J-A13005-20
2020 PA Super 236
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TIMOTHY OLIVER BARR II : No. 2347 EDA 2019
Appeal from the Order Entered August 2, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0000279-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*
OPINION BY BENDER, P.J.E.: FILED SEPTEMBER 25, 2020
This is a Commonwealth appeal from the trial court’s order granting
Appellee’s, Timothy Oliver Barr II, motion to suppress and habeas corpus
petition (“habeas petition”). In granting Appellee’s suppression motion, the
trial court held that the odor of marijuana no longer provides police with
probable cause to search a motor vehicle from which the odor emanates
because a substantial number of Pennsylvania citizens can now consume
marijuana legally, calling into question the so-called plain smell doctrine.
After careful review, we agree with the trial court that the odor of marijuana
does not per se establish probable cause to conduct a warrantless search of a
vehicle. However, because the trial court failed to afford that factor any
weight, and did not appear to evaluate any other factors in conjunction with
the odor of marijuana in its probable cause analysis, we vacate the portion of
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* Retired Senior Judge assigned to the Superior Court.
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the order granting suppression and remand for reconsideration by the trial
court. We also vacate the portion of the order granting Appellee’s habeas
petition, and remand for reconsideration by the trial court following resolution
of the suppression issue.
The Commonwealth charged Appellee with person not to possess a
firearm, 18 Pa.C.S. § 6105, possession of a firearm without a license, 18
Pa.C.S. § 6106, and possession of a small amount of marijuana (“PSAM”), 35
Pa.C.S. § 780-113(a)(31)(i), following a warrantless search of his vehicle
conducted on November 7, 2018. Appellee filed a motion to suppress the
seized firearm and marijuana, and a habeas corpus petition seeking dismissal
of all charges.1 The trial court conducted a suppression hearing on July 17,
2019. The court summarized its factual findings from that hearing as follows:
FINDINGS OF FACT
1. On November 7, 2018, at approximately 12:30 A.M., Trooper
Edward Prentice and Trooper Danielle Heimbach of the
Pennsylvania State Police, Fogelsville Barracks, Troop M, were on
routine patrol in full uniform and in a marked police unit on Emaus
Avenue in the area of the Liberty Park at Allentown apartment
complex, Allentown, Lehigh County, Pennsylvania.5 At that time,
Trooper Prentice observed a silver Chrysler 300 sedan making a
U-turn in the Liberty Park at Allentown apartment complex on
Allenbrook Drive, and then proceeding east on Emaus Avenue.
Trooper Prentice turned his cruiser around and decided to follow
the vehicle.6
5 Trooper Prentice was Trooper Heimbach’s mentor, as
Trooper Heimbach graduated from the police academy on
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1 Both the suppression motion and habeas corpus petition were incorporated
in an omnibus pre-trial motion filed on April 3, 2019.
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October 12, 2018. On that night, Trooper Prentice was
operating the police cruiser and was Trooper Heimbach’s
training officer.
6 No criminal activity was observed at this time. Trooper
Prentice based his decision to follow the vehicle on the fact
that no other cars were around, the car appeared to be
traveling at a fast rate of speed, and the early hour of the
night.
2. The subject vehicle drove eastbound on Emaus Avenue and
made a left onto Devonshire Road/Mack Boulevard, Allentown,
Lehigh County. Trooper Prentice noted that the vehicle was
traveling at a fast rate of speed. However, the vehicle slowed
down prior to approaching an overpass on which the vehicles are
constrained to pass one at a time. Trooper Prentice and Trooper
Heimbach observed that the subject vehicle failed to stop at the
solid white stop line on the road at the stop sign controlling the
single lane railroad overpass at Mack Boulevard and South 8th
Street, Allentown, Lehigh County, Pennsylvania.7 Consequently,
observing this motor vehicle violation, a traffic stop was
effectuated. The subject vehicle pulled over immediately.
7 Both the front and rear tires passed over the solid white
stop lines prior to slowly rolling through the single lane
railroad overpass. At that time, another vehicle was
approaching the railroad pass from a distance from the
opposite lane of travel. As this vehicle was far away, no
danger or safety risk was present.
3. As Trooper Prentice was “coaching” or training Trooper
Heimbach, Trooper Heimbach took the lead and exited the police
cruiser to investigate.8 Trooper Heimbach approached the
passenger side of the vehicle to speak with the occupants. As she
approached, she smelled the odor of burnt marijuana. The driver
of the vehicle was a white female, later identified as Teri Barr,
[Appellee]’s wife. [Appellee] was seated in the front passenger
seat and was speaking with Trooper Heimbach.9
8 Trooper Prentice briefly remained in the police cruiser to
perform a records check of the vehicle, as well as to notify
dispatch of the traffic stop. The subject vehicle was owned
by [Appellee]’s mother.
9 Co-Defendant Luiz Monteiro was seated in the rear
passenger seat behind [Appellee]. He appeared to be either
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passed out or in and out of sleep. There was limited
interaction with Mr. Monteiro. Co-Defendant Monteiro did
not present a medical marijuana card at the time of the
traffic stop.
4. After Trooper Prentice completed his tasks in the police cruiser,
he approached the vehicle on the driver’s side. Upon approach,
Trooper Prentice could smell the odor of both burnt and raw
marijuana through the open window of the vehicle.10 At that time,
Trooper Prentice asked the driver to exit the vehicle so that he
could interview her and confirm that she was not under the
influence and incapable of safe driving. He stepped back to make
room for her egress from the vehicle. When Trooper Prentice
overheard the passenger arguing with Trooper Heimbach and
stating[,] “no one is getting out of this fucking car,” Trooper
Prentice walked back to the driver’s side door. The argument
ensued for approximately two (2) to three (3) minutes, until
members of the Allentown Police Department arrived as backup.11
When members of the Allentown Police Department arrived,
[Appellee]’s attitude changed and he became more cooperative.
He exited the vehicle, along with the other occupants. They were
patted down for officer safety.
10 Trooper Prentice testified that he could smell the odor of
raw and burnt marijuana through the open window when he
was at the rear of the vehicle. This [c]ourt takes issue with
this testimony of Trooper Prentice and finds it not to be
credible. Indeed, it is only reasonable to conclude that one
(1) odor would trump the other odor, and that Trooper
Prentice was not able to detect both raw and burnt
marijuana. Also, this [c]ourt notes that the amount of raw
marijuana located in the vehicle in a sealed Ziploc bag was
only .79 grams. It is unfathomable to this [c]ourt that
Trooper Prentice was able to detect the odor of both raw and
burnt marijuana.
11 Trooper Prentice had called for assistance when he
realized that [Appellee] was not being cooperative and was
preventing his wife from complying with [the trooper’s]
commands and exiting the vehicle.
5. Trooper Prentice advised the occupants of the vehicle that he
could search the vehicle pursuant to Commonwealth v. Gary, …
91 A.3d 102 ([Pa.] 2014), as the odor of marijuana provided them
with probable cause. At that time, [Appellee] presented Trooper
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Prentice with a medical marijuana identification card that allows
him to possess and ingest medical marijuana pursuant to this
license.12 Trooper Prentice admitted that while he knew that
green leafy marijuana was legal for medical purposes, he was not
familiar with how a person ingests green leafy medical
marijuana.13 Also, Trooper Prentice was under the misconception
that medical marijuana, when ingested through a vaping pen, has
no odor.14
12 At the time of the hearing, [Appellee] presented a receipt
for medical flower marijuana purchased from a dispensary
on November 2, 2018, totaling $85.00. Neither Trooper
Prentice nor Trooper Heimbach recalled that [Appellee]
presented this receipt to them at the time of the traffic stop.
13 While in the presence of the Allentown Police Department
and captured on the body cam of a member of the Allentown
Police Department, Trooper Prentice indicated that “if he’s
allowed to have it, I’m fine with that. I’m not going to
fucking worry about it.”
