Com. v. Mann, M. ( 2023 )

J-S30021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MICHAEL A. MANN : No. 1815 EDA 2021
Appeal from the Order Entered August 16, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-000192-2021
BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED APRIL 28, 2023
The Commonwealth appeals from the August 16, 2021, order entered
in the Delaware County Court of Common Pleas granting a pretrial motion to
suppress by Michael A. Mann (Appellee).1 The trial court suppressed all
evidence stemming from an investigative detention following a traffic stop,
including all controlled substances found on Appellee’s person and in the
vehicle in which he was a passenger. The Commonwealth contends: (1) the
investigating officer possessed the requisite reasonable suspicion to support
the traffic stop based on the odor of freshly burnt marijuana emanating from
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* Retired Senior Judge assigned to the Superior Court.
1 The Commonwealth has properly certified in its notice of appeal that the
order “will terminate or substantially handicap the prosecution” pursuant to
Pa.R.A.P. 311(d). Notice of Appeal, 9/10/21.
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the moving car; and (2) because the stop was proper, the seizure of the
evidence recovered from the investigative detention was also permissible. For
the reasons below, we reverse the order granting suppression and remand for
further proceedings.
I. Facts & Procedural History
The trial court summarized the relevant facts of this case, which were
taken from the April 2021 suppression hearing, as follows:
Officer Sean Mullen (“Officer Mullen”) is a patrolman with
the City of Chester Police Department where he has been so
employed for approximately three (3) years.
On November 20, 2019[,] at approximately 9:00 p.m.[,]
Officer Mullen was on patrol at the 800 block of Kerlin Street in
the City of Chester, Delaware County, Pennsylvania. Officer
Mullen was in his marked vehicle, which was stopped at a traffic
light on the 800 block of Kerlin Street. He was in the left lane. His
windows were down. While stopped, he smelled the odor of burnt
marijuana, an odor which he recognized given his experience in
making arrests for marijuana related offenses. Based upon his
prior experience, Officer Mullen concluded that the odor of burnt
marijuana is indicative of “someone currently smoking or recently
. . . smoked marijuana.” Officer Mullen observed another vehicle
stopped at the traffic light. This vehicle was stopped in the right
lane, next to Officer Mullen. Officer Mullen’s vehicle was “less than
a car length” away from the other vehicle. The other vehicle had
two . . . occupants. Officer Mullen did not observe any smoke
emanating from the other vehicle. He did not see either the driver
or [Appellee] smoking marijuana. He only smelled the odor of
burnt marijuana. However, Officer Mullen suspected that the odor
was emanating from the vehicle due to the fact that this vehicle
was the only other vehicle “in the vicinity.” Officer Mullen offered
no testimony with respect to the presence or absence of
pedestrians in the area. Officer Mullen offered no testimony as to
whether he scanned the area for pedestrians or any individuals on
any of the properties located in the vicinity of the intersection.
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When the light turned green, Officer Mullen immediately
initiated a traffic stop of the vehicle. Officer Mullen offered no
testimony as to the specific crime he believed the vehicle
occupants to have committed. He initiated the traffic stop solely
because he detected an odor of burnt marijuana while stopped at
the traffic light and suspected the vehicle to be the origin of the
odor. After initiating the vehicle stop, Officer Mullen approached
the stopped vehicle on the passenger side. [Appellee] was the
only passenger in the vehicle and was seated in the front
passenger seat. Upon approaching the vehicle, Officer Mullen
observed a bag of suspected marijuana in [Appellee]’s right hand.
Officer Mullen described the bag as a clear sandwich bag. Officer
Mullen removed [Appellee] from the vehicle and placed him into
custody. He then conducted a search incident to an arrest and
found suspected heroin in [Appellee]’s top left jacket pocket.
The substance suspected to be marijuana was tested and
positively identified as marijuana. The substance suspected to be
heroin was field tested and positively identified as heroin. Officer
Mullen conducted an inventory search of the vehicle and found “in
the center cupholder a half-smoked cigarillo containing
marijuana.”
Trial Ct. Op., 1/13/22, at 3-5 (unpaginated; record citations omitted).
Appellee was then arrested and charged with the following crimes: (1)
one count of possession with intent to manufacture or deliver, (2) two counts
of possession of controlled substances, and (3) one count of possession of a
small amount of marijuana.2
On April 7, 2021, Appellee filed a motion to suppress, seeking to exclude
all evidence seized by the police from his person and in the vehicle. He argued
that Officer Mullen obtained the controlled substances and paraphernalia in
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2 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(31), respectively.
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violation of federal and state constitutional law. See Appellee’s Motion to
Suppress Physical Evidence, 4/7/21, at 3 (unpaginated).
The trial court held a hearing regarding the matter on April 14, 2021.
