Com. v. Johnson, H.

J-A26037-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HENRY JOHNSON :
:
Appellant : No. 1907 EDA 2020

Appeal from the Judgment of Sentence Entered September 9, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003591-2019

BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.

CONCURRING/DISSENTING MEMORANDUM BY STABILE, J.:

FILED JUNE 8, 2022

I concur with the Majority’s decision to remand this matter for further

consideration, but respectfully dissent as to how suppression should be

addressed upon remand.

As recounted by the trial court, on the evening of May 3, 2019, Appellant

was driving a vehicle in the city of Philadelphia when Philadelphia Police Officer

Nabil Assad performed an investigatory vehicle stop because the driver’s side

headlight was out and the high-beam lights were engaged. The officer

approached the vehicle and asked for Appellant’s license, registration and

insurance. Appellant complied. The officer noticed that Appellant’s chest was

rising in and out, he was breathing at a rapid pace, and his hands were shaking

when he handed over his driver’s license. The officer also noticed an odor of

fresh marijuana coming from the vehicle. After consulting with his partner,
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the officer asked Appellant to step out of his vehicle and performed a frisk.

Nothing was found. After the frisk, Appellant was asked to step towards the

back of the vehicle where Officer Assad’s partner was standing. At that

moment, Officer Assad looked down into the vehicle and noticed a black and

purple firearm on the driver’s side floorboard. He then asked the female

passenger to step out of the vehicle, which she did. Officer Assad recovered

the firearm and then searched the vehicle. He found in the center console a

clear gray pillbox with marijuana residue inside.1

Appellant was charged with three counts of Violation of the Uniform

Firearms Act (hereafter, “VUFA”) under 18 Pa.C.S.A. §§ 6105 (possession of

firearm prohibited), 6106 (carrying a firearm without a license) and 6108

(carrying a firearm on a public street in Philadelphia), and possession of a

small amount of marijuana. The marijuana charge was subsequently dropped

pre-trial. After a non-jury proceeding, Appellant was found guilty of the

firearm charges. He now challenges on appeal the denial by the trial court of

his motion to suppress the firearm recovered from his vehicle and statements

made to police following the vehicle stop. Appellant maintains the physical

evidence and statements were the subject of an investigative detention

lacking reasonable suspicion, the physical evidence was unlawfully seized

without a warrant or exigent circumstances, and the statements were

unlawfully obtained.
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1The trial court does not indicate whether Appellant was placed under arrest
at this time.

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In its Pa.R.A.P. 1925(a) opinion, the trial court stated that although it

believed its rulings were correct at the time of trial, it now asks for a remand

to reconsider its suppression ruling in light of the impact that the recent cases

of Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) and

Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021) may have on the motion

to suppress. Trial Court Opinion, 2/5/21, at 4-5. The trial court indicated that

its denial of the motion to suppress was based on a finding that the smell of

marijuana emanating from inside Appellant’s vehicle is what provided

probable cause for the subsequent search of the vehicle and seizure of the

firearm. It did not evaluate any other factors in conjunction with the odor of

marijuana in its probable cause analysis. The trial court therefore questions

whether without any other indicators in the record that Appellant was involved

in criminal activity, the police officer had probable cause to search the vehicle

under the new standards enunciated under Alexander and Barr. Id. at 5-6.

The Majority agrees, and further opines that a remand is necessary so the trial

court can consider the underlying basis for Officer Assad’s frisk and

subsequent detention of Appellant, since it was only after those acts that the

officer observed the gun in plain view. Majority Memorandum, at 14. In

particular, citing Commonwealth v. Hicks, 208 A.3d 916, 921 (Pa. 2019),

the Majority believes the trial court did not consider the necessary prerequisite

that the police reasonably suspect that Appellant was armed and dangerous

when proceeding from a lawful investigatory stop to a frisk. See Majority

Memorandum, at 15. Appellant likewise contends that he was subject to an

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unlawful Terry2 stop and frisk and therefore, all subsequent evidence obtained

must be suppressed. In response, the Commonwealth believes this to be a

simple case. The Commonwealth contends that the gun was discovered “out

in the open” after the officer, as he was entitled to do in connection with a

lawful traffic stop, directed Appellant to exit the car. For the reasons explained

below, I believe that the question of suppression cannot be answered by

focusing on the legality of the frisk. I further disagree with the trial court’s

and Majority’s contention that suppression is affected by the Alexander and

Barr decisions, as those cases addressed the warrantless search of a vehicle

and not, as here, an investigative detention based upon reasonable suspicion.

