J-A24006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: K.J.V., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: K.J.V., A MINOR                 :
                                               :
                                               :
                                               :
                                               :   No. 607 MDA 2018

             Appeal from the Dispositional Order February 13, 2018
                In the Court of Common Pleas of Dauphin County
              Juvenile Division at No(s): CP-22-JV-0000547-2017


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                               FILED DECEMBER 17, 2018

        K.J.V. appeals from the dispositional order entered February 13, 2018,

in the Juvenile Division of the Dauphin County Court of Common Pleas. The

juvenile court adjudicated K.J.V. delinquent on charges of possession of a

small amount of marijuana and possession of drug paraphernalia,1 and

entered a dispositional order placing her on formal probation.        On appeal,

K.J.V. argues the court erred in denying her motion to suppress evidence

recovered during a warrantless search of her vehicle. For the reasons below,

we affirm.

        The facts underlying the adjudication of delinquency are summarized by

the juvenile court as follows:


____________________________________________


1   See 35 P.S. §§ 780-113(a)(31) and (32), respectively.
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            On July 1, 2017, at 7:15 a.m., Officer Michael McCormick of
     the Derry Township Police Department, who has been a police
     officer since 2009, was sitting in a marked police vehicle on the
     median of Hersheypark Drive and Old West Chocolate Avenue.
     Officer McCormick observed a black Acura sedan come through a
     curve and it appeared to be going above the posted 35 MPH speed
     limit. The Acura was unable to maintain its lane of travel as it
     rounded the curve. As the vehicle got closer, the officer noticed
     the car had extremely dark window tint, by his estimation darker
     than the tint allowed by law. Officer McCormick pulled off the
     median, activated his emergency lights, and the car stopped.

            Officer McCormick approached the driver side window of the
     vehicle, identified himself, and outlined the reason for the stop.
     The officer obtained the driver’s license of the driver, which
     identified her as [K.J.V.]. Officer McCormick testified, “While
     speaking with [K.J.V.], I could smell the strong odor of unburnt
     marijuana coming from inside the vehicle.” The officer outlined
     his training and experience. Officer McCormick had [K.J.V.] get
     out of the car and conducted a search. In the center console he
     located numerous pieces and stems of marijuana. In the ashtray
     he found a burnt marijuana cigarette and on the passenger floor
     he found a sandwich bag containing small pieces of marijuana
     residue. [K.J.V.] was then charged with unlawful possession of a
     small amount of marijuana and unlawful possession of drug
     paraphernalia, as well as summary traffic violations.

Juvenile Court Opinion, 6/11/2018, at unnumbered 3-4 (record citations

omitted).

     On February 6, 2018, K.J.V. filed a motion to suppress the evidence

recovered during the warrantless search.    The juvenile court conducted a

suppression hearing on February 13, 2018, following which it denied the

motion. The case proceeded immediately to an adjudication hearing. The

court adjudicated K.J.V. delinquent on the drug possession and paraphernalia

charges, but found her not guilty of the traffic offenses. The same day, the




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juvenile court placed K.J.V. on formal probation.           K.J.V. filed a post-

dispositional order, which the court denied, and this timely appeal followed.2

       K.J.V.’s sole issue on appeal challenges the juvenile court’s denial of her

suppression motion.         Specifically, she insists Officer McCormick did not

possess the requisite probable cause to search her vehicle based solely on the

purported odor of unburnt marijuana.3 See K.J.V.’s Brief at 5.

       Our well-settled standard of review is as follows:

              Our standard of review in addressing a challenge to the
       denial of a suppression motion is limited to determining whether
       the suppression court’s factual findings are supported by the
       record and whether the legal conclusions drawn from those facts
       are correct. Because the Commonwealth prevailed before the
       suppression court, we may consider only the evidence of the
       Commonwealth 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 suppression court’s factual findings are
       supported by the record, we are bound by these findings and may
       reverse only if the court’s legal conclusions are erroneous. The
       suppression court’s legal conclusions are not binding on an
       appellate court, whose duty it is to determine if the suppression
       court properly applied the law to the facts. Thus, the conclusions
       of law of the courts below are subject to our plenary review.

       Moreover, appellate courts are limited to reviewing only the
       evidence presented at the suppression hearing when examining a
       ruling on a pre-trial motion to suppress.