14 Trooper Heimbach was frank with this [c]ourt and stated
that she did not know how medical marijuana was ingested.
She also indicated that at the time of the preliminary
hearing in this matter (and consequently, at the time of the
vehicle stop) she was under the misimpression that green
leafy marijuana was illegal and not used for medical
purposes.
6. Trooper Heimbach and Trooper Prentice then conducted a
probable cause search of the vehicle based on the odor of
marijuana that they detected therein. The search of the vehicle
yielded marijuana “shake”15 throughout the cabin area, as well as
a sealed Ziploc plastic bag containing marijuana16 between the
front passenger seat and the center console. The marijuana
weighed .79 grams. The Ziploc plastic bag did not have any
markings or barcodes on it that would be indicative of coming from
a medical marijuana dispensary.17 Trooper Prentice indicated that
the odor of burnt marijuana got stronger in the area of the center
console of the vehicle.
15 Trooper Prentice explained that marijuana “shake” served
as evidence that marijuana was being smoked in the
vehicle, but did not amount to a prosecutorial amount.
Indeed, generally “shake” is a residual amount of
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marijuana. No photos of the “shake” were taken at the time
of the traffic stop.
16 The suspected marijuana field-tested positive for
marijuana.
17 Trooper Prentice testified that he was trained that medical
marijuana has to remain in the original packaging that it is
received in from the dispensary, from the time that it is
opened until the time that the contents are totally
consumed. As the baggie located in the vehicle had no
markings on it that were indicative of being medical
marijuana, Trooper Prentice grew concerned and skeptical
that the contents were medical marijuana. However,
Trooper Prentice did acknowledge that he did not know if
the packaging of medical marijuana included an inner
baggie like the one located in the center console of the
vehicle. Similarly, Trooper Heimbach indicated that she did
not know how medical marijuana was packaged.
7. In addition, Trooper Prentice searched the rear of the vehicle.
On the floor of the rear passenger compartment, tucked halfway
under the front driver’s seat, Trooper Prentice located a jacket
with “OBH” markings on it rolled up in a ball. Therein, Trooper
Prentice found a loaded black handgun, with one (1) bullet in the
chamber and four (4) rounds in the magazine. Trooper Prentice
believed the jacket to belong to [Appellee]. Consequently,
Trooper Prentice advised the members of the Allentown Police
Department to detain the three (3) occupants of the vehicle.
Further search of the vehicle yielded an Apple logo baggie with
new clear plastic baggies therein. These small baggies were
located in the trunk of the vehicle. Trooper Prentice testified that
they were consistent with the packaging of drugs for distribution,
as well as the baggie of marijuana found between the front
passenger seat and the center console.
8. David Gordon, M.D., a retired heart and lung surgeon in the
Lehigh Valley and an expert in the field of medical marijuana, is
one of the pioneer physicians in Pennsylvania to assess patients
and determine if they have a qualifying condition under the law to
be prescribed medical marijuana. Dr. Gordon was the physician
who made the recommendation that [Appellee] qualified for a
medical marijuana card based on his underlying medical
condition/diagnosis.
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9. Dr. Gordon explained that there is no distinguishable physical
difference between the green leafy medical marijuana and regular
marijuana purchased on the streets. Indeed, the chemical
compositions are the same. Dr. Gordon further explained how a
person lawfully ingests green leafy medical marijuana. He
indicated that the green leafy marijuana is placed in a batteryoperated vaping pen that heats up the marijuana without
combustion, producing a vapor. A person then breathes in the
vapors through the vaping pen. Dr. Gordon indicated it is a
violation of regulations to smoke medical marijuana without a
vaping pen, such as placing it into cigarettes or pipes.
10. Dr. Gordon stated that there is no difference in odor of
ingesting the medical marijuana when utilizing a vaping pen and
the odor of smoking regular marijuana from an unlawful source.
11. Dr. Gordon is familiar with the packaging of medical marijuana
and explained that it can be dispensed in a plastic container similar
to a pill bottle, which then has a plastic bag in it containing the
medical marijuana. Dr. Gordon believed that the inner plastic bag
does contain some marking on it to reflect that it was purchased
at a medical marijuana dispensary, but he was not certain. Dr.
Gordon advises all of his patients to maintain their receipts to
evidence what was purchased.
12. As of now, there are more than 143,000 patients in
Pennsylvania legalized to obtain, possess, and ingest medical
marijuana.
13. Dr. Gordon opined that there is a clear disconnect between
the medical community and the law enforcement community with
respect to the legalization of marijuana.
Trial Court Opinion (TCO), 8/2/19, at 2-8 (citations to hearing exhibits
omitted).
On August 2, 2019, the trial court issued an opinion and order granting
both Appellee’s suppression motion and his habeas petition.2 The
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2 The order granted suppression of all evidence obtained during the search of
Appellee’s vehicle. Order, 8/2/19, at 1 (single page). The order is somewhat
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Commonwealth filed a timely notice of appeal on August 8, 2019. On August
15, 2019, the trial court ruled that its August 2, 2019 order granting Appellee’s
suppression motion and habeas petition was a final order. See Order,
8/15/19, at 1 (single page) (citing Pa.R.A.P. 341(c) (permitting “the trial
court” to “enter a final order as to one or more but fewer than all of the claims
and parties only upon an express determination that an immediate appeal
would facilitate resolution of the entire case” which then “becomes appealable
when entered”)). The court did not order the Commonwealth to file a
Pa.R.A.P. 1925(b) statement. The trial court filed a Rule 1925(a) opinion,
which fully adopted its August 2, 2019 opinion, to address the
Commonwealth’s claims. See Rule 1925(a) Opinion, 8/14/19, at 2. In
addition to the briefs filed by the Commonwealth and Appellee, the Defender
Association of Philadelphia and the American Civil Liberties Union of
Pennsylvania filed an Amici Curiae brief (“Amici Brief”) in support of the order
granting suppression.
The Commonwealth now presents the following questions for our
review:
I. Did the trial court err in granting [Appellee]’s motion to
suppress the drugs and firearm seized by Pennsylvania State
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inconsistent with regard to the habeas petition. Appellee sought dismissal of
all charges in his habeas petition, and the order initially indicated that the
habeas petition was granted. Id. However, the order then stated that only
the PSAM charge was dismissed.
Id. The lower court docket also reflects that
only the PSAM charge was dismissed by the trial court.
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Police where the search of the vehicle in which [he] was a
passenger was supported by probable cause?
II. Did the trial court err in granting [Appellee]’s [habeas petition]
with regard to Count 3, [PSAM,] at the same time it granted [his]
[m]otion to [s]uppress and where the Commonwealth established
that it was more probable than not that [he] possessed the
marijuana in violation of the Controlled Substances Act, 35 P.S. §
780-113(a)(31)(i)?
Commonwealth’s Brief at 4.
I
The Commonwealth’s first claim presents a multipart argument that the
trial court erred in determining that the police lacked probable cause to
conduct a warrantless search of Appellee’s vehicle.3
We begin by noting that where a motion to suppress has been
filed, the burden is on the Commonwealth to establish by a
preponderance of the evidence that the challenged evidence is
admissible. In reviewing the ruling of a suppression court, our
task is to determine whether the factual findings are supported by
the record. If so, we are bound by those findings. Where, as
here, it is the Commonwealth who is appealing the decision of the
suppression court, we must consider only the evidence of the
defendant’s witnesses and so much of the evidence for the
prosecution as read in the context of the record as a whole
remains uncontradicted.
Commonwealth v. DeWitt, 608 A.2d 1030, 1031 (Pa. 1992) (citations
omitted).
Both the Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution protect
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3 We refer to “Appellee’s vehicle” for convenience, while we recognize that
Appellee was a passenger in the vehicle that his wife was driving. In any
event, the Commonwealth makes no claims that Appellee lacked standing to
challenge the search of the vehicle, nor does it claim that he lacked a
reasonable expectation of privacy therein.