In one of our recently unpublished memoranda, we summarized the law

regarding investigatory detentions in connection with a lawful vehicle stop.

A traffic stop is a special kind of seizure, which a police officer may
only initiate if he has reason to believe that a violation of the traffic
code has occurred. Commonwealth v. Brown, 64 A.3d 1101,
1105 (Pa. Super. 2013). The level of required suspicion turns on
the kind of violation in question: if it is the kind of violation that
would require further investigation to prove, the officer needs a
reasonable suspicion; if it is the kind of violation that is
immediately apparent and would not require any further
investigation, the officer needs probable cause. Id. In either
case, the officer’s authority for the seizure extends only as long
as is necessary to attend to the business of the stop.
____________________________________________

2 In Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court held
that where a reasonably prudent officer is warranted in the circumstances of
a given case in believing that his safety or that of others is endangered, he
may make a reasonable search for weapons of the person believed by him to
be armed and dangerous, regardless of whether he has probable cause to
arrest that individual or has the absolute certainty that the individual is armed
and dangerous.

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Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super.
2016).

Outside of the context of a traffic stop, an officer’s order for an
occupant to exit a vehicle is a show of authority that transforms
the encounter into at least an investigative detention, requiring
reasonable suspicion. See Commonwealth v. Wright, 224 A.3d
1104, 1109 (Pa. Super. 2019). During the course of a valid traffic
stop, however, an officer may order occupants to exit the vehicle
as a matter of course. Commonwealth v. Wright, 224 A.3d
1104, 1109 (Pa. Super. 2019). This authority lasts only as long as
the duration for the authority of the stop itself. Commonwealth
v. Mattis, 252 A.3d 650, 655 (Pa. Super. 2021). An officer’s
order for a driver to exit the vehicle once the authority for the
original stop has expired initiates a new investigative detention,
requiring independent reasonable suspicion of additional illegal
activity. Id. An officer’s authority to detain a driver during a
traffic stop lasts only as long as is necessary to investigate the
infraction that provoked the stop, issue a citation, and attend to
any related safety concerns. Rodriguez v. U.S., 575 U.S. 348,
354-55 (2015). When an officer abandons the investigation of the
underlying violation and begins questioning the driver about
unrelated criminal activity, he effectively ends the traffic stop and
initiates an independent investigative detention. Mattis, 252
A.3d at 656. To lawfully do so requires independent reasonable
suspicion. Id.; see also Commonwealth v. Prizzia, 260 A.3d
263, 272 (Pa. Super. 2021) (trooper lawfully began investigating
possible DUI after initiating a traffic stop based on a window tint
violation because he developed independent reasonable suspicion
that driver was intoxicated).

Commonwealth v. Lomax, ____ A.3d ____, 2022 WL 439087 (Pa. Super.

filed February 14, 2022). Applying these well-established principles to the

instant case, there is no question the police had the right to stop Appellant’s

vehicle for the headlight violations. As well, the police had the right to order

Appellant out of his vehicle in connection with the vehicle stop. What is not

clear is whether the officer had completed the traffic stop before the

subsequent frisk, seizure of the gun, and warrantless search of the vehicle. If

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the traffic stop had been completed or abandoned before the gun was seized,

then the police needed at least reasonable suspicion of ongoing criminal

activity to continue to detain Appellant.

Here, it certainly is possible that the firearm was discovered in plain

view before the officer’s authority to detain Appellant in connection with the

traffic stop ended. Nothing in the record speaks to whether the purpose of

the traffic stop still was in progress or had concluded as may be evidenced by

the issuance of a citation, the need to attend to any related safety concerns,

see Rodriguez, supra, or as important, whether the purpose of the traffic

stop had ended with Appellant free to leave before the officer continued with

his investigation of possible drug crimes to conclude a second seizure had

commenced that itself had to be supported by at least reasonable suspicion.

See Commonwealth v. Freeman, 757 A.2d 903 (Pa. 2000);

Commonwealth v. Donaldson, 786 A.2d 279 (Pa. Super. 2001). The trial

court made no findings in these regards. If the purpose of the traffic stop had

not concluded or not been abandoned when the gun was spotted in plain view,

then clearly evidence of the gun should not be suppressed. If, on the other

hand, the traffic stop had concluded or was abandoned when the gun was

discovered, then suppression of the gun may depend upon whether the officer

nonetheless, possessed reasonable suspicion to further investigate when the

gun was discovered short of a warrantless search of the vehicle. See Mattis,

supra (where purpose of initial traffic stop has ended and reasonable person

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would not have believed he was free to leave, subsequent round of questioning

by police is investigative detention or arrest; in absence of either reasonable

suspicion to support investigative detention or probable cause to arrest,

citizen is considered unlawfully detained and evidence must be suppressed).

