Com. v. Lomax, R.

• Court: Superior Court of Pennsylvania
• Decided: February 14, 2022
• Docket: 470 MDA 2021
• Status: Unpublished

Opinion

J-S34015-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ROBERT LEE LOMAX : No. 470 MDA 2021

Appeal from the Order Entered March 3, 2021 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0001063-2020

BEFORE: DUBOW, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED: FEBRUARY 14, 2022

The Commonwealth appeals from the Order entered in the Court of

Common Pleas of Adams County granting Appellee Robert Lee Lomax’s Motion

to Suppress. The Commonwealth argues that the suppression court erred in

suppressing evidence obtained by a state trooper who, after initiating a valid

traffic stop based on a broken brake light, ordered Appellee to exit the car and

began an unrelated investigation based solely on the smell of unburnt

marijuana. After careful review, we affirm.

We glean the following facts from the testimony at the suppression

hearing and the trial court’s opinion accompanying its suppression order. On

May 6, 2020, Trooper Justin Horan of the Pennsylvania State Police was on

patrol with Trooper Matthew Kile on North Fourth Street in Gettysburg. As he

was driving, Trooper Horan noticed a maroon Cadillac with dark window tint

traveling northbound. Based on a suspicion that the tint may have violated J-S34015-21

the traffic code, he turned his cruiser around and began following the Cadillac.

While he followed the car, he noticed that several taillights were not working.

Based on the broken taillights, he initiated a traffic stop.

During the traffic stop, Appellee was cooperative and calm. Trooper

Horan did not notice any behavior suggesting impairment. N.T. Suppression

2/8/21, at 29. He did, however, notice the smell of fresh, unburnt marijuana

in the car. Id. at 9. He asked Appellee for his driver’s license, which Appellee

gave him. He then ordered Appellee out of the car.

After Appellee exited the car, Trooper Horan told him that the reason he

asked him to exit the car was that he could smell marijuana. He asked

Appellee if he had smoked marijuana recently. Appellee replied that he had

not and showed Trooper Horan his official medical marijuana card.

Trooper Horan then returned to his cruiser, turned off his mobile video

recorder (“MVR”), and spoke with Trooper Kile. He then turned the MVR back

on, returned to Appellee, and asked again when he last smoked marijuana.

Appellee told Trooper Horan that he had smoked marijuana approximately

four hours before the traffic stop. Based on this answer, Trooper Horan

ordered Appellee to perform field sobriety tests. After the tests, Trooper Horan

arrested Appellee for driving under the influence of marijuana.

The Commonwealth charged Appellee with Driving Under the Influence

of a Controlled Substance (“DUI-CS”): Schedule 1; DUI-CS: Metabolite, DUI-

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CS: Impaired Ability, Careless Driving, General Lighting Requirements-Rear

Lighting.1

Appellee moved to suppress all evidence obtained after Trooper Horan

ordered Appellee to exit the vehicle. The court held a suppression hearing on

February 8, 2021, at which Trooper Horan was the sole witness. At the

hearing, Trooper Horan specified that, based on his experience with

marijuana, the odor of marijuana was “fresh,” as opposed to “burnt.” N.T. at

9. He also testified that he ordered Appellee out of the car “for standard field

sobriety testing” based solely on the odor and Appellee’s “glassy and

bloodshot” eyes. Id. at 9-10.

On cross examination, he testified that he did not see Appellee drive in

any way that indicated impairment, and that Appellee obeyed all traffic laws

other than the brake light violation. Id. at 23-24. He agreed that, at the time

of the stop, there was “no indication of impairment,” and that Appellee was

calm, cooperative, and that his behavior did not in any way suggest that he

was impaired. Id. at 24-29. The only evidence he had of impairment, he

reiterated, was the smell of “fresh” marijuana and Appellee’s “glassy,

bloodshot eyes.” Id. at 30-32.

On March 2, 2021, the suppression court granted the motion and

suppressed all evidence collected after Trooper Horan ordered Appellee to exit

the vehicle, including Appellee’s admission that he had smoked marijuana and

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1 75 Pa.C.S. § 3802(d)(1)(i), (d)(1)(iii), and (d)(2); 3714(a); and 4303(b).

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the results of the field sobriety test. In its opinion accompanying the order,

the court found that Trooper Horan’s testimony that he noticed Appellee’s

glassy eyes before he ordered him to exit the car was not credible.

