Commonwealth v. Barr, T., Aplt. ( 2021 )

[J-70-2021] [MO: Baer, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 28 MAP 2021
:
Appellee : Appeal from the Order of the
: Superior Court at No. 2347 EDA
: 2019 dated September 25, 2020
v. : Vacating the Order of the Lehigh
: County Court of Common Pleas,
: Criminal Division, at No. CP-39-CR-
TIMOTHY OLIVER BARR II, : 0000279-2019 dated August 2,
: 2019 and Remanding.
Appellant :
: ARGUED: October 27, 2021
CONCURRING AND DISSENTING OPINION
JUSTICE MUNDY DECIDED: December 29, 2021
I agree with the Majority’s holding that “the odor of marijuana may be a factor, but
not a stand-alone one, in evaluating the totality of the circumstances for purposes of
determining whether police had probable cause to conduct a warrantless search.”
Majority Op. at 24. I depart with the Majority as to the application of that holding to the
facts of this case.
The Majority concludes that this search was not supported by probable cause
because “the record supports the trial court’s conclusion that the troopers searched the
car in question based solely on the odor of marijuana coming from it.” Id. at 29.
Respectfully, I disagree with this analysis. The test is not whether the troopers’ subjective
reason for searching the car surmounted constitutional scrutiny. Rather, an assessment
of probable cause is an objective one measured by examining the totality of the
circumstances. See Commonwealth v. Jacoby, 170 A.3d 1065, 1081 (Pa. 2017) (citing
Illinois v. Gates, 462 U.S. 213, 238 (1983) (“The existence of probable cause is measured
by examining the totality of the circumstances.”)); Florida v. Royer, 460 U.S. 491, 507
(1983) (“[T]he fact that the officers did not believe there was probable cause. . .would not
foreclose the State from justifying Royer’s custody by proving probable cause[.]”).
Although the record clearly establishes that the officers’ rationale for searching the car
was based on the plain smell of marijuana alone, that subjective justification does not
foreclose an objective assessment of the totality of the circumstances.1
Overlooked from the trial court’s analysis was the fact that officers’ suspicions of
criminal activity increased after Appellant became hostile, refused to let anyone get out
of the car upon request by the officers, and required additional police support to respond
to the scene. The Majority suggests that the trial court was aware of this fact, and so “it
is more than reasonable to conclude that the court implicitly discredited Trooper
Prentice’s contention that such behavior from a passenger is indicative of criminal
activity.” Majority Op. at 29. I see no such implicit discreditation. Rather, the trial court’s
opinion shows that it failed to weigh these facts in assessing whether there was probable
cause to search the car. In assessing probable cause, the trial court held that “[Hicks]
applies to the within matter, and that the ‘plain smell’ of marijuana alone no longer
1 The United States District Court for Middle District of Pennsylvania and the Third Circuit
Court of Appeals have similarly recognized that an officer’s subjective assessment is not
conclusory to a probable cause analysis under the Fourth Amendment. See United States
ex rel. Senk v. Brierley, 381 F.Supp. 447, 463 (M.D.Pa. 1974) (“[T]he mere subjective
conclusions of a police officer concerning the existence of probable cause is not binding
on this court which must independently scrutinize the objective facts to determine the
existence of probable cause. Moreover, since the courts have never hesitated to overrule
an officer’s determination of probable cause when none exists, consistency suggests that
a court may also find probable cause in spite of an officer’s judgment that none exists.”)
(citations omitted); United States v. Day, 455 F.2d 454, 456 (3d Cir. 1972) (“Here, the
policeman testified that he did not have probable cause to search, and at best was merely
suspicious. Of course, we would not consider ourselves bound by a police officer’s
inability to articulate his conclusions if the facts clearly demonstrated the existence of
probable cause[.]”).
[J-70-2021] [MO: Baer, C.J.] - 2
provides authorities with probable cause to conduct a search of a subject vehicle.” Trial
Court Opinion, 8/2/2019, at 14-15. The trial court’s entire probable cause analysis began
and ended with that determination, with no assessment of the totality of the
circumstances.
The trial court failed to consider whether there was probable cause under the
totality of the circumstances and instead focused exclusively on the officers’ rationale for
searching the car. In this regard, the trial court erred. Accordingly, I cannot join the
Majority’s decision to reinstate the trial court’s order, which granted Appellant’s motion to
suppress based on lack of probable cause without considering the totality of the
circumstances.
[J-70-2021] [MO: Baer, C.J.] - 3