The matter becomes more obscured because at the same time the

officer was pursuing the motor vehicle violation, he also smelled the odor of

fresh marijuana emanating from the vehicle. These two facts cannot be

temporally separated. While the odor of fresh marijuana alone would not

support a warrantless search of the vehicle, see Barr, supra, I believe that

at the time of the stop the odor of marijuana, in combination with Appellant’s

physical attributes observed upon the stop, allowed the officer to investigate

further by means of questioning or observation as to the presence of

marijuana in and around the vehicle, short of conducting a warrantless search.

It cannot be emphasized enough that a person cannot operate a motor vehicle

while consuming marijuana, whether it be legal or not, since our motor vehicle

laws prohibit the operation of a motor vehicle while impaired under a Schedule

I substance, like marijuana, or even if not impaired, while metabolites of

marijuana are present in the operator’s blood. See 75 Pa.C.S.A. §§

3802(d)(1)(i), (iii), and (2); Commonwealth v. May, 2022 PA Super 25, ___

A.3d___, 2022 WL 453581 (Pa. Super. 2022). I therefore believe it is

permissible for an officer, in connection with a lawful vehicle stop, to briefly

detain the occupants of an operating vehicle to investigate the odor of

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marijuana emanating from the vehicle short of a warrantless search. The use

of marijuana while operating a vehicle is a violation of our motor vehicle laws.

The operation of the vehicle, in combination with the smell of marijuana

emanating from the vehicle, provides enough articulable facts to support

reasonable suspicion that crimes are or were committed to justify an

investigatory detention. Naturally, if enough facts develop to support

probable cause, then short of exigent circumstances, a warrant to search first

must be obtained. Barr. To deny an officer the right however, to conduct an

investigatory detention when marijuana is detected from an operating vehicle

would be ludicrous. This would essentially dictate that an officer ignore the

use of marijuana, a Schedule I substance, by the operator of a motor vehicle

contrary to our laws and to public safety. Hence, when Officer Assad returned

to Appellant still sitting in his vehicle after the officer conferred with his partner

as to what to do next, I would conclude that not only did the officer have the

right to request that Appellant step out of his vehicle, but he also had the right

to continue or commence an investigatory detention with respect to

Appellant’s operation of the vehicle due to the odor of marijuana emanating

from the vehicle and Appellant’s physical demeanor.

As to the legality of the frisk, the present record does not contain

findings that would support a frisk of Appellant when he was asked to exit his

vehicle, since nothing in the record suggests that the officer possessed

sufficient articulable facts to support a reasonable suspicion that Appellant

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presented any danger to the officer. See Terry. However, nothing was seized

as a result of the frisk and therefore, there is nothing to suppress or to

reconsider in connection with this action. I believe the Majority’s direction

that upon remand the legality of the frisk be inquired into more particularly

because of the impact that may have on the discovery of the gun to be

unnecessary. Contrary to the Majority, I believe the frisk has little bearing on

whether the gun could be seized. Even if the frisk is deemed to be illegal, the

gun was not discovered in connection with a search of Appellant’s person. It

was discovered in plain view of the interior of the vehicle from where it was

seized. In my view, the Majority’s statement that if the frisk and the

continued detention were not supported by reasonable suspicion, then the

officer did not lawfully observe the gun in plain view, is in error. See Majority

Memorandum, at 13. The search of Appellant’s person and seizure of the gun

are governed by different considerations.

The Majority does not distinguish between the constitutional

considerations between a search and a seizure under the Fourth Amendment

when focusing on the importance of the frisk as opposed to the seizure of the

gun. In Commonwealth v. McCree, 924 A.2d 621 (Pa. 2007), the Court,

citing Horton v. California, 496 U.S. 128 (1990), in discussing the plain view

doctrine, stated, “[t]he ‘plain view’ doctrine is often considered an exception

to the general rule that warrantless searches are presumptively unreasonable,

but this characterization overlooks the important difference between searches

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and seizures.” McCree 924 A.2d at 627. A search under the Fourth

Amendment compromises the individual interest in privacy, whereas, a seizure

deprives the individual of dominion over his or her person or property. Id.

