J-S80044-18
2019 PA Super 154
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TRAVIS SCOTT : No. 3994 EDA 2017
Appeal from the Order November 15, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002581-2017
BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.
OPINION BY NICHOLS, J.: FILED MAY 10, 2019
The Commonwealth appeals from the order granting Appellee Travis
Scott’s suppression motion.1 The Commonwealth asserts that the trial court
erred in concluding that police lacked probable cause to search the trunk of
Appellee’s vehicle. We affirm.
The trial court summarized the relevant facts of this case as follows:
A suppression hearing was held on October 30, 2017. [The]
Commonwealth called Police Officer Louis Kerr to testify. He was
the only witness in this proceeding. Officer Kerr has three and a
half years of experience as a police officer, and is assigned to the
35th District.
Officer Kerr and his partner, Officer Tamamoto, were traveling in
a marked police car, and on February 1, 2017 around 10:00 p.m.,
they were in the vicinity of 5800 North 16th Street in Philadelphia,
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1 The Commonwealth certified that the suppression order terminated or
substantially handicapped the prosecution of this matter at the time it filed its
notice of appeal from this interlocutory order. See Notice of Appeal,
12/11/17; Pa.R.A.P. 311(d).
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Pennsylvania. According to Officer Kerr, this area is a high crime
area where numerous shootings and robberies have occurred.
On this night, the officers noticed a 2000 Nissan Altima traveling
north on 16th [Street] with a malfunctioning center brake light.
The officers initiated a traffic stop of the Nissan; [Appellee] was
the driver, and sole occupant, of the Nissan. During the
investigation, it was established that [the] car was registered to
[Appellee’s] mother . . . .
Officer Kerr testified that he could smell the strong odor of burnt
marijuana when he approached the Nissan, and saw that smoke
was still emanating from the vehicle. He also saw [Appellee]
attempt to place a blunt in the center console. The officers
ordered [Appellee] to exit the vehicle, and the officers patted him
down, but found nothing. [Appellee] was then placed in the back
seat of the police car, but he was not handcuffed.
The officers then proceeded to search the passenger compartment
of [Appellee’s] vehicle. The officers did not ask for [Appellee’s]
consent to search the vehicle. In the center console, Officer Kerr
recovered the blunt he saw [Appellee] place there. In the driver’s
side door, the officers found a jar with an orange lid that contained
alleged marijuana. The officers also found a black ski mask in the
back seat area of [the] car. At this time, the officers could only
smell the odor of burnt marijuana, the smoke from which was still
present in the vehicle.
Trial Ct. Op., 1/30/18, at 2-3 (record citations omitted).
Officer Kerr acknowledged that the smell from the blunt continued to
linger in the vehicle as he continued his search:
[Commonwealth’s counsel:] When you got to the back seat and
found the ski mask, could you still smell marijuana in the car?
[Officer Kerr:] Yeah. Like I said, once we came up to the vehicle
at the very beginning, there was still smoke omitting [sic] from
the vehicle, so it was just smoked. The smell wasn’t going to go
away.
[Commonwealth’s counsel:] And that smell was throughout the
car?
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[Officer Kerr:] That’s correct.
N.T. Suppression Hr’g, 10/30/17, at 15.
The officers then searched the trunk of [Appellee’s] vehicle;
therein Officer Kerr found a loaded .38 caliber revolver wrapped
up in clothes. Officer Kerr did not investigate [Appellee] for
possible DUI, nor did Officer Kerr request a drug sniffing dog to
come to the scene.
Trial Ct. Op. at 3 (record citations omitted).
On March 28, 2017, the Commonwealth filed a criminal information
charging Appellee with carrying a firearm without a license, carrying a firearm
on public streets in Philadelphia, carrying a loaded weapon, possession of a
small amount of marijuana, and the summary traffic offense of operating a
motor vehicle while consuming a controlled substance.2
The trial court conducted a hearing on October 30, 2017, at which time
Appellee litigated a motion to suppress the firearm recovered from the trunk
of his vehicle. Conceding that the officers possessed reasonable suspicion to
conduct a traffic stop, Appellee argued that the officers conducted an illegal,
warrantless search of the trunk. N.T. Suppression Hr’g, 10/30/17, at 28, 30.
