Com. v. Lomax, R. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROBERT LEE LOMAX : No. 470 MDA 2021
Appeal from the Order Entered March 3, 2021
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0001063-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY DUBOW, J.: FILED: FEBRUARY 14, 2022
The Commonwealth appeals from the Order entered in the Court of
Common Pleas of Adams County granting Appellee Robert Lee Lomax’s Motion
to Suppress. The Commonwealth argues that the suppression court erred in
suppressing evidence obtained by a state trooper who, after initiating a valid
traffic stop based on a broken brake light, ordered Appellee to exit the car and
began an unrelated investigation based solely on the smell of unburnt
marijuana. After careful review, we affirm.
We glean the following facts from the testimony at the suppression
hearing and the trial court’s opinion accompanying its suppression order. On
May 6, 2020, Trooper Justin Horan of the Pennsylvania State Police was on
patrol with Trooper Matthew Kile on North Fourth Street in Gettysburg. As he
was driving, Trooper Horan noticed a maroon Cadillac with dark window tint
traveling northbound. Based on a suspicion that the tint may have violated
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the traffic code, he turned his cruiser around and began following the Cadillac.
While he followed the car, he noticed that several taillights were not working.
Based on the broken taillights, he initiated a traffic stop.
During the traffic stop, Appellee was cooperative and calm. Trooper
Horan did not notice any behavior suggesting impairment. N.T. Suppression
2/8/21, at 29. He did, however, notice the smell of fresh, unburnt marijuana
in the car. Id. at 9. He asked Appellee for his driver’s license, which Appellee
gave him. He then ordered Appellee out of the car.
After Appellee exited the car, Trooper Horan told him that the reason he
asked him to exit the car was that he could smell marijuana. He asked
Appellee if he had smoked marijuana recently. Appellee replied that he had
not and showed Trooper Horan his official medical marijuana card.
Trooper Horan then returned to his cruiser, turned off his mobile video
recorder (“MVR”), and spoke with Trooper Kile. He then turned the MVR back
on, returned to Appellee, and asked again when he last smoked marijuana.
Appellee told Trooper Horan that he had smoked marijuana approximately
four hours before the traffic stop. Based on this answer, Trooper Horan
ordered Appellee to perform field sobriety tests. After the tests, Trooper Horan
arrested Appellee for driving under the influence of marijuana.
The Commonwealth charged Appellee with Driving Under the Influence
of a Controlled Substance (“DUI-CS”): Schedule 1; DUI-CS: Metabolite, DUI-
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CS: Impaired Ability, Careless Driving, General Lighting Requirements-Rear
Lighting.1
Appellee moved to suppress all evidence obtained after Trooper Horan
ordered Appellee to exit the vehicle. The court held a suppression hearing on
February 8, 2021, at which Trooper Horan was the sole witness. At the
hearing, Trooper Horan specified that, based on his experience with
marijuana, the odor of marijuana was “fresh,” as opposed to “burnt.” N.T. at
9. He also testified that he ordered Appellee out of the car “for standard field
sobriety testing” based solely on the odor and Appellee’s “glassy and
bloodshot” eyes. Id. at 9-10.
On cross examination, he testified that he did not see Appellee drive in
any way that indicated impairment, and that Appellee obeyed all traffic laws
other than the brake light violation. Id. at 23-24. He agreed that, at the time
of the stop, there was “no indication of impairment,” and that Appellee was
calm, cooperative, and that his behavior did not in any way suggest that he
was impaired. Id. at 24-29. The only evidence he had of impairment, he
reiterated, was the smell of “fresh” marijuana and Appellee’s “glassy,
bloodshot eyes.” Id. at 30-32.
On March 2, 2021, the suppression court granted the motion and
suppressed all evidence collected after Trooper Horan ordered Appellee to exit
the vehicle, including Appellee’s admission that he had smoked marijuana and
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1 75 Pa.C.S. § 3802(d)(1)(i), (d)(1)(iii), and (d)(2); 3714(a); and 4303(b).
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the results of the field sobriety test. In its opinion accompanying the order,
the court found that Trooper Horan’s testimony that he noticed Appellee’s
glassy eyes before he ordered him to exit the car was not credible.
On March 9, 2021, the Commonwealth filed a Motion for
Reconsideration, which the court denied on March 26, 2021. This timely appeal
followed. Both the Commonwealth and the suppression court have complied
with Pa.R.A.P. 1925.
