Opinion
1907 EDA 2020 J-A26037-21
06-08-2022
COMMONWEALTH OF PENNSYLVANIA v. HENRY JOHNSON Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered September 9, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0003591-2019
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM
McCAFFERY, J.
Henry Johnson (Appellant) appeals from the judgment of sentence imposed in the Philadelphia County Court of Common Pleas following his non-jury conviction of persons not to possess firearms, firearms not to be carried without a license, and carrying firearms on public streets in Philadelphia.Appellant contends the trial court erred in denying his pretrial motion to suppress evidence and statements when: (1) the police lacked reasonable suspicion to detain him following a traffic stop; (2) the police unlawfully seized evidence absent a warrant, or probable cause and exigent circumstances; (3) the police unlawfully searched his vehicle; and (4) the Commonwealth failed to prove statements he made were lawfully obtained. For the reasons below, we vacate the judgment of sentence, and remand for further proceedings.
See 18 Pa.C.S. §§ 6105(a)(1), 6016(a)(1), and 6108, respectively.
The relevant facts, developed during Appellant's pretrial suppression hearing, are as follows. At approximately 8:50 p.m. on May 3, 2019, Philadelphia Police officer Nabil Assad and his partner were on duty in the 500 block of 59th Street in Philadelphia when they observed a vehicle traveling "with a driver's side headlight out and the high-beams on[.]" N.T. Suppression H'rg, 10/10/19, at 9-10. They stopped the vehicle in an area Officer Assad described as "violent." Id. at 10, 12. There were two occupants - the driver, later identified as Appellant, and a female passenger. See id. at 10.
The name of Officer Assad's partner is not revealed in the record.
Officer Assad described what happened when he approached Appellant's vehicle:
I approached the driver and asked him for his license, registration, and insurance. When he handed me over his driver's license, I could see his chest was rising in and out. He was breathing at a rapid pace, his hands were shaking when he handed me over his driver's license, and there was an odor of [fresh] marijuana coming from the vehicle.
N.T., Suppression H'rg, at 10. At that point, the officer "went back" to talk to his partner "[a]bout his observation and what [they] were going to do next." Id. at 14-15. Officer Assad testified:
I then had [Appellant] step out [of the vehicle]. I patted him down for weapons; didn't find any. I then had him step back with my partner. And as soon as I looked down at the vehicle, on the driver floorboard there was a black-and-purple handgun.Id. at 10. The officer stated the gun was observed "out in the open" by where the driver's right foot would be located. Id. at 11. Officer Assad "recovered the gun and . . . had the passenger step out." Id. He then searched the vehicle and recovered a "clear gray pill bottle . . . in the center console with marijuana residue." Id. There was also a small amount of marijuana in the passenger's purse, which Appellant claimed was his. Id. at 11-12. Officer Assad acknowledged he did not ask Appellant about the marijuana odor before directing him to step out of the vehicle and frisking him. Id. at 15.
Appellant was subsequently arrested and charged with the three firearms offenses and possession of a small amount of marijuana; however, the marijuana charge was later dismissed. On July 2, 2019, Appellant filed an omnibus pretrial motion seeking to suppress evidence obtained as a result of an illegal frisk and arrest, and a warrantless search. See Appellant's Omnibus Motion, 7/2/19, at 1 (unpaginated). He filed a supplemental motion on the morning of his scheduled suppression hearing - October 10, 2019 - in which he argued the warrantless search of his vehicle, absent exigent circumstances, violated the Pennsylvania Constitution, and "[t]he statement [he] gave to a detective after the unlawful search of his car should be suppressed as fruit of the poisonous tree." See Appellant's Supplementary Motion to Suppress Physical Evidence and Statement, 10/10/19, at 1, 3.
Prior to the start of the hearing, the Commonwealth's attorney acknowledged that she had received the supplemental motion from Appellant that morning, but that "it should not change [her] argument." N.T., Suppression H'rg, at 4. Appellant's counsel explained to the trial court that his argument involved a "relatively recent development" since the Pennsylvania Supreme Court had recently granted a petition for allowance of appeal in Commonwealth v. Alexander, 3246 EDA 2017 (unpub. memo.) (Pa. Super. Mar. 5, 2019). See N.T., Suppression H'rg, at 7.
As we will discuss infra, the Supreme Court's subsequent decision in Alexander changed the landscape of warrantless vehicle searches in Pennsylvania. See Commonwealth v. Alexander, 243 A.3d 177, 207 (Pa. 2020) (holding that, under the Pennsylvania Constitution, warrantless vehicle searches require both probable cause and exigent circumstances; 'one without the other is insufficient'") (citation omitted and emphasis added).
The only witness who testified at the suppression hearing was Officer Assad. Following his testimony, Appellant's counsel conceded "the validity of the car stop[ because there was] no dispute that the headlight was out[, ]" and that the officer had the authority to ask Appellant "to step out of the car." N.T., Suppression H'rg, at 18-19. However, Appellant was contesting the legality of the frisk - since there was no evidence Appellant was armed and dangerous - and the propriety of the vehicle search. The trial court denied the suppression motion that same day.
