J-A13036-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JORDAN JEREL LANCE : No. 1330 WDA 2023
Appeal from the Order Entered October 10, 2023 In the Court of Common Pleas of Clearfield County Criminal Division at No(s): CP-17-CR-0000173-2023
BEFORE: OLSON, J., SULLIVAN, J., and BENDER, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED: July 2, 2024
In this appeal by the Commonwealth, we are asked to determine
whether the trial court erred by suppressing the evidence in this case after
concluding that police officers acted without reasonable suspicion. After
careful review, we affirm.
The trial court capably set forth the facts of this case as follows:
On October 6, 2022, at approximately 12:58 AM, Lawrence Township Police Officers [Nathan] Lash and [Zachary] Cowan were on patrol [when] … Officer Cowan observed a brown Kia Soul and ran the registration plate. The vehicle was registered to [Appellee, Jordan Jerel Lance]. Officer Cowan testified that upon running the registration, he became aware that [Lance]’s license was suspended. The [o]fficers activated the emergency lighting on the marked patrol unit and initiated a traffic stop. Officer Cowan testified that upon making contact with the vehicle[,] he detected a “strong odor” of marijuana originating from the vehicle. Officer Lash made contact with Amber Johnson (hereinafter, Johnson), the driver of the vehicle, while Officer Cowan approached [Lance] on the passenger side of the vehicle. Neither Johnson nor [Lance] were wearing safety belts. Officer Lash requested Johnson J-A13036-24
provide proof of registration, insurance, and a driver’s license. It was determined that there had been insurance, but it had been cancelled due to nonpayment. Johnson never provided Officer Lash with her registration.
[The o]fficers then asked Johnson where she was headed, to which she claimed that she was on her way to Bigler to go “spin.” When asked where they were coming from, Johnson claimed that they had just left the home of Danielle Yontosh (hereinafter Yontosh). [The o]fficers were aware that Yontosh is a known drug residence and that Yontosh is a known drug user and has a history of being involved in drug sales. When Officer Cowan inquired about the marijuana odor, [Lance] informed him that he had a medical marijuana card. Upon Officer Cowan’s request that [Lance] produce his medical marijuana card, [Lance] ‘fidgeted’ in the center console. [Lance]’s actions in obtaining his wallet from the center console gave the [o]fficers the impression that he was trying to conceal something. Specifically, [Lance] would not open the console the entire way and held the lid down as he searched for his wallet. Officer Lash went back to the patrol unit and ran [Lance] through the Officer Law Enforcement Mobile System to check for any warrants. This search yielded a non- extraditable warrant from New Jersey for “Dangerous Drugs.”
While Officer Lash was running the information, Officer Cowan observed a metal weight in plain view, [and the o]fficers were aware that was used for a digital scale. [Lance] attempted to hide the weight, but later claimed that he used it to weigh his [m]arijuana. Officer Cowan then requested [Lance] exit the vehicle and Officer Cowan conducted a roadside drug interdiction interview. Officer Lash then began questioning Johnson, [and ]when asked about her previous whereabouts for a second time, her account changed. Officer Cowan asked [Lance] to retrieve his [m]edical [m]arijuana out of his backpack to verify that it was in the original dispensary container due to the pervasive [m]arijuana odor. Officer Cowan and [Lance] returned to the vehicle, where [Lance] began to root through his backpack and again [Lance] gave the appearance of attempting to conceal something from the officers. When Officer Cowan requested [Lance] bring the backpack to the patrol unit so [Lance] could get the [m]edical [m]arijuana out, [Lance] refused. Officer Cowan then had [Lance] stop searching through the backpack for the purpose of preserving officer safety, as [Lance] barely unzipped the backpack and was
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using only his hand to search the bag to prevent [the ]officers from viewing the contents of the bag.
The [o]fficers requested that [Lance] consent to a search of the vehicle, to which he declined. Officer Lash then requested that Johnson exit the vehicle. Upon her exit of the vehicle, Johnson partially opened the driver side door and slid out as if she was attempting to hide something inside the vehicle. Officer Lash inquired as to whether Johnson had anything on her person that was going to poke, or stab, or hurt the [o]fficer prior to a pat down search as Standard Field Sobriety tests were to be conducted. Johnson first claimed that she had two sticks, but later claimed that they were used syringes that belonged to her brother. [The o]fficers searched Johnson and found no other illegal items on her person. The [o]fficers then informed both Johnson and [Lance] that they were free to leave and that [Lance]’s vehicle would be towed to AJ ROSS garage and that they would be notified upon completion of the search warrant. [The o]fficers secured the vehicle, during which they found a zip-loc [sic] bag containing a large quantity of suspected crystal methamphetamine [lying] on the floor by the driver side seat.
