Com. v. Dabney, F., Jr. ( 2022 )

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2022 PA Super 82COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANKLIN ROOSEVELT DABNEY JR. :
:
Appellant : No. 638 MDA 2021
Appeal from the Judgment of Sentence Entered May 4, 2021,
in the Court of Common Pleas of Adams County,
Criminal Division at No(s): CP-01-CR-0001083-2020.
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY KUNSELMAN, J.: FILED MAY 05, 2022
Franklin Roosevelt Dabney, Jr. appeals from the judgment of sentence
imposed following his convictions for driving under the influence (DUI) of a
Schedule I controlled substance, DUI of a Schedule I controlled substance
metabolite, DUI of a drug (actual impairment), careless driving, and maximum
speed limits.1 Dabney challenges, first, the denial of his petition for writ of
habeas corpus wherein he argued that medical marijuana is not a Schedule I
controlled substance for purposes of Section 3802(d)(1)(i) and (iii) and,
second, the denial of his motion to suppress the results of the blood draw
taken after his arrest for suspicion of DUI. We affirm.
The suppression court found the following facts:
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802(d)(1)(i), 3802(d)(1)(iii), 3802(d)(2), 3714(a), and
3362(a)(3).
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1. Trooper Mark Brandt is an employee with the Pennsylvania
State Police and has been a Trooper for 5 years.
2. In his career, Trooper Brandt has been involved in
approximately 100 DUI investigations; approximately 50% of the
investigations involved individuals suspected of driving under the
influence of a controlled substance with 35%–40% involving
marijuana. Trooper Brandt is familiar with the odor of raw and
burnt marijuana.
3. As part of Trooper Brandt’s training he was instructed in the
Standardized Field Sobriety Test (SFST) and Advanced Roadside
Impaired Driving Enforcement (ARIDE) training. ARIDE deals
specifically with individuals suspected to be under the influence of
controlled substances.
4. On April 27, 2020, Trooper Brandt was stationary on Route 15
in Tyrone Township, Adams County, Pennsylvania, in full uniform
and in an unmarked police vehicle conducting radar and clocked a
blue Hyundai Sonata traveling 93 miles per hour in a 65 mile per
hour zone.[2]
5. Trooper Brandt conducted a traffic stop of the Hyundai Sonata
in Tyrone Township. [Dabney] was driving the vehicle and there
was a front and back seat passenger in the vehicle.
6. Other than speeding, trooper Brandt did not observe any other
erratic driving and [Dabney] safely stopped his vehicle.
7. Trooper Brandt was wearing a disposable mask for Covid-19
precaution and detected the faint odor of raw marijuana as he
approached [Dabney’s] vehicle.
8. Upon request from Trooper Brandt, [Dabney] properly provided
all documents and information.
9. Trooper Brandt returned to his police vehicle and prepared a
citation for speeding. Trooper Brandt reapproached the vehicle
and had contact with [Dabney] while [Dabney] was seated in the
driver’s seat. While speaking with [Dabney], Trooper Brandt
noticed a strong odor of raw marijuana coming from inside the
vehicle. [Dabney] denied having marijuana in the vehicle.
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2 Trooper Brandt first testified that the speed was 92 miles per hour, N.T.,
12/14/20, at 13–14, then that it was 93 miles per hour, id. at 23. The above
factual finding is supported by the record, so we will not disturb it.
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[Dabney] produced a medical marijuana card and related the odor
of marijuana is probably from his clothes.
10. Trooper Brandt directed [Dabney] and the two passengers to
exit the vehicle. Trooper Brandt and Trooper [Clay] Forcey
conducted a warrantless probable cause search of [Dabney’s]
vehicle. Trooper Brandt observed flakes of suspected marijuana
around the center console and front passenger seat. Trooper
Forcey located a white plastic shopping bag containing three
individually packaged clear plastic bags containing suspected
marijuana in the vehicle’s trunk.
11. While interacting with [Dabney], Trooper Brandt observed that
[Dabney’s] eyes were dilated and red.
12. Trooper Brandt requested SFST tests and [Dabney] agreed.
Trooper Brandt conducted the [Horizontal Gaze Nystagmus
(HGN)] test, walk and turn test, and one leg stand test.
13. During the walk and turn test Trooper Brandt observed
[Dabney] raise his arms, stop briefly during the test, and not
count correctly. These were all indicators that [Dabney] might be
impaired.
14. During the one leg stand test, Trooper Brandt observed
[Dabney] improperly lift his leg, sway and improperly put his foot
down, all indicators of impairment.