Under the plain view doctrine,

If an article is already in plain view, neither its observation nor its
seizure would involve any invasion of privacy․ A seizure of the
article, however, would obviously invade the owner's possessory
interest․ If ‘plain view’ justifies an exception from an otherwise
applicable warrant requirement, therefore, it must be an
exception that is addressed to the concerns that are implicated by
seizures rather than by searches.

Id., citing Horton, 496 U.S. at 133-34 (omitting citations). Because the

seizure of the gun concerns Appellant’s possessory interest, as opposed to his

privacy interest when frisked, the question becomes whether the officer had

the right to seize the gun observed in plain view regardless of his frisk of the

Appellant. Assuming the officer had the right to continue to detain the

Appellant, the focus must be on the considerations concerning the seizure of

the gun, not the search of Appellant’s person. If an article already is in plain

view, neither its observation nor its seizure would involve any invasion of

privacy. Horton, citing, Arizona v. Hicks, 80 U.S. 321, 325 (1987).

Appellant and the Majority do not make this distinction, but rather leap to the

conclusion that if the frisk was illegal, then all other evidence gathered

subsequent to the frisk must be suppressed. They also do so without

considering whether the officer had the right to continue or conduct a further

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investigatory detention, as explained above, when the gun was observed in

plain view.

For a seizure to be valid under the plain view doctrine as an exception

to the warrant requirement, three criteria must be met; (1) the police must

be at a lawful vantage-point; (2) the incriminating character of the object

must be immediately apparent; and (3) the police must have a lawful right of

access to the object. McCree. As for the first criteria, it cannot be disputed

the officer here saw the gun from a lawful vantage point, i.e., he was on a

public road. As for the second criteria, it is not clear whether the incriminating

nature of the gun was immediately apparent when first viewed by the officer.

The incriminating nature of an item is only immediately apparent if an officer

believes the item is evidence of a crime or contraband. United States v.

Rodriguez, 601 F.3d 402 (5th Cir. 2010). If the police lack probable cause

without conducting a further search, then the incriminating nature of the item

is not immediately apparent. Id. As will be explained, infra, an inability to

satisfy this second criteria may not be dispositive on the question of the

seizure in light of officer safety concerns. As to the third criteria, even though

an object may be in plain view, an officer still must have the right to

constitutionally cross a protected threshold, i.e., the right to enter the place

where the item is viewed. McCree. Here, the trial court did not discuss or

make any findings regarding the plain view doctrine. It may need to do so

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upon remand, but I believe a full consideration of that doctrine may be

unnecessary.

At the moment the gun was spotted (assuming the continuation of a

lawful investigatory detention) officer safety became paramount, as the gun

could have been used by the remaining occupant of the vehicle to fatally harm

the officers. This alone would have justified the lawful seizure of the gun when

it was spotted in plain view. See Commonwealth v. Clinton, 905 A.2d 1026

(Pa. Super. 2006), appeal denied, 934 A.2d 71 (2007).

The issue of officer safety should not be lightly regarded. Long
ago, the United States Supreme Court recognized the issue of
officer safety as a significant component in determining how to
strike the proper balance between the rights of citizens to be free
from unreasonable searches and seizures, and protecting the
safety of our citizens and police officers:

We are now concerned with more than the
governmental interest in investigating crime; in
addition, there is the more immediate interest of the
police officer in taking steps to assure himself that the
person with whom he is dealing is not armed with a
weapon that could unexpectedly and fatally be used
against him. Certainly it would be unreasonable to
require that police officers take unnecessary risks in
the performance of their duties. American criminals
have a long tradition of armed violence, and every
year in this country many law enforcement officers are
killed in the line of duty, and thousands more are
wounded. Virtually all of these deaths and a
substantial portion of the injuries are inflicted with
guns and knives.
In view of these facts, we cannot blind ourselves to
the need for law enforcement officers to protect
themselves and other prospective victims of violence
in situations where they may lack probable cause for
an arrest.

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Id. at 1031, citing Terry, 392 U.S. at 23-24 (footnote omitted and emphasis

added in original).3 In Clinton, during an investigatory traffic stop, the driver

of a vehicle was asked if there were any weapons or anything else the officer

should know about prior to the driver rooting through the vehicle’s glove

compartment in search of registration and insurance information. The Court

held that law enforcement officials may inquire about the presence of weapons

during a lawful traffic stop as this reasonably furthered the interest in officer

safety and constituted a tolerable and minimal intrusion upon a citizen’s rights.

