Com. v. Mann, M.

J-S30021-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

MICHAEL A. MANN : No. 1815 EDA 2021

Appeal from the Order Entered August 16, 2021

In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP-23-CR-000192-2021

BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY McCAFFERY, J.: FILED APRIL 28, 2023

The Commonwealth appeals from the August 16, 2021, order entered

in the Delaware County Court of Common Pleas granting a pretrial motion to

suppress by Michael A. Mann (Appellee).1 The trial court suppressed all

evidence stemming from an investigative detention following a traffic stop,

including all controlled substances found on Appellee’s person and in the

vehicle in which he was a passenger. The Commonwealth contends: (1) the

investigating officer possessed the requisite reasonable suspicion to support

the traffic stop based on the odor of freshly burnt marijuana emanating from

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* Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth has properly certified in its notice of appeal that the

order “will terminate or substantially handicap the prosecution” pursuant to

Pa.R.A.P. 311(d). Notice of Appeal, 9/10/21.

J-S30021-22

the moving car; and (2) because the stop was proper, the seizure of the

evidence recovered from the investigative detention was also permissible. For

the reasons below, we reverse the order granting suppression and remand for

further proceedings.

I. Facts & Procedural History

The trial court summarized the relevant facts of this case, which were

taken from the April 2021 suppression hearing, as follows:

Officer Sean Mullen (“Officer Mullen”) is a patrolman with

the City of Chester Police Department where he has been so

employed for approximately three (3) years.

On November 20, 2019[,] at approximately 9:00 p.m.[,]

Officer Mullen was on patrol at the 800 block of Kerlin Street in

the City of Chester, Delaware County, Pennsylvania. Officer

Mullen was in his marked vehicle, which was stopped at a traffic

light on the 800 block of Kerlin Street. He was in the left lane. His

windows were down. While stopped, he smelled the odor of burnt

marijuana, an odor which he recognized given his experience in

making arrests for marijuana related offenses. Based upon his

prior experience, Officer Mullen concluded that the odor of burnt

marijuana is indicative of “someone currently smoking or recently

. . . smoked marijuana.” Officer Mullen observed another vehicle

stopped at the traffic light. This vehicle was stopped in the right

lane, next to Officer Mullen. Officer Mullen’s vehicle was “less than

a car length” away from the other vehicle. The other vehicle had

two . . . occupants. Officer Mullen did not observe any smoke

emanating from the other vehicle. He did not see either the driver

or [Appellee] smoking marijuana. He only smelled the odor of

burnt marijuana. However, Officer Mullen suspected that the odor

was emanating from the vehicle due to the fact that this vehicle

was the only other vehicle “in the vicinity.” Officer Mullen offered

no testimony with respect to the presence or absence of

pedestrians in the area. Officer Mullen offered no testimony as to

whether he scanned the area for pedestrians or any individuals on

any of the properties located in the vicinity of the intersection.

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When the light turned green, Officer Mullen immediately

initiated a traffic stop of the vehicle. Officer Mullen offered no

testimony as to the specific crime he believed the vehicle

occupants to have committed. He initiated the traffic stop solely

because he detected an odor of burnt marijuana while stopped at

the traffic light and suspected the vehicle to be the origin of the

odor. After initiating the vehicle stop, Officer Mullen approached

the stopped vehicle on the passenger side. [Appellee] was the

only passenger in the vehicle and was seated in the front

passenger seat. Upon approaching the vehicle, Officer Mullen

observed a bag of suspected marijuana in [Appellee]’s right hand.

Officer Mullen described the bag as a clear sandwich bag. Officer

Mullen removed [Appellee] from the vehicle and placed him into

custody. He then conducted a search incident to an arrest and

found suspected heroin in [Appellee]’s top left jacket pocket.

The substance suspected to be marijuana was tested and

positively identified as marijuana. The substance suspected to be

heroin was field tested and positively identified as heroin. Officer

Mullen conducted an inventory search of the vehicle and found “in

the center cupholder a half-smoked cigarillo containing

marijuana.”

Trial Ct. Op., 1/13/22, at 3-5 (unpaginated; record citations omitted).

Appellee was then arrested and charged with the following crimes: (1)

one count of possession with intent to manufacture or deliver, (2) two counts

of possession of controlled substances, and (3) one count of possession of a

small amount of marijuana.2

On April 7, 2021, Appellee filed a motion to suppress, seeking to exclude

all evidence seized by the police from his person and in the vehicle. He argued

that Officer Mullen obtained the controlled substances and paraphernalia in

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2 35 P.S. §§ 780-113(a)(30), (a)(16), and (a)(31), respectively.

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violation of federal and state constitutional law. See Appellee’s Motion to

Suppress Physical Evidence, 4/7/21, at 3 (unpaginated).

The trial court held a hearing regarding the matter on April 14, 2021.