Trial Court Opinion and Order (TCO), 10/10/23, at 1-3 (citations to the record
omitted).
The Commonwealth charged Lance via criminal complaint on October
11, 2022, with one count each of Possession with the Intent to Deliver (35
P.S. § 780-113(a)(30)), Possession of a Controlled Substance (35 P.S. § 780-
113(a)(16)), and Possession of Drug Paraphernalia (35 P.S. § 780-
113(a)(32)). The case was bound over for trial following Lance’s preliminary
hearing, and Lance filed an Omnibus Pretrial Motion on May 11, 2023. Lance’s
motion argued that the officers did not have reasonable suspicion to conduct
the traffic stop. Motion to Suppress, 5/11/23, at 3. Following a hearing on
the motion, the trial court asked for briefs on the suppression issue.
Thereafter, the court granted Lance’s motion to suppress.
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The Commonwealth then filed this timely appeal,1 and both the
Commonwealth and the trial court have complied with Pa.R.A.P. 1925. The
Commonwealth posits the following question for our review:
Where police officers possessed specific and articulable facts indicating that two crimes – driving with a suspended license and driving under the influence of marijuana – had occurred, did the suppression court err in concluding that reasonable suspicion for an investigative detention fully was extinguished upon realizing that [Lance] was not driving unlicensed, despite the fact that the officers’ suspicion of the DUI offense arose before their suspicion of the other offense was extinguished?
Commonwealth’s Brief at 4.
Our standard of review in addressing a challenge to the trial court’s
granting of a suppression motion is well established. When the
Commonwealth appeals from a suppression order, we evaluate only the
evidence from the defendant’s witnesses together with the evidence of the
prosecution that, when read in the context of the entire record, remains
uncontradicted. Commonwealth v. Barr, 266 A.3d 25, 39 (Pa. 2021). We
must first consider whether trial court’s factual findings are supported by the
record, and, if they are, we are bound by those findings. Id. Our last task is
to determine whether the legal conclusions that the trial court drew from its
factual findings are correct. Id.; see also Commonwealth v. Millner, 888
A.2d 680, 685 (Pa. 2005) (same).
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1 The Commonwealth has included a certification that the order will terminate
or substantially handicap the prosecution of this case, as required by Pa.R.A.P. 904(e). Notice of Appeal, 11/14/23.
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As a preliminary matter, we note that the trial court failed to announce
its findings of fact and conclusions of law following the suppression hearing.
See Pa.R.Crim.P. 581(I) (stating trial court must enter on record findings of
fact and conclusions of law at end of suppression hearing). Where a trial court
fails to abide by Rule 581(I), however, this Court may look at the trial court’s
Rule 1925(a) opinion to garner findings of fact and conclusions of law. See
Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002). Here,
the trial court issued a 1925(a) opinion that adequately relates the court’s
findings and analysis. Thus, we will review Appellant’s issue. Id.
The Fourth Amendment of the United States Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from being
subjected to unreasonable searches and seizures. Commonwealth v.
Green, 298 A.3d 1158, 1162 (Pa. Super. 2023). Our Courts have developed
three categories of interactions that may occur between ordinary citizens and
police officers:
The first of these is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an “investigative detention” must be supported by a reasonable suspicion; it 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. Finally, an arrest or “custodial detention” must be supported by probable cause.
Id. at 1162-63 (citation omitted).
All parties concede that we are dealing here with the second category
of interactions, the investigative stop. See, e.g., Commonwealth v.
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Spence, 290 A.3d 301, 314 (Pa. Super. 2023) (noting that “a motor vehicle
stop is generally a second-level interaction, an investigative detention”).
[T]he Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he has a “particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417- 418 (1981); see also Terry v. Ohio, 392 U.S. 1 (1968). “Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” Prado Navarette v. California, 572 U.S. 393, 397 (2014); United States v. Sokolow, 490 U.S. 1 (1989).
Kansas v. Glover, 589 U.S. 376, 380 (2020) (cleaned up).
Thus, we must consider whether the facts known to the officers in this
case at the time of the stop provided the requisite reasonable suspicion of
criminal activity. See Commonwealth v. Jefferson, 256 A.3d 1242, 1248
(Pa. Super. 2021) (“[T]he fundamental inquiry is an objective one, namely,
whether the facts available to police at the moment of the intrusion warrant a
man of reasonable caution in the belief that the action taken was
appropriate.”) (citation omitted; emphasis added); see also U.S. v.
