J-S51011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVON D. WILLIAMS                          :
                                               :
                       Appellant               :   No. 1961 MDA 2018

         Appeal from the Judgment of Sentence Entered August 23, 2018
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005056-2017


BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                        FILED DECEMBER 18, 2019

        Davon D. Williams appeals from the August 23, 2018 judgment of

sentence entered after the trial court, sitting as factfinder, convicted him of

possession of heroin with intent to deliver (“PWID”) and possession of drug

paraphernalia.1 On appeal, he argues the court erred in refusing to suppress

evidence gained during a traffic stop. He contends his right to be free of

unreasonable searches was violated when the police officer searched the

vehicle his girlfriend (“the driver”) was driving based on three circumstances:

(1) a smell of marijuana, (2) conflicting stories from Williams and the driver

regarding their destination, and (3) the driver did not know where her one-

year-old child was. We affirm.


____________________________________________

1
    See 35 P.S. §§ 780-113(a)(30) and (32) respectively.
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      Just before midnight on a late summer night, Pennsylvania State

Trooper David Long was in a stationary position observing traffic on Interstate

81. He initiated a traffic stop of Williams’s girlfriend’s vehicle when he

observed that its taillights were not on. He asked the driver to operate her

headlights and confirmed that the taillights were in fact operational.

      Williams concedes, for purposes of this appeal, that Trooper Long’s

decision to stop the vehicle was appropriate under the law. See Appellant’s

Brief, at 19. Therefore, the crux of this appeal concerns what happened after

the initial stop.

      While conversing with the driver, Trooper Long noticed a smell of

marijuana emanating from the vehicle. As per his habit, Trooper Long

summoned his partner, Trooper Travis Martin, to confirm the odor of

marijuana.

      Trooper Martin agreed that an odor of marijuana was present in the

vehicle, and the troopers informed Williams and the driver that they were

going to search the car based on this observation. While frisking Williams,

Trooper Martin observed marijuana residue on Williams’s shirt. Williams

admitted to having smoked marijuana earlier in the evening, but denied that

he had done it in the vehicle.

      Trooper Martin’s systematic search of the passenger compartment of

the vehicle did not reveal any contraband. When he searched the trunk,

however, he discovered a duffel bag underneath a baby stroller. The duffel


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bag contained 10,005 bags of heroin. The Troopers placed Williams under

arrest and discovered a marijuana grinder in his pocket.

         The     trial   court     conducted       a    hearing     on    Appellant's

motion to suppress the evidence recovered from the vehicle search. Trooper

Long testified and the dashboard camera from his cruiser was admitted into

evidence. After the trial court denied relief, the parties proceeded to a bench

trial.    The trial court found Williams guilty and imposed sentence. This

timely appeal followed.

         Williams raises a single issue for our review, arguing that the evidence

recovered from the search of the trunk should have been suppressed:

              WHETHER THE TRIAL COURT ERRED IN REFUSING TO
              SUPPRESS ALL EVIDENCE BECAUSE THE STATE POLICE
              ILLEGALLY EXTENDED THE DETENTION OF THE VEHICLE,
              ITS DRIVER AND APPELLANT (THE PASSENGER) AND THEN
              SEARCHED THE ENTIRE VEHICLE, INCLUDING THE TRUNK
              AND CLOSED BAG INSIDE, WITHOUT PROBABLE CAUSE
              OR SEARCH WARRANT BASED PRIMARILY ON THE ODOR
              OF BURNT MARIJUANA, ALL OF WHICH VIOLATED HIS
              STATE AND FEDERAL CONSTITUTIONAL RIGHTS?

Appellant’s Brief, at 5.

         We    review    a   challenge   to   the denial of   a suppression motion to

determine whether the suppression court's factual findings are supported by

the record and whether the legal conclusions drawn from those facts are

correct. See Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa.

2007). Because the Commonwealth prevailed before the suppression court,

we may consider only the evidence of the Commonwealth and so much of the


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evidence for the defense as remains uncontradicted when read in the context

of the record as a whole. See id.

      Where the suppression court's factual findings are supported by the

record, the appellate court is bound by those findings and may reverse only if

the court's legal conclusions are erroneous. See id. In contrast, the

suppression court's legal conclusions are not binding on an appellate court,

and our duty is to determine if the suppression court properly applied the law

to the facts. Thus, the conclusions of law of the suppression court are subject

to plenary review. See Commonwealth v. McClellan, 178 A.3d 874, 880–

81 (Pa. Super. 2018).

      Ordinarily, our scope of review is limited to the suppression hearing

transcript. In re L.J., 79 A.3d 1073 (Pa. 2013). In his brief, counsel for

Williams asks this Court to also consider the evidence adduced at the bench

trial, which included the testimony of Trooper Martin; only Trooper Long

testified at the suppression hearing. Williams is correct that L.J. provides for

an exception when a party explicitly moves to augment the suppression record

with evidence from a subsequent trial. See id., at 1088 n.17. Here, Williams

explicitly moved for reconsideration of the suppression motion in light of

Trooper Martin’s trial testimony. See Post-Sentence Motion, 8/31/18, at ¶ 19.

