Com. v. Clark, J.

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2024
• Docket: 1044 MDA 2023
• Status: Unpublished

Opinion

J-S01041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JAMES CLARK : : Appellant : No. 1044 MDA 2023

Appeal from the Judgment of Sentence Entered June 27, 2023 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000658-2022

BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED: AUGUST 8, 2024

Appellant, James Clark, appeals from the judgment of sentence imposed

by the Court of Common Pleas of Adams County following his stipulated bench

trial convictions for driving under the influence (DUI) of a controlled substance

(DUI controlled substance) – first offense in violation of Sections

3802(d)(1)(i), (iii) and (2) of the Vehicle Code, driving under a suspended

license, and driving a vehicle with illegal window tinting.1 For the reasons set

forth below, we affirm.

On the afternoon of March 16, 2022, Appellant was driving a car owned

by his fiancée, who was a passenger in the car, on York Road and Calvary

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(d)(1)(i), (iii) and (2), 75 Pa.C.S. § 1543(a), and 75 Pa.C.S. § 4107(b)(2), respectively. J-S01041-24

Field Road in Straban Township, Adams County, Pennsylvania. Trial Court

Rule 1925(a) Opinion, 8/23/23, at 1-2; Trial Court Motion to Suppress

Opinion, 3/9/23, at 2-3. At approximately 1 p.m., a Pennsylvania State Police

trooper observed that the window tint on the car that Appellant was driving

was extremely dark and effectuated a traffic stop. Trial Court Rule 1925(a)

Opinion, 8/23/23, at 2. At the beginning of the traffic stop, the trooper

confirmed that the car’s window tinting was illegal and learned that Appellant’s

driver’s license was suspended. Id. The trooper also noticed signs that

Appellant was impaired, asked Appellant to exit the car, and conducted field

sobriety tests, which Appellant attempted to perform. Id. The trooper

concluded, based on these tests and his observations of Appellant, that

Appellant was under the influence of a controlled substance and could not

safely operate a vehicle. Id. at 2-3. The trooper placed Appellant under

arrest for DUI controlled substance, asked Appellant to consent to a blood

draw, and obtained a search warrant for the blood draw when Appellant did

not consent. Id. at 3. The blood draw was taken at approximately 4 p.m.

and the test results showed the presence of both active marijuana compounds

and marijuana metabolites. Id.

Appellant was charged with the above offenses and filed a motion to

suppress the blood test results challenging the legality of the traffic stop,

whether there was reasonable suspicion to conduct field sobriety tests, and

whether there was voluntary consent to the blood draw. Motion to Suppress

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at 2-3; N.T. Suppression Hearing at 3-4. The trial court held a hearing on the

motion to suppress at which the trooper testified and the dash camera video

from the trooper’s vehicle was played and admitted in evidence. On March 9,

2023, the trial court denied Appellant’s motion to suppress. Trial Court Order,

3/9/23.

Following the denial of Appellant’s motion to suppress the blood test

results, Appellant and the Commonwealth agreed to a bench trial on stipulated

facts, and the trial court on June 27, 2023 found Appellant guilty of all charges.

Stipulation, 6/27/23; Trial Court Order, 6/27/23, at 1. On the same date, the

trial court sentenced Appellant to 72 hours to 6 months partial confinement

and mandatory fines and fees for DUI controlled substances and imposed fines

for the suspended license and window tinting violations. Trial Court Order,

6/27/23, at 2-5. This timely appeal followed.

Appellant argues in this appeal that the trial court erred in denying his

motion to suppress the blood test results on the following three grounds: (1)

that the traffic stop was illegal; (2) that the trooper lacked reasonable

suspicion to conduct field sobriety tests; and (3) that Appellant did not give

voluntary consent to the blood draw. Our standard of review on these issues

is well established:

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

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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 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 the 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 trial court are subject to plenary review.

Commonwealth v. Sloan, 303 A.3d 155, 162-63 (Pa. Super. 2023) (quoting

Commonwealth v. Wright, 224 A.3d 1104 (Pa. Super. 2019)) (ellipses in

original).

Appellant’s first issue is without merit. A law enforcement officer has

authority to stop a motor vehicle where he has reasonable suspicion that the

vehicle or driver is in violation of the Vehicle Code and further investigation is

needed to determine that a violation has occurred or where he has probable

cause to believe that the vehicle or driver is in violation of the Vehicle Code.

75 Pa.C.S. § 6308(b); Commonwealth v. Salter, 121 A.3d 987, 992-93 (Pa.

Super. 2015).

