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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TYRONE GRIFFIN :
:
Appellant : No. 2211 EDA 2019
Appeal from the Judgment of Sentence Entered July 10, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010508-2017
BEFORE: SHOGAN, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: April 30, 2021
Tyrone Griffin (Griffin) appeals from the judgment of sentence imposed
by the Court of Common Pleas of Philadelphia County (trial court) after a jury
convicted him of persons not to possess firearms. On appeal, Griffin
challenges the trial court’s denial of his motion to suppress a firearm that the
police seized during a warrantless search of his car. After review, we reverse
the trial court’s order denying suppression, vacate the judgment of sentence
and remand for further proceedings consistent with this memorandum.
I.
We take our facts from the suppression testimony of Officer Jonathan
Alvarez, the Commonwealth’s only witness at the hearing. On November 23,
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* Retired Senior Judge assigned to the Superior Court.
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2017, a little after 1:00 a.m., Officer Alvarez was in a marked police car on
routine patrol in the Germantown area of Philadelphia. Officer Alvarez was
driving with his partner Officer William Benson in the passenger seat. At the
time, Officer Alvarez had been a police officer for five years with four of those
years assigned to the 14th District, which included Germantown. Since he
began working in the district, Officer Alvarez estimated he has made about 15
to 20 arrests involving narcotics and firearms being found together.
Near the intersection of Germantown Avenue and Berkley Street, Officer
Alvarez saw a 2011 Chevy Camaro traveling southbound on Germantown
Avenue. Griffin was driving the Chevy Camaro and had a passenger with him
in the front. Noticing that the Chevy Camaro had dark window tinting, Officer
Alvarez began to follow the car for several blocks. Although the car did not
swerve, speed or make any sudden stops, Officer Alvarez pulled the car over
because of the possible violation under 75 Pa.C.S. § 4524.1 When he saw the
officer’s lights, Griffin immediately pulled the Chevy Camaro, which was
registered in his name, to the side of the road.
Officer Alvarez walked up to the driver’s side window and asked Griffin
to lower his window; Officer Alvarez later testified that could not see into the
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1 Motorists are prohibited from driving “any motor vehicle with any sun
screening device or other material which does not permit a person to see or
view the inside of the vehicle through the windshield, side wing or side window
of the vehicle.” 75 Pa.C.S. § 4524(e)(1). Griffin has never challenged the
initial stop.
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car because of the tint. After Griffin lowered his window, Officer Alvarez asked
for his license, registration and insurance. As Griffin looked for the
information, Officer Alvarez smelled an odor of burnt marijuana coming from
inside the car, describing it as a “mediocre” smell but not overwhelming.
Though he had no specialized training in identifying marijuana, Officer Alvarez
was familiar with its odor through his experience as a police officer. Despite
smelling marijuana, however, Officer Alvarez did not see any narcotics or
paraphernalia inside Griffin’s car.
Besides the odor of marijuana, Officer Alvarez also noticed that Griffin
appeared “very nervous” as he was looking for his information. According to
Officer Alvarez, Griffin was breathing heavily and his hands were shaking. At
the suppression hearing, though, Officer Alvarez admitted that Griffin did not
have bloodshot eyes or dilated pupils.
After Griffin found his information in the glove compartment, Officer
Alvarez asked him to exit the car. Griffin complied and got out. Officer Alvarez
asked him if there was anything illegal in the car or if either he or his
passenger had a permit to carry a firearm. Griffin responded that there was
nothing illegal in the car and that his passenger had a permit to carry.
Because Griffin was wearing a large puffy jacket, Officer Alvarez patted him
down for weapons. Feeling none, Officer Alvarez put Griffin in the back of his
patrol car without handcuffs.