Appellee declined to challenge the officers’ recovery of the marijuana from the
passenger compartment of his vehicle. Id. at 30.
On November 15, 2017, the trial court announced its findings of fact
and conclusions of law in open court. The court determined that the police
“failed to articulate any facts that could have given them probable cause to
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218 Pa.C.S. §§ 6106, 6108, 6106.1, 35 P.S. § 780-113(a)(31), and 75 Pa.C.S.
§ 3809, respectively.
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use the key to open the trunk, search the trunk, and then the clothing which
contained the firearm at issue in this case.” N.T. Hr’g, 11/15/17, at 10.
Consequently, the court granted Appellee’s suppression motion.3
On December 11, 2017, the Commonwealth timely filed a notice of
appeal and a voluntary Pa.R.A.P. 1925(b) statement. The trial court filed a
responsive opinion pursuant to Pa.R.A.P. 1925(a), explaining that there was
“no credible testimony or other evidence to suggest that it was reasonable for
the officers to continue searching the vehicle for drugs after they recovered
both the blunt and the jar of marijuana” from the passenger compartment of
Appellee’s vehicle. Trial Ct. Op. at 7.
On appeal, the Commonwealth raises the following question for our
review: “Did the trial court err in concluding that, where the police searched
a car with probable cause and found drugs in the passenger compartment,
they were not permitted to search the trunk?” Commonwealth’s Brief at 4.
The Commonwealth relies on Commonwealth v. Gary, 91 A.3d 102
(Pa. 2014) (plurality), for the proposition that the Pennsylvania Supreme
Court has adopted the federal automobile exception to the warrant
requirement. Id. at 10. Under the federal automobile exception, the
Commonwealth notes that “[i]f probable cause justifies the search of a lawfully
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3 Although Appellee did not seek to suppress the marijuana recovered from
the passenger compartment of his vehicle, the court announced, “[W]e deny
the motion to suppress with respect to marijuana, but grant the motion with
respect to the gun found inside the clothing inside the locked trunk.” N.T.
Hr’g, 11/15/17, at 11.
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stopped vehicle, it justifies the search of every part of the vehicle and its
contents that may conceal the object of the search.” Id. at 11 (quoting
United States v. Ross, 456 U.S. 798, 825 (1982)). The Commonwealth
emphasizes the trial court’s finding that the officers possessed probable cause
to search the passenger compartment of Appellee’s vehicle based upon the
smell of burnt marijuana inside the vehicle. Id. at 10. Based upon the
existence of probable cause, as well as the officers’ recovery of the blunt and
an additional jar of marijuana from the passenger compartment, the
Commonwealth insists that “the officers were entitled to search anywhere in
the car, including the trunk, for additional” drugs.4 Id.
When reviewing an order granting a suppression motion,
we must determine whether the record supports the trial court’s
factual findings and whether the legal conclusions drawn from
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4 The Commonwealth also notes, “Cases from other jurisdictions have reached
similar conclusions.” Commonwealth’s Brief at 17 (citing United States v.
Turner, 119 F.3d 18 (D.C. Cir. 1997), United States v. Loucks, 806 F.2d
208 (10th Cir. 1986), and United States v. Burnett, 791 F.2d 64 (6th Cir.
1986)). Nevertheless, we observe that not all jurisdictions are in complete
agreement. See, e.g., United States v. Wald, 216 F.3d 1222, 1228-29
(10th Cir. 2000) (holding odor of burnt methamphetamine did not provide
officer with probable cause to search the trunk of the defendant’s car, and the
officer’s additional observations did not amount to “corroborating evidence of
contraband” to allow a trunk search); Wimberly v. Superior Court, 547 P.2d
417, 424 (Cal. 1976) (holding that erratic driving, a plain view observation of
marijuana seeds and pipe, and the odor of burnt marijuana supported search
of the passenger compartment, but it was unreasonable to infer that additional
contraband was hidden in the trunk); State v. Schmadeka, 38 P.3d 633, 638
(Idaho Ct. App. 2001) (recognizing a distinction between the odor of burnt
marijuana and raw marijuana, and holding that the odor of burnt marijuana
establishes probable cause for a warrantless search of the vehicle’s passenger
compartment only).