On March 2, 2020, Appellant filed a motion requesting the court reopen the record and reconsider the denial of his suppression motion. Appellant sought to present evidence regarding the number of medical marijuana cardholders in Pennsylvania and that fact that medical marijuana may be in dry leaf form. See Appellant's Motion to Reopen the Presentation of Evidence and to Reconsider the Denial of Motion to Suppress, 3/2/20, at 3. Appellant also argued that the Pennsylvania Supreme Court's May 2019 decision in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019) - which held that possession of a concealed firearm does not itself create reasonable suspicion that an individual may be dangerous - applied, with equal force, to the possession of marijuana. See Appellant's Motion to Reopen the Presentation of Evidence and to Reconsider the Denial of Motion to Suppress at 3-4.
By way of background, at the suppression hearing, Appellant's counsel argued to the court that although Officer Assad testified he detected an odor of marijuana, "marijuana at this point is sort of proliferating as a medicinal substitute." N.T., Suppression H'rg, at 21. We note that Appellant's suppression hearing was conducted before the Supreme Court's decision in Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), which we will discuss infra. The court responded that it did not believe "fresh marijuana [was] sold in" medical marijuana dispensaries. N.T., Suppression H'rg, at 22 (emphasis added). Thus, Appellant intended to present evidence to dispute the court's belief.
Hicks was decided prior to Appellant's suppression hearing.
The trial court heard argument on Appellant's motion prior to the start of his criminal trial on March 4, 2020. The court granted the motion to reopen the record, and permitted Appellant to present evidence, by way of a stipulated exhibit, of the number of active medical marijuana cards in Pennsylvania during the relevant time periods. See N.T., Trial, 3/4/20, at 11. However, the court denied the motion to reconsider its suppression ruling. Id. at 11-12.
Appellant proceeded immediately to a stipulated non-jury trial, where the court found him guilty of all charges. On September 9, 2020, he was sentenced to three concurrent terms of two to four years' imprisonment, followed by two years' probation. This timely appeal followed. Thereafter, Appellant complied with the trial court's directive to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. In response, the trial court issued an opinion requesting that we vacate the judgment of sentence and remand for reconsideration in light of two recent decisions - Alexander, supra, and Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020) - which set "new legal standards" for evaluating the propriety of a vehicle search based on the odor of marijuana. See Trial Ct. Op., 2/4/21, at 5-6.
Although the trial court relied on this Court's opinion in Barr, that decision was subsequently vacated by the Pennsylvania Supreme Court. See Barr, 266 A.3d at 44. Nevertheless, the Supreme Court agreed with this Court's determination that "the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle but, rather, may be considered as a factor in examining the totality of the circumstances." Id. Its decision to vacate this Court's opinion was based on the fact that we remanded the case to the trial court to consider whether there were other factors - in addition to the odor of marijuana - supporting probable cause. See id. The Supreme Court determined that, because "the record supported[ed] the trial court's conclusion that the troopers searched the car in question based solely on the odor of marijuana coming from it[, ]" a remand was unwarranted. Id. (emphasis added).
Appellant raises the following claims for our review:
A. Did not the lower court err in denying suppression of physical evidence and statements where Appellant was the subject of an investigative detention, the police lacked even reasonable
suspicion to detain Appellant, and all evidence subsequently obtained was fruit of the poisonous tree?
B. Did not the lower court err in denying suppression of physical evidence that was seized without a search warrant and in the absence of probable cause and exigent circumstances?
C. Did not the lower court err in denying suppression of physical evidence where the police unlawfully searched Appellant's car?
D. Did not the lower court err in denying suppression of Appellant's statement where the Commonwealth failed to prove that the statements were lawfully obtained?
Appellant's Brief at 3.
Our review of a trial court's order denying a pretrial motion to suppress is guided by the following:
[O]ur 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 rulings includes only the suppression hearing record and excludes evidence elicited at trial.Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations and footnote omitted).
Because all of Appellant's claims challenging the denial of his suppression motion are interrelated, we will consider them together. Appellant first argues he was subject to an investigative detention absent reasonable suspicion that criminal activity was afoot. Appellant's Brief at 13-14. Although he does not contest the legitimacy of the initial traffic stop, or the authority of the police to order him out of the vehicle while investigating the traffic violation, see N.T., Suppression H'rg, at 18-19, Appellant contends that he was frisked absent specific and articulable facts that he was armed and dangerous. See Appellant's Brief at 20-21. Moreover, he insists the officers then continued to detain him without reasonable suspicion. Appellant's Brief at 14.
Appellant argues the odor of marijuana, itself, does not support a presumption of criminality since the passage of the Medical Marijuana Act (MMA). See 35 P.S. §§ 10231.101-10231.2110; see also Appellant's Brief at 14-15. Further, he contends the other potential bases for his detention - his nervous demeanor and the fact the stop occurred in a "violent" area - did not supply the requisite reasonable suspicion. See id. at 16-18. Thus, he asserts the physical evidence and his statements obtained following the frisk should be suppressed as fruit of the poisonous tree. Id. at 22.
Appellant, like the trial court, relies on this Court's decision in Barr. We will discuss only the Supreme Court's subsequent ruling in our analysis.
