, where police were patrolling in a high crime area when they stopped Scott‘s vehicle due to a malfunctioning brake light. Scott, 210 A.3d at 360-61. When the officer approached the vehicle, he smelled burnt marijuana, saw “smoke was still emanating from the vehicle,” and then further observed Scott “attempt to place a [marijuana] blunt” in the center console. Id. at 361 (emphasis added). The officer conducted a search of the passenger compartment and recovered the blunt and a small jar of marijuana. The officer then searched the trunk of Scott‘s vehicle, where he discovered an illegal firearm.
Similarly, in PA Johnson, which itself relied on Waddell, police received tips from two anonymous sources that the ultimately-searched trailer park home was being used for the sale of marijuana and prescription pills, and the sources gave a specific description of one of the female suspects. See PA Johnson, 68 A.3d at 931. When they arrived at the scene, police observed a woman who fit the provided description near the identified home. Id. at 932. When they approached the home, they detected the smell of burnt marijuana. Id. Based on those facts, the PA Johnson Court concluded that probable cause existed once the police detected the smell of marijuana. The PA Johnson Court did not state nor suggest that the smell of marijuana was alone sufficient to establish probable cause independent of the preceding tips and partial corroboration of those tips.
On appeal, Scott challenged only the search of his trunk, essentially conceding probable cause existed to search the passenger compartment. While presenting boilerplate law on the plain smell doctrine, the Scott Court correctly stated the standard that “an odor may be sufficient to establish probable cause[.]” Id. at 363 (quoting Stoner). It then cited the application of that rule in another case, which was just another rephrasing of the rule in Stoner, but from which the Commonwealth again attempts to construe a statement of a per se rule from a poorly-crafted recitation of boilerplate law that was not critical to the issue of probable cause in that case.8
Moreover, although Scott was stopped a few months after the passage of the
Next, in Commonwealth v. Batista, 219 A.3d 1199 (Pa. Super. 2019), this Court addressed the odor of marijuana‘s effect on probable cause determinations in light of the
On appeal, Batista claimed, inter alia, that “the smell of fresh marijuana can no longer serve as an element of probable cause in Pennsylvania” after passage of the
The [
MMA ] is a limited exception to [theCSA ]. Only a “grower/processor” or “dispensary“, as defined under theMMA , may “receive a permit to operate as a medical marijuana organization to grow, process, or dispense medical marijuana.”35 P.S. § 10231.601 . A grower is a “natural person, corporation, partnership, association, trust or other entity, or any combination thereof, which holds a permit from the Department [of Health] under this act to grow and process medical marijuana.”35 P.S. § 10231.103 .To receive a grower permit under the
MMA , a person must undergo an extensive application and permitting process through the Department. See35 P.S. § 10231.602 (requiring, among other things, full, financial disclosure of all backers; descriptions of responsibilities within the partnership or corporation; criminal background checks; statements of “good moral character[“;] title searches for the land use; and personal information for all investors).The number of authorized growers and processors who have completed that administrative process is currently very
small. The General Assembly has capped the number of permits for growers. “The department may not initially issue permits to more than 25 growers/processors.” 35 P.S. § 10231.616 .Given the extremely limited number of permits that the Department has issued, we hold that, when an officer smells fresh marijuana emanating from a building that is a reported grow-house there still exists a fair probability that the marijuana inside is illegal. Law enforcement still holds the power and the duty to investigate that probability.
Thus, Batista has failed to persuade us that enactment of the
Batista, 219 A.3d at 1205 (footnote omitted).
Contrary to the Commonwealth‘s claim that a per se, plain-smell rule exists, the Batista Court did not apply such a rule, instead characterizing the prior precedents as establishing the rule that the odor of marijuana may contribute to a finding of probable cause. Id. The Court considered whether the odor of marijuana, in conjunction with other circumstances, contributed to a finding of probable cause, and concluded that it did—a wholly unnecessary task if the odor of marijuana was alone sufficient to establish probable cause to search Batista‘s home.