15. Trooper Brandt also conducted two ARIDE tests, the lack of
convergence test and the Romberg balance test. Trooper Brandt
observed a lack of convergence with [Dabney’s] eyes,[3] observed
eyelid tremors during the Romberg balance test and observed
[Dabney] did not properly estimate the proper time period for the
test, all indicators of impairment.
* * *
18. Trooper Brandt placed [Dabney] under arrest for suspected
driving under the influence of a controlled substance. [Dabney]
was transported to Gettysburg Hospital for a blood test.
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3Contrary to the suppression court’s findings, Trooper Brandt testified that he
did not observe any lack of convergence. N.T., 12/14/20, at 22.
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Trial Court Opinion, 1/29/21, at 2–3. Dabney’s blood contained active
marijuana compounds and metabolites. In addition to the above offenses,
Dabney was charged at Counts 1, 2, and 3 with violation of the Medical
Marijuana Act, possession of marijuana, and possession of a small amount of
marijuana.4
On November 9, 2020, Dabney filed an omnibus pre-trial motion to
suppress and petition for writ of habeas corpus. The suppression court heard
the matter on December 14, 2020, and the parties filed briefs on January 12
and 13, 2021. The Commonwealth agreed to the suppression of the marijuana
found in the vehicle.
On January 29, 2021, the suppression court denied Dabney’s motion to
suppress based on Trooper Brandt’s lack of probable cause to arrest and the
petition for writ of habeas corpus. Based on the Commonwealth’s concession,
the suppression court granted Dabney’s motion to suppress the fruits of the
vehicle search. The Commonwealth withdrew Counts 1, 2, and 3.
The case proceeded to a non-jury trial on May 4, 2021 based on a
stipulated record, where the court found Dabney guilty on all remaining
counts. The court sentenced Dabney the same day. Dabney timely appealed,
raising the following two issues for our review:
1. Did the lower court err in determining that [Dabney’s] valid
prescription for Medical Marijuana, and the legal ingestion
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4 35 P.S. §§ 10231.303(b)(6), 780-113(a)(16), and 780-113(a)(31)(i).
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thereof, did not prevent prosecution under sections
3802(d)(1)(i) and 3802(d)(1)(iii) of the Vehicle Code?
2. Did the lower court err in determining that there was sufficient
probable cause to arrest [Dabney] for driving Under the
Influence and should have suppressed the subsequent blood
draw of [Dabney]?
Dabney’s Brief at 4.
I. Medical Marijuana Is a Schedule I Controlled Substance.
Dabney first argues that marijuana that is ingested pursuant to the
Medical Marijuana Act, 35 P.S. §§ 10231.101–10231.2110 (MMA), is not a
controlled substance within the meaning of the Controlled Substance, Drug,
Device and Cosmetic Act, 35 P.S. §§ 780-101–780-144 (CSA) (also called the
Drug Act), and therefore he could not be prosecuted for DUI under 75
Pa.C.S.A. § 3802(d)(1) based on medical marijuana in his blood.5
Dabney’s issue is one of statutory interpretation. Our standard of review
is well-settled:
Statutory interpretation is a question of law, therefore our
standard of review is de novo, and our scope of review is plenary.
Commonwealth v. Hall, 622 Pa. 396, 80 A.3d 1204, 1211
(2013). “In all matters involving statutory interpretation, we
apply the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq.,
which provides that the object of interpretation and construction
of statutes is to ascertain and effectuate the intention of the
General Assembly.” Commonwealth v. McCoy, 599 Pa. 599,
962 A.2d 1160, 1166 (2009) (citation omitted).
Generally, a statute’s plain language provides the best
indication of legislative intent. Id. We will only look beyond the
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5In this first issue, Dabney does not challenge his prosecution under Section
3802(d)(2).
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plain language of the statute when words are unclear or
ambiguous, or the plain meaning would lead to “a result that is
absurd, impossible of execution or unreasonable.” 1 Pa.C.S.
§ 1922(1). Therefore, when ascertaining the meaning of a
statute, if the language is clear, we give the words their plain and
ordinary meaning. Hall, 80 A.3d at 1211.
Commonwealth v. Torres–Kuilan, 156 A.3d 1229, 1231 (Pa. Super. 2017)
(quoting Commonwealth v. Popielarcheck, 151 A.3d 1088, 1091–92 (Pa.
Super. 2016)).
