Com. v. Davis, E.

Opinion

J-S29008-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EVAN DAVIS : : Appellant : No. 1028 WDA 2021

Appeal from the Judgment of Sentence Entered July 28, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0012350-2019

BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: November 14, 2022

In this case we are called upon to review the circumstances that led to

the search of an automobile in which Evan Davis was a passenger, and which

led to his multiple criminal convictions. After careful review, we affirm the

judgment of sentence.

At approximately 4:00 PM on September 5, 2019, a confidential

informant (“the CI”) and an agent from the Pennsylvania Attorney General’s

Office used the CI’s cell phone to arrange a purchase of $200 of heroin from

a suspected drug dealer. The drug dealer instructed the CI to go to the Rolling

Woods apartment complex in North Versailles, Pennsylvania. At approximately

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* Retired Senior Judge assigned to the Superior Court. J-S29008-22

4:27 PM, the suspected drug dealer phoned the CI and gave additional

instructions on where to park in the complex. The CI was to be in an

undercover vehicle that was described to the suspected drug dealer.1 As

directed by the suspected drug dealer, the undercover vehicle was parked in

a spot located in the designated area of the parking lot, with no other vehicles

nearby. At approximately 4:41 PM, a black Lincoln entered the parking lot and

proceeded directly to the undercover vehicle. After making minor

adjustments, the black Lincoln parked close enough to the undercover vehicle

so that the vehicles were within arm’s reach of each other.

Meanwhile, Officer Norman Locke, a member of the North Versailles

Township Police Department involved in the undercover investigation, was

parked in a marked cruiser in a location where he could clearly observe the

parking area. After the black Lincoln parked, the agents in the undercover

vehicle exited and Officer Locke activated his emergency lights and

approached the scene.

At the suppression hearing, Officer Locke testified that after he parked

and walked up to the black Lincoln, he detected the odor of marijuana coming

from the vehicle. The four occupants of the black Lincoln were removed from

the automobile. Officer Locke observed bundles of marijuana in the pocket on

the back of the driver’s seat. Davis was seated in the rear passenger seat, and

1The CI was not in the undercover vehicle but was at an off-site location. Rather, the undercover vehicle had law enforcement officers stationed inside.

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when he exited the vehicle, police observed a firearm on the seat where he

was seated. Also, sixty bags of heroin were recovered from the pocket on the

back of the driver’s seat. Upon his arrest Davis was searched at the scene and

two bags of cocaine were recovered. During a search of Davis at the police

station, heroin was discovered.

On December 30, 2019, the Commonwealth filed a criminal information

charging Davis with one count each of Person Not to Possess a Firearm,

Receiving Stolen Property (“RSP”), Carrying a Firearm without a License,

Criminal Conspiracy, Possession with Intent to Deliver a Controlled Substance

(“PWID”), and two counts of Possession of a Controlled Substance.2 Davis filed

an omnibus pretrial motion seeking to suppress physical evidence. A

suppression hearing was held, and the trial court denied the motion on

November 12, 2020.

After a non-jury trial, Davis was found not guilty of RSP and guilty of

the remaining charges. On July 28, 2021, the trial court sentenced Davis to

serve an aggregate term of incarceration of four to eight years. Davis filed a

post-sentence motion, which the trial court denied. This timely appeal

followed. Both Davis and the trial court have complied with Pa.R.A.P. 1925.

In his sole issue, Davis argues the trial court erred in denying his motion

to suppress the evidence. See Appellant’s Brief at 8-11. Davis contends the

218 Pa.C.S.A. §§ 6105(a)(1), 3925(a), 6106(a)(1), 903, 35 P.S. §§ 780- 113(a)(30), and 780-113(a)(16), respectively.

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search of the black Lincoln was illegal because it was based solely upon Officer

Locke’s observation of the odor of marijuana. See id. at 10. To support his

claim that the evidence must be suppressed, Davis relies on our Supreme

Court’s recent decision in Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021)

(holding that, following the enactment of the Medical Marijuana Act (“MMA”),

“the odor of marijuana alone does not amount to probable cause to conduct a

warrantless search of a vehicle but, rather, may be considered as a factor in

examining the totality of the circumstances.”). Upon review, we conclude the

facts of this case render Barr distinguishable.

Questions of the admission and exclusion of evidence are within the

sound discretion of the trial court and will not be reversed on appeal absent

an abuse of discretion. See Commonwealth v. Freidl, 834 A.2d 638, 641

(Pa. Super. 2003). Moreover, we note that our scope of review from a

suppression ruling is limited to the evidentiary record that was created at the

suppression hearing. See In re L.J., 79 A.3d 1073, 1087 (Pa. 2013). While

Pa.R.Crim.P. 581(H) provides that “[t]he Commonwealth shall have the

burden ... of establishing that the challenged evidence was not obtained in

violation of the defendant’s rights[,]” it is nonetheless true that “[i]t is within

the suppression court’s sole province as factfinder to pass on the credibility of

witnesses and the weight to be given their testimony.” Commonwealth v.

Gallagher, 896 A.2d 583, 585 (Pa. Super. 2006).

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To secure the right of citizens to be free from intrusions by police, courts

in Pennsylvania have long required law enforcement officers to demonstrate

ascending levels of suspicion to justify their interactions with citizens as those

interactions become more intrusive. See Commonwealth v. Beasley, 761

A.2d 621, 624 (Pa. Super. 2000).

