Commonwealth v. Barr

240 A.3d 1263

COMMONWEALTH of Pennsylvania, Appellant

v.Timothy Oliver BARR II

No. 2347 EDA 2019

Superior Court of Pennsylvania.

Submitted May 19, 2020

Filed September 25, 2020

James B. Martin, District Attorney, and Heather F. Gallagher, Assistant District Attorney, Allentown, for Commonwealth, appellant.

Joshua E. Karoly, Allentown, for appellee.

Aaron J. Marcus, Philadelphia, amicus curiae.

BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.^*

OPINION BY BENDER, P.J.E.:

This is a Commonwealth appeal from the trial court's order granting Appellee's, Timothy Oliver Barr II, motion to suppress and habeas corpus petition ("habeas petition"). In granting Appellee's suppression motion, the trial court held that the odor of marijuana no longer provides police with probable cause to search a motor vehicle from which the odor emanates because a substantial number of Pennsylvania citizens can now consume marijuana legally, calling into question the so-called plain smell doctrine. After careful review, we agree with the trial court that the odor of marijuana does not per se establish probable cause to conduct a warrantless search of a vehicle. However, because the trial court failed to afford that factor any weight, and did not appear to evaluate any other factors in conjunction with the odor of marijuana in its probable cause analysis, we vacate the portion of the order granting suppression and remand for reconsideration by the trial court. We also vacate the portion of the order granting Appellee's habeas petition, and remand for reconsideration by the trial court following resolution of the suppression issue.

The Commonwealth charged Appellee with person not to possess a firearm, 18 Pa.C.S. § 6105, possession of a firearm without a license, 18 Pa.C.S. § 6106, and possession of a small amount of marijuana ("PSAM"), 35 P.S. § 780-113(a)(31)(i), following a warrantless search of his vehicle conducted on November 7, 2018. Appellee filed a motion to suppress the seized firearm and marijuana, and a habeas corpus petition seeking dismissal of all charges.¹ The trial court conducted a suppression hearing on July 17, 2019. The court summarized its factual findings from that hearing as follows:

FINDINGS OF FACT

1. On November 7, 2018, at approximately 12:30 A.M., Trooper Edward Prentice and Trooper Danielle Heimbach of the Pennsylvania State Police, Fogelsville Barracks, Troop M, were on routine patrol in full uniform and in a marked police unit on Emaus Avenue in the area of the Liberty Park at Allentown apartment complex, Allentown, Lehigh County, Pennsylvania.⁵ At that time, Trooper Prentice observed a silver Chrysler 300 sedan making a U-turn in the Liberty Park at Allentown apartment complex on Allenbrook Drive, and then proceeding east on Emaus Avenue. Trooper Prentice turned his cruiser around and decided to follow the vehicle.⁶

⁵ Trooper Prentice was Trooper Heimbach's mentor, as Trooper Heimbach graduated from the police academy on October 12, 2018. On that night, Trooper Prentice was operating the police cruiser and was Trooper Heimbach's training officer.

⁶ No criminal activity was observed at this time. Trooper Prentice based his decision to follow the vehicle on the fact that no other cars were around, the car appeared to be traveling at a fast rate of speed, and the early hour of the night.

2. The subject vehicle drove eastbound on Emaus Avenue and made a left onto Devonshire Road/Mack Boulevard, Allentown, Lehigh County. Trooper Prentice noted that the vehicle was traveling at a fast rate of speed. However, the vehicle slowed down prior to approaching an overpass on which the vehicles are constrained to pass one at a time. Trooper Prentice and Trooper Heimbach observed that the subject vehicle failed to stop at the solid white stop line on the road at the stop sign controlling the single lane railroad overpass at Mack Boulevard and South 8th Street, Allentown, Lehigh County, Pennsylvania.⁷ Consequently, observing this motor vehicle violation, a traffic stop was effectuated.

The subject vehicle pulled over immediately.

⁷ Both the front and rear tires passed over the solid white stop lines prior to slowly rolling through the single lane railroad overpass. At that time, another vehicle was approaching the railroad pass from a distance from the opposite lane of travel. As this vehicle was far away, no danger or safety risk was present.

3. As Trooper Prentice was "coaching" or training Trooper Heimbach, Trooper Heimbach took the lead and exited the police cruiser to investigate.⁸ Trooper Heimbach approached the passenger side of the vehicle to speak with the occupants. As she approached, she smelled the odor of burnt marijuana. The driver of the vehicle was a white female, later identified as Teri Barr, [Appellee]'s wife. [Appellee] was seated in the front passenger seat and was speaking with Trooper Heimbach.⁹

⁸ Trooper Prentice briefly remained in the police cruiser to perform a records check of the vehicle, as well as to notify dispatch of the traffic stop. The subject vehicle was owned by [Appellee]'s mother.

