J-S80044-18

                                   2019 PA Super 154


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    TRAVIS SCOTT                               :   No. 3994 EDA 2017

                    Appeal from the Order November 15, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0002581-2017


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

OPINION BY NICHOLS, J.:                                   FILED MAY 10, 2019

       The Commonwealth appeals from the order granting Appellee Travis

Scott’s suppression motion.1 The Commonwealth asserts that the trial court

erred in concluding that police lacked probable cause to search the trunk of

Appellee’s vehicle. We affirm.

       The trial court summarized the relevant facts of this case as follows:

       A suppression hearing was held on October 30, 2017. [The]
       Commonwealth called Police Officer Louis Kerr to testify. He was
       the only witness in this proceeding. Officer Kerr has three and a
       half years of experience as a police officer, and is assigned to the
       35th District.

       Officer Kerr and his partner, Officer Tamamoto, were traveling in
       a marked police car, and on February 1, 2017 around 10:00 p.m.,
       they were in the vicinity of 5800 North 16th Street in Philadelphia,
____________________________________________


1 The Commonwealth certified that the suppression order terminated or
substantially handicapped the prosecution of this matter at the time it filed its
notice of appeal from this interlocutory order.      See Notice of Appeal,
12/11/17; Pa.R.A.P. 311(d).
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      Pennsylvania. According to Officer Kerr, this area is a high crime
      area where numerous shootings and robberies have occurred.

      On this night, the officers noticed a 2000 Nissan Altima traveling
      north on 16th [Street] with a malfunctioning center brake light.
      The officers initiated a traffic stop of the Nissan; [Appellee] was
      the driver, and sole occupant, of the Nissan.           During the
      investigation, it was established that [the] car was registered to
      [Appellee’s] mother . . . .

      Officer Kerr testified that he could smell the strong odor of burnt
      marijuana when he approached the Nissan, and saw that smoke
      was still emanating from the vehicle. He also saw [Appellee]
      attempt to place a blunt in the center console. The officers
      ordered [Appellee] to exit the vehicle, and the officers patted him
      down, but found nothing. [Appellee] was then placed in the back
      seat of the police car, but he was not handcuffed.

      The officers then proceeded to search the passenger compartment
      of [Appellee’s] vehicle. The officers did not ask for [Appellee’s]
      consent to search the vehicle. In the center console, Officer Kerr
      recovered the blunt he saw [Appellee] place there. In the driver’s
      side door, the officers found a jar with an orange lid that contained
      alleged marijuana. The officers also found a black ski mask in the
      back seat area of [the] car. At this time, the officers could only
      smell the odor of burnt marijuana, the smoke from which was still
      present in the vehicle.

Trial Ct. Op., 1/30/18, at 2-3 (record citations omitted).

      Officer Kerr acknowledged that the smell from the blunt continued to

linger in the vehicle as he continued his search:

      [Commonwealth’s counsel:] When you got to the back seat and
      found the ski mask, could you still smell marijuana in the car?

      [Officer Kerr:] Yeah. Like I said, once we came up to the vehicle
      at the very beginning, there was still smoke omitting [sic] from
      the vehicle, so it was just smoked. The smell wasn’t going to go
      away.

      [Commonwealth’s counsel:] And that smell was throughout the
      car?

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       [Officer Kerr:] That’s correct.

N.T. Suppression Hr’g, 10/30/17, at 15.

       The officers then searched the trunk of [Appellee’s] vehicle;
       therein Officer Kerr found a loaded .38 caliber revolver wrapped
       up in clothes. Officer Kerr did not investigate [Appellee] for
       possible DUI, nor did Officer Kerr request a drug sniffing dog to
       come to the scene.

Trial Ct. Op. at 3 (record citations omitted).

