In the Interest of: K.J v. a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.J.V., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: K.J.V., A MINOR :
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: No. 607 MDA 2018
Appeal from the Dispositional Order February 13, 2018
In the Court of Common Pleas of Dauphin County
Juvenile Division at No(s): CP-22-JV-0000547-2017
BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OTT, J.: FILED DECEMBER 17, 2018
K.J.V. appeals from the dispositional order entered February 13, 2018,
in the Juvenile Division of the Dauphin County Court of Common Pleas. The
juvenile court adjudicated K.J.V. delinquent on charges of possession of a
small amount of marijuana and possession of drug paraphernalia,1 and
entered a dispositional order placing her on formal probation. On appeal,
K.J.V. argues the court erred in denying her motion to suppress evidence
recovered during a warrantless search of her vehicle. For the reasons below,
we affirm.
The facts underlying the adjudication of delinquency are summarized by
the juvenile court as follows:
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1 See 35 P.S. §§ 780-113(a)(31) and (32), respectively.
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On July 1, 2017, at 7:15 a.m., Officer Michael McCormick of
the Derry Township Police Department, who has been a police
officer since 2009, was sitting in a marked police vehicle on the
median of Hersheypark Drive and Old West Chocolate Avenue.
Officer McCormick observed a black Acura sedan come through a
curve and it appeared to be going above the posted 35 MPH speed
limit. The Acura was unable to maintain its lane of travel as it
rounded the curve. As the vehicle got closer, the officer noticed
the car had extremely dark window tint, by his estimation darker
than the tint allowed by law. Officer McCormick pulled off the
median, activated his emergency lights, and the car stopped.
Officer McCormick approached the driver side window of the
vehicle, identified himself, and outlined the reason for the stop.
The officer obtained the driver’s license of the driver, which
identified her as [K.J.V.]. Officer McCormick testified, “While
speaking with [K.J.V.], I could smell the strong odor of unburnt
marijuana coming from inside the vehicle.” The officer outlined
his training and experience. Officer McCormick had [K.J.V.] get
out of the car and conducted a search. In the center console he
located numerous pieces and stems of marijuana. In the ashtray
he found a burnt marijuana cigarette and on the passenger floor
he found a sandwich bag containing small pieces of marijuana
residue. [K.J.V.] was then charged with unlawful possession of a
small amount of marijuana and unlawful possession of drug
paraphernalia, as well as summary traffic violations.
Juvenile Court Opinion, 6/11/2018, at unnumbered 3-4 (record citations
omitted).
On February 6, 2018, K.J.V. filed a motion to suppress the evidence
recovered during the warrantless search. The juvenile court conducted a
suppression hearing on February 13, 2018, following which it denied the
motion. The case proceeded immediately to an adjudication hearing. The
court adjudicated K.J.V. delinquent on the drug possession and paraphernalia
charges, but found her not guilty of the traffic offenses. The same day, the
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juvenile court placed K.J.V. on formal probation. K.J.V. filed a post-
dispositional order, which the court denied, and this timely appeal followed.2
K.J.V.’s sole issue on appeal challenges the juvenile court’s denial of her
suppression motion. Specifically, she insists Officer McCormick did not
possess the requisite probable cause to search her vehicle based solely on the
purported odor of unburnt marijuana.3 See K.J.V.’s Brief at 5.
Our well-settled standard of review is as follows:
Our 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, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. 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 our plenary review.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
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2 On April 17, 2018, the juvenile court ordered K.J.V. to file a concise
statement of errors complained of on appeal. K.J.V. complied with the court’s
directive, and filed a concise statement on May 2, 2018.
3 K.J.V. does not challenge the basis for Officer McCormick’s stop of her
vehicle.
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Commonwealth v. Freeman, 150 A.3d 32, 34–35 (2016) (quotation
omitted), appeal denied, 169 A.3d 524 (Pa. 2017).
Generally, “a search conducted without a warrant is presumed to be
unreasonable unless it can be justified under a recognized exception to the
search warrant requirement.” Commonwealth v. Davis, 188 A.3d 454, 457
(Pa. Super. 2018) (citation omitted). One such exception is when police
possess probable cause to search a lawfully stopped motor vehicle. See id.In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (plurality opinion), the
Pennsylvania Supreme Court adopted the federal automobile exception,
holding “[t]he prerequisite for a warrantless search of a motor vehicle is
probable cause to search; no exigency beyond the inherent mobility of a motor
vehicle is required.” Id. at 138. Furthermore,
[p]robable cause exists where the facts and circumstances within
the officers’ knowledge are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is
being committed. With respect to probable cause, [our Supreme
C]ourt adopted a “totality of the circumstances” analysis
in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 926
(1985) (relying on Illinois v. Gates, 462 U.S. 213, [103 S.Ct.
2317, 76 L.Ed.2d 527] ( 1983)). The totality of the circumstances
test dictates that we consider all relevant facts, when deciding
whether [the officer had] probable cause.
Commonwealth v. Harris, 176 A.3d 1009, 1023 (Pa. Super. 2017), quoting
Commonwealth v Luv, 735 A.2d 87, 90 (Pa. 1999).
