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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ASH CHRISTENSEN :
:
Appellant : No. 535 MDA 2020
Appeal from the Judgment of Sentence Entered March 9, 2020
In the Court of Common Pleas of Northumberland County Criminal
Division at No(s): CP-49-CR-0000205-2018
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 18, 2020
Appellant, Michael Ash Christensen, appeals from the judgment of
sentence of two, one-year terms of probation, imposed after a jury convicted
him of several drug offenses. In this appeal, Appellant challenges the trial
court’s order denying his motion to suppress the seized contraband. After
careful review, we affirm.
The trial court summarized the facts ascertained at the suppression
hearing as follows:
Officer Dan Embeck of the Milton Borough Police Department was
on duty on February 22, 2018, when a call came f[ro]m the
manager of a local bar. She explained that there are rooms above
the bar for rent on a weekly or monthly basis. The manager told
Officer Embeck that there were two persons who were not
residents there[,] and these persons were smoking marijuana.
When Officer Embeck responded to the call[,] he encountered
[Appellant] walking out the door carrying two bags. The manager
of the bar was following [Appellant] and indicating to the officer
that this was the man she called about. Immediately Officer
Embeck detected a smell of burnt marijuana coming from
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[Appellant]. When the [o]fficer explained why he was there[,]
[Appellant] replied that he did not smoke marijuana. [Appellant]
provided identification to the officer upon request. As [Appellant]
was heading to his car[,] he asked the officer to help him carry
some of his bags. Officer Embeck helped carry the bags with
[Appellant] and asked him if he could search the bags. [Appellant]
gave his consent to the search of the bags. The [o]fficer did not
find anything in the bags. Officer Embeck then asked and was
given permission to search [Appellant]’s vehicle. When the officer
opened the front door of the car[,] he smelled a distinct odor of
fresh marijuana. When his search of the vehicle’s interior revealed
no marijuana[,] the officer told [Appellant] that he was going to
search the trunk because he believed that[,] based on the odor of
unburnt marijuana[,] he had probable cause for the search. Upon
opening the trunk[,] Officer Embeck saw a soft[-]sided lunch box.
When he opened the lunch box he found baggies containing
marijuana, drug paraphernalia[,] and a prescription bottle with
pills in it.
Trial Court Opinion (“TCO”), 6/8/20, at 1 (citations omitted) (unnumbered
pages).
The Commonwealth charged Appellant with possession with intent to
deliver a controlled substance,1 possession of drug paraphernalia,2 and two
counts of possession of a controlled substance.3 Appellant filed a motion to
suppress the seized contraband, and a suppression hearing was held on
December 20, 2018, following which the trial court denied Appellant’s
suppression motion. A jury trial, held on November 22, 2019, resulted in
Appellant’s conviction for possession of marijuana, Lorazepam, and drug
paraphernalia. The jury acquitted Appellant of the charge of possession with
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1 35 Pa.C.S. § 780-113(a)(30).
2 35 Pa.C.S. § 780-113(a)(32).
3 35 Pa.C.S. § 780-113(a)(16). The Commonwealth charged Appellant with
separate possession offenses for marijuana and Lorazepam.
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intent to deliver. On April 16, 2020, the trial court sentenced Appellant to an
aggregate term of two years’ probation. Appellant did not file a post-sentence
motion.
Appellant filed a timely notice of appeal, and a timely, court-ordered
Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion
on June 8, 2020. Herein, Appellant raises the following questions for our
review:
1. Whether the trial court erred/abused its discretion in denying
[Appellant]’s suppression motion?
2. Whether the trial court erred/abused its discretion in applying
the automobile exception when [Appellant] had withdrawn his
consent to search?
Appellant’s Brief at 6.
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression court
turns on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (cleaned up).
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Here, the trial court determined that probable cause to search
Appellant’s trunk arose after Officer Embeck failed to locate the source of the
odor of unburnt marijuana he detected when searching the interior of
Appellant’s vehicle. See TCO at 3 (unnumbered pages). The court reasoned:
Finding nothing in the vehicle’s interior but realizing the smell of
unburnt marijuana was certainly emanating from somewhere in
the vehicle, the strong smell of marijuana in the vehicle’s interior
coupled with the lack of any marijuana therein created the
requisite probable cause for the search of the trunk. The
Pennsylvania Supreme Court has held that an odor may be
sufficient to establish probable cause. See Commonwealth v.
Stoner, 344 A.2d 633, [635 (Pa. Super. 1975) (citing United
States v. Ventresca, 380 U.S. 102, (1965); and Johnson v.
United States, 333 U.S. 10 (1948))]. We find that the [o]fficer
had sufficient probable cause to search the trunk of the vehicle
based upon the strong odor of unburnt marijuana he detected
when searching the vehicle[’]s interior with consent from
[Appellant].