       On March 28, 2017, the Commonwealth filed a criminal information

charging Appellee with carrying a firearm without a license, carrying a firearm

on public streets in Philadelphia, carrying a loaded weapon, possession of a

small amount of marijuana, and the summary traffic offense of operating a

motor vehicle while consuming a controlled substance.2

       The trial court conducted a hearing on October 30, 2017, at which time

Appellee litigated a motion to suppress the firearm recovered from the trunk

of his vehicle. Conceding that the officers possessed reasonable suspicion to

conduct a traffic stop, Appellee argued that the officers conducted an illegal,

warrantless search of the trunk. N.T. Suppression Hr’g, 10/30/17, at 28, 30.

Appellee declined to challenge the officers’ recovery of the marijuana from the

passenger compartment of his vehicle. Id. at 30.

       On November 15, 2017, the trial court announced its findings of fact

and conclusions of law in open court. The court determined that the police

“failed to articulate any facts that could have given them probable cause to
____________________________________________


218 Pa.C.S. §§ 6106, 6108, 6106.1, 35 P.S. § 780-113(a)(31), and 75 Pa.C.S.
§ 3809, respectively.

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use the key to open the trunk, search the trunk, and then the clothing which

contained the firearm at issue in this case.”       N.T. Hr’g, 11/15/17, at 10.

Consequently, the court granted Appellee’s suppression motion.3

       On December 11, 2017, the Commonwealth timely filed a notice of

appeal and a voluntary Pa.R.A.P. 1925(b) statement. The trial court filed a

responsive opinion pursuant to Pa.R.A.P. 1925(a), explaining that there was

“no credible testimony or other evidence to suggest that it was reasonable for

the officers to continue searching the vehicle for drugs after they recovered

both the blunt and the jar of marijuana” from the passenger compartment of

Appellee’s vehicle. Trial Ct. Op. at 7.

       On appeal, the Commonwealth raises the following question for our

review: “Did the trial court err in concluding that, where the police searched

a car with probable cause and found drugs in the passenger compartment,

they were not permitted to search the trunk?” Commonwealth’s Brief at 4.

       The Commonwealth relies on Commonwealth v. Gary, 91 A.3d 102

(Pa. 2014) (plurality), for the proposition that the Pennsylvania Supreme

Court has adopted the federal automobile exception to the warrant

requirement.      Id. at 10.       Under the federal automobile exception, the

Commonwealth notes that “[i]f probable cause justifies the search of a lawfully

____________________________________________


3 Although Appellee did not seek to suppress the marijuana recovered from
the passenger compartment of his vehicle, the court announced, “[W]e deny
the motion to suppress with respect to marijuana, but grant the motion with
respect to the gun found inside the clothing inside the locked trunk.” N.T.
Hr’g, 11/15/17, at 11.

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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 11 (quoting

United States v. Ross, 456 U.S. 798, 825 (1982)).           The Commonwealth

emphasizes the trial court’s finding that the officers possessed probable cause

to search the passenger compartment of Appellee’s vehicle based upon the

smell of burnt marijuana inside the vehicle.     Id. at 10.   Based upon the

existence of probable cause, as well as the officers’ recovery of the blunt and

an additional jar of marijuana from the passenger compartment, the

Commonwealth insists that “the officers were entitled to search anywhere in

the car, including the trunk, for additional” drugs.4 Id.

       When reviewing an order granting a suppression motion,

       we must determine whether the record supports the trial court’s
       factual findings and whether the legal conclusions drawn from
____________________________________________


4 The Commonwealth also notes, “Cases from other jurisdictions have reached
similar conclusions.” Commonwealth’s Brief at 17 (citing United States v.
Turner, 119 F.3d 18 (D.C. Cir. 1997), United States v. Loucks, 806 F.2d
208 (10th Cir. 1986), and United States v. Burnett, 791 F.2d 64 (6th Cir.
1986)). Nevertheless, we observe that not all jurisdictions are in complete
agreement. See, e.g., United States v. Wald, 216 F.3d 1222, 1228-29
(10th Cir. 2000) (holding odor of burnt methamphetamine did not provide
officer with probable cause to search the trunk of the defendant’s car, and the
officer’s additional observations did not amount to “corroborating evidence of
contraband” to allow a trunk search); Wimberly v. Superior Court, 547 P.2d
417, 424 (Cal. 1976) (holding that erratic driving, a plain view observation of
marijuana seeds and pipe, and the odor of burnt marijuana supported search
of the passenger compartment, but it was unreasonable to infer that additional
contraband was hidden in the trunk); State v. Schmadeka, 38 P.3d 633, 638
(Idaho Ct. App. 2001) (recognizing a distinction between the odor of burnt
marijuana and raw marijuana, and holding that the odor of burnt marijuana
establishes probable cause for a warrantless search of the vehicle’s passenger
compartment only).

