J-A26008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

MICHAEL L. JOHNSON,

                         Appellee                      No. 721 WDA 2015


                 Appeal from the Order Entered April 9, 2015
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0017177-2014


BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED NOVEMBER 22, 2016

      The Commonwealth appeals from the trial court’s April 9, 2015 order

granting Michael L. Johnson’s motion to suppress a gun that was discovered

in Johnson’s car during a search following a traffic stop for minor motor

vehicle violations. After careful review, we affirm.

      Johnson was arrested on December 9, 2014, and charged with one

count of carrying a firearm without a license, 18 Pa.C.S. § 6106, and one

count of failing to use required turn signals, 75 Pa.C.S. § 3334. On April 1,

2015, Johnson filed a pretrial motion to suppress the firearm, contending

that it was seized during an illegal search of his vehicle. On April 9, 2015, a

suppression hearing was held.        At the conclusion thereof, the trial court

issued an order granting Johnson’s motion to suppress. The Commonwealth

filed a timely notice of appeal, certifying that the court’s order handicaps
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and/or effectively terminates the prosecution of the charges against

Johnson. See Pa.R.A.P. 311(d). The Commonwealth also timely complied

with the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.       The trial court filed an opinion on January 21,

2016.

        Herein, the Commonwealth presents two questions for our review in

the “Statement of the Questions Involved” section of its brief; however, it

only sets forth the following, single issue in its “Argument” section: “The

officer’s observation of the odor of burnt marijuana coupled with [Johnson’s]

statement that he had a firearm in the vehicle and admission that he had no

carry permit provided the officer with probable cause to enter the vehicle

and seize the firearm[;] accordingly, the suppression court erred in

disregarding [Johnson’s] statement and in granting the motion to suppress.”

Commonwealth’s Brief at 9.

        Our standard of review of the Commonwealth’s issue is as follows:

               When reviewing an Order granting a motion to suppress
        we are required to determine whether the record supports the
        suppression court's factual findings and whether the legal
        conclusions drawn by the suppression court from those findings
        are accurate. In conducting our review, we may only examine
        the evidence introduced by appellee along with any evidence
        introduced by the Commonwealth which remains uncontradicted.
        Our scope of review over the suppression court's factual findings
        is limited in that if these findings are supported by the record we
        are bound by them. Our scope of review over the suppression
        court's legal conclusions, however, is plenary.




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Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008)

(citations omitted)). We also stress that “it is exclusively the province of the

suppression court to determine the credibility of the witnesses and the

weight to be accorded their testimony.”      Commonwealth v. Krisko, 884

A.2d 296, 299 (Pa. Super. 2005) (citation omitted).

      We begin by summarizing the evidence presented at the April 9, 2015

suppression hearing, where the Commonwealth presented one witness, Mt.

Oliver Borough Police Officer Patrick Lucas.    Officer Lucas testified that on

December 9, 2014, at approximately 11:55 p.m., he conducted a traffic stop

of Johnson’s vehicle after observing Johnson’s turning twice without

signaling.   N.T. Hearing, 4/9/15, at 5-6.   Officer Lucas testified that after

stopping Johnson’s vehicle, he approached the driver’s side door of the car.

Id. Johnson had the driver’s side window down and the officer immediately

detected an odor of marijuana. Id. Johnson was the only occupant of the

car. Id.

      Officer Lucas testified that Johnson “did not have an identification card

or driver’s license on him[,]” but he did give the officer information, which

the officer then ran through the computer system in his patrol car. Id. at 7.

That check confirmed that the information provided by Johnson was

accurate, and that the vehicle was registered to Johnson.        Id. at 14-15.

Officer Lucas then testified as follows:




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     [Officer Lucas:] I re-approached the vehicle after telling him
     about the odor of marijuana, and I asked him if he would step
     out of the vehicle.

     [The Commonwealth:] Did he step out of the vehicle?

     [Officer Lucas:] He did.

     [The Commonwealth:] After he got out of the vehicle, what
     happened?

     [Officer Lucas:] I advised him again of the odor of marijuana,
     and he stated that he did smoke marijuana earlier inside his
     vehicle, but he stated that he did not believe there was anything
     still in the vehicle, and he stated there was nothing on him as far
     as the marijuana.

     [The Commonwealth:] Did he say anything else?

     [Officer Lucas:] He did.  I didn’t ask him any more
     questions, and he uttered, the only thing in the car was
     [his] gun.

     [The Commonwealth:] At that point, once he indicated that there
     was a gun in the vehicle, did you ask him another question?

     [Officer Lucas:] I did. I asked him if he owned a valid permit to
     carry a concealed firearm.

                                      …

     He stated no.

