Com. v. Ford, J. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSHUA EUGENE FORD : No. 569 MDA 2020
Appeal from the Suppression Order Entered March 10, 2020
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0002698-2019
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: OCTOBER 13, 2021
The Commonwealth appeals from the order entered in the Berks County
Court of Common Pleas granting in part, and denying in part, the pretrial
motion to suppress filed by Joshua Eugene Ford (Appellee). 1 The
Commonwealth argues the trial court erred in concluding that a state trooper
lacked probable cause to search the trunk of Appellee’s vehicle following a
traffic stop and, thus, in suppressing evidence recovered from the trunk, as
well as statements made by Appellee after the search. For the reasons below,
we vacate the order and remand for further proceedings.
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1 The Commonwealth certified in its notice of appeal that the trial court’s order
“terminated or substantially handicap the prosecution of this case” pursuant
to Pa.R.A.P. 311(d). See Commonwealth’s Notice of Appeal, 3/25/20;
Pa.R.A.P. 311(d) (permitting the Commonwealth to file interlocutory appeal
as of right in a criminal case from an order “that does not end the entire case
where the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution”).
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The facts underlying this appeal are set forth by the trial court as
follows:
On April 4, 2019 in the late morning hours, Trooper Jordan
Garrett of the Pennsylvania State Police was on stationary patrol
on Interstate 176 in Robeson Township, Berks County,
Pennsylvania which is a limited access highway. He observed
[Appellee’s] vehicle which had heavily tinted windows that
prevented him from seeing into the vehicle. The trooper
conducted a traffic stop. As the trooper approached, he could not
see into the vehicle other than a slight silhouette. The vehicle was
properly registered in New Jersey. The sole occupant was the
driver, [Appellee]. In response to questions from the trooper,
[Appellee] indicated the car belonged to a friend and that he was
going to Wernersville to meet a person from lnstagram.
[Appellee] could not provide a name and had a street name but
not a house number. During his initial interaction with the
Trooper, [Appellee] had trembling hands and an elevated pulse
rate. The trooper smelled an odor of marijuana and observed
loose marijuana in the center console area near the shifter.
At that point, [Appellee] was asked to step out of the car
and was directed to the front of the trooper’s patrol unit. The keys
and [Appellee’s] phone remained in the vehicle. [Appellee] was
given a pat down search. The trooper searched [Appellee’s]
vehicle. On the rear driver’s side floor, there was a plastic baggie
with lollipops and candy in clear plastic baggies with no markings.
A search of the trunk revealed a brown backpack containing
several containers of loose marijuana, a separate package of
marijuana and a firearm. After the marijuana and gun were
found, the trooper asked [Appellee] about them. There was no
testimony about what the trooper asked or the responses, nor any
testimony about a second statement[.]
Trial Ct. Op., 3/9/20, at 2-3 (paragraph break added).
Appellee was arrested and charged with possession with intent to deliver
controlled substances, possession of drug paraphernalia, receiving stolen
property, persons not to possess firearms, possessing a firearm without a
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license, driving under suspension, and windshield obstructions.2 On August
26, 2019, Appellee filed a pretrial suppression motion challenging the legality
of the traffic stop, the subsequent search of both the passenger compartment
and trunk of the vehicle, and statements he made to the trooper absent
Miranda3 warnings.
The trial court conducted a suppression hearing on November 6, 2019.