Trooper Mullen testified at the hearing. The court granted Appellee’s motion

several days later on April 29th.3 The Commonwealth subsequently filed a

motion for reconsideration of the court’s suppression order. In the motion,

the Commonwealth asserted that Appellee failed to meet his burden in

establishing a reasonable expectation of privacy in the car, and that Officer

Mullen

possessed reasonable suspicion to initiate the car stop based on

the strong smell of freshly burned marijuana[, the] police officer

had probable cause to arrest [Appellee] upon seeing a baggie of

marijuana in plain view as he approached the car, and he thus

legally obtained the heroin . . . in [Appellee]’s pocket during a

search incident to arrest[,] and the police officer saw in plain view

a cigarillo containing marijuana in the cupholder of the car.

Commonwealth’s Motion for Reconsideration of the Court’s Ruling on

[Appellee]’s Motion to Suppress Evidence, 5/7/21, at 2 (unpaginated).

Appellee filed a response to the Commonwealth’s motion for reconsideration

on June 2, 2021.

During this time, the trial court entered an order on May 19, 2021,4

setting forth a briefing schedule in regard to the motion for reconsideration

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3 The order was dated one day earlier on April 28th.

4 The order was dated two days earlier on May 17th.

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J-S30021-22

and scheduling oral argument for July 19, 2021. The trial court subsequently

entered an order granting the Commonwealth’s motion for reconsideration.

See Order, 6/1/21.5 Following the argument, the court entered another order

on August 16, 2021,6 which denied the Commonwealth’s motion. The court

further stated: “This [c]ourt’s [o]rder of April 2[9], 2021, which granted

suppression with respect to all physical evidence obtained in connection with

[Appellee]’s arrest on November 21, 2019[,] is affirmed in its entirety.” Order,

8/16/21. The Commonwealth filed a timely notice of appeal.

II. Issues

The Commonwealth presents the following issues for our review:

I. Did Officer Mullen have reasonable suspicion to conduct a traffic

stop based on the odor of freshly burnt marijuana emanating from

a moving car?

II. Where the investigative detention was legal, was the additional

evidence recovered fruit of the poisonous tree?

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5The order was dated May 26th, but docketed and timestamped on June 1st.

The order provided, in relevant part:

It is this Court’s intent that it[ ]s [o]rder of May 1[9], 2021 be

considered an express grant of [r]econsideration, as requested by

the Commonwealth’s [m]otion, filed on May 7, 2021, thereby

extending the Commonwealth’s deadline to file an appeal to [the]

Superior Court, pursuant to Pa.R.A.P. 903 and Pa.R.A.P. 311(d).

Order, 6/1/21.

6 The order was dated August 12th, but docketed and timestamped four days

later.

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Commonwealth Brief at 6.

III. Vehicle Stop & Reasonable Suspicion

The Commonwealth first argues that Officer Mullen properly possessed

reasonable suspicion to conduct a traffic stop based on the odor of freshly

burnt marijuana emanating from the stopped car. See Commonwealth’s Brief

at 10. It contends that in relying on Commonwealth v. Hicks, 208 A.3d 916

(Pa. 2019), and Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021), the trial

court “ignore[d] the difference” between probable cause and reasonable

suspicion when it ruled that Office Mullen improperly stopped the car, and

“failed to properly assess the totality of the circumstances to determine

whether there was reasonable suspicion justifying further investigation[.]”

Commonwealth’s Brief at 10-11. Id. The Commonwealth points out that

Officer Mullen “testified clearly and credibly that he smelled the odor of

recently burnt marijuana coming from the Honda next to him, in which

[Appellee] was later found to be the passenger” and “only initiated a traffic

stop to investigate the possibility of criminality.” Id. at 12, 15 (quotation

marks & footnote omitted). Moreover, the Commonwealth states:

Consistent with Pennsylvania law, Officer Mullen . . . reasonably

believed that the order of freshly burnt marijuana, which based

on his training and experience he knew meant someone had very

recently used the drug, was coming from the Honda that was

actively being driven. His investigation was thus permissible.

Id. at 15

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The Commonwealth further suggests that the trial court’s reliance on

Hicks, supra, and Barr, supra, is misplaced because the court “engaged in

an incomplete and erroneous analysis of the totality of the circumstances and

overlooked factors that properly contributed to reasonable suspicion.”

Commonwealth’s Brief at 16-17. The Commonwealth first states:

[T]he factual scenario of Hicks is distinguishable from the instant

case, even if the item possessed in Hicks was marijuana rather

than a gun. The gun in Hicks was being used; rather it was

passive. The equivalent form of marijuana would be the fresh,

raw marijuana that a person licensed to [possess] under the MMA

might have. Yet Officer Mullen did not smell fresh marijuana, he

smelled burnt marijuana. . . .

Id. at 17. Next, the Commonwealth alleges that “[u]nlike [in] Barr, the smell

of burnt marijuana was not the only factor present[,]” where Officer Mullen

also mentioned the additional factor that the smell of burnt marijuana “was

coming from a moving car.” Id. at 18.