Trooper Mullen testified at the hearing. The court granted Appellee’s motion
several days later on April 29th.3 The Commonwealth subsequently filed a
motion for reconsideration of the court’s suppression order. In the motion,
the Commonwealth asserted that Appellee failed to meet his burden in
establishing a reasonable expectation of privacy in the car, and that Officer
Mullen
possessed reasonable suspicion to initiate the car stop based on
the strong smell of freshly burned marijuana[, the] police officer
had probable cause to arrest [Appellee] upon seeing a baggie of
marijuana in plain view as he approached the car, and he thus
legally obtained the heroin . . . in [Appellee]’s pocket during a
search incident to arrest[,] and the police officer saw in plain view
a cigarillo containing marijuana in the cupholder of the car.
Commonwealth’s Motion for Reconsideration of the Court’s Ruling on
[Appellee]’s Motion to Suppress Evidence, 5/7/21, at 2 (unpaginated).
Appellee filed a response to the Commonwealth’s motion for reconsideration
on June 2, 2021.
During this time, the trial court entered an order on May 19, 2021,4
setting forth a briefing schedule in regard to the motion for reconsideration
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3 The order was dated one day earlier on April 28th.
4 The order was dated two days earlier on May 17th.
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and scheduling oral argument for July 19, 2021. The trial court subsequently
entered an order granting the Commonwealth’s motion for reconsideration.
See Order, 6/1/21.5 Following the argument, the court entered another order
on August 16, 2021,6 which denied the Commonwealth’s motion. The court
further stated: “This [c]ourt’s [o]rder of April 2[9], 2021, which granted
suppression with respect to all physical evidence obtained in connection with
[Appellee]’s arrest on November 21, 2019[,] is affirmed in its entirety.” Order,
8/16/21. The Commonwealth filed a timely notice of appeal.
II. Issues
The Commonwealth presents the following issues for our review:
I. Did Officer Mullen have reasonable suspicion to conduct a traffic
stop based on the odor of freshly burnt marijuana emanating from
a moving car?
II. Where the investigative detention was legal, was the additional
evidence recovered fruit of the poisonous tree?
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5The order was dated May 26th, but docketed and timestamped on June 1st.
The order provided, in relevant part:
It is this Court’s intent that it[ ]s [o]rder of May 1[9], 2021 be
considered an express grant of [r]econsideration, as requested by
the Commonwealth’s [m]otion, filed on May 7, 2021, thereby
extending the Commonwealth’s deadline to file an appeal to [the]
Superior Court, pursuant to Pa.R.A.P. 903 and Pa.R.A.P. 311(d).
Order, 6/1/21.
6 The order was dated August 12th, but docketed and timestamped four days
later.
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Commonwealth Brief at 6.
III. Vehicle Stop & Reasonable Suspicion
The Commonwealth first argues that Officer Mullen properly possessed
reasonable suspicion to conduct a traffic stop based on the odor of freshly
burnt marijuana emanating from the stopped car. See Commonwealth’s Brief
at 10. It contends that in relying on Commonwealth v. Hicks, 208 A.3d 916(Pa. 2019), and Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), the trial
court “ignore[d] the difference” between probable cause and reasonable
suspicion when it ruled that Office Mullen improperly stopped the car, and
“failed to properly assess the totality of the circumstances to determine
whether there was reasonable suspicion justifying further investigation[.]”
Commonwealth’s Brief at 10-11. Id. The Commonwealth points out that
Officer Mullen “testified clearly and credibly that he smelled the odor of
recently burnt marijuana coming from the Honda next to him, in which
[Appellee] was later found to be the passenger” and “only initiated a traffic
stop to investigate the possibility of criminality.” Id. at 12, 15 (quotation
marks & footnote omitted). Moreover, the Commonwealth states:
Consistent with Pennsylvania law, Officer Mullen . . . reasonably
believed that the order of freshly burnt marijuana, which based
on his training and experience he knew meant someone had very
recently used the drug, was coming from the Honda that was
actively being driven. His investigation was thus permissible.
Id. at 15
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The Commonwealth further suggests that the trial court’s reliance on
Hicks, supra, and Barr, supra, is misplaced because the court “engaged in
an incomplete and erroneous analysis of the totality of the circumstances and
overlooked factors that properly contributed to reasonable suspicion.”
Commonwealth’s Brief at 16-17. The Commonwealth first states:
[T]he factual scenario of Hicks is distinguishable from the instant
case, even if the item possessed in Hicks was marijuana rather
than a gun. The gun in Hicks was being used; rather it was
passive. The equivalent form of marijuana would be the fresh,
raw marijuana that a person licensed to [possess] under the MMA
might have. Yet Officer Mullen did not smell fresh marijuana, he
smelled burnt marijuana. . . .
Id. at 17. Next, the Commonwealth alleges that “[u]nlike [in] Barr, the smell
of burnt marijuana was not the only factor present[,]” where Officer Mullen
also mentioned the additional factor that the smell of burnt marijuana “was
coming from a moving car.” Id. at 18.