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those facts are correct. We may only consider evidence presented
at the suppression hearing. In addition, because the defendant
prevailed on this issue before the suppression court, we consider
only the defendant’s evidence and so much of the
Commonwealth’s evidence as remains uncontradicted when read
in the context of the record as a whole. We may reverse only if
the legal conclusions drawn from the facts are in error.
Commonwealth v. Hemingway, 192 A.3d 126, 129 (Pa. Super. 2018)
(citation omitted).
“The Fourth Amendment, by its text, has a strong preference for
searches conducted pursuant to warrants.” Commonwealth v. Kemp, 195
A.3d 269, 275 (Pa. Super. 2018) (citation omitted). In Gary, however, a
majority of the Pennsylvania Supreme Court adopted the federal automobile
exception to the warrant requirement:
Therefore, we hold that, in this Commonwealth, the law governing
warrantless searches of motor vehicles is coextensive with federal
law under the Fourth Amendment. 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. The consistent and firm requirement for probable cause
is a strong and sufficient safeguard against illegal searches of
motor vehicles, whose inherent mobility and the endless factual
circumstances that such mobility engenders constitute a per se
exigency allowing police officers to make the determination of
probable cause in the first instance in the field.
Gary, 91 A.3d at 138.
“The level of probable cause necessary for warrantless searches of
automobiles is the same as that required to obtain a search warrant.”
Commonwealth v. Lechner, 685 A.2d 1014, 1016 (Pa. Super. 1996)
(citation omitted); accord Gary, 91 A.3d at 104. “Probable cause does not
demand the certainty we associate with formal trials. Rather, a determination
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of probable cause requires only that the totality of the circumstances
demonstrates a fair probability that contraband or evidence of a crime will be
found in a particular place.” Commonwealth v. Manuel, 194 A.3d 1076,
1081 (Pa. Super. 2018) (en banc) (quoting Commonwealth v. Otterson,
947 A.2d 1239, 1244 (Pa. Super. 2008)). “[T]he evidence required to
establish probable cause for a warrantless search must be more than a mere
suspicion or a good faith belief on the part of the police officer.”
Commonwealth v. Copeland, 955 A.2d 396, 400 (Pa. Super. 2008) (internal
quotation marks and citation omitted).
“The Supreme Court of the United States has held that an odor may be
sufficient to establish probable cause . . . .” Commonwealth v. Stoner, 344
A.2d 633, 635 (Pa. Super. 1975) (citing United States v. Ventresca, 380
U.S. 102 (1965); Johnson v. United States, 333 U.S. 10 (1948)). “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.” Commonwealth v.
Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984) (citations omitted).
Regarding the search of an automobile, “[t]he scope of a warrantless
search of an automobile . . . is not defined by the nature of the container in
which the contraband is secreted.” Ross, 456 U.S. at 824. “Rather, it is
defined by the object of the search and the places in which there is probable
cause to believe that it may be found.” Id. “It follows from the foregoing
that if a police officer possesses probable cause to search a motor vehicle, he
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may then conduct a search of the trunk compartment without seeking to
obtain probable cause relative to the particularized area.” Commonwealth
v. Bailey, 545 A.2d 942, 944 (Pa. Super. 1988).
Instantly, the trial court evaluated Officer Kerr’s testimony and
determined that the Commonwealth failed to establish probable cause to
believe that there was contraband in the trunk.
Based upon the odor of burnt marijuana emanating from the
vehicle, we concluded that the police officers had probable cause
to search the passenger compartment of the car, including any
containers therein, for the burnt marijuana. The officers
recovered a jar of marijuana as well as a blunt, which was the
source of the odor of burnt marijuana the officers had smelled.