____________________________________________


2 On April 17, 2018, the juvenile court ordered K.J.V. to file a concise
statement of errors complained of on appeal. K.J.V. complied with the court’s
directive, and filed a concise statement on May 2, 2018.

3 K.J.V. does not challenge the basis for Officer McCormick’s stop of her
vehicle.


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Commonwealth v. Freeman, 150 A.3d 32, 34–35 (2016) (quotation

omitted), appeal denied, 169 A.3d 524 (Pa. 2017).

     Generally, “a search conducted without a warrant is presumed to be

unreasonable unless it can be justified under a recognized exception to the

search warrant requirement.” Commonwealth v. Davis, 188 A.3d 454, 457

(Pa. Super. 2018) (citation omitted).   One such exception is when police

possess probable cause to search a lawfully stopped motor vehicle. See id.

In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (plurality opinion), the

Pennsylvania Supreme Court adopted the federal automobile exception,

holding “[t]he prerequisite for a warrantless search of a motor vehicle is

probable cause to search; no exigency beyond the inherent mobility of a motor

vehicle is required.” Id. at 138. Furthermore,

     [p]robable cause exists where the facts and circumstances within
     the officers’ knowledge are sufficient to warrant a person of
     reasonable caution in the belief that an offense has been or is
     being committed. With respect to probable cause, [our Supreme
     C]ourt adopted a “totality of the circumstances” analysis
     in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921, 926
     (1985) (relying on Illinois v. Gates, 462 U.S. 213, [103 S.Ct.
     2317, 76 L.Ed.2d 527] ( 1983)). The totality of the circumstances
     test dictates that we consider all relevant facts, when deciding
     whether [the officer had] probable cause.

Commonwealth v. Harris, 176 A.3d 1009, 1023 (Pa. Super. 2017), quoting

Commonwealth v Luv, 735 A.2d 87, 90 (Pa. 1999).

     In the present case, K.J.V., insists the odor of marijuana that Officer

McCormick purportedly smelled, did not provide him with the requisite

probable cause to search her vehicle. See K.J.V.’s Brief at 13-16. Rather,


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she relies on this Court’s statement in Commonwealth v. Trenge, 451 A.2d

701, 708 (Pa. Super. 1982), that “odors without more in the usual case will

not provide probable cause.”     K.J.V. emphasizes there is no “plain smell”

exception to the warrant requirement, and in those cases in which an officer

cited an odor of marijuana as cause for the search, there were also other

factors present. See Commonwealth v. Stainbrook, 471 A.2d 1223, 1225

(Pa. Super. 1984) (officer detected the odor of burning marijuana, “in addition

to observing [] furtive behavior of the [defendant] who appeared to be stuffing

something under his seat”); Trenge, supra, 451 A.2d at 703 (officer detected

strong odor of burning marijuana, and noticed the end of a pipe stem

protruding from defendant’s pocket); Commonwealth v. Stoner, 344 A.2d

633, 634 (Pa. Super. 1975) (officer detected “a very distinct odor of marijuana

about the interior of the vehicle” as he reached in to secure a firearm from the

glove compartment).     K.J.V. also asserts a “plain smell” exception would

constitute “bad policy” because “a police officer’s alleged detection of an odor

is less reliable, more subjective, and also open to abuse.” K.J.V.’s Brief at 23.

      Here, the juvenile court addressed this claim as follows:

      An odor may be sufficient to establish probable cause for a search
      warrant. Commonwealth v. Stainbrook, 324 Pa.Super. 410, 415,
      471 A.2d 1223, 1225 (1984), citing U.S. Supreme Court cases.
      In Commonwealth v. Stoner, 236 Pa.Super. 161, 344 A.2d 633
      (1975), the Superior Court stated that the rationale used to
      establish probable cause in those Supreme Court cases applies
      equally well when determining the validity of a search of a
      movable vehicle. In Stoner, the Court analogized a “plain smell”
      concept with that of plain view and held that where an officer is
      justified in being where he is, his detection of the odor of


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      marijuana is sufficient to establish probable cause. Id. at 636.
      Likewise, officers who detected the strong odor of marijuana
      emanating from a trailer had probable cause to obtain a search
      warrant. Commonwealth v. Johnson, 68 A.3d 930 (Pa.Super.
      2013).