The additional circumstances considered were both specific to the case and universal; specific in that the odor of marijuana, and its location, had directly corroborated a tip that marijuana was being illegally grown there, and universal in the sense that the Court deliberated on the likelihood that the detected marijuana might have complied in some sense with the
Here, there was no tip suggesting that Appellee or the other passengers in the vehicle were illegally using marijuana, and Appellee presented the officers with his
We conclude, therefore, that the post-
Hicks
Next, the Commonwealth argues that the trial court erroneously applied the reasoning of Hicks in granting Appellee‘s suppression motion. In Hicks, our Supreme Court held that possession of a concealed firearm by an individual in public is not sufficient to create a reasonable suspicion that the individual may be dangerous or committing a criminal offense, explicitly overruling this Court‘s longstanding decision in Commonwealth v. Robinson, 600 A.2d 957 (Pa. Super. 1991). Hicks, 208 A.3d at 947. Here, the trial court “applied” Hicks in determining “that the plain smell of marijuana alone no longer provides authorities with probable cause to conduct a search of a subject vehicle. As marijuana has been legalized in Pennsylvania for medical purposes, the plain smell of burnt or raw marijuana is no longer indicative of an illegal or criminal act.” TCO at 14-15 (emphasis added). The Commonwealth contends that Hicks is distinguishable because it was expressly limited to the possession of firearms, and that the rationale of Hicks cannot apply here because the possession of a concealed firearm is ostensibly not analogous to the possession of medical marijuana. Essentially, the Commonwealth maintains that possession of marijuana under the
In Hicks,
at approximately 2:30 a.m., a remote camera operator conducting live surveillance of a gas station and convenience store... notified police officers that a patron of the establishment was in possession of a firearm. According to the suppression court‘s factual recitation, the camera operator advised officers that the observed individual showed the firearm to another patron, put the firearm in his waistband, covered it with his
shirt, and walked inside the convenience store.
The observed individual was Michael Hicks. It later emerged that Hicks possessed a valid license to carry a concealed firearm. See
While responding police officers were en route, Hicks entered and exited the convenience store, then reentered his vehicle. Before Hicks could exit the parking lot, numerous police officers in marked vehicles intercepted and stopped Hicks’ vehicle. Believing that Hicks had moved his hands around inside the vehicle, Officer Ryan Alles drew his service weapon as he approached Hicks’ vehicle and ordered Hicks to keep his hands up.
Hicks, 208 A.3d at 922 (cleaned up).
The police conducted a Terry9 search and discovered a bag of marijuana in Hicks’ possession. Hicks sought to suppress the evidence based on the theory that the police lacked reasonable suspicion to conduct the Terry search merely because he was observed with a concealed firearm. The suppression court denied his motion, relying on Robinson, where the Superior Court held that possession of a concealed weapon in public creates a reasonable suspicion justifying an investigatory stop in order to investigate whether the person is
properly licensed (the “Robinson rule“). See Robinson, 600 A.2d at 960-61. After this Court affirmed the order denying suppression, our Supreme Court reversed, thereby overturning Robinson.
The Hicks Court began with an examination of the laws regulating the possession of firearms. The Court concluded that carrying a firearm in Pennsylvania is generally legal but subject to a few exceptions, one of which being a prohibition on carrying a concealed firearm without a license. Hicks, 208 A.3d at 926. Nevertheless, the court recognized that “there can be no doubt that a properly licensed individual who carries a concealed firearm in public engages in lawful conduct. Indeed, millions of people lawfully engage in this conduct on a daily basis.” Id. The Robinson rule, the Hicks Court reasoned, “characterizes the carrying of a concealed firearm as per se reasonable suspicion authorizing” a Terry stop “in order to investigate whether the person is properly licensed.” Id. at 928.
After a thorough review of
Although the carrying of a concealed firearm is unlawful for a person statutorily prohibited from firearm ownership or for a person not licensed to do so, see
18 Pa.C.S. §§ 6105 -06 , there is no way to ascertain an individual‘s licensing status, or status as a prohibited person, merely by his outward appearance. As a matter of law and common sense, a police officer observing an unknown individual can no more identify whether that individual has a license in his wallet than discern whether he is a criminal. Unless a police officer has prior knowledge that a specific individual is not permitted to carry a concealed firearm, and absent articulable facts supporting reasonable suspicion that a firearm is being used or intended to be used in a criminal manner, there simply is no justification for the conclusion that the mere possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal activity.