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Officer Alvarez then returned to the Chevy Camaro to conduct a
warrantless search for narcotics based on the odor of marijuana. Although he
did not find any narcotics, Officer Alvarez found a Ruger 9mm handgun under
the driver’s seat. After finding the handgun, Officer Alvarez went back to his
patrol car to check if Griffin had a license to carry. As he did this, Officer
Alvarez heard Griffin moving around in the back. This prompted Officer
Alvarez to put handcuffs on Griffin. When Officer Alvarez tried to do so, Griffin
pushed him away and took off running but was soon captured. Griffin was
charged with persons not to possess, receiving stolen property, firearms not
to be carried without a license, carrying firearms in Philadelphia and resisting
arrest.2
Griffin filed an omnibus pretrial motion that included a motion to
suppress physical evidence. At the suppression hearing, he clarified that he
was moving to suppress any evidence recovered from his car as the product
of an illegal search and seizure under Article I, Section 8 of the Pennsylvania
Constitution and the Fourth Amendment. He asserted that Officer Alvarez
lacked probable cause to conduct a warrantless search of his car based on the
odor of marijuana alone, emphasizing that there was no other evidence that
Griffin had used marijuana.
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2 The officers also found a black Taurus 9mm handgun under the front
passenger seat. Griffin’s passenger, who had a permit to carry, claimed that
it was his firearm. The officers later allowed him to leave in Griffin’s car.
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The Commonwealth countered that the warrantless search was
permissible under two theories. First, the Commonwealth argued that Officer
Alvarez had reasonable suspicion to believe that Griffin was armed and
dangerous, thus justifying a protective search of the car for weapons. Second,
the Commonwealth argued that Officer Alvarez also had probable cause to
search the car because of the odor of marijuana emanating from the car.
At the end of the hearing, the trial court denied Griffin’s motion to
suppress, stating that it found Officer Alvarez’s testimony to be credible. In
denying the motion, the trial court made this statement:
This Court finds that under the totality of the circumstances, there
was probable cause to search the vehicle. And even before that,
there was reasonable suspicion justifying a frisk of the vehicle for
weapons.
In any event, in as much as the search was stated to be a drug
search. That was justified by the probable cause that I referenced
earlier. And, therefore, the 9mm Ruger was lawfully obtained.
N.T., 4/20/18, at 65.
Following denial of his motion to suppress, Griffin proceeded to a jury
trial limited to the persons not to possess charge. At the end of trial, the jury
found him guilty of that firearms offense. At sentencing, the trial court
ordered Griffin to serve 8 to 16 years’ imprisonment followed by four years’
state probation. Griffin filed this appeal after the denial of a post-sentence
motion. In his court-ordered Pa.R.A.P. 1925(b) statement, Griffin alleged,
among other things, that the trial court erred in denying his motion to
suppress. Rather than issue an opinion on the suppression issue, the trial
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court filed a letter in lieu of an opinion relying on the reasons stated for denial
at the suppression hearing.3
II.
We first address whether the trial court erred in denying Griffin’s motion
to suppress the firearm.4 In his brief, Griffin asserts several arguments that
Officer Alvarez lacked probable cause to conduct a warrantless car search of
his car based on the odor of marijuana. After Griffin filed his brief, though,
this Court decided Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super.
September 25, 2020). Barr addressed whether the odor of marijuana
emanating from a car may provide police with probable cause to search that
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3 In his Pa.R.A.P. 1925(b) statement, Griffin raised two issues that he also
now raises on appeal. The first is that the trial court violated this right to a
public trial by not allowing his mother to be in the courtroom for jury selection.
The other alleges that the trial court incorrectly instructed the jury in response
to their questions during deliberation. In response to the jury selection issue,
the trial court issued a letter requesting that we remand this case to remedy
the jury selection error. In its letter, the trial court concluded that its exclusion
possibly violates this Court’s decision in Commonwealth v. Jordan, 212 A.3d
91 (Pa. Super. 2019) (trial court violated defendant’s right to a public trial
when the trial court excludes family members from jury selection). However,
because we find that Griffin is entitled to relief on his suppression challenge,
we need not address whether the trial court erred during jury selection, nor
whether it erred in its responses to the jury during deliberations.
