Com. v. Grooms, K.

J-A22032-20

2021 PA Super 26

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH EDWARD GROOMS :
:
Appellant : No. 71 MDA 2020

Appeal from the Judgment of Sentence Entered December 9, 2019
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0005708-2018

BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.

OPINION BY STABILE, J.: FILED FEBRUARY 24, 2021

Appellant Keith Edward Grooms appeals from the December 9, 2019

judgment of sentence entered in the Court of Common Pleas of Dauphin

County (“trial court”), following a stipulated bench trial. Appellant was

convicted of criminal use of communication facility, possession with intent to

deliver (“PWID”) a controlled substance (cocaine), possession of a controlled

substance (methamphetamine), possession of small amount of marijuana,

and possession of drug paraphernalia.1 Upon careful review, we vacate the

judgment of sentence, reverse the suppression order, and remand this matter

to the trial court.

The facts and procedural history of this case are uncontested. Following

the October 8, 2018 warrantless search of a locked and parked vehicle in a

mall parking lot, Appellant was charged with the foregoing crimes. On May 3,
____________________________________________

1 18 Pa.C.S.A. § 7512(a), and 35 P.S. § 780-113(a)(30), (16), (31)(i), and
(32), respectively.
J-A22032-20

2019, Appellant filed a motion to suppress, alleging that the police lacked

probable cause to search. On June 26, 2019, the trial court conducted a

suppression hearing, at which the Commonwealth offered only the testimony

of Detective Kenneth Platt, Swatara Township Police Department. N.T.

Suppression, 6/26/19, at 4. Detective Platt testified that at the time of the

incident in question, he was assigned to the department’s patrol division,

where he worked as a patrolman. Id. at 4, 7. He testified about his training

and experience in detecting and identifying narcotics. Id. at 4-5. Detective

Platt recalled that, during his time as a patrolman, he would average 10-15

drug arrests per month. Id. at 5. With respect to marijuana, he testified that

it was “easily detectable” because of its strong odor. Id. at 6. He further

testified that based on his training and experience, he was able to distinguish

between the odors of fresh and burnt marijuana. Id.

I would say that the – how strong the odor is, the – just how
strong the odor is, whether it’s fresh, it has a fresh smell to it.
Because it’s so distinct, it smells like marijuana where when it’s
burnt it has a different smell to it. . . . [O]ther than the fact it’s
marijuana, I don’t have a good descriptor to give you.

Id. at 6-7. Recalling the specific events of Monday, October 8, 2018, which

occurred around 5:20 p.m., Detective Platt testified:

I was working the capacity of a patrolman on that day. Lieutenant
Krahling and I met at the Harrisburg Mall to conduct a foot patrol
through the mall.[2] It’s common practice for us to do foot patrol
through the mall parking lots for several reasons, one, the
____________________________________________

2The officers arrived in two marked police cruisers and were attired in full
uniform. N.T. Suppression, 6/26/19, at 9.

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Harrisburg Mall parking lot is a high-drug area for [sic] us for
whether it be use or transactions as well as we make numerous
firearms violations arrests in those parking lots, but also as a
service to the community. You know, we’ll leave notes, Hey, your
purse is in plain view or, you know, we’ve come across children
left in the car. So it’s common practice for us to walk through that
lot – through the lot at the mall.

Id. at 7-8, 12. Detective Platt testified that, on the day of and just prior to

the incident at bar, he and Lieutenant Krahling had made an arrest for

marijuana three rows over from Appellant’s vehicle3 in that parking lot. Id.

at 8. Thereafter, they walked in the parking lot until they detected an odor of

marijuana coming from Appellant’s vehicle. Id. at 8, 10. Detective Platt

described:

[A]s we proceeded west through the parking lot, Lieutenant
Krahling was just a little bit ahead of me. When he walked past a
black Mercedes Benz R350, kind of like a station wagon looking
vehicle, at that time as he walked past, he detected the odor of
marijuana in the air. And he called me over and said, Hey, I smell
weed over here. And I walked over to it in that area and then
began smelling, like, at the seams of the door. So I also detected
the odor of fresh marijuana coming from the black Mercedes.

