Commonwealth v. Grooms

• Decision Date: 24 February 2021
• Docket Number: No. 71 MDA 2020,71 MDA 2020
• Parties: COMMONWEALTH of Pennsylvania v. Keith Edward GROOMS, Appellant
• Court: Pennsylvania Superior Court

247 A.3d 31

COMMONWEALTH of Pennsylvania

v.Keith Edward GROOMS, Appellant

No. 71 MDA 2020

Superior Court of Pennsylvania.

Submitted September 8, 2020

Filed February 24, 2021

Hillary Catterton Hall, Public Defender, Harrisburg, for appellant.

Ryan Hunter Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.

OPINION BY STABILE, J.:

Appellant Keith Edward Grooms appeals from the December 9, 2019 judgment of sentence entered in the Court of Common Pleas of Dauphin County ("trial court"), following a stipulated bench trial. Appellant was convicted of criminal use of communication facility, possession with intent to deliver ("PWID") a controlled substance (cocaine), possession of a controlled substance (methamphetamine), possession of small amount of marijuana, and possession of drug paraphernalia.¹ Upon careful review, we vacate the judgment of sentence, reverse the suppression order, and remand this matter to the trial court.

The facts and procedural history of this case are uncontested. Following the October 8, 2018 warrantless search of a locked and parked vehicle in a mall parking lot, Appellant was charged with the foregoing crimes. On May 3, 2019, Appellant filed a motion to suppress, alleging that the police lacked probable cause to search. On June 26, 2019, the trial court conducted a suppression hearing, at which the Commonwealth offered only the testimony of Detective Kenneth Platt, Swatara Township Police Department. N.T. Suppression, 6/26/19, at 4. Detective Platt testified that at the time of the incident in question, he was assigned to the department's patrol division, where he worked as a patrolman.

Id. at 4, 7. He testified about his training and experience in detecting and identifying narcotics. Id. at 4-5. Detective Platt recalled that, during his time as a patrolman, he would average 10-15 drug arrests per month. Id. at 5. With respect to marijuana, he testified that it was "easily detectable" because of its strong odor. Id. at 6. He further testified that based on his training and experience, he was able to distinguish between the odors of fresh and burnt marijuana. Id.

I would say that the – how strong the odor is, the – just how strong the odor is, whether it's fresh, it has a fresh smell to it. Because it's so distinct, it smells like marijuana where when it's burnt it has a different smell to it. ... [O]ther than the fact it's marijuana, I don't have a good descriptor to give you.

Id. at 6-7. Recalling the specific events of Monday, October 8, 2018, which occurred around 5:20 p.m., Detective Platt testified:

I was working the capacity of a patrolman on that day. Lieutenant Krahling and I met at the Harrisburg Mall to conduct a foot patrol through the mall.^{[2 ]} It's common practice for us to do foot patrol through the mall parking lots for several reasons, one, the Harrisburg Mall parking lot is a high-drug area for [sic] us for whether it be use or transactions as well as we make numerous firearms violations arrests in those parking lots, but also as a service to the community. You know, we'll leave notes, Hey, your purse is in plain view or, you know, we've come across children left in the car. So it's common practice for us to walk through that lot – through the lot at the mall.

Id. at 7-8, 12. Detective Platt testified that, on the day of and just prior to the incident at bar, he and Lieutenant Krahling had made an arrest for marijuana three rows over from Appellant's vehicle³ in that parking lot. Id. at 8. Thereafter, they walked in the parking lot until they detected an odor of marijuana coming from Appellant's vehicle. Id. at 8, 10. Detective Platt described:

[A]s we proceeded west through the parking lot, Lieutenant Krahling was just a little bit ahead of me. When he walked past a black Mercedes Benz R350, kind of like a station wagon looking vehicle, at that time as he walked past, he detected the odor of marijuana in the air. And he called me over and said, Hey, I smell weed over here. And I walked over to it in that area and then began smelling, like, at the seams of the door. So I also detected the odor of fresh marijuana coming from the black Mercedes.