4 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.” Commonwealth v. Krenzel, 209 A.3d
1024, 1027 (Pa. Super. 2019) (citation omitted). Our scope of review is
limited to the evidence presented at the suppression hearing. In re L.J., 79
A.3d 1073, 1088-89 (Pa. 2013).
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car when Pennsylvania citizens are now allowed to legally consume marijuana.
In Barr, state troopers pulled over a car for a traffic violation. As they
approached the car, both troopers smelled the odor of burnt marijuana coming
from the car. Barr, who was seated in the front seat, was ordered to get out
of the car along with the other two occupants. A state trooper then advised
them that he could search the car because of the odor of marijuana. Upon
hearing this, Barr presented a medical marijuana identification card that
allowed him to possess and use medical marijuana. The troopers nevertheless
searched the car without a warrant based on odor of marijuana. That search
yielded, among other things, a loaded handgun and a Ziploc bag containing
marijuana.
After being charged with two firearms offenses and possession of a small
amount of marijuana, Barr filed a motion to suppress the evidence seized
during the warrantless search. At suppression, Barr admitted expert
testimony that there is no difference of odor between lawfully ingested
marijuana through a vaping pen and unlawfully ingested marijuana from an
unlawful source. At the end of the hearing, the trial court granted the motion
to suppress the firearm and marijuana, after which the Commonwealth
appealed to this Court to argue that the odor of marijuana alone was enough
to allow a warrantless car search.
On appeal, in addressing that issue, we addressed whether marijuana
odor alone was enough to establish probable cause to search without a
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warrant, given Pennsylvania’s passage of the Medical Marijuana Act (MMA).5
We first addressed the law before passage of the MMA. After reviewing the
pre-MMA case law, we concluded that, contrary to the Commonwealth’s belief,
there was no per se rule that the odor of marijuana always gave the police
probable cause to search. Instead, the existing rule, when properly stated,
was that the odor of marijuana “may alone be sufficient to establish probable
cause to search in particular factual contexts.” Id. at 1276 (emphasis added).
In practical terms, however, we explained that the circumstances when the
odor of marijuana odor alone would be insufficient to establish probable cause
to search “were necessarily rare or even nonexistent,” since marijuana was
illegal to possess “in all or virtually all circumstances” before passage of the
MMA. Id.
We then turned to what effect the MMA had on whether a probable cause
search could still be premised alone on the odor of marijuana in some cases,
often called the “plain smell doctrine.” To do this, we examined the interplay
between the MMA and the Controlled Substance, Drug, Device and Cosmetic
Act (CSA),6 which lists marijuana as a Schedule I controlled substance. 35
P.S. § 780-104(1)(iv). Finding that the MMA “clearly affected” the plain smell
doctrine, we explained:
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5 35 P.S. §§ 10231.101-2110.
6 35 P.S. §§ 780-101 to 780-144.
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… the plain smell doctrine is a specific application of the totality-
of-the-circumstances test for probable cause, crafted in light of
the previously universal fact of marijuana’s illegality and its
distinctive odor. 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 CSA,
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.
Barr, 240 A.3d at 1278 (internal citations and footnotes omitted).
We later summarized what role the odor of marijuana can permissibly
play in the determination of whether there is probable cause that a crime is
being committed.
The odor of marijuana alone, absent any other circumstances,
cannot provide individualized suspicion of criminal activity when
hundreds of thousands of Pennsylvanians can lawfully produce
that odor. What it does provide to police is a general, probabilistic
suspicion of criminal activity based on the fact that most citizens
cannot legally consume marijuana. Thus, it is a factor that can
contribute to a finding of probable cause, consistent with prior
precedent discussed above, assuming some other circumstances
supply more individualized suspicion that the activity is criminal.
Id. at 1287.