On March 9, 2020, the court entered an order granting in part, and denying
in part, Appellee’s suppression motion. Specifically, the trial court
determined: (1) Pennsylvania’s window tint statute is not unconstitutional;
(2) Trooper Garrett had probable cause to stop Appellee’s vehicle for a
violation of that statute; (3) Appellee’s actions during the stop provided
Trooper Garrett with reasonable suspicion to “justify a continued investigative
detention[;]” (4) Trooper Garrett’s observation of marijuana in the passenger
compartment of the vehicle, coupled with the strong smell of marijuana,
provided the trooper with probable cause to search the passenger
compartment; however, (5) “[t]he search of the passenger compartment did
not give rise to probable cause to search the trunk[;]” and (6) “any
subsequent statements [by Appellee] are tainted as fruit of the poisonous
tree.” Trial Ct. Op. at 3. Thus, the trial court suppressed the evidence
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2 See 35 Pa.C.S. § 780-113(a)(30), (32); 18 Pa.C.S. §§ 3925(a), 6105(a)(1),
6106(a)(1); 75 Pa.C.S. §§ 1543(a), 4524(e)(1).
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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recovered from the trunk of the car, as well as any subsequent statements
made by Appellee.4 See id. at 9. This timely Commonwealth appeal follows.5
The Commonwealth raises two, related claims on appeal:
A. Did the suppression court err by concluding that the law
enforcement officer lacked probable cause to search the trunk
area of the vehicle after finding that there was probable cause
to search the passenger compartment of the vehicle which
under long-standing Pennsylvania and United States Supreme
Court precedent allows law enforcement to search the entire
vehicle?
B. Did the suppression court err by suppressing any statements
made by [Appellee] after the search of the trunk as fruit of the
poisonous tree as the search of the trunk was constitutionally
permissible?
Commonwealth’s Brief at 4.
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 appellee] 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
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4 As noted supra, the trial court explained that there was no testimony
regarding these subsequent statements at the suppression hearing. See Trial
Ct. Op. at 3, 10.
5 Although not ordered to do so by the trial court, the Commonwealth filed a
Pa.R.A.P. 1925(b) statement of errors complained of on appeal on April 7,
2020.
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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
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).
In its first claim, the Commonwealth insists that under the standard set
forth in Commonwealth v. Gary, 91 A.3d 103 (Pa. 2014) (plurality), 6 “and
its progeny, the search in this case was permissible under the 4th Amendment
and the federal automobile exception.” Commonwealth’s Brief at 11. It insists
the trooper’s observations of Appellee’s “shaking hands and elevated pulse[,]”
coupled with the “strong” odor of marijuana, provided probable cause to
search Appellee’s entire vehicle — including the trunk. Id. at 12-13. Further,
the Commonwealth contends the trial court’s reliance on Commonwealth v.
Scott, 210 A.3d 359 (Pa. Super. 2019), is misplaced. See id. at 11-13.
“The Fourth Amendment, by its text, has a strong preference for
searches conducted pursuant to warrants.” Commonwealth v. Leed, 186
A.3d 405, 413 (Pa. 2018) (citation omitted). Nevertheless, in Gary, the
Pennsylvania Supreme Court, in a plurality decision, adopted the federal
automobile exception to the warrant requirement, holding: “The prerequisite
for a warrantless search of a motor vehicle is probable cause to search; no
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6 As will be discussed infra, the Pennsylvania Supreme Court recently
overruled Gary in Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020).
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exigency beyond the inherent mobility of a motor vehicle is required.”
Gary, 91 A.3d at 138 (emphasis added). The Opinion Announcing the
Judgment of the Court explicitly concluded there was “no compelling reason
to interpret Article I, Section 8 of the Pennsylvania Constitution as providing
greater protection with regard to warrantless searches of motor vehicles than
does the Fourth Amendment.” Id.
However, during the pendency of this appeal, in December of 2020, the
Pennsylvania Supreme Court overruled its decision in Gary, stating: “Article
I, Section 8 [of the Pennsylvania Constitution] affords greater protection to
our citizens than the Fourth Amendment” of the United States Constitution.
Alexander, 243 A.3d at 181. The Alexander Court opined:
As a result of today’s decision, we return to the pre-
Gary application of our limited automobile exception under Article
I, Section 8 of our Constitution, pursuant to which warrantless
vehicle searches require both probable cause and exigent
circumstances; “one without the other is insufficient.’”
Id. at 207 (emphasis added).
