Com. v. Yeager, P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PAUL YEAGER :
:
Appellant : No. 2036 MDA 2019
Appeal from the Judgment of Sentence Entered December 12, 2019
in the Court of Common Pleas of Schuylkill County
Criminal Division at No(s): CP-54-CR-0002114-2018
BEFORE: PANELLA, P.J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED NOVEMBER 19, 2020
Paul Yeager (“Yeager”) appeals from the judgment of sentence imposed
following his conviction of four counts of driving under the influence of a
controlled substance (“DUI”).1 We affirm.
In its Opinion and Order, the suppression court set forth its findings of
fact as follows:
On June 8, 2018[, Yeager] was stopped in the Borough of
Coaldale by Officer [Charles] Blesse [(“Officer Blesse”),] who was
employed by the Coaldale Police Department since 2006. Officer
Blesse was on routine patrol working the 11:00 p.m. to 7:00 a.m.
shift. Officer Blesse testified that he had extensive training to
detect whether somebody is driving under the influence of drugs
and had multiple opportunities to recognize the odor of burning
marijuana.
On June 8, 2018[,] Officer Blesse was in uniform, in a
marked patrol car on Route 209[,] when he observed a tan sedan
in front of him. The weather was warm and Officer Blesse had the
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1 See 75 Pa.C.S.A. § 3802(d).
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windows open. [Officer Blesse] testified that he detected a strong
smell of burnt marijuana coming from the vehicle[,] as he followed
the vehicle for a quarter to a half mile. After the vehicle turned
and traveled the length of Bull Run Street, the [O]fficer activated
his lights and sirens. The vehicle hit the curb as it pulled off the
road way. [Officer Blesse] then made contact with the driver, who
was the only person in the car. While getting license and
registration information from [Yeager], the Officer continued to
smell burnt marijuana.
Officer Blesse asked [Yeager] where the marijuana was. In
response, [Yeager] produced a bag of green vegetable matter, a
blunt, a vaping pipe and rolling papers. [Yeager] then voluntarily
stated[,] “[A]s I was smoking, heading into town I had a feeling I
was going to get stopped.” He was then asked to exit the vehicle
to allow the Officer to perform the Horizontal Gaze Nystagmus
(HGN) field sobriety test[,] which [Yeager] reportedly failed. The
Officer then concluded that [Yeager] was incapable of safely
driving the vehicle.
After the test was completed, [Yeager] was placed under
arrest, handcuffed and transported to St. Luke’s [Hospital] for a
blood draw[,] after which [Yeager] was released. The blood was
then taken to the Coaldale Police Station and placed in the
evidence refrigerator. Additional testimony revealed [that] the
Coaldale Police transported the blood to the Pottsville Hospital
laboratory for testing. The NMS Laboratory Report indicated [that
Yeager’s] blood contained amphetamines, methamphetamines,
hydroxyl Delta-9 THC, Delta-9 Carboxy THC, and Delta-9 THC.
[Officer Blesse] did not at any time read [Yeager] his Miranda[2]
[r]ights and had given him one field sobriety test.
Opinion and Order, 9/13/19, at 4-5 (footnote added).
On March 13, 2019, Yeager filed an Omnibus Pre-Trial Motion, including,
inter alia, a Motion for suppression of evidence. Yeager argued that he was
illegally stopped, detained, and searched. The suppression court conducted a
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2 See Miranda v. Arizona, 384 U.S. 436 (1966).
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hearing on the Omnibus Pre-Trial Motion on May 22, 2019. During the
hearing, Yeager additionally challenged the chain of custody of the blood test,
and argued that the statements he made to Officer Blesse should be
suppressed because he was never advised of his Miranda rights. The
suppression court permitted both parties to file a memorandum in support of
their respective positions. Both parties complied. On September 13, 2019,
the suppression court entered an Opinion and Order granting in part, and
denying in part, Yeager’s Omnibus Pre-Trial Motion. Specifically, the court
suppressed all physical evidence obtained as a result of the vehicle stop,
because Yeager had not been advised of his Miranda rights before Officer
Blesse seized the evidence. However, the suppression court deemed
admissible the statements Yeager made about smoking marijuana as
voluntarily made, as well as the blood test results.
Yeager filed a Motion for Reconsideration, asking the suppression court
to determine that the vehicle stop was not supported by probable cause.
Yeager specifically asserted that an officer may not stop a vehicle based solely
on the smell of marijuana, because medical marijuana is now legal in
Pennsylvania. The suppression court dismissed Yeager’s Motion for
Reconsideration.