It is undisputed that:

Pennsylvania case law recognizes three categories of interaction between police officers and citizens. The first of these is a “mere encounter,” or request for information, which need not be supported by any level of suspicion, but which carries no official compulsion to stop or to respond. The second category, an “investigative detention,” must be supported by reasonable suspicion. This interaction subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. The third category, an arrest or “custodial detention,” must be supported by probable cause. Probable cause exists where the facts and circumstances within the officer's knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.

Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en

banc) (citations and some quotation marks omitted).

Reasonable suspicion exists when there are specific and articulable facts

that create a reasonable suspicion, based on the officer’s experience, that

there is criminal activity afoot. See Commonwealth v. Sands, 887 A.2d 261,

271-272 (Pa. Super. 2005). Probable cause exists where the facts and

circumstances within the officer’s knowledge are sufficient to warrant a person

of reasonable caution to believe that a defendant has or is committing an

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offense. See Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa. Super.

2017) (citation omitted).

The well-established standard for evaluating whether probable cause

exists is consideration of the “totality of the circumstances” and not individual

factors. See Runyan, 160 A.3d at 837. Probable cause does not require

certainty, but rather exists when criminality is one reasonable inference, not

necessarily even the most likely inference. See Commonwealth v.

Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004).

Recently, in Barr our Supreme Court held that following the enactment

of the MMA, “the odor of marijuana alone does not amount to probable cause

to conduct a warrantless search of a vehicle but, rather, may be considered

as a factor in examining the totality of the circumstances.” Barr, 266 A.3d at

44. In reaching its conclusion, the Court explained “the smell of marijuana

indisputably can still signal the possibility of criminal activity[,]” and it “may

be a factor, but not a stand-alone one, in evaluating the totality of the

circumstances for purposes of determining whether police had probable

cause….” Commonwealth v. Barr, 266 A.3d 25, 41 (Pa. 2021).

While “marijuana no longer is per se illegal in this Commonwealth”

following passage of the MMA, “possession of marijuana [is] illegal for those

not qualified under the MMA.” Barr, 266 A.3d at 41. We are also mindful that

pursuant to the MMA, unused medical marijuana is to be kept in its original

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package, which is subject to labeling requirements. See 35 P.S. §

10231.303(b)(6), (8).

Here, the trial court addressed Davis’s claim challenging the admission

of evidence as follows:

Under these circumstances, the officers had reasonable suspicion that criminal activity, by way of a drug deal, was underway. The meeting at the parking lot was at the suggestion the drug dealer, who was contacted by a reliable confidential informant. The black Lincoln arrived at the designated time and place of the apartment complex. There were no other vehicles parked in area of the planned drug transaction. Officer Locke smelled a strong odor of marijuana, but it was not that single fact, alone, that caused him and other task force members to approach the suspected drug dealer’s vehicle. Heroin was observed in plain view, and defendant was found to be sitting on a firearm while he was being removed from the vehicle. [Davis’s] reliance on Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020) is misplaced under the circumstances of this case as police were relying on much more than merely the odor of marijuana to approach the suspects and place them under arrest.

Trial Court Opinion, 4/20/22, at 4.

Our review of the certified record reveals the trial court’s reasoning is

well supported. The odor of marijuana was not the sole factor that led police

to search the vehicle. As the trial court noted, the police were aware that the

CI, who was a reliable informant, set up a drug purchase on the day of the

incident. See N.T., Suppression Hearing, 9/22/2020, at 6. The suspected drug

dealer directed the CI to a specified location to complete the drug deal. See

id. at 7. An undercover vehicle was described to the suspected drug dealer as

the vehicle that the CI would be in. See id. at 9. At the designated time and

location, undercover agents were waiting in the undercover car in an empty

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portion of the parking lot as directed. See id. The vehicle in which Davis was

found, the black Lincoln, arrived at the scene at a time indicated by the

suspected drug dealer. See id. at 8.

Further, as explained by Officer Locke at the suppression hearing, the

black Lincoln parked next to the undercover vehicle in a manner indicative of

a drug transaction. See id. at 10-11. Upon approaching the black Lincoln,

Officer Locke testified that he noticed the odor of marijuana emanating from

the vehicle. See id. at 13-14. The entirety of the facts indicate that the odor

of marijuana was not the sole fact to support a finding of probable cause.

Rather, the totality of these circumstances, and the permissible inferences,

are sufficient to warrant a person of reasonable caution to believe that a crime

was being committed.

In addition, we observe Officer Locke stated that, while standing outside

of the black Lincoln prior to the search of the vehicle, he observed bags and

bundles of marijuana in a pocket on the back of the driver’s seat. See id. at

15. Again, unused medical marijuana is to be kept in its original package,

which is subject to labeling requirements. See 35 P.S. § 10231.303(b)(6),

(8). Based upon his training and experience, the illegal nature of the

marijuana packaged in bags and bundles in the rear pocket of the driver’s seat

was immediately apparent. Davis has not presented any contrary argument.

Accordingly, we conclude that this fact adds further support to the

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determination that probable cause existed, and Davis’s contrary argument

lacks merit.

Therefore, it is our determination that the suppression court properly

denied Davis’s motion to suppress the evidence. Consequently, we affirm the

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/14/2022

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