Id. at 10-11. Detective Platt relayed that when Lieutenant Krahling initially

smelled the odor of marijuana, he was “at the front of the black Mercedes.”

Id. at 11. Upon confirming the odor of fresh marijuana, Detective Platt

testified that they shined their flashlights into the vehicle to observe any

contraband in plain view. Id. at 13. According to Detective Platt, they saw
____________________________________________

3We note that the vehicle was registered to Alisa Holliman, Appellant’s wife,
who was with Appellant on the day of the incident. Id. at 11, 18. For
convenience, however, we refer to the vehicle as “Appellant’s vehicle.”

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nothing. Id. He further testified that the vehicle was locked. Id. at 14. At

that point, according to Detective Platt, they retrieved their lockout tool to

unlock the vehicle.4 Id. In explaining why they used the lockout tool,

Detective Platt testified that “[w]e didn’t have anybody near the vehicle or a

contact number for the owner of the vehicle, so we utilized it to unlock the

vehicle, conduct our search.” Id. Detective Platt recalled:

[O]nce the doors were unlocked, the odor of fresh marijuana was
stronger. We began searching the vehicle. Lieutenant Krahling
was assisting in the search. He started on the passenger side.
And in the front storage compartment in front of the cup holder,
there was a – so cup holder, part of that there was, like, a little
sliding compartment. Inside there, Lieutenant Krahling located
two bags that contained marijuana and a marijuana-filled cigar.
Their total weight was 7.8 grams to include the bag that it was
placed in.

Id. at 15. Detective Platt testified that they also recovered a bag containing

18.4 grams of crack cocaine and a bag containing 3.8 grams of ecstasy pills.

Id. As they were finishing their search, the officers observed two people—a

man, later identified as Appellant, and a woman, later identified as Ms.

Holliman—“kind of slowly walking up to the vehicle showing interest in what

____________________________________________

4 Detective Platt described the lockout tool as
[a] common tool that we use for people that lock their keys in the
car or whatever the case may be. It’s a little plastic wedge that
you place in the door. And then you have, like, a little air bladder
so to speak that you can pump up and it creates separation
between the door and the door frame and it allows you to place a
long pliable rod in the vehicle and you can hit the unlock button
and it unlocks the car door and you’re into the car.
Id. at 14.

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we were doing.” Id. at 17. According to Detective Platt, Lieutenant Krahling

approached them and Appellant, who was in possession of the keys to the

vehicle, eventually stated that “anything found in the car was his.” Id.

Specifically, Appellant accepted ownership of the marijuana, crack cocaine,

and ecstasy pills recovered from the vehicle and informed the officers that Ms.

Holliman “didn’t have any knowledge of” the contraband. Id. at 18. Finally,

Detective Platt testified that, in addition to the contraband, they recovered

$1,100.00 in U.S. currency from Appellant’s person and seized his cell phone.

Id. at 18-19.

On cross-examination, Detective Platt conceded that they made the

decision to unlock and search the vehicle solely on their detection of the odor

of fresh marijuana. Id. at 24. He also acknowledged that, effective August

1, 2018, two months prior to the incident in question, dry-leaf marijuana

became legal for medical purposes in Pennsylvania. Id. at 25. Detective Platt

further acknowledged that they only waited for a “few minutes” for the owner

of the vehicle to arrive because, in part, their shift was going to be over at

6:00 p.m., it was already past 5:20 p.m., and sometimes it could take hours

before an owner returns. Id. at 26.

On August 20, 2019, the trial court denied Appellant’s suppression

motion. In support of the denial, the court issued an opinion, wherein it

advanced a per se, bright-line rule: an “odor [of marijuana] alone may

establish probable cause.” Trial Court Opinion, 8/20/19, at 2 (citations

omitted). Relying on that per se rule, the court concluded that Detective Platt

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and Lieutenant Krahling possessed probable cause to conduct a warrantless

search of the vehicle when they confirmed an odor of marijuana emanating

therefrom.