At the time the trial court ruled on Appellee’s suppression motion, Gary
was the prevailing law in this Commonwealth. Thus, in his suppression
motion, Appellee lodged a general objection to the legality of the vehicle
search, noting that pursuant to Gary, “warrantless vehicle searches with
probable cause are legal[.]” See Appellee’s Omnibus Pretrial Motion, 8/26/19,
at 8-9. Similarly, in ruling on the motion, the trial court relied on the then-
precedential Gary and considered only whether Trooper Garrett possessed
probable cause to search Appellee’s vehicle. Trial Ct. Op. at 8. The court
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found the search of the passenger compartment of the vehicle was supported
by probable cause based upon the odor of marijuana, the small amount of
marijuana in plain view, and Appellee’s demeanor at the time of the stop. See
id. at 7-9. However, as noted above, the trial court concluded the totality of
the circumstances did not provide probable cause to justify a search of the
trunk of the vehicle. Id. at 9. In doing so, the court relied upon this Court’s
decision in Scott.
In Scott, an officer smelled a strong odor of burnt marijuana as he
approached the defendant’s vehicle for a traffic stop. Scott, 210 A.3d at 361.
At that time, the officer also observed smoke emanating from the vehicle and
saw the defendant place a blunt in the center console. Id. Based on these
facts, the officer and his partner searched the passenger compartment of the
vehicle, where they found a jar containing alleged marijuana, and then
searched the trunk, where they recovered a handgun wrapped in clothing. Id.The trial court granted suppression of the handgun, concluding the odor of
burnt marijuana did not establish probable cause to search the trunk of the
vehicle. Id. at 362.
On appeal, this Court affirmed the trial court’s ruling, and held that,
upon discovering the obvious source of smoke and the odor of burnt
marijuana, the officer did not have probable cause to search the defendant’s
trunk. See Scott, 210 A.3d at 364-65. We acknowledged that “if a police
officer possesses probable cause to search a motor vehicle, he may then
conduct a search of the trunk compartment without seeking to obtain probable
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cause relative to the particularized area.” Id. at 364 (citation omitted)
However, the Scott panel emphasized:
Here, the lingering odor of burnt marijuana was consistent with
the contraband that the officer observed in plain view.
Further, the record does not provide any other facts that could
have supported a belief that additional contraband was located in
the trunk. The officer did not testify that [the defendant] fidgeted
or displayed nervous behavior. Rather, the officer’s only
testimony about [the defendant’s] demeanor was that he looked
“like a deer in headlights” and “appeared like he didn't know what
to do. . . .” In the context of a traffic stop, such a demeanor is
not unusual.
Id. at 364-65 (citations and footnote omitted).
We agree with the Commonwealth that the facts of the case sub judice
are distinguishable from those in Scott. Here, unlike in Scott, there was no
indication that the small amount of raw marijuana in Appellee’s center console
was the obvious source of the strong odor of marijuana detected by Trooper
Garrett. See Scott, 210 A.3d at 364 (noting “the lingering odor of burnt
marijuana was consistent with the contraband that the officer observed in
plain view”). Moreover, Trooper Garrett provided specific testimony
concerning Appellee’s suspicious demeanor — that Appellee had “trembling
hands, [an] elevated pulse, [and an] inability to provide a name of the person
he was going to visit and only a street and town with no house number as his
destination.” See Trial Ct Op. at 7. Indeed, the trial court cited these facts
as “specific indicators from [Appellee] that gave rise to reasonable suspicion”
supporting the investigative detention. Id.-8-
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To the extent the court did not consider these observations of Trooper
Garrett in determining whether the trooper had probable cause to search
Appellee’s vehicle, however, we conclude the court erred. See
Commonwealth v. Bumbarger, 231 A.3d 10, 18 (Pa. Super. 2020) (“With
respect to probable cause, this [C]ourt adopted a ‘totality of the
circumstances’ analysis [which] dictates that we consider all relevant facts,
when deciding whether [the officer had] probable cause.”) (citation omitted
and emphasis added), appeal denied, 239 A.3d 20 (Pa. 2020). Thus, we
conclude Appellee’s demeanor, coupled with the strong odor of marijuana,
which “was not consistent with” the “loose particles”7 of marijuana observed
in the center console area, created “a fair probability that [Trooper Garrett]
could recover additional contraband in the trunk.” See Scott, 210 A.3d at
364-65. Accordingly, we vacate the order granting Appellee’s motion to
suppress.
