Commonwealth v. Barr

266 A.3d 25

COMMONWEALTH of Pennsylvania, Appellee

v.Timothy Oliver BARR II, Appellant

No. 28 MAP 2021

Supreme Court of Pennsylvania.

Argued: October 27, 2021

Decided: December 29, 2021

Aaron Joshua Marcus, Esq., Defender Association of Philadelphia, for ACLU of Pennsylvania, Amicus Curiae

Maureen Flannery Spang, Esq., Kevin R. Steele, Esq., Montgomery County District Attorney's Office, Norristown, for Pennsylvania District Attorneys Association, Amicus Curiae

Joshua Enders Karoly, Esq., Karoly Law Firm, Allentown, for Appellant

Heather F. Gallagher, Esq., James Bernard Martin, Esq., Lehigh County District Attorney's Office, for Appellee

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE BAER

We granted allowance of appeal in this matter to examine to what extent, if at all, the smell of marijuana can be considered when determining whether law enforcement had probable cause to conduct a warrantless search of a vehicle. This issue arises in light of the General Assembly's enactment of the Medical Marijuana Act ("MMA"), 35 P.S. §§ 10231.101 - 10231.2110, which legalized the possession and use of marijuana in limited circumstances, and this Court's recent decision in Commonwealth v. Hicks , 652 Pa. 353, 208 A.3d 916 (2019), which addressed whether police can stop and frisk a person merely based on the fact that the person possesses a concealed firearm in public. Like the Superior Court, we hold that the smell of marijuana may be a factor, but not a stand-alone one, in determining whether the totality of the circumstances established probable cause to permit a police officer to conduct a warrantless search of a vehicle. However, we respectfully disagree with the Superior Court's decision to remand the matter to the trial court for reconsideration of its order granting the motion to suppress filed by Timothy Barr, II ("Appellant"). Instead, for the reasons that follow, we vacate the Superior Court's judgment, reinstate the trial court's order which granted Appellant's motion to suppress, and remand for further proceedings that are consistent with this opinion.

I. Background

As a result of a vehicle search that we describe in more detail infra , the Commonwealth discovered a bag of marijuana and a firearm. In connection with these items, the Commonwealth charged Appellant with persons not to possess a firearm, possession of a firearm without a license, and possession of a small amount of marijuana. Appellant subsequently filed an omnibus pretrial motion, which included a motion to suppress the physical evidence gathered by police during the search, and a petition for a writ of habeas corpus , contending that the Commonwealth could not establish a prima facie case that Appellant possessed a small amount of marijuana or committed the firearm offenses. Following a hearing, the trial court granted the motion to suppress and granted in part the petition for a writ of habeas corpus , dismissing the count of possession of a small amount of marijuana. The court authored an opinion in support of that order, which included findings of fact and conclusions of law. Trial Court Opinion, 8/2/2019. We glean the following summary from the trial court's findings of fact.

In the early morning hours of November 7, 2018, Pennsylvania State Trooper Edward Prentice was mentoring or "coaching" newly-hired State Trooper Danielle Heimbach. The troopers were on routine patrol in a marked police vehicle on Emaus Avenue in the area of the Liberty Park at Allentown apartment complex in Allentown, Pennsylvania, when, at approximately 12:30 a.m., Trooper Prentice observed a vehicle make a U-turn on Allenbrook Drive and then proceed east on Emaus Avenue. Despite the fact that the troopers did not observe any criminal activity, Trooper Prentice decided to follow the vehicle because no other cars were around, the vehicle appeared to be traveling at a fast rate of speed, and it was past midnight.

As the troopers followed the vehicle, it made a left-hand turn onto Devonshire Road/Mack Boulevard. The vehicle was driving at a high rate of speed but eventually slowed down as it approached an overpass on which vehicles must pass in opposite directions, one vehicle at a time. Troopers Prentice and Heimbach observed that the vehicle failed to stop at the solid white stop line on the road at the stop sign that controls the single lane overpass, causing the troopers to initiate a stop for this alleged Vehicle Code violation. The vehicle pulled over as soon as the troopers engaged it.

Because Trooper Prentice was coaching Trooper Heimbach, Trooper Heimbach took the lead of investigating the matter further by approaching the passenger side of the vehicle. As the trooper got closer to the occupants of the vehicle, she smelled burnt marijuana. Appellant's wife, Teri Barr ("Barr"), was driving the vehicle, Appellant was in the front passenger seat, and Luis Monteiro ("Monteiro") was in the rear passenger seat, where he was observed drifting in and out of sleep.