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individuals from unreasonable searches and seizures by police in
areas where individuals have a reasonable expectation of privacy.
An expectation of privacy exists if a person has a subjective
expectation of privacy that society is willing to recognize as
legitimate and reasonable. Where there exists a reasonable
expectation of privacy, Article I, Section 8 and the Fourth
Amendment generally require police to obtain a warrant, issued
by a neutral and detached magistrate and founded upon probable
cause, prior to conducting a search or seizure of a person and/or
a person’s property, unless one of the few well delineated
exceptions apply. One such exception is the automobile
exception, adopted by this Court in Gary, which permits the
search and/or seizure of a motor vehicle if supported by probable
cause—no separate finding of exigent circumstances is required.
Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa. 2017) (some
citations omitted).
In the case sub judice, it is undisputed that the automobile exception
applies if the police possessed probable cause to believe that a search of the
vehicle would uncover evidence of a crime. “In determining whether probable
cause exists, we apply a totality of the circumstances test.” Commonwealth
v. Thompson, 985 A.2d 928, 931 (Pa. 2009). “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.” Commonwealth v. Glass,
754 A.2d
655, 663 (Pa. 2000) (cleaned up).
The Commonwealth first asserts that it has long been the case that the
odor of marijuana is alone sufficient to demonstrate probable cause to conduct
a search. Commonwealth’s Brief at 14-15. Second, the Commonwealth
argues that, contrary to the trial court’s analysis, this long-held rule has
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neither been altered by intervening legislation, namely, the Medical Marijuana
Act (“MMA”), 35 P.S. § 10231.101 et seq., nor by our Supreme Court’s recent
decision in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019) (holding that
the presence of a concealed firearm, alone, does not provide police with
reasonable suspicion that criminal activity is afoot). Commonwealth’s Brief at
16-32. Third, the Commonwealth contends that even if the odor of marijuana
does not itself establish probable cause, it is nonetheless a relevant fact that,
in conjunction with other factors, may contribute to a finding of probable
cause. Id. at 32-36. Under that view, the Commonwealth argues that the
trial court erred by affording the odor of marijuana no weight in assessing the
at-issue search under the totality of the circumstances test for probable cause,
and by failing to consider other relevant factors.
Prior Precedent
The Commonwealth first argues that prior precedent firmly establishes
that the odor of marijuana, alone, provides probable cause to search a vehicle.
Appellee partially concedes this point. See Appellee’s Brief at 12-13 (stating
that in Commonwealth v. Stoner, 334 A.2d 633 (Pa. Super. 1975), “the
[C]ourt adopted the rationale in United States v. Ventresca,
380 U.S. 102
(1965)[,] and Johnson v. United States,
333 U.S. 10 (1948)[,] that an odor
may be sufficient to establish probable cause for the issuance of a search
warrant[,]” and that … “Pennsylvania courts held thereafter that the plain
smell of marijuana alone was sufficient to establish probable cause due to
marijuana’s distinctive odor and illegal status”). Appellee rejects the notion
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that the Stoner Court adopted a per se legal rule. However conceived,
Appellee maintains, and the trial court agreed, that the plain smell doctrine
was contingent upon the previously universal factual premise that the
possession of marijuana was always and necessarily illegal; i.e., the detection
of marijuana by smell was previously always evidence of criminal activity.
They argue that the MMA changed that universal factual assumption in
Pennsylvania and, applying the reasoning of Hicks, the odor of marijuana is
no longer alone sufficient to establish probable cause to believe criminal
activity is afoot.
Initially, we agree with the Commonwealth that prior cases in this
Commonwealth established that the odor of marijuana may be alone sufficient
to establish probable cause for a search, as conceded by Appellee. We need
not belabor that point; however, clarification of the nature of that rule is
warranted. The Commonwealth seems to further argue that the odor of
marijuana is always sufficient to establish probable cause under the prior
precedent, suggesting the existence of a per se rule of law that applies
regardless of any other circumstances known to an officer prior to his
conducting a search. We disagree with this conception of the plain smell
doctrine as a per se legal rule.
To the contrary, courts have routinely held that the odor of marijuana
is a factor for consideration in a determination of the existence of probable
cause, a factor that was dispositive, or almost always controlling, in the prior
factual context of the substance’s universal illegality. As this Court stated in
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Commonwealth v. Trenge, 451 A.2d 701 (Pa. Super. 1982), “[a]t least
since the Supreme Court of the United States decided Johnson v. United
States,
333 U.S. 10 … (1948), it has been clear that probable cause may be
established” by the odor of marijuana alone. Trenge,
451 A.2d at 706
(emphasis added). In Johnson, the Supreme Court explained:
If the presence of odors is testified to before a magistrate and he
finds the affiant qualified to know the odor, and it is one
sufficiently distinctive to identify a forbidden substance,
this Court has never held such a basis insufficient to justify
issuance of a search warrant. Indeed it might very well be found
to be evidence of most persuasive character.
Johnson, 333 U.S. at 13 (emphasis added). Justice Jackson did not articulate
a per se rule regarding the odor of obvious contraband in Johnson. Instead,
he clearly expressed that the odor of a “forbidden” substance is a factor that
“might” constitute evidence of the “most persuasive character” when
considered in the totality-of-the-circumstances test for probable cause.
Id.
In Stoner, this Court explicitly adopted the reasoning of Johnson,
stating that the “Supreme Court of the United States has held that an odor
may be sufficient to establish probable cause for the issuance of a search
warrant.” Stoner, 344 A.2d at 635 (citing Johnson) (emphasis added). The
Stoner Court further opined that it “would have been a dereliction of duty for
[an officer] to ignore the obvious aroma of an illegal drug which he was trained
to identify.” Id. Stoner neither departed from nor exceeded the rationale
of Johnson, that the detection of an odor of a prohibited substance may be
sufficient by itself to establish probable cause. Applying that rule in the
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context of a legal environment where virtually every instance of possession of
marijuana is illegal, the odor of marijuana becomes dispositive in establishing
probable cause to conduct a search for that substance.
This is assuming, of course, yet another factual premise upon which all
plain smell cases are contingent—that the odor in question is emanating from
the location sought to be searched. See, e.g., Commonwealth v. Scott,
210 A.3d 359, 365 (Pa. Super. 2019) (holding “the odor of burnt marijuana
and small amount of contraband recovered from the passenger compartment
of the vehicle did not create a fair probability that the officer could recover
additional contraband in the trunk” because, citing the suppression court in
that case, the “officers could only smell burnt marijuana as a result of [the
defendant’s] having just smoked a blunt in the car and therefore they could
not discern the odor of fresh marijuana that would lead them to reasonably
believe additional narcotics had been concealed within the vehicle”). While
that factor is not at issue in this case, it further serves to demonstrate the
absence of a per se rule giving police carte blanche authority to search based
on the odor of marijuana despite any circumstances that might serve to
undermine the otherwise strong inference of criminal activity that the odor
typically implied. A per se rule undermines the very nature of the totality-of-
the-circumstances test for probable cause, which 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.” Glass,
754
A.2d at 663 (emphasis added).
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Thus, contrary to the Commonwealth’s claim, there is no preexisting,
per se rule that the odor of marijuana is always sufficient to establish
probable cause to believe a crime is being committed. Rather, the existing
rule, properly stated, is that the odor of marijuana may alone be sufficient to
establish probable cause to search in particular factual contexts. In practical
terms, historically, the circumstances wherein the odor of marijuana would
not alone be sufficient to establish probable cause were necessarily rare or
even nonexistent when marijuana was, in all or virtually all circumstances,
illegal to possess. To the extent that the Commonwealth suggests a per se
rule existed prior to, much less survived the MMA, and that the trial court
erred by failing to mechanically follow that rule once it deemed credible that
the odor had been detected by the police, we deem that aspect of its claim to
be meritless. The trial court was free to weigh the inference of criminality
implied by the odor of marijuana against other relevant facts known to the
officers in determining whether they possessed probable cause to conduct the
search.
