J-S34039-25
2025 PA Super 262
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KIER KYLEEL PHINN :
:
Appellant : No. 262 MDA 2025
Appeal from the Judgment of Sentence Entered January 27, 2025
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001074-2024
BEFORE: STABILE, J., SULLIVAN, J., and BENDER, P.J.E.
OPINION BY BENDER, P.J.E.: FILED NOVEMBER 18, 2025
Appellant, Kier Kyleel Phinn, appeals from the judgment of sentence of
12 months’ probation, imposed after he was convicted, following a non-jury
trial, of possession of a controlled substance (marijuana), 35 P.S. § 780-
113(a)(16). Herein, Appellant solely challenges the trial court’s denial of his
pretrial motion to suppress, arguing that police officers did not have
reasonable suspicion to conduct an investigative detention of Appellant. We
affirm.
Appellant was arrested and charged with the above-stated offense after
he was stopped while walking down the street and found to be in possession
of marijuana. Prior to trial, he filed a motion to suppress, arguing that his
stop was illegal because officers lacked reasonable suspicion to detain him. A
hearing was held on October 10, 2024. The trial court summarized the
evidence presented at that hearing, as follows:
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On January 23, 2024, Officer [Seth] Grove … and Officer
Casteel,[1] of the York City Police Department[,] were patrolling in
a marked patrol unit on the 500 block of West Mason Avenue.
(Omnibus Pretrial Hearing Transcript, October 10, 2024, at 4-6).
Upon patrolling, [Officer Grove] smelled the odor of burnt
marijuana coming from [Appellant,] who was walking down the
street. (Id.[] at 6, 10). [Officer Grove] observed [Appellant]
holding what he believed was a smoking instrument[,] … bring the
device to his mouth[,] and smoke [come] from his person.
(Id[.]).
[Officer Grove] initiated a … stop of [Appellant]. (Id.[] at 7).
During the … stop, [Appellant] possessed only a cell phone in his
hand. (Id.[] at 12). [Officer Grove] inquired into whether
[Appellant] was smoking [m]arijuana and [Appellant] admitted to
smoking marijuana earlier. (Id.[] at 8). [Appellant] was then
arrested and handcuffed. (Id.[] at 14). After the arrest,
[Appellant] admitted to having additional marijuana on his person
and stated that he did not possess a medical marijuana card.
(Id.[] at 8).
Trial Court Opinion (TCO), 4/28/25, at 1-2.
The trial court further summarized the procedural history of Appellant’s
case, as follows:
[Appellant] was charged with … [p]ossession of a [c]ontrolled
[s]ubstance … and [m]arijuana — [s]mall [a]mount for [p]ersonal
[u]se….[2]
On August 5, 2024, [Appellant], by and through his counsel,
Clasina Houtman, Esquire (hereinafter referred to as “trial
counsel”), filed an Omnibus Pretrial Motion to Suppress.
On October 10, 2024, this court held an Omnibus Pretrial Hearing
in this matter. At the conclusion of the hearing, this court granted
[Appellant’s] Omnibus Motion in part and denied the Motion in
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1 Officer Casteel’s first name is not included in the certified record.
2 35 P.S. § 780-113(a)(31)(i). This charge was ultimately dismissed.
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part. All statements made after handcuffing and prior to being
[M]irandized[3] were ordered to be excluded.
On January 27, 2025, this court held a stipulated bench trial to
preserve the omnibus pretrial issues presented. Counsel
stipulated to the facts contained in the affidavit of probable cause
and the facts presented at the suppression hearing. At the
conclusion of the trial, this court found [Appellant] guilty of …
[p]ossession of a [c]ontrolled [s]ubstance…. [Appellant] was
sentenced [that same day] to twelve (12) months of probation,
payment of costs, and [ordered to] follow-through with any
treatment.
On February 25, 2025, [Appellant], by and through his appellate
counsel, filed a Notice of Appeal to the Superior Court. That same
day, this court directed [Appellant] to file a [Pa.R.A.P. 1925(b)]
Statement of Matters Complained of on Appeal.
Id. at 2-3. Appellant timely complied, and the trial court thereafter filed its
Rule 1925(a) opinion.
Herein, Appellant states the following issue for our review: “Did the
suppression court err in denying [Appellant’s] pretrial omnibus motion to
suppress the stop and seizure of [Appellant] and all evidence flowing
therefrom where there was no reasonable suspicion to conduct an
investigative detention of [Appellant]?” Appellant’s Brief at 4 (unnecessary
capitalization omitted).
We begin by observing that,
[o]ur 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.
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3 See Miranda v. Arizona, 384 U.S. 436 (1966).
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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 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.
Commonwealth v. Morrison, 166 A.3d 357, 363 (Pa. Super. 2017) (citation
omitted).
Additionally, this Court has explained:
The Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution protect
citizens from unreasonable searches and seizures, including those
entailing only a brief detention. Specifically, police officers may
not conduct a warrantless search or seizure unless one of several
recognized exceptions applies. If a defendant’s detention violates
the Fourth Amendment, then any evidence seized during that stop
must be excluded as fruit of an unlawful detention.
We categorize police interactions with members of the public into
three general tiers of increasing intrusiveness, which require
increasing levels of suspicion on the part of an officer who initiates
them: (1) mere encounters, which require no suspicion; (2)
investigative detentions, which require reasonable suspicion; and
(3) custodial detentions, which require probable cause.
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 [person] of reasonable caution in the
belief that the action taken was appropriate. Demonstrating
reasonable suspicion requires that the detaining officer articulate
something more than an inchoate and unparticularized suspicion
or hunch.