The Vehicle Code provides that
[a]n individual may not drive, operate or be in actual
physical control of the movement of a vehicle under any of
the following circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in the
[CSA];
(ii) Schedule II or Schedule III controlled substance, as
defined in [the CSA], which has not been medically
prescribed for the individual; or
(iii) metabolite of a substance under subparagraph (i) or
(ii).
75 Pa.C.S.A. § 3802(d)(1).6 “The fact that a person charged with [DUI] is or
has been legally entitled to use alcohol or controlled substances is not a
defense to a charge of [DUI].” 75 Pa.C.S.A. § 3810.
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6 Under Section 3802(d)(1), proof of actual impairment is not required.
Commonwealth v. Etchison, 916 A.2d 1169, 1174 (Pa. Super. 2007),
distinguished on other grounds by Commonwealth v. Griffith, 32 A.3d 1231(Pa. 2011).
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The CSA defines schedules of controlled substances in relevant part as
follows:
The following schedules include the controlled substances listed or
to be listed by whatever official name, common or usual name,
chemical name, or trade name designated.
(1) Schedule I. In determining that a substance comes within this
schedule, the secretary shall find: a high potential for abuse, no
currently accepted medical use in the United States, and a lack of
accepted safety for use under medical supervision. The following
controlled substances are included in this schedule:
* * *
(iv) Marihuana.
35 P.S. § 780-104.7
Prior to enactment of the MMA, we rejected a challenge to marijuana’s
classification as a Schedule I controlled substance based on its medical use in
the United States:
[T]here is no requirement that the Schedule I substances listed
under 35 P.S. § 780-104 continuously conform to the standard
that there be “a high potential for abuse, no currently accepted
medical use in the United States, and a lack of accepted safety for
use under medical supervision.” 35 P.S. § 780-104(1). . . .
Regardless of whether there are accepted medical uses for
marijuana in the United States, marijuana remains a Schedule I
substance under the Drug Act.
Commonwealth v. Waddell, 61 A.3d 196, 207 (Pa. Super. 2012).
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7 “Under the Drug Act, ‘marijuana’ is spelled: ‘marihuana.’ These words are
interchangeable, though ‘marijuana’ appears more frequently in conventional
usage. Either term refers to the genus of flowering plants known as Cannabis,
including the species Cannabis sativa, Cannabis indica, and Cannabis
ruderalis.” Commonwealth v. Waddell, 61 A.3d 196, 203 n.3 (Pa. Super.
2012).
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The MMA was enacted effective May 17, 2016. Under the MMA, medical
marijuana is defined as marijuana for certified medical use as set forth in the
MMA. 35 P.S. § 10231.103. “Notwithstanding any provision of law to the
contrary, use or possession of medical marijuana as set forth in [the MMA] is
lawful within this Commonwealth.” 35 P.S. § 10231.303. However, it is
unlawful to use medical marijuana except as provided in the MMA. 35 P.S.
§ 10231.304(a). The MMA does not prevent civil or criminal penalties for
“[u]ndertaking any task under the influence of medical marijuana when doing
so would constitute negligence.” 35 P.S. § 10231.1309(1). Finally, the MMA
provides that it takes precedence over the CSA in areas of conflict:
The growth, processing, manufacture, acquisition, transportation,
sale, dispensing, distribution, possession and consumption of
medical marijuana permitted under [the MMA] shall not be
deemed to be a violation of the [CSA]. If a provision of the [CSA]
relating to marijuana conflicts with a provision of [the MMA], [the
MMA] shall take precedence.
35 P.S. § 10231.2101.
After the MMA was enacted, we again considered statutory and
constitutional challenges to marijuana’s classification as a Schedule I
controlled substance. Commonwealth v. Jezzi, 208 A.3d 1105 (Pa. Super.
2019). Jezzi asserted that because the General Assembly found that
marijuana was now accepted for its medical value, it no longer fit within the
definition of a Schedule I controlled substance. Id. at 1109. Relying on
Waddell and the text of the MMA, we rejected his statutory interpretation:
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Initially, Appellant’s statutory “irreconcilable differences”
argument lacks merit, where the MMA simply establishes a
scheme for the lawful use of medical marijuana. See 35 P.S. §§
10231.102(3), 10231.102(1) (stating scientific evidence suggests
medical marijuana is one potential therapy that may have
therapeutic benefits). The usage of language like “suggests,”
“potential,” and “may” [in 35 P.S. § 10231.102(1), Declaration of
policy,] does not conclusively demonstrate the General Assembly
found marijuana to have accepted medical use other than for its
palliative or analgesic effects. Rather, the statutory language
illustrates the General Assembly’s intent to create legal avenues
for research into the use of medical marijuana while providing
pathways to potential relief for certain categories of patients. See
id.