Appellant also insists that the seizure of the gun was not permissible under the plain view doctrine. Appellant's Brief at 25. Appellant argues that "[b]ut for [Officer Assad's] unlawful frisk and seizure . . ., the officer would not have been in a position to see the firearm." Id. at 26. Moreover, based upon Hicks, Appellant asserts that the "incriminating character of the gun was not immediately apparent, so as to justify its seizure." Id. at 26.
With regard to the subsequent vehicle search, Appellant contends the search was unlawful pursuant to Alexander, which held that an officer must possess both probable cause and exigent circumstances to conduct a warrantless search of a vehicle. Appellant's Brief at 29. He contends both "of these things were lacking here." Id.
Lastly, he notes that, at his stipulated trial, the court permitted the Commonwealth to introduce a statement he made "in which he allegedly admitted to possession of the gun." Appellant's Brief at 30. However, he claims the Commonwealth presented "no testimony whatsoever regarding this alleged statement" during the suppression hearing, and, thus, "failed to prove that the statement was lawfully obtained" in accordance with the dictates of Miranda. Id. at 30-31.
Miranda v. Arizona, 384 U.S.436 (1966).
In response to Appellant's arguments, the Commonwealth insists Appellant is attempting to "complicate this straightforward case[.]" Commonwealth's Brief at 12. It summarizes:
This is a case in which a police officer lawfully stopped a car for a Vehicle Code violation at night and in a violent area. During the traffic stop, the driver was very nervous, and the officer saw a gun lying "out in the open" on the floor of the vehicle and within reach of one of the car's occupants. The officer seized the weapon, and given that he had an objectively reasonable basis to fear for his safety, that seizure was justified.Id.
The Commonwealth downplays the significance of both the frisk and the vehicle search - noting no evidence was recovered "as a result of the frisk" and "the sole drug charge was dismissed prior to trial." Commonwealth's Brief at 20, 30. However, the Commonwealth contends Officer Assad was justified in seizing the firearm he observed in plain view. Id. at 20. It emphasizes that during the traffic stop, the officer had the authority to order Appellant "out of the vehicle and to direct him to stand where his partner was." Id. at 21. Consequently, the Commonwealth maintains Officer Assad had the right to be in the position where he was when he saw the firearm in plain view. Id. Once that occurred, he could seize the weapon because it posed a danger to him and his partner. Id. at 22.
Finally, with regard to Appellant's statements, the Commonwealth asserts (1) the statements were not "fruit of the poisonous tree" since Officer Assad did not act unlawfully, and (2) Appellant waived his Miranda challenge because he did not include it in either his original or supplemental pretrial motion. Commonwealth's Brief at 31-32. Accordingly, the Commonwealth contends the trial court properly denied Appellant's suppression motion, and we should affirm the judgment of sentence.
Upon our review, we conclude the Commonwealth's summary of the "facts" is far too simplistic and overlooks key details. Moreover, we agree with the trial court that the Supreme Court's recent decisions in Alexander and Barr have changed the landscape of traffic stops during which an officer detects an odor of marijuana. See Trial Ct. Op. at 4-5.
In Alexander, the Supreme Court reconsidered its 2014 plurality decision in Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), which had adopted the federal automobile exception to the warrant requirement, and held that the only prerequisite to a warrantless vehicle search was probable cause. See Gary, 91 A.3d at 138 ("[N]o exigency beyond the inherent mobility of a motor vehicle is required."). The Alexander Court, however, reversed course - and overruled Gary - based upon the "greater protection" afforded to Pennsylvania citizens under our Constitution. Alexander, 243 A.3d at 181. The Court held:
As a result of today's decision, we return to the pre-Gary application of our limited automobile exception under Article I, Section 8 of our Constitution, pursuant to which warrantless vehicle searches require both probable cause and exigent circumstances; one without the other is insufficient.Id. at 207 (citation and quotation marks omitted).
In Barr, the Supreme Court considered "to what extent, if at all, the smell of marijuana can be considered when determining whether law enforcement had probable cause to conduct a warrantless search of a vehicle" in light of the enactment of the MMA. Barr, 266 A.3d. at 28. The Court explained that although "the MMA makes abundantly clear that marijuana no longer is per se illegal in this Commonwealth[, ]" the possession of marijuana is still illegal under the Controlled Substance, Drug, Device and Cosmetic Act"for those not qualified under the MMA." Id. at 41. Accordingly, the Supreme Court held that "the odor of marijuana may be a factor, but not a stand-alone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search." Id. In reaching this conclusion, the Court relied upon its decision in Hicks, wherein it held that an individual's mere possession of a concealed firearm - absent any information that the individual was not permitted to carry a firearm or that the individual intended to use the firearm for criminal activity - did not supply the requisite reasonable suspicion to justify a Terry stop and frisk. Id. at 43. The Barr Court summarized:
35 P.S. §§ 780.101 et seq.
Terry v. Ohio, 392 U.S. 1 (1968).
Applying such jurisprudence to the facts presented, we conclude that if lawful possession of an item due to legislative authorization to possess it cannot, in and of itself, permit an officer to infer criminal activity for purposes of effectuating a Terry stop, lawful possession of an item pursuant to legislative authorization is alone insufficient to satisfy the more stringent requirement of probable cause of criminal activity required to conduct a warrantless search of a vehicle.Id.