The Commonwealth presents the following issue:
Did the Suppression Court err in suppressing all evidence after
Appellee was told to exit his vehicle, based on a misapplication of
required standards of suspicion required for police interaction?
Commonwealth’s Br. at 7.
On review of a grant of a suppression motion, our review “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.” Commonwealth v. Stem, 96 A.3d 407, 409 (Pa. Super. 2014)
(citation omitted). “[O]ur scope of review is limited to the factual findings and
legal conclusions of the suppression court.” In re L.J., 79 A.3d 1073, 1080
(Pa. 2013) (citation omitted). We defer to the suppression court, “as
factfinder[,] to pass on the credibility of witnesses and the weight to be given
to their testimony.” Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.
Super. 2003). “[H]owever, we maintain de novo review over the suppression
court’s legal conclusions.” Commonwealth v. Brown, 996 A.2d 473, 476
(Pa. 2010).
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We categorize police interactions with members of the public into three
general tiers of increasing intrusiveness, which require increasing levels of
suspicion on the part of an officer who initiates them: (1) mere encounters,
which require no suspicion; (2) investigative detentions, which require
reasonable suspicion; and (3) custodial detentions, which require probable
cause. Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000).
A traffic stop is a special kind of seizure, which a police officer may only
initiate if he has reason to believe that a violation of the traffic code has
occurred. Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013).
The level of required suspicion turns on the kind of violation in question: if it
is the kind of violation that would require further investigation to prove, the
officer needs a reasonable suspicion; if it is the kind of violation that is
immediately apparent and would not require any further investigation, the
officer needs probable cause. Id. In either case, the officer’s authority for the
seizure extends only as long as is necessary to attend to the business of the
stop. Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016).
Outside of the context of a traffic stop, an officer’s order for an occupant
to exit a vehicle is a show of authority that transforms the encounter into at
least an investigative detention, requiring reasonable suspicion. See
Commonwealth v. Boswell, 721 A.2d 336, 340 (Pa. 1998). During the
course of a valid traffic stop, however, an officer may order occupants to exit
the vehicle as a matter of course. Commonwealth v. Wright, 224 A.3d
1104, 1109 (Pa. Super. 2019). This authority lasts only as long as the duration
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for the authority of the stop itself. Commonwealth v. Mattis, 252 A.3d 650,
655 (Pa. Super. 2021). An officer’s order for a driver to exit the vehicle once
the authority for the original stop has expired initiates a new investigative
detention, requiring independent reasonable suspicion of additional illegal
activity. Id.An officer’s authority to detain a driver during a traffic stop lasts only as
long as is necessary to investigate the infraction that provoked the stop, issue
a citation, and attend to any related safety concerns. Rodriguez v. U.S., 575
U.S. 348, 354-55 (2015). When an officer abandons the investigation of the
underlying violation and begins questioning the driver about unrelated
criminal activity, he effectively ends the traffic stop and initiates an
independent investigative detention. Mattis, 252 A.3d at 656. To lawfully do
so requires independent reasonable suspicion. Id.; see also
Commonwealth v. Prizzia, 260 A.3d 263, 272 (Pa. Super. 2021) (trooper
lawfully began investigating possible DUI after initiating a traffic stop based
on a window tint violation because he developed independent reasonable
suspicion that driver was intoxicated).
Demonstrating reasonable suspicion requires that the detaining officer
“articulate something more than an inchoate and unparticularized suspicion
or hunch.” Commonwealth v. Jefferson, 256 A.3d 1242, 1248 (Pa. Super.
2021) (citation omitted). In determining whether the Commonwealth has met
this burden, courts must make an objective inquiry into whether, based on
“the facts available to [the] police at the moment of intrusion,” a reasonable
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officer would believe the action was appropriate. Id. (citation omitted).
Information that the detaining officer discovers before and during the initial
traffic stop can support his reasonable suspicion justifying a subsequent
detention. See generally In Interest of A.A., 195 A.3d 896 (Pa. 2018).
“[I]nformation discovered after the [subsequent] detention has begun,”
however, cannot. Commonwealth v. Mackey, A.3d 221, 232 (Pa. Super.
2017).
