J-S53027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ERIK RICHARD GOLANT                        :   No. 4071 EDA 2017

               Appeal from the Order Entered November 20, 2017
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0005102-2016


BEFORE:      GANTMAN, P.J., OTT, J., and PLATT, J.

MEMORANDUM BY OTT, J.:                              FILED NOVEMBER 09, 2018

        The Commonwealth appeals from the order entered November 20,

2017, in the Court of Common Pleas of Delaware County, suppressing

evidence and dismissing the charges against Appellee/Defendant Erik Richard

Golant.1    After a thorough review of the submissions by the parties, the

certified record, and relevant law, we affirm in part, reverse in part and

remand for further proceedings consistent with this decision.

        We relate the facts and procedural history of this matter as stated in the

trial judge’s Pa.R.A.P. 1925(a) opinion.

        On May 15, 2016, at approximately 8:40 p.m., Officer James
        Hallman of the Trainer Borough Police Department received a
        radio report of an unconscious man inside a car. He proceeded to
____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth has filed certification pursuant to Pa.R.A.P. §311(d) that
the trial court’s order will terminate or substantially handicap the prosecution.
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     the vicinity of Post Road and Pennell Street, where he found a blue
     Volkswagen legally parked with its engine running and lights on.
     He parked his police car behind the subject vehicle, exited and
     walked to the Volkswagen, where he found a man, later identified
     as [Golant], asleep in the driver’s seat with the engine running
     and the keys in the ignition. After awakening the man by banging
     on the window, he shone a flashlight in [Golant’s] face and noted
     bloodshot and glassy eyes and profuse amounts of sweat. All of
     this suggested the ingestion of alcohol and, perhaps, narcotics.

     He directed [Golant] to step out of the car. As the door opened,
     he detected the smell of marijuana emanating from both the
     interior of the car and from [Golant’s] person. He turned off the
     engine and removed the keys from the ignition.

     After assisting [Golant] to the rear of the car for evaluation by the
     medics, who had arrived on the scene, he performed a pat-down
     search for anything that [Golant] might use as a weapon or that
     might poke or stab him or the medical personnel. During the
     search, he detected a hard object that he suspected might be a
     pill bottle containing a substance [Golant] had recently ingested.
     He asked what it was. [Golant] pulled out the container and
     explained that it was “just a little bit of weed.”

     Because he could smell marijuana, he searched [Golant’s] car and
     found on the front passenger seat a black book bag. In an open
     front pouch, he saw a clear plastic baggie containing nine red
     cubes, later identified as THC. He returned to the ambulance and
     questioned [Golant] further about any consumption of the cubes.
     [Golant] explained he had ingested something at a concert and,
     while driving home, pulled over because he felt too tired to drive.
     He did not administer any filed sobriety tests. Rather, the
     ambulance crew took [Golant] to the hospital.

     At the emergency room, he read to [Golant] the contents of the
     DL-26 form and advised him of the Section 1547 Chemical Test
     warnings. [Golant] signed the form, and blood was drawn.

     The Commonwealth charged [Golant] with Count 1, [D]riving
     under the influence, 75 Pa.C.S.A. § 3802(d)(3), Count 2, Driving
     under the influence, 75 Pa.C.S.A. § 3802(d)(2), and Count 3
     Possession of Marijuana, 35 [P.S.] § 780-113(a)(31)(UM). On
     March 23, 2017, the Information was amended to add Count 4,
     Driving under the influence, 75 Pa.C.S.A. § 3802(a)(1), Count 5,

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        Driving under the influence, 75 Pa.C.S.A. § 3802(d)(1)(i), Count
        6, Driving under the influence, 75 Pa.C.S.A. § 3802(d)(1)(ii),
        Count 7, Driving under the influence, 75 Pa.C.S. § 3802(d)(1)(iii).

        On March 23, 2017, this Court conducted a suppression hearing.
        Although the Commonwealth conceded that the officer’s use of the
        DL-26 form rendered [Golant’s] consent inoperative under
        Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), it argued
        that the blood test results would be otherwise admissible under
        the Inevitable Discovery Doctrine. This Court disagreed and
        suppressed the blood test results.

        After hearing arguments, this Court concluded that absent the
        blood test results, the evidence was too “trivial” to find [Golant]
        guilty beyond a reasonable doubt. Accordingly, it dismissed the
        entire case.

Trial Court Opinion, 2/26/2018, at 1-3.

        Subsequently, the Commonwealth appealed,2 and filed a Pa.R.A.P.

1925(b) statement of errors complained of on appeal. Those issues, as argued

in the Commonwealth’s Appellant’s brief are:

        Did the suppression court properly recognize in its opinion that it
        erred because dismissal is not a suppression remedy and the
        Commonwealth had a right to appeal and right to a jury trial?[3]

        … Did the suppression court err by suppressing the statements
        [made by Golant] because persons temporarily detained during
        vehicle stops are not in custody for the purposes of Miranda[4]
        and not entitled to Miranda warnings?
____________________________________________


2Although the trial court verbally suppressed all evidence and dismissed the
case on March 23, 2017, the written order was not docketed until November
20, 2017. Pursuant to Pa.R.A.P. 301(b) and (c), the order was not appealable
until the written order was docketed.

3 In its Rule 1925(b) statement, the Commonwealth claimed the trial court
erred in dismissing the case after granting Golant’s motion to suppress. In its
Rule 1925(a) opinion, the trial court agreed it had erred.