Our review of an order granting a motion to suppress evidence is well-
established:
When reviewing the propriety of a suppression order, an appellate
court is required to determine whether the record supports the
suppression court’s factual findings and whether the inferences
and legal conclusions drawn by the suppression court from those
findings are appropriate. [Where the defendant] prevailed in the
suppression court, we may consider only the evidence of the
defense and so much of the evidence for the Commonwealth as
remains uncontradicted when read in the context of the record as
a whole. Where the record supports the factual findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
However, where the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s conclusions of law are not binding on an
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appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts.
Commonwealth v. Tillery, 249 A.3d 278, 280 (Pa. Super. 2021) (citation
omitted). With respect to this issue, we are also guided by the following:
The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution guarantee
the right of the people to be secure in their persons, houses,
papers, and possessions from unreasonable searches and
seizures. To secure the right of citizens to be free from
unreasonable search and seizure, courts in Pennsylvania require
law enforcement officers to demonstrate ascending levels of
suspicion to justify their interactions with citizens to the extent
those interactions compromise individual liberty. Because
interactions between law enforcement and the general citizenry
are widely varied, search and seizure law looks at how the
interaction is classified and if a detention has occurred.
Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019) (citations
& quotation marks omitted).
There are three categories of interactions between police and citizens:
The first is a mere encounter, sometimes referred to as a
consensual encounter, which does not require the officer to have
any suspicion that the citizen is or has been engaged in criminal
activity. This interaction also does not compel the citizen to stop
or respond to the officer. A mere encounter does not constitute a
seizure, as the citizen is free to choose whether to engage with
the officer and comply with any requests made or, conversely, to
ignore the officer and continue on his or her way.
The second type of interaction, an investigative detention, is a
temporary detention of a citizen. This interaction constitutes a
seizure of a person, and to be constitutionally valid police must
have a reasonable suspicion that criminal activity is afoot.
The third, a custodial detention, is the functional equivalent of an
arrest and must be supported by probable cause. . . .
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Commonwealth v. Adams, 205 A.3d 1195, 1199-1200 (Pa. 2019) (citations
omitted & paragraph breaks added).
Turning to the present matter, no one disputes that Appellee was
subjected to an investigative detention when Officer Mullen pulled his police
vehicle directly behind the Honda, and activated his lights. See
Commonwealth v. Spence, 290 A.3d 301, 314 (Pa. Super. 2023) (noting “a
motor vehicle stop is generally a second-level interaction, an investigative
detention”). As such, Officer Mullen was required to demonstrate that he
possessed reasonable suspicion to stop the vehicle at issue.
In determining whether police had reasonable suspicion to initiate
an investigative detention, the fundamental inquiry is an objective
one, namely, whether the facts available to police at the moment
of the intrusion warrant a man of reasonable caution in the belief
that the action taken was appropriate. Reasonable suspicion is
dependent upon both the quantity and quality of the information
police possess prior to detaining an individual. In order to assess
the facts available to police, we must consider the totality of the
circumstances. While reasonable suspicion is a less stringent
standard than probable cause, the detaining officer must be able
to articulate something more than an inchoate and
unparticularized suspicion or hunch.
Commonwealth v. Jefferson, 256 A.3d 1242, 1248-49 (Pa. Super. 2021)
(citations & quotation marks omitted), appeal denied, 268 A.3d 1071 (Pa.
2021).
In granting Appellee’s motion to suppress, the trial court found “[t]he
only specific and articulable fact in this matter is the odor of burnt marijuana,
which Officer Mullen detected while stopped in the intersection.” Trial Ct. Op.
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at 10 (unpaginated). Thus, the central issue, as the trial court properly
summarized, is the following:
[W]hether the odor of burnt marijuana which Officer Mullen
detected while stopped at the intersection, standing alone,
constituted a particularized and objective basis for suspecting that
the vehicle occupants were engaged in criminal activity. If it did[,]
then Officer Mullen possessed the requisite reasonable suspicion
and the stop of the vehicle [was] justified.
Id. at 11 (emphasis omitted).
“Historically, Pennsylvania courts have held the smell of marijuana alone
was sufficient to establish a reasonable suspicion of criminal activity.”
Commonwealth v. Cunningham, 287 A.3d 1, 9 (Pa. Super. 2022).
Nonetheless, following the passage of the Medical Marijuana Act (MMA)7 and
the legalization of marijuana, the Pennsylvania Supreme Court revisited the
issue.
First, the Supreme Court considered a similar claim involving the
potential legal possession of a firearm in Hicks, supra. There, the Supreme
Court held that an individual’s mere possession of a concealed firearm in a
public setting constitutes conduct “in which hundreds of thousands of
Pennsylvanians are licensed to engage lawfully” and is, on its own, “an
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7 35 P.S. § 10231.101 et seq. The Pennsylvania General Assembly enacted
the MMA with an effective date of May 2016.
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insufficient basis for reasonable suspicion that criminal activity is afoot.”