The court did not address this request when it denied the post-sentence

motion.




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      The Commonwealth contends that we may not review Trooper Martin’s

trial testimony. It argues that even under the exception contained in footnote

17 of L.J., the evidence sought to be added to the suppression record must

have been “previously unavailable.” See id., at 1088 n.17. Since defense

counsel explicitly declined to call Trooper Martin at the close of the suppression

hearing, see N.T., 4/18/18, at 63, the Commonwealth believes his trial

testimony was available for the suppression hearing. See Commonwealth’s

Brief, at 9 (unpaginated).

      We conclude it is not necessary to confront the issue of availability in

this case. Even if we include Trooper Martin’s trial testimony in our review, we

do not find that the suppression court erred in refusing to suppress the heroin

found in the trunk of the vehicle.

      As noted above, Williams concedes the legality of the initial traffic stop.

He presents two separate arguments regarding the subsequent search. First,

he argues that Trooper Long did not have sufficient reasonable suspicion to

prolong the traffic stop.

      A law enforcement officer may detain an individual, and extend a vehicle

stop, in order to conduct an investigation if that officer reasonably suspects

that the individual is engaging in criminal conduct. See Commonwealth v.

Rogers, 849 A.2d 1185, 1189 (Pa. 2004). Our Supreme Court has noted that

“if there is a legitimate stop for a traffic violation (based on probable cause),

additional suspicion may arise before the initial stop's purpose has been


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fulfilled; then, detention may be permissible to investigate the new

suspicions.” Commonwealth v. Chase, 960 A.2d 108, 115 n.5 (Pa. 2008)

(citations omitted).

      In order to determine whether a law enforcement officer had reasonable

suspicion, the totality of the circumstances must be considered. In re D.M.,

781 A.2d 1161, 1163 (Pa. 2001). In making this determination, we must

give due weight to the specific reasonable inferences the law enforcement

officer is entitled to draw from the facts in light of his experience. See

Commonwealth v. Cook, 735 A.2d 673, 676 (Pa. 1999).

      The totality of the circumstances test does not limit our inquiry to an

examination    of      only   those   facts   that   clearly   indicate   criminal

conduct. Rather, “[e]ven a combination of innocent facts, when taken

together, may warrant further investigation by the police officer.” Id. As our

Supreme Court reasoned in Cook, while “certain facts, taken alone, do not

establish reasonable suspicion ... a combination of these facts may establish

reasonable suspicion.” Id. at 677. Furthermore, as the Supreme Court

recognized in In Interest of A.A., 195 A.3d 896 (Pa. 2018), “the odor of

marijuana alone, particularly in a moving vehicle, is sufficient to support at

least reasonable suspicion, if not the more stringent requirement of probable

cause” that an individual is involved in criminal activity. Id. at 904.

      Here, Trooper Long testified that while he was talking to the driver, he

“detected an odor of marijuana” from inside the vehicle. N.T., 4/18/18, at 10.


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This observation provided a sufficient basis to allow Trooper Long to conclude

he had reasonable suspicion that criminal activity had occurred in the vehicle.

      Appellant next argues that the troopers did not have probable cause to

search the trunk of the vehicle. Our Supreme Court has adopted the federal

automobile exception, which permits police to conduct a warrantless search

of a vehicle if police have probable cause to believe the vehicle contains

evidence of criminal activity; no exigency beyond the inherent mobility of a

motor vehicle is required. See Commonwealth v. Valdivia, 195 A.3d 855,

865 n.11 (Pa. 2018). The level of probable cause necessary for warrantless

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

warrant. Commonwealth v. Lechner, 685 A.2d 1014, 1016 (1996); see

also Commonwealth v. Gary, 91 A.3d 102, 104 (Pa. 2014).

      Probable cause does not demand the certainty we associate with
      formal trials. Rather, a determination of probable cause requires
      only that the totality of the circumstances demonstrates a fair
      probability that contraband or evidence of a crime will be found in
      a particular place. [T]he evidence required to establish probable
      cause for a warrantless search must be more than a mere
      suspicion or a good faith belief on the part of the police officer.

Commonwealth v. Scott, 210 A.3d 359, 363 (Pa. Super. 2019) (citations

and internal quotation marks omitted).

      The Supreme Court of the United States has held that an odor may be

sufficient to establish probable cause. Commonwealth v. Stoner, 344 A.2d

633, 635 (Pa. Super. 1975) (citing United States v. Ventresca, 380 U.S.

