Com. v. Ceja, A.

J-A20026-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

ANDRES CEJA : No. 623 MDA 2022

Appeal from the Order Entered April 8, 2022

In the Court of Common Pleas of Lancaster County

Criminal Division at CP-36-CR-0001939-2021

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED: OCTOBER 3, 2023

The Commonwealth of Pennsylvania appeals from the order granting the

motion of Andres Ceja (Defendant) and suppressing evidence recovered from

Defendant’s car.1 After careful review, we reverse and remand.

The suppression court recounted the following evidence:

Officer [Robert] Burns was stopped in his marked patrol vehicle at

the intersection of South Lime Street and East State Street in

Quarryville, Lancaster County, Pennsylvania, when he witnessed

a black Honda on East State Street making a right-hand turn onto

South Lime Street. Suppression Transcript pg. 11; 21-24. Officer

Burns observed that the driver’s side headlight of the Honda was

inoperable, as well as having blue neon ornamental lighting in the

headlights as well. Suppression Transcript pgs. 11-12; 24-2.

Officer Burns subsequently initiated a traffic stop and [made

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* Former Justice specially assigned to the Superior Court.

1 The Commonwealth has certified that the order will terminate or

substantially handicap the prosecution. See Pa.R.A.P. 311(d).

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contact with] the driver, [Defendant]. Suppression Transcript

pgs. 12; 9-10, 14; 22-25.

Upon [contacting Defendant], Officer Burns testified that he

detected a “strong odor of marijuana emanating from inside of the

vehicle, as well as that the inspection[ sticker] appeared to be

placed in the window from another vehicle.” Suppression

Transcript, pg. 16; 9-14. … [T]he remnants of a marijuana

cigarette, known as a “roach,” could be seen in plain view in the

passenger side door pocket. Affidavit of Probable Cause for

Search Warrant ¶ 7. Officer Burns further testified that the VIN

number on the inspection stickers did not match the VIN plate on

the black Honda, confirming the inspection stickers came from a

different vehicle. Suppression Transcript pg. 17; 2-4. Upon being

asked to produce a vehicle registration or valid [proof of]

insurance for the vehicle, [Defendant] was unable to produce

either document. Suppression Transcript pg. 17; 9-16.

[Defendant] indicated to Officer Burns that the vehicle was not

registered, as he had just purchased the vehicle to flip it and had

not gotten the vehicle legally registered yet. Suppression

Transcript, pg. 17; 17-21. Officer Burns further noted in his

testimony that the vehicle tag on the black Honda is what is known

as a “dead tag” meaning that the Honda’s tag was no longer valid

and was registered to the [previous] owner of that vehicle.

Suppression Transcript pg. 18; 3-5.

Suppression Court Opinion, 8/8/22, at 1-2.

Because Officer Burns had detected the odor of marijuana inside the

vehicle, he began to question Defendant.

Officer Burns asked [Defendant] whether [] he was prescribed

medical marijuana or had a medical marijuana card, to which

[Defendant] answered that he did not possess a medical

marijuana card. Suppression Transcript pg. 18; 6-17. This

conversation took place to the rear of [Defendant’s] vehicle near

the vehicle’s trunk. Suppression Transcript pg. 18; 11-13. At this

point, Officer Burns asked [Defendant] if he had marijuana in the

vehicle, to which [Defendant] replied that he did not. Suppression

Transcript pg. 18; 18-23. Officer Burns subsequently requested

[Defendant’s] consent to search the vehicle; this request was

denied by [Defendant]. Suppression Transcript pgs. 18-19; 24-3.

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Officer Burns then asked [Defendant] if he had any prior

drug arrests on his record, and [Defendant] responded that he

had been arrested in the past for marijuana violations.

Suppression Transcript pg. 19; 5-8. [Officer] Burns then testified

that, at this point, he noticed the odor of marijuana was also “very

strong to the rear of the vehicle.” Suppression Transcript pg. 19;

9-11. Upon putting his face towards the trunk area of the vehicle

near the seams of the vehicle, Officer Burns stated that the odor

of marijuana was “extremely strong” from there. Suppression

Transcript pg. 19; 9-13. At this point, Officer Burns advised

[Defendant] that the black Honda was going to be secured and

towed from the scene[.] Suppression Transcript pg. 19; 14-16.

Officer Burns testified that he intended to secure the vehicle for

the purpose of preserving evidence and—noting that because of

the (1) odor of marijuana, (2) the lack of a medical marijuana

card, and (3) [Defendant’s] previous arrests for marijuana

violations—that he intended to apply for a search warrant.

