J-A19026-15


                                  2015 PA Super 160

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

PATRICK SCOTT JONES

                            Appellant                 No. 1286 WDA 2014


             Appeal from the Judgment of Sentence August 1, 2014
                 in the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0001833-2013


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

OPINION BY JENKINS, J.:                                FILED JULY 24, 2015

        Appellant Patrick Scott Jones appeals from the judgment of sentence

entered in the Butler County Court of Common Pleas following his bench trial

conviction for driving under the influence of alcohol or controlled substances

(Schedule I metabolite - marijuana) (“DUI”),1 for which the trial court

imposed a sentence of sixty (60) months’ intermediate punishment, with the

first 105 days to be served on house arrest with electronic monitoring, and a

$1,500.00 fine.2 We affirm.

____________________________________________


1
    75 Pa.C.S. § 3802(d)(1)(iii).
2
  The trial court also convicted Appellant of the summary offenses of
operation following suspension of registration, 75 Pa.C.S. § 1371, and
surrender of registration plates and cards upon suspension, 75 Pa.C.S. §
1376, but imposed no further penalty for these convictions.
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       On the morning of April 28, 2013, an Adams Township Police

Department      officer   stopped     Appellant’s   vehicle   due    to   a   suspended

registration. Upon approaching Appellant, the officer immediately noticed a

strong odor of burnt marijuana emanating from Appellant’s vehicle, in which

Appellant was the sole occupant.           After speaking with Appellant regarding

the suspended registration, the officer ordered Appellant from the vehicle

and placed him in handcuffs. Subsequently, the officer asked Appellant to

submit to chemical blood testing, and Appellant agreed. The chemical blood

test indicated that Appellant had 7.7 nanograms per milliliter of Delta-9-THC

in his blood and 100 nanograms per milliliter of Delta-9-Carboxy THC in his

blood.3

       Appellant filed a suppression motion on December 19, 2013. At the

beginning of the suppression hearing, the Commonwealth conceded to the

suppression of several items of evidence seized after Appellant was placed in

handcuffs. See N.T. 4/3/2014, p. 3. However, the trial court continued the

hearing to determine whether the officer had the right to detain Appellant

and test his blood based on the smell of marijuana emanating from the

vehicle.   See id. at 3-6.        On May 13, 2014, the trial court granted the

suppression motion in part and denied it in part.                   The court granted
____________________________________________


3
  THC stands for tetrahydrocannabinol and is the active ingredient of
marijuana. THC is referred to in blood chemical reports as Delta-9-THC.
The chemical names for THCC, the metabolite of marijuana, are 11-Hydroxy-
Delta-9-THC and Delta-9-Carboxy THC.



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J-A19026-15



suppression of all “evidence seized subsequent to [Appellant] being placed in

handcuffs, with the exception of the blood test results.” Trial Court Order,

May 13, 2014, p. 2.

        The trial court conducted a bench trial on August 1, 2014, during

which the Commonwealth introduced the results of Appellant’s blood test

into evidence.       The trial court convicted and sentenced Appellant as

discussed, supra. Appellant timely appealed.4

        Appellant raises the following two claims for review:

        I. Whether a mere odor of marijuana emanating from the inside
        of a motor vehicle supports a finding of probable cause to arrest
        for driving under the influence[?]

        II. Whether the blood alcohol results should be suppressed as
        fruit of the poisonous tree as a result of an illegal arrest[?]

Appellant’s Brief, p. 2 (all capitals removed).

        This Court’s well-settled standard of review of a denial of a motion to

suppress evidence is as follows:

        [An appellate court’s] 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, [the appellate court
____________________________________________


4
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.




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J-A19026-15


      is] bound by [those] findings and may reverse only if the court’s
      legal conclusions are erroneous. Where . . . the appeal of the
      determination of the suppression court turns on allegations of
      legal error, 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 []
      plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010) (internal citations

and quotation marks omitted).

      Appellant argues that the trial court erred by not suppressing the

results of chemical blood testing to which he consented during the course of

his arrest.   See Appellant’s Brief, pp. 9-17.   Specifically, Appellant claims

that, because police cannot request chemical testing pursuant to 75 Pa.C.S.

§ 1547 for an alcohol-based DUI based solely on the smell of alcohol, the

police should not have been allowed to request that he submit to chemical

blood testing based solely on the smell of marijuana in his vehicle.        He

argues that corroborating evidence must exist in addition to the odor of

marijuana to allow authorities to request that a driver submit to a section

1547 blood test for controlled substances. See id. at 15. He requests that,

for the purposes of a probable cause analysis, this Court regard the odor of

marijuana the same as the odor of alcohol and rule that the smell of

marijuana in isolation does not provide the requisite “reasonable grounds” to

allow police to request a motorist submit to chemical testing pursuant to

section 1547.     See id. at 12-14.        Otherwise stated, he argues that




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J-A19026-15



uncorroborated police testimony regarding the odor of marijuana is an

insufficient foundation to request section 1547 testing. We do not agree.