MMA
Next, the Commonwealth contends that the MMA “did not legalize nor
did it render possession or use of marijuana presumptively legal.”
Commonwealth’s Brief at 18. Thus, the Commonwealth argues that the “MMA
merely constitutes one limited exception” to the Controlled Substance, Drug,
Device, and Cosmetic Act (“CSA”) and that “Pennsylvania’s long[-]standing
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precedent that the smell of marijuana establishes probable cause …
control[s].” Id.
In Commonwealth v. Jezzi, 208 A.3d 1105 (Pa. Super. 2019), this
Court described the interplay between the MMA and the CSA as follows:
This appeal involves the interplay of two public safety statutes;
the first statute is the CSA, which describes five schedules of
controlled substances. 35 P.S. § 780-104. In outlining the
Schedule I substances, the Act states:
§ 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 14, 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:
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(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.
(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 medical 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.
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(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.
(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 “[i]f 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. Id.
Jezzi, 208 A.3d at 1111–12 (footnotes omitted).
As established above, the plain smell doctrine is a specific application of
the totality-of-the-circumstances test for probable cause, crafted in light of
the previously universal fact of marijuana’s illegality and its distinctive odor.
The MMA has clearly altered the underlying factual context in which that
probable cause test applies. See Amici Brief at 5 (“The logical nexus between
smelling marijuana in a car and the likelihood of finding unlawfully possessed
narcotics is not immune to the effects of time and changes in law; it is affected
and altered by both.”). This much is true: marijuana is a prohibited substance
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under the CSA, despite the passage of the MMA.4 However, it is undisputed
that a substantial number of Pennsylvania citizens may now possess and
consume marijuana legally pursuant to the MMA.5 Previously, every instance
in which marijuana was detected by smell indicated the commission of a crime.
Soon, hundreds of thousands of Pennsylvanians will become potential lawful
sources of that same odor. Thus, the strength of the inference of illegality
stemming from the odor of marijuana has necessarily been diminished by the
MMA in Pennsylvania.
The Commonwealth cites several post-MMA cases by this Court,
implying that the MMA has not affected the plain smell doctrine. However,
the cited decisions do not preclude a finding by a suppression court that
probable cause is lacking, despite a credible finding that police smelled
marijuana coming from the location to be searched, nor do they provide
analogous facts to the instant case that are controlling here.
First, in Commonwealth v. Handley, 213 A.3d 1030 (Pa. Super.
2019), the police responded to a report that Handley had an argument with a
utility worker outside of his home, and that he had threatened to get a gun
from inside the house. Id. at 1033. The worker also reported that he heard
____________________________________________
4 As the Jezzi Court held, “the CSA and the MMA can be read in harmony and
given full effect….” Jezzi,
208 A.3d at 1115.
5 As noted by Amici Curiae, nearly 163,000 Pennsylvania have active medical
marijuana cards in Pennsylvania, and some 70,000 more are pending
approval. See Amici Brief at 4. The Commonwealth does not dispute these
statistics.
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“four or five gunshots” after Handley returned to his residence. Id. When
police arrived, they detected “a strong odor of marijuana” coming from the
house.
Id. Handley did not respond when the officers knocked on his door.
Id. Additionally, the police observed a firearm inside the house from their
vantage point on the front porch, and they further discovered marijuana
leaves and stems protruding from garbage bags that were outside the home.
Id. at 1033-34. Based on this information, the police obtained a warrant to
search the home. Id. at 1034. A subsequent search yielded “33 marijuana
plants and numerous jars containing marijuana.” Id. Handley filed a
suppression motion, which was denied.
On appeal, Handley argued that the police lacked probable cause to
secure the search warrant. The Handley Court disagreed, stating, inter alia,
that a “strong smell of marijuana emanating from a residence creates probable
cause to procure a search warrant” and that “the odor of marijuana, in and of
itself, was sufficient to support issuance of a warrant.” Id. at 1035 (citing
Commonwealth v. Johnson, 68 A.3d 930 (Pa. Super. 2013) (hereinafter,
“PA Johnson,” and Commonwealth v. Waddell,
61 A.3d 198 (Pa. Super.
2012)).
On first glance, Handley may appear to support the Commonwealth’s
position. However, under further scrutiny, it is easily distinguishable from the
case sub judice. Although Handley was decided after passage of the MMA,
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the search at issue in that case occurred several years prior.6 Thus, at the
time the warrant in Handley was secured, there was no possibility that
Handley lawfully possessed the marijuana detected by the investigating
officers pursuant to the MMA, and Handley presented no such claim on appeal.
The Handley Court relied on prior expressions of the plain smell doctrine in
PA Johnson and Waddell, both cases that were issued several years before
the MMA could have contributed to the factual context in which a probable
cause determination is made, and both of which involved facts that far
exceeded the mere smell of marijuana as the justification for a search.7
____________________________________________
6 As noted by the Handley Court, the MMA “took effect on May 17, 2016.”
Id. at 1036. Handley’s home was searched nearly a year before on August
27, 2015. Id. at 1033.
7 In Waddell, this Court did not ‘hold’ that the odor of marijuana was in-and-
of-itself sufficient to establish probable cause. Indeed, Waddell was not even
a probable cause case. The issue in Waddell was whether exigent
circumstances existed to search a home without a warrant, not whether police
possessed probable cause for the search. Waddell, 61 A.3d at 207. In any
event, numerous facts supported a determination of probable cause in that
case, including: a tip from an informant that the home was used for
distributing marijuana; observations of suspicious persons going to and from
the residence with backpacks purportedly containing marijuana; and a person
stopped after leaving Waddell’s residence, who was in possession of a large
quantity of marijuana, told the police that he had obtained the marijuana from
Waddell’s home.
Id. at 208-29. Only after recounting all those contributing
facts did the Waddell Court state that “the evidence certainly surpassed the
threshold necessary to establish probable cause after [police] detected the
smell of marijuana emanating” from Waddell’s home. On appeal, Waddell
even conceded that probable cause existed.
Id. at 212. Needless to say,
there were ample facts supporting a finding of probable cause to conduct the
search at issue in Waddell independent of the odor detected, and the
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Additionally, there were more circumstances known to the officer in Handley
when he obtained the warrant beyond the mere odor of marijuana. The officer
responded to a reported threat and a report of shots fired, observed a firearm
inside the residence, and discovered marijuana leaves and stems in the
garbage outside the residence. The Commonwealth’s extraction of a single
sentence from the Handley opinion, outside that greater factual context in
which the probable cause determination was made, does not convince us that
the rule derived from Stoner and Johnson evolved into a per se test.
The Commonwealth also cites Scott, where police were patrolling in a
high crime area when they stopped Scott’s vehicle due to a malfunctioning
brake light. Scott, 210 A.3d at 360-61. When the officer approached the
vehicle, he smelled burnt marijuana, saw “smoke was still emanating from
the vehicle,” and then further observed Scott “attempt to place a [marijuana]
____________________________________________
Waddell Court had simply opined in dicta that the odor of marijuana was the
proverbial icing on the cake.
Similarly, in PA Johnson, which itself relied on Waddell, police
received tips from two anonymous sources that the ultimately-searched trailer
park home was being used for the sale of marijuana and prescription pills, and
the sources gave a specific description of one of the female suspects. See PA
Johnson, 68 A.3d at 931. When they arrived at the scene, police observed a
woman who fit the provided description near the identified home.
Id. at 932.
When they approached the home, they detected the smell of burnt marijuana.
Id. Based on those facts, the PA Johnson Court concluded that probable
cause existed once the police detected the smell of marijuana. The PA
Johnson Court did not state nor suggest that the smell of marijuana was
alone sufficient to establish probable cause independent of the preceding tips
and partial corroboration of those tips.