            The prerequisite for a warrantless search of a motor vehicle
      is probable cause to search; no exigency beyond the inherent
      mobility of a motor vehicle is required. Commonwealth v. Gary,
      625 Pa. 183, 242, 91 A.3d 102, 138 (2014) (plurality opinion).
      Gary represented a departure from prior Commonwealth
      jurisprudence which required either an exigency or search warrant
      for a valid automobile search. [K.J.V.] cites Commonwealth v.
      Trenge, 305 Pa.Super. 386, 451 A.2d 701 (1982) for its
      proposition that “odors without more in the usual case will not
      provide probable cause.” Trenge does not, however, state that
      odors alone cannot provide probable cause. Also, as noted above,
      numerous other cases hold that an odor alone can provide
      probable cause.

            Here, Officer McCormick made a lawful traffic stop and
      smelled the odor of marijuana when he spoke to the juvenile. That
      odor provided him with probable cause to believe marijuana was
      located in the car, under a “plain smell” analysis or with a
      commonsense analysis of the situation. Pursuant to Gary, he
      conducted a lawful, warrantless search of the car and found
      marijuana and paraphernalia. As such, the motion to suppress
      was properly denied.

Juvenile Court Opinion, 6/11/2018, at unnumbered 4-5.

      We agree with the rationale of the juvenile court. While we recognize

many of the “plain smell” decisions involved factors in addition to the smell of

marijuana, we find that under the totality of the circumstances presented

here, Officer McCormick had probable cause to search K.J.V.’s vehicle. The

officer conducted a proper traffic stop when he observed K.J.V. driving too

fast for a sharp curve, and traveling in a vehicle with “extremely dark window

tint.” N.T., 2/13/2018, at 6. While he was speaking to K.J.V. and obtaining



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her driver’s license, Officer McCormick smelled “the strong odor of unburnt

marijuana coming from inside the vehicle.”        Id. at 7.    He explained he

identified the smell “[t]hrough [his] training and experience in the police

academy, and [he had] also been involved in hundreds of arrests throughout

[his eight-year] career.” Id. See also id. at 5 (Officer McCormick testifying

he has a “police K-9 trained in narcotics and patrol”).       The juvenile court

specifically determined the officer’s testimony was credible, particularly

because the officer testified he smelled “raw marijuana … not burning

marijuana.” See id. at 25.

      This Court’s decision in Stoner, supra, is particularly instructive. In

that case, an officer validly stopped the defendant on the turnpike for a traffic

violation. When the officer asked the defendant for his paperwork, one of the

passengers opened the glove compartment and a pistol dropped out. See

Stoner, supra, 344 A.2d at 633. The officer ordered all of the occupants out

of the vehicle and placed them under arrest. When he returned to the car to

retrieve the pistol, he “noted a very distinct odor of marijuana in the interior

of the vehicle[,]” and observed marijuana seeds and leaves throughout the

interior. Id. at 634. However, the officer “was certain the odor was too strong

to be coming from the small amount of drugs he could see.”              Id.   He

subsequently searched the trunk of the vehicle, where he recovered 150

pounds of freshly cut marijuana. See id.




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     On appeal, a panel of this Court first noted that the marijuana seeds

and leaves in plain view were “sufficient to establish probable cause for the

search of the car.” Id. at 635. Nevertheless, the panel opined:

            However, we need not base our decision solely on the
     evidence in plain view. Trooper Williams indicated additionally
     that he noted a very strong odor of marijuana coming from inside
     the car. He stated that the odor was, “(v)ery strong, it was similar
     to standing in the center of a field of marijuana.” Officer Williams
     testified that he had, in fact, stood in a field of marijuana while
     serving as a Military Policeman in Vietnam. He also indicated that
     freshly cut marijuana emits a stronger odor than does dried
     marijuana.