On October 26, 2019, the case proceeded to a stipulated bench trial,

following which the trial court found Appellant guilty of all charged crimes. On

December 9, 2019, the trial court sentenced Appellant to an aggregate term

of 30 to 60 months’ imprisonment. Appellant timely appealed. Both Appellant

and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant presents a single issue for our review:

[I.] Did not the court err in denying [Appellant’s] motion to
suppress when the police effected a warrantless, non[-]exigent
entry into his vehicle without [Appellant] present based solely on
the odor of marijuana?

Appellant’s Brief at 10 (unnecessary capitalization omitted). At the core,

Appellant argues that the officers’ warrantless search of his vehicle was illegal

because they lacked probable cause. In support, Appellant argues that the

mere odor of fresh marijuana, without more, was insufficient to sustain a

finding of probable cause. Appellant’s Brief at 21. Appellant points out that

this position is consistent with Pennsylvania case law. Additionally, Appellant

contends that to the extent there is a per se rule that the odor of marijuana

is sufficient to find probable cause, such a rule necessarily has been diluted

by the enactment of the Medical Marijuana Act (“MMA”) in Pennsylvania.5 Id.

at 26. Lastly, Appellant contends that the reasoning set forth in the recent
____________________________________________

5 35 P.S. §§ 10231.101 et seq.

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Supreme Court decision Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019),

should be applied with equal force to this case. Id. at 28. Citing Hicks,

Appellant asserts that, “just as with a firearm, there is simply no justification

for the conclusion that the mere odor of marijuana, where it is lawful to

possess it, alone should be suggestive of criminal activity.” Id. at 30.

As we have explained:

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. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019)

(quotations and citations omitted). Our scope of review of suppression rulings

includes only the suppression hearing record and excludes evidence elicited at

trial. In the Interest of L.J., 79 A.3d 1073, 1085 (Pa. 2013).

Both the Fourth Amendment to the United States Constitution and
Article I, Section 8 of the Pennsylvania Constitution protect
individuals from unreasonable searches and seizures by police in
areas where individuals have a reasonable expectation of privacy.
An expectation of privacy exists if a person has a subjective
expectation of privacy that society is willing to recognize as

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legitimate and reasonable. Where there exists a reasonable
expectation of privacy, Article I, Section 8 and the Fourth
Amendment generally require police to obtain a warrant, issued
by a neutral and detached magistrate and founded upon probable
cause, prior to conducting a search or seizure of a person and/or
a person’s property, unless one of the few well delineated
exceptions apply.

Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa. 2017) (citations

omitted). One such exception was the ephemeral automobile exception,

recognized by our Supreme Court in Commonwealth v. Gary,6 91 A.3d 102

(Pa. 2014) (plurality).7 In that case, the Court held, in accordance with federal

law, that police may conduct a warrantless search of a stopped vehicle if they

have probable cause to do so, regardless of any exigency beyond the vehicle’s

inherent mobility. Gary, 91 A.3d at 104.

Here, Appellant does not contest the application of the automobile

exception announced in Gary if the police possessed probable cause to believe

____________________________________________

6 During the pendency of this appeal, our Supreme Court overruled Gary. In
Commonwealth v. Alexander, __ A.3d __, 2020 WL 7567601 (Pa. filed
December 22, 2020), the Court concluded that Article I, Section 8 of the
Pennsylvania Constitution “affords greater protection to our citizens than the
Fourth Amendment,” reaffirming pre-Gary decisions that required police to
have both probable cause and exigent circumstances before conducting
a warrantless search of an automobile. Alexander, 2020 WL 7567601, at *1,
25.
7 Then-Justice, now Chief Justice, Saylor joined the opinion announcing the
judgment of the court subject to his observations about “inconsistency in the
courts’ rejection of bright-line rules restraining law enforcement as a means
of protecting individual rights, while simultaneously embracing such rules
when they facilitate law enforcement.” Gary, 91 A.3d at 138-39 (Saylor, J.,
concurring).