Because the trial court in Barr afforded no weight to the marijuana in
granting suppression or evaluated any other factors, we vacated its
suppression order and remanded for reconsideration with these directions:
We instruct the court that while it is not compelled by case law to
find that probable cause exists solely on the basis of the odor of
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marijuana, that fact may, in the totality of the circumstances, still
contribute to a finding of probable cause to believe the marijuana
detected by the odor was possessed illegally. The court may
consider Appellee’s presentation of an MMA card as a factor that
weighs against a finding of probable cause, as it provides at least
some evidence tending to suggest the marijuana in question was
possessed legally. However, the court must also consider (or
explain why it need not consider) the other factors suggested by
the Commonwealth as contributing to a finding of probable cause,
such as Appellee’s statements and demeanor during the stop, as
well as the nature of the location of the stop.
Id. at 1289.
Recently, we faced a somewhat similar factual scenario in
Commonwealth v. Grooms, ___ A.3d ___, 2021 WL 710438 (Pa. Super.
February 24, 2021). Unlike Barr, Grooms involved an issue on direct appeal
from an adverse judgment of sentence. There, the police conducted a
warrantless search after an officer walked past an occupied parked car and
smelled an odor of fresh marijuana coming from inside the car. Rather than
wait for the owner, the police unlocked the car and searched it for narcotics,
finding marijuana, crack cocaine and ecstasy pills. The owner eventually
walked up and admitted that the narcotics were his. At the suppression
hearing, the police conceded that the decision to unlock the car and conduct
the warrantless search was based solely on the odor of marijuana. Based on
the controlling law at the time of the hearing, the suppression court denied
the motion, advancing a bright line, per se rule that the odor of marijuana
alone may establish probable cause.
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We reversed and ordered a new trial and remanded with instructions to
consider in addressing the motion to suppress. Relevant to our holding in this
case, the Grooms panel found Barr “instructive and controlling,” even though
it was not available to the suppression court at the time of its determination.
We explained:
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.
Id. at *8.
On the motion to suppress, we remanded to the trial court to determine
on the existing record whether there were additional factors beyond the smell
of marijuana to establish probable cause for the warrantless car search. Id;
see also Commonwealth v. Shaw, ___ A.3d ___, 2021 WL 610152 (Pa.
Super. 2021) (relying on Barr to reverse the suppression court’s order that
the police officer had probable cause to conduct warrantless car search based
on odor of marijuana).
In this case, at the suppression hearing, Officer Alvarez was clear that
he searched Griffin’s car for narcotics “[b]ased off the marijuana smell
alone[.]” N.T., 4/20/18, at 30. The trial court found his testimony credible
and found that he had probable cause to search the car without a warrant,
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although while it found that it was based “on the totality of the circumstances,”
it did not mention what those circumstances were. Id. at 65. On remand,
the trial court should determine on the existing record whether there were
additional factors besides the odor of marijuana to support probable cause for
Officer Alvarez to conduct the warrantless search of Griffin’s car or had a
reasonable suspicion to believe that Griffin was armed and dangerous and,
therefore, had justification to do a protective search of the car for weapons.7
If there were not any additional circumstances, the trial court should suppress
the results of the search.
Judge of sentence vacated. Order denying motion to suppress reversed.
Case remanded for further proceedings. Jurisdiction relinquished.
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7 The trial court should also determine the applicability of our Supreme Court’s
recent decision in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020)
(holding that Article I, Section 8 of the Pennsylvania Constitution requires
warrantless vehicle searches to be supported by both probable cause and
exigent circumstances). Alexander overturned the Court’s prior adoption of
the federal automobile exception in Commonwealth v. Gary, 91 A.3d 102
(Pa. 2014) (plurality). Because Alexander announced a new criminal rule, it
can apply retroactively only to cases where the issue in question was properly
preserved at all stages of adjudication up to and including any direct appeal.
See 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.”).
Because Alexander was decided after the parties submitted their briefs, we
are without any directed advocacy addressing whether Griffin would have
preserved this issue in the trial court. As a result, on remand, the trial court
should direct the parties to address whether Griffin is permitted to avail
himself of Alexander’s new criminal rule and, if so, what effect it has the on
trial court’s probable cause determination.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/21
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