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      those facts are correct. We may only consider evidence presented
      at the suppression hearing. In addition, because the defendant
      prevailed on this issue before the suppression court, we consider
      only the defendant’s evidence and so much of the
      Commonwealth’s evidence as remains uncontradicted when read
      in the context of the record as a whole. We may reverse only if
      the legal conclusions drawn from the facts are in error.

Commonwealth v. Hemingway, 192 A.3d 126, 129 (Pa. Super. 2018)

(citation omitted).

      “The Fourth Amendment, by its text, has a strong preference for

searches conducted pursuant to warrants.” Commonwealth v. Kemp, 195

A.3d 269, 275 (Pa. Super. 2018) (citation omitted).     In Gary, however, a

majority of the Pennsylvania Supreme Court adopted the federal automobile

exception to the warrant requirement:

      Therefore, we hold that, in this Commonwealth, the law governing
      warrantless searches of motor vehicles is coextensive with federal
      law under the Fourth Amendment.            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. The consistent and firm requirement for probable cause
      is a strong and sufficient safeguard against illegal searches of
      motor vehicles, whose inherent mobility and the endless factual
      circumstances that such mobility engenders constitute a per se
      exigency allowing police officers to make the determination of
      probable cause in the first instance in the field.

Gary, 91 A.3d at 138.

      “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 (Pa. Super. 1996)

(citation omitted); accord Gary, 91 A.3d at 104. “Probable cause does not

demand the certainty we associate with formal trials. Rather, a determination


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J-S80044-18



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.” Commonwealth v. Manuel, 194 A.3d 1076,

1081 (Pa. Super. 2018) (en banc) (quoting Commonwealth v. Otterson,

947 A.2d 1239, 1244 (Pa. Super. 2008)).           “[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. Copeland, 955 A.2d 396, 400 (Pa. Super. 2008) (internal

quotation marks and citation 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 (1965); Johnson v. United States, 333 U.S. 10 (1948)).               “In

Stoner, we 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 marijuana is sufficient to establish probable cause.” Commonwealth v.

Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984) (citations omitted).

      Regarding the search of an automobile, “[t]he scope of a warrantless

search of an automobile . . . is not defined by the nature of the container in

which the contraband is secreted.”      Ross, 456 U.S. at 824.      “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. “It follows from the foregoing

that if a police officer possesses probable cause to search a motor vehicle, he

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may then conduct a search of the trunk compartment without seeking to

obtain probable cause relative to the particularized area.” Commonwealth

v. Bailey, 545 A.2d 942, 944 (Pa. Super. 1988).

      Instantly, the trial court evaluated Officer Kerr’s testimony and

determined that the Commonwealth failed to establish probable cause to

believe that there was contraband in the trunk.

      Based upon the odor of burnt marijuana emanating from the
      vehicle, we concluded that the police officers had probable cause
      to search the passenger compartment of the car, including any
      containers therein, for the burnt marijuana.         The officers
      recovered a jar of marijuana as well as a blunt, which was the
      source of the odor of burnt marijuana the officers had smelled.

      The search of the trunk and its contents presents an entirely
      different question. The Commonwealth adduced no credible
      testimony or other evidence to suggest that it was reasonable for
      the officers to continue searching the vehicle for drugs after they
      recovered both the blunt and the jar of marijuana. The officers
      could only smell burnt marijuana as a result of [Appellee] having
      just smoked a blunt in the car and therefore they could not discern
      the odor of fresh marijuana that would lead them to reasonably
      believe additional narcotics had been concealed within the vehicle.
      The officers did not request the assistance of a drug sniffing dog
      to assist them in locating additional, unconsumed drugs in the
      vehicle.

