J-S51003-20
2021 PA Super 19
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD SHAW :
:
Appellant : No. 289 MDA 2020
Appeal from the Judgment of Sentence Entered September 11, 2019
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000684-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
OPINION BY MURRAY, J.: FILED FEBRUARY 17, 2021
Richard Shaw (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of possession of a controlled substance
and possession of drug paraphernalia.1 Appellant argues that the trial court
erred in denying his motion to suppress evidence (Motion to suppress) seized
from an illegal traffic stop and warrantless search of his vehicle. After careful
review, we vacate the judgment of sentence and remand for further
proceedings.
A single witness testified at the suppression hearing. Hughestown
Borough Police Officer Drew Malvizzi (Malvizzi) testified for the
Commonwealth. Malvizzi stated that on October 28, 2017, at approximately
8:20 p.m., he observed a Toyota SUV pass in the opposite direction. N.T.,
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1 35 P.S. § 780-113(a)(16), (32).
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2/5/19, at 4. Malvizzi looked in his patrol vehicle’s rearview mirror, and
noticed that “no lights [were] illuminated on the rear of [Appellant’s] vehicle,
which made it seem as though a registration plate did not exist.” Id. Based
on this observation, Malvizzi turned his vehicle around and began following
Appellant. Id. at 4-5.
While traveling approximately 20 feet behind Appellant’s vehicle,
Malvizzi saw that although the vehicle had a license plate, it lacked required
lighting. Id. at 5, 9. Malvizzi then turned on his overhead lights to stop the
vehicle based on a violation of section 4303(b) of the Vehicle Code, which
requires that “every vehicle operated on a highway shall be equipped with a
rear lighting system including, but not limited to, rear lamps, rear reflectors,
stop lamps and license plate light.” Id. at 5; 75 Pa.C.S.A. § 4303(b).
Malvizzi approached the vehicle and saw that Appellant was the driver
and only occupant. Id. at 6. While talking with Appellant through the driver’s
side window, Malvizzi “almost immediately” detected an odor of marijuana
emanating from the vehicle. Id. at 6, 9, 12, 23-24. Malvizzi explained that
he was familiar with the smell of marijuana from his experience as a police
officer. Id. at 6-7.
Malvizzi further observed Appellant to be “very nervous.” Id. at 6, 10.
Although it was late October and cool outside, Appellant was “sweating kind
of profusely.” Id. Appellant told Malvizzi that he did not own the vehicle, and
it belonged to a friend. Id. at 10. Upon request, Appellant provided Malvizzi
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with his license, the vehicle registration, and the insurance card. Id. at 5-6,
10. Malvizzi returned to his patrol car, ran the registration information (which
confirmed that the vehicle was not registered to Appellant), and called for
backup assistance. Id. at 7, 11. Two officers from the Pittston City Police
Department arrived at the scene. Id.
Malvizzi returned to Appellant’s vehicle and asked him if the police could
search the vehicle based on the odor of marijuana. Malvizzi told Appellant
that “in Pennsylvania, the odor of marijuana is probable cause to search a
vehicle.” Id. at 11. Appellant did not consent to the search. Id. at 22-23.
The police asked Appellant to exit the vehicle, and he complied. Id. at
7. A search of Appellant’s person did not produce any contraband. Id. at 12.
The police then searched the vehicle, and found on the rear right seat, a black
shopping bag which contained multiple individually-packaged, vacuum-sealed
bags of marijuana. Id. at 14-16, 25, 30.2 The police placed Appellant in
custody and seized the marijuana. Id. at 14.
The Commonwealth charged Appellant with possession of drug
paraphernalia and possession of a controlled substance, as well as possession
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2 The parties do not dispute that the substance was marijuana, which weighed,
altogether, approximately 2/3 of a pound.
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with intent to deliver a controlled substance 3 and the summary offense of
driving without rear lights.4
On December 11, 2018, Appellant filed a Motion to suppress, arguing
that Malvizzi lacked the requisite reasonable suspicion or probable cause to
conduct a lawful traffic stop. Appellant further asserted that the warrantless
search of his vehicle was illegal because it was not supported by probable
cause.