Id. at 7-8 (emphasis added).        Officer Lucas explained that he placed

Johnson into custody based on Johnson’s admissions about the gun and his

lack of a permit to carry that weapon. Id. at 8. The officer then searched

the vehicle and “removed a firearm from behind the passenger seat where

[Johnson had] said [it] was.” Id.

     On cross-examination of Officer Lucas, defense counsel and the officer

had the following exchange:



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        [Defense Counsel:] So you come back to the vehicle, and at this
        point you ask [Johnson] to get out, correct?

        [Officer Lucas:] I requested that he step out, yes.

                                               …

        [Defense Counsel:] At this point, you’re continuing           your
        investigation into the smell of marijuana, right?

        [Officer Lucas:] Correct.

        [Defense Counsel:] And marijuana you know is not legal, so
        you’re asking him about what’s potentially an illegal substance in
        his car, correct?

        [Officer Lucas:] Correct.

        [Defense Counsel:] At this point, before you ask him any
        questions, did you tell him he had the right to remain silent, give
        him any Miranda[1] warnings, anything like that?

        [Officer Lucas:] No, not at this time.

        [Defense Counsel:] You asked him about the marijuana?

        [Officer Lucas:] I advised him that I smelled the odor of
        marijuana.

                                               …

        [Defense Counsel:] He said what you previously said about him
        smoking marijuana in the car, right?

        [Officer Lucas:] That’s correct.

        [Defense Counsel:] He had no appearance that he was under the
        influence at that time, right?

        [Officer Lucas:] Correct.

        [Defense Counsel:] At that point in time, I’m assuming you’re
        asking him -- you’re continuing to ask him, you know, can we
        look through, right?

____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).



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     [Officer Lucas:] At that point in time, I was going to
     perform a sweep of the vehicle because of the odor of
     marijuana.

     [Defense Counsel:] But you tell him this, right?

     [Officer Lucas:] Yes.

     [Defense Counsel:] At that point you ask him, anything we
     need to know about the car before we do the sweep; fair
     to say?

     [Officer Lucas:] Fair to say.

     [Defense Counsel:] At that point, he says, just to let you
     know, my gun is in the car, correct?

     [Officer Lucas:] Correct.

Id. at 15-17 (emphasis added).

     The trial court concluded that Officer Lucas’ direct-examination and

cross-examination testimony differed significantly regarding what Johnson

said to the officer after he stepped out of the vehicle. See TCO at 4. In the

court’s Rule 1925(a) opinion, it summarized the pertinent differences in the

officer’s testimony, and explained the credibility determinations it made

based on those inconsistencies, as follows:

           On direct exam[ination], Officer Lucas said Johnson … said
     “he did not believe that there was anything still in the vehicle,”
     and that “there was nothing on him” and, “the only thing in the
     car was [his] gun[.”] On cross-examination, about the same
     sequence of events, Officer Lucas said he “was going to perform
     a sweep of the vehicle[,”] Johnson was told this, he asked
     Johnson if we need to know anything about the car before we do
     the sweep, to which Johnson replied that he had a gun in the
     car.

            There are significant differences in these two stories.
     Initially, Officer Lucas portrayed Johnson’s comment about a
     gun’s presence as almost an after thought [sic] of Johnson’s. On


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      cross, the comment about a gun was in direct response to a
      question posed by Officer Lucas. The lack of candor by [Officer]
      Lucas is significant. Support comes from [Officer] Lucas’ word
      choice. He prefaced his direct testimony with legalese. When
      asked if Johnson said anything else, the officer’s response was -
      he did.     But, [Officer] Lucas did not stop there.       Despite
      answering the question in that short declarative way[] (“He
      did”), Officer Lucas added: “I didn’t ask any more questions, and
      he uttered…[.]” Why was it important to []reference the lack of
      questioning unless the officer felt he was crossing the line. And,
      then he says, Johnson “uttered[.”]          Who talks like that?
      Certainly not one who is seeking to be believed by this jurist.
      Bottom line, the [c]ourt believes what happened after Johnson
      exited the car was what was elicited on cross-examination. The
      [c]ourt found that Johnson was asked about the
      marijuana and was told that a search [or] “sweep” of his
      vehicle was going to take place. That is all. The [c]ourt
      does not believe that Johnson said: “he did not believe that
      there was anything still in the vehicle[,”] “there was nothing on
      him” and “the only thing in the car was [his] gun.”

Trial Court Opinion (TCO), 1/25/16, at 4-5 (emphasis added).