Hicks, 208 A.3d at 945.8
Subsequently, in Barr, supra, the Supreme Court concluded “that the
MMA makes abundantly clear that marijuana no longer is per se illegal in this
Commonwealth.” Barr, 266 A.3d at 41. Nevertheless, the Barr Court stated
that despite the enactment of the MMA, the possession of marijuana is still
illegal under the Controlled Substance, Drug, Device and Cosmetic Act (CSA)9
“for those not qualified under the MMA.” Id. The Supreme Court then held
“the odor of marijuana may be a factor, but not a stand-alone one, in
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8 Hicks overruled a prior decision of this Court, which held that “possession
of a concealed firearm by an individual in public is sufficient [in and of itself]
to create a reasonable suspicion that the individual may be dangerous, such
that an officer can approach the individual and briefly detain him in order to
investigate whether the person is properly licensed [to carry a firearm].”
Hicks, 208 A.3d at 921, quoting Commonwealth v. Robinson, 600 A.2d
957, 959 (Pa. Super. 1991).
9 35 P.S. §§ 780-101 et seq. See also 35 P.S. § 10231.304(a) (“Except as
provided in [the MMA], the use of medical marijuana is unlawful and shall . . .
be deemed a violation of the [CSA].”). The MMA “create[d] 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.” Commonwealth v. Jezzi, 208 A.3d 1105,
1111 (Pa. Super. 2019) (emphasis & citations omitted). Moreover, “[o]utside
the MMA, marijuana remains a prohibited Schedule I controlled substance for
the general citizenry who are unqualified under the MMA.” Id. at 1115(citation omitted). “[T]he General Assembly has not enacted legislation
amending the MMA, CSA, or the DUI statutes to remove marijuana from its
Schedule I designation under state law.” Commonwealth v. Stone, 273
A.3d 1163, 1172 (Pa. Super. 2022) (en banc) (footnote omitted), appeal
denied, 286 A.3d 213 (Pa. Oct. 12, 2022).
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evaluating the totality of the circumstances for purposes of determining
whether police had probable cause to conduct a warrantless search.”
Id. (emphasis added).10
Here, the trial court analyzed Hicks and Barr and determined:
What Barr and Hicks indicate, when taken together, is that
a concealed firearm on an individual’s person, like the odor of
marijuana emanating from a person, may be indicative of a
criminal act. However, there is no per se rule. It is not a stand-
alone, sufficient factor. Courts must examine other specific and
articulable facts which, when taken in the totality of the
circumstances — the whole picture — warrant individualized
suspicion of criminal conduct.
Trial Ct. Op. at 19 (unpaginated) (citation omitted). The court then
determined the Commonwealth failed to demonstrate that Officer Mullen
possessed reasonable suspicion of criminal activity that was sufficient to stop
the vehicle in which Appellee was a passenger, finding:
Officer Mullen detected the odor of burnt marijuana while stopped
at an intersection. Nothing more. He suspected that it was
emanating from the vehicle in the lane next to him. There was no
testimony that he saw the driver or [Appellee], a passenger,
smoking marijuana, or that he saw smoke emanating from their
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10 The Court further explained:
[W]e emphasize that the realization that a particular factor
contributing to probable cause may involve legal conduct does not
render consideration of the factor per se impermissible, so long as
the factor is considered along with other factors that, in
combination, suggest that criminal activity is afoot. [T]he totality-
of-the-circumstances analysis encompasses the consideration of
factors that may arguably be innocent in nature.
Barr, 266 A.3d at 41-42.
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vehicle. This Court cannot conclude that his suspicion was more
than a mere hunch. This Court concluded that there was
insufficient individualized and particularized suspicion of criminal
activity to warrant intrusion upon the [c]onstitutional rights of
[Appellee], a vehicle passenger, based upon the specific and
articulable facts of record in this matter.
Id. at 24.
We conclude that the trial court’s reasoning is misplaced for several
reasons. First, we note that Hicks and Barr are distinguishable from the
present matter. Hicks concerned the possession of a firearm — based on the
nature of the gun, it is not immediately apparent that any illicit conduct is
involved because “there is no way to ascertain an individual’s licensing status,
or status as a prohibited person, merely by his outward appearance.” Hicks,
208 A.3d at 937. Here, we point out that under the MMA, it is unlawful to
smoke medical marijuana. See 35 P.S. § 10231.304(b) (“It is unlawful to:
(1) Smoke medical marijuana. . . .); see also Commonwealth v. Felder,
1082 MDA 2021 (Pa. Super. Aug. 9, 2022) (unpub. memo. at 10) (noting that
because the MMA does not permit the smoking of marijuana, knowledge that
the appellant had paraphernalia for smoking marijuana gave the investigating
officer reason to believe the marijuana was being used illegally).11
Accordingly, it would have been immediately apparent to Officer Mullen that
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11 Pennsylvania Rule of Appellate Procedure 126 provides that non-
precedential decisions by this Court that are filed after May 1, 2019, “may be
cited for their persuasive value.” Pa.R.A.P. 126(b)(2).