As discussed above, the trial court held an evidentiary hearing. On April
11, 2019, the court denied the Motion to suppress. The court based its
decision on the legal authority that existed at the time, stating:
The testimony of [Malvizzi], which the Court finds believable and
credible, establishes probable cause to stop the vehicle and
probable cause to search the vehicle. See Commonwealth v.
Salter, 121 A.3d 987 (Pa. Super. 2015); United States v.
Ramos, 443 F.3d 304, 308 (3d Cir. 2006) (“It is well settled that
the smell of marijuana alone, if articulable and particularized, may
establish not merely reasonable suspicion, but probable
cause[.”]); see also Commonwealth v. Johnson, 68 A.3d 930,
936 (Pa. Super. 2013) (smell of marijuana coming from trailer
provided probable cause[, as well as exigent circumstances,] for
search warrant) (citing Commonwealth v. Waddell, 61 A.3d
198 (Pa. Super. 2012)).
Order, 4/11/19.
The case proceeded to trial. A jury found Appellant guilty of possession
of drug paraphernalia and possession of a controlled substance, and acquitted
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3 35 P.S. § 780-113(a)(30).
4 75 Pa.C.S.A. § 4303(b).
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Appellant of the remaining charges. On September 11, 2019, the trial court
sentenced Appellant to 6 months of intermediate punishment, followed by an
aggregate term of one year of probation. Appellant filed a timely post-
sentence motion, which, after a hearing, the trial court denied.
Appellant filed a timely appeal, followed by a court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. On April 22,
2020, the trial court issued a Rule 1925(a) opinion.
Appellant presents two issues for our review:
1. Did the trial court err in finding that the traffic stop was valid
based on “reasonable suspicion” or “probable cause” that the
Appellant had committed a non-investigatable [sic] offense and
then refusing to suppress all evidence seized?
2. Did the trial court err in finding, following an illegal traffic stop,
that the investigators possessed probable cause, where the
Appellant did not give consent to search without a warrant the
vehicle operated by the Appellant and, then, refusing to suppress
all evidence seized?
Appellant’s Brief at 2.
At the outset, we are mindful of our standard of review when a
defendant challenges the denial of a suppression motion. Our standard of
review
is limited to determining whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. We are bound by the suppression
court’s factual findings so long as they are supported by the
record; our standard of review on questions of law is de
novo. Where, as here, the defendant is appealing the ruling of
the suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted. Our scope of review of suppression
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rulings includes only the suppression hearing record and excludes
evidence elicited at trial.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted). Additionally, “[i]t is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given to
their testimony. The suppression court is free to believe all, some or none of
the evidence presented at the suppression hearing.” Commonwealth v.
Byrd,
185 A.3d 1015, 1019 (Pa. Super. 2018) (citation omitted).
Appellant first argues that the suppression court erred in denying
suppression because Malvizzi lacked reasonable suspicion or probable cause
to make a lawful traffic stop. See Appellant’s Brief at 10-15.
The quantum of cause required for a traffic stop is settled:
If a police officer possesses reasonable suspicion that a violation
of [Pennsylvania’s Motor Vehicle Code (MVC)] is occurring or
has occurred, he may stop the vehicle involved for the purpose of
obtaining information necessary to enforce the provisions of the
[MVC]. See 75 Pa.C.S.A. § 6308(b). Reasonable suspicion is a
relatively low standard and depends on the information possessed
by police and its degree of reliability in the totality of the
circumstances. See Commonwealth v. Brown, 996 A.2d 473,
477 (Pa. 2010). In order to justify the stop, an officer must be
able to point to specific and articulable facts which led him to
reasonably suspect a violation of the MVC. See Commonwealth
v. Holmes, 14 A.3d 89, 95 (Pa. 2011). The standard for
assessing whether a given set of observations constitutes
reasonable suspicion is an objective one, based on the totality of
the circumstances. See id.