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that a search of the black Mercedes would yield evidence of a crime.8 He

simply disputes the existence of probable cause itself.9 As stated,

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8 The decision in Alexander, supra, overruling Gary, announced a new
criminal rule. When a United States Supreme Court decision “results in a ‘new
rule,’ that rule applies to all criminal cases still pending on direct review.”
Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citing Griffith v.
Kentucky, 479 U.S. 314, 328 (1987)). “Case law is clear, however, that in
order for a new rule of law to apply retroactively to a case pending on direct
appeal, the issue had to be preserved at ‘all stages of adjudication up to and
including the direct appeal.’” Commonwealth v. Tilley, 780 A.2d 649, 652
(Pa. 2001) (citation omitted); see also Commonwealth v. Newman, 99
A.3d 86, 90 (Pa. Super. 2014) (en banc) (“To be entitled to retroactive
application of a new constitutional rule, a defendant must have raised and
preserved the issue in the court below.”), appeal denied, 121 A.3d 496 (Pa.
2015). Appellant here did not challenge the Gary automobile exception.
Thus, to the extent relevant to the disposition of this appeal, and consistent
with Tilley and Newman, Appellant cannot rely on Alexander to challenge
the warrantless search of his vehicle.
9 Because Appellant did not contest the application of the automobile
exception announced in Gary, which now has been overruled by Alexander,
he logically had no occasion to address whether exigent circumstances existed
to justify the officers’ judgment that obtaining a warrant was not reasonably
practicable. Thus, because Appellant did not raise the issue of exigency before
the trial court or in his Rule 1925(b) statement, the issue is waived. See
Commonwealth v. Hill, 16 A.3d 484, 492 (Pa. 2011) (citing
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)); Pa.R.A.P.
1925(b)(4)(vii) (“[i]ssues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”); see
also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”). Separately, we would also
deem the issue raised, since Appellant only referenced the lack of exigent
circumstances in passing for the first time in his question presented, but fails
to develop the same in the argument section of his brief. In re Jacobs, 936
A.2d 1156, 1167 (Pa. Super. 2007) (allegation raised in statement of the
questions presented but not addressed in the argument section of brief was
waived); Commonwealth v. Long, 753 A.2d 272, 278–79 (Pa. Super. 2000)
(a contention set forth in defendant’s statement of questions involved but
there was no “argument with respect to this issue in his brief”; we deemed
the issue waived).

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“[g]enerally, a warrant stating probable cause is required before a police

officer may search for or seize evidence.” Commonwealth v. Bumbarger,

231 A.3d 10, 19 (Pa. Super. 2020) (citation omitted), appeal denied, 239

A.3d 20 (Pa. 2020). As our Supreme Court has explained:

Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
arrest, and of which he has reasonably trustworthy information,
are sufficient to warrant a man of reasonable caution in the belief
that the suspect has committed or is committing a crime. The
question we ask is not whether the officer’s belief was correct or
more likely true than false. Rather, we require only a probability,
and not a prima facie showing, of criminal activity. In determining
whether probable cause exists, we apply a totality of the
circumstances test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citations and

quotation marks omitted) (emphasis in original). Thus, “[p]robable cause is

a practical, nontechnical conception: it is a fluid concept—turning on the

assessment of probabilities in particular factual contexts not readily, or even

usefully, reduced to a neat set of legal rules.” Commonwealth v. Barr, 240

A.3d 1263, 1274 (Pa. Super. 2020) (citing Commonwealth v. Glass, 754

A.2d 655, 663 (Pa. 2000)). “The level of probable cause necessary for

warrantless searches of automobiles is the same as that required to obtain a

search warrant.” Commonwealth v. Scott, 210 A.3d 359, 363 (Pa. Super.