102, 85 S.Ct. 741 (1965)). “In Stoner, we analogized a ‘plain smell’ concept


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with that of plain view and held that where an officer is justified in being where

he is, his detection of the odor of marijuana is sufficient to establish probable

cause.” Commonwealth v. Stainbrook, 471 A.2d 1223, 1225 (Pa. Super.

1984) (citations omitted).

      Once again, Trooper Long testified that he detected the odor of

marijuana in the car. N.T. 4/18/18, at 10. The driver told him that she was

driving to Harrisburg to pick up her one-year-old son. See id., at 27-28.

However, the driver did not know exactly where her son was in Harrisburg.

See id. Furthermore, Williams informed the troopers that he and the driver

were on their way to Pittsburgh to pick up their son. See id., at 28. Under

these circumstances, we conclude the troopers had probable cause to search

the vehicle for marijuana.

      Williams asserts that none of these circumstances are individually

sufficient to establish probable cause. Williams’s argument contravenes our

standard of review. We do not consider each circumstance in isolation. Rather,

we consider the totality of the circumstances. So, even assuming that Williams

is correct that none of these circumstances are sufficient on their own, we

conclude they are sufficient taken together as a whole.

      Williams contends that, even if the troopers had probable cause to

search the passenger compartment of the vehicle for marijuana, they did not

have probable cause to search the trunk. In United States v. Ross, 456 U.S.

798, 102 S.Ct. 2157 (1982), the Supreme Court of the United States held


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that, “If probable cause justifies the search of a lawfully stopped vehicle, it

justifies the search of every part of the vehicle and its contents that may

conceal the object of the search.” Id. at 825, 102 S.Ct. at 2173. Thus, “[t]he

scope of a warrantless search of an automobile thus is not defined by the

nature of the container in which the contraband is secreted. Rather, it is

defined by the object of the search and the places in which there is probable

cause to believe that it may be found.” Id. at 824, 102 S.Ct. at 2172. The

Ross decision has been frequently cited by the courts of this Commonwealth.

See, e.g., Commonwealth v. Epoca, 668 A.2d 578, 582 (Pa. Super. 1995)

(noting that when police have probable cause to believe evidence of a crime

is located in a lawfully stopped vehicle, they are empowered to search every

part of the vehicle and its contents that may conceal the object of the search).

      Therefore, under Ross, once Troopers Long and Martin developed

probable cause to conduct a warrantless search of the vehicle, the scope of

the search was not limited to the main compartment, but extended to every

part of the vehicle that could possibly conceal the object of the search. See

id. Since Trooper Long was unable to determine the origin of the marijuana

odor, a search of the entire car, including the trunk, was warranted.

      Williams argues that under Commonwealth v. Scott, 210 A.3d 359

(Pa. Super. 2019), the troopers did not have probable cause to search the

trunk of the vehicle. To the contrary, this Court in Scott conceded, “that if a

police officer possesses probable cause to search a motor vehicle, he may then


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conduct a search of the trunk compartment without seeking to obtain probable

cause relative to the particularized area.” See id., at 364. However, the Scott

majority affirmed the suppression of a firearm found in the trunk of the vehicle

because   the   still   smoking   marijuana    blunt   found   in   the   passenger

compartment was an obvious cause of the odor of marijuana emanating from

the passenger compartment. See id.

      Williams asserts that Trooper Martin’s trial testimony established an

obvious source for the odor of marijuana. Trooper Martin testified that

Williams’s clothes smelled of marijuana, and contained marijuana residue.

See N.T. 4/18/18, at 59. Williams contends that given this obvious source of

marijuana odor, the troopers had no probable cause to continue searching the

car for marijuana.

      We disagree. Trooper Martin’s testimony indicates that he only smelled

the marijuana odor on Williams when he was performing a frisk. This is not

equivalent to the still smoking marijuana blunt found in Scott. Trooper Martin

did not testify that he detected the odor in Williams’s clothing before frisking

him. Nor did Trooper Martin testify that the odor emanating from the clothing

was strong or lingering.

      Just as significantly, we note that Scott involved review of an order

suppressing evidence. As a result, the Scott panel was required to review the

evidence of record in a light most favorable to the defendant. Here, we are




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reviewing an order denying suppression. As noted previously, we must review

the evidence of record here in a light most favorable to the Commonwealth.

      Under these circumstances, we conclude Scott is distinguishable.

Reviewing the evidence of record in the light most favorable to the

Commonwealth, the suppression court was entitled to find that there was no

obvious source found in the passenger compartment for the odor of marijuana.

The troopers were therefore justified in searching the trunk.

      In summary, the evidence presented to the trial court justified (1) the

validity of the initial traffic stop, (2) the extension of the stop which was based

on the requisite reasonable suspicion, and (3) the warrantless search of the

vehicle.   The investigation into the trunk did not exceed the permissible

bounds of the search. We therefore reject Appellant's claim that the trial court

failed to suppress the evidence of the contents of the duffel bag.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2019




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