Commonwealth v. Wilson,
237 A.3d 572, 578-79 (Pa. Super. 2020)
(emphasis omitted).
However, we have further explained:
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Mere reasonable suspicion will not justify a vehicle stop when the
driver’s detention cannot serve an investigatory purpose relevant
to the suspected violation. … If it is not necessary to stop the
vehicle to establish that a violation of the [MVC] has occurred, an
officer must possess probable cause to stop the vehicle.
Salter, 121 A.3d at 993 (emphasis added, citation omitted). To establish
probable cause, the “officer must be able to articulate specific facts possessed
by him at the time of the questioned stop, which would provide probable cause
to believe that the vehicle or the driver was in some violation of some provision
of the [MVC].” Commonwealth v. Lindblom,
854 A.2d 604, 607 (Pa. Super.
2004).
Here, Malvizzi stopped Appellant’s vehicle after observing that there was
no lighting of the rear license plate. The MVC requires that “[e]very vehicle
operated on a highway shall be equipped with a rear lighting system including,
but not limited to, … a license plate light, in conformance with regulations of”
the Pennsylvania department of transportation. 75 Pa.C.S.A. § 4303(b); see
also Salter, 121 A.3d at 993 (collecting the relevant regulations).
In rejecting Appellant’s claim and finding that probable cause existed,
the explained:
In Salter, supra, which also addressed the ability of a police
officer to make a vehicle stop based on a violation of § 4303(b),
the Superior Court recognized that determining the required
constitutional standard in a vehicle stop based on insufficient rear
lighting is not as clear as in the case of speeding or driving while
under the influence. The Court discussed the fact that there may
be circumstances, “given the nature of this violation and the
conditions under which plate illumination may be observed, that
an officer may have to stop a vehicle to investigate further if a
violation exists.” [Salter, 121 A.3d] at 994. Since the officer in
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Salter[, like Malvizzi in the instant appeal,] testified that he
observed [Appellant’s license] plate lights to be out, he did not
need to stop [Appellant’s] vehicle to investigate further to
determine if they were out. The [Salter C]ourt found that nothing
more needed to be determined by the officer upon a stop to verify
that the lights were not operating and that the officer possessed
probable cause to legally make the stop. “Probable cause does
not require certainty, but rather exists when criminality is one
reasonable inference, not necessarily even the most likely
inference.” Commonwealth v. Spieler, 887 A.2d 1271, 1275
(Pa. Super. 2005).
Here, we found that the testimony of Officer Malvizzi
supported a finding that he had probable cause to believe that
[Appellant’s] conduct violated 75 Pa.C.S.A. § 4303(b). Malvizzi
testified at the suppression hearing that he initially noticed what
appeared to be no rear lights on [Appellant’s] vehicle, in his rear
view mirror, after [Appellant] had passed him going in the
opposite direction. N.T., 2/5/19, at 4. After determining that he
could not see [Appellant’s] license plate, Malvizzi turned his
vehicle around and began following [Appellant] until he caught up
with him. Id. at 4-5. He was able to confirm that the lights on
the plate were not working. Id. at 5. When he got closer to the
vehicle, Malvizzi “was able to see that the two lights that are
positioned above the license plate to illuminate it were out.” Id.
As in Salter, supra, nothing more needed to be determined by
Officer Malvizzi to verify that [Appellant’s] rear lights were not
operating and, therefore, he possessed probable cause to legally
make the vehicle stop of the Toyota.
Trial Court Opinion, 4/22/20, at 9-10 (citations modified).
Our review discloses that the trial court’s findings are supported by the
record and the law, such that Officer Malvizzi possessed probable cause to
lawfully stop Appellant for violating section 4303(b) of the MVC. See Salter,
121 A.3d at 994. Accordingly, Appellant’s first issue does not merit relief.
In his second issue, Appellant contends the suppression court erred in
finding that Malvizzi had probable cause to search Appellant’s vehicle, without
his consent, upon detecting an odor of marijuana. See Appellant’s Brief at
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15-26; see also id. at 25 (arguing “Malvizzi clearly testified that the decision
to search the vehicle was based solely upon the general odor of marijuana.”).