Sokolow, 490 U.S. 1, 12 (“[B]efore detaining an individual, law enforcement
officers must reasonably suspect that he is engaged in, or poised to commit,
a criminal act at that moment.”) (emphasis in original) (Marshall, J.,
dissenting). Reasonable suspicion is measured by what the police knew prior
to conducting the search or seizure. Jefferson, supra (citing
Commonwealth v. Wiley, 858 A.2d 1191, 1197 (Pa. Super. 2004)). We
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conclude that, while the officers initially had reasonable suspicion that the car
was being driven by a person who did not have a valid driver’s license, which
would be a violation of the Vehicle Code, that suspicion dissipated quickly
when the officers discovered that Lance was not driving the vehicle, thus
eliminating the authority for the traffic stop.
Because reasonable suspicion for a traffic stop is an objective inquiry,
we must look at the facts available to the officer in question at the moment of
the intrusion to evaluate whether a man of reasonable caution would believe
that the action taken was appropriate. Commonwealth v. Gray, 784 A.2d
137, 142 (Pa. Super. 2001). We must consider the totality of the
circumstances when assessing the factual basis for the stop. Jefferson,
supra. Reasonable suspicion exists only where the officer articulates specific
observations which, in conjunction with the reasonable inferences derived
from those observations, led him reasonably to conclude that criminal activity
was afoot, and that the person stopped was involved with that criminal
activity. Commonwealth v. Cunningham, 287 A.3d 1, 8-9 (Pa. Super.
2022) (citation omitted).
The Commonwealth argues that Officers Cowan and Lash properly
stopped the vehicle after determining that the vehicle was registered to Lance
and that Lance did not have a driver’s license; further, “the officers lawfully
continued their investigation in order to determine whether Johnson was
under the influence of marijuana.” Commonwealth’s Brief at 14. The
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Commonwealth asserts that a reasonable person would have concluded, based
upon all the circumstances surrounding the traffic stop, that Johnson had
recently smoked marijuana while driving. Id. In support of that assertion,
the Commonwealth notes that Johnson was in a car with a known drug dealer,
neither party in the car wore a seat belt,2 and the passenger slouched in his
seat as if he had something to hide. Id. at 17-18.
The Commonwealth cites Commonwealth v. Dabney, 274 A.3d 1283
(Pa. Super. 2022), in support of its claim. The Commonwealth maintains that
the issue raised in Dabney was whether officers had probable cause to make
an arrest for DUI after, inter alia, the officers smelled burnt marijuana coming
from a vehicle following a traffic stop for speeding. Id. at 1286-87. Notably,
the present claim concerns the issue of reasonable suspicion for a traffic stop,
not probable cause. Moreover, the vehicle in Dabney had been stopped for
driving at an excessive speed, traveling 93 MPH in a 65 MPH zone. Id. at
1285. When Dabney opened the door to the vehicle and spoke to the officer,
the officer smelled “a strong odor of raw marijuana” coming from inside the
vehicle. Id. at 1287. “Other than speeding,” the officer had noticed no erratic
driving or traffic violations. Id.
2 The Commonwealth’s reference to Johnson and Lance not wearing seatbelts
is unavailing as proof of reasonable suspicion because this conduct constitutes a summary offense only when the person not wearing the seatbelt commits at least one other offense. 75 Pa.C.S. § 4581(a)(2)(ii), (b).
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Dabney’s primary claim involved whether marijuana should continue to
be deemed a Schedule I controlled substance after passage of the Medical
Marijuana Act (MMA), 35 P.S. §§ 10231.101–10231.2110. In his second
appellate issue, Dabney acknowledged the legality of the initial stop based
upon his driving at an excessive speed, but argued that the officer initiated a
new investigative detention after noticing the marijuana odor. Id. at 1292.
Specifically, he asserted that the officer “began a new investigative detention
when he asked about the marijuana odor and asked Dabney to exit the
vehicle.” Id. Because the only additional basis for the detention was the odor
of raw marijuana, Dabney argued that the officer instigated an illegal
detention not supported by reasonable suspicion. Id.
This Court did not grant relief. The panel noted that the odor of
marijuana alone does not amount to probable cause to conduct a warrantless
search of a vehicle. Id. (citing Barr, supra, at 44). However, the smell of
marijuana should be considered as a part of the totality of the circumstances
and may, along with other factors, provide justification for the stop. Id.3
Thus, the officer could consider the fact that the car was traveling at 93 MPH,
as well as the odor of marijuana, when determining that field sobriety tests
were appropriate. Accordingly, the stop in Dabney was lawful. Id.