We agree with the trial court that the "new legal standards in Barr and Alexander are retroactively applicable in this case." Trial Ct. Op. at 5. Both decisions were filed while Appellant's case was pending on direct appeal, and Appellant preserved these challenges in the trial court. See Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983) ("[W]here an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.").
Barr, in particular, is applicable to the case sub judice. Here, the Commonwealth focuses on the legality of the traffic stop and the officers' authority to order Appellant out of the car during the stop. See Commonwealth's Brief at 21. Moreover, it emphasizes Appellant's nervous demeanor, and that fact the stop occurred in "an area that was known for its violence." Id. at 27. The Commonwealth then summarily states: "[W]hen the officer directed [Appellant] to get out of the car, as he was entitled to do, he discovered that a handgun was lying on the floor of the car 'out in the open' right where [Appellant's] feet had been." Id.
The Commonwealth all but ignores the fact that the odor of marijuana precipitated Officer Assad's decision to order Appellant out of the car and frisk him. According to the officer's testimony at the suppression hearing, he did not observe the gun until after the frisk - which revealed no contraband or weapons - and after he continued to detain Appellant by directing him to move away from the car and towards his partner. See N.T., Suppression H'rg, at 10. Thus, if the frisk and continued detention were not supported by reasonable suspicion, then, as Appellant argues, the officer did not lawfully observe the gun in plain view. See Commonwealth v. Heidelberg, __ A.3d__, __, 2021 WL 5458398, *8 (Pa. Super. Nov. 23, 2021) ("The plain-view doctrine permits the warrantless seizure of an object when: (1) an officer views the object from a lawful vantage point; (2) it is immediately apparent to him that the object is incriminating; and (3) the officer has a lawful right of access to the object.") (citation omitted and emphasis added).
Here, the trial court explicitly stated in its opinion that the only factor it considered in determining whether Officer Assad had probable cause for the search of Appellant's vehicle was the smell of marijuana. Trial Ct. Op. at 5. The court "did not . . . evaluate any other factors in conjunction with the odor of marijuana in its probable cause analysis." Id. (citation and quotation marks omitted). This is impermissible under Barr. Thus, we agree that we are compelled to remand for reconsideration under the new standard.
Should the trial court determine the frisk and continued detention was proper, it should then consider whether Alexander impacts the officer's subsequent search of the vehicle. See Commonwealth v. Lutz, __ A.3d__, __, 2022 WL 433446, *5 (Pa. Super. Feb. 14, 2022) (officer properly seized marijuana pipe in plain view in car without warrant; "the still-running vehicle and open car door fulfilled the requirement of exigent circumstances because the [officer] needed to enter the car to turn off the ignition[, ]" and once he did so, "he had lawful access to the pipe sitting on the driver's seat and seizure of it was lawful under the plain view doctrine, as informed by Alexander")
We note, too, that upon remand, the trial court should also consider the underlying basis for Officer Assad's frisk and subsequent detention of Appellant - for it was only after these acts that the officer observed the gun in plain view. As explained supra, the Commonwealth ignores these crucial factual determinations and argues that Officer Assad had the authority not only to order Appellant out of the car, but also to "control all movement in [the] traffic encounter[.]" Commonwealth's Brief at 18, citing Commonwealth v. Wright, 224 A.3d 1104 (Pa. Super. 2019), appeal denied, 237 A.3d 393 (Pa. 2020). Therefore, it maintains, "he was entitled to have [Appellant] move back to where his partner was while he took the actions necessary to complete the traffic stop." Id.
However, the reason Officer Assad frisked Appellant, and then continued to detain him, is an important consideration. As the Supreme Court reinforced in Hicks, "to proceed from a [lawful investigatory] stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous." Hicks, 208 A.3d at 921 (citation omitted and emphasis added). In the present case, the trial court did not state whether this prerequisite was satisfied.
With regard to Appellant's continued detention after the frisk, this Court has recently explained:
[W]here the purpose of an initial traffic stop has ended and a reasonable person would not have believed that he was free to leave, the law characterizes a subsequent round of questioning by the police as an investigative detention or arrest. In the absence of either reasonable suspicion or probable cause to support the arrest, the citizen is considered unlawfully detained. . . .
Our Supreme Court has expressly recognized that an officer conducting a valid traffic stop may order the occupants of a vehicle to alight to assure his own safety. Once the primary traffic stop has concluded, however, the officer's authority to order either the driver or occupant from the car is extinguished. Thus, if the officer directs or requests the occupants to exit the vehicle after resolution of the reason for the initial stop, the officer's show of authority may constitute an investigatory detention subject to a
renewed showing of reasonable suspicion. Significantly, absent more, a police officer's assessment that the occupants of a vehicle appear nervous does not provide reasonable suspicion for an investigative detention.Commonwealth v. Mattis, 252 A.3d 650, 655 (Pa. Super. 2021) (citations omitted). Moreover, it is well settled that, following a lawful traffic stop, "additional suspicion may arise before the initial stop's purpose has been fulfilled; then, detention may be permissible to investigate the new suspicions." Wright, 224 A.3d at 1109 (citation and quotation marks omitted). Again, the trial court did not determine when primary traffic stop concluded, and, if it was before Officer Assad directed Appellant to move toward his partner, the court did not analyze whether the officer possessed reasonable suspicion to continue to detain Appellant.