Furthermore, the temporary nature of the MMA serves as an
acknowledgement of the General Assembly that more research
into the medical value of marijuana is necessary. See 35 P.S. §
10231.102(4). The MMA established a medical marijuana
program to serve as a stopgap measure, “pending Federal
approval of and access to medical marijuana through traditional
medical and pharmaceutical avenues.” See id. The plain text of
the MMA acknowledges the potential therapeutic value of medical
marijuana, but it does not declare that marijuana has accepted
medical use. See 35 P.S. § 10231.102(1), (3); Waddell, supra.
Instead, the MMA intends to be “a temporary measure, pending
Federal approval of and access to medical marijuana through
traditional medical and pharmaceutical avenues.” See 35 P.S.
§ 10231.102(4). Therefore, the MMA and the CSA Schedule I
classification of marijuana do not conflict on the ground of
“currently accepted medical use.” Instead, the General Assembly
allows for the use of medical marijuana under very specific
guidelines which, when followed, will not lead to criminal
punishment. See 35 P.S. § 10231.2101.
Id. at 1114. Likewise, applying rational basis scrutiny, we rejected Jezzi’s
Equal Protection challenge. Id. at 1115 (holding that because marijuana’s
Schedule I classification “is rationally related to the governmental objective of
public protection,” it does not violate the Equal Protection Clause).
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We also addressed the ongoing classification of marijuana as a Schedule
I controlled substance for DUI purposes in Commonwealth v. Murray, No.
316 WDA 2020, 2020 WL 7861244 (Pa. Super. Dec. 31, 2020) (unpublished
memorandum). Murray, who was authorized under the MMA to procure and
use medical marijuana, claimed that the MMA preempted his prosecution
under Section 3802(d)(1)(i). Id. at *3. The panel agreed that under the
MMA, “‘there is a legal distinction between marijuana and medical marijuana,’”
but concluded that medical marijuana was not at issue because Murray
illegally obtained and smoked marijuana before driving. Id. at *5; but cf.
Commonwealth v. Grimes, No. 980 MDA 2019, unpublished memorandum
at *6 (Pa. Super. Jan. 31, 2020) (finding sufficient evidence for Section
3802(d)(1)(i) and (iii) convictions despite citation to the MMA).
Finally, after the parties’ submissions here, we decided the Section
3802(d)(1) case of Commonwealth v. Stone, 2022 PA Super 65, ___ A.3d
___, 2022 WL 1087372 (Apr. 12, 2022) (en banc). In Stone, we rejected a
proposed jury instruction that medical marijuana is not a Schedule I controlled
substance and that to convict Stone, the Commonwealth had to prove that
the THC and metabolites in his blood were from non-medical marijuana. Id.
at *4. Because marijuana, “which includes medical marijuana,” is a Schedule
I controlled substance, the jury instruction misstated the law. Id. at *7.8
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8 We declined to provide an advisory opinion for the Commonwealth’s final
issue, which was whether a medical marijuana card prevents a Section
3802(d)(1) conviction. Stone, ___ A.3d at ___, 2022 WL 1087372, at *8.
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A. Arguments of the parties
Dabney argues that his prescription for medical marijuana should
prohibit the Commonwealth from charging and prosecuting him under 75
Pa.C.S.A. § 3802(d)(1)(i) and (iii) because medical marijuana is not a
Schedule I controlled substance in Pennsylvania. Dabney’s Brief at 12–13,
21–23. He urges that a contrary interpretation would render Section
3802(d)(1) in direct conflict with the MMA. Id. at 13–15 (citing 35 P.S.
§§ 780-104, 10231.102, 10231.103, and 10231.2101).
Dabney emphasizes our observation in Jezzi that “medical marijuana is
not listed in the CSA as a Schedule I substance, only marijuana is listed.” Id.
at 17 (quoting Jezzi, 208 A.3d at 1115). He distinguishes the outcomes of
Jezzi and Murray on the basis that the defendants in those cases did not
comply with the MMA, whereas there was no evidence considered by the
suppression court here to indicate Dabney’s noncompliance. Cf. Jezzi, 208
A.3d at 1114 (“[Jezzi, who grew marijuana plants prior to enactment of the
MMA,] did not meet any criteria under the MMA to merit its protection directly
or indirectly.”); Murray, No. 316 WDA 2020, at *11–12 (reiterating the trial
court’s findings that Murray had illegally obtained and smoked marijuana
before driving); see also Stone, ___ A.3d at ___, 2022 WL 1087372 at *1–
2 (summarizing that Stone did not have his medical marijuana card with him
yet had a bag of marijuana, and the Trooper smelled burnt marijuana, which
could reflect violations of 35 P.S. §§ 10231.303(b)(7) and 10231.304(b)(1)).