Here, the evidence at the suppression hearing showed that the trooper

had probable cause to believe that Appellant was in violation of the Vehicle

Code. An officer has probable cause to believe that a driver is in violation of

the Vehicle Code’s prohibition on window tint, 75 Pa.C.S. § 4524(e)(1) and 75

Pa.C.S. § 4107(b)(2) (enforcing 67 Pa. Code § 175.67(d)(4)), and a traffic

stop for that violation is constitutionally permissible where the officer observes

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that the vehicle’s windows are so darkly tinted that he cannot see inside it.

Commonwealth v. Prizzia, 260 A.3d 263, 268-70 (Pa. Super. 2021);

Commonwealth v. Harris, 176 A.3d 1009, 1013, 1019-20 (Pa. Super.

2017). The trooper testified at the suppression hearing that he could tell

before stopping Appellant that the windows were darker than permitted by

the Vehicle Code and that the windows were so dark that he could not see into

the car through the windows, and the trial court found that testimony credible.

N.T. Suppression Hearing at 5-6, 12-15; Trial Court Motion to Suppress

Opinion, 3/9/23, at 1, 9. The trial court therefore did not err in holding that

the traffic stop was legal.

In his second issue, Appellant argues that even if the traffic stop was

legal, the field sobriety tests violated his constitutional rights because the

trooper lacked reasonable suspicion that Appellant was driving under the

influence. Additional detention of a driver beyond that required for the Vehicle

Code violation on which the stop was based and minor inquiries incidental to

the stop is constitutional only if the detention is supported by reasonable

suspicion. Sloan, 303 A.3d at 163-64. Appellant is therefore correct that the

trooper was required to have reasonable suspicion of DUI for the field sobriety

tests to be constitutional.

Contrary to Appellant’s assertions, however, the trial court found facts

sufficient to show reasonable suspicion of DUI, and those findings are

supported by the evidence at the suppression hearing.

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To establish grounds for “reasonable suspicion” ... the officer must articulate specific observations which, in conjunction with reasonable inferences derived from these observations, led him reasonably to conclude, in light of his experience, that criminal activity was afoot and the person he stopped was involved in that activity.

In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In making this determination, we must give due weight ... to the specific reasonable inferences the police officer is entitled to draw from the facts in light of his experience. Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, even a combination of innocent facts, when taken together, may warrant further investigation by the police officer.

Sloan, 303 A.3d at 164 (quoting Commonwealth v. Smith, 917 A.2d 848

(Pa. Super. 2007)) (brackets omitted, ellipses in original).

The trial court found that the trooper observed all of the following before

conducting field sobriety tests: there was a slight odor of burnt marijuana in

the car, Appellant’s eyes appeared red, glassy, bloodshot, and watery, and

Appellant appeared confused. Trial Court Motion to Suppress Opinion, 3/9/23,

at 2-3, 10. Those findings are supported by the record. The trooper testified

that he smelled a faint odor of burnt marijuana when he came to the car, that

he saw that Appellant’s eyes were bloodshot, watery, glassy, and red, that

Appellant acted nervous and confused, and that before the stop, the car was

pulled over on the shoulder and did a U-turn to go in the opposite direction.

N.T. Suppression Hearing at 5-7, 21-22, 25-27, 29. The trooper also testified

that bloodshot, watery, glassy eyes and confusion are indicative of marijuana

intoxication and that based on these observations and the faint odor of

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marijuana, he believed that Appellant was under the influence of a controlled

substance. Id. at 6-7, 22, 25.

Those observations are sufficient to constitute reasonable suspicion of

DUI to permit an officer to detain a driver for field sobriety tests, even where

the Vehicle Code violation that precipitated the traffic stop did not show

impaired driving. Sloan, 303 A.3d at 166 (odor of burnt marijuana and

observation that driver’s eyes were red, bloodshot, teary, and glassy and that

driver showed confusion and slowed, slurred speech were sufficient

reasonable suspicion of DUI to support detention for field sobriety tests even

though reason for stop was speeding); Commonwealth v. Dabney, 274 A.3d

1283, 1285-86, 1292-93 (Pa. Super. 2022) (odor of raw marijuana and

observation that driver’s eyes were dilated and red were sufficient reasonable

suspicion of DUI to support detention for field sobriety tests even though

reason for stop was speeding); Prizzia, 260 A.3d at 271-72 (observations

that defendant’s eyes and speech showed signs of narcotics intoxication were

sufficient reasonable suspicion of DUI to support detention for field sobriety

tests even though reason for stop was tinted windows).