Given recent and significant changes in the law, we agree.
In ruling to the contrary, the trial court relied on prevailing law at the
time. The court explained:
The search of the Toyota, even without [Appellant’s] consent, is
permissible under Pennsylvania’s automobile exception to the
warrant requirement. Commonwealth v. Gary, 91 A.3d 102
(Pa. [] 2014) (plurality) [(overruled by Commonwealth v.
Alexander, 2020 Pa. LEXIS 6439,
2020 WL 7567601 (Pa. 2020)].
In Gary, the [] Court held that the prerequisite for a warrantless
search of a motor vehicle is probable cause to search; no
exigency beyond the inherent mobility of a motor vehicle is
required. Id. at 138. Upon smelling the very strong odor of
marijuana as soon as [Malvizzi] approached the back door of
[Appellant’s vehicle,] Malvizzi had probable cause to search the
vehicle. The smell of marijuana coming from [Appellant’s vehicle]
alone provided grounds to search it. See Gary, supra (noting
that the smell of marijuana coming from inside the vehicle
provided probable cause to search); see also Ramos, supra (“It
is well settled that the smell of marijuana alone, if articulable and
particularized, may establish not merely reasonable suspicion, but
probable cause”); Johnson, supra (smell of marijuana coming
from trailer provided probable cause for search warrant) (citing
Waddell, supra); Commonwealth v. Stoner,
344 A.2d 633,
635 (Pa. Super. 1975) (holding that the smell of marijuana
provides probable cause to search). In the instant case, Malvizzi
could smell the odor of marijuana as he approached the rear door
of the Toyota. Malvizzi, as a police officer, was trained to identify
drugs and was familiar with the smell of marijuana. N.T., 2/5/19,
at 4, 6-7. Malvizzi’s ability to smell and recognize the odor of
marijuana emanating from the car provided the necessary
probable cause to search the vehicle during the traffic stop without
a search warrant.
Trial Court Opinion, 4/22/20, at 10-11 (emphasis added, citations modified).
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Significantly, on December 22, 2020, the Pennsylvania Supreme Court
in Alexander, supra, overruled Gary and its progeny. The Supreme Court
held that warrantless vehicle searches require both probable cause and
exigent circumstances under Article I, Section 8 of the Pennsylvania
Constitution. See Alexander, supra at *25 (stating the “long history of
Article I, Section 8 and its heightened privacy protections do not permit us to
carry forward a bright-line rule that gives short shrift to citizens’ privacy
rights.”). The Alexander Court instructed that courts “will have to decide,
just as they did pre-Gary, whether exigent circumstances justified warrantless
searches in discrete scenarios, with a focus on the particular facts.” Id. The
Court further noted that there is no definition of exigency “that will apply to
all scenarios”; however, the
basic formulation of exigencies recognizes that in some
circumstances the exigencies of the situation make the needs of
law enforcement so compelling that the warrantless search is
objectively reasonable under the Fourth Amendment. That inquiry
is not amenable to per se rules and requires a consideration of the
totality of the circumstances.
Id. (citation and quotations omitted). “Essentially, the exigent circumstances
exception involves balancing the needs of law enforcement against individual
liberties and/or rights. Some factors will outweigh others in a given case.”
Johnson, 68 A.3d at 937 (citation omitted).
In addition to conflicting with Alexander, the trial court’s ruling conflicts
with this Court’s recent decision in Commonwealth v. Barr, 240 A.3d 1263
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(Pa. Super. Sept. 25, 2020).5 In Barr, we held that the odor of marijuana
emanating from a vehicle during a police traffic stop, alone, is not sufficient
to establish probable cause. See id. at 1283-88; cf. Trial Court Opinion,
4/22/20, at 10 (relying on Gary, supra to conclude the “smell of marijuana
coming from [Appellant’s vehicle] alone provided grounds to search it.”