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Presumably regarding the application of Section 3802(d)(1)(iii), Dabney
quotes our reasoning in Commonwealth v. Glenn, 233 A.3d 842, 846 (Pa.
Super. 2020), in which we stated, “If an individual has a medical prescription
for a controlled substance such as Fentanyl, it follows that the individual may
lawfully have metabolites produced by the controlled substance in their
bloodstream while their body is metabolizing the Fentanyl.” Id.The Commonwealth counters that the suppression court’s ruling was
correct. The Commonwealth mirrors the suppression court’s analysis, noting
that statutory and decisional law has not altered marijuana’s classification as
a Schedule I controlled substance. Commonwealth’s Brief at 11. It observes
that Jezzi did not reclassify medical marijuana or address the impact of the
MMA on the Vehicle Code. The Commonwealth notes that Glenn concerned a
Schedule II controlled substance and its metabolite, unlike the instant case.
Compare 75 Pa.C.S.A. § 3802(d)(1)(ii) (prohibiting driving with a Schedule
II controlled substance “which has not been medically prescribed for the
individual”), with id. § 3802(d)(1)(i) (containing no such exception). The
Commonwealth quotes Judge Stabile’s concurrence in Commonwealth v.
Yeager, 2020 WL 6799113, No. 2036 MDA 2019, non-precedential concurring
memorandum at *7 (Pa. Super. Nov. 19, 2020) (likening medical marijuana
to alcohol, both of which can legally be consumed but cannot legally be above
certain levels in the blood of a person who drives). Absent an exception under
the Vehicle Code, the Commonwealth concludes that a medical marijuana card
does not prevent prosecution under Section 3802(d)(1)(i) or (iii).
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B. Analysis
After careful consideration, we find that medical marijuana remains a
Schedule I controlled substance for purposes of Section 3802(d)(1). Contrary
to Dabney’s argument, no conflict exists between the MMA and the Vehicle
Code. The Vehicle Code and the CSA render it illegal to drive with any amount
of a Schedule I controlled substance in one’s blood. 75 Pa.C.S.A.
§ 3802(d)(1)(i). Dabney attempts to argue that based on the MMA, medical
marijuana is not a Schedule I controlled substance. We are unpersuaded.
As explained in Jezzi, the MMA did not remove marijuana from the list
of Schedule I controlled substances. Jezzi, 208 A.3d at 1115. There is no
need for “medical marijuana” to be listed as a Schedule I controlled substance
because medical marijuana is marijuana, specifically marijuana “for certified
medical use.” 35 P.S. § 10231.103. All marijuana, medical or otherwise,
remains a Schedule I controlled substance in Pennsylvania. Stone, ___ A.3d
at ___, 2022 WL 1087372, at *7.
Section 3802(d)(1)(i) prohibits driving with marijuana in one’s blood,
notwithstanding the MMA. The MMA takes precedence over the CSA related
to “[t]he growth, processing, manufacture, acquisition, transportation, sale,
dispensing, distribution, possession and consumption of medical marijuana
permitted under” the MMA. 35 P.S. § 10231.2101. Therefore, “compliance
with the MMA will not constitute a crime under the CSA.” Commonwealth
v. Barr, 266 A.3d 25, 41 (Pa. 2021) (quoting Commonwealth v. Barr, 240
A.3d 1263 (Pa. Super. 2020)). However, what Section 3802(d)(1) prohibits
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is not “growth, processing, manufacture, acquisition, transportation, sale,
dispensing, distribution, possession [or] consumption of medical marijuana”
but rather driving with a controlled substance in one’s blood. Yeager, supra,
at *7 (Stabile, J., concurring) (“Simply stated, it is illegal to smoke or vape
marijuana and drive.”).9 The MMA does not take precedence over laws not
specified in 35 P.S. § 10231.2101. See 35 P.S. § 10231.1309(1) (allowing
civil and criminal penalties for negligently undertaking tasks under the
influence of medical marijuana).10 As such, Dabney is not “facing a criminal
conviction for the legal use of his medical marijuana.” Dabney’s Brief at 19.