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Following a bench trial on October 25, 2019, the trial court found Yeager
guilty of four counts of DUI.3 The trial court deferred sentencing and ordered
the preparation of a pre-sentence investigation report. On December 12,
2019, the trial court sentenced Yeager to a term of 90 days to 5 years in
prison, with immediate eligibility for the Work Release Program at the
Schuylkill County Prison if he otherwise qualified. The trial court also ordered
Yeager to serve 10 hours of community service, pay restitution totaling $577
for the blood testing, plus a fine and costs.
Yeager filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal.
On appeal, Yeager raises the following issue for our review:
Whether the smell of burnt marijuana is no longer a basis for the
police to condu[c]t a traffic stop post-enactment of the
Pennsylvania Medical Marijuana Act [(“MMA”)4], making the stop
of [Yeager’s] vehicle unlawful, and therefore[,] all evidence
obtained as a result of the unlawful stop should have been
suppressed by the [suppression] court?
Brief for Appellant at 4 (footnote added).
We are mindful of the following standard of review:
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
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3Yeager was also charged with possession of a small amount of marijuana
and use or possession of drug paraphernalia. See 75 P.S. § 780-
113(a)(31)(i), (32). Upon Motion by the Commonwealth, those charges were
nolle prossed prior to the start of trial.
4 See 35 P.S. §§ 10231.101-10231.2110.
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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 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, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation,
brackets and ellipses omitted).
Yeager claims that the smell of marijuana emanating from a vehicle does
not, by itself, provide probable cause or reasonable suspicion to justify a
warrantless vehicle stop. Brief for Appellant at 18. Yeager points out that
under the MMA, Pennsylvanians can legally access medically-prescribed
marijuana. Id. at 18-19. Yeager cites to several cases from other
jurisdictions, which have considered the ramifications of the legalization of
marijuana on Fourth Amendment jurisprudence. Id. at 19-24 (collecting
cases). Additionally, Yeager analogizes the instant case to
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Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019).5 Brief for Appellant at
25-27. Yeager emphasizes Officer Blesse’s testimony that his sole reason for
stopping Yeager was the smell of burnt marijuana. Id. at 27. Yeager contends
that because medical marijuana has been legalized in Pennsylvania, the smell
of burnt marijuana may no longer be considered per se evidence that a crime
is being committed. Id. at 28-29. Additionally, Yeager claims that Officer
Blesse had no other reason to suspect that a DUI was occurring. Id. at 29.
By way of background, we first set forth this Court’s prior explanation
of the interplay between the Controlled Substance Act (“CSA”), and the MMA
(effective May 17, 2016):
[T]he first statute is the CSA, which describes five schedules of
controlled substances. 35 P.S. § 780-104. In outlining the
Schedule I substances, the [CSA] states:
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5 In Hicks, police stopped Hicks’s vehicle in a gas station parking lot based on
information that he was in possession of a firearm. Hicks, 208 A.3d at 922.
An officer restrained Hicks’s arms and removed his handgun from his holster,
and a search of the vehicle followed. Id. Police later determined that Hicks
possessed a valid license to carry a concealed firearm, and he was not
statutorily prohibited from possessing a firearm. Id. Relevantly, Hicks was
not charged with firearms offenses. Id. The trial court denied suppression,
reasoning that possession of a concealed weapon justifies an investigatory
stop to determine whether the individual has a license. Id. at 922-23.
Ultimately, in evaluating whether carrying a concealed firearm could justify an
investigative detention, the Pennsylvania Supreme Court first noted that an
individual may legally carry a concealed firearm in public if he is licensed to
do so. Id. at 926. The Court also noted it is impossible to ascertain an
individual’s licensing status from his appearance. Id. at 937. Following an
extensive review of applicable Fourth Amendment jurisprudence, see id. at
930-36, the Court concluded that there is “no justification for the notion that
a police officer may infer criminal activity merely from an individual’s
possession of a concealed firearm in public.” Id. at 936.
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§ 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 12, 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.
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(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 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.
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(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 “if 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.
Commonwealth v. Jezzi, 208 A.3d 1105, 1111-12 (Pa. Super. 2019)
(emphasis in original; footnotes and some brackets omitted).
Regarding the lawful use of medical marijuana, the Act provides, in
relevant part, as follows:
§ 10231.303. Lawful use of medical marijuana
***
(b) Requirements.--The lawful use of medical marijuana is
subject to the following:
***
(2) Subject to regulations promulgated under this act, medical
marijuana may only be dispensed to a patient or caregiver in
the following forms:
(i) pill;
(ii) oil;
(iii) topical forms, including gels, creams or ointments;
(iv) a form medically appropriate for administration by
vaporization or nebulization, excluding dry leaf or plant form
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until dry leaf or plant forms become acceptable under
regulations adopted under section 1202;[FN]
(v) tincture; or
(vi) liquid.
[FN] 35 P.S. § 10231.1202. [Section 1202 allows the
Department of Health to “promulgate regulations to
effectuate recommendations made by the advisory board.”