            The Supreme Court of the United States has held that an
     odor may be sufficient to establish probable cause for the issuance
     of a search warrant. United States v. Ventresca, 380 U.S. 102,
     85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Johnson v. United States,
     333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948). This position has
     been followed by other federal courts. United States v. Curran,
     498 F.2d 30 (9th Cir. 1974); United States v. Brown, 487 F.2d
     208 (4th Cir. 1973); United States v. Pond and Fanelli, 382
     F.Supp. 556 (S.D. New York 1974). While these cases have been
     concerned with securing warrants for the search of a house, the
     rationale used to establish probable cause applies equally well
     when determining the validity of a search of a movable vehicle.

           The court in United States v. Curran, supra, discussed
     establishing probable cause from the existence of odors.

        ‘The government touches upon the theory sometimes
        advanced that the courts should acknowledge a ‘plain smell’
        concept analogous to that of plain sight. . . . However,
        before the officer could rely upon his smelling marijuana as
        probable cause, he would have to justify his presence at the
        place . . . where he detected the odor, just as he would have
        to justify his presence at the place from which he saw the
        contraband in order to rely on the doctrine of plain view.’

     498 F.2d at 33.

           In the instant case, there is no doubt that Trooper Williams
     was justifiably in the position from which he detected the odor. It

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       would have been a dereliction of duty for him to ignore the obvious
       aroma of an illegal drug which he was trained to identify.

              We are impressed by United States v. Martinez-
       Miramontes, 494 F.2d 808 (9th Cir. 1974), a case nearly on point
       with the case at bar. In Martinez-Miramontes, a border patrol
       officer observed two persons walking away from a parked car, and
       stopped to question them. While the officer was questioning the
       individuals, a customs agent also stopped. The customs agent
       walked around the car, sniffed the crevice where the trunk closes,
       and detected an odor of marijuana. The trunk was searched and
       marijuana was found. In upholding the validity of the warrantless
       search of the vehicle as being based on adequate probable cause,
       the court stated:

          ‘We find no distinction of substance between leaning down
          and turning the head to look inside a motor vehicle to see
          articles which then come within the ‘plain view’ doctrine,
          (citation omitted), and leaning down and sniffing to detect
          the odor of marijuana.

          ‘The appellant relinquished his reasonable expectation of
          privacy in the trunk of his automobile when he loaded it with
          442 pounds of an odorous weed. By the use of ordinary
          senses while standing in a place where the officer had a right
          to be standing, he could then detect the nature of the load.’

       494 F.2d at 810.

       We believe that the rationale employed by the federal court in
       California is correct and that it is consistent with interpretations of
       our Supreme Court, and adopt it in the Commonwealth.

Id. at 635–636. Under this analysis, Officer McCormick’s search of K.J.V.’s

vehicle was also proper.4

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4 We note the Commonwealth relies solely on the Pennsylvania Supreme
Court’s decision in Gary, supra. See Commonwealth’s Brief at unnumbered
5. However, the Gary Court focused on whether to adopt the federal
automobile exception for warrantless vehicle searches, rather than a
determination of whether the officer’s smell of marijuana provided probable
cause for the search. Indeed, the Court specifically stated, “there is no dispute



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       Furthermore, we emphasize that the motor vehicle violations with which

K.J.V. was charged were all summary offenses.       See 75 Pa.C.S. §§ 3309

(failure to stay in single lane), 4107(b)(2) (operating a vehicle with unsafe

window tint), and 4703(a) (operating a vehicle without a valid inspection

certificate). Therefore, had Officer McCormick not conducted the search, he

would have been obliged to permit K.J.V. to leave in a vehicle in which he

detected a strong odor of unburnt marijuana. The juvenile court heard Officer

McCormick’s testimony and adjudged him credible.       Accordingly, we agree

“the facts and circumstances within [Officer McCormick’s] knowledge [were]

sufficient to warrant a person of reasonable caution in the belief that an

offense has been or is being committed.” Harris, supra, 176 A.3d at 1023.

Therefore, K.J.V. is entitled to no relief.

       Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/17/2018

____________________________________________


that probable cause exists to search [the defendant’s] motor vehicle.” Gary,
supra, 91 A.3d at 138. Moreover, in that case, after the officer detected the
odor of marijuana, he asked the defendant “if there was anything in the vehicle
that the officers ‘need [to] know about[,]” and the defendant responded that
“there was some ‘weed.’” Id. at 104. Therefore, the officer had probable
cause to search based on the defendant’s admission that he possessed illegal
drugs, as well as the smell of marijuana.

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