On March 9, 2021, the Commonwealth filed a Motion for

Reconsideration, which the court denied on March 26, 2021. This timely appeal

followed. Both the Commonwealth and the suppression court have complied

with Pa.R.A.P. 1925.

The Commonwealth presents the following issue:

Did the Suppression Court err in suppressing all evidence after Appellee was told to exit his vehicle, based on a misapplication of required standards of suspicion required for police interaction?

Commonwealth’s Br. at 7.

On review of a grant of a suppression motion, our review “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.” Commonwealth v. Stem, 96 A.3d 407, 409 (Pa. Super. 2014)

(citation omitted). “[O]ur scope of review is limited to the factual findings and

legal conclusions of the suppression court.” In re L.J., 79 A.3d 1073, 1080

(Pa. 2013) (citation omitted). We defer to the suppression court, “as

factfinder[,] to pass on the credibility of witnesses and the weight to be given

to their testimony.” Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.

Super. 2003). “[H]owever, we maintain de novo review over the suppression

court’s legal conclusions.” Commonwealth v. Brown, 996 A.2d 473, 476

(Pa. 2010).

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We categorize police interactions with members of the public into three

general tiers of increasing intrusiveness, which require increasing levels of

suspicion on the part of an officer who initiates them: (1) mere encounters,

which require no suspicion; (2) investigative detentions, which require

reasonable suspicion; and (3) custodial detentions, which require probable

cause. Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. Super. 2000).

A traffic stop is a special kind of seizure, which a police officer may only

initiate if he has reason to believe that a violation of the traffic code has

occurred. Commonwealth v. Brown, 64 A.3d 1101, 1105 (Pa. Super. 2013).

The level of required suspicion turns on the kind of violation in question: if it

is the kind of violation that would require further investigation to prove, the

officer needs a reasonable suspicion; if it is the kind of violation that is

immediately apparent and would not require any further investigation, the

officer needs probable cause. Id. In either case, the officer’s authority for the

seizure extends only as long as is necessary to attend to the business of the

stop. Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016).

Outside of the context of a traffic stop, an officer’s order for an occupant

to exit a vehicle is a show of authority that transforms the encounter into at

least an investigative detention, requiring reasonable suspicion. See

Commonwealth v. Boswell, 721 A.2d 336, 340 (Pa. 1998). During the

course of a valid traffic stop, however, an officer may order occupants to exit

the vehicle as a matter of course. Commonwealth v. Wright, 224 A.3d

1104, 1109 (Pa. Super. 2019). This authority lasts only as long as the duration

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for the authority of the stop itself. Commonwealth v. Mattis, 252 A.3d 650,

655 (Pa. Super. 2021). An officer’s order for a driver to exit the vehicle once

the authority for the original stop has expired initiates a new investigative

detention, requiring independent reasonable suspicion of additional illegal

activity. Id.

An officer’s authority to detain a driver during a traffic stop lasts only as

long as is necessary to investigate the infraction that provoked the stop, issue

a citation, and attend to any related safety concerns. Rodriguez v. U.S., 575

U.S. 348, 354-55 (2015). When an officer abandons the investigation of the

underlying violation and begins questioning the driver about unrelated

criminal activity, he effectively ends the traffic stop and initiates an

independent investigative detention. Mattis, 252 A.3d at 656. To lawfully do

so requires independent reasonable suspicion. Id.; see also

Commonwealth v. Prizzia, 260 A.3d 263, 272 (Pa. Super. 2021) (trooper

lawfully began investigating possible DUI after initiating a traffic stop based

on a window tint violation because he developed independent reasonable

suspicion that driver was intoxicated).

Demonstrating reasonable suspicion requires that the detaining officer

“articulate something more than an inchoate and unparticularized suspicion

or hunch.” Commonwealth v. Jefferson, 256 A.3d 1242, 1248 (Pa. Super.

2021) (citation omitted). In determining whether the Commonwealth has met

this burden, courts must make an objective inquiry into whether, based on

“the facts available to [the] police at the moment of intrusion,” a reasonable

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officer would believe the action was appropriate. Id. (citation omitted).

Information that the detaining officer discovers before and during the initial

traffic stop can support his reasonable suspicion justifying a subsequent

detention. See generally In Interest of A.A., 195 A.3d 896 (Pa. 2018).

“[I]nformation discovered after the [subsequent] detention has begun,”

however, cannot. Commonwealth v. Mackey, A.3d 221, 232 (Pa. Super.

2017).