The search of the trunk and its contents presents an entirely
different question. The Commonwealth adduced no credible
testimony or other evidence to suggest that it was reasonable for
the officers to continue searching the vehicle for drugs after they
recovered both the blunt and the jar of marijuana. The officers
could only smell burnt marijuana as a result of [Appellee] 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.
The officers did not request the assistance of a drug sniffing dog
to assist them in locating additional, unconsumed drugs in the
vehicle.
Trial Ct. Op. at 7-8.
We agree that Officer Kerr did not establish sufficient probable cause to
continue to search trunk of Appellee’s vehicle. See Manuel, 194 A.3d at
1081. We emphasize the officer’s testimony that the blunt “was just smoked,”
and “[t]he smell wasn’t going to go away.” See N.T. Suppression Hr’g at 15.
Here, the lingering odor of burnt marijuana was consistent with the
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contraband that the officer observed in plain view. Compare Stoner, 344
A.2d at 635 (holding that probable cause supported the officer’s search of the
trunk of the defendant’s vehicle where the officer noted a very strong odor of
freshly cut marijuana, he observed marijuana seeds and leaves in the
passenger compartment, and he was certain that the odor was too strong to
be coming from the marijuana that was in plain view).5
Further, the record does not provide any other facts that could have
supported a belief that additional contraband was located in the trunk. The
officer did not testify that Appellee fidgeted or displayed nervous behavior.
Rather, the officer’s only testimony about Appellee’s demeanor was that he
looked “like a deer in headlights” and “appeared like he didn’t know what to
do. . . .” See N.T. Suppression Hr’g at 15. In the context of a traffic stop,
such a demeanor is not unusual. See Commonwealth v. Cartagena, 63
A.3d 294, 305 (Pa. Super. 2013) (en banc) (explaining, “It is the rare person
who is not agitated to some extent when stopped by police, even if the driver
is a law-abiding citizen who simply failed to notice or repair a broken taillight
. . . .”).
Although Appellee made a furtive movement, the officer explained that
Appellee reached toward the center console only. See N.T. Suppression Hr’g
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5 Additionally, the officer in Stoner testified that “the odor was, ‘very strong,
it was similar to standing in the center of a field of marijuana.’” Stoner, 344
A.2d at 635. Significantly, the officer had first-hand knowledge regarding the
smell of a marijuana field, because he stood in a field of marijuana while
serving as a military policeman in Vietnam. Id.
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at 10. Appellee did not reach toward any other location, and the officer did
not testify that Appellee could access the trunk from the passenger
compartment of the vehicle. Id. at 25. Compare Commonwealth v.
Brown, 64 A.3d 1101, 1109 (Pa. Super. 2013) (holding that the officer
properly conducted a warrantless search of a truck following a traffic stop
where the passenger’s movements led the officer to believe that the passenger
was possibly reaching for a firearm, and the search was limited to the area
that the passenger could immediately access).
Likewise, the officer did not indicate that he had received any sort of
special training to support his belief that additional contraband was located in
the trunk. Compare Bailey, 545 A.2d at 945-46 (emphasizing that the
investigating trooper testified about his background and competency in
identifying narcotics, the trooper had sufficient expertise in dealing with
methamphetamine, and the trooper’s expertise, combined with his
observation of a “chemical-type smell,” constituted valid probable cause for
search of the defendant’s trunk).
Under these circumstances, 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. See Manuel, 194 A.3d at 1081. The officer did not
provide additional, specific facts to demonstrate that his search of the trunk
was based on anything more than mere suspicion. See Copeland, 955 A.2d
at 400. Accordingly, the facts of record supported the trial court’s legal
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conclusions, and we affirm the order granting Appellee’s suppression motion.
See Hemingway, 192 A.3d at 129.
Order affirmed.
President Judge Emeritus Bender joins the opinion.
Judge Bowes files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/10/19
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