Id. at 936-37. Thus, the Hicks Court held that the Robinson rule violated the principles of the
We agree with the Commonwealth that the trial court‘s direct application of Hicks to the circumstances of this case constituted an abuse of discretion. First, as is obvious, the holding in Hicks could not directly apply because it concerned what constitutes reasonable suspicion of criminality justifying a Terry stop when possession of a concealed firearm is observed, not whether probable cause to search a vehicle exists based on the odor of marijuana alone. Moreover, even assuming the trial court merely adopted the reasoning of Hicks, the respective conduct is not sufficiently analogous to compel an identical result. The possession of a firearm is generally legal, with limited exceptions. The possession of marijuana, by contrast, remains generally illegal, but for the limited exception of lawful possession of medical marijuana pursuant to the
Thus, we simply cannot sustain the trial court‘s conclusion, based on Hicks, that because “marijuana has been
However, the reasoning in Hicks is not completely irrelevant here. While there is a legal distinction to be made between possession of marijuana and possession of a concealed firearm, the Hicks decision was not premised solely on the general legality of firearms. See Hicks, 208 A.3d at 945 (“The seizure at issue was not unconstitutional due to the statutory classification of Hicks’ license; it was unconstitutional because the police officers had no way of determining from Hicks’ conduct or appearance that he was likely to be unlicensed and therefore engaged in criminal wrongdoing.“). It remains a fact that police cannot distinguish between contraband marijuana and medical marijuana legally consumed by a substantial number of Pennsylvanians based on odor alone,10 just as police cannot determine from a person‘s possession of a concealed firearm that he or she is unlicensed to carry it concealed.
The Commonwealth argues that there is no way for law enforcement to determine whether someone is complying with the
To the extent that the Commonwealth implies that the
In any event, even if the
The element-or-defense test amounts to a “seize now and sort it out later” approach. This is antithetical to the foundational protections of the
Fourth Amendment . It casts too wide a net, with no regard for the number of law-abiding citizens ensnared within.
Hicks, 208 A.3d at 944. The Court further elaborated that “it is certainly the legislature‘s
One of the primary concerns when courts consider the constitutionality of a search or seizure is whether individualized suspicion is present.
In addition to the reasonableness of the search and seizure, the
Fourth Amendment generally requires the presence of individualized suspicion to justify a seizure. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000); .... The courts of this
Commonwealth and federal courts have recognized limited circumstances where the general rule does not apply. Commonwealth v. Mistler, 912 A.2d 1265, 1271 (Pa. 2006). No recognized exceptions apply in this case, and the Commonwealth presents no argument to that effect. As such, particularized suspicion was required to justify the search. In this regard, the Hicks Court instructs:
When many people are licensed to do something, and violate no law by doing that thing, common sense dictates that the police officer cannot assume that any given person doing it is breaking the law. Absent some other circumstances giving rise to a suspicion of criminality, a [search or] seizure upon that basis alone is unreasonable.
Here, ‘many people’ are licensed to consume marijuana under the
However, here, the trial court afforded the odor of marijuana no weight in its determination that police lacked probable cause to search Appellee‘s vehicle. That extreme view is not justified by the Hicks decision. The general illegality of marijuana under the
Other Factors Supporting a Finding of Probable Cause
In the Commonwealth‘s final suppression argument, it contends that, even assuming the odor of marijuana does not alone establish probable cause, it can still be a contributing factor to a finding of probable cause. As discussed above, we agree with this general statement of the
Assuming the trial court found the officers’ testimony entirely credible, it should have considered those factors, in addition to the odor of marijuana, in determining whether police possessed probable cause to search Appellee‘s vehicle. Unfortunately, and perhaps because the trial court afforded no weight to the odor of marijuana as a contributing factor to a finding of probable cause based on its misapplication or overstatement of Hicks‘s applicability here, the court failed to provide us with discrete credibility assessments relevant to the other potential factors affecting probable cause in its opinion.
For instance, the Commonwealth contends that Trooper Prentice essentially testified that Appellee‘s vehicle was stopped in a ‘high crime area.’ However, while we acknowledge the trooper testified that he had made many drug and gun arrests in the area of the stop, see N.T., 7/17/19, at 14, he did not offer an opinion as to whether that area was any more likely to produce gun and/or drug arrests than any other area. Thus, we cannot state that it is clear and uncontradicted from the record that the stop occurred in a high crime area, or simply in an area where Trooper Prentice has conducted arrests for common crimes. The trial court did not include this aspect of Trooper Prentice‘s testimony in the summary of its findings of fact, nor include it in its legal analysis. If this was because the court determined that Trooper Prentice‘s testimony did not establish that the stop occurred in a high crime area, it did not say so.
Similarly, the Commonwealth contends that Appellee‘s statements and related behavior preceding the search, in conjunction with the odor of marijuana, should have also been considered in the trial court‘s probable cause analysis. Although the trial court recounted those statements in its findings of fact, the court did not appear to consider them at all. If the court believed those statements did not contribute in any way to a potential finding of probable cause to suspect criminal activity, it failed to explain how it reached that conclusion. Nor did the trial court address the trooper‘s observation that Appellee‘s demeanor changed when backup arrived.