⁹ Co-Defendant Luiz Monteiro was seated in the rear passenger seat behind [Appellee]. He appeared to be either passed out or in and out of sleep. There was limited interaction with Mr. Monteiro. Co-Defendant Monteiro did not present a medical marijuana card at the time of the traffic stop.

4. After Trooper Prentice completed his tasks in the police cruiser, he approached the vehicle on the driver's side. Upon approach, Trooper Prentice could smell the odor of both burnt and raw marijuana through the open window of the vehicle.¹⁰ At that time, Trooper Prentice asked the driver to exit the vehicle so that he could interview her and confirm that she was not under the influence and incapable of safe driving. He stepped back to make room for her egress from the vehicle. When Trooper Prentice overheard the passenger arguing with Trooper Heimbach and stating[,] "no one is getting out of this fucking car," Trooper Prentice walked back to the driver's side door. The argument ensued for approximately two (2) to three (3) minutes, until members of the Allentown Police Department arrived as backup.¹¹ When members of the Allentown Police Department arrived, [Appellee]'s attitude changed and he became more cooperative. He exited the vehicle, along with the other occupants. They were patted down for officer safety.

¹⁰ Trooper Prentice testified that he could smell the odor of raw and burnt marijuana through the open window when he was at the rear of the vehicle. This [c]ourt takes issue with this testimony of Trooper Prentice and finds it not to be credible. Indeed, it is only reasonable to conclude that one (1) odor would trump the other odor, and that Trooper Prentice was not able to detect both raw and burnt marijuana. Also, this [c]ourt notes that the amount of raw marijuana located in the vehicle in a sealed Ziploc bag was only .79 grams. It is unfathomable to this [c]ourt that Trooper Prentice was able to detect the odor of both raw and burnt marijuana.

¹¹ Trooper Prentice had called for assistance when he realized that [Appellee] was not being cooperative and was preventing his wife from complying with [the trooper's] commands and exiting the vehicle.

5. Trooper Prentice advised the occupants of the vehicle that he could search the vehicle pursuant to Commonwealth v. Gary , ... 625 Pa. 183, 91 A.3d 102 ( [Pa.] 2014), as the odor of marijuana provided them with probable cause. At that time, [Appellee] presented Trooper Prentice with a medical marijuana identification card that allows him to possess and ingest medical marijuana pursuant to this license.¹² Trooper Prentice admitted that while he knew that green leafy marijuana was legal for medical purposes, he was not familiar with how a person ingests green leafy medical marijuana.¹³ Also, Trooper Prentice was under the misconception that medical marijuana, when ingested through a vaping pen, has no odor.¹⁴

¹² At the time of the hearing, [Appellee] presented a receipt for medical flower marijuana purchased from a dispensary on November 2, 2018, totaling $85.00. Neither Trooper Prentice nor Trooper Heimbach recalled that [Appellee] presented this receipt to them at the time of the traffic stop.

¹³ While in the presence of the Allentown Police Department and captured on the body cam of a member of the Allentown Police Department, Trooper Prentice indicated that "if he's allowed to have it, I'm fine with that. I'm not going to fucking worry about it."

¹⁴ Trooper Heimbach was frank with this [c]ourt and stated that she did not know how medical marijuana was ingested. She also indicated that at the time of the preliminary hearing in this matter (and consequently, at the time of the vehicle stop) she was under the misimpression that green leafy marijuana was illegal and not used for medical purposes.

6. Trooper Heimbach and Trooper Prentice then conducted a probable cause search of the vehicle based on the odor of marijuana that they detected therein. The search of the vehicle yielded marijuana "shake"¹⁵ throughout the cabin area, as well as a sealed Ziploc plastic bag containing marijuana¹⁶ between the front passenger seat and the center console. The marijuana weighed .79 grams. The Ziploc plastic bag did not have any markings or barcodes on it that would be indicative of coming from a medical marijuana dispensary.¹⁷ Trooper Prentice indicated that the odor of burnt marijuana got stronger in the area of the center console of the vehicle.

¹⁵ Trooper Prentice explained that marijuana "shake" served as evidence that marijuana was being smoked in the vehicle, but did not amount to a prosecutorial amount. Indeed, generally "shake" is a residual amount of marijuana. No photos of the "shake" were taken at the time of the traffic stop.

¹⁶ The suspected marijuana field-tested positive for marijuana.

¹⁷ Trooper Prentice testified that he was trained that medical marijuana has to remain in the

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