Com. v. Davis, M. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARKEE DAVIS :
:
Appellant : No. 1912 EDA 2021
Appeal from the Judgment of Sentence Entered August 13, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008741-2019
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 23, 2023
Markee Davis appeals from the judgment of sentence, 1 entered in the
Court of Common Pleas of Philadelphia County, after he was convicted of
carrying a firearm without a license2 and carrying a firearm in a public place
in Philadelphia.3 On appeal, Davis challenges the trial court’s denial of his pre-
trial motion to suppress a firearm. After review, we reverse the order denying
suppression and vacate Davis’ judgment of sentence.
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1 Davis’ judgment of sentence was entered on August 13, 2021, by the
Honorable John Padova in the Court of Common Pleas of Philadelphia County,
following a non-jury trial. Judge Padova’s term expired prior to the issuance
of a Pa.R.A.P 1925(a) opinion. Accordingly, the matter was administratively
reassigned to the Honorable Nicholas S. Kamau, who authored the Rule
1925(a) opinion for purposes of this appeal and concluded that Davis’
suppression motion should have been granted.
2 18 Pa.C.S. § 6106(a)(1).
3 18 Pa.C.S. § 6108.
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On August 8, 2018, at 5:18 PM, Davis was stopped in the 12th District
by Philadelphia Police Officer Shadel Sullivan for excessive window tinting on
his car, a violation of the Pennsylvania Motor Vehicle Code. N.T. Suppression
Hearing, 2/16/202, at 8, 10, 12. Officer Sullivan testified that the 12th District
was a high-crime area, id. at 8, and that he had made approximately 10-15
firearm violation arrests in that area in the past two years. Id. Officer Sullivan
testified that when Davis rolled down his window, Officer Sullivan smelled a
“very strong odor of fresh marijuana.” Id. at 10. “At that point, [Officer
Sullivan] asked [Davis] to step out of the vehicle.” Id. Officer Sullivan then
proceeded to frisk Davis, id., and “immediately felt the handle of a firearm”
on Davis’ person. Id. The gun, a Smith and Wesson model SW 38, was
recovered from Davis’ front right pocket; Davis did not have a license for the
firearm.
On August 9, 2019, Davis filed a motion to suppress arguing he was
subjected to a stop and frisk on less than reasonable suspicion and, thus, the
physical evidence recovered during the frisk should be suppressed.4 See
Motion to Suppress, 8/9/21, at 1.
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4Davis also argued that he was arrested and searched without probable cause,
without a lawfully issued warrant and without other legal justification and,
thus, his arrest was illegal. However, these issues were not included in his
appellate brief and, thus, are abandoned on appeal.
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On February 16, 2021, the court denied Davis’ motion to suppress the
firearm. Pursuant to Pa.R.Crim.P. 581(I),5 Judge Padova stated on the record
his reasoning for denying the motion to suppress:
So[,] from the officer’s vantage point, he was entitled to pull over
[Davis]. Then [Officer Sullivan] takes []Davis out of the car and
pats [Davis] down and feels a gun over the clothing in the front
right pocket. And so, as a result, [Officer Sullivan] recovers the
gun from the pat down outside the vehicle, which is legal
according to the Pennsylvania appellate law. So[,] the [c]ourt will
deny the motion to suppress.
N.T. Suppression Hearing, supra at 29.6 Also on February 16, 2021, Davis
proceeded to a waiver trial where the parties agreed to incorporate testimony
from the suppression hearing. The court found Davis guilty of both charges.
A presentence investigation report was completed and, on August 13, 2021,
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5 See Pa.R.Crim.P. 581(I) (“At the conclusion of the hearing, the judge shall
enter on the record a statement of findings of fact and conclusions of law as
to whether the evidence was obtained in violation of the defendant’s rights,
or in violation of these rules or any statute, and shall make an order granting
or denying the relief sought.”).
6 Davis claims that remand is appropriate because the suppression court’s
“scant findings, and complete failure to cite any legal authority, fails to comply
with Rule 58[1](I).” Brief of Appellant, at 33. In Commonwealth v. Sharaif,
205 A.3d 1286 (Pa. Super. 2019), this Court remanded the claim for a new
suppression hearing where our ability to conduct a review of the record was
thwarted. In Sharaif, the judge at the suppression hearing did not comply
with Rule 581(I), did not write a Rule 1925(a) opinion, and was no longer on
the Common Pleas bench. Here, although the Rule 581(I) statement fails to
cite legal authority and the judge at the suppression hearing is no longer on
the Common Pleas bench, the Rule 1925(a) opinion appropriately explained
the facts and legal bases used to determine whether suppression was
warranted. Thus, this Court’s ability to conduct appellate review was not
thwarted.
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the court imposed an aggregate sentence of three years of probation. Davis
filed a timely notice of appeal and both he and the trial court have complied
with Rule 1925. Davis raises the following claim for our review:
Did the suppression court err when it denied [Davis’] pre-trial
motion to suppress physical evidence where a gun was recovered
from [Davis] during a Terry[7]-pat-down and the suppression
record does not demonstrate that the officer had reasonable belief
based upon specific and articulatable facts that [Davis] was armed
and dangerous during a traffic stop?