Appellant argues that reasonable suspicion of illegal activity could not

exist because under Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), the

odor of marijuana is insufficient to support a belief that the defendant is

engaged in criminal activity in light of the Medical Marijuana Act, 35 P.S. §§

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10231.101–10231.2110 (MMA) and because he had a medical marijuana

patient card allowing him to legally use marijuana. We do not agree.

Barr holds that the odor of marijuana is insufficient by itself to support

a belief that the defendant is engaged in criminal activity but permits

consideration of the smell of marijuana with other factors in determining

whether the totality of the circumstances is sufficient to infer criminal activity.

266 A.3d at 41-44; Dabney, 274 A.3d at 1292-93. Here, the trooper’s

reasonable suspicion was based not on marijuana odor alone but on that

observation in combination with observations of Appellant’s eyes and behavior

that showed intoxication. N.T. Suppression Hearing at 5-7, 21-22, 25-27, 29.

Moreover, Barr has no applicability here because the suspected crime on

which the search in Barr was based was possession of marijuana and whether

that activity was criminal was affected by the MMA. The crime as to which the

trooper had reasonable suspicion in this case was DUI, not possession of

marijuana. Neither the MMA nor a medical marijuana card permits a driver to

drive under the influence of marijuana. 75 Pa.C.S. § 3810 (“The fact that a

person charged with violating this chapter [prohibiting driving under the

influence of alcohol or controlled substances] is or has been legally entitled to

use alcohol or controlled substances is not a defense to a charge of violating

this chapter”); Dabney, 274 A.3d at 1291-92.

Appellant also argues that the trooper decided to conduct field sobriety

tests based on the fact that Appellant had a medical marijuana card and had

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used marijuana a week earlier and that this information was allegedly

improperly obtained. This argument also fails. Whether reasonable suspicion

exists is an objective test, not a subjective test. Commonwealth v. Watley,

153 A.3d 1034, 1045 (Pa. Super. 2016); Commonwealth v. Foglia, 979

A.2d 357, 361 (Pa. Super. 2009) (en banc). As discussed above, the trooper’s

observations concerning marijuana odor, Appellant’ eyes, and Appellant’s

confusion were sufficient to support objective reasonable suspicion that

Appellant was driving under the influence. Whether the trooper’s decision to

conduct field sobriety tests was based on other reasons is therefore irrelevant.

In addition, the trooper did not violate Appellant’s rights in learning that

Appellant had a medical marijuana card. Rather, Appellant volunteered his

medical marijuana card when the trooper was attempting to verify an address

to which the Vehicle Code violation citations could be sent in light of the

discrepancy between the car’s North Carolina license plate and the

Pennsylvania identification card that Appellant had produced. N.T.

Suppression Hearing at 20-21; Commonwealth Ex. 1.

Appellant’s final issue likewise merits no relief. The taking of a blood

sample at the direction of a police officer is a search subject to the Fourth

Amendment to the United States Constitution and Article I, Section 8 of the

Pennsylvania Constitution and is constitutionally impermissible unless a

warrant is obtained or an exception to the warrant requirement applies.

Birchfield v. North Dakota, 579 U.S. 438, 455-56 (2016); Commonwealth

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v. Johnson, 188 A.3d 486, 489 (Pa. Super. 2018). Voluntary consent to a

search is an exception that can make a warrantless search constitutional.

Commonwealth v. Valdivia, 195 A.3d 855, 861-62 (Pa. 2018); Johnson,

188 A.3d at 489.

Voluntary consent, however, is unnecessary where a valid warrant for

the search has been obtained. Commonwealth v. Palchanes, 224 A.3d 58,

62-63 (Pa. Super. 2019); Commonwealth v. Muniz, 5 A.3d 345, 352 (Pa.

Super. 2010). Here, the trooper obtained a warrant for the blood draw after

Appellant refused to consent. Trial Court Motion to Suppress Opinion, 3/9/23,

at 6-7, 13; N.T. Suppression Hearing at 9, 32. Appellant did not contend in

the trial court that the warrant was invalid or raise any issue concerning the

validity of the warrant in his concise statement of matters complained of on

appeal. Defendant’s Memorandum of Law in Support of Suppression Motion;

Appellant’s Concise Statement. Any claim that the search warrant was invalid

is therefore waived. Pa.R.A.P. 302(a) (“Issues not raised in the trial court are

waived and cannot be raised for the first time on appeal”); Pa.R.A.P.

1925(b)(4)(vii).

For the foregoing reasons, we conclude that none of Appellant’s issues

merits relief. We accordingly affirm Appellant’s judgment of sentence.

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Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 8/8/2024

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