Our review of an order granting a motion to suppress evidence is well-

established:

When reviewing the propriety of a suppression order, an appellate

court is required to determine whether the record supports the

suppression court’s factual findings and whether the inferences

and legal conclusions drawn by the suppression court from those

findings are appropriate. [Where the defendant] prevailed in the

suppression court, we may consider only the evidence of the

defense and so much of the evidence for the Commonwealth as

remains uncontradicted when read in the context of the record as

a whole. Where the record supports the factual findings of the

suppression court, we are bound by those facts and may reverse

only if the legal conclusions drawn therefrom are in error.

However, where the appeal of the determination of the

suppression court turns on allegations of legal error, the

suppression court’s conclusions of law are not binding on an

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J-S30021-22

appellate court, whose duty it is to determine if the suppression

court properly applied the law to the facts.

Commonwealth v. Tillery, 249 A.3d 278, 280 (Pa. Super. 2021) (citation

omitted). With respect to this issue, we are also guided by the following:

The Fourth Amendment to the United States Constitution

and Article I, Section 8 of the Pennsylvania Constitution guarantee

the right of the people to be secure in their persons, houses,

papers, and possessions from unreasonable searches and

seizures. To secure the right of citizens to be free from

unreasonable search and seizure, courts in Pennsylvania require

law enforcement officers to demonstrate ascending levels of

suspicion to justify their interactions with citizens to the extent

those interactions compromise individual liberty. Because

interactions between law enforcement and the general citizenry

are widely varied, search and seizure law looks at how the

interaction is classified and if a detention has occurred.

Commonwealth v. Luczki, 212 A.3d 530, 542 (Pa. Super. 2019) (citations

& quotation marks omitted).

There are three categories of interactions between police and citizens:

The first is a mere encounter, sometimes referred to as a

consensual encounter, which does not require the officer to have

any suspicion that the citizen is or has been engaged in criminal

activity. This interaction also does not compel the citizen to stop

or respond to the officer. A mere encounter does not constitute a

seizure, as the citizen is free to choose whether to engage with

the officer and comply with any requests made or, conversely, to

ignore the officer and continue on his or her way.

The second type of interaction, an investigative detention, is a

temporary detention of a citizen. This interaction constitutes a

seizure of a person, and to be constitutionally valid police must

have a reasonable suspicion that criminal activity is afoot.

The third, a custodial detention, is the functional equivalent of an

arrest and must be supported by probable cause. . . .

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Commonwealth v. Adams, 205 A.3d 1195, 1199-1200 (Pa. 2019) (citations

omitted & paragraph breaks added).

Turning to the present matter, no one disputes that Appellee was

subjected to an investigative detention when Officer Mullen pulled his police

vehicle directly behind the Honda, and activated his lights. See

Commonwealth v. Spence, 290 A.3d 301, 314 (Pa. Super. 2023) (noting “a

motor vehicle stop is generally a second-level interaction, an investigative

detention”). As such, Officer Mullen was required to demonstrate that he

possessed reasonable suspicion to stop the vehicle at issue.

In determining whether police had reasonable suspicion to initiate

an investigative detention, the 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. Reasonable suspicion is

dependent upon both the quantity and quality of the information

police possess prior to detaining an individual. In order to assess

the facts available to police, we must consider the totality of the

circumstances. While reasonable suspicion is a less stringent

standard than probable cause, the detaining officer must be able

to articulate something more than an inchoate and

unparticularized suspicion or hunch.

Commonwealth v. Jefferson, 256 A.3d 1242, 1248-49 (Pa. Super. 2021)

(citations & quotation marks omitted), appeal denied, 268 A.3d 1071 (Pa.

2021).

In granting Appellee’s motion to suppress, the trial court found “[t]he

only specific and articulable fact in this matter is the odor of burnt marijuana,

which Officer Mullen detected while stopped in the intersection.” Trial Ct. Op.

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at 10 (unpaginated). Thus, the central issue, as the trial court properly

summarized, is the following:

[W]hether the odor of burnt marijuana which Officer Mullen

detected while stopped at the intersection, standing alone,

constituted a particularized and objective basis for suspecting that

the vehicle occupants were engaged in criminal activity. If it did[,]

then Officer Mullen possessed the requisite reasonable suspicion

and the stop of the vehicle [was] justified.

Id. at 11 (emphasis omitted).

“Historically, Pennsylvania courts have held the smell of marijuana alone

was sufficient to establish a reasonable suspicion of criminal activity.”

Commonwealth v. Cunningham, 287 A.3d 1, 9 (Pa. Super. 2022).

Nonetheless, following the passage of the Medical Marijuana Act (MMA)7 and

the legalization of marijuana, the Pennsylvania Supreme Court revisited the

issue.

First, the Supreme Court considered a similar claim involving the

potential legal possession of a firearm in Hicks, supra. There, the Supreme

Court held that an individual’s mere possession of a concealed firearm in a

public setting constitutes conduct “in which hundreds of thousands of

Pennsylvanians are licensed to engage lawfully” and is, on its own, “an

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7 35 P.S. § 10231.101 et seq. The Pennsylvania General Assembly enacted

the MMA with an effective date of May 2016.