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blunt” in the center console. Id. at 361 (emphasis added). The officer
conducted a search of the passenger compartment and recovered the blunt
and a small jar of marijuana. The officer then searched the trunk of Scott’s
vehicle, where he discovered an illegal firearm.
On appeal, Scott challenged only the search of his trunk, essentially
conceding probable cause existed to search the passenger compartment.
While presenting boilerplate law on the plain smell doctrine, the Scott Court
correctly stated the standard that “an odor may be sufficient to establish
probable cause[.]” Id. at 363 (quoting Stoner). It then cited the application
of that rule in another case, which was just another rephrasing of the rule in
Stoner, but from which the Commonwealth again attempts to construe a
statement of a per se rule from a poorly-crafted recitation of boilerplate law
that was not critical to the issue of probable cause in that case.8 Indeed, the
Scott Court held that, despite the odor of marijuana emanating from the
vehicle, police did not possess probable cause to further search the trunk after
having already discovered the likely source of the odor. Id. at 365 (“Under
these circumstances, the odor of burnt marijuana and small amount of
____________________________________________
8 The Scott Court quoted Commonwealth v. Stainbrook, 471 A.2d 1223,
1225 (Pa. Super. 1984), wherein this Court stated: “In Stoner, we analogized
a plain smell concept with that of plain view and held that where an officer is
justified in being where he is, his detection of the odor of marijuana is
sufficient to establish probable cause.” As discussed at length above, the
applicable rule from Stoner is not a per se test. There is no suggestion in
Stainbrook that the Court’s omission of the word ‘may’ in its recitation of the
standard was intentional, much less relevant to the holding in that case.
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contraband recovered from the passenger compartment of the vehicle did not
create a fair probability that the officer could recover additional contraband in
the trunk.”).
Moreover, although Scott was stopped a few months after the passage
of the MMA, he did not present officers with a medical marijuana card, nor did
he present an argument on appeal that the MMA altered the factual context in
which probable cause is assessed based on the odor of marijuana. Indeed,
the Scott Court did not address any issue related to the passage of the MMA.
Accordingly, Scott also does not support the Commonwealth’s arguments.
Next, in Commonwealth v. Batista, 219 A.3d 1199 (Pa. Super. 2019),
this Court addressed the odor of marijuana’s effect on probable cause
determinations in light of the MMA, and that decision does provide some
guidance in the instant matter. However, it does not decide the question
before us, because it is distinguishable in several respects. In that case, the
police received a tip from an unidentified source that Batista’s home was being
used to grow large quantities of marijuana, and that the odor of fresh
marijuana was emanating from an exhaust vent on the first floor.
Id. at 1201.
When the police went to the house to investigate, they detected a strong smell
of fresh marijuana coming out of a first-floor exhaust vent.
Id. The police
further testified that the exhaust vent and smell were consistent with all other
grow houses they had previously investigated.
Id. Based on those facts, they
secured a warrant to search the premises, and upon execution of the warrant,
they discovered 91 marijuana plants growing in Batista’s home, and charged
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him with possession with intent to deliver marijuana. Batista challenged the
warrant for lack of probable cause, but the suppression court denied the
suppression motion, and Batista was ultimately convicted. Id. at 1201-02.
On appeal, Batista claimed, inter alia, that “the smell of fresh marijuana
can no longer serve as an element of probable cause in Pennsylvania” after
passage of the MMA. Id. at 1204–05. The Batista Court disagreed,
reasoning:
The [MMA] is a limited exception to [the CSA]. Only a
“grower/processor” or “dispensary”, as defined under the MMA,
may “receive a permit to operate as a medical marijuana
organization to grow, process, or dispense medical marijuana.”
35 P.S. § 10231.601. A grower is a “natural person, corporation,
partnership, association, trust or other entity, or any combination
thereof, which holds a permit from the Department [of Health]
under this act to grow and process medical marijuana.” 35 P.S. §
10231.103.
To receive a grower permit under the MMA, a person must
undergo an extensive application and permitting process through
the Department. See 35 P.S. § 10231.602 (requiring, among
other things, full, financial disclosure of all backers; descriptions
of responsibilities within the partnership or corporation; criminal
background checks; statements of “good moral character[”;] title
searches for the land use; and personal information for all
investors).
The number of authorized growers and processors who have
completed that administrative process is currently very small. The
General Assembly has capped the number of permits for growers.
“The department may not initially issue permits to more than 25
growers/processors.” 35 P.S. § 10231.616.
Given the extremely limited number of permits that the
Department has issued, we hold that, when an officer smells fresh
marijuana emanating from a building that is a reported growhouse there still exists a fair probability that the marijuana inside
is illegal. Law enforcement still holds the power and the duty to
investigate that probability.
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Thus, Batista has failed to persuade us that enactment of the MMA
abrogates our precedents holding that the aroma of marijuana
contributes to the finding of probable cause.
Batista, 219 A.3d at 1205 (footnote omitted).
Contrary to the Commonwealth’s claim that a per se, plain-smell rule
exists, the Batista Court did not apply such a rule, instead characterizing the
prior precedents as establishing the rule that the odor of marijuana may
contribute to a finding of probable cause. Id. The Court considered whether
the odor of marijuana, in conjunction with other circumstances, contributed
to a finding of probable cause, and concluded that it did—a wholly unnecessary
task if the odor of marijuana was alone sufficient to establish probable cause
to search Batista’s home.
The additional circumstances considered were both specific to the case
and universal; specific in that the odor of marijuana, and its location, had
directly corroborated a tip that marijuana was being illegally grown there, and
universal in the sense that the Court deliberated on the likelihood that the
detected marijuana might have complied in some sense with the MMA.
Because the odor corroborated the tip, in addition to the fact that it was
extremely unlikely that Batista had been granted one of a handful of licenses
to grow marijuana under the MMA, the Batista Court concluded that the
search warrant was supported by probable cause to believe that the marijuana
detected was illegal.
Here, there was no tip suggesting that Appellee or the other passengers
in the vehicle were illegally using marijuana, and Appellee presented the
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officers with his MMA card prior to the search at issue. Moreover, while
licenses to grow marijuana under the MMA are extremely limited—on the order
a few dozen statewide—hundreds of thousands of Pennsylvania citizens will
soon legally possess and consume marijuana pursuant to the MMA. Thus,
the likelihood that police will encounter the lawful possession and use of
marijuana through its odor pursuant to the MMA is exponentially greater than
the likelihood that they will discover a lawful grow house, and no facts known
to police before the search was conducted supported the belief that marijuana
was being manufactured or sold in or from Appellee’s vehicle. Thus, Batista
does not control here.
We conclude, therefore, that the post-MMA cases cited by the
Commonwealth do not control our decision and, consequently, we consider
the question before us in the first instance. The Commonwealth contends that
the MMA did not make marijuana presumptively legal, and that it remains
presumptively illegal, despite the MMA. As a factual matter, the trial court
credited expert testimony that there is no distinction between legal medical
marijuana and contraband marijuana that can be detected through odor alone.
See TCO at 7. Nevertheless, the Commonwealth maintains that all marijuana
remains presumptively illegal, and that medical marijuana exists only as a
limited exception to the CSA. As far as the Commonwealth asserts that the
MMA is a limited exception to the CSA, we agree. See Batista, 219 A.3d at
1205. It does not follow that the odor of marijuana is always sufficient to
establish probable cause, or, relatedly, that the MMA is irrelevant to the test
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for probable cause. It would strain credulity to think the legislature intended
that all medical marijuana users under the MMA—hundreds of thousands of
Pennsylvanians already—may be presumptively subjected to searches by law
enforcement due to the odor of marijuana alone. However, we need not
read into the intent of the legislature here, because there is no statutory
question before us. Lawful users of medical marijuana do not surrender their
4th Amendment rights merely because other citizens will continue to possess
contraband marijuana in contravention of the CSA. The MMA has altered the
fact of marijuana’s previously universal illegality, and probable cause is a fact-
driven standard “not readily, or even usefully, reduced to a neat set of legal
rules.” Glass, 754 A.2d at 663. Thus, we conclude that the trial court did not
err in merely considering the passage of the MMA as a relevant fact in its
probable cause analysis. The question remains, however, whether the lower
court abused its discretion in concluding that the odor of marijuana cannot
contribute to a finding of probable cause in the post-MMA environment.