In the past, Pennsylvania courts have held that, because marijuana is
illegal to possess, the smell of marijuana alone can be sufficient to establish
a reasonable suspicion of criminal activity. See, e.g., In the Interest of
A.A., 195 A.3d at 904 (noting that “the odor of marijuana alone, particularly
in a moving vehicle, is sufficient to support at least reasonable suspicion”).
Due to the legalization of medical marijuana in the Commonwealth, however,
our Supreme Court has recently revisited the assumptions underlying this
inference, sometimes referred to as the “plain smell doctrine,” in
Commonwealth v. Hicks, 208 A.3d 916, 945 (Pa. 2019) and
Commonwealth v. Barr, No. 28 MAP 2021, 2021 WL 6136363 (Pa. Dec. 29,
2021).
In Hicks, our Supreme Court held that “conduct in which hundreds of
thousands of Pennsylvanians are licensed to engage lawfully” is, on its own,
“an insufficient basis for reasonable suspicion that criminal activity is afoot.”
Hicks, 208 A.3d at 945 (Pa. 2019). As such, the Court held that allowing the
mere possession of an item whose possession is regulated under a licensing
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scheme to establish, on its own, reasonable suspicion to support an
investigatory detention “unjustly places the onus upon the citizen to
demonstrate that her possession of the [object] is not criminal, reversing the
constitutional mandate that the police officer must establish a valid basis for
the intrusion upon her privacy in the first instance.” Id. at 944 (emphasis in
original).
In Barr, the Court recognized that, due to the passage of the Medical
Marijuana Act, the possession of marijuana belongs to this category of licensed
activity. Barr 2021 WL 6136363 at *12-13. As such, “one’s liberty may not
be abridged on the sole basis that a law enforcement officer detected the smell
of marijuana[.]” Id. at *14. While the Barr Court only directly considered the
question of whether the smell of marijuana can meet the higher standard of
probable cause, it anchored its logic in Hicks’ broader proscription against
allowing “conduct for which the individual obtained a license to serve as the
exclusive basis for the deprivation of the licensee’s liberty.” Id.
In the instant case, in its opinion accompanying the Suppression Order,
the suppression court found that “at the time Troper Horan removed
[Appellee] from his vehicle, the Trooper did not have reasonable suspicion of
criminal activity that would warrant further investigation.” Supp. Ct. Op. at 5.
Specifically, it found that “Trooper Horan did not articulate any facts to
suggest [Appellee] recently smoked or ingested marijuana, or that [Appellee]
was in any way impaired[.]” Id. Instead, “the smell of fresh marijuana without
any evidence of impairment . . . only shows that [Appellee] may have lawfully
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possessed marijuana earlier that day[.]” Id. at 6. As such, “Trooper Horan did
not articulate what information he possessed to justify the temporary
investigative detention of” Appellee. Id.
We agree with the suppression court’s conclusions. Trooper Horan
initiated the traffic stop based on a broken taillight, which is a traffic violation
that requires no further investigation before issuing a citation. When Trooper
Horan ordered Appellee to exit the vehicle and began questioning him about
the smell of marijuana, he initiated an independent investigative detention to
investigate additional potential illegality. To lawfully do so, Trooper Horan
needed a reasonable suspicion of criminal activity. The only credited evidence
justifying Trooper Horan’s suspicion, however, was the smell of fresh
marijuana. Absent any other indicia of wrongdoing this smell cannot
objectively suggest anything more than the possession of a substance that
many Pennsylvanians can legally possess. As such, it cannot, on its own,
establish the kind of reasonable suspicion necessary to initiate an investigative
detention.
In its brief, the Commonwealth does not argue otherwise. Instead, it
argues that Trooper Horan developed a reasonable suspicion to detain
Appellee based on the smell of the marijuana and Appellee’s eventual
response, after repeated questioning, that he had smoked marijuana several
hours before the stop. Trooper Horan only learned this information, however,
long after he initiated the investigative detention. The Commonwealth cannot
use information that Trooper Horan only learned after initiating the
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investigative detention in order to retroactively justify his decision to detain
Appellee in the first place. The Commonwealth’s argument thus fails.
The suppression court correctly determined that Trooper Horan initiated
an investigative detention when he ordered Appellee to exit his vehicle and
began questioning him about matters unrelated to the original traffic stop,
and that he lacked reasonable suspicion required to do so. As such, the
suppression court properly suppressed the evidence resulting from the
detention.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/14/2022
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