In sum, the factual record before us is inadequate to conclude whether police possessed probable cause to search Appellee‘s vehicle. While the odor of marijuana may contribute to a finding of probable cause, as possession of marijuana remains illegal generally, the odor alone does not imply individualized suspicion of criminal activity, and Appellee‘s presentation of an
Accordingly, we conclude that we must vacate the order granting suppression and remand for reconsideration of that motion by the trial court given the deficiencies in the court‘s opinion identified herein. We instruct the court that while it is not compelled by case law to find that probable cause exists solely on the basis of the odor of marijuana, that fact may, in the totality of the circumstances, still contribute to a finding of probable cause to believe the marijuana detected by the odor was possessed illegally. The court may consider Appellee‘s presentation of an
II
The Commonwealth also contends that the trial court erred when it granted Appellee‘s habeas motion to dismiss the PSAM charge.12 The court determined that the Commonwealth failed to establish a prima facie case for that offense due to the suppression of the seized marijuana. See TCO at 16 n.20. The Commonwealth argues that the court “cannot enter an order dismissing the charges unless the Commonwealth consents or the time for filing a notice of appeal [from the order granting suppression] has elapsed.” Commonwealth‘s Brief at 37 (citing Commonwealth v. Micklos, 672 A.2d 796, 801 (Pa. Super. 1996) (en banc)). This is a pure question of law and, therefore, our standard of review is plenary. Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005) (stating “it is settled that the evidentiary sufficiency, or lack thereof, of the Commonwealth‘s prima facie case for a charged crime is a question of law as to which an appellate court‘s review is plenary“).
In Micklos, an en banc panel of this Court considered “whether the Commonwealth may appeal from an order of court which granted a criminal defendant‘s suppression motion and concurrently dismissed all charges filed against that defendant, thereby preventing the Commonwealth from pursuing its right to
during a non-jury trial. Id. at 799. The trial court granted the suppression motion, and on that basis, dismissed the charges that were contingent upon the suppressed evidence.
The Micklos Court first determined that jeopardy had attached when the defendant filed his suppression motion, as the evidentiary portion of the trial had already concluded. Id. at 800. In typical circumstances, when a suppression motion is timely filed in a pre-trial setting, the Commonwealth has, pursuant to
Appellee distinguishes this matter from Micklos, arguing that the procedural posture of this case, where both the suppression motion and habeas petition were filed and decided before trial, is critically different from Micklos, where the trial had already begun, and jeopardy had attached. See Appellee‘s Brief at 35-36. We agree. Here, the Commonwealth was not deprived of the opportunity to appeal from the adverse suppression ruling, as jeopardy has not yet attached to this case. Furthermore, Appellee was required to file both motions pursuant to
Nevertheless, the order granting Appellee‘s habeas motion cannot stand, given our disposition with regard to the Commonwealth‘s first claim. The trial court explicitly conditioned its dismissal of the PSAM charge on its granting of suppression. See TCO at 16 (”As a result of this [c]ourt‘s suppression of the evidence seized from the subject vehicle, this [c]ourt finds that the Commonwealth failed to establish a prima facie case of [PSAM].“)
Order granting suppression and habeas relief vacated. Case remanded for reconsideration consistent with the analysis set forth in this opinion. Jurisdiction relinquished.
Judge Lazarus joins this opinion.
Judge Strassburger joins and files a concurring opinion in which President Judge Emeritus Bender and Judge Lazarus join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/20
Notes
See Terry v. Ohio, 392 U.S. 1 (1968). Importantly,
[o]ur Supreme Court has defined three forms of police-citizen interaction: a mere encounter, an investigative detention, and a custodial detention. Commonwealth v. Boswell, 721 A.2d 336, 340 (Pa. 1998). A mere encounter between police and a citizen “need not be supported by any level of suspicion, and carr[ies] no official compulsion on the part of the citizen to stop or to respond.” Commonwealth v. Riley, 715 A.2d 1131, 1134 (Pa. Super. 1998).
An investigatory stop, which subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute an arrest, requires a reasonable suspicion that criminal activity is afoot. See Terry, 392 U.S. at 21... A custodial detention is an arrest and must be supported by probable cause. Id.
Commonwealth v. Fuller, 940 A.2d 476, 478-79 (Pa. Super. 2007).