Id. at 1031. Thus, the Court held that it was error for the suppression court

to conclude that a police officer's question, posed during a traffic stop prior to

permitting a driver to search the vehicle’s closed compartments presumably,

but not necessarily, for papers, was "coercive"4 simply because its subject was

the existence of weapons or anything else of which the police had a legitimate

reason to be aware. By extension, I would conclude that if the police have

the right to inquire about the presence of a weapon during a traffic stop

without probable cause to believe any weapons are in the vehicle, then

____________________________________________

3 As noted by the Third Circuit, the Supreme Court has repeatedly recognized
that traffic stops are dangerous encounters that result in assaults and murders
of police officers and that the risk of danger to a police officer conducting a
traffic stop is likely to be greater when there are passengers in addition to the
driver in the stopped car. United States v. Moorefield, 111 F.3d 10, 13 (3d
Cir. 1997), citing cases.

4It was the defendant’s position that police failed to provide Miranda
warnings to him before asking about weapons or anything else.

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certainly, they possess the right to seize and secure a weapon in the interests

of officer safety where the weapon is seized from plain view inside the vehicle,

even if the incriminating nature of the gun is not immediately apparent. Once

a gun is lawfully seized in the interests of officer safety the question then

becomes whether the officers had the right to determine if Appellant could

lawfully possess the gun. I would conclude that they did, since a subsequent

search of a database to determine legality of gun ownership did not require

any further search or seizure of Appellant or his property. See United States

v. Watts, 7 F.3d 122, 127 (8th Cir. 1993), cert. denied, 510 U.S. 1078 (1994)

(investigating serial numbers on weapons that lawfully have come into

possession of investigators does not constitute a search or seizure under the

Fourth Amendment); United States v. Wallace, 889 F.2d 580, 583 (5th Cir.

1989), cert. denied, 497 U.S. 1006 (1990) (when police have legally come

into possession of a gun they are entitled, if not expected, to note and record

serial numbers).

I also find it unnecessary to order a remand as requested by the trial

court to reconsider its suppression ruling under Alexander and Gary to

address whether the smell alone of marijuana could support the subsequent

search of the vehicle and seizure of the gun. Those cases involved the

suppression of evidence seized during the warrantless search of a vehicle

where the only justification for the search was the odor of marijuana. The

separate issue of an investigatory detention based upon reasonable suspicion

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was not before the Court. This is an extremely important distinction because

absent some exception, police are not entitled to conduct a warrantless search

of a vehicle, whereas in an investigatory detention, the police are free to

inquire and observe without the need to secure a warrant.

Alexander overruled Commonwealth v. Gary, 91 A.3d 102 (Pa.

2014), and returned Pennsylvania to its pre-Gary state under which

warrantless vehicle searches require both probable cause and exigent

circumstances. In Barr, our Supreme Court held that in light of the enactment

of the Medical Marijuana Act (“MMA”), under which marijuana no longer is per

se illegal in this Commonwealth, the odor of marijuana alone is insufficient to

establish probable cause to search but may be considered a factor in a

probable cause analysis. Barr also recognized that the possession of

marijuana still is illegal for those not qualified under the MMA. To the extent

the trial court wants to consider these cases with respect to the drug evidence

seized without a warrant, the issue is moot. Appellant was not tried or

convicted of any drug related charges. Likewise, seizure of the gun was not

the result of a warrantless search, but rather the product of a plain view thus,

in my opinion, making any consideration of Alexander or Barr largely

unnecessary to determine the legality of the gun seizure.

Finally, although mentioned and preserved, Appellant does not discuss

separately in any detail the issue of suppression with respect to any

statements made by Appellant to police. Based upon the legal theories

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advanced by Appellant, it appears to be Appellant’s belief that this evidence

also must be suppressed as a result of the illegal frisk and investigatory

detention done without reasonable suspicion. Once again, the trial court has

not provided any findings or discussion on this issue. Upon remand, I believe

it would be incumbent for the parties and the court to consider the

admissibility of any statements in light of whether they were made in

connection with the traffic stop, or as part of another lawful investigatory

detention.

Accordingly, while I concur in the Majority’s decision to remand this

matter for further consideration, I respectfully dissent as to how the issues of

suppression should be addressed.

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