Brief of Appellant, at 5.
This Court’s standard of review of a denial of a motion to suppress is
well-settled.
[We are] 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 context of the record as a whole. Where the suppression court’s
factual findings are supported by the record, [an 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, 988 A.2d 649, 854 (Pa. 2010) (citations and
quotation marks omitted).
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7 Terry v. Ohio, 392 U.S. 1 (1969).
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This Court has adopted the holding of Terry when evaluating the legality
of investigative detentions. Commonwealth v. Way, 238 A.3d 515 (Pa.
Super. 2020). In Terry, the United States Supreme Court held that when a
police officer observes conduct that leads him to reasonably conclude, in light
of his own experiences, that criminal activity may be afoot and that the
suspect may be armed and presently dangerous, he is granted the authority
to conduct a carefully limited search of the outer clothing of the individual for
the protection of himself and others. Id. at 31.
Regarding motor vehicle stops, this Court has determined that
When a police officer lawfully stops a motorist for a violation of
the Pennsylvania Motor Vehicle Code, the officer is permitted to
ask the driver to step out of the vehicle as a matter of right.
During this investigatory stop, the officer can pat-down the
driver when the officer believes, based on specific
articulable facts, that the individual is armed and
dangerous. Such pat-downs, which are permissible without a
warrant and on the basis of reasonable suspicion less than
probable cause, must always be strictly limited to that which is
necessary for the discovery of weapons that might present a
danger to the officer or those nearby. When assessing the validity
of a pat-down[] we examine the totality of the circumstances [. .
.] giving due consideration to the reasonable inferences that the
officer can draw from the facts in light of his experience, while
disregarding any unparticularized suspicion or hunch.
Commonwealth v. Parker, 957 A.2d 311, 314-15 (Pa. Super. 2008)
(citations and quotations omitted) (emphasis added).
Davis concurs that he was lawfully stopped for a violation of the
Pennsylvania Motor Vehicle Code and, thus, Officer Sullivan was permitted to
ask Davis to step out of the vehicle. However, Davis contends that because
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Officer Sullivan did not have the requisite reasonable suspicion to conduct a
frisk of his person, the firearm recovered from the pat-down should be
suppressed.8 We agree.
Instantly, Officer Sullivan’s testimony evidence does not demonstrate
that he reasonably believed that Davis was armed and dangerous. Rather,
Officer Sullivan specifically testified that “[d]ue to th[e] very strong odor of
fresh marijuana,” which he smelled when Davis rolled down his driver’s side
window, he asked Davis to step out of the vehicle and frisked him. N.T.
Suppression Hearing, supra at 11; id. at 10 (Officer Sullivan testifying that
he smelled “fresh” or unburnt marijuana.); id. at 9 (Officer Sullivan testifying
that he had smelled fresh marijuana “well over. . . [a] dozen” times.). Officer
Sullivan testified that his reasonable suspicion to conduct the frisk was also
based on the fact that the stop took place in a high-crime area, where Officer
Sullivan has made 10 to 15 firearm violation arrests in the past two years.
Id. at 8.
Regarding the smell of marijuana, in Commonwealth v. Barr, 266
A.3d 25 (Pa. 2021), our Supreme Court recognized that although marijuana
is not per se illegal in Pennsylvania due to the Pennsylvania Medical Marijuana
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8Notably, the Commonwealth does not dispute that Davis is entitled to relief
on appeal. Specifically, the Commonwealth states that, “[u]nder the
particular facts of this case, the record of the suppression hearing would
appear to be inadequate to establish a reasonable suspicion that [Davis] was
armed and dangerous.” Brief of Appellee, at i, 2, 4-5.
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Act (MMA),9 the possession of marijuana is still illegal under the Controlled
Substance, Drug, Device and Cosmetic Act10 for individuals not entitled to
possess it under the MMA. Id. at 40. The Barr Court held that “the odor of
marijuana may be a factor, but not stand-alone one, in evaluating the totality
of the circumstances for purposes of determining whether police had probable
cause to conduct a warrantless search.” Id. at 41 (emphasis added).
Accordingly, marijuana is only one factor in a probable cause analysis.
This Court has applied the reasoning in Barr to reasonable suspicion
analyses.11,12 In Commonwealth v. Johnson, 281 A.3d 1055 (Pa. Super.
2022) (non-precedential decision) (Table) the defendant was stopped in a
“violent” area at 8:50 p.m. during the month of May for driving with his car’s
driver-side headlight out and high-beams on. Id. at 2. This Court found that
the officer did not have reasonable suspicion to conduct Terry-frisk where
there was an odor of marijuana emanating from the vehicle and the defendant
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9 35 P.S. §§ 10231.101-10231.2110.
10 35 P.S. §§ 780-101-114.
11See Commonwealth v. Dabney, 247 A.3d 1283, 1293 (Pa. Super. 2022)
(assuming, arguendo, that Barr applies to a determination of reasonable
suspicion for an investigative detention in DUI context); Commonwealth v.