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illegal activity might be occurring based on the odor of burnt marijuana.
Therefore, Hicks is not controlling in the present matter.
The trial court’s reliance on Barr is also misplaced because that case
concerned a warrantless search of a vehicle after the officer stopped the
car for an alleged motor vehicle code violation, and smelled marijuana once
he approached the car. See Barr, 266 A.3d at 29-30. As a result, the Barr
Court analyzed the facts before it pursuant to the probable cause standard,
which carries a higher burden of proof than the reasonable suspicion
standard.12 Moreover, the search of a car or person is more intrusive than a
motor vehicle stop. See Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa.
Super. 2007) (“To secure the right of citizens to be free from [unreasonable]
intrusions, courts in Pennsylvania require law enforcement officers to
demonstrate ascending levels of suspicion to justify their interactions with
citizens as those interactions become more intrusive.”) (emphases added
& citation omitted). Accordingly, Barr does not control the case sub judice.
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12 The trial court also relied on two more “probable cause” cases,
Commonwealth v. Grooms, 247 A.3d 31 (Pa. Super. 2021) and
Commonwealth v. Shaw, 246 A.3d 879 (Pa. Super. 2021). See Trial Ct.
Op. at 18 n.5-6. Grooms concerned a warrantless search of a vehicle after
officers detected an odor of marijuana coming from a car located in a mall
parking lot. See Grooms, 247 A.3d at 34. In Shaw, the officer stopped a
car for a motor vehicle code violation, and then searched the vehicle upon
detecting an odor of marijuana. See Shaw, 246 A.3d at 881-82. Like Barr,
the facts in both cases are distinguishable from the instant matter.
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Rather, we are guided by this Court’s recent decision in Cunningham,
supra.13 In that case, the officer was driving down a street when he detected
an order of burnt marijuana through the open windows in his vehicle.
Cunningham, 287 A.3d at 5. He then “scanned the area” and noticed three
hooded males, one of whom was later identified as the defendant. Id. He did
not see any smoke, and there were no cars in the vicinity. Id. at 6. As the
officer stopped the vehicle and approached the individuals, the smell grew
stronger. Id. at 5. The three men crossed the street to avoid contact with
him. Id. The officer asked them to stop while they yelled at him. Id. When
he asked them if they were smoking marijuana, the men became more
aggressive towards him. Id. Believing he was in danger, he decided to pat
down the men. Id. The defendant was the last one searched and the officer
immediately identified a handgun in the defendant’s front pocket. Id. at 5-6.
The defendant filed a motion to suppress, which the trial court granted. Id.
at 6. The Commonwealth then filed a notice of appeal. Id.
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13 We note that Cunningham was decided after the trial court entered its
August 16, 2021, order and Rule 1925(a) opinion. “Pennsylvania appellate
courts apply the law in effect at the time of the appellate decision. This means
that we adhere to the principle that a party whose case is pending on direct
appeal is entitled to the benefit of changes in law which occur[ ] before the
judgment becomes final.” Commonwealth v. Chesney, 196 A.3d 253, 257
(Pa. Super. 2018) (citations & quotation marks omitted). Moreover, we note
that one three-judge panel of this Court cannot overrule another. See
Commonwealth v. Taggart, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010);
see also Commonwealth v. Taylor, 649 A.2d 453, 455 (Pa. Super. 1994).
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Similar to the present matter, the Cunningham Court was faced with
the question of whether the police had reasonable suspicion to support the
stop/investigation detention. Id. at 8. The Court analyzed Hicks and Barr
and discussed the most recent caselaw by this Court, including non-
precedential memoranda,14 concerning marijuana and police interactions,
explaining:
This Court has had the opportunity to apply the Hicks and
Barr decisions to various cases. In Commonwealth v. Dabney,
274 A.3d 1283, 1289 (Pa. Super. 2022), we assumed, arguendo,
that Barr applies to a determination of reasonable suspicion for
an investigative detention, and we held that the officer could
consider the odor of raw marijuana, as well as other factors, in
making that determination. In Commonwealth v. Lomax, 273
A.3d 1049 (Pa. Super. filed Feb. 14, 2022) (unpublished
memorandum), we held the smell of fresh marijuana cannot
objectively suggest anything more than possession of a substance
that many Pennsylvanians can legally possess. Therefore, we
concluded that it cannot, on its own, establish the reasonable
suspicion necessary to initiate an investigative detention.
More recently, in Commonwealth v. Felder, 1082 MDA
2021, (Pa. Super. filed Aug. 9, 2022) (unpublished
memorandum), we recognized the MMA does not permit the
smoking of marijuana; therefore, the police’s knowledge that the
defendant had paraphernalia for smoking marijuana gave the
officer reason to believe the marijuana was being used illegally.
Also, in Commonwealth v. Mercedes, 1275 MDA 2021, (Pa.