Suppression Transcript pg. 19; 17-24.

[Defendant’s] vehicle was then towed to the Quarryville

Police Station, where it was secured in a garage bay and

monitored by video during the duration of its seizure. Suppression

Transcript pg. 20; 6-20. Officer Burns then contacted Officer

[Aaron] Haun, the affiant in this case, and requested that he

obtain a search warrant in the morning for the vehicle, which

Officer Haun did obtain. Suppression Transcript pgs. 20-21; 23-

3. Officer Haun, upon searching the vehicle, recovered six large

vacuum seal[-]style bags in the trunk containing approximately

665 grams of marijuana. Suppression Transcript pg. 21; 16-24.

Additionally, a large vacuum sealer, a small digital scale, a small

clear glassine baggie, and cotton balls were recovered from the

backseat of the vehicle. Suppression Transcript pgs. 21-22; 25-

3.

Suppression Court Opinion, 8/8/22, at 1-3 (italics omitted).

On April 1, 2021, the Commonwealth charged Defendant with

possession with intent to deliver, possession of a controlled substance,

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possession of drug paraphernalia, and violations of the Motor Vehicle Code.2

On October 19, 2021, Defendant filed an omnibus pre-trial motion to suppress

physical evidence. Defendant argued his “stop, arrest and [the] subsequent

search warrant were all unlawful and obtained in violation of the United States

Constitution, the Pennsylvania Constitution, Pennsylvania Law, and the

Pennsylvania Rules of Criminal Procedure.” Pre-trial Motion, 10/19/21, at 2.

The court held a suppression hearing on April 6, 2022. At the beginning

of the hearing, the Commonwealth asked Defendant’s counsel (Counsel) to

clarify the “exact legal theory upon which you’re proceeding.” N.T., 4/6/22,

at 4. Counsel replied:

My understanding is that the – the cop is saying the headlight is

out. I don’t see any evidence – haven’t seen any evidence that

the headlight was out. My understanding is that he can testify to

that.

Second of all – that would be the probable cause to pull him

over.

More importantly, Judge, once he’s pulled over[,] the smell

of marijuana was the reason that was stated by the officer as to

towing the vehicle and applying for the search warrant. Under

case law, I don’t believe that – just the smell of marijuana is no

longer enough to apply for a search warrant to search the car.

Id. at 4-5.

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2 35 P.S. §§ 780-113(a)(30), (16), and (32); 75 Pa.C.S.A. §§ 1301(a),

1786(f), 4303(a), and 4730(a)(1).

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At the conclusion of the hearing, Counsel argued Officer Burns lacked

probable cause to stop the car because the headlight was operable. Id. at

31-32. However, after reviewing photographs of the car, the suppression

court found, “clearly that headlight is out on that side.” Id. at 32. Counsel

then stated, “the main thrust of my argument today would be the plain smell

doctrine. Under case law … plain smell alone is not enough to apply for a

search warrant to tow the car.” Id. at 33. Counsel never challenged Officer

Burns’ credibility or his account of the interaction in asserting that the

Commonwealth did not establish probable cause. Id. at 32-33.

The suppression court granted Defendant’s suppression motion from the

bench. The court stated, “there’s not enough here to make [the court]

comfortable with the idea that probable cause existed to take the steps to

actually search the areas of the vehicle that this contraband was located

within.” Id. at 40. The court did not address whether the initial seizure of

the vehicle was supported by probable cause.

The Commonwealth timely filed a notice of appeal and court-ordered

concise statement pursuant to Pa.R.A.P. 1925(b). The suppression court

issued a Pa.R.A.P. 1925(a) opinion explaining that it granted suppression

because Officer Burns lacked probable cause to seize the vehicle for the

purpose of obtaining a search warrant. Suppression Court Opinion, 8/8/22,

at 4-10.

The Commonwealth raises the following issues for review:

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I. Whether the [suppression] court erred in finding that the

affidavit of probable cause was insufficient to support the

search warrant?

II. Whether the Commonwealth waived any challenge to the

[suppression] court’s decision on the initial seizure of the

vehicle?

III. Whether the [suppression] court erred in finding that there

was no probable cause to temporarily secure [Defendant’s]

vehicle for the [purpose] of obtaining a search warrant?

Commonwealth Brief at 4.