2019) (citation omitted) (emphasis added). “[T]he evidence required for a

warrantless search must be more than a mere suspicion or a good faith belief

on the part of the police officer.” Id. (citation omitted).

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With the foregoing in mind, we now turn to Appellant’s contention that

the trial court erred in determining that an odor of marijuana without more

and standing alone is always sufficient to establish probable cause. In

reaching its determination, the trial court principally relied on

Commonwealth v. Stoner, 344 A.2d 633 (Pa. Super. 1975).

In Stoner, the defendants were in an automobile lawfully stopped by

police for a traffic violation. As an officer reached into the car to secure a

pistol that had fallen out of the glove compartment, he noticed a very distinct

odor of marijuana about the interior of the vehicle and saw numerous

marijuana seeds and leaves on the floor, seats, and clothing in the car. The

officer testified he was certain that the odor was too strong to be coming from

the small amount of the drug he could see. A warrantless search of the vehicle

commenced, whereupon police found approximately 150 pounds of freshly cut

marijuana in five burlap bags in the trunk. The officer testified that he

considered it necessary to search the car immediately because the owner was

not present and there was a possibility that if the car was left unguarded and

the search delayed, evidence could have been removed from the car. The

officers felt it inadvisable to leave one of their number to guard the car while

the four persons in custody were transported to the barracks. They felt it

would be dangerous to attempt to transport four suspects with only two police

officers. It was felt the most reasonable course of action would be to search

the vehicle on the spot and transport the evidence at the same time the

appellants and co-defendants were transported. Following the search, the car

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was locked and subsequently towed to the police station. The sole argument

raised on appeal was that the warrantless search of the trunk of the car while

stopped on the turnpike was illegal as being in violation of the Fourth

Amendment to the United States Constitution. The appeal did not challenge

whether exigent circumstances existed to justify a warrantless search.

Rather, the argument focused solely on whether there was sufficient probable

cause to believe that the stopped automobile contained contraband.

The Stoner court concluded that probable cause existed to search the

vehicle based upon the plain view by officers of marijuana seeds and leaves

on the floor, seats, and clothing in the car when police leaned in to secure the

pistol. The marijuana that was in plain view was sufficient to establish

probable cause for the search of the car. Stoner, 344 A.3d at 635 (citing

Commonwealth v. Clelland, 323 A.2d 60 (Pa. Super. 1974)). While we

decided that the plain view of this contraband was sufficient to establish

probable cause to search, we additionally noted that we did not need to base

our decision solely on the evidence in plain view. One of the officers testified

that he noted a very strong odor of marijuana coming from inside the car and

that this was similar to standing in the center of a field of marijuana. He was

able to provide this testimony based upon the fact he previously stood in a

field of marijuana while serving as a Military Policeman in Vietnam and that

freshly cut marijuana emits a stronger odor than does dried marijuana.

Relying upon precedent from the United States Supreme Court, we too

concluded that probable cause to search also might exist based upon odors,

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so long as it is first established that the officer is lawfully in the place where

the search is conducted. We concluded it would have been totally

unreasonable for the police to lock up the car and leave it along the turnpike

when they knew by “plain smell” that much more contraband than was visible

was secreted in the car.

As can be observed, our decision in Stoner was not based upon a bright

line rule that an odor alone is sufficient to establish probable cause to search.

Our affirmance of the suppression denial was based upon the “plain view”

doctrine after it was established police were lawfully inside the vehicle. To the

extent Stoner alternatively endorsed that a “plain odor” alone is sufficient to

justify a warrantless search for marijuana, that holding now has been called

into question based upon the passage of the MMA. When Stoner was decided,

all forms and uses of marijuana were illegal. With the passage of the MMA,

the use of marijuana in specified forms is now legal for medicinal use, which

may include the vaping of dry leaf marijuana.10 Since the mere smell of burnt

marijuana now does not always establish an illegal use, we recently in Barr

arrived at the conclusion that while odor certainly may be a contributing factor

to establish probable cause to search, odor alone may not always be sufficient.