Id.]
35 P.S. § 10231.303(b) (emphasis added); see also id. § 10231.1201(a)
(providing for the establishment of a Medical Marijuana Advisory Board).
Thus, at the time of its effective date of May 17, 2016, the MMA prohibited
both smoking medical marijuana, and the use of dry leaf and plant forms of
marijuana for vaporization.
On April 9, 2018, the advisory board issued its Final Report. See id.
§ 10231.1201(j)(4) (tasking the advisory board with, inter alia, “issu[ing] two
years after the effective date of this section a written report to the Governor,
the Senate and the House of Representatives.”). Relevantly, the advisory
board “recommend[ed] permitting medical marijuana to be dispensed in dry
leaf or plant form, for administration by vaporization.” Final Report,
Pennsylvania Medical Marijuana Advisory Board, 4/9/18, at 13. In support of
its recommendation, the advisory board explained that dry leaf and plant
forms have a lower cost for patients, and allows for accurate dosage because
its medical benefits can be felt within minutes. Id.
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The Secretary of Health subsequently effectuated the advisory board’s
recommendations (including its recommendation concerning dry leaf and plant
forms of marijuana), which were adopted at a public meeting held on April 9,
2018. See 48 Pa. Bull. 2898-2900 (May 12, 2018); see also 35 P.S.
§ 10231.1202 (providing that the Department of Health “may promulgate
regulations to effectuation recommendations made by the advisory board[,]”
and the Secretary of Health “shall issue notice in the Pennsylvania Bulletin …
[which] shall include the recommendations of the advisory board and shall
state the specific reasons for the decision of the secretary on whether or not
to effectuate each recommendation.”). The resulting temporary regulation
defines “medical marijuana” as “[m]arijuana for certified medical use, limited
to the following forms … [a] form medically appropriate for administration by
vaporization or nebulization, including dry leaf or plant form for administration
by vaporization.” 28 Pa. Code § 1141.21 (expired) (emphasis added).6
Further, dry leaf medical marijuana was not available until August 1, 2018, at
the earliest. See Press Release, Wolf Administration: Phase-In Of Dry Leaf
Medical Marijuana Starts Aug. 1 At Dispensaries (July 30, 2018), https://www.
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6 The temporary regulation became effective on May 17, 2018, and expired
on May 12, 2020. See 35 P.S. § 10231.1107 (providing that temporary
regulations promulgated under the MMA “shall expire not later than two years
following the publication of the temporary regulation.”). The General
Assembly recently extended the “temporary regulations authorized and
published” pursuant to sections 1107 and 2007 of the MMA, to remain in effect
until November 20, 2021. See Act of Mar. 27, 2020, P.L., No. 10.
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mediapa.gov/Pages/Health-Details.aspx?newsid=518 (explaining that the dry
leaf form will be available at 16 dispensary locations starting August 1, 2018,
and expanded to 28 locations the following week).
We now turn to the level of suspicion necessary to support a vehicle
stop. The Motor Vehicle Code provides that “[w]henever a police officer … has
reasonable suspicion that a violation of this title is occurring or has occurred,
he may stop a vehicle … to secure such [] information as the officer may
reasonably believe to be necessary to enforce the provisions of this title.” 75
Pa.C.S.A. § 6308(b). “Thus, [section] 6308(b) requires only reasonable
suspicion in support of a stop for the purpose of gathering information
necessary to enforce the Vehicle Code violation.” Commonwealth v.
Venable, 200 A.3d 490, 498 (Pa. Super. 2018). Generally, a vehicle stop for
suspicion of DUI may be based on reasonable suspicion, because such a stop
may require further investigation. See id.; see also Commonwealth v.
Chase, 960 A.2d 108, 116 (Pa. 2008) (stating that “[e]xtensive case law
supports the conclusion [that] a vehicle stop for DUI may be based on
reasonable suspicion, as a post-stop investigation is normally feasible.”).
“In ascertaining the existence of reasonable suspicion, we must look to
the totality of the circumstances to determine whether the officer had
reasonable suspicion that criminal activity was afoot.” Commonwealth v.
Barber, 889 A.2d 587, 593 (Pa. Super. 2005) (citation and quotation marks
omitted). “[W]e must accord due weight to the specific reasonable inferences
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that [Officer Blesse] is entitled to draw from the acts in light of his experience.”
Commonwealth v. Walls, 206 A.3d 537, 541 (Pa. Super. 2019) (citation
and quotation marks omitted).
During the suppression hearing, Officer Blesse testified that on June 8,
2018, at approximately 11:56 p.m., he was on routine patrol, and was driving
behind a vehicle traveling eastbound on State Route 209. N.T. (Suppression),
5/22/19, at 7-8, 21. Officer Blesse stated that the windows of his patrol car
were down, and the driver’s side window of the vehicle was also rolled down.