In the present case, K.J.V., insists the odor of marijuana that Officer
McCormick purportedly smelled, did not provide him with the requisite
probable cause to search her vehicle. See K.J.V.’s Brief at 13-16. Rather,
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she relies on this Court’s statement in Commonwealth v. Trenge, 451 A.2d
701, 708 (Pa. Super. 1982), that “odors without more in the usual case will
not provide probable cause.” K.J.V. emphasizes there is no “plain smell”
exception to the warrant requirement, and in those cases in which an officer
cited an odor of marijuana as cause for the search, there were also other
factors present. See Commonwealth v. Stainbrook, 471 A.2d 1223, 1225
(Pa. Super. 1984) (officer detected the odor of burning marijuana, “in addition
to observing [] furtive behavior of the [defendant] who appeared to be stuffing
something under his seat”); Trenge, supra, 451 A.2d at 703 (officer detected
strong odor of burning marijuana, and noticed the end of a pipe stem
protruding from defendant’s pocket); Commonwealth v. Stoner, 344 A.2d
633, 634 (Pa. Super. 1975) (officer detected “a very distinct odor of marijuana
about the interior of the vehicle” as he reached in to secure a firearm from the
glove compartment). K.J.V. also asserts a “plain smell” exception would
constitute “bad policy” because “a police officer’s alleged detection of an odor
is less reliable, more subjective, and also open to abuse.” K.J.V.’s Brief at 23.
Here, the juvenile court addressed this claim as follows:
An odor may be sufficient to establish probable cause for a search
warrant. Commonwealth v. Stainbrook, 324 Pa.Super. 410, 415,
471 A.2d 1223, 1225 (1984), citing U.S. Supreme Court cases.
In Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633(1975), the Superior Court stated that the rationale used to
establish probable cause in those Supreme Court cases applies
equally well when determining the validity of a search of a
movable vehicle. In Stoner, the Court analogized a “plain smell”
concept with that of plain view and held that where an officer is
justified in being where he is, his detection of the odor of
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marijuana is sufficient to establish probable cause. Id. at 636.
Likewise, officers who detected the strong odor of marijuana
emanating from a trailer had probable cause to obtain a search
warrant. Commonwealth v. Johnson, 68 A.3d 930 (Pa.Super.
2013).
The prerequisite for a warrantless search of a motor vehicle
is probable cause to search; no exigency beyond the inherent
mobility of a motor vehicle is required. Commonwealth v. Gary,
625 Pa. 183, 242, 91 A.3d 102, 138 (2014) (plurality opinion).
Gary represented a departure from prior Commonwealth
jurisprudence which required either an exigency or search warrant
for a valid automobile search. [K.J.V.] cites Commonwealth v.
Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982) for its
proposition that “odors without more in the usual case will not
provide probable cause.” Trenge does not, however, state that
odors alone cannot provide probable cause. Also, as noted above,
numerous other cases hold that an odor alone can provide
probable cause.
Here, Officer McCormick made a lawful traffic stop and
smelled the odor of marijuana when he spoke to the juvenile. That
odor provided him with probable cause to believe marijuana was
located in the car, under a “plain smell” analysis or with a
commonsense analysis of the situation. Pursuant to Gary, he
conducted a lawful, warrantless search of the car and found
marijuana and paraphernalia. As such, the motion to suppress
was properly denied.
Juvenile Court Opinion, 6/11/2018, at unnumbered 4-5.
We agree with the rationale of the juvenile court. While we recognize
many of the “plain smell” decisions involved factors in addition to the smell of
marijuana, we find that under the totality of the circumstances presented
here, Officer McCormick had probable cause to search K.J.V.’s vehicle. The
officer conducted a proper traffic stop when he observed K.J.V. driving too
fast for a sharp curve, and traveling in a vehicle with “extremely dark window
tint.” N.T., 2/13/2018, at 6. While he was speaking to K.J.V. and obtaining
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her driver’s license, Officer McCormick smelled “the strong odor of unburnt
marijuana coming from inside the vehicle.” Id. at 7. He explained he
identified the smell “[t]hrough [his] training and experience in the police
academy, and [he had] also been involved in hundreds of arrests throughout
[his eight-year] career.” Id. See also id. at 5 (Officer McCormick testifying
he has a “police K-9 trained in narcotics and patrol”). The juvenile court
specifically determined the officer’s testimony was credible, particularly
because the officer testified he smelled “raw marijuana … not burning
marijuana.” See id. at 25.
This Court’s decision in Stoner, supra, is particularly instructive. In
that case, an officer validly stopped the defendant on the turnpike for a traffic
violation. When the officer asked the defendant for his paperwork, one of the
passengers opened the glove compartment and a pistol dropped out. See
Stoner, supra, 344 A.2d at 633. The officer ordered all of the occupants out
of the vehicle and placed them under arrest. When he returned to the car to
retrieve the pistol, he “noted a very distinct odor of marijuana in the interior
of the vehicle[,]” and observed marijuana seeds and leaves throughout the
interior. Id. at 634. However, the officer “was certain the odor was too strong
to be coming from the small amount of drugs he could see.” Id. He
subsequently searched the trunk of the vehicle, where he recovered 150
pounds of freshly cut marijuana. See id.