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

Hicks, 208 A.3d at 945.8

Subsequently, in Barr, supra, the Supreme Court concluded “that the

MMA makes abundantly clear that marijuana no longer is per se illegal in this

Commonwealth.” Barr, 266 A.3d at 41. Nevertheless, the Barr Court stated

that despite the enactment of the MMA, the possession of marijuana is still

illegal under the Controlled Substance, Drug, Device and Cosmetic Act (CSA)9

“for those not qualified under the MMA.” Id. The Supreme Court then held

“the odor of marijuana may be a factor, but not a stand-alone one, in

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8 Hicks overruled a prior decision of this Court, which held that “possession

of a concealed firearm by an individual in public is sufficient [in and of itself]

to create a reasonable suspicion that the individual may be dangerous, such

that an officer can approach the individual and briefly detain him in order to

investigate whether the person is properly licensed [to carry a firearm].”

Hicks, 208 A.3d at 921, quoting Commonwealth v. Robinson, 600 A.2d

957, 959 (Pa. Super. 1991).

9 35 P.S. §§ 780-101 et seq. See also 35 P.S. § 10231.304(a) (“Except as

provided in [the MMA], the use of medical marijuana is unlawful and shall . . .

be deemed a violation of the [CSA].”). The MMA “create[d] a temporary

program for qualified persons to access medical marijuana, for the safe and

effective delivery of medical marijuana, and for research into the effectiveness

and utility of medical marijuana.” Commonwealth v. Jezzi, 208 A.3d 1105,

1111 (Pa. Super. 2019) (emphasis & citations omitted). Moreover, “[o]utside

the MMA, marijuana remains a prohibited Schedule I controlled substance for

the general citizenry who are unqualified under the MMA.” Id. at 1115

(citation omitted). “[T]he General Assembly has not enacted legislation

amending the MMA, CSA, or the DUI statutes to remove marijuana from its

Schedule I designation under state law.” Commonwealth v. Stone, 273

A.3d 1163, 1172 (Pa. Super. 2022) (en banc) (footnote omitted), appeal

denied, 286 A.3d 213 (Pa. Oct. 12, 2022).

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evaluating the totality of the circumstances for purposes of determining

whether police had probable cause to conduct a warrantless search.”

Id. (emphasis added).10

Here, the trial court analyzed Hicks and Barr and determined:

What Barr and Hicks indicate, when taken together, is that

a concealed firearm on an individual’s person, like the odor of

marijuana emanating from a person, may be indicative of a

criminal act. However, there is no per se rule. It is not a stand-

alone, sufficient factor. Courts must examine other specific and

articulable facts which, when taken in the totality of the

circumstances — the whole picture — warrant individualized

suspicion of criminal conduct.

Trial Ct. Op. at 19 (unpaginated) (citation omitted). The court then

determined the Commonwealth failed to demonstrate that Officer Mullen

possessed reasonable suspicion of criminal activity that was sufficient to stop

the vehicle in which Appellee was a passenger, finding:

Officer Mullen detected the odor of burnt marijuana while stopped

at an intersection. Nothing more. He suspected that it was

emanating from the vehicle in the lane next to him. There was no

testimony that he saw the driver or [Appellee], a passenger,

smoking marijuana, or that he saw smoke emanating from their

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10 The Court further explained:

[W]e emphasize that the realization that a particular factor

contributing to probable cause may involve legal conduct does not

render consideration of the factor per se impermissible, so long as

the factor is considered along with other factors that, in

combination, suggest that criminal activity is afoot. [T]he totality-

of-the-circumstances analysis encompasses the consideration of

factors that may arguably be innocent in nature.

Barr, 266 A.3d at 41-42.

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vehicle. This Court cannot conclude that his suspicion was more

than a mere hunch. This Court concluded that there was

insufficient individualized and particularized suspicion of criminal

activity to warrant intrusion upon the [c]onstitutional rights of

[Appellee], a vehicle passenger, based upon the specific and

articulable facts of record in this matter.

Id. at 24.

We conclude that the trial court’s reasoning is misplaced for several

reasons. First, we note that Hicks and Barr are distinguishable from the

present matter. Hicks concerned the possession of a firearm — based on the

nature of the gun, it is not immediately apparent that any illicit conduct is

involved because “there is no way to ascertain an individual’s licensing status,

or status as a prohibited person, merely by his outward appearance.” Hicks,

208 A.3d at 937. Here, we point out that under the MMA, it is unlawful to

smoke medical marijuana. See 35 P.S. § 10231.304(b) (“It is unlawful to:

(1) Smoke medical marijuana. . . .); see also Commonwealth v. Felder,

1082 MDA 2021 (Pa. Super. Aug. 9, 2022) (unpub. memo. at 10) (noting that

because the MMA does not permit the smoking of marijuana, knowledge that

the appellant had paraphernalia for smoking marijuana gave the investigating

officer reason to believe the marijuana was being used illegally).11

Accordingly, it would have been immediately apparent to Officer Mullen that

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11 Pennsylvania Rule of Appellate Procedure 126 provides that non-

precedential decisions by this Court that are filed after May 1, 2019, “may be

cited for their persuasive value.” Pa.R.A.P. 126(b)(2).