      On appeal, the Commonwealth interprets the trial court’s ruling as

finding credible Officer Lucas’ testimony that he told Johnson a search of the

car was going to be conducted, and that Johnson revealed, during

subsequent questioning by the officer, that a gun was in the car.          The

Commonwealth then contends that the trial court erroneously disregarded

Johnson’s statements about the gun and his lack of a permit because Officer

Lucas did not provide Johnson with Miranda warnings prior to Johnson’s

making those statements.     According to the Commonwealth, Johnson was

not under arrest when Officer Lucas questioned him and, therefore, no

Miranda warnings were required. Consequently, the Commonwealth argues

that the court should have considered Johnson’s statements about the gun,



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and found that Officer Lucas had probable cause to search Johnson’s vehicle

for that weapon.

     Johnson, however, interprets the trial court’s ruling differently.     He

maintains that the court’s opinion demonstrates that it did not believe any

of Officer Lucas’ testimony about the gun. More specifically, Johnson avers

that the trial court wholly disbelieved Officer Lucas’ claims that Johnson

told the officer there was a gun in the vehicle prior to the search.        In

support, Johnson relies on the above-emphasized portion of the court’s

opinion. See Johnson’s Brief at 11.

     We agree with Johnson that the language in the court’s opinion

indicates that the court completely rejected Officer Lucas’ testimony

pertaining to Johnson’s statements about the gun. In particular, the court

explicitly stated that all it believed was that Officer Lucas asked Johnson

about the marijuana and told Johnson he would be conducting a ‘sweep’ of

the vehicle.   See TCO at 4 (“The [c]ourt found that Johnson was asked

about the marijuana and was told that a search [or] ‘sweep’ of his vehicle

was going to take place. That is all.”) (emphasis added).

     We also stress that nothing in the court’s opinion indicates that it ruled

in the manner suggested by the Commonwealth, i.e., that the court believed

that Johnson made the gun comments in response to Officer Lucas’

questioning, but it did not consider those statements because Miranda

warnings were not provided to Johnson. At no point in the court’s opinion

does it mention Miranda, let alone examine the implications of that decision

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to the facts at hand.    Instead, following the court’s discussion of Officer

Lucas’ lack of credibility, quoted supra, the court assesses only whether

Officer Lucas possessed probable cause to search Johnson’s vehicle for

marijuana. See TCO at 6-7.      The absence of any Miranda analysis by the

court bolsters our rejection of the Commonwealth’s interpretation of the

court’s ruling. Instead, the record supports Johnson’s claim that the court

completely rejected Officer Lucas’ testimony that Johnson said there was a

gun in the car. We cannot disturb the trial court’s credibility determination

on appeal. See Krisko, 884 A.2d at 299.

     Moreover, the Commonwealth has also not convinced us to reverse the

court’s conclusion that Officer Lucas did not possess probable cause to

search Johnson’s vehicle, premised only on the officer’s smelling an odor of

marijuana.    We recognize that this Court has held “that an odor [of

marijuana] may be sufficient to establish probable cause for a search of an

automobile, which had been legitimately stopped for an unrelated vehicle

code violation.” Commonwealth v. Stoner, 710 A.2d 55, 59 (Pa. Super.

1998) (emphasis added) (citing Commonwealth v. Stoner, 344 A.2d 633

(Pa. Super. 1975)).     Here, however, the court found that Officer Lucas’

smelling marijuana was not sufficient, in and of itself, to provide him with

probable cause to search Johnson’s vehicle.     See TCO at 6.      The court

emphasized that “Officer Lucas said Johnson did not appear to be under the

influence of the drug[,]” which was “consistent with Johnson’s statement

that at some previous time he had smoked marijuana in the car.” Id. The

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court also noted that Officer Lucas did not observe anything inside the

vehicle that would suggest the presence of marijuana, such as use

paraphernalia or “remnants of recent use.” Id. Ultimately, the trial court

found that the “odor, in the absence of other incriminating circumstances,

[was] not sufficient to establish probable cause.” Id. at 7.

      The Commonwealth offers no argument to challenge the court’s

conclusion that Officer Lucas did not possess probable cause based only on

his smelling an odor of marijuana.       Instead, the Commonwealth solely

argues that the court erred by not considering Johnson’s statements about

the gun, which, according to the Commonwealth, provided Officer Lucas with

probable cause to search Johnson’s car for the firearm.        For the reasons

stated supra, we reject the Commonwealth’s interpretation of the trial

court’s ruling, and decline to overturn the court’s credibility determinations

regarding Officer Lucas’ testimony.   Because the Commonwealth does not

provide any meaningful challenge to the court’s finding that no probable

cause existed based only on Officer Lucas’ smelling an odor of marijuana,

the Commonwealth has not demonstrated that the court’s order granting

Johnson’s motion to suppress the gun should be reversed.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




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