J-A22032-20

2021 PA Super 26

COMMONWEALTH OF PENNSYLVANIA

v.

KEITH EDWARD GROOMS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 71 MDA 2020

Appeal from the Judgment of Sentence Entered December 9, 2019

In the Court of Common Pleas of Dauphin County 

Criminal Division at No.: CP-22-CR-0005708-2018

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

OPINION BY STABILE, J.: FILED FEBRUARY 24, 2021

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, 

____________________________________________

1 18 Pa.C.S.A. § 7512(a), and 35 P.S. § 780-113(a)(30), (16), (31)(i), and 

(32), respectively.
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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 

____________________________________________

2 The officers arrived in two marked police cruisers and were attired in full 

uniform. N.T. Suppression, 6/26/19, at 9. 
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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 vehicle3in 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 

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3 We note that the vehicle was registered to Alisa Holliman, Appellant’s wife,

who was with Appellant on the day of the incident. Id. at 11, 18. For 

convenience, however, we refer to the vehicle as “Appellant’s vehicle.” 
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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 

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4 Detective Platt described the lockout tool as

[a] common tool that we use for people that lock their keys in the 

car or whatever the case may be. It’s a little plastic wedge that 

you place in the door. And then you have, like, a little air bladder 

so to speak that you can pump up and it creates separation 

between the door and the door frame and it allows you to place a 

long pliable rod in the vehicle and you can hit the unlock button 

and it unlocks the car door and you’re into the car.

Id. at 14. 
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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 
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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 

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5 35 P.S. §§ 10231.101 et seq.
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Supreme Court decision Commonwealth v. Hicks, 208 A.3d 916 (Pa. 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 the context of the record as 

a whole. Where the suppression court’s factual findings are 

supported by the record, we are bound by these findings and may 

reverse only if the court’s legal conclusions are erroneous. Where, 

as here, the appeal of the determination of the suppression court 

turns on allegations of legal error, the suppression court’s legal 

conclusions are not binding on an appellate court, whose duty it 

is to determine if the suppression court properly applied the law 

to the facts. Thus, the conclusions of law of the courts below are 

subject to our plenary review.

Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019) 

(quotations and citations omitted). Our scope of review of suppression rulings 

includes only the suppression hearing record and excludes evidence elicited at 

trial. In the Interest of L.J., 79 A.3d 1073, 1085 (Pa. 2013). 

Both the Fourth Amendment to the United States Constitution and 

Article I, Section 8 of the Pennsylvania Constitution protect 

individuals from unreasonable searches and seizures by police in 

areas where individuals have a reasonable expectation of privacy. 

An expectation of privacy exists if a person has a subjective 

expectation of privacy that society is willing to recognize as 
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legitimate and reasonable. Where there exists a reasonable 

expectation of privacy, Article I, Section 8 and the Fourth 

Amendment generally require police to obtain a warrant, issued 

by a neutral and detached magistrate and founded upon probable 

cause, prior to conducting a search or seizure of a person and/or 

a person’s property, unless one of the few well delineated 

exceptions apply.

Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa. 2017) (citations 

omitted). One such exception was the ephemeral automobile exception, 

recognized by our Supreme Court in Commonwealth v. Gary,

6 91 A.3d 102 

(Pa. 2014) (plurality).7 In that case, the Court held, in accordance with federal 

law, that police may conduct a warrantless search of a stopped vehicle if they 

have probable cause to do so, regardless of any exigency beyond the vehicle’s 

inherent mobility. Gary, 91 A.3d at 104. 

Here, Appellant does not contest the application of the automobile 

exception announced in Gary if the police possessed probable cause to believe 

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6 During the pendency of this appeal, our Supreme Court overruled Gary. In 

Commonwealth v