(emphasis added)).
The police officer in Barr made a traffic stop for an MVC violation, and
conducted a search of defendant’s vehicle based on the odor of marijuana
emanating from the car’s window. Barr, 240 A.3d at 1270. In addressing
whether the odor alone was enough to establish probable cause, we observed
that the “plain smell doctrine,” which was premised on “the previously
universal fact of marijuana’s illegality and its distinctive odor,” had been
altered and “diminished” by Pennsylvania’s Medical Marijuana Act (MMA), 35
Pa.C.S.A. § 10231.101 et seq.6 Barr, 240 A.3d at 1275. In finding that the
MMA “clearly altered the underlying factual context in which [the] probable
cause test applies,” this Court held that the “odor of marijuana alone, absent
any other circumstances, cannot provide individualized suspicion of criminal
activity.” Id. at 1287 (emphasis added). We explained “the odor of marijuana
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5 Barr, like Alexander, was decided after the trial court’s April 11, 2019
suppression ruling and during the pendency of this appeal.
6 The MMA became effective in May 2016, prior to the October 2017 traffic
stop of Appellant’s vehicle.
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may contribute to a finding of probable cause, as possession of marijuana
remains illegal generally,” but “the odor alone does not imply individualized
suspicion of criminal activity[.]” Id. at 1288 (emphasis added); see also id.
at 1275 (holding that “odor of marijuana is a factor for consideration in a
determination of the existence of probable cause.” (emphasis in original)).
Because the suppression court in Barr ruled to the contrary, we vacated the
order granting suppression and remanded for reconsideration. Id. at 1269
(noting the suppression court failed to give any weight to the odor of
marijuana, and “did not appear to evaluate any other factors in conjunction
with the odor of marijuana in its probable cause analysis”). The Barr Court:
remand[ed] for reconsideration of th[e] motion [to suppress] 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. . . . [T]he 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 the Appellee’s statements and demeanor during the stop
....
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Id. at 1289 (emphasis added).7
The Supreme Court in Alexander likewise concluded that it was
appropriate to remand to the suppression court for further proceedings on
probable cause to search, where “the testimony was not particularly directed
at the exigencies of the situation,” and “further development” was warranted.
Alexander, supra, at *25. The Supreme Court thus “reverse[d] the order of
the Superior Court” (i.e., affirming defendant’s judgment of sentence), “with
directions to remand the matter to the trial court for further proceedings
consistent with this opinion.” Id.
Accordingly, we vacate Appellant’s judgment of sentence and remand
for further proceedings consistent with the decisions in Alexander and Barr.
See Alexander, supra at *25 (“whether the instant search was authorized
under [the appropriate] standard . . . requires further development” on
remand); Barr, supra (holding, under analogous circumstances, that “the
most prudent course of action is to remand for reconsideration,” where the
suppression court “failed to provide us with discrete credibility assessments
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7 Instantly, the Commonwealth asserts that in light of Barr, “[r]eopening the
record is necessary” to “provide the lower court with sufficient facts to make
a totality of the circumstances determination regarding the existence of
probable cause.” Commonwealth Brief at 9. The Commonwealth argues that
other considerations, in addition to the odor of marijuana coming from
Appellant’s vehicle, “include, but are not limited to, the nervousness of
[Appellant], his profuse sweating, and [that the vehicle in question] was not
registered to him.” Id.
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relevant to the other potential factors affecting probable cause in its
opinion.” (emphasis added)).8
Judgment of sentence vacated. Order denying Motion to suppress
affirmed as to the court’s finding of probable cause for the traffic stop, and
reversed as to the court’s finding of probable cause to search the vehicle.
Case remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/17/2021
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8 The trial court’s opinion does not address any “other potential factors” in its
probable cause analysis; rather, it relied upon the law at the time as stated in
Gary, supra, and focused solely on the odor of marijuana detected by Officer
Malvizzi.
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