4   Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

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      Did the officer’s observations of the intoxicated defendant and the
      odor of marijuana in his vehicle give him probable cause to search
      the vehicle without a warrant?

Commonwealth Appellant’s Brief at 2-3 (prefatory statements to each

question omitted).

      Initially, we agree with the Commonwealth and the trial court that the

case was improperly dismissed after the trial court suppressed all the

evidence. See Commonwealth v. Miklos, 672 A.2d 796 (Pa. Super. 1996)

(en banc) (suppression court not asked to resolve questions related to factual

guilt or innocence). Accordingly, the dismissal of all charges is reversed.

      Our standard of review is well settled.

      When the Commonwealth appeals from a suppression order, we
      follow a clearly defined standard of review and consider only the
      evidence from the defendant’s witnesses together with the
      evidence of the prosecution that, when read in the context of the
      entire record, remains uncontradicted. The suppression court’s
      findings of fact bind an appellate court if the record supports those
      findings. The suppression court's conclusions of law, however, are
      not binding on an appellate court, whose duty is to determine if
      the suppression court properly applied the law to the facts.

      Our standard of review is restricted to establishing whether the
      record supports the suppression court's factual findings; however,
      we maintain de novo review over the suppression court's legal
      conclusions.

Commonwealth v. Newsome, 170 A.3d 1151, 1153-54 (Pa. Super. 2017)

(citation omitted).

      The Commonwealth’s first suppression issue is a claim the trial court

improperly suppressed statements made by Golant.           The Commonwealth




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argues Golant was not under arrest at the time the statements were made

and therefore Miranda warnings were not required.

        Although the Commonwealth does not specifically state what statements

by Golant they refer to, our review of the certified record leads to the

conclusion the statements are those mentioned in the trial court opinion: (1)

Golant’s admission that he possessed a little weed after the pat down search,

and (2) his admission that he had ingested “something” at the concert he

attended and felt too tired to drive, after Officer Hallman found the THC candy

in his backpack.

        The trial court did not suppress the first statement due to a failure to

give Golant Miranda warnings. Rather, the trial court determined the pat

down search was improper. Therefore, the discovery of the pill bottle was

improper and Golant’s statement regarding there being a little weed in the

bottle were both fruit of the poisonous tree. We agree with the trial court’s

assessment. Officer Hallman admitted he had no suspicion that Golant was

armed, dangerous or presented any threat to the police officer’s safety. See

N.T. Hearing, 3/23/2017, at 52. Accordingly, Officer Hallman had no authority

to conduct a Terry5 frisk.6 See Commonwealth v. Shelly, 703 A.2d 499

(Pa. Super. 1997) (safety frisk allowable upon reasonable suspicion criminal

activity is afoot and suspect is armed and dangerous).          Further, Officer
____________________________________________


5   Terry v. Ohio, 88 S.Ct. 1868 (1968).

6Officer Hallman testified he conducted a pat down search of every person he
dealt with. N.T. Hearing, 3/23/2017, at 26, 52. This practice is improper.

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Hallman testified that Golant was not under arrest at the time of the search;

therefore, the search cannot be justified as a search pursuant to arrest.

Because Officer Hallman had no authority to conduct the pat down search of

Golant, the discovery of the pill bottle with the small amount of marijuana and

Golant’s statement, confirming the contents of the container was “weed”, were

rightfully suppressed as fruit of the poisonous tree.

      Evidence obtained as a result of an unlawful search is subject to
      the fruit of the poisonous tree doctrine. The United States
      Supreme Court has stated that any material, tangible, or verbal
      evidence “obtained either during or as a direct result of an
      unlawful invasion” is inadmissible at trial. Wong Sun v. United
      States, 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d. 441 (1963).

Commonwealth v. Chesney, ___ A.3d ___, 2018 WL 4496148 at *5 (Pa.

Super. 9/20/2018).

      Golant made the other statements mentioned in the trial court opinion

after Officer Hallman searched Golant’s car and found nine THC candies in a

plastic bag, which in turn, was in an open pocket of a book bag that was on

the front passenger seat of the car. Officer Hallman justified this search based

on the strong odor of marijuana he noticed coming from both Golant and the

car when Golant first opened the car door. N.T. Hearing, 3/23/2017, at 31.

This argument, as well as the Commonwealth’s final argument, are based on

Officer Hallman’s testimony that the car smelled strongly of marijuana.

Therefore, we will address these arguments together.

      We agree with the Commonwealth that the odor of marijuana, alone,

may be sufficient to establish probable cause to conduct a warrantless search


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of an automobile. See Commonwealth v. Stoner, 710 A.2d 55, 59 (Pa.

Super. 1998).       However, the trial court made no findings regarding the

propriety of the search based upon Officer Hallman’s claim to have smelled

marijuana.7 We are not a fact-finding court and we are in no position to make

a credibility determination. This is especially true where the testimony found

in the certified record shows no apparent reason for that smell. There was no

smoke in the car, no smoking residue, no “roaches”, no smoking paraphernalia

and no raw marijuana found in the car.           Accordingly, we may make no

inference in support of the officer’s testimony from the evidence. Because we

are in no position to rule on this aspect of the Commonwealth’s argument, we

must remand the matter to the trial court for findings of fact and conclusions

of law specific to this argument.

       Order affirmed in part, reversed in part. This matter is remanded for

further proceedings consistent with this decision. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/18



____________________________________________


7Having based its decision on other grounds, the trial court did not specifically
address this issue.

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