Thus, because we conclude that, in light of Barr and Alexander, there remain several factual determinations that must be made in the first instance by the trial court, we vacate the judgment of sentence and remand for reconsideration of Appellant's suppression motion. See Yandamuri, 159 A.3d at 516. We also direct the court to consider whether the officer's "plain view" of the firearm was impacted by the preceding frisk (which garnered no contraband), and whether the continued detention of Appellant was part of the initial traffic stop, or a new investigation, that must be supported by reasonable suspicion.
In light of our disposition, we decline to address Appellant's argument concerning his alleged inculpatory statements. Indeed, the trial court did not determine whether the statement introduced by the Commonwealth at trial was properly obtained. If, upon remand, the trial court determines that the seizure of the firearm was lawful, then it should also address Appellant's argument regarding his statement to police.
Judgment of sentence vacated. Case remanded for proceedings consistent with this Memorandum. Jurisdiction relinquished.
Judge Bowes joins the memorandum.
CONCURRING/DISSENTING MEMORANDUM
STABILE, J.
I concur with the Majority's decision to remand this matter for further consideration, but respectfully dissent as to how suppression should be addressed upon remand.
As recounted by the trial court, on the evening of May 3, 2019, Appellant was driving a vehicle in the city of Philadelphia when Philadelphia Police Officer Nabil Assad performed an investigatory vehicle stop because the driver's side headlight was out and the high-beam lights were engaged. The officer approached the vehicle and asked for Appellant's license, registration and insurance. Appellant complied. The officer noticed that Appellant's chest was rising in and out, he was breathing at a rapid pace, and his hands were shaking when he handed over his driver's license. The officer also noticed an odor of fresh marijuana coming from the vehicle. After consulting with his partner, the officer asked Appellant to step out of his vehicle and performed a frisk. Nothing was found. After the frisk, Appellant was asked to step towards the back of the vehicle where Officer Assad's partner was standing. At that moment, Officer Assad looked down into the vehicle and noticed a black and purple firearm on the driver's side floorboard. He then asked the female passenger to step out of the vehicle, which she did. Officer Assad recovered the firearm and then searched the vehicle. He found in the center console a clear gray pillbox with marijuana residue inside.
The trial court does not indicate whether Appellant was placed under arrest at this time.
Appellant was charged with three counts of Violation of the Uniform Firearms Act (hereafter, "VUFA") under 18 Pa.C.S.A. §§ 6105 (possession of firearm prohibited), 6106 (carrying a firearm without a license) and 6108 (carrying a firearm on a public street in Philadelphia), and possession of a small amount of marijuana. The marijuana charge was subsequently dropped pre-trial. After a non-jury proceeding, Appellant was found guilty of the firearm charges. He now challenges on appeal the denial by the trial court of his motion to suppress the firearm recovered from his vehicle and statements made to police following the vehicle stop. Appellant maintains the physical evidence and statements were the subject of an investigative detention lacking reasonable suspicion, the physical evidence was unlawfully seized without a warrant or exigent circumstances, and the statements were unlawfully obtained.
In its Pa.R.A.P. 1925(a) opinion, the trial court stated that although it believed its rulings were correct at the time of trial, it now asks for a remand to reconsider its suppression ruling in light of the impact that the recent cases of Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) and Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021) may have on the motion to suppress. Trial Court Opinion, 2/5/21, at 4-5. The trial court indicated that its denial of the motion to suppress was based on a finding that the smell of marijuana emanating from inside Appellant's vehicle is what provided probable cause for the subsequent search of the vehicle and seizure of the firearm. It did not evaluate any other factors in conjunction with the odor of marijuana in its probable cause analysis. The trial court therefore questions whether without any other indicators in the record that Appellant was involved in criminal activity, the police officer had probable cause to search the vehicle under the new standards enunciated under Alexander and Barr. Id. at 5-6. The Majority agrees, and further opines that a remand is necessary so the trial court can consider the underlying basis for Officer Assad's frisk and subsequent detention of Appellant, since it was only after those acts that the officer observed the gun in plain view. Majority Memorandum, at 14. In particular, citing Commonwealth v. Hicks, 208 A.3d 916, 921 (Pa. 2019), the Majority believes the trial court did not consider the necessary prerequisite that the police reasonably suspect that Appellant was armed and dangerous when proceeding from a lawful investigatory stop to a frisk. See Majority Memorandum, at 15. Appellant likewise contends that he was subject to an unlawful Terry stop and frisk and therefore, all subsequent evidence obtained must be suppressed. In response, the Commonwealth believes this to be a simple case. The Commonwealth contends that the gun was discovered "out in the open" after the officer, as he was entitled to do in connection with a lawful traffic stop, directed Appellant to exit the car. For the reasons explained below, I believe that the question of suppression cannot be answered by focusing on the legality of the frisk. I further disagree with the trial court's and Majority's contention that suppression is affected by the Alexander and Barr decisions, as those cases addressed the warrantless search of a vehicle and not, as here, an investigative detention based upon reasonable suspicion.