He was prosecuted for driving after such use. As in Jezzi and Stone, we
find that the MMA, CSA, and Vehicle Code can be read in harmony.
Having found that Section 3802(d)(1)(i) applies to all marijuana, even
medical marijuana, we likewise conclude that Section 3802(d)(1)(iii) applies
to metabolites of all marijuana, including medical marijuana. First,
subparagraph (iii) references subparagraph (i), which has no exception for
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9 See also Michael DeAngelo, Comment, Medical Marijuana and Driving Under
the Influence in Pennsylvania, 92 Temp. L. Rev. 225, 238 (2019) (“With the
passing of the MMA, the Pennsylvania state legislature did not amend the
[CSA] nor state DUI laws. Marijuana remains a Schedule I controlled
substance, and as such, is prosecutable under section 3802(d)(1) as a per se
offense when any amount of marijuana, or its metabolite, is found in a
person’s system. No showing of impairment is required.” (footnotes omitted)).
10Although not necessary to the disposition of this issue, legislative history
pre- and post-enactment of the MMA further supports our conclusion. S.B. 3,
Amend. A06066 (Pa. 2016) (rejected language warning about DUI of medical
marijuana); S.B. 167 (Pa. 2021) (proposed removal of DUI penalty for medical
marijuana use, referred to committee); H.B. 900 (Pa. 2021) (same).
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medical marijuana. Second, unlike in Glenn, 233 A.3d at 846, it is illegal to
drive with the active substance of marijuana in one’s blood. Therefore, it is
not absurd or unreasonable that it is also illegal to drive with a metabolite of
that substance in one’s blood.
Because Dabney drove with marijuana in his blood, and because all
marijuana, including medical marijuana, remains a Schedule I controlled
substance for purposes not prohibited by the MMA, we hold that Dabney could
be charged and prosecuted under Section 3802(d)(1)(i) and (iii). Therefore,
we affirm the suppression court’s disposition of this issue.
II. Trooper Brandt Had Probable Cause to Arrest Dabney.
Second, Dabney claims that the suppression court erred in concluding
that there was probable cause to arrest him for DUI and in failing to suppress
the blood draw that followed. Dabney’s Brief at 4. Dabney acknowledges the
legality of the initial traffic stop for speeding. Id. at 25. However, he argues
that Trooper Brandt began a new investigative detention when he asked about
the marijuana odor and asked Dabney to exit the vehicle. Id. at 27–30.
Dabney stresses that the only additional basis to detain him at that moment
was the odor of raw marijuana. Therefore, he submits that Trooper Brandt’s
demand that he perform field sobriety tests amounted to an illegal detention
not supported by reasonable suspicion. Id. at 30–33.11
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11Dabney makes this new-investigative-detention argument for the first time
on appeal. Although this would be a basis for us to find waiver, see Pa.R.A.P.
(Footnote Continued Next Page)
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We find no merit to this issue. Our Supreme Court has held that because
of the MMA, “the odor of marijuana alone does not amount to probable cause
to conduct a warrantless search of a vehicle but, rather, may be considered
as a factor in examining the totality of the circumstances.” Barr, 266 A.3d at
44. Assuming arguendo that Barr also applies to a determination of
reasonable suspicion for an investigative detention, we find that Trooper
Brandt could consider the odor as well as the other factors from the initial
stop. “[I]nformation obtained by a police officer during a lawful initial traffic
stop may be used to justify re-engagement with the driver after the police
officer indicates the driver is free to go.” In the Interest of A.A., 195 A.3d
896, 898 (Pa. 2018), abrogated on “plain smell” grounds by Barr, 266 A.3d
at 41. Here, the odor of raw marijuana is but one factor that Trooper Brandt
could consider in addition to the factors supporting his initial traffic stop, which
Dabney acknowledges was legal. Dabney’s Brief at 25. Therefore, Trooper
Brandt had reasonable suspicion to detain Dabney to conduct field sobriety
tests. Likewise, we discern no error of law in the suppression court’s resulting
conclusion that Trooper Brandt had probable cause to arrest Dabney under
suspicion of DUI following the failed field sobriety tests. See Commonwealth
v. Salter, 121 A.3d 987, 996–98 (Pa. Super. 2015) (finding probable cause
to arrest under suspicion of DUI based on field sobriety tests).
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302, we will address the merits because the Commonwealth has not argued
that Dabney waived this issue. Cf. Commonwealth v. Wolfel, 233 A.3d
784, 790 (Pa. 2020) (reversing this Court’s sua sponte finding of waiver).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2022
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