Com. v. Jones, P. , 121 A.3d 524 ( 2015 )

J-A19026-15
2015 Pa. Super. 160
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PATRICK SCOTT JONES
Appellant No. 1286 WDA 2014
Appeal from the Judgment of Sentence August 1, 2014
in the Court of Common Pleas of Butler County
Criminal Division at No(s): CP-10-CR-0001833-2013
BEFORE: BENDER, P.J.E., JENKINS, J., and MUSMANNO, J.
OPINION BY JENKINS, J.: FILED JULY 24, 2015
Appellant Patrick Scott Jones appeals from the judgment of sentence
entered in the Butler County Court of Common Pleas following his bench trial
conviction for driving under the influence of alcohol or controlled substances
(Schedule I metabolite - marijuana) (“DUI”),1 for which the trial court
imposed a sentence of sixty (60) months’ intermediate punishment, with the
first 105 days to be served on house arrest with electronic monitoring, and a
$1,500.00 fine.2 We affirm.
____________________________________________
1
75 Pa.C.S. § 3802(d)(1)(iii).
2
The trial court also convicted Appellant of the summary offenses of
operation following suspension of registration, 75 Pa.C.S. § 1371, and
surrender of registration plates and cards upon suspension, 75 Pa.C.S. §
1376, but imposed no further penalty for these convictions.
J-A19026-15
On the morning of April 28, 2013, an Adams Township Police
Department officer stopped Appellant’s vehicle due to a suspended
registration. Upon approaching Appellant, the officer immediately noticed a
strong odor of burnt marijuana emanating from Appellant’s vehicle, in which
Appellant was the sole occupant. After speaking with Appellant regarding
the suspended registration, the officer ordered Appellant from the vehicle
and placed him in handcuffs. Subsequently, the officer asked Appellant to
submit to chemical blood testing, and Appellant agreed. The chemical blood
test indicated that Appellant had 7.7 nanograms per milliliter of Delta-9-THC
in his blood and 100 nanograms per milliliter of Delta-9-Carboxy THC in his
blood.3
Appellant filed a suppression motion on December 19, 2013. At the
beginning of the suppression hearing, the Commonwealth conceded to the
suppression of several items of evidence seized after Appellant was placed in
handcuffs. See N.T. 4/3/2014, p. 3. However, the trial court continued the
hearing to determine whether the officer had the right to detain Appellant
and test his blood based on the smell of marijuana emanating from the
vehicle. See id. at 3-6. On May 13, 2014, the trial court granted the
suppression motion in part and denied it in part. The court granted
____________________________________________
3
THC stands for tetrahydrocannabinol and is the active ingredient of
marijuana. THC is referred to in blood chemical reports as Delta-9-THC.
The chemical names for THCC, the metabolite of marijuana, are 11-Hydroxy-
Delta-9-THC and Delta-9-Carboxy THC.
-2-
J-A19026-15
suppression of all “evidence seized subsequent to [Appellant] being placed in
handcuffs, with the exception of the blood test results.” Trial Court Order,
May 13, 2014, p. 2.
The trial court conducted a bench trial on August 1, 2014, during
which the Commonwealth introduced the results of Appellant’s blood test
into evidence. The trial court convicted and sentenced Appellant as
discussed, supra. Appellant timely appealed.4
Appellant raises the following two claims for review:
I. Whether a mere odor of marijuana emanating from the inside
of a motor vehicle supports a finding of probable cause to arrest
for driving under the influence[?]
II. Whether the blood alcohol results should be suppressed as
fruit of the poisonous tree as a result of an illegal arrest[?]
Appellant’s Brief, p. 2 (all capitals removed).
This Court’s well-settled standard of review of a denial of a motion to
suppress evidence is as follows:
[An appellate court’s] 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 are 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, [the appellate court
____________________________________________
4
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
-3-
J-A19026-15
is] bound by [those] findings and may reverse only if the court’s
legal conclusions are erroneous. Where . . . 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 []
plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010) (internal citations
and quotation marks omitted).
Appellant argues that the trial court erred by not suppressing the
results of chemical blood testing to which he consented during the course of
his arrest. See Appellant’s Brief, pp. 9-17. Specifically, Appellant claims
that, because police cannot request chemical testing pursuant to 75 Pa.C.S.
§ 1547 for an alcohol-based DUI based solely on the smell of alcohol, the
police should not have been allowed to request that he submit to chemical
blood testing based solely on the smell of marijuana in his vehicle. He
argues that corroborating evidence must exist in addition to the odor of
marijuana to allow authorities to request that a driver submit to a section
1547 blood test for controlled substances. See id. at 15. He requests that,
for the purposes of a probable cause analysis, this Court regard the odor of
marijuana the same as the odor of alcohol and rule that the smell of
marijuana in isolation does not provide the requisite “reasonable grounds” to
allow police to request a motorist submit to chemical testing pursuant to
section 1547. See id. at 12-14. Otherwise stated, he argues that
-4-
J-A19026-15
uncorroborated police testimony regarding the odor of marijuana is an
insufficient foundation to request section 1547 testing. We do not agree.