Hicks
Next, the Commonwealth argues that the trial court erroneously applied
the reasoning of Hicks in granting Appellee’s suppression motion. In Hicks,
our Supreme Court held that possession of a concealed firearm by an
individual in public is not sufficient to create a reasonable suspicion that the
individual may be dangerous or committing a criminal offense, explicitly
overruling this Court’s longstanding decision in Commonwealth v.
Robinson, 600 A.2d 957 (Pa. Super. 1991). Hicks, 208 A.3d at 947. Here,
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the trial court “applied” Hicks in determining “that the plain smell of
marijuana alone no longer provides authorities with probable cause to conduct
a search of a subject vehicle. As marijuana has been legalized in Pennsylvania
for medical purposes, the plain smell of burnt or raw marijuana is no longer
indicative of an illegal or criminal act.” TCO at 14-15 (emphasis added).
The Commonwealth contends that Hicks is distinguishable because it was
expressly limited to the possession of firearms, and that the rationale of Hicks
cannot apply here because the possession of a concealed firearm is ostensibly
not analogous to the possession of medical marijuana. Essentially, the
Commonwealth maintains that possession of marijuana under the MMA is in a
distinct legal category that makes it presumptively illegal in a manner that
does not apply to the possession of a concealed firearm.
In Hicks,
at approximately 2:30 a.m., a remote camera operator conducting
live surveillance of a gas station and convenience store … notified
police officers that a patron of the establishment was in possession
of a firearm. According to the suppression court’s factual
recitation, the camera operator advised officers that the observed
individual showed the firearm to another patron, put the firearm
in his waistband, covered it with his shirt, and walked inside the
convenience store.
The observed individual was Michael Hicks. It later emerged that
Hicks possessed a valid license to carry a concealed firearm. See
18 Pa.C.S. § 6109(a) (“A license to carry a firearm shall be for the
purpose of carrying a firearm concealed on or about one’s person
or in a vehicle throughout this Commonwealth.”). Hicks was not
statutorily prohibited from possessing a firearm. Accordingly, on
the morning in question, and at the observed location, there was
nothing unlawful about Hicks’ possession of his handgun, nor the
manner in which he carried it.
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While responding police officers were en route, Hicks entered and
exited the convenience store, then reentered his vehicle. Before
Hicks could exit the parking lot, numerous police officers in
marked vehicles intercepted and stopped Hicks’ vehicle. Believing
that Hicks had moved his hands around inside the vehicle, Officer
Ryan Alles drew his service weapon as he approached Hicks’
vehicle and ordered Hicks to keep his hands up.
Hicks, 208 A.3d at 922 (cleaned up).
The police conducted a Terry9 search and discovered a bag of marijuana
in Hicks’ possession. Hicks sought to suppress the evidence based on the
theory that the police lacked reasonable suspicion to conduct the Terry search
merely because he was observed with a concealed firearm. The suppression
court denied his motion, relying on Robinson, where the Superior Court held
that possession of a concealed weapon in public creates a reasonable suspicion
justifying an investigatory stop in order to investigate whether the person is
____________________________________________
9 See Terry v. Ohio, 392 U.S. 1 (1968). Importantly,
[o]ur Supreme Court has defined three forms of police-citizen
interaction: a mere encounter, an investigative detention, and a
custodial detention. Commonwealth v. Boswell, … 721 A.2d
336, 340 (Pa. 1998). A mere encounter between police and a
citizen “need not be supported by any level of suspicion, and
carr[ies] no official compulsion on the part of the citizen to stop
or to respond.” Commonwealth v. Riley, 715 A.2d 1131, 1134
(Pa. Super. 1998).
An investigatory stop, which subjects a suspect to a stop and a
period of detention, but does not involve such coercive conditions
as to constitute an arrest, requires a reasonable suspicion that
criminal activity is afoot. See Terry…, 392 U.S. [at] 21…. A
custodial detention is an arrest and must be supported by
probable cause. Id.
Commonwealth v. Fuller,
940 A.2d 476, 478–79 (Pa. Super. 2007).
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properly licensed (the “Robinson rule”). See Robinson, 600 A.2d at 960-
61. After this Court affirmed the order denying suppression, our Supreme
Court reversed, thereby overturning Robinson.
The Hicks Court began with an examination of the laws regulating the
possession of firearms. The Court concluded that carrying a firearm in
Pennsylvania is generally legal but subject to a few exceptions, one of which
being a prohibition on carrying a concealed firearm without a license. Hicks,
208 A.3d at 926. Nevertheless, the court recognized that “there can be no
doubt that a properly licensed individual who carries a concealed firearm in
public engages in lawful conduct. Indeed, millions of people lawfully engage
in this conduct on a daily basis.”
Id. The Robinson rule, the Hicks Court
reasoned, “characterizes the carrying of a concealed firearm as per se
reasonable suspicion authorizing” a Terry stop “in order to investigate
whether the person is properly licensed.”
Id. at 928. Hicks argued that
nothing about his conduct gave rise to reasonable suspicion of criminal
activity, including his carrying of a concealed weapon, which is lawful in
Pennsylvania when licensed, and that Robinson was, inter alia, a
misapplication of Terry.
Id. The Commonwealth maintained “that the per se
approach of Robinson is a justifiable application of the Terry doctrine,” and
it emphasized that, “under the totality of the circumstances, ‘wholly lawful
conduct might justify the suspicion that criminal activity [is] afoot.’”
Id. at
928–29 (quoting Reid v. Georgia,
448 U.S. 438, 441 (1980)).
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After a thorough review of 4th Amendment case law from this and other
jurisdictions, the Hicks Court found “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. Thus, the “Robinson rule
improperly dispenses with the requirement of individualized suspicion and, in
so doing, misapplies the overarching totality of the circumstances test.” Id.
at 937. The Court explained:
Although the carrying of a concealed firearm is unlawful for a
person statutorily prohibited from firearm ownership or for a
person not licensed to do so, see 18 Pa.C.S. §§ 6105-06, there is
no way to ascertain an individual’s licensing status, or status as a
prohibited person, merely by his outward appearance. As a
matter of law and common sense, a police officer observing an
unknown individual can no more identify whether that individual
has a license in his wallet than discern whether he is a criminal.
Unless a police officer has prior knowledge that a specific
individual is not permitted to carry a concealed firearm, and
absent articulable facts supporting reasonable suspicion that a
firearm is being used or intended to be used in a criminal manner,
there simply is no justification for the conclusion that the mere
possession of a firearm, where it lawfully may be carried, is alone
suggestive of criminal activity.
Id. at 936–37. Thus, the Hicks Court held that the Robinson rule violated
the principles of the 4th Amendment because, “with no other criterion beyond
the fact of an individual’s possession of a concealed firearm necessary to
justify a seizure, the Robinson rule allows a police officer to base the decision
to detain a particular individual upon an ‘inchoate and unparticularized
suspicion’ or ‘hunch’ that the individual is unlicensed and therefore engaged
in wrongdoing.” Id. at 946 (quoting Terry, 392 U.S. at 27).
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We agree with the Commonwealth that the trial court’s direct application
of Hicks to the circumstances of this case constituted an abuse of discretion.