Super. filed Sept. 23, 2022) (unpublished memorandum), we
again recognized the MMA does not permit the smoking of
marijuana. . . . Accordingly, we held the police had reasonable
suspicion that marijuana was being illegally smoked when they
smelled burnt marijuana and observed the defendant or his
companion smoking a cigarillo. See Mercedes, supra.
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14 See Pa.R.A.P. 126(b)(2).
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Cunningham, 287 A.3d at 9-10 (footnoted omitted).
The Cunningham Court then stated: “[V]iewing the totality of the
circumstances, and applying our Supreme Court’s holdings in Barr, supra,
and its progeny, we conclude [the officer] had a reasonable suspicion that
criminal activity was afoot when he subjected [the defendant] to the
investigative detention.” Cunningham, 287 A.3d at 10. The Court pointed
to the burnt smell of marijuana (and the fact the men walked across the street
when the officer approached them) to support this conclusion. Id. Thus, this
Court reversed the trial court’s grant of the defendant’s motion to suppress.15
With these principles in mind, we agree with the Commonwealth that
the trial court erred in concluding Officer Mullen did not have reasonable
suspicion to stop the vehicle at issue. The record reveals that Officer Mullen,
a three-year veteran, was on routine patrol in Chester, Pennsylvania, at 9
p.m. on November 20, 2019. See N.T., 4/14/21, at 5-6. His vehicle was
located in the left traffic lane, waiting for a green light, with his windows down
when he smelled “an odor of burnt marijuana coming from a Honda” that was
located “less than a car length” from his vehicle in the right lane. Id. at 6, 8.
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15This Court also addressed the issue of whether the officer had reasonable
suspicion to frisk the defendant. See Cunningham, 287 A.3d at 10-12.
It should be noted that the author of this decision filed a dissenting
opinion in Cunningham, concluding the officer lacked reasonable suspicion
to detain and frisk the appellant. Nevertheless, this author recognizes he is
bound by the decision.
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Once the light turned green, he activated his emergency lights and conducted
a traffic stop. Id. at 6. The officer indicated there were no “other vehicles in
or around the vicinity of” his car or the vehicle that was subjected to the stop.
Id. at 7. He could not see into the Honda because of his position. Id. at 8.
He stated he was “familiar with the smell of burnt marijuana versus raw
marijuana[.]” Id. at 7. He further stated that based on his experience, burnt
marijuana signaled that someone was “currently smoking or recently just
smoked marijuana.” Id. The officer testified he was not aware of any medical
marijuana dispensaries in that area. Id.
In accordance with the CSA, the MMA, and Cunningham, and given the
totality of the circumstances (including smelling the odor of burnt marijuana
and that the vehicle at issue was the only one in the vicinity), Officer Mullen
had reasonable suspicion that criminal activity was afoot — specifically, that
marijuana was being smoked illegally16 — which justified the vehicle stop.17
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16 In the en banc Stone decision, this Court stated:
[D]espite the passage of the MMA, it still is illegal in Pennsylvania
to smoke or vape marijuana while driving. If an individual ingests
marijuana while driving, it is immaterial whether the marijuana is
medical or non-medical or if that individual possesses a valid
medical marijuana card; driving while smoking or vaping
marijuana remains illegal.
Stone, 273 A.3d at 1172 (citations & quotation marks omitted).
17It merits mention the trial court did not make a credibility determination
concerning Officer Mullen, and the officer did testify that he smelled burnt
(Footnote Continued Next Page)
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Accordingly, we conclude the trial court erred in granting Appellant’s motion
to suppress based on Officer’s Mullen’s alleged lack of reasonable suspicion to
stop the vehicle.18
IV. Search & Seizure of Additional Evidence
Next, we consider the Commonwealth’s second argument that because
Officer Mullen had reasonable suspicion to stop the Honda, the additional
evidence recovered was properly seized and not the fruit of the poisonous
tree. See Commonwealth’s Brief at 22.
A. The Baggie of Marijuana in Appellee’s Hand
The Commonwealth contends that as a result of the proper stop, Officer
Mullen was permitted to seize the baggie of marijuana in Appellee’s hand
because he observed it in “plain view” and “from a legal vantage point.” See
Commonwealth’s Brief at 22. It states that pursuant to the plain view
doctrine, “the totality of the circumstances firmly established that there was
probable cause to believe that the incriminating nature of the plastic bag
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marijuana coming from the car in which the Appellee was a passenger. See
N.T. at 6. We also note that in Cunningham, the officer only smelled the
odor of burnt marijuana, but never observed smoke coming from the males.
See Cunningham, 287 A.3d at 6.
18We note that both the Commonwealth and the trial court cite to In the
Interest of A.A., 195 A.3d 896 (Pa. 2018), which predates Hicks and Barr,
and was also abrogated on “plain smell” grounds by Barr, 266 A.3d at 41. In
any event, based on Cunningham, we need not reach the issue of whether
A.A. applies to the present case.