The Vehicle Code provides, in relevant part:
§ 3802. Driving under influence of alcohol or controlled
substance
(a) General impairment.--
...
(d) Controlled substances.--An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance. . . ;
...
(iii) metabolite of a substance under subparagraph (i) or
(ii).
75 Pa.C.S. § 3802. The Controlled Substance, Drug, Device and Cosmetic
Act classifies marijuana as a Schedule I controlled substance. 35 Pa.C.S. §
780-104(1)(iv). Additionally,
(a) General rule.--Any person who drives, operates or is in
actual physical control of the movement of a vehicle in this
Commonwealth shall be deemed to have given consent to one or
more chemical tests of breath, blood or urine for the purpose of
determining the alcoholic content of blood or the presence of a
controlled substance if a police officer has reasonable grounds to
believe the person to have been driving, operating or in actual
physical control of the movement of a vehicle:
(1) in violation of section 1543(b)(1.1) (relating to driving
while operating privilege is suspended or revoked), 3802
(relating to driving under influence of alcohol or controlled
substance) or 3808(a)(2) (relating to illegally operating a
motor vehicle not equipped with ignition interlock)[.]
-5-
J-A19026-15
75 Pa.C.S. § 1547. “[T]o administer a blood test under § 1547(a)(1), a
police officer need only have reasonable grounds to believe that a person
was driving under the influence of alcohol [or controlled substances].
‘Reasonable grounds’ has been interpreted to mean ‘probable cause;’ thus,
the police officer must have ‘knowledge of sufficient facts and circumstances,
gained through trustworthy information, to warrant a prudent man in the
belief that a crime has been committed.’” Commonwealth v. Aiello, 675
A.2d 1278, 1280 (Pa.Super.1996) (internal citations omitted).5
____________________________________________
5
Regarding probable cause, we note:
“[P]robable cause does not involve certainties, but rather ‘the
factual and practical considerations of everyday life on which
reasonable and prudent men act.’” Commonwealth v. Wright,
867 A.2d 1265, 1268 (Pa.Super.2005) (quoting
Commonwealth v. Romero, [] 673 A.2d 374, 376 (1996)). “It
is only the probability and not a prima facie showing of criminal
activity that is a standard of probable cause.” Commonwealth
v. Monaghan, [] 441 A.2d 1318 (1982) (citation omitted). See
also Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 76
L. Ed. 2d 527 (1983) (holding that probable cause means “a fair
probability that contraband or evidence of a crime will be
found.”); Commonwealth v. Lindblom, 854 A.2d 604, 607
(Pa.Super.2004) (reciting that probable cause exists when
criminality is one reasonable inference, not necessarily even the
most likely inference). To this point on the quanta of evidence
necessary to establish probable cause, the United States
Supreme Court recently noted that “[f]inely tuned standards
such as proof beyond a reasonable doubt or by a preponderance
of the evidence, useful in formal trials, have no place in the
[]probable-cause[] decision.” Maryland v. Pringle, 540 U.S.
366, 371, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003) (citations
omitted).
Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa.Super.2005).
-6-
J-A19026-15
Here, at the suppression hearing, Adams Township police officer Ed
Lentz gave uncontroverted testimony that, upon approaching Appellant’s
car, he immediately smelled a very strong odor of burnt marijuana
emanating from the car. See N.T. April 3, 2014, pp. 13-14, 17. Officer
Lentz had absolutely no question that what he smelled was indeed burnt
marijuana.6 Id. at 14. He further explained that Appellant was the sole
occupant of the vehicle. Id. at 21.
Initially, Appellant cites numerous cases7 to support his argument that
the smell of burnt marijuana alone is insufficient to support a police officer’s
request that a motorist submit to blood testing pursuant to section 1547.
____________________________________________
6
The officer had previously testified as to his training and experience
identifying the odor of burnt marijuana, which he described as “very
distinct.” N.T. 4/3/2-14, pp. 7-8.