Preliminarily, we recognize:

When the Commonwealth appeals from a suppression order, we

follow a clearly defined standard of review and consider 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. The suppression court’s

findings of fact bind an appellate court if the record supports those

findings. The suppression court’s conclusions of law, however, are

not binding on an appellate court, whose duty is to determine if

the suppression court properly applied the law to the facts.

Commonwealth v. Vetter, 149 A.3d 71, 75 (Pa. Super. 2016) (citations

omitted).

In its first issue, the Commonwealth argues that the affidavit to obtain

the warrant to search Defendant’s car was supported by probable cause.

Commonwealth’s Brief at 13-16. The Commonwealth contends there was

probable cause because: (1) Officer Burns detected a strong odor of marijuana

coming from the vehicle; (2) Defendant admitted he did not have a medical

marijuana card; (3) the remnants of a marijuana cigarette were in plain view;

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and (4) Defendant admitted to prior arrests for drug offenses, which were

confirmed by a review of Defendant’s criminal history. Id. at 15.

“A search warrant must be supported by probable cause.” U.S. Const.

amend. IV; Pa. Const. art. I, § 8. Probable cause exists “where the facts and

circumstances within the affiant’s knowledge and of which he has reasonably

trustworthy information are sufficient in themselves to warrant a man of

reasonable caution in the belief that a search should be conducted.”

Commonwealth v. Torres, 177 A.3d 263, 265 (Pa. Super. 2017).

In Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985), our Supreme

Court adopted a “totality of the circumstances” test, originally set forth by the

United States Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983), as

the appliable law under the Pennsylvania Constitution. The Court concluded

the “approach is as workable here as in those other areas of criminal

procedure where a common-sense, practical approach is indicated.” Gray,

503 A.2d at 926. Under this test:

the task of an issuing authority is simply to make a practical,

common-sense decision whether, given all of the circumstances

set forth in the affidavit before him, including the veracity and

basis of knowledge of persons supplying hearsay information,

there is a fair probability that contraband or evidence of a crime

will be found in a particular place.

***

It is the duty of a court reviewing an issuing authority’s

probable cause determination to ensure that the magistrate had a

substantial basis for concluding that probable cause existed. In

so doing, the reviewing court must accord deference to the

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issuing authority’s probable cause determination[] and

must view the information offered to establish probable

cause in a common-sense, non-technical manner.

***

[Further, a reviewing court is] not to conduct a de novo

review of the issuing authority’s probable cause determination[;

the court’s task is] simply to determine whether or not there is

substantial evidence in the record supporting the decision to issue

the warrant.

Commonwealth v. Torres, 764 A.2d 532, 537-38, 540 (Pa. 2001) (emphasis

added) (citations and quotation marks omitted). Notably, “the affidavit of

probable cause must establish a ‘substantial nexus’ between the [place to be

searched] and [the] criminal activity or contraband sought to permit the

search[.]” Commonwealth v. Mendoza, 287 A.3d 457, 463 (Pa. Super.

2022) (citation omitted).

Here, Defendant challenged the finding of probable cause, not the

authenticity of the allegations in the affidavit of probable cause. N.T., 8/8/22,

at 4-5. Courts in Pennsylvania are not permitted to consider evidence outside

the four corners of the warrant in cases where the defendant is challenging

the adequacy of the probable cause determination. See Commonwealth v.

Edmunds, 586 A.2d 887, 891 (Pa. 1991) (reversing denial of suppression

where the trial court considered oral testimony of police officers which

supplemented an affidavit of probable cause); see also Commonwealth v.

Taylor, 850 A.2d 684, 687-88 (Pa. Super. 2004) (discussing different

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analyses when a defendant is challenging the adequacy of the determination

of probable cause versus the authenticity of the information in the affidavit).

In ruling from the bench, the suppression court found the evidence failed

to establish probable cause for the search warrant based on discrepancies

between Officer Burns’ testimony at the suppression hearing, and Officer

Haun’s statements, as affiant, in the affidavit of probable cause. Suppression

Court Opinion, 8/8/22, at 38-39; Affidavit of Probable Cause, 4/1/21, at 1-2.

The suppression court’s reasoning was contrary to the law and looked beyond

the four corners of the warrant. See Commonwealth v. Leed, 186 A.3d

405, 413 (Pa. 2018) (“At any hearing on a motion for the return or suppression

of evidence, or for suppression of the fruits of evidence obtained pursuant to

a search warrant, no evidence shall be admissible to establish probable cause

other than the affidavits provided for in [Rule 203](B).” (citation omitted)).