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illegal activity might be occurring based on the odor of burnt marijuana.

Therefore, Hicks is not controlling in the present matter.

The trial court’s reliance on Barr is also misplaced because that case

concerned a warrantless search of a vehicle after the officer stopped the

car for an alleged motor vehicle code violation, and smelled marijuana once

he approached the car. See Barr, 266 A.3d at 29-30. As a result, the Barr

Court analyzed the facts before it pursuant to the probable cause standard,

which carries a higher burden of proof than the reasonable suspicion

standard.12 Moreover, the search of a car or person is more intrusive than a

motor vehicle stop. See Commonwealth v. Pratt, 930 A.2d 561, 563 (Pa.

Super. 2007) (“To secure the right of citizens to be free from [unreasonable]

intrusions, courts in Pennsylvania require law enforcement officers to

demonstrate ascending levels of suspicion to justify their interactions with

citizens as those interactions become more intrusive.”) (emphases added

& citation omitted). Accordingly, Barr does not control the case sub judice.

____________________________________________

12 The trial court also relied on two more “probable cause” cases,

Commonwealth v. Grooms, 247 A.3d 31 (Pa. Super. 2021) and

Commonwealth v. Shaw, 246 A.3d 879 (Pa. Super. 2021). See Trial Ct.

Op. at 18 n.5-6. Grooms concerned a warrantless search of a vehicle after

officers detected an odor of marijuana coming from a car located in a mall

parking lot. See Grooms, 247 A.3d at 34. In Shaw, the officer stopped a

car for a motor vehicle code violation, and then searched the vehicle upon

detecting an odor of marijuana. See Shaw, 246 A.3d at 881-82. Like Barr,

the facts in both cases are distinguishable from the instant matter.

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Rather, we are guided by this Court’s recent decision in Cunningham,

supra.13 In that case, the officer was driving down a street when he detected

an order of burnt marijuana through the open windows in his vehicle.

Cunningham, 287 A.3d at 5. He then “scanned the area” and noticed three

hooded males, one of whom was later identified as the defendant. Id. He did

not see any smoke, and there were no cars in the vicinity. Id. at 6. As the

officer stopped the vehicle and approached the individuals, the smell grew

stronger. Id. at 5. The three men crossed the street to avoid contact with

him. Id. The officer asked them to stop while they yelled at him. Id. When

he asked them if they were smoking marijuana, the men became more

aggressive towards him. Id. Believing he was in danger, he decided to pat

down the men. Id. The defendant was the last one searched and the officer

immediately identified a handgun in the defendant’s front pocket. Id. at 5-6.

The defendant filed a motion to suppress, which the trial court granted. Id.

at 6. The Commonwealth then filed a notice of appeal. Id.

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13 We note that Cunningham was decided after the trial court entered its

August 16, 2021, order and Rule 1925(a) opinion. “Pennsylvania appellate

courts apply the law in effect at the time of the appellate decision. This means

that we adhere to the principle that a party whose case is pending on direct

appeal is entitled to the benefit of changes in law which occur[ ] before the

judgment becomes final.” Commonwealth v. Chesney, 196 A.3d 253, 257

(Pa. Super. 2018) (citations & quotation marks omitted). Moreover, we note

that one three-judge panel of this Court cannot overrule another. See

Commonwealth v. Taggart, 997 A.2d 1189, 1201 n.16 (Pa. Super. 2010);

see also Commonwealth v. Taylor, 649 A.2d 453, 455 (Pa. Super. 1994).

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Similar to the present matter, the Cunningham Court was faced with

the question of whether the police had reasonable suspicion to support the

stop/investigation detention. Id. at 8. The Court analyzed Hicks and Barr

and discussed the most recent caselaw by this Court, including non-

precedential memoranda,14 concerning marijuana and police interactions,

explaining:

This Court has had the opportunity to apply the Hicks and

Barr decisions to various cases. In Commonwealth v. Dabney,

274 A.3d 1283, 1289 (Pa. Super. 2022), we assumed, arguendo,

that Barr applies to a determination of reasonable suspicion for

an investigative detention, and we held that the officer could

consider the odor of raw marijuana, as well as other factors, in

making that determination. In Commonwealth v. Lomax, 273

A.3d 1049 (Pa. Super. filed Feb. 14, 2022) (unpublished

memorandum), we held the smell of fresh marijuana cannot

objectively suggest anything more than possession of a substance

that many Pennsylvanians can legally possess. Therefore, we

concluded that it cannot, on its own, establish the reasonable

suspicion necessary to initiate an investigative detention.

More recently, in Commonwealth v. Felder, 1082 MDA

2021, (Pa. Super. filed Aug. 9, 2022) (unpublished

memorandum), we recognized the MMA does not permit the

smoking of marijuana; therefore, the police’s knowledge that the

defendant had paraphernalia for smoking marijuana gave the

officer reason to believe the marijuana was being used illegally.