Id.
Appellant first argues that Officer Embeck lacked probable cause to
search his trunk, relying primarily on this Court’s decision in Commonwealth
v. Scott, 210 A.3d 359 (Pa. Super. 2019). There, we explained:
The level of probable cause necessary for warrantless searches of
automobiles is the same as that required to obtain a search
warrant. Probable cause does not demand the certainty we
associate with formal trials. Rather, a determination 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. The 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.
Id. at 363 (cleaned up).
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In Scott, police stopped the defendant’s vehicle for a motor vehicle code
infraction. Id. at 361. When the police officer approached Scott’s vehicle, he
detected the odor of burnt marijuana, and could see smoke emanating from
the car. Id. Based on those observations, the officer searched the interior
of the vehicle, where he discovered a marijuana blunt and a jar containing
marijuana. The officer then searched the trunk, where a firearm was
discovered.
Scott sought suppression of the seized contraband, and the suppression
court granted his motion with respect to the firearm discovered in the trunk.
The Commonwealth appealed, arguing that probable cause to search the trunk
existed because of the discovery of drugs in the passenger compartment. This
Court affirmed, stating that “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.” Id. at 365. The Scott Court reasoned that once the officer
discovered the obvious source of the smoke and odor of burnt marijuana, he
had nothing more than a hunch that additional contraband would be
discovered in the trunk. Id. at 364-65.
Scott is factually distinguishable from the instant case. In Scott, the
odor of burnt marijuana emanated from the vehicle, whereas here, Officer
Embeck detected the odor of burnt marijuana on Appellant when he was
outside of his vehicle. In Scott, the officer discovered the source of the odor
in the passenger compartment of Scott’s car. Here, Officer Embeck
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encountered a new odor of unburnt marijuana in the vehicle, but did not
discover its source. When the officer in Scott decided to search the trunk,
the suspicion that more contraband would be discovered had been significantly
diminished by the prior discovery in the passenger compartment. Here,
Officer Embeck’s initial search fostered even more suspicion that contraband
would be discovered in Appellant’s trunk. Thus, Appellant is not entitled to
relief based on the Scott decision.4
Next, Appellant argues that there were no exigent circumstances to
justify the search of his trunk without a warrant, and, relatedly, that the
automobile exception to the warrant requirement did not apply. In
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014), our Supreme Court held
“that with respect to a warrantless search of a motor vehicle that is supported
by probable cause, Article I, Section 8 of the Pennsylvania Constitution affords
no greater protection than the Fourth Amendment to the United States
Constitution.” Id. at 104. The Gary Court therefore adopted “the federal
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4 This Court recently clarified that “the odor of marijuana does not per se
establish probable cause to conduct a warrantless search of a vehicle[,]”
especially in light of Pennsylvania’s medical marijuana laws; however, it is still
factor that, in conjunction with other circumstances, may establish probable
cause. Commonwealth v. Barr, --A.3d-- 2020 WL 5742680, at *1 (Pa.
Super. filed Sept. 25, 2020). Here, Appellant makes no argument that
probable cause was lacking beyond his reference to the Scott case, which
stands for the general proposition that once probable cause is established, it
may dissipate given further developments. Nowhere in Appellant’s brief does
he suggest that the detection of the odor of burnt marijuana on his person,
and the subsequent discovery of the odor of unburnt marijuana in his vehicle,
in conjunction with other circumstances in this case, failed to establish
probable cause to search his trunk.
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automobile exception to the warrant requirement, which allows police officers
to search a motor vehicle when there is probable cause to do so and does not
require any exigency beyond the inherent mobility of a motor vehicle.” Id.
Thus, if the automobile exception applies in this case, no separate finding of
exigency was required for Officer Embeck to search Appellant’s trunk once
probable cause was established.
The entirety of Appellant’s argument regarding the automobile
exception is as follows:
Appellant avers the automobile exception was not applicable in
this case. At no point was [he] alleged to have operated the
vehicle. The vehicle was not running when the search occurred
and it was not investigated to determine if the vehicle was warm.
The vehicle was legally parked outside of an apartment complex.
Under [Commonwealth v.] Loughnane, [173 A.3d 733 (Pa.
2017),] “the automobile exception to the warrant requirement
does not apply to a vehicle parked on a defendant’s private
residential driveway, [and] warrantless searches and/or seizures
of an automobile must be supported by both probable cause and
exigent circumstances.” []Loughnane, 173 A.3d at 733. [sic][5]
[Appellant] was parked in a parking lot that is used by the
apartment complex. [Appellant] was not even in his vehicle when
approached by the officer. [Appellant] was compliant with all
requests of the officer until the command to open his trunk.