Trial Ct. Op. at 7-8.

      We agree that Officer Kerr did not establish sufficient probable cause to

continue to search trunk of Appellee’s vehicle.    See Manuel, 194 A.3d at

1081. We emphasize the officer’s testimony that the blunt “was just smoked,”

and “[t]he smell wasn’t going to go away.” See N.T. Suppression Hr’g at 15.

Here, the lingering odor of burnt marijuana was consistent with the



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J-S80044-18



contraband that the officer observed in plain view. Compare Stoner, 344

A.2d at 635 (holding that probable cause supported the officer’s search of the

trunk of the defendant’s vehicle where the officer noted a very strong odor of

freshly cut marijuana, he observed marijuana seeds and leaves in the

passenger compartment, and he was certain that the odor was too strong to

be coming from the marijuana that was in plain view).5

       Further, the record does not provide any other facts that could have

supported a belief that additional contraband was located in the trunk. The

officer did not testify that Appellee fidgeted or displayed nervous behavior.

Rather, the officer’s only testimony about Appellee’s demeanor was that he

looked “like a deer in headlights” and “appeared like he didn’t know what to

do. . . .” See N.T. Suppression Hr’g at 15. In the context of a traffic stop,

such a demeanor is not unusual. See Commonwealth v. Cartagena, 63

A.3d 294, 305 (Pa. Super. 2013) (en banc) (explaining, “It is the rare person

who is not agitated to some extent when stopped by police, even if the driver

is a law-abiding citizen who simply failed to notice or repair a broken taillight

. . . .”).

       Although Appellee made a furtive movement, the officer explained that

Appellee reached toward the center console only. See N.T. Suppression Hr’g

____________________________________________


5 Additionally, the officer in Stoner testified that “the odor was, ‘very strong,
it was similar to standing in the center of a field of marijuana.’” Stoner, 344
A.2d at 635. Significantly, the officer had first-hand knowledge regarding the
smell of a marijuana field, because he stood in a field of marijuana while
serving as a military policeman in Vietnam. Id.

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J-S80044-18



at 10. Appellee did not reach toward any other location, and the officer did

not testify that Appellee could access the trunk from the passenger

compartment of the vehicle.        Id. at 25.    Compare Commonwealth v.

Brown, 64 A.3d 1101, 1109 (Pa. Super. 2013) (holding that the officer

properly conducted a warrantless search of a truck following a traffic stop

where the passenger’s movements led the officer to believe that the passenger

was possibly reaching for a firearm, and the search was limited to the area

that the passenger could immediately access).

      Likewise, the officer did not indicate that he had received any sort of

special training to support his belief that additional contraband was located in

the trunk.   Compare Bailey, 545 A.2d at 945-46 (emphasizing that the

investigating trooper testified about his background and competency in

identifying narcotics, the trooper had sufficient expertise in dealing with

methamphetamine,       and   the    trooper’s   expertise,   combined    with   his

observation of a “chemical-type smell,” constituted valid probable cause for

search of the defendant’s trunk).

      Under these circumstances, the odor of burnt marijuana and small

amount of contraband recovered from the passenger compartment of the

vehicle did not create a fair probability that the officer could recover additional

contraband in the trunk. See Manuel, 194 A.3d at 1081. The officer did not

provide additional, specific facts to demonstrate that his search of the trunk

was based on anything more than mere suspicion. See Copeland, 955 A.2d

at 400.   Accordingly, the facts of record supported the trial court’s legal

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J-S80044-18



conclusions, and we affirm the order granting Appellee’s suppression motion.

See Hemingway, 192 A.3d at 129.

     Order affirmed.



President Judge Emeritus Bender joins the opinion.

Judge Bowes files a dissenting opinion.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/10/19




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