Also, in Commonwealth v. Mercedes, 1275 MDA 2021, (Pa.

Super. filed Sept. 23, 2022) (unpublished memorandum), we

again recognized the MMA does not permit the smoking of

marijuana. . . . Accordingly, we held the police had reasonable

suspicion that marijuana was being illegally smoked when they

smelled burnt marijuana and observed the defendant or his

companion smoking a cigarillo. See Mercedes, supra.

____________________________________________

14 See Pa.R.A.P. 126(b)(2).

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Cunningham, 287 A.3d at 9-10 (footnoted omitted).

The Cunningham Court then stated: “[V]iewing the totality of the

circumstances, and applying our Supreme Court’s holdings in Barr, supra,

and its progeny, we conclude [the officer] had a reasonable suspicion that

criminal activity was afoot when he subjected [the defendant] to the

investigative detention.” Cunningham, 287 A.3d at 10. The Court pointed

to the burnt smell of marijuana (and the fact the men walked across the street

when the officer approached them) to support this conclusion. Id. Thus, this

Court reversed the trial court’s grant of the defendant’s motion to suppress.15

With these principles in mind, we agree with the Commonwealth that

the trial court erred in concluding Officer Mullen did not have reasonable

suspicion to stop the vehicle at issue. The record reveals that Officer Mullen,

a three-year veteran, was on routine patrol in Chester, Pennsylvania, at 9

p.m. on November 20, 2019. See N.T., 4/14/21, at 5-6. His vehicle was

located in the left traffic lane, waiting for a green light, with his windows down

when he smelled “an odor of burnt marijuana coming from a Honda” that was

located “less than a car length” from his vehicle in the right lane. Id. at 6, 8.

____________________________________________

15This Court also addressed the issue of whether the officer had reasonable

suspicion to frisk the defendant. See Cunningham, 287 A.3d at 10-12.

It should be noted that the author of this decision filed a dissenting

opinion in Cunningham, concluding the officer lacked reasonable suspicion

to detain and frisk the appellant. Nevertheless, this author recognizes he is

bound by the decision.

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Once the light turned green, he activated his emergency lights and conducted

a traffic stop. Id. at 6. The officer indicated there were no “other vehicles in

or around the vicinity of” his car or the vehicle that was subjected to the stop.

Id. at 7. He could not see into the Honda because of his position. Id. at 8.

He stated he was “familiar with the smell of burnt marijuana versus raw

marijuana[.]” Id. at 7. He further stated that based on his experience, burnt

marijuana signaled that someone was “currently smoking or recently just

smoked marijuana.” Id. The officer testified he was not aware of any medical

marijuana dispensaries in that area. Id.

In accordance with the CSA, the MMA, and Cunningham, and given the

totality of the circumstances (including smelling the odor of burnt marijuana

and that the vehicle at issue was the only one in the vicinity), Officer Mullen

had reasonable suspicion that criminal activity was afoot — specifically, that

marijuana was being smoked illegally16 — which justified the vehicle stop.17

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16 In the en banc Stone decision, this Court stated:

[D]espite the passage of the MMA, it still is illegal in Pennsylvania

to smoke or vape marijuana while driving. If an individual ingests

marijuana while driving, it is immaterial whether the marijuana is

medical or non-medical or if that individual possesses a valid

medical marijuana card; driving while smoking or vaping

marijuana remains illegal.

Stone, 273 A.3d at 1172 (citations & quotation marks omitted).

17It merits mention the trial court did not make a credibility determination

concerning Officer Mullen, and the officer did testify that he smelled burnt

(Footnote Continued Next Page)

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Accordingly, we conclude the trial court erred in granting Appellant’s motion

to suppress based on Officer’s Mullen’s alleged lack of reasonable suspicion to

stop the vehicle.18

IV. Search & Seizure of Additional Evidence

Next, we consider the Commonwealth’s second argument that because

Officer Mullen had reasonable suspicion to stop the Honda, the additional

evidence recovered was properly seized and not the fruit of the poisonous

tree. See Commonwealth’s Brief at 22.

A. The Baggie of Marijuana in Appellee’s Hand

The Commonwealth contends that as a result of the proper stop, Officer

Mullen was permitted to seize the baggie of marijuana in Appellee’s hand

because he observed it in “plain view” and “from a legal vantage point.” See

Commonwealth’s Brief at 22. It states that pursuant to the plain view

doctrine, “the totality of the circumstances firmly established that there was

probable cause to believe that the incriminating nature of the plastic bag

____________________________________________

marijuana coming from the car in which the Appellee was a passenger. See

N.T. at 6. We also note that in Cunningham, the officer only smelled the

odor of burnt marijuana, but never observed smoke coming from the males.

See Cunningham, 287 A.3d at 6.

18We note that both the Commonwealth and the trial court cite to In the

Interest of A.A., 195 A.3d 896 (Pa. 2018), which predates Hicks and Barr,

and was also abrogated on “plain smell” grounds by Barr, 266 A.3d at 41. In

any event, based on Cunningham, we need not reach the issue of whether

A.A. applies to the present case.