3 The Dabney decision assumes, arguendo, that Barr’s holding that the smell
of marijuana alone does not amount to probable cause for a warrantless search also applies to the issue of reasonable suspicion for an investigatory stop. Dabney, 274 A.3d at 1293.
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In the case at bar, all parties agree that police initially possessed
reasonable suspicion after running the car’s registration because the officers
knew that Lance, the registered owner of the vehicle, did not have a valid
driver’s license. Glover, supra. Contrary to the Commonwealth’s argument,
however, the possibility of the driver’s being unlicensed was the only legal
basis for the stop. There was nothing inherently illegal in Johnson’s driving a
car owned by another (here, Lance) who did not hold a valid driver’s license.
Failing to wear a seat belt can constitute a summary offense, but it is not an
unusual circumstance and only supports a criminal charge if combined with
other Vehicle Code violations. 75 Pa.C.S. § 4581(a)(2)(ii), (b). Moreover,
there is nothing inherently illegal in a passenger in a vehicle slumping in his
seat. The Commonwealth’s additional justifications for the stop do not amount
to any valid reason for suspicion.
Officer Gorman specifically noted that he assumed that Lance was
driving the vehicle because it was dark, and the officers could not see a
passenger in the vehicle. N.T. Omnibus Pre-Trial Motion Hearing, 6/30/23, at
17. When asked, Officer Gorman explained: “[T]he reasonable suspicion that
[Lance] was operating the vehicle is the reason we stopped the vehicle.” Id.
at 18. Critically, the officers had observed no Vehicle Code violations. See
N.T. Preliminary Hearing Transcript, 2/14/23, at 10 (“[Q:] [W]as the vehicle
doing anything suspicious, was it swerving, or any traffic violations? Anything
like that to make you think is someone drunk or driving or anything? [A:] No,
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not at that point.”).4 Thus, we conclude that the only possibly valid reason
for the stop given by officers was the smell of marijuana coming from the car.
Yet this is not enough.
We conclude that the officer’s suspicion that the vehicle was being
driven by a person who did not have a valid driver’s license ended once he
saw Lance was in the passenger seat and not the driver’s seat. For the
investigative stop to be valid, therefore, the officer needed some other
indication of reasonable suspicion that criminal activity was afoot to validate
the investigative detention. See Commonwealth v. Strickler, 757 A.2d
884, 889 (Pa. 2000). Further, any investigative detention may continue only
so long as is necessary to confirm or dispel the officer’s suspicion. Id. Once
suspicion is dispelled, so too is the authority for the investigative detention.
In the case at bar, the Commonwealth’s only additional rationale for the
investigative stop was the smell of marijuana. Yet, our Supreme Court found
in Barr, supra, that the smell of marijuana, alone, no longer supports an
inference of illegality. Barr, 266 A.3d at 41. The Court stated:
We conclude that the [Medical Marijuana Act] makes abundantly clear that marijuana no longer is per se illegal in this Commonwealth. Accordingly, the enactment of the MMA eliminated this main pillar supporting the “plain smell” doctrine as applied to the possession or use of marijuana. Indeed, so long as a patient complies with the dictates of the MMA, that person can legally possess and consume various forms of medical marijuana, ____________________________________________
4 At the hearing on the motion to suppress, the parties admitted the transcript
of the preliminary hearing into evidence and stipulated to its authenticity. N.T. Omnibus Pretrial Motion Hearing, 6/30/23, at 5.
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including the plant itself. Accordingly, the smell of marijuana alone cannot create probable cause to justify a search under the state and federal constitutions.
Id. (emphasis added). Of course, as the Barr Court recognized, marijuana
use is highly regulated, and those who use the substance without a valid
Medical Marijuana Card still may violate the Controlled Substances Act. Id.
Thus, the smell of marijuana indisputably can still be a factor in assessing the
possibility of criminal activity. Given this dichotomy, our Supreme Court
concluded that the odor of marijuana 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 to conduct a warrantless
search. Id.
In conclusion, the officers’ reasonable suspicion of criminal activity
occurring in this case ended when they realized that Lance, the owner of the
vehicle and the one with the suspended license, was not driving. At that point,
the officers should have let the vehicle go on its way. Had the officers
observed any additional violations of the Vehicle Code, even the running of a
stop sign, our decision might be different. But the officers here had the smell
of marijuana, nothing more. Under Barr, this is insufficient. Accordingly, we
conclude that the trial court here properly granted the motion to suppress.
Order affirmed.
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DATE: 07/02/2024
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