First, as is obvious, the holding in Hicks could not directly apply because it
concerned what constitutes reasonable suspicion of criminality justifying a
Terry stop when possession of a concealed firearm is observed, not whether
probable cause to search a vehicle exists based on the odor of marijuana
alone. Moreover, even assuming the trial court merely adopted the reasoning
of Hicks, the respective conduct is not sufficiently analogous to compel an
identical result. The possession of a firearm is generally legal, with limited
exceptions. The possession of marijuana, by contrast, remains generally
illegal, but for the limited exception of lawful possession of medical marijuana
pursuant to the MMA.
Thus, we simply cannot sustain the trial court’s conclusion, based on
Hicks, that because “marijuana has been legalized in Pennsylvania for medical
purposes, the plain smell of burnt or raw marijuana is no longer indicative of
an illegal or criminal act.” TCO at 15. The odor of marijuana may still be
indicative of an illegal or criminal act, because the possession of marijuana
remains generally illegal. This is especially true when other circumstances
suggest that the detected marijuana cannot be in compliance with the MMA,
such as was the case in Batista.
However, the reasoning in Hicks is not completely irrelevant here. While
there is a legal distinction to be made between possession of marijuana and
possession of a concealed firearm, the Hicks decision was not premised solely
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on the general legality of firearms. See Hicks, 208 A.3d at 945 (“The seizure
at issue was not unconstitutional due to the statutory classification of Hicks’
license; it was unconstitutional because the police officers had no way of
determining from Hicks’ conduct or appearance that he was likely to be
unlicensed and therefore engaged in criminal wrongdoing.”). It remains a fact
that police cannot distinguish between contraband marijuana and medical
marijuana legally consumed by a substantial number of Pennsylvanians based
on odor alone,10 just as police cannot determine from a person’s possession
of a concealed firearm that he or she is unlicensed to carry it concealed.
The Commonwealth argues that there is no way for law enforcement to
determine whether someone is complying with the MMA “absent
investigation,” and therefore the MMA “cannot have a negative impact on an
officer’s assessment of probable cause.” Commonwealth’s Brief at 27. The
second proposition does not flow from the first. It is precisely because the
police cannot discern lawful from unlawful conduct by the odor of marijuana
alone that the police may need to rely on other circumstances to establish
probable cause to believe that the possession of marijuana detected by that
odor is criminal.
____________________________________________
10 The Commonwealth contests this point, arguing that the smell of burnt
marijuana indicates that the substance had been smoked, which is illegal
under the MMA. Commonwealth’s Brief at 31. However, the trial court
credited the expert witness’s testimony that vaporizing medical marijuana,
which is a legal method of consumption under the MMA, produces an identical
odor to burning marijuana. See TCO at 14.
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To the extent that the Commonwealth implies that the MMA exists only
as an affirmative defense to the CSA, and that compliance with the MMA is a
matter irrelevant to the probable cause test, there is no statutory support for
such a claim. Although marijuana is generally illegal under the CSA, nowhere
in the MMA does the legislature purport to create an affirmative defense to
CSA crimes. Rather, the MMA declares that medical marijuana is legal, and
that it takes precedence over conflicting provisions in the CSA. See 35 Pa.C.S.
§ 10231.2101.
In any event, even if the MMA provides an affirmative defense to the
CSA, the Hicks Court rejected the so-called “element-or-defense” test for 4th
Amendment questions:
The element-or-defense test amounts to a “seize now and sort it
out later” approach. This is antithetical to the foundational
protections of the Fourth Amendment. It casts too wide a net,
with no regard for the number of law-abiding citizens ensnared
within.
Hicks, 208 A.3d at 944. The Court further elaborated that “it is certainly the
legislature’s prerogative to define the elements of crimes and to set forth
affirmative defenses. However, the constitutionality of enforcement tactics is
a matter of judicial concern.”
Id. at 943.
One of the primary concerns when courts consider the constitutionality
of a search or seizure is whether individualized suspicion is present.
In addition to the reasonableness of the search and seizure, the
Fourth Amendment generally requires the presence of
individualized suspicion to justify a seizure. City of Indianapolis
v. Edmond, 531 U.S. 32, 37 (2000); …. The courts of this
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Commonwealth and federal courts have recognized limited
circumstances where the general rule does not apply.
Commonwealth v. Mistler, 912 A.2d 1265, 1271 (Pa. 2006). No recognized
exceptions apply in this case, and the Commonwealth presents no argument
to that effect. As such, particularized suspicion was required to justify the
search. In this regard, the Hicks Court instructs:
When many people are licensed to do something, and violate no
law by doing that thing, common sense dictates that the police
officer cannot assume that any given person doing it is breaking
the law. Absent some other circumstances giving rise to a
suspicion of criminality, a [search or] seizure upon that basis alone
is unreasonable.
Hicks, 208 A.3d at 945.
Here, ‘many people’ are licensed to consume marijuana under the MMA,
and ‘violate no law’ by doing so. The odor of marijuana alone, absent any
other circumstances, cannot provide individualized suspicion of criminal
activity when hundreds of thousands of Pennsylvanians can lawfully produce
that odor. What it does provide to police is a general, probabilistic suspicion
of criminal activity based on the fact that most citizens cannot legally consume
marijuana. Thus, it is a factor that can contribute to a finding of probable
cause, consistent with prior precedent discussed above, assuming some other
circumstances supply more individualized suspicion that the activity is
criminal. This does not imply a change in the probable cause test, because,
previously, the possession of marijuana was universally illegal. That universal
factual circumstance established particularized suspicion of criminal activity,
because every instance of possession of marijuana was previously a crime.
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However, here, the trial court afforded the odor of marijuana no weight in its
determination that police lacked probable cause to search Appellee’s vehicle.
That extreme view is not justified by the Hicks decision. The general illegality
of marijuana under the CSA cannot simply be ignored merely because it is
lawfully used in limited circumstances under the MMA and, thus, we must
reject the trial court’s conclusion that the odor of marijuana provides no
indication of criminal activity. At the same time, those who act in compliance
with the MMA should not be subjected to searches based solely on a
generalized suspicion that is provided by that odor when the 4th Amendment
also requires particularized suspicion.
Other Factors Supporting a Finding of Probable Cause
In the Commonwealth’s final suppression argument, it contends that,
even assuming the odor of marijuana does not alone establish probable cause,
it can still be a contributing factor to a finding of probable cause. As discussed
above, we agree with this general statement of the state of the plain smell
doctrine. The Commonwealth further argues that “there were ample other
uncontradicted factors in addition to the smell of burnt marijuana that when
considered in their totality and objectively, provided police with … probable
cause to support the search of the vehicle.” Commonwealth’s Brief at 32.
Specifically, the Commonwealth contends that the following factors were not
adequately considered by the trial court: 1) Trooper Prentice’s training and
experience with regard to narcotics investigations; 2) Trooper Prentice’s
identification of the area where Appellee’s vehicle was stopped as a high crime
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area; 3) Appellee’s numerous statements prior to the search; and 4)
Appellee’s change in demeanor upon the arrival of more police officers. Id.
at 33-34. The Commonwealth asserts that a “common sense and objective
view of these facts” adds up to probable cause to believe that criminal activity
was afoot. Id. at 34.
Assuming the trial court found the officers’ testimony entirely credible,
it should have considered those factors, in addition to the odor of marijuana,
in determining whether police possessed probable cause to search Appellee’s
vehicle. Unfortunately, and perhaps because the trial court afforded no weight
to the odor of marijuana as a contributing factor to a finding of probable cause
based on its misapplication or overstatement of Hicks’s applicability here, the
court failed to provide us with discrete credibility assessments relevant to the
other potential factors affecting probable cause in its opinion.
For instance, the Commonwealth contends that Trooper Prentice
essentially testified that Appellee’s vehicle was stopped in a ‘high crime area.’