However, our inquiry does not end here. As noted supra, in December
2020, the Pennsylvania Supreme Court overruled Gary, and returned “to the
pre-Gary application of [the] automobile exception . . . pursuant to which
warrantless vehicle searches require both probable cause and exigent
circumstances; ‘one without the other is insufficient.’” Alexander, 243 A.3d
at 207 (citation omitted and emphasis added). Because Gary was the
controlling law at the time of the suppression hearing, the trial court did not
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7 See N.T., 11/6/19, at 7.
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consider whether Trooper Garrett possessed exigent circumstances, aside
from the general mobility of the vehicle, to conduct the warrantless search.
Indeed, Alexander constitutes a new rule of law. It is well-settled that “in
order for a new rule of law to apply retroactively to a case pending on direct
appeal, the issue had to be preserved at ‘all stages of adjudication up to and
including the direct appeal.’” Commonwealth v. Tilley, 780 A.2d 649, 652
(Pa. 2001) (citation omitted).
In his suppression motion, Appellee, citing Gary, acknowledged that
“warrantless vehicle searches with probable cause are legal in
Pennsylvania.[.]” Appellee’s Omnibus Pretrial Motion, at 8-9. The fact that
Appellee did not specifically challenge the exigency requirement is of no
moment, since at the time he filed his suppression motion, there was no
exigency requirement under Gary. Nevertheless, Appellee properly asserted
“the search of the vehicle was illegal,” and argued “there was no probable
cause . . . to search the trunk of the vehicle.” See id. (capitalization omitted).
Indeed, Appellee noted that under Gary, probable cause was all that was
required. See id.Thus, while we agree that the strong odor of marijuana, coupled with
Appellee’s nervous behavior and evasive answers as to his destination,
provided Trooper Garrett with probable cause to suspect there might be
contraband in the trunk, we are compelled to remand this case to the trial
court for further proceeding directed at the exigencies of the situation
pursuant to Alexander. See Commonwealth v. Shaw, 246 A.3d 879, 887
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(Pa. Super. 2021) (reversing trial court’s finding of probable cause to search
vehicle based solely on odor of marijuana, and remanding for further
proceedings; directing trial court to consider, inter alia, exigencies of the
situation under Alexander although suppression motion challenged only
probable cause).8
Because we conclude the Commonwealth is entitled to relief on its first
issue, we need not address its second claim, relating to the suppression of
statements Appellee allegedly made after the search of the trunk. The trial
court suppressed these statements as “fruit of the poisonous tree.” See Trial
Ct. Op. at 10. If upon remand, the trial court determines exigent
circumstances justified the search of the trunk, Appellee’s subsequent
statements would also be admissible.
Order vacated. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
President Judge Emeritus Bender joins this memorandum.
Judge Nichols filed a dissenting memorandum.
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8 We note that this Court has applied the Alexander ruling inconsistently. In
Commonwealth v. Grooms, 247 A.3d 31 (Pa. Super. 2021), a panel of this
Court declined to consider the exigencies of a vehicle search when the
appellant “did not raise the issue of exigency before the trial court or in his
[Pa.R.A.P.] 1925(b) statement[.]” Id. at 37 n.9. In our view, Appellee should
receive the benefit of the Alexander ruling, particularly where, as here, we
are vacating the trial court’s order, which granted Appellee relief.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2021
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