Soon thereafter, Trooper Prentice approached the vehicle on its driver's side. As the trooper began to arrive at the driver's window, he smelled the odor of burnt marijuana through the open window of the vehicle.¹ Trooper Prentice then asked Barr to exit the vehicle so that he could interview her and confirm that she was not unlawfully under the influence of marijuana. At that point, Appellant began to argue with Trooper Heimbach by repeatedly exclaiming that "no one is getting out of this fucking vehicle." Backup officers from the Allentown Police Department soon arrived at the scene, causing Appellant to become more cooperative.

Trooper Prentice then advised the occupants of the vehicle that, because he smelled marijuana, he could search the vehicle pursuant to this Court's decision in Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102 (2014) (plurality) (holding that the federal automobile exception to the warrant requirement of the Fourth Amendment applies in Pennsylvania), overruled by Commonwealth v. Alexander , ––– Pa. ––––, 243 A.3d 177 (2020) (holding that Article I , Section 8 of the Pennsylvania Constitution requires both a showing of probable cause and exigent circumstances to justify a warrantless search of an automobile). Appellant and Barr presented Trooper Prentice with medical marijuana identification cards that permitted them to possess and consume medical marijuana pursuant to the MMA.

Notably, at the time of the stop, Trooper Prentice was aware that green, leafy marijuana was legal for medical purposes, but he was unsure how a patient was permitted to ingest this product for medical purposes. In addition, Trooper Prentice believed that no smell is produced when a patient utilizes a vaping pen to inhale medical marijuana. Trooper Heimbach was unaware that green, leafy marijuana was legal for medical purposes. She too was unsure how medical marijuana was ingested.

Nonetheless, at that point, the troopers conducted a search of the vehicle which allegedly was supported by probable cause based on the smell of marijuana. During that search, the troopers observed non-prosecutorial amounts of marijuana "shake," i.e. , small flakes of marijuana leaf, on the vehicle's floor. Trooper Heimbach also discovered a Ziploc bag that contained 0.79 grams of marijuana. She found that bag between the front passenger seat and the center console. The Ziploc plastic bag did not have any markings or barcodes that would identify it as medical marijuana purchased at a dispensary.²

As part of the probable cause examination, Trooper Prentice searched the rear of the vehicle, where he discovered a jacket that was rolled up into a ball and that stuck out halfway under the driver's seat. Inside of the jacket, the trooper found a handgun with one bullet in the chamber and four bullets in the magazine. Trooper Prentice suspected that it was Appellant's jacket and advised his fellow officers to detain all three occupants of the vehicle. A subsequent search of the vehicle's trunk uncovered an Apple logo baggie that contained unused clear plastic baggies that were consistent with both general packaging for drug distribution and the particular baggie that contained the marijuana that Trooper Heimbach found between the front passenger seat and the center console.

At the suppression hearing, Appellant presented the testimony of David Gordon, M.D., a retired heart and lung surgeon and an expert in medical marijuana in Pennsylvania. Dr. Gordon sees patients to determine whether they are appropriate candidates for medical marijuana cards. In fact, he was the physician that recommended that Appellant met the qualifications to receive the medical marijuana card that he presented to the troopers before they searched the vehicle on the night in question.

During his testimony, Dr. Gordon explained to the trial court that there is no difference between green, leafy medical marijuana and marijuana purchased illegally on the streets. The doctor noted that smoking marijuana is illegal under the MMA; however, he also informed the court that green, leafy marijuana can be consumed legally by way of a vaping pen. Dr. Gordon stated that vaping marijuana produces an odor and that there is no difference between the odor of legally vaped and illegally smoked marijuana.

Regarding the packaging of medical marijuana, Dr. Gordon explained that it can be sold in a plastic container like a pill bottle with a plastic bag in it that contains the medical marijuana. Dr. Gordon shared his belief that the inner bag contains markings that indicate that it was purchased at a medical marijuana dispensary, but he was not certain. According to Dr. Gordon, at the time of the hearing, there were more than 143,000 patients in Pennsylvania who could legally obtain, possess, and ingest medical marijuana. He further suggested that there is a clear disconnect between the medical and the law enforcement communities with respect to the legalization of...