Th[is C]ourt should find the automobile exception was not
applicable in this case as there was not probable cause and/or
exigent circumstances.
Appellant’s Brief at 11-12.
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5 Appellant’s ostensible quotation from Loughnane is, in fact, a quotation of
the Westlaw Headnote to Loughnane. Nevertheless, it fairly represents the
holding in that case.
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Appellant’s reliance on Loughnane is misplaced. In that case, police
were investigating a hit-and-run homicide involving a truck. The attention of
the police were drawn to a truck in Loughnane’s driveway, which had been
identified by a witness to the hit and run. Police seized the truck without a
warrant, discovering evidence that connected the truck to the scene of the
crime and, therefore, pointing to Loughnane’s involvement. See Loughnane,
173 A.3d at 735-36.
Loughnane sought suppression of evidence obtained from the search of
his truck, arguing that there were no exigent circumstances justifying the
warrantless seizure. The trial court granted suppression, and the
Commonwealth appealed. This Court decided that the automobile exception
applied, reasoning “the automobile exception, as adopted in Gary, applied to
vehicles parked in private driveways and thus eliminated the need for the
Commonwealth to make any separate showing of exigency….” Id. at 740.
Our Supreme Court reversed, holding that the automobile exception
does not apply in private residential driveways. Id. at 745. The Loughnane
Court explained that
it is clear that the dual bases underlying the automobile exception
to the warrant requirement are inapposite to vehicles parked in a
defendant’s residential driveway. Absent exigent circumstances,
the concern about the inherent mobility of the vehicle does not
apply, as the chance to search and/or seize the vehicle is not
fleeting. The vehicle is parked where the defendant lives and it
will typically either remain there or inevitably return to that
location.
Moreover, because the vehicle is parked on a private residential
driveway, the reduced expectation of privacy in a vehicle that has
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been recognized by the [United States Supreme] Court likewise
does not pertain. The “public nature of automobile travel” as it
“travels public thoroughfares” plainly has no application to a car
parked in a person’s driveway.
Id (citations omitted).
Here, as explained by the Commonwealth, Loughnane
is distinguishable from the facts in the present case, where …
Appellant’s vehicle was parked in a public parking lot which was
used by patrons of a bar as well as those [who] rent rooms above.
In addition, there was another building that shared the parking lot
with Speedy’s Place. This parking lot was “not regularly used for
residential purposes” as the Court in Loughnane discussed was
a situation where the automobile exception would apply. Id.[] at
742. The Court in Loughnane also discussed a U.S. Supreme
Court case, Florida v. White, 526 U.S. 559 (1999), where the
automobile exception was found to have applied to a vehicle that
was parked in a restaurant parking lot. Loughnane, 173 A.3d at
743. This factual scenario closely matches the facts in the present
case, and as such, the automobile exception should [not] apply in
the present case. The parking lot was a public parking lot, and as
such, the automobile exception does apply, as held under Gary,
91 A.3d at 138.
Commonwealth’s Brief at 7-8.
We agree with the Commonwealth. There is no evidence of record
indicating that Appellant’s vehicle was located in a private residential driveway
or in an analogous location. At the suppression hearing, Officer Embeck
testified that Appellant’s vehicle was parked in a parking lot adjacent to a bar.
N.T. Suppression, 12/20/18, at 8-9. Although there were rooms for rent
above the bar, the officer indicated that “patrons for the bar parked there and
so do the people that live there. That’s where everyone parks.” Id. at 9.
Moreover, the bar’s manager indicated to the officer that Appellant did not
reside in the rooms for rent. Id. at 4. Thus, it would not have been reasonable
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for Officer Embeck to assume that Appellant’s vehicle was located “where
[Appellant] lives and it will typically either remain there or inevitably return to
that location.” Loughnane, 173 A.3d at 745.
Appellant also argue that the automobile exception does not apply
because he was not driving the vehicle when Officer Embeck encountered him.
However, Appellant cites no cases to support this assertion. Further, when
encountered by the officer, Appellant was walking towards his car with the
apparent intent to depart in it. At the point when Officer Embeck decided to
search Appellant’s trunk, this case was not factually distinguishable from a
case where a police-citizen encounter began instead with a traffic stop, in that
Appellant could have immediately departed in the vehicle had the officer
disengaged from the encounter. In Loughnane, by contrast, the police knew
both the vehicle and the home to which the private driveway was attached
was owned by Loughnane, and they waited several hours, during which time
they were unable to locate Loughnane, before they seized his truck. Id. at
735-36.
Accordingly, we conclude that the automobile exception applies in this
case and, as such, Officer Embeck was permitted to search Appellant’s trunk
without a warrant once probable cause was established. No other exigent
circumstances were necessary to justify the warrantless search. Thus,
Appellant’s second claim also lacks merit.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2020
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