As its second basis for granting suppression, the court found the only

allegation supporting the warrant was the smell of marijuana, which was

insufficient to support probable cause under the Pennsylvania Supreme

Court’s decisions in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), and

Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021). N.T., 4/6/22, at 39-40.

However, subsequent case law interpreting Hicks and Barr have rendered

the suppression court’s conclusion unsustainable.

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

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

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

Following the passage of the Medical Marijuana Act (MMA),3 the Pennsylvania

Supreme Court revisited the issue.

In Hicks, the Supreme Court considered a claim involving the legal

possession of a firearm. The Court observed that a person’s possession of a

concealed firearm in a public setting is conduct “in which hundreds of

thousands of Pennsylvanians are licensed to engage lawfully” and is “an

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

Hicks, 208 A.3d at 945.

Subsequently, in Barr, the Supreme Court stated, “the MMA makes

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

Commonwealth.” Barr, 266 A.3d at 41. However, the Court clarified that

possession of marijuana remains illegal under the Controlled Substance, Drug,

Device and Cosmetic Act (CSA)4 “for those not qualified under the MMA.” Id.

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3 35 P.S. § 10231.101 et seq. The Pennsylvania General Assembly enacted

the MMA effective May 17, 2016.

4 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 and citations omitted). “Outside the MMA,

marijuana remains a prohibited Schedule I controlled substance for the

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

(Footnote Continued Next Page)

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Our Supreme Court then held “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. (emphasis added). The Court

Emphasize[d] 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.

Id. at 41-42.

Recently, this Court applied Barr to the issue of whether the smell of

marijuana, in combination with other factors, provided sufficient probable

cause to support a search warrant. Commonwealth v. Boyd, 296 A.3d 1270

(Pa. Super. 2023). In Boyd, the defendant was subject to a traffic stop and

unsuccessfully sought to suppress evidence resulting from the search of his

car pursuant to a search warrant. After discussing Barr, we considered the

totality of the circumstances presented in the affidavit of probable cause: the

police officer who conducted the traffic stop was an experienced officer with

specialized training in narcotics investigation; the defendant displayed

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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).

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nervous behavior; the car had multiple air fresheners masking the odor of

marijuana; and the defendant acknowledged he did not possess an MMA card.

Id. We concluded that when considered together, the totality of the facts

“create[d] sufficient suspicion of criminal activity to create probable cause to

search for contraband.” Id. at 1278.

Instantly, the affidavit of probable cause described Officer Burns and

Officer Haun as experienced police officers with extensive training in narcotics.

Affidavit of Probable Cause, 4/1/21, at 1-2. Officer Burns served as a member

of a county-wide Drug Task Force for six years. Id. at 1. Based upon his

experience, Officer Haun averred that drug users often hide contraband in

secure locations in a car (like the trunk) and build “stash” places within the

car. Id. The affidavit explained that the initial traffic stop was based on the

car having an inoperable headlight. Id. The affidavit also mentioned the

strong odor of marijuana coming from the car, and Defendant not having an

MMA card. Id. at 2. In addition, “[t]he remnants of a marijuana cigarette …

[could] be seen in plain view in the passenger side door pocket.” Id. Lastly,

“[a] review of [Defendant’s c]riminal [h]istory revealed multiple prior arrests

for drug offenses[.]” Id.

Based on the totality of these circumstances, the information contained

in the four corners of the affidavit established “sufficient suspicion of criminal

activity to create probable cause to search for contraband.” Boyd, 296 A.3d

at 1278. Further, there exists a substantial nexus between the allegations in

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the affidavit and the search of the entire vehicle. Accordingly, we reverse the

grant of suppression. See Commonwealth v. Arias, 286 A.3d 341, 348-49

(Pa. Super. 2022) (applying Barr and concluding police officer possessed

sufficient probable cause for a warrantless search of a vehicle, where the car

had been in a high-crime area for an extended period of time; the male driver

had not exited the car during that time; the vehicle’s license plate was

registered to a different car owned by a woman; and an odor of marijuana

was coming from the vehicle).

Next, in its second issue and third issues, the Commonwealth challenges

the suppression court’s determination in its Rule 1925(a) opinion that there

was insufficient probable cause to justify the seizure of Defendant’s car while

obtaining the search warrant. Commonwealth’s Brief at 17-21.