In the past, Pennsylvania courts have held that, because marijuana is

illegal to possess, the smell of marijuana alone can be sufficient to establish

a reasonable suspicion of criminal activity. See, e.g., In the Interest of

A.A., 195 A.3d at 904 (noting that “the odor of marijuana alone, particularly

in a moving vehicle, is sufficient to support at least reasonable suspicion”).

Due to the legalization of medical marijuana in the Commonwealth, however,

our Supreme Court has recently revisited the assumptions underlying this

inference, sometimes referred to as the “plain smell doctrine,” in

Commonwealth v. Hicks, 208 A.3d 916, 945 (Pa. 2019) and

Commonwealth v. Barr, No. 28 MAP 2021, 2021 WL 6136363 (Pa. Dec. 29,

2021).

In Hicks, our Supreme Court held that “conduct in which hundreds of

thousands of Pennsylvanians are licensed to engage lawfully” is, on its own,

“an insufficient basis for reasonable suspicion that criminal activity is afoot.”

Hicks, 208 A.3d at 945 (Pa. 2019). As such, the Court held that allowing the

mere possession of an item whose possession is regulated under a licensing

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scheme to establish, on its own, reasonable suspicion to support an

investigatory detention “unjustly places the onus upon the citizen to

demonstrate that her possession of the [object] is not criminal, reversing the

constitutional mandate that the police officer must establish a valid basis for

the intrusion upon her privacy in the first instance.” Id. at 944 (emphasis in

original).

In Barr, the Court recognized that, due to the passage of the Medical

Marijuana Act, the possession of marijuana belongs to this category of licensed

activity. Barr 2021 WL 6136363 at *12-13. As such, “one’s liberty may not

be abridged on the sole basis that a law enforcement officer detected the smell

of marijuana[.]” Id. at *14. While the Barr Court only directly considered the

question of whether the smell of marijuana can meet the higher standard of

probable cause, it anchored its logic in Hicks’ broader proscription against

allowing “conduct for which the individual obtained a license to serve as the

exclusive basis for the deprivation of the licensee’s liberty.” Id.

In the instant case, in its opinion accompanying the Suppression Order,

the suppression court found that “at the time Troper Horan removed

[Appellee] from his vehicle, the Trooper did not have reasonable suspicion of

criminal activity that would warrant further investigation.” Supp. Ct. Op. at 5.

Specifically, it found that “Trooper Horan did not articulate any facts to

suggest [Appellee] recently smoked or ingested marijuana, or that [Appellee]

was in any way impaired[.]” Id. Instead, “the smell of fresh marijuana without

any evidence of impairment . . . only shows that [Appellee] may have lawfully

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possessed marijuana earlier that day[.]” Id. at 6. As such, “Trooper Horan did

not articulate what information he possessed to justify the temporary

investigative detention of” Appellee. Id.

We agree with the suppression court’s conclusions. Trooper Horan

initiated the traffic stop based on a broken taillight, which is a traffic violation

that requires no further investigation before issuing a citation. When Trooper

Horan ordered Appellee to exit the vehicle and began questioning him about

the smell of marijuana, he initiated an independent investigative detention to

investigate additional potential illegality. To lawfully do so, Trooper Horan

needed a reasonable suspicion of criminal activity. The only credited evidence

justifying Trooper Horan’s suspicion, however, was the smell of fresh

marijuana. Absent any other indicia of wrongdoing this smell cannot

objectively suggest anything more than the possession of a substance that

many Pennsylvanians can legally possess. As such, it cannot, on its own,

establish the kind of reasonable suspicion necessary to initiate an investigative

detention.

In its brief, the Commonwealth does not argue otherwise. Instead, it

argues that Trooper Horan developed a reasonable suspicion to detain

Appellee based on the smell of the marijuana and Appellee’s eventual

response, after repeated questioning, that he had smoked marijuana several

hours before the stop. Trooper Horan only learned this information, however,

long after he initiated the investigative detention. The Commonwealth cannot

use information that Trooper Horan only learned after initiating the

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investigative detention in order to retroactively justify his decision to detain

Appellee in the first place. The Commonwealth’s argument thus fails.

The suppression court correctly determined that Trooper Horan initiated

an investigative detention when he ordered Appellee to exit his vehicle and

began questioning him about matters unrelated to the original traffic stop,

and that he lacked reasonable suspicion required to do so. As such, the

suppression court properly suppressed the evidence resulting from the

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/14/2022

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