In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court held that where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed by him to be armed and dangerous, regardless of whether he has probable cause to arrest that individual or has the absolute certainty that the individual is armed and dangerous.
In one of our recently unpublished memoranda, we summarized the law regarding investigatory detentions in connection with a lawful vehicle stop.
A traffic stop is a special kind of seizure, which a police officer may only initiate if he has reason to believe that a violation of the traffic code has occurred. Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013). The level of required suspicion turns on the kind of violation in question: if it is the kind of violation that would require further investigation to prove, the officer needs a reasonable suspicion; if it is the kind of violation that is immediately apparent and would not require any further investigation, the officer needs probable cause. Id. In either case, the officer's authority for the seizure extends only as long as is necessary to attend to the business of the stop.
Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016).
Commonwealth v. Lomax, __A.3d __, 2022 WL 439087 (Pa. Super. filed February 14, 2022). Applying these well-established principles to the instant case, there is no question the police had the right to stop Appellant's vehicle for the headlight violations. As well, the police had the right to order Appellant out of his vehicle in connection with the vehicle stop. What is not clear is whether the officer had completed the traffic stop before the subsequent frisk, seizure of the gun, and warrantless search of the vehicle. If the traffic stop had been completed or abandoned before the gun was seized, then the police needed at least reasonable suspicion of ongoing criminal activity to continue to detain Appellant.Outside of the context of a traffic stop, an officer's order for an occupant to exit a vehicle is a show of authority that transforms the encounter into at least an investigative detention, requiring reasonable suspicion. See Commonwealth v. Wright, 224 A.3d 1104, 1109 (Pa. Super. 2019). During the course of a valid traffic stop, however, an officer may order occupants to exit the vehicle as a matter of course. Commonwealth v. Wright, 224 A.3d 1104, 1109 (Pa. Super. 2019). This authority lasts only as long as the duration for the authority of the stop itself. Commonwealth v. Mattis, 252 A.3d 650, 655 (Pa. Super. 2021). An officer's order for a driver to exit the vehicle once the authority for the original stop has expired initiates a new investigative detention, requiring independent reasonable suspicion of additional illegal activity. Id. An officer's authority to detain a driver during a traffic stop lasts only as long as is necessary to investigate the infraction that provoked the stop, issue a citation, and attend to any related safety concerns. Rodriguez v. U.S., 575 U.S. 348, 354-55 (2015). When an officer abandons the investigation of the underlying violation and begins questioning the driver about unrelated criminal activity, he effectively ends the traffic stop and initiates an independent investigative detention. Mattis, 252 A.3d at 656. To lawfully do so requires independent reasonable suspicion. Id.; see also Commonwealth v. Prizzia, 260 A.3d 263, 272 (Pa. Super. 2021) (trooper lawfully began investigating possible DUI after initiating a traffic stop based on a window tint violation because he developed independent reasonable suspicion that driver was intoxicated).
Here, it certainly is possible that the firearm was discovered in plain view before the officer's authority to detain Appellant in connection with the traffic stop ended. Nothing in the record speaks to whether the purpose of the traffic stop still was in progress or had concluded as may be evidenced by the issuance of a citation, the need to attend to any related safety concerns, see Rodriguez, supra, or as important, whether the purpose of the traffic stop had ended with Appellant free to leave before the officer continued with his investigation of possible drug crimes to conclude a second seizure had commenced that itself had to be supported by at least reasonable suspicion. See Commonwealth v. Freeman, 757 A.2d 903 (Pa. 2000); Commonwealth v. Donaldson, 786 A.2d 279 (Pa. Super. 2001). The trial court made no findings in these regards. If the purpose of the traffic stop had not concluded or not been abandoned when the gun was spotted in plain view, then clearly evidence of the gun should not be suppressed. If, on the other hand, the traffic stop had concluded or was abandoned when the gun was discovered, then suppression of the gun may depend upon whether the officer nonetheless, possessed reasonable suspicion to further investigate when the gun was discovered short of a warrantless search of the vehicle. See Mattis, supra (where purpose of initial traffic stop has ended and reasonable person would not have believed he was free to leave, subsequent round of questioning by police is investigative detention or arrest; in absence of either reasonable suspicion to support investigative detention or probable cause to arrest, citizen is considered unlawfully detained and evidence must be suppressed).