However, while we acknowledge the trooper testified that he had made many
drug and gun arrests in the area of the stop, see N.T., 7/17/19, at 14, he did
not offer an opinion as to whether that area was any more likely to produce
gun and/or drug arrests than any other area. Thus, we cannot state that it is
clear and uncontradicted from the record that the stop occurred in a high
crime area, or simply in an area where Trooper Prentice has conducted arrests
for common crimes. The trial court did not include this aspect of Trooper
Prentice’s testimony in the summary of its findings of fact, nor include it in its
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legal analysis. If this was because the court determined that Trooper
Prentice’s testimony did not establish that the stop occurred in a high crime
area, it did not say so.
Similarly, the Commonwealth contends that Appellee’s statements and
related behavior preceding the search, in conjunction with the odor of
marijuana, should have also been considered in the trial court’s probable
cause analysis. Although the trial court recounted those statements in its
findings of fact, the court did not appear to consider them at all. If the court
believed those statements did not contribute in any way to a potential finding
of probable cause to suspect criminal activity, it failed to explain how it
reached that conclusion. Nor did the trial court address the trooper’s
observation that Appellee’s demeanor changed when backup arrived.
In sum, the factual record before us is inadequate to conclude whether
police possessed probable cause to search Appellee’s vehicle. While 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, and Appellee’s presentation of an
MMA card was at least one factor that tends to undermine the inference of
criminality. However, other potentially relevant factors were not considered
by the trial court, and the court’s credibility assessments of the testimony
ostensibly establishing those factors are not in the record. Thus, the most
prudent course of action is to remand for reconsideration by the trial court
under the appropriate standard.
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Accordingly, we conclude that we must vacate the order granting
suppression and remand for reconsideration of that motion by the trial court
given the deficiencies in the court’s opinion identified herein. We instruct the
court that while it is not compelled by case law to find that probable cause
exists solely on the basis of the odor of marijuana, that fact may, in the totality
of the circumstances, still contribute to a finding of probable cause to believe
the marijuana detected by the odor was possessed illegally. The court may
consider Appellee’s presentation of an MMA card as a factor that weighs
against a finding of probable cause, as it provides at least some evidence
tending to suggest the marijuana in question was possessed legally.11
However, the court must also consider (or explain why it need not consider)
the other factors suggested by the Commonwealth as contributing to a finding
of probable cause, such as Appellee’s statements and demeanor during the
stop, as well as the nature of the location of the stop.
II
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11 The Commonwealth complains that police cannot immediately ascertain
whether a MMA card is valid at this time. However, even if true, that fact does
not render presentation of an MMA card irrelevant to the court’s probable
cause analysis. Nevertheless, the presentation of an MMA card does not
automatically defeat a finding of probable cause, either. It is plausible that
circumstances in a particular case might demonstrate that an officer has a
reasonable belief that a card is invalid, or that the manner of possession of
medical marijuana is not compliant with the MMA. It is also possible that a
person possessing a valid MMA card may also possess contraband marijuana.
Whether any such circumstances exist in this case is for the trial court to
decide in the first instance.
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The Commonwealth also contends that the trial court erred when it
granted Appellee’s habeas motion to dismiss the PSAM charge.12 The court
determined that the Commonwealth failed to establish a prima facie case for
that offense due to the suppression of the seized marijuana. See TCO at 16
n.20. The Commonwealth argues that the court “cannot enter an order
dismissing the charges unless the Commonwealth consents or the time for
filing a notice of appeal [from the order granting suppression] has elapsed.”
Commonwealth’s Brief at 37 (citing Commonwealth v. Micklos, 672 A.2d
796, 801 (Pa. Super. 1996) (en banc)). This is a pure question of law and,
therefore, our standard of review is plenary. Commonwealth v. Karetny,
880 A.2d 505, 513 (Pa. 2005) (stating “it is settled that the evidentiary
sufficiency, or lack thereof, of the Commonwealth’s prima facie case for a
charged crime is a question of law as to which an appellate court’s review is
plenary”).
In Micklos, an en banc panel of this Court considered “whether the
Commonwealth may appeal from an order of court which granted a criminal
defendant’s suppression motion and concurrently dismissed all charges filed
against that defendant, thereby preventing the Commonwealth from pursuing
its right to appeal the adverse rulings of a suppression court.” Micklos, 672
A.2d at 798. The Court proceeded “under the assumption that defense
counsel first presented the motion to suppress at the close of testimony”
____________________________________________
12The offense of PSAM is defined as “the possession of a small amount of
mari[j]uana only for personal use[.]” 35 P.S. § 780-113(a)(31)(i).
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during a non-jury trial. Id. at 799. The trial court granted the suppression
motion, and on that basis, dismissed the charges that were contingent upon
the suppressed evidence.
The Micklos Court first determined that jeopardy had attached when
the defendant filed his suppression motion, as the evidentiary portion of the
trial had already concluded. Id. at 800. In typical circumstances, when a
suppression motion is timely filed in a pre-trial setting, the Commonwealth
has, pursuant to Pa.R.A.P. 311(d), the right to appeal from an adverse
suppression ruling upon certification that the prosecution is substantially
handicapped. See Pa.R.A.P. 311(d) (“In a criminal case, under the
circumstances provided by law, the Commonwealth may take an appeal as of
right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution.”). Because jeopardy had already
attached, the Micklos Court observed that “the trial court lacked power to
dismiss before allowing the Commonwealth an opportunity to appeal the
adverse suppression ruling.” Id. at 801.
Appellee distinguishes this matter from Micklos, arguing that the
procedural posture of this case, where both the suppression motion and
habeas petition were filed and decided before trial, is critically different from
Miklos, where the trial had already begun, and jeopardy had attached. See
Appellee’s Brief at 35-36. We agree. Here, the Commonwealth was not
deprived of the opportunity to appeal from the adverse suppression ruling, as
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jeopardy has not yet attached to this case. Furthermore, Appellee was
required to file both motions pursuant to Pa.R.Crim.P. 578. See Pa.R.Crim.P.
578 (“Unless otherwise required in the interests of justice, all pretrial requests
for relief shall be included in one omnibus motion.”).13 The trial court certified
the order denying both motions for immediate appellate review pursuant to
Pa.R.A.P. 341(c). Additionally, it is well-established that “[w]hen a charge is
dismissed on a pre-trial writ of habeas corpus, the Commonwealth may
appeal.” Commonwealth v. Huggins, 836 A.2d 862, 865 n.2 (Pa. 2003).
Presently, both the suppression and habeas issues are properly before this
Court. Accordingly, we conclude that Micklos is inapplicable here, and that
the Commonwealth’s claim lacks merit on that basis.14
Nevertheless, the order granting Appellee’s habeas motion cannot
stand, given our disposition with regard to the Commonwealth’s first claim.
The trial court explicitly conditioned its dismissal of the PSAM charge on its
granting of suppression. See TCO at 16 (“As a result of this [c]ourt’s …
suppression of the evidence seized from the subject vehicle, this [c]ourt finds
that the Commonwealth failed to establish a prima facie case of [PSAM].”)
(emphasis added). Accordingly, we vacate the order granting Appellee’s
____________________________________________
13 The official comment to Rule 578 notes that such relief includes requests
“(3) for suppression of evidence[, and] … (5) to quash or dismiss an
information[.]” Pa.R.Crim.P. 578 (comment).
14 We note that the Commonwealth provides little more than a citation to
Micklos, and no analysis of the facts of that case, in its single-page argument
in support of this claim. See Commonwealth’s Brief at 37.
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habeas petition, and remand for reconsideration of that petition following the
trial court’s reevaluation of the suppression issue.
Order granting suppression and habeas relief vacated. Case
remanded for reconsideration consistent with the analysis set forth in this
opinion. Jurisdiction relinquished.
Judge Lazarus joins this opinion.
Judge Strassburger joins and files a concurring opinion in which
President Judge Emeritus Bender and Judge Lazarus join.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/25/20
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