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On appeal, a panel of this Court first noted that the marijuana seeds
and leaves in plain view were “sufficient to establish probable cause for the
search of the car.” Id. at 635. Nevertheless, the panel opined:
However, we need not base our decision solely on the
evidence in plain view. Trooper Williams indicated additionally
that he noted a very strong odor of marijuana coming from inside
the car. He stated that the odor was, “(v)ery strong, it was similar
to standing in the center of a field of marijuana.” Officer Williams
testified that he had, in fact, stood in a field of marijuana while
serving as a Military Policeman in Vietnam. He also indicated that
freshly cut marijuana emits a stronger odor than does dried
marijuana.
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. United States v. Ventresca, 380 U.S. 102,
85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Johnson v. United States,
333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). This position has
been followed by other federal courts. United States v. Curran,
498 F.2d 30 (9th Cir. 1974); United States v. Brown, 487 F.2d
208 (4th Cir. 1973); United States v. Pond and Fanelli, 382
F.Supp. 556 (S.D. New York 1974). While these cases have been
concerned with securing warrants for the search of a house, the
rationale used to establish probable cause applies equally well
when determining the validity of a search of a movable vehicle.
The court in United States v. Curran, supra, discussed
establishing probable cause from the existence of odors.
‘The government touches upon the theory sometimes
advanced that the courts should acknowledge a ‘plain smell’
concept analogous to that of plain sight. . . . However,
before the officer could rely upon his smelling marijuana as
probable cause, he would have to justify his presence at the
place . . . where he detected the odor, just as he would have
to justify his presence at the place from which he saw the
contraband in order to rely on the doctrine of plain view.’
498 F.2d at 33.
In the instant case, there is no doubt that Trooper Williams
was justifiably in the position from which he detected the odor. It
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would have been a dereliction of duty for him to ignore the obvious
aroma of an illegal drug which he was trained to identify.
We are impressed by United States v. Martinez-
Miramontes, 494 F.2d 808 (9th Cir. 1974), a case nearly on point
with the case at bar. In Martinez-Miramontes, a border patrol
officer observed two persons walking away from a parked car, and
stopped to question them. While the officer was questioning the
individuals, a customs agent also stopped. The customs agent
walked around the car, sniffed the crevice where the trunk closes,
and detected an odor of marijuana. The trunk was searched and
marijuana was found. In upholding the validity of the warrantless
search of the vehicle as being based on adequate probable cause,
the court stated:
‘We find no distinction of substance between leaning down
and turning the head to look inside a motor vehicle to see
articles which then come within the ‘plain view’ doctrine,
(citation omitted), and leaning down and sniffing to detect
the odor of marijuana.
‘The appellant relinquished his reasonable expectation of
privacy in the trunk of his automobile when he loaded it with
442 pounds of an odorous weed. By the use of ordinary
senses while standing in a place where the officer had a right
to be standing, he could then detect the nature of the load.’
494 F.2d at 810.
We believe that the rationale employed by the federal court in
California is correct and that it is consistent with interpretations of
our Supreme Court, and adopt it in the Commonwealth.
Id. at 635–636. Under this analysis, Officer McCormick’s search of K.J.V.’s
vehicle was also proper.4
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4 We note the Commonwealth relies solely on the Pennsylvania Supreme
Court’s decision in Gary, supra. See Commonwealth’s Brief at unnumbered
5. However, the Gary Court focused on whether to adopt the federal
automobile exception for warrantless vehicle searches, rather than a
determination of whether the officer’s smell of marijuana provided probable
cause for the search. Indeed, the Court specifically stated, “there is no dispute
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Furthermore, we emphasize that the motor vehicle violations with which
K.J.V. was charged were all summary offenses. See 75 Pa.C.S. §§ 3309
(failure to stay in single lane), 4107(b)(2) (operating a vehicle with unsafe
window tint), and 4703(a) (operating a vehicle without a valid inspection
certificate). Therefore, had Officer McCormick not conducted the search, he
would have been obliged to permit K.J.V. to leave in a vehicle in which he
detected a strong odor of unburnt marijuana. The juvenile court heard Officer
McCormick’s testimony and adjudged him credible. Accordingly, we agree
“the facts and circumstances within [Officer McCormick’s] knowledge [were]
sufficient to warrant a person of reasonable caution in the belief that an
offense has been or is being committed.” Harris, supra, 176 A.3d at 1023.
Therefore, K.J.V. is entitled to no relief.
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2018
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that probable cause exists to search [the defendant’s] motor vehicle.” Gary,
supra, 91 A.3d at 138. Moreover, in that case, after the officer detected the
odor of marijuana, he asked the defendant “if there was anything in the vehicle
that the officers ‘need [to] know about[,]” and the defendant responded that
“there was some ‘weed.’” Id. at 104. Therefore, the officer had probable
cause to search based on the defendant’s admission that he possessed illegal
drugs, as well as the smell of marijuana.
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