The matter becomes more obscured because at the same time the officer was pursuing the motor vehicle violation, he also smelled the odor of fresh marijuana emanating from the vehicle. These two facts cannot be temporally separated. While the odor of fresh marijuana alone would not support a warrantless search of the vehicle, see Barr, supra, I believe that at the time of the stop the odor of marijuana, in combination with Appellant's physical attributes observed upon the stop, allowed the officer to investigate further by means of questioning or observation as to the presence of marijuana in and around the vehicle, short of conducting a warrantless search. It cannot be emphasized enough that a person cannot operate a motor vehicle while consuming marijuana, whether it be legal or not, since our motor vehicle laws prohibit the operation of a motor vehicle while impaired under a Schedule I substance, like marijuana, or even if not impaired, while metabolites of marijuana are present in the operator's blood. See 75 Pa.C.S.A. §§ 3802(d)(1)(i), (iii), and (2); Commonwealth v. May, 2022 PA Super 25, __ A.3d__, 2022 WL 453581 (Pa. Super. 2022). I therefore believe it is permissible for an officer, in connection with a lawful vehicle stop, to briefly detain the occupants of an operating vehicle to investigate the odor of marijuana emanating from the vehicle short of a warrantless search. The use of marijuana while operating a vehicle is a violation of our motor vehicle laws. The operation of the vehicle, in combination with the smell of marijuana emanating from the vehicle, provides enough articulable facts to support reasonable suspicion that crimes are or were committed to justify an investigatory detention. Naturally, if enough facts develop to support probable cause, then short of exigent circumstances, a warrant to search first must be obtained. Barr. To deny an officer the right however, to conduct an investigatory detention when marijuana is detected from an operating vehicle would be ludicrous. This would essentially dictate that an officer ignore the use of marijuana, a Schedule I substance, by the operator of a motor vehicle contrary to our laws and to public safety. Hence, when Officer Assad returned to Appellant still sitting in his vehicle after the officer conferred with his partner as to what to do next, I would conclude that not only did the officer have the right to request that Appellant step out of his vehicle, but he also had the right to continue or commence an investigatory detention with respect to Appellant's operation of the vehicle due to the odor of marijuana emanating from the vehicle and Appellant's physical demeanor.
As to the legality of the frisk, the present record does not contain findings that would support a frisk of Appellant when he was asked to exit his vehicle, since nothing in the record suggests that the officer possessed sufficient articulable facts to support a reasonable suspicion that Appellant presented any danger to the officer. See Terry. However, nothing was seized as a result of the frisk and therefore, there is nothing to suppress or to reconsider in connection with this action. I believe the Majority's direction that upon remand the legality of the frisk be inquired into more particularly because of the impact that may have on the discovery of the gun to be unnecessary. Contrary to the Majority, I believe the frisk has little bearing on whether the gun could be seized. Even if the frisk is deemed to be illegal, the gun was not discovered in connection with a search of Appellant's person. It was discovered in plain view of the interior of the vehicle from where it was seized. In my view, the Majority's statement that if the frisk and the continued detention were not supported by reasonable suspicion, then the officer did not lawfully observe the gun in plain view, is in error. See Majority Memorandum, at 13. The search of Appellant's person and seizure of the gun are governed by different considerations.
The Majority does not distinguish between the constitutional considerations between a search and a seizure under the Fourth Amendment when focusing on the importance of the frisk as opposed to the seizure of the gun. In Commonwealth v. McCree, 924 A.2d 621 (Pa. 2007), the Court, citing Horton v. California, 496 U.S. 128 (1990), in discussing the plain view doctrine, stated, "[t]he 'plain view' doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, but this characterization overlooks the important difference between searches and seizures." McCree 924 A.2d at 627. A search under the Fourth Amendment compromises the individual interest in privacy, whereas, a seizure deprives the individual of dominion over his or her person or property. Id. Under the plain view doctrine,
If an article is already in plain view, neither its observation nor its seizure would involve any invasion of privacy․ A seizure of the article, however, would obviously invade the owner's possessory interest․ If 'plain view' justifies an exception from an otherwise applicable warrant requirement, therefore, it must be an exception that is addressed to the concerns that are implicated by seizures rather than by searches.Id., citing Horton, 496 U.S. at 133-34 (omitting citations). Because the seizure of the gun concerns Appellant's possessory interest, as opposed to his privacy interest when frisked, the question becomes whether the officer had the right to seize the gun observed in plain view regardless of his frisk of the Appellant. Assuming the officer had the right to continue to detain the Appellant, the focus must be on the considerations concerning the seizure of the gun, not the search of Appellant's person. If an article already is in plain view, neither its observation nor its seizure would involve any invasion of privacy. Horton, citing, Arizona v. Hicks, 80 U.S. 321, 325 (1987). Appellant and the Majority do not make this distinction, but rather leap to the conclusion that if the frisk was illegal, then all other evidence gathered subsequent to the frisk must be suppressed. They also do so without considering whether the officer had the right to continue or conduct a further investigatory detention, as explained above, when the gun was observed in plain view.
For a seizure to be valid under the plain view doctrine as an exception to the warrant requirement, three criteria must be met; (1) the police must be at a lawful vantage-point; (2) the incriminating character of the object must be immediately apparent; and (3) the police must have a lawful right of access to the object. McCree. As for the first criteria, it cannot be disputed the officer here saw the gun from a lawful vantage point, i.e., he was on a public road. As for the second criteria, it is not clear whether the incriminating nature of the gun was immediately apparent when first viewed by the officer. The incriminating nature of an item is only immediately apparent if an officer believes the item is evidence of a crime or contraband. United States v. Rodriguez, 601 F.3d 402 (5th Cir. 2010). If the police lack probable cause without conducting a further search, then the incriminating nature of the item is not immediately apparent. Id. As will be explained, infra, an inability to satisfy this second criteria may not be dispositive on the question of the seizure in light of officer safety concerns. As to the third criteria, even though an object may be in plain view, an officer still must have the right to constitutionally cross a protected threshold, i.e., the right to enter the place where the item is viewed. McCree. Here, the trial court did not discuss or make any findings regarding the plain view doctrine. It may need to do so upon remand, but I believe a full consideration of that doctrine may be unnecessary.
