J-S13027-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
YORDY MERCEDES :
:
Appellant : No. 1275 MDA 2021
Appeal from the Judgment of Sentence Entered September 7, 2021
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0001649-2020
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KING, J.: FILED SEPTEMBER 23, 2022
Appellant, Yordy Mercedes, appeals from the judgment of sentence
imposed by the York County Court of Common Pleas, following his bench trial
convictions for carrying a firearm without a license and persons not to possess
firearms.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
February 25, 2020, York City Police Department Officers Ross Casteel and
Tanner Hoover were on patrol in a high crime area of York City. The officers
were stopped at a stop sign in an area where they often encountered drug
sales, drug use, and assaults, when they saw Appellant and another male walk
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 6106(a)(1) and 6105(a)(1), respectively.
J-S13027-22
in front of their patrol car. The officers “smelled an obvious overwhelming
odor of burnt marijuana” and noticed one of the males was smoking a cigarillo
type object. (N.T. Hearing, 1/13/21, at 8-9). Officer Casteel activated his
overhead lights to conduct a stop, and both males fled. Officers later
apprehended Appellant and, after conducting a search of his person, found a
handgun in Appellant’s jacket pocket.
The Commonwealth charged Appellant on April 7, 2020, with persons
not to possess firearms and firearms not to be carried without a license. He
filed an omnibus pretrial motion on May 11, 2020, seeking suppression of the
handgun. After an en banc argument,2 the trial court denied Appellant’s
motion to suppress on September 29, 2020. Appellant filed a motion to
reconsider on October 26, 2020, and after a hearing on January 13, 2021, the
court denied Appellant’s motion.
Appellant proceeded to a bench trial on June 22, 2021. At the conclusion
of trial, the court found Appellant guilty of both charges. On September 7,
2021, the court sentenced Appellant to an aggregate term of 4 to 8 years of
incarceration. He filed a timely notice of appeal on September 28, 2021. On
September 29, 2021, the trial court ordered Appellant to comply with
____________________________________________
2The court scheduled a hearing on the motion; however, the original hearing
was continued. On June 19, 2020, the York County Court of Common Pleas
conducted an en banc argument in this and other cases concerning the effect
of the Pennsylvania Medical Marijuana Act (“MMA”), 35 P.S. §§ 10231.101—
10231.2110, in relation to whether the plain smell of marijuana can or should
serve as a basis for probable cause for a warrantless search.
-2-
J-S13027-22
Pa.R.A.P. 1925(b). Appellant filed his concise statement on October 18, 2021.
Appellant raises one issue on appeal:
Whether the honorable trial court erred in denying
Appellant’s motion to suppress based upon the smell of
marijuana alone [which] is insufficient to establish
reasonable suspicion to initiate an investigative detention
and subsequent arrest?
(Appellant’s Brief at 4).
“Our standard of review in addressing a challenge to a trial court’s denial
of a suppression motion is limited to determining whether the factual findings
are supported by the record and whether the legal conclusions drawn from
those facts are correct.” Commonwealth v. Williams, 941 A.2d 14, 26
(Pa.Super. 2008) (en banc) (internal citations omitted).
[W]e may consider only the evidence of the prosecution 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 record supports the findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Id. at 27. If appellate review of the suppression court’s decision “turns on
allegations of legal error,” then the trial court’s legal conclusions are
nonbinding on appeal and subject to plenary review. Commonwealth v.
Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (quoting Commonwealth v.
Jones, 121 A.3d 524, 526-27 (Pa.Super. 2015), appeal denied, 635 Pa. 750,
135 A.3d 584 (2016)).
Appellant argues that police did not have reasonable suspicion to
-3-
J-S13027-22
conduct an investigative detention. Appellant claims they stopped him based
solely on the smell of marijuana, which Appellant contends is inadequate to
establish reasonable suspicion. Appellant emphasizes that no other
circumstances were present to establish reasonable suspicion. Appellant
concludes that the investigative detention was illegal because the officers
lacked reasonable suspicion that Appellant was engaged in criminal activity,
and this Court must grant relief. We disagree.
This Court has explained:
The Fourth Amendment to the United States Constitution
and Article I, Section 8 of the Pennsylvania Constitution
protect citizens from “unreasonable searches and seizures,
including those entailing only a brief detention.”
Commonwealth v. Strickler, 563 Pa. 47, 56, 757 A.2d
884, 888 (2000). Specifically, police officers may not
conduct a warrantless search or seizure unless one of
several recognized exceptions applies. Commonwealth v.
Blair, [575 A.2d 593, 596 (Pa.Super. 1990)]. If a
defendant’s detention violates the Fourth Amendment, then
any evidence seized during that stop must be excluded as
fruit of an unlawful detention. Id.
Commonwealth v. Mattis, 252 A.3d 650, 654 (Pa.Super. 2021).
We categorize police interactions with members of the public into three
general tiers of increasing intrusiveness, which require increasing levels of
suspicion on the part of an officer who initiates them: (1) mere encounters,
which require no suspicion; (2) investigative detentions, which require
reasonable suspicion; and (3) custodial detentions, which require probable
cause. Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa.Super. 2000),
appeal denied, 565 Pa. 662, 775 A.2d 801 (2001).