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containing marijuana was immediately apparent” and the officer recognized it
as contraband based on his experience. Id. at 24
The plain view doctrine provides that evidence in plain view
of the police can be seized without a warrant. This doctrine
permits a valid warrantless seizure of an item where: (1) the
police have not violated the Fourth Amendment in arriving at the
location from which the item could be viewed; (2) the item is in
plain view; (3) the incriminating character of the item is
immediately apparent; and (4) the police have a lawful right of
access to the item itself.
There can be no reasonable expectation of privacy in an
object that is in plain view. There is no reason a police officer
should be precluded from observing as an officer what would be
entirely visible to him as a private citizen. To assess whether the
incriminating nature of an object was immediately apparent to the
police officer, reviewing courts must consider the totality of the
circumstances. In viewing the totality of the circumstances, the
officer’s training and experience should be considered.
Commonwealth v. Lutz, 270 A.3d 571, 577-78 (Pa. Super. 2022) (citations
& quotation marks omitted).19
Here, the record reveals that when Officer Mullen approached the
passenger side of the Honda, he looked in and observed Appellee with “a [clear
sandwich] bag of marijuana in his right hand.” See N.T. at 9-10. Based on
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19 The plain view doctrine has not been impacted by Commonwealth v.
Alexander, 243 A.3d 177 (Pa. 2020), which held that officers must have both
probable cause and exigent circumstances to justify a warrantless search of
an automobile. In Commonwealth v. Smith, 285 A.3d 328 (Pa. Super.
2022), this Court held that “the decision in Alexander does not address the
plain view exception or any alterations to its requirements[and, t]herefore,
where the circumstances permit an application of the plain view exception, we
need not apply Alexander.” Smith, 285 A.3d at 332 (citation omitted). See
also Commonwealth v. McMahon, 280 A3d 1069, 1074 (Pa. Super. 2022).
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our analysis supra, Officer Mullen was lawfully outside the Honda when he
first observed the bag of marijuana in plain view on the passenger’s side from
the vantage point of the window. We now turn to whether the bag’s
“incriminating character was readily apparent” and whether Officer Mullen
“had a lawful right of access” to the bag. Lutz, 270 A.3d at 578.
An officer can never be 100 percent certain that an item in
plain view is incriminating, but his belief must be supported by
probable cause. A determination of probable cause requires only
a probability and not a prima facie showing of criminal activity
applying a totality of the circumstances test. Thus, probable
cause is a practical, nontechnical conception: it is a fluid concept
— turning on the assessment of probabilities in particular factual
contexts not readily, or even usefully, reduced to a neat set of
legal rules.
Lutz, 270 A.3d at 578 (citations & quotation marks omitted).
As mentioned above, while “marijuana no longer is per se illegal in this
Commonwealth” following passage of the MMA, “possession of marijuana [is]
illegal for those not qualified under the MMA.” Barr, 266 A.3d at 41.
Moreover, pursuant to the MMA, marijuana “may only be dispensed” in the
following forms — pills, oils, topical forms, forms “medically appropriate for
administration by vaporization[,]” tinctures, or liquids. 35 P.S. §
10231.303(b)(2)(i-vi). It “may not be dispensed . . . in dry leaf or plant form.”
35 P.S. § 10231.303(b)(3). Moreover, unused medical marijuana “shall be
kept in the original package in which it was dispensed.” 35 P.S. §
10231.303(b)(6).
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Applying probable cause as a “practical, nontechnical” concept, we
conclude Officer Mullen’s belief that the bag of marijuana “in plain view was
readily discernible as incriminating in nature provided ample probable cause.”
Lutz, 270 A.3d at 578-79 (citation omitted). The officer immediately
recognized that it was marijuana in Appellee’s hand and did not indicate that
it was in any of the enumerated and permitted forms as set forth in the MMA.
Moreover, the officer did not indicate it was in the original packaging; rather
it was in a clear plastic sandwich bag. Therefore, we agree with the
Commonwealth’s argument that based on the totality of the circumstances,
Officer Mullen had lawful access to the bag of marijuana in Appellee’s hand
because he observed the contraband in plain view. Because the seizure was
lawful, the trial court erred in granting suppression of the bag containing
marijuana.
B. Drugs Found Search Incident to Arrest
The Commonwealth further argues that because Officer Mullen had
probable cause to arrest Appellee based on his possession of the bag of
marijuana, the officer was permitted to search Appellee’s person incident to
arrest and recover the additional drugs found in his pocket. See
Commonwealth’s Brief at 25.
The search incident to arrest exception allows arresting
officers, in order to prevent the arrestee from obtaining a weapon
or destroying evidence, to search both the person arrested and
the area within his immediate control. Furthermore, this
exception to warrantless searches permits police to search an
arrestee’s person as a matter of course, without a case-by-case
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adjudication of whether such search is likely to protect officer
safety or evidence. Stated another way, in all cases of lawful
arrests, police may fully search the person incident to the arrest.
Lutz, 270 A.3d at 579-80 (citations, quotation marks, & emphasis omitted).