Lomax, 273 A.3d 1049 (Pa. Super. 2022) (non-precedential decision) (Table)
(applying the reasoning in Barr to a reasonable suspicion analysis in DUI
context).
12 Pursuant to Pa.R.A.P. 126, unpublished non-precedential memorandum
decisions of the Superior Court filed after May 1, 2019 may be cited for their
persuasive value.
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was shaking and breathing heavily. Id. Additionally, the officer did not ask
the defendant about the marijuana odor prior to performing the frisk. Id. at
3.13 Applying Barr, this Court reasoned that “marijuana precipitated [the
officer’s] decision to order [defendant] out of the car and frisk him,” and, thus,
the frisk was illegal. Id. at 15-16.
This Court has found reasonable suspicion to conduct a Terry-frisk
where the officer detects marijuana and the defendant makes fruitive
movements.14 In Commonwealth v. Poellnitz, 237 A.3d 475 (Pa. Super.
2020) (non-precedential decision) (Table), this Court found reasonable
suspicion where defendant was stopped for driving without his headlights on
and the officer requested that defendant exit the vehicle upon smelling
marijuana. The officer testified that his reasonable suspicion, formed once
the defendant was outside of the vehicle, was based on smelling marijuana on
the defendant, defendant’s furtive movements, and defendant’s
noncompliance with the officer’s requests. Id. at 7 (Officer testifying that
“[Defendant] kept putting his hands in his pockets. He had a strong smell of
marijuana on his person. It made me nervous.”); id at 9 (Officer testifying
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13 In Johnson, supra, the officer found no weapons as a result of the frisk
but saw a firearm on the driver’s side floorboard upon returning the defendant
to the vehicle. Id. at 2-3. This Court vacated Johnson’s sentence and
remanded the case reasoning that the officer did not see the firearm until after
the frisk, which was not supported by reasonable suspicion, and, thus, the
officer did not observe the gun in plain view. Id. at 15.
14 Although Poellnitz, infra and Brown, infra were decided prior to Barr,
supra, they are consistent with the analysis regarding totality of the
circumstances articulated in Barr.
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that “I told [defendant] a couple times to take his hands out of his pockets.
He kept reaching in his pockets.”).
On the other hand, in Commonwealth v. Brown, 241 A.3d 475, 12
(Pa. Super. 2020) (non-precedential decision) (Table),15 this pre-Barr Court
did not find reasonable suspicion where the defendant, one of three occupants
in the vehicle, was stopped at 9:50 p.m. in a high-crime area because officers
could not read the date on the temporary-registration tag in the rear window
and the car was not on record in the PennDOT database. Id. at 1-3. During
the stop, the two officers smelled marijuana, asked defendant and other
passengers to exit the vehicle, conducted a frisk of the vehicle’s occupants
and recovered a firearm on defendant’s person. Id. at 4. In reversing denial
of suppression, this Court reasoned that, “[t]he police may not frisk an
individual, simply because they take him out of his car.” Id. at 13. The Court
focused on the lack of evidence demonstrating that defendant was armed
and dangerous, including that defendant did not make any furtive movements
and there were no visibly apparent firearms or bulges in the man’s clothing.
Id. at 12.
Here, as in Johnson, the smell of marijuana precipitated the frisk.
Additionally, similarly to Brown, the record reveals no testimony indicating
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15 In Brown, supra, the officer who performed the frisk did not testify. Id.
at 8. Additionally, the other officer testified that it is routine practice for the
Philadelphia police to frisk everyone whom they ask to exit a vehicle. Id. at
4-5.
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that Davis made any furtive movements that caused Officer Sullivan to believe
Davis posed a safety threat or that there were firearms visible either on Davis’
person or in his vehicle. Further, unlike in Poellnitz, testimony indicates that
Davis complied with Officer Sullivan’s request to step out of the vehicle.
Moreover, the nature of the location of the stop and the officer’s
previous arrests made in the same area and the time of day are not facts
particular to Davis. Brown, supra at 11, 15-16 (“Being in a high[-]crime or
high[-]gun neighborhood at 9:50 p.m. does not indelibly brand everyone in
that neighborhood as a danger to the police or others.”). Further, we highlight
that this traffic stop occurred at 5:18 p.m. during the month of August while
it was still light out. N.T. Suppression Hearing, supra at 10, 12 (Officer
Sullivan testifying that it was light out when the stop and frisk occurred). If
driving at night in a high-crime area does not create reasonable suspicion that
an individual is armed and dangerous, Brown, supra at 16, it is axiomatic
that driving during daylight hours does not either.
Giving due consideration to the reasonable inferences that Officer
Sullivan could have drawn from the facts in light of his experience, the
Commonwealth’s evidence still lacks the particularized facts needed to
conclude that Officer Sullivan possessed the requisite reasonable suspicion to
conduct a pat-down of Davis. See Parker, supra. Accordingly, we reverse
the order denying Davis’ motion to suppress, vacate his judgment of sentence,
and remand for proceedings consistent with this memorandum.
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Judgement of sentence vacated. Case remanded for proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2023
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