7
Commonwealth v. Griffith, 32 A.3d 1231 (Pa.2011); Commonwealth
v. Graham, 81 A.3d 137 (Pa.Super.2013) appeal denied, 93 A.3d 462
(Pa.2014); Commonwealth v. Angel, 946 A.2d 115 (Pa.Super.2008);
Commonwealth v. Hilliar, 943 A.2d 984 (Pa.Super.2008);
Commonwealth v. Leighty, 693 A.2d 1324 (Pa.Super.1997);
Commonwealth v. Feathers, 660 A.2d 90 (Pa.Super.1995) aff’d, 683 A.2d
289 (Pa.1996); Commonwealth v. Yedinak, 676 A.2d 1217
(Pa.Super.1996); Commonwealth v. Rishel, 658 A.2d 352
(Pa.Super.1995) appeal granted, judgment vacated, 682 A.2d 1267
(Pa.1996); Commonwealth v. Hipp, 551 A.2d 1086 (Pa.Super.1988);
Commonwealth v. Monaghan, 441 A.2d 1318 (Pa.Super.1982);
Commonwealth v. Labiaux, 434 A.2d 194 (Pa.Super.1981);
Commonwealth v. Guiliano, 418 A.2d 476 (Pa.Super.1980);
Commonwealth v. Funk, 385 A.2d 995 (Pa.Super.1978); Commonwealth
v. Reynolds, 389 A.2d 1113 (Pa.Super.1978).
-7-
J-A19026-15
See Appellant’s Brief, pp. 12-14. Appellant correctly suggests that his cited
cases stand for the proposition that the smell of alcohol alone is not
sufficient to justify a request for a section 1547 blood test for suspected
alcohol-based DUIs, and that such a request requires some further indicia of
intoxication, such as erratic driving, slurred speech, bloodshot eyes, balance
issues, etc. However, Appellant’s cited cases are distinguishable because
they involve suspected alcohol-based DUIs, not marijuana-based DUIs.
Because there are no on-point Pennsylvania cases, Appellant analogizes the
smell of marijuana to the smell of alcohol and suggests that, as with
suspected cases of alcohol-based DUI, the police must have corroborating
evidence to request blood tests. Id.
However, the Vehicle Code treats consumption of alcohol differently
from consumption of marijuana. The Vehicle Code does not preclude an
adult from consuming any amount of alcohol and then operating a motor
vehicle in Pennsylvania. See 75 Pa.C.S. § 3802(a). Instead, the Vehicle
Code precludes the operation of a motor vehicle only “after imbibing a
sufficient amount of alcohol such that the individual is rendered incapable of
safely driving, operating or being in actual physical control of the movement
of the vehicle.” 75 Pa.C.S. § 3802(a)(1). On the other hand, the Vehicle
Code precludes an individual from operating a motor vehicle with any
amount of scheduled controlled substance, or a metabolite thereof, in the
driver’s blood. 75 Pa.C.S. § 3802(d). Because marijuana is a Schedule I
controlled substance, the Vehicle Code prohibits an individual from operating
-8-
J-A19026-15
a vehicle after consuming any amount of marijuana. As a result, unlike
cases where police suspect alcohol-based DUI, evidence of operator
consumption of any marijuana is enough to allow police to request a section
1547 blood test for suspected controlled substance-based DUI.8 Such
evidence includes the distinct odor of burnt marijuana emanating from a
vehicle in which the operator is the sole occupant.9
Therefore, in the instant case, under the proper standard of review,
the evidence presented that the police officer smelled a strong, distinct odor
of burnt marijuana emanating from a vehicle in which Appellant was the only
occupant suffices to have allowed the police to request a blood test pursuant
to section 1547. Accordingly, the trial court properly ruled that “the officer
was justified in reasonably believing that [Appellant] had been operating his
____________________________________________
8
We note that Yedinak, supra, concerned a DUI arrest based solely on
marijuana use and discussed multiple impairment indicia (trouble
walking/balancing and unsafe driving) in addition to an odor of marijuana in
discussing the propriety of blood testing. However, Yedniak is inapposite to
the instant matter because in that case the police observed the numerous
impairment indicia prior to conducting the traffic stop.
9
We note that Graham and Griffith, supra, involved prescription
medication controlled substance DUIs or combined prescription medication
and alcohol-based DUIs, and both involved an examination of multiple
indicia of impairment, as with alcohol-based DUI arrests. We note, however,
that prescription medications lack the distinctive odor of burnt marijuana.
Therefore, in such cases, police have no choice but to investigate and
observe, as in alcohol-based cases, a combination of indicia of impaired
driving prior to requesting blood samples or making an arrest, regardless of
the fact the Vehicle Code prohibits the operation of motor vehicles with any
such controlled substance or metabolite thereof in the driver’s bloodstream.
-9-
J-A19026-15
vehicle after smoking marijuana which then [gave the officer] the authority
to ask [Appellant] to submit to having a sample of his blood taken.” May 13,
2014 Order, p. 2. The trial court did not err in denying suppression of the
blood test results.10
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
____________________________________________
10
Because Appellant’s arrest was legal as discussed supra, his claim that
the blood test results were “fruit of the poisonous tree” fails. See
Commonwealth. v. Shaffer, 710 A.2d 89, 92 (Pa.Super.1998) (“The
remedy for an illegal arrest in Pennsylvania is suppression of the fruits of the
illegal arrest. “) (emphasis provided).
- 10 -