     The Vehicle Code provides, in relevant part:

     § 3802. Driving under influence of alcohol or controlled
     substance

     (a) General impairment.--

                                     ...

     (d) Controlled substances.--An individual may not drive,
     operate or be in actual physical control of the movement of a
     vehicle under any of the following circumstances:

        (1) There is in the individual’s blood any amount of a:

        (i) Schedule I controlled substance. . . ;

                                     ...

        (iii) metabolite of a substance under subparagraph (i) or
        (ii).

75 Pa.C.S. § 3802. The Controlled Substance, Drug, Device and Cosmetic

Act classifies marijuana as a Schedule I controlled substance. 35 Pa.C.S. §

780-104(1)(iv). Additionally,

     (a) General rule.--Any person who drives, operates or is in
     actual physical control of the movement of a vehicle in this
     Commonwealth shall be deemed to have given consent to one or
     more chemical tests of breath, blood or urine for the purpose of
     determining the alcoholic content of blood or the presence of a
     controlled substance if a police officer has reasonable grounds to
     believe the person to have been driving, operating or in actual
     physical control of the movement of a vehicle:

        (1) in violation of section 1543(b)(1.1) (relating to driving
        while operating privilege is suspended or revoked), 3802
        (relating to driving under influence of alcohol or controlled
        substance) or 3808(a)(2) (relating to illegally operating a
        motor vehicle not equipped with ignition interlock)[.]

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J-A19026-15



75 Pa.C.S. § 1547.        “[T]o administer a blood test under § 1547(a)(1), a

police officer need only have reasonable grounds to believe that a person

was driving under the influence of alcohol [or controlled substances].

‘Reasonable grounds’ has been interpreted to mean ‘probable cause;’ thus,

the police officer must have ‘knowledge of sufficient facts and circumstances,

gained through trustworthy information, to warrant a prudent man in the

belief that a crime has been committed.’” Commonwealth v. Aiello, 675

A.2d 1278, 1280 (Pa.Super.1996) (internal citations omitted).5
____________________________________________


5
    Regarding probable cause, we note:

        “[P]robable cause does not involve certainties, but rather ‘the
        factual and practical considerations of everyday life on which
        reasonable and prudent men act.’” Commonwealth v. Wright,
        867      A.2d      1265,    1268     (Pa.Super.2005)     (quoting
        Commonwealth v. Romero, [] 673 A.2d 374, 376 (1996)). “It
        is only the probability and not a prima facie showing of criminal
        activity that is a standard of probable cause.” Commonwealth
        v. Monaghan, [] 441 A.2d 1318 (1982) (citation omitted). See
        also Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76
        L.Ed.2d 527 (1983) (holding that probable cause means “a fair
        probability that contraband or evidence of a crime will be
        found.”); Commonwealth v. Lindblom, 854 A.2d 604, 607
        (Pa.Super.2004) (reciting that probable cause exists when
        criminality is one reasonable inference, not necessarily even the
        most likely inference). To this point on the quanta of evidence
        necessary to establish probable cause, the United States
        Supreme Court recently noted that “[f]inely tuned standards
        such as proof beyond a reasonable doubt or by a preponderance
        of the evidence, useful in formal trials, have no place in the
        []probable-cause[] decision.” Maryland v. Pringle, 540 U.S.
        366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (citations
        omitted).

Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa.Super.2005).



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J-A19026-15



       Here, at the suppression hearing, Adams Township police officer Ed

Lentz gave uncontroverted testimony that, upon approaching Appellant’s

car, he immediately smelled a very strong odor of burnt marijuana

emanating from the car.         See N.T. April 3, 2014, pp. 13-14, 17.   Officer

Lentz had absolutely no question that what he smelled was indeed burnt

marijuana.6     Id. at 14.     He further explained that Appellant was the sole

occupant of the vehicle. Id. at 21.

       Initially, Appellant cites numerous cases7 to support his argument that

the smell of burnt marijuana alone is insufficient to support a police officer’s

request that a motorist submit to blood testing pursuant to section 1547.