Here, after observing the bag of marijuana in Appellee’s hand, Officer
Mullen removed him from the vehicle, placed him custody, and then searched
incident to arrest. See N.T. at 10. He discovered “heroin” in Appellee’s “left
top jacket pocket.” Id. We note the Pennsylvania “Supreme Court has
expressly recognized that an officer conducting a valid traffic stop may order
the occupants of a vehicle to alight to assure his own safety.”
Commonwealth v. Mattis, 252 A.3d 650, 655 (Pa. Super. 2021). Moreover,
the search of Appellee’s person incident to arrest was proper. See Lutz, 270
A.3d at 579-80. Based on the facts before us, we do not discern that the
scope of the search or the manner in which the search was conducted gave
rise to an impression of illegality. Accordingly, we conclude the trial court
erred in granting suppression of the drugs found in Appellee’s pocket following
a search incident to arrest.
C. Cigarillo Found in Cupholder of the Car
In its last argument, the Commonwealth asserts:
[B]ecause neither the driver nor [Appellee] was authorized to
drive the vehicle in which they were found (because the driver had
neither a license nor registration and [Appellee] was arrested),
Officer Mullen needed to immobilize the car. In doing so, he
observed in plain view in the center cupholder . . . a half-smoked
cigarillo containing marijuana.
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Commonwealth’s Brief at 25 (citations omitted). The Commonwealth also sets
forth an alternative argument that “even if Officer Mullen had not sought to
immobilize the car incident to arrest, the suppression of the cigarillo would
still remain improper where, as here, [Appellee] failed to meet his burden to
prove a privacy interest in the Honda.” Id. at 26.
Officer Mullen testified that the driver of the Honda “did not have a valid
license.” N.T. at 14. Moreover, the officer stated that he did not believe the
vehicle was registered to the driver. Id. at 11. As a result, he conducted an
inventory search of the car and found “a half-smoked cigarillo containing
marijuana” in the center cupholder. Id. at 10. The vehicle was then towed.
Id. at 14.
We first turn to the Commonwealth’s privacy interest argument.
An expectation of privacy will be found to exist when the
individual exhibits an actual or subjective expectation of privacy
and that expectation is one that society is prepared to recognize
as reasonable. In determining whether a person's expectation of
privacy is legitimate or reasonable, the totality of the
circumstances must be considered and the determination will
ultimately rest upon a balancing of the societal interests involved.
The constitutional legitimacy of an expectation of privacy is not
dependent on the subjective intent of the individual asserting the
right but on whether the expectation is reasonable in light of all
the surrounding circumstances.
Commonwealth v. Viall, 890 A.2d 419, 422 (Pa. Super. 2005) (citations &
quotation marks omitted).
It is well-settled that “a defendant charged with a possessory offense
has automatic standing to challenge a search.” Commonwealth v. Burton,
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973 A.2d 428, 435 (Pa. Super. 2009) (en banc) (citation omitted).
Nevertheless, “in order to prevail, the defendant . . . must show that he had
a privacy interest in the area searched.” Id. at 434 (citation omitted). In
Commonwealth v. Enimpah, 106 A.3d 695 (Pa. 2014), the Pennsylvania
Supreme Court clarified that the Commonwealth retains the initial burden to
“present evidence that the defendant’s constitutional rights were not
infringed.” Id. at 701. However, if the Commonwealth presents evidence
which shows the defendant “lacked such a privacy interest,” the burden shifts
to the defendant to demonstrate he had a reasonable expectation of privacy
in the area searched. Id.
This Court has recognized that “occupants of an automobile have a
certain expectation of privacy in the operation of that vehicle and may not be
subject to unfettered governmental intrusion in the form of an unlawful
stop[.]” Viall, 890 A.2d at 422. “While passengers in an automobile may
maintain a reasonable expectation of privacy in the contents of luggage they
placed inside an automobile, it would be unreasonable to maintain a subjective
expectation of privacy in locations of common access to all occupants.” Id.
at 423 (citations omitted).
Here, the Commonwealth presented evidence that Appellee was in a car
that was being driven by a companion who does not have a valid driver’s
license and neither occupant of the car were the registered owners. Moreover,
the Commonwealth demonstrated the evidence at issue, the cigarillo, was
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found in the center cupholder, a common access area to all individuals in the
car. Appellee did not present any evidence to refute this testimony.
Therefore, we conclude Appellee did not satisfy his burden of demonstrating
he had a reasonable expectation of privacy in the vehicle searched. See
Enimpah, 106 A.3d at 701. Accordingly, the trial court erred in suppressing
evidence of the cigarillo because Appellee lacked a privacy interest in the
search.20
V. Conclusion
In sum, we reverse the trial court’s order granting suppression of
evidence stemming from an investigative detention following a traffic stop,
including all controlled substances found on Appellee’s person and in the
vehicle in which he was a passenger.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2023
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20Based on our “privacy interest” determination, we need not reach the
Commonwealth’s argument concerning the inventory search.
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