-4-
J-S13027-22
“In determining whether police had reasonable suspicion to initiate an
investigative detention, ‘the fundamental inquiry is an objective one, namely,
whether the facts available to police at the moment of the intrusion warrant a
[person] of reasonable caution in the belief that the action taken was
appropriate.’” Commonwealth v. Jefferson, 256 A.3d 1242, 1248
(Pa.Super. 2021), appeal denied, ___ Pa. ___, 268 A.3d 1071 (2021) (quoting
Commonwealth v. Gray, 784 A.2d 137, 142 (Pa.Super. 2001)).
Demonstrating reasonable suspicion requires that the detaining officer
“articulate something more than an inchoate and unparticularized suspicion
or hunch.” Id. (citation omitted).
Historically, Pennsylvania courts have held that the smell of marijuana
alone was sufficient to establish a reasonable suspicion of criminal activity.
However, after the passage of the MMA and legalization of medical marijuana
in the Commonwealth, our Supreme Court revisited this issue. In
Commonwealth v. Hicks, 652 Pa. 353, 208 A.3d 916 (2019), our Supreme
Court held that “conduct in which hundreds of thousands of Pennsylvanians
are licensed to engage lawfully” is, on its own, “an insufficient basis for
reasonable suspicion that criminal activity is afoot.” Hicks, supra at 400,
208 A.3d at 945 (2019).
Further, in Commonwealth v. Barr, ___ Pa. ___, 266 A.3d 25 (2021),
the Court recognized that although “the MMA makes abundantly clear that
marijuana no longer is per se illegal in this Commonwealth[,]” the possession
-5-
J-S13027-22
of marijuana is still illegal under the Controlled Substance, Drug, Device and
Cosmetic Act, 35 P.S. §§ 780-101-144, “for those not qualified under the
MMA.” Barr, supra at ___, 266 A.3d at 41. Accordingly, the Barr Court held
that “the odor of marijuana may be a factor, but not a stand-alone one, in
evaluating the totality of the circumstances for purposes of determining
whether police had probable cause to conduct a warrantless search.” Id.
This Court has had the opportunity to apply the Hicks and Barr
decisions to various cases. In Commonwealth v. Dabney, 274 A.3d 1283,
1293 (Pa.Super. 2022), we assumed arguendo that Barr applies to a
determination of reasonable suspicion for an investigative detention, and held
that the officer could consider the odor of marijuana as well as other factors
in making that determination. In Commonwealth v. Lomax, No. 470 MDA
2021 (Pa.Super. filed Feb. 14, 2022) (unpublished memorandum),3 we held
that the smell of fresh marijuana cannot objectively suggest anything more
than possession of a substance that many Pennsylvanians can legally possess.
Therefore, we concluded that it cannot, on its own, establish the reasonable
suspicion necessary to initiate an investigative detention. More recently, in
Commonwealth v. Felder, No. 1082 MDA 2021 (Pa.Super. filed Aug. 9,
2022), we recognized that the MMA does not permit the smoking of marijuana;
therefore, knowledge that the appellant had paraphernalia for smoking
____________________________________________
3 We may cite unpublished non-precedential decisions of the Superior Court
filed after May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).
-6-
J-S13027-22
marijuana gave the officer reason to believe the marijuana was being used
illegally.
Instantly, because the officers activated the emergency lights on their
police car at the time they stopped Appellant, the interaction between the
officers and Appellant constituted an investigative detention. See
Commonwealth v. Livingstone, 644 Pa. 27, 48-49, 174 A.3d 609, 621-22
(2017). Therefore, for the stop to be lawful, the officers must have had a
reasonable suspicion that criminal activity was afoot. See Beasley, supra.
At the suppression hearing, the court heard from Officer Casteel, who
initiated the investigative detention. Officer Casteel testified that he and his
partner were on patrol in a high crime area when they saw Appellant and his
companion walking across the street, observed one of the men smoking a
cigarillo, and smelled the odor of burnt marijuana. (See N.T. Hearing at 8-9,
11). The officer indicated that he had specialized training in recognizing the
odor of burnt marijuana, and that it is a common practice to smoke a cigarillo
that had been hollowed out and filled with marijuana leaf. (Id. at 9, 31). At
this point, the officers concluded they had reasonable suspicion and activated
their patrol car lights, initiating an investigative detention.
The trial court concluded that given the totality of the circumstances,
the facts available to the officers, observing an individual smoking a cigarillo
and smelling the odor of burnt marijuana, gave the officers reason to believe
that marijuana was being illegally smoked. Therefore, it found that reasonable
-7-
J-S13027-22
suspicion supported the investigative detention, and denied Appellant’s
motion to suppress.
We agree with the trial court that the facts available to the officers were
sufficient to establish reasonable suspicion. This case is distinguishable from
Barr and Lomax because, here, the officers observed a cigarillo being
smoked, and specifically smelled the odor of burnt marijuana. Because the
MMA does not permit smoking marijuana out of a cigarillo, (see 35 P.S. §
10231.304(b) (“It is unlawful to: (1) Smoke medical marijuana”)), we
conclude that the officers had reasonable suspicion to justify an investigative
detention. Therefore, the trial court did not err in denying Appellant’s motion
to suppress. See Williams, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/23/2022
-8-
Com. v. Mercedes, Y.
Combined Opinion