____________________________________________


6
   The officer had previously testified as to his training and experience
identifying the odor of burnt marijuana, which he described as “very
distinct.” N.T. 4/3/2-14, pp. 7-8.
7
  Commonwealth v. Griffith, 32 A.3d 1231 (Pa.2011); Commonwealth
v. Graham, 81 A.3d 137 (Pa.Super.2013) appeal denied, 93 A.3d 462
(Pa.2014); Commonwealth v. Angel, 946 A.2d 115 (Pa.Super.2008);
Commonwealth       v.   Hilliar,  943    A.2d    984  (Pa.Super.2008);
Commonwealth      v.   Leighty,   693    A.2d   1324  (Pa.Super.1997);
Commonwealth v. Feathers, 660 A.2d 90 (Pa.Super.1995) aff’d, 683 A.2d
289 (Pa.1996); Commonwealth v. Yedinak, 676 A.2d 1217
(Pa.Super.1996);   Commonwealth       v.    Rishel,  658   A.2d   352
(Pa.Super.1995) appeal granted, judgment vacated, 682 A.2d 1267
(Pa.1996); Commonwealth v. Hipp, 551 A.2d 1086 (Pa.Super.1988);
Commonwealth v. Monaghan, 441 A.2d 1318 (Pa.Super.1982);
Commonwealth       v.  Labiaux,    434    A.2d   194  (Pa.Super.1981);
Commonwealth      v.   Guiliano,   418    A.2d   476  (Pa.Super.1980);
Commonwealth v. Funk, 385 A.2d 995 (Pa.Super.1978); Commonwealth
v. Reynolds, 389 A.2d 1113 (Pa.Super.1978).




                                           -7-
J-A19026-15



See Appellant’s Brief, pp. 12-14. Appellant correctly suggests that his cited

cases stand for the proposition that the smell of alcohol alone is not

sufficient to justify a request for a section 1547 blood test for suspected

alcohol-based DUIs, and that such a request requires some further indicia of

intoxication, such as erratic driving, slurred speech, bloodshot eyes, balance

issues, etc.   However, Appellant’s cited cases are distinguishable because

they involve suspected alcohol-based DUIs, not marijuana-based DUIs.

Because there are no on-point Pennsylvania cases, Appellant analogizes the

smell of marijuana to the smell of alcohol and suggests that, as with

suspected cases of alcohol-based DUI, the police must have corroborating

evidence to request blood tests. Id.

      However, the Vehicle Code treats consumption of alcohol differently

from consumption of marijuana.      The Vehicle Code does not preclude an

adult from consuming any amount of alcohol and then operating a motor

vehicle in Pennsylvania.   See 75 Pa.C.S. § 3802(a).     Instead, the Vehicle

Code precludes the operation of a motor vehicle only “after imbibing a

sufficient amount of alcohol such that the individual is rendered incapable of

safely driving, operating or being in actual physical control of the movement

of the vehicle.” 75 Pa.C.S. § 3802(a)(1). On the other hand, the Vehicle

Code precludes an individual from operating a motor vehicle with any

amount of scheduled controlled substance, or a metabolite thereof, in the

driver’s blood.   75 Pa.C.S. § 3802(d).   Because marijuana is a Schedule I

controlled substance, the Vehicle Code prohibits an individual from operating

                                    -8-
J-A19026-15



a vehicle after consuming any amount of marijuana.        As a result, unlike

cases where police suspect alcohol-based DUI, evidence of operator

consumption of any marijuana is enough to allow police to request a section

1547 blood test for suspected controlled substance-based DUI.8           Such

evidence includes the distinct odor of burnt marijuana emanating from a

vehicle in which the operator is the sole occupant.9

       Therefore, in the instant case, under the proper standard of review,

the evidence presented that the police officer smelled a strong, distinct odor

of burnt marijuana emanating from a vehicle in which Appellant was the only

occupant suffices to have allowed the police to request a blood test pursuant

to section 1547. Accordingly, the trial court properly ruled that “the officer

was justified in reasonably believing that [Appellant] had been operating his
____________________________________________


8
  We note that Yedinak, supra, concerned a DUI arrest based solely on
marijuana use and discussed multiple impairment indicia (trouble
walking/balancing and unsafe driving) in addition to an odor of marijuana in
discussing the propriety of blood testing. However, Yedniak is inapposite to
the instant matter because in that case the police observed the numerous
impairment indicia prior to conducting the traffic stop.
9
   We note that Graham and Griffith, supra, involved prescription
medication controlled substance DUIs or combined prescription medication
and alcohol-based DUIs, and both involved an examination of multiple
indicia of impairment, as with alcohol-based DUI arrests. We note, however,
that prescription medications lack the distinctive odor of burnt marijuana.
Therefore, in such cases, police have no choice but to investigate and
observe, as in alcohol-based cases, a combination of indicia of impaired
driving prior to requesting blood samples or making an arrest, regardless of
the fact the Vehicle Code prohibits the operation of motor vehicles with any
such controlled substance or metabolite thereof in the driver’s bloodstream.




                                           -9-
J-A19026-15



vehicle after smoking marijuana which then [gave the officer] the authority

to ask [Appellant] to submit to having a sample of his blood taken.” May 13,

2014 Order, p. 2. The trial court did not err in denying suppression of the

blood test results.10

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/2015




____________________________________________


10
    Because Appellant’s arrest was legal as discussed supra, his claim that
the blood test results were “fruit of the poisonous tree” fails.            See
Commonwealth. v. Shaffer, 710 A.2d 89, 92 (Pa.Super.1998) (“The
remedy for an illegal arrest in Pennsylvania is suppression of the fruits of the
illegal arrest. “) (emphasis provided).



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