Id. at 10-11. Detective Platt relayed that when Lieutenant Krahling initially smelled the odor of marijuana, he was "at the front of the black Mercedes." Id. at 11. Upon confirming the odor of fresh marijuana, Detective Platt testified that they shined their flashlights into the vehicle to observe any contraband in plain view. Id. at 13. According to Detective Platt, they saw nothing. Id. He further testified that the vehicle was locked. Id. at 14. At that point, according to Detective Platt, they retrieved their lockout tool to unlock the vehicle.⁴ Id. In explaining why they used the lockout tool, Detective Platt testified that "[w]e didn't have anybody near the vehicle or a contact number for the owner of the vehicle, so we utilized it to unlock the vehicle, conduct our search." Id. Detective Platt recalled:

[O]nce the doors were unlocked, the odor of fresh marijuana was stronger. We began searching the vehicle. Lieutenant Krahling was assisting in the search. He started on the passenger side. And in the front storage compartment in front of the cup holder, there was a – so cup holder, part of that there was, like, a little sliding compartment. Inside there, Lieutenant Krahling located two bags that contained marijuana and a marijuana-filled cigar. Their total weight was 7.8 grams to include the bag that it was placed in.

Id. at 15. Detective Platt testified that they also recovered a bag containing 18.4 grams of crack cocaine and a bag containing 3.8 grams of ecstasy pills. Id. As they were finishing their search, the officers observed two people—a man, later identified as Appellant, and a woman, later identified as Ms. Holliman—"kind of slowly walking up to the vehicle showing interest in what we were doing." Id. at 17. According to Detective Platt, Lieutenant Krahling approached them and Appellant, who was in possession of the keys to the vehicle, eventually stated that "anything found in the car was his." Id. Specifically, Appellant accepted ownership of the marijuana, crack cocaine, and ecstasy pills recovered from the vehicle and informed the officers that Ms. Holliman "didn't have any knowledge of" the contraband. Id. at 18. Finally, Detective Platt testified that, in addition to the contraband, they recovered $1,100.00 in U.S. currency from Appellant's person and seized his cell phone. Id. at 18-19.

On cross-examination, Detective Platt conceded that they made the decision to unlock and search the vehicle solely on their detection of the odor of fresh marijuana. Id. at 24. He also acknowledged that, effective August 1, 2018, two months prior to the incident in question, dry-leaf marijuana became legal for medical purposes in Pennsylvania. Id. at 25. Detective Platt further acknowledged that they only waited for a "few minutes" for the owner of the vehicle to arrive because, in part, their shift was going to be over at 6:00 p.m., it was already past 5:20 p.m., and sometimes it could take hours before an owner returns. Id. at 26.

On August 20, 2019, the trial court denied Appellant's suppression motion. In support of the denial, the court issued an opinion, wherein it advanced a per se , bright-line rule: an "odor [of marijuana] alone may establish probable cause." Trial Court Opinion, 8/20/19, at 2 (citations omitted). Relying on that per se rule, the court concluded that Detective Platt and Lieutenant Krahling possessed probable cause to conduct a warrantless search of the vehicle when they confirmed an odor of marijuana emanating therefrom.

On October 26, 2019, the case proceeded to a stipulated bench trial, following which the trial court found Appellant guilty of all charged crimes. On December 9, 2019, the trial court sentenced Appellant to an aggregate term of 30 to 60 months’ imprisonment. Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant presents a single issue for our review:

[I.] Did not the court err in denying [Appellant's] motion to suppress when the police effected a warrantless, non[-]exigent entry into his vehicle without [Appellant] present based solely on the odor of marijuana?

Appellant's Brief at 10 (unnecessary capitalization omitted). At the core, Appellant argues that the officers’ warrantless search of his vehicle was illegal because they lacked probable cause. In support, Appellant argues that the mere odor of fresh marijuana, without more, was insufficient to sustain a finding of probable cause. Appellant's Brief at 21. Appellant points out that this position is consistent with Pennsylvania case law. Additionally, Appellant contends that to the extent there is a per se rule that the odor of marijuana is sufficient to find probable cause, such a rule necessarily has been diluted by the enactment of the Medical Marijuana Act ("MMA") in Pennsylvania.⁵ Id. at 26. Lastly, Appellant contends that the reasoning set forth in the recent Supreme Court decision Commonwealth v. Hicks , 652 Pa. 353, 208 A.3d 916 (2019), should be applied with equal force to this case. Id. at 28. Citing Hicks , Appellant asserts that, "just as with a firearm, there is simply no justification for the conclusion that the mere odor of marijuana, where it is lawful to possess it, alone should be suggestive of criminal activity." Id. at 30.

As we have explained:

Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in

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