At the moment the gun was spotted (assuming the continuation of a lawful investigatory detention) officer safety became paramount, as the gun could have been used by the remaining occupant of the vehicle to fatally harm the officers. This alone would have justified the lawful seizure of the gun when it was spotted in plain view. See Commonwealth v. Clinton, 905 A.2d 1026 (Pa. Super. 2006), appeal denied, 934 A.2d 71 (2007).
The issue of officer safety should not be lightly regarded. Long ago, the United States Supreme Court recognized the issue of officer safety as a significant component in determining how to strike the proper balance between the rights of citizens to be free from unreasonable searches and seizures, and protecting the safety of our citizens and police officers:
We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. American criminals have a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded. Virtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.
In view of these facts, we cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest.Id. at 1031, citing Terry, 392 U.S. at 23-24 (footnote omitted and emphasis added in original). In Clinton, during an investigatory traffic stop, the driver of a vehicle was asked if there were any weapons or anything else the officer should know about prior to the driver rooting through the vehicle's glove compartment in search of registration and insurance information. The Court held that law enforcement officials may inquire about the presence of weapons during a lawful traffic stop as this reasonably furthered the interest in officer safety and constituted a tolerable and minimal intrusion upon a citizen's rights. Id. at 1031. Thus, the Court held that it was error for the suppression court to conclude that a police officer's question, posed during a traffic stop prior to permitting a driver to search the vehicle's closed compartments presumably, but not necessarily, for papers, was "coercive"simply because its subject was the existence of weapons or anything else of which the police had a legitimate reason to be aware. By extension, I would conclude that if the police have the right to inquire about the presence of a weapon during a traffic stop without probable cause to believe any weapons are in the vehicle, then certainly, they possess the right to seize and secure a weapon in the interests of officer safety where the weapon is seized from plain view inside the vehicle, even if the incriminating nature of the gun is not immediately apparent. Once a gun is lawfully seized in the interests of officer safety the question then becomes whether the officers had the right to determine if Appellant could lawfully possess the gun. I would conclude that they did, since a subsequent search of a database to determine legality of gun ownership did not require any further search or seizure of Appellant or his property. See United States v. Watts, 7 F.3d 122, 127 (8th Cir. 1993), cert. denied, 510 U.S. 1078 (1994) (investigating serial numbers on weapons that lawfully have come into possession of investigators does not constitute a search or seizure under the Fourth Amendment); United States v. Wallace, 889 F.2d 580, 583 (5th Cir. 1989), cert. denied, 497 U.S. 1006 (1990) (when police have legally come into possession of a gun they are entitled, if not expected, to note and record serial numbers).
As noted by the Third Circuit, the Supreme Court has repeatedly recognized that traffic stops are dangerous encounters that result in assaults and murders of police officers and that the risk of danger to a police officer conducting a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. United States v. Moorefield, 111 F.3d 10, 13 (3d Cir. 1997), citing cases.
It was the defendant's position that police failed to provide Miranda warnings to him before asking about weapons or anything else.
I also find it unnecessary to order a remand as requested by the trial court to reconsider its suppression ruling under Alexander and Gary to address whether the smell alone of marijuana could support the subsequent search of the vehicle and seizure of the gun. Those cases involved the suppression of evidence seized during the warrantless search of a vehicle where the only justification for the search was the odor of marijuana. The separate issue of an investigatory detention based upon reasonable suspicion was not before the Court. This is an extremely important distinction because absent some exception, police are not entitled to conduct a warrantless search of a vehicle, whereas in an investigatory detention, the police are free to inquire and observe without the need to secure a warrant.
Alexander overruled Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), and returned Pennsylvania to its pre-Gary state under which warrantless vehicle searches require both probable cause and exigent circumstances. In Barr, our Supreme Court held that in light of the enactment of the Medical Marijuana Act ("MMA"), under which marijuana no longer is per se illegal in this Commonwealth, the odor of marijuana alone is insufficient to establish probable cause to search but may be considered a factor in a probable cause analysis. Barr also recognized that the possession of marijuana still is illegal for those not qualified under the MMA. To the extent the trial court wants to consider these cases with respect to the drug evidence seized without a warrant, the issue is moot. Appellant was not tried or convicted of any drug related charges. Likewise, seizure of the gun was not the result of a warrantless search, but rather the product of a plain view thus, in my opinion, making any consideration of Alexander or Barr largely unnecessary to determine the legality of the gun seizure.
Finally, although mentioned and preserved, Appellant does not discuss separately in any detail the issue of suppression with respect to any statements made by Appellant to police. Based upon the legal theories advanced by Appellant, it appears to be Appellant's belief that this evidence also must be suppressed as a result of the illegal frisk and investigatory detention done without reasonable suspicion. Once again, the trial court has not provided any findings or discussion on this issue. Upon remand, I believe it would be incumbent for the parties and the court to consider the admissibility of any statements in light of whether they were made in connection with the traffic stop, or as part of another lawful investigatory detention.
Accordingly, while I concur in the Majority's decision to remand this matter for further consideration, I respectfully dissent as to how the issues of suppression should be addressed.