In its second issue, the Commonwealth addresses the question of

whether its third issue is preserved for our review. The Commonwealth

acknowledges it did not raise the third issue in its Rule 1925(b) statement,

but argues we should excuse the deficiency because the suppression court did

not “address the propriety of the initial seizure of [Defendant’s] vehicle [in its

bench ruling].” Id. at 17. The Commonwealth emphasizes that the “first

time the initial seizure was deemed unlawful was in the [suppression] court’s

1925(a) Opinion.” Id.

It is axiomatic that “any issue not raised in a Rule 1925(b) statement

will be deemed waived for appellate review.” Commonwealth v. Bonnett,

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239 A.3d 1096, 1106 (Pa. Super. 2020) (citing Commonwealth v. Lord, 719

A.2d 306, 309 (Pa. 1998)). Rule 1925(b) mandates that the statement

“concisely identify each error that the appellant intends to assert with

sufficient detail to identify the issue to be raised for the judge.” Pa.R.A.P.

1925(b)(4)(ii).

However, this Court has recognized:

If the reasons for the ruling of the [c]ourt are vague, then an

appellant is forced to file an incomplete Rule 1925(b) statement

and there is no violation of Rule 1925(b). Just as the trial judge

cannot be made to guess what an appellant is complaining of on

appeal, an appellant cannot be made to guess what the trial judge

is thinking in his or her ruling.

Commonwealth v. Zheng, 908 A.2d 285, 288 (Pa. Super 2006) (italics

omitted); see also Hess v. Fox Rothschild, LLP, 925 A.2d 798, 804 (Pa.

Super. 2007) (explaining when an appellant cannot ascertain the basis for a

trial court’s rationale, it is not appropriate to find Rule 1925 waiver). Upon

review, we agree with the Commonwealth that under the circumstances,

waiver is not appropriate. We therefore consider the Commonwealth’s third

issue.

In its third issue, the Commonwealth argues the suppression court erred

in finding that Officer Burns “relied solely on the smell of marijuana as the

basis for seizure of [Defendant’s] vehicle.” Commonwealth’s Brief at 18

(quoting Suppression Court Opinion, 8/8/22, at 10). The Commonwealth

maintains that Officer Burns relied on multiple factors in suspecting criminal

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activity, which together were sufficient to support a finding of probable cause.

Id. at 18-21.

In Commonwealth v. Gillespie, 821 A.2d 1221 (Pa. 2003), our

Supreme Court adopted the standard enunciated by the United States

Supreme Court in Illinois v. McArthur, 531 U.S. 326, 328 (2001), for

determining when “police may secure the residence of an individual by having

him wait outside his home to preserve the loss of evidence while a warrant is

diligently sought.” Gillespie, 821 A.2d at 1227. The factors to be considered

are whether:

(1) the police had probable cause to believe the suspect’s home

contained evidence of a crime and contraband; (2) the police had

good reason to fear that, unless restrained, the defendant would

destroy the evidence before they returned with a warrant; (3) the

police made reasonable efforts to balance the interests of law

enforcement with those of privacy; and (4) the restraint imposed

was limited in time and scope.

Id. In Commonwealth v. Kubis, 978 A.2d 391 (Pa. Super. 2009), this Court

extended the McArthur factors to apply to motor vehicles, “where the

expectation of privacy is much lower.” Kubis, 978 A.2d at 394.

The suppression court did not address the McArthur factors. Instead,

it applied Barr to find that the seizure of Defendant’s vehicle was not

supported by probable cause. Suppression Court Opinion, 8/8/22, at 6. As

discussed above, subsequent caselaw interpreting Barr does not support the

suppression court’s conclusion that the police lacked probable cause. See

Boyd, 296 A.3d at 1278; Arias, 286 A.3d at 348-49.

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In Kubis, we held that the McArthur factors were met where

police had a reasonable fear that [the a]ppellant, knowing that he

was under investigation, would seek to destroy the evidence were

it not seized. [The] police balanced [the a]ppellant’s privacy

interest with the Commonwealth’s interest in obtaining clearly

incriminating evidence by seizing the vehicle, in which [appellant]

had a lesser expectation of privacy than in his home, as well as

obtaining a warrant before searching the vehicle. [And] the scope

of the seizure was limited; police seized [the a]ppellant’s vehicle,

not his person or his place of dwelling.

Kubis, 978 A.2d at 395.

We see no distinction between this case and Kubis. Therefore, we

conclude that the suppression court erred in granting Defendant’s suppression

motion based on lack of probable cause to seize the car.

For the above reasons, we reverse the grant of suppression and remand

for further proceedings.

Order reversed. Case remanded. Jurisdiction relinquished.

Date: 10/3/2023

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