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10 Although dry leaf medical marijuana was available for purchase in this
Commonwealth effective August 1, 2018—well before the incident at issue—
we noted in Commonwealth v. Yeager that vaporizing medical marijuana
produces the same odor as burning marijuana. Yeager, No. 2036 MDA 2019,
2020 WL 6799113, at *4-5, unpublished memorandum, (Pa. Super. filed
November 19, 2020) (citation omitted).

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In Barr, a case we find instructive and controlling, and not available to

the trial court at the time it decided Appellant’s suppression motion, we

addressed an almost identical issue as that presented in the present appeal.

In Barr, police conducted a warrantless search of a lawfully stopped vehicle

after they detected an odor of marijuana emanating from the vehicle. We

examined whether the odor of marijuana may provide police with probable

cause to search a motor vehicle from which the odor emanates when a

substantial number of Pennsylvania citizens can now consume marijuana

legally, calling into question the so-called plain smell doctrine. We

acknowledged that prior cases in this Commonwealth established that the odor

of marijuana might alone be sufficient to establish probable cause for a search

in light of the substance’s then-universal illegality. Upon review, however, we

concluded that the odor of marijuana does not per se establish probable cause

to conduct a warrantless search of a vehicle. We explained:

The MMA has clearly altered the underlying factual context in
which that probable cause test applies. . . . This much is true:
marijuana is a prohibited substance under the [Controlled
Substance, Drug, Device, and Cosmetic Act], despite the passage
of the MMA. However, it is undisputed that a substantial number
of Pennsylvania citizens may now possess and consume marijuana
legally pursuant to the MMA. Previously, every instance in which
marijuana was detected by smell indicated the commission of a
crime. Soon, hundreds of thousands of Pennsylvanians will
become potential lawful sources of that same odor. Thus, the
strength of the inference of illegality stemming from the odor of
marijuana has necessarily been diminished by the MMA in
Pennsylvania.

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Barr, 240 A.3d at 1278. “It is precisely because the police cannot discern

lawful from unlawful conduct by the odor of marijuana alone that the police

may need to rely on other circumstances to establish probable cause to believe

that the possession of marijuana detected by that odor is criminal.” Id. at

1286. We therefore concluded that the odor of marijuana alone, absent any

other circumstances, cannot provide individualized suspicion of criminal

activity. Id. What the odor does provide is “a general, probabilistic suspicion

of criminal activity based on the fact most citizens cannot legally consume

marijuana.” Id. at 1287. Odor is a factor that can contribute to a finding of

probable cause, assuming other circumstances supply more individualized

suspicion that the activity is criminal.11 Id.

We also agree that Hicks lends some support for the conclusion that

the mere odor of marijuana does not give rise to probable cause. In Hicks,

police stopped Hicks’ vehicle in a gas station parking lot based on information

that he was in possession of a firearm. Hicks, 208 A.3d at 922. An officer

restrained Hicks’ arms and removed his handgun from his holster, and a

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11 We hasten to point out that here, as in Barr, we address, pre-Alexander,
whether the totality of circumstances, including the odor of marijuana, was
sufficient to establish probable cause to conduct a warrantless search of an
automobile. We did not decide in Barr, nor do we here decide, whether an
odor of marijuana alone emanating from a moving vehicle is sufficient to
establish “reasonable suspicion” to allow further investigation into whether a
crime has or is being committed, such that after further investigation, the
totality of facts ripens into probable cause to search. We do note, however,
that despite the passage of the MMA, it still is illegal in Pennsylvania to smoke
or vape marijuana while driving. See Yeager, 2020 WL 6799113 at *6
(Stabile, J., concurring).