Id. at 8-9. Officer Blesse testified that he followed the vehicle for
approximately a quarter of a mile to a mile, and “smelled an odor of burnt
marijuana.” Id. at 8; see also id. at 38 (wherein Officer Blesse stated that
he was traveling at least four car lengths behind Yeager’s vehicle).
According to Officer Blesse, the vehicle turned right onto Bull Run Street,
and he followed the vehicle the length of that street, about a quarter of a mile.
Id. at 9. The vehicle then made a left turn onto West Phillips Street, at which
time Officer Blesse followed and activated his emergency lights and sirens to
initiate a traffic stop. Id.; see also id. at 11 (wherein Officer Blesse testified
that he could smell marijuana “for a good portion of a mile” while he was
traveling behind Yeager). Officer Blesse stated, “While behind him while he
made the left turn, I was able to verify that his window was, in fact, down.
And I did see smoke coming out of that window. I did continue to smell the
marijuana coming from the vehicle the entire time.” Id.; see also id.
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(explaining that he could identify the smell of marijuana because it has a
“distinct smell[,]” and he has been trained in drug recognition and
identification). But see id. at 22-23, 25 (wherein defense counsel refreshed
Officer Blesse’s recollection with the transcript from the preliminary hearing,
during which Officer Blesse had stated that he did not see smoke coming out
of the window).
Thus, the record reflects that Officer Blesse initiated the traffic stop
based solely on the odor of burnt marijuana, emanating from the vehicle’s
open driver’s side window, which he detected while following Yeager’s vehicle.
See N.T. (Suppression), 5/22/19, at 8, 9, 11. The MMA specifically prohibits
smoking medical marijuana. 35 P.S. § 10231.304. At the time of the traffic
stop on June 8, 2018, the temporary regulations permitting the use of dry leaf
marijuana for vaporization was in effect, but dry leaf medical marijuana was
not yet available for purchase at dispensaries. See 28 Pa. Code § 1141.21;
Press Release, supra. Accordingly, at the time of the stop in the instant case,
Yeager could not have produced the odor of burnt marijuana through a use
permitted under the MMA,7 and the smell alone could give rise to “reasonable
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7 See generally Commonwealth v. Barr, 2020 WL 5742680, at *16 n.10
(Pa. Super. filed September 25, 2020) (wherein this Court credited an expert
witness’s testimony that vaporizing medical marijuana produces the same
odor as burning marijuana). Further, Yeager makes no attempt to argue that
he was using any form of medical marijuana at the time of the stop, nor did
he produce a medical marijuana identification card.
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suspicion that criminal activity was afoot.” Barber, 889 A.2d at 593.8, 9 Thus,
Yeager is not entitled to relief on his claim.
Accordingly, we affirm Yeager’s judgment of sentence.10
Judgment of sentence affirmed.
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8 Our conclusion is limited to the time period prior to the effectuation of the
temporary regulations under the MMA, and the availability of the dry leaf and
plant forms of medical marijuana for vaporization.
9 We are cognizant of this Court’s recent decision in Barr, 2020 WL 5742680(Pa. Super. filed September 25, 2020), wherein police initiated a traffic stop,
then conducted a search based on the odor of burnt and raw marijuana
emanating from the vehicle’s window. Barr, 2020 WL 5742680, at **1-2;
see also id. at *2 (stating that Barr, a passenger in the vehicle, produced a
medical marijuana identification card after the police advised the occupants of
their intention to search the vehicle). After considering the provisions of the
MMA, the Barr Court explained that “[t]he MMA has clearly altered the
underlying factual context in which that probable cause test applies.” Id. at
*9. This Court held that “[t]he odor of marijuana alone, absent any other
circumstances, cannot provide individualized suspicion of criminal activity.”
Id. at *17; see also id. at *18 (stating that “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.”). Further, applying the reasoning of Hicks, this Court
noted that “police cannot distinguish between contraband marijuana and
medical marijuana legally consumed by a substantial number of
Pennsylvanians based on odor alone….” Id. at *16. Importantly, in contrast
to the instant case, the stop and search at issue occurred after the enactment
of the temporary regulation permitting the use of dry leaf or plant forms
medical marijuana for vaporization, and after dry leaf marijuana became
available in dispensaries.
10 Moreover, we observe that the MMA has not altered the Motor Vehicle
Code’s prohibition on driving under the influence of controlled substances,
including marijuana. See 75 Pa.C.S.A. § 3802(d)(1)(i) (providing that “[a]n
individual may not drive, operate or be in actual physical control of the
movement of a vehicle,” where the individual’s blood contains any amount of
a Schedule I controlled substance, as defined in the CSA).
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President Judge Panella joins the memorandum.
Judge Stabile files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2020
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