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Historically, Pennsylvania courts have held that the smell of
marijuana alone was sufficient to establish a reasonable suspicion
of criminal activity. However, after the passage of the [Medical
Marijuana Act (MMA), 35 P.S. §§ 10231.101—10231.2110,] and
legalization of medical marijuana in the Commonwealth, our
Supreme Court revisited this issue. In Commonwealth v. Hicks,
… 208 A.3d 916 ([Pa.] 2019), our Supreme Court held that
“conduct in which hundreds of thousands of Pennsylvanians are
licensed to engage lawfully” is, on its own, “an insufficient basis
for reasonable suspicion that criminal activity is afoot.” Hicks, …
208 A.3d at 945….
Further, in Commonwealth v. Barr, … 266 A.3d 25 ([Pa.] 2021),
the Court recognized that although “the MMA makes abundantly
clear that marijuana no longer is per se illegal in this
Commonwealth[,]” the possession of marijuana is still illegal
under the Controlled Substance, Drug, Device and Cosmetic Act,
35 P.S. §§ 780-101-144, “for those not qualified under the MMA.”
Barr, … 266 A.3d at 41. Accordingly, the Barr Court held that
“the odor of marijuana may be a factor, but not a 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.
Commonwealth v. Mercedes, No. 1275 MDA 2021, unpublished
memorandum at 4-6 (Pa. Super. filed Sept. 23, 2022) (some internal citations
and quotation marks omitted).4
Here, Appellant contends that the trial court erred by denying his motion
to suppress because Officers Grove and Casteel did not have reasonable
suspicion to initiate his investigative detention. According to Appellant, “the
only thing [the officers] observed was an odor of marijuana and smoke coming
from [Appellant’s] person. This, without more, was not enough to give
reasonable suspicion[,]” as the Pennsylvania Supreme Court has made it clear
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4 We may cite unpublished non-precedential decisions of the Superior Court
filed after May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).
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in Barr that marijuana is “no longer … per se illegal in this Commonwealth.”
Appellant’s Brief at 12.
However, in Commonwealth v. Felder, No. 1082 MDA 2021,
unpublished memorandum (Pa. Super. filed Aug. 9, 2022), we concluded that
“[b]ecause the MMA does not permit the smoking of marijuana, 35 P.S. §
10231.304(b)(1); Barr, 266 A.3d at 41 n.13, knowledge that [Felder] had
paraphernalia for smoking marijuana gave the [o]fficer … reason to believe
the marijuana was being used illegally.” Id. at *10 (emphasis added).
Additionally, in Mercedes, we concluded that reasonable suspicion to conduct
an investigative detention existed where officers “observed a cigarillo being
smoked, and specifically smelled the odor of burnt marijuana.” Mercedes,
No. 1275 MDA 2021, unpublished memorandum at 8. See also
Commonwealth v. Sloan, 303 A.3d 155, 166 (Pa. Super. 2023) (stressing
that “the MMA does not permit the smoking of medical marijuana,” and
holding that an officer had reasonable suspicion to detain Sloan based on the
smell of burnt marijuana coming from his vehicle and the officer’s observations
of Sloan’s bloodshot and glassy eyes).
Although Appellant acknowledges Felder and Mercedes, he argues that
here, “Officer Grove testified that he smelled the odor of burnt marijuana and
saw [Appellant] walking with ‘some type of smoking instrument in his hand’
and smoke coming from [Appellant’s] person, but he could not say what the
instrument was and admitted it could have been a vape.” Appellant’s Brief at
14 (citing N.T. Suppression Hearing, 10/10/24, at 6, 10). Appellant points
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out that “it is legal, under the MMA, to administer [marijuana] by
‘vaporization.’” Id. at 15 (citing 35 P.S. § 10231.303(b)(2)(iv)). Therefore,
even though Appellant concedes it is unlawful to smoke marijuana, he insists
that Officer Grove failed “to articulate in any way [that] he saw [Appellant]
smoking.” Id. at 14. Since the officer could have simply seen Appellant using
marijuana by vaporization, Appellant concludes that the officer lacked
reasonable suspicion to detain him.
We disagree. Initially, the cases discussed supra do not require that an
officer actually observe an individual smoking marijuana for reasonable
suspicion to arise. Instead, those cases indicate that the smell of burnt
marijuana is sufficient to support a reasonable suspicion that an individual
smoked marijuana in violation of the MMA. Here, Officer Grove repeatedly
stated that he smelled the odor of burnt marijuana. N.T. Suppression Hearing
at 10, 13. Moreover, the officer also observed Appellant use “some type of
smoking instrument in his hand[,]” and “smoke come off his person….” Id.
at 6. The officer testified that he knows smoking marijuana is an illegal
activity. Id. Although the officer admitted that he could not specifically see
“what kind of smoking device” was in Appellant’s hand, and he stated it “could
have been” a vape, id. at 10, Appellant did not have any vape in his hand
when the officers approached him. Id. at 11. Additionally, Officer Grove
testified that burnt marijuana smells “a lot stronger” than “[m]arijuana smoke
from [a] vape….” Id. at 14.
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Based on Officer Grove’s smelling an odor of burnt marijuana, his
observations of Appellant’s smoking something, his understanding that the
smoking of marijuana is unlawful, and his knowledge that burnt marijuana
smells stronger than vaporized marijuana, we conclude that Officer Grove had
reasonable suspicion to detain Appellant to further investigate whether he
illegally possessed marijuana. As such, the court did not err in denying this
aspect of Appellant’s motion to suppress.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 11/18/2025
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