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search of the vehicle followed. Id. Police later determined that Hicks

possessed a valid license to carry a concealed firearm, and he was not

statutorily prohibited from possessing a firearm. Id. Relevantly, Hicks was

not charged with firearms offenses. Id. The trial court denied suppression,

reasoning that possession of a concealed weapon justifies an investigatory

stop to determine whether the individual has a license. Id. at 922-23.

Ultimately, in evaluating whether carrying a concealed firearm could justify an

investigative detention, the Pennsylvania Supreme Court first noted that an

individual may legally carry a concealed firearm in public if he is licensed to

do so. Id. at 926. The Court also noted it is impossible to ascertain an

individual’s licensing status from his appearance. Id. at 937. Following an

extensive review of applicable Fourth Amendment jurisprudence, see id. at

930-36, the Court concluded that there is “no justification for the notion that

a police officer may infer criminal activity merely from an individual’s

possession of a concealed firearm in public.” Id. at 936.

In Barr, we noted the legal distinction between Hicks and cases

involving marijuana. “The possession of a firearm is generally legal, with

limited exceptions. The possession of marijuana, by contrast, remains

generally illegal, but for the limited exception of lawful possession of medical

marijuana pursuant to the MMA.” Barr, 240 A.3d at 1285. Yet, despite this

distinction, we explained that the Hicks decision was not premised solely on

the general legality of a firearm. Id. at 1286 (citing Hicks, 208 A.3d at 945).

The search was not unconstitutional due to the statutory classification of Hicks’

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license; it was unconstitutional because the police had no way of determining

from Hicks’ conduct or appearance that he was likely to be unlicensed and

therefore engaged in criminal wrongdoing. Against this backdrop, we pointed

out the fact that “police cannot distinguish between contraband marijuana and

medical marijuana legally consumed by a substantial number of

Pennsylvanians based on odor alone, just as police cannot determine from a

person’s possession of a concealed firearm that he or she is unlicensed to

carry it concealed.” Id. As a result, “because the police cannot discern lawful

from unlawful conduct by the odor of marijuana alone[,] the police may need

to rely on other circumstances to establish probable cause to believe that the

possession of marijuana detected by that odor is criminal.” Id.

Instantly, the trial court determined the officer was entitled to rely on

the odor of marijuana to conduct a warrantless search of Appellant’s vehicle,

which was unoccupied, locked, and lawfully parked during business hours in a

mall parking lot. Our review of the record does not indicate that the trial court

considered—beyond the smell of marijuana—any additional factors in

analyzing probable cause. Here, as in Barr, we once again conclude that the

trial court should have considered Appellant’s argument about the effect of

the passage of the MMA as a relevant factor in its probable cause analysis.12

In sum, and as discussed, the police here detected the smell of

marijuana coming from an unoccupied, locked, and legally parked vehicle.
____________________________________________

12Unlike in Barr, the suppression record here does not establish whether
Appellant possessed a medical marijuana card.

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Consistent with Barr, the enactment of the MMA, and the rationale set forth

in Hicks, we conclude that the odor of marijuana alone does not always

establish probable cause. Rather, it is a factor that may contribute to a finding

of probable cause when assessed under the totality-of-the-circumstances test.

The trial court in this case erred in applying a per se rule for establishing

probable cause. It anchored its conclusion that the police officers possessed

probable cause to search Appellant’s vehicle—which was unoccupied, locked,

and legally parked in a mall parking lot—solely on the odor of marijuana

emanating therefrom. Accordingly, we are constrained to vacate Appellant’s

judgment of sentence, reverse the order denying Appellant’s suppression

motion, and remand this matter to the trial court for proceedings consistent

with this decision. On remand, the trial court shall determine on the existing

record and consistent with this Opinion, whether the police officers relied on,

or were influenced by, any additional factors beyond the smell of marijuana,

to establish probable cause to execute a warrantless search of Appellant’s

vehicle.

Judgment of sentence vacated. Suppression ordered reversed. Case

remanded. Jurisdiction relinquished.

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J-A22032-20

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/24/2021

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