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containing marijuana was immediately apparent” and the officer recognized it

as contraband based on his experience. Id. at 24

The plain view doctrine provides that evidence in plain view

of the police can be seized without a warrant. This doctrine

permits a valid warrantless seizure of an item where: (1) the

police have not violated the Fourth Amendment in arriving at the

location from which the item could be viewed; (2) the item is in

plain view; (3) the incriminating character of the item is

immediately apparent; and (4) the police have a lawful right of

access to the item itself.

There can be no reasonable expectation of privacy in an

object that is in plain view. There is no reason a police officer

should be precluded from observing as an officer what would be

entirely visible to him as a private citizen. To assess whether the

incriminating nature of an object was immediately apparent to the

police officer, reviewing courts must consider the totality of the

circumstances. In viewing the totality of the circumstances, the

officer’s training and experience should be considered.

Commonwealth v. Lutz, 270 A.3d 571, 577-78 (Pa. Super. 2022) (citations

& quotation marks omitted).19

Here, the record reveals that when Officer Mullen approached the

passenger side of the Honda, he looked in and observed Appellee with “a [clear

sandwich] bag of marijuana in his right hand.” See N.T. at 9-10. Based on

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19 The plain view doctrine has not been impacted by Commonwealth v.

Alexander, 243 A.3d 177 (Pa. 2020), which held that officers must have both

probable cause and exigent circumstances to justify a warrantless search of

an automobile. In Commonwealth v. Smith, 285 A.3d 328 (Pa. Super.

2022), this Court held that “the decision in Alexander does not address the

plain view exception or any alterations to its requirements[and, t]herefore,

where the circumstances permit an application of the plain view exception, we

need not apply Alexander.” Smith, 285 A.3d at 332 (citation omitted). See

also Commonwealth v. McMahon, 280 A3d 1069, 1074 (Pa. Super. 2022).

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J-S30021-22

our analysis supra, Officer Mullen was lawfully outside the Honda when he

first observed the bag of marijuana in plain view on the passenger’s side from

the vantage point of the window. We now turn to whether the bag’s

“incriminating character was readily apparent” and whether Officer Mullen

“had a lawful right of access” to the bag. Lutz, 270 A.3d at 578.

An officer can never be 100 percent certain that an item in

plain view is incriminating, but his belief must be supported by

probable cause. A determination of probable cause requires only

a probability and not a prima facie showing of criminal activity

applying a totality of the circumstances test. Thus, probable

cause is a practical, nontechnical conception: it is a fluid concept

— turning on the assessment of probabilities in particular factual

contexts not readily, or even usefully, reduced to a neat set of

legal rules.

Lutz, 270 A.3d at 578 (citations & quotation marks omitted).

As mentioned above, 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.

Moreover, pursuant to the MMA, marijuana “may only be dispensed” in the

following forms — pills, oils, topical forms, forms “medically appropriate for

administration by vaporization[,]” tinctures, or liquids. 35 P.S. §

10231.303(b)(2)(i-vi). It “may not be dispensed . . . in dry leaf or plant form.”

35 P.S. § 10231.303(b)(3). Moreover, unused medical marijuana “shall be

kept in the original package in which it was dispensed.” 35 P.S. §

10231.303(b)(6).

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Applying probable cause as a “practical, nontechnical” concept, we

conclude Officer Mullen’s belief that the bag of marijuana “in plain view was

readily discernible as incriminating in nature provided ample probable cause.”

Lutz, 270 A.3d at 578-79 (citation omitted). The officer immediately

recognized that it was marijuana in Appellee’s hand and did not indicate that

it was in any of the enumerated and permitted forms as set forth in the MMA.

Moreover, the officer did not indicate it was in the original packaging; rather

it was in a clear plastic sandwich bag. Therefore, we agree with the

Commonwealth’s argument that based on the totality of the circumstances,

Officer Mullen had lawful access to the bag of marijuana in Appellee’s hand

because he observed the contraband in plain view. Because the seizure was

lawful, the trial court erred in granting suppression of the bag containing

marijuana.

B. Drugs Found Search Incident to Arrest

The Commonwealth further argues that because Officer Mullen had

probable cause to arrest Appellee based on his possession of the bag of

marijuana, the officer was permitted to search Appellee’s person incident to

arrest and recover the additional drugs found in his pocket. See

Commonwealth’s Brief at 25.

The search incident to arrest exception allows arresting

officers, in order to prevent the arrestee from obtaining a weapon

or destroying evidence, to search both the person arrested and

the area within his immediate control. Furthermore, this

exception to warrantless searches permits police to search an

arrestee’s person as a matter of course, without a case-by-case

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J-S30021-22

adjudication of whether such search is likely to protect officer

safety or evidence. Stated another way, in all cases of lawful

arrests, police may fully search the person incident to the arrest.

Lutz, 270 A.3d at 579-80 (citations, quotation marks, & emphasis omitted).

Here, after observing the bag of marijuana in Appellee’s hand, Officer

Mullen removed him from the vehicle, placed him custody, and then searched

incident to arrest. See N.T. at 10. He discovered “heroin” in Appellee’s “left

top jacket pocket.” Id. We note the Pennsylvania “Supreme Court has

expressly recognized that an officer conducting a valid traffic stop may order

the occupants of a vehicle to alight to assure his own safety.”

Commonwealth v. Mattis, 252 A.3d 650, 655 (Pa. Super. 2021). Moreover,

the search of Appellee’s person incident to arrest was proper. See Lutz, 270

A.3d at 579-80. Based on the facts before us, we do not discern that the

scope of the search or the manner in which the search was conducted gave

rise to an impression of illegality. Accordingly, we conclude the trial court

erred in granting suppression of the drugs found in Appellee’s pocket following

a search incident to arrest.

C. Cigarillo Found in Cupholder of the Car

In its last argument, the Commonwealth asserts:

[B]ecause neither the driver nor [Appellee] was authorized to

drive the vehicle in which they were found (because the driver had

neither a license nor registration and [Appellee] was arrested),

Officer Mullen needed to immobilize the car. In doing so, he

observed in plain view in the center cupholder . . . a half-smoked

cigarillo containing marijuana.

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Commonwealth’s Brief at 25 (citations omitted). The Commonwealth also sets

forth an alternative argument that “even if Officer Mullen had not sought to

immobilize the car incident to arrest, the suppression of the cigarillo would

still remain improper where, as here, [Appellee] failed to meet his burden to

prove a privacy interest in the Honda.” Id. at 26.

Officer Mullen testified that the driver of the Honda “did not have a valid

license.” N.T. at 14. Moreover, the officer stated that he did not believe the

vehicle was registered to the driver. Id. at 11. As a result, he conducted an

inventory search of the car and found “a half-smoked cigarillo containing

marijuana” in the center cupholder. Id. at 10. The vehicle was then towed.

Id. at 14.

We first turn to the Commonwealth’s privacy interest argument.

An expectation of privacy will be found to exist when the

individual exhibits an actual or subjective expectation of privacy

and that expectation is one that society is prepared to recognize

as reasonable. In determining whether a person's expectation of

privacy is legitimate or reasonable, the totality of the

circumstances must be considered and the determination will

ultimately rest upon a balancing of the societal interests involved.

The constitutional legitimacy of an expectation of privacy is not

dependent on the subjective intent of the individual asserting the

right but on whether the expectation is reasonable in light of all

the surrounding circumstances.

Commonwealth v. Viall, 890 A.2d 419, 422 (Pa. Super. 2005) (citations &

quotation marks omitted).

It is well-settled that “a defendant charged with a possessory offense

has automatic standing to challenge a search.” Commonwealth v. Burton,

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973 A.2d 428, 435 (Pa. Super. 2009) (en banc) (citation omitted).

Nevertheless, “in order to prevail, the defendant . . . must show that he had

a privacy interest in the area searched.” Id. at 434 (citation omitted). In

Commonwealth v. Enimpah, 106 A.3d 695 (Pa. 2014), the Pennsylvania

Supreme Court clarified that the Commonwealth retains the initial burden to

“present evidence that the defendant’s constitutional rights were not

infringed.” Id. at 701. However, if the Commonwealth presents evidence

which shows the defendant “lacked such a privacy interest,” the burden shifts

to the defendant to demonstrate he had a reasonable expectation of privacy

in the area searched. Id.

This Court has recognized that “occupants of an automobile have a

certain expectation of privacy in the operation of that vehicle and may not be

subject to unfettered governmental intrusion in the form of an unlawful

stop[.]” Viall, 890 A.2d at 422. “While passengers in an automobile may

maintain a reasonable expectation of privacy in the contents of luggage they

placed inside an automobile, it would be unreasonable to maintain a subjective

expectation of privacy in locations of common access to all occupants.” Id.

at 423 (citations omitted).

Here, the Commonwealth presented evidence that Appellee was in a car

that was being driven by a companion who does not have a valid driver’s

license and neither occupant of the car were the registered owners. Moreover,

the Commonwealth demonstrated the evidence at issue, the cigarillo, was

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J-S30021-22

found in the center cupholder, a common access area to all individuals in the

car. Appellee did not present any evidence to refute this testimony.

Therefore, we conclude Appellee did not satisfy his burden of demonstrating

he had a reasonable expectation of privacy in the vehicle searched. See

Enimpah, 106 A.3d at 701. Accordingly, the trial court erred in suppressing

evidence of the cigarillo because Appellee lacked a privacy interest in the

search.20

V. Conclusion

In sum, we reverse the trial court’s order granting suppression of

evidence stemming from an investigative detention following a traffic stop,

including all controlled substances found on Appellee’s person and in the

vehicle in which he was a passenger.

Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/28/2023

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20Based on our “privacy interest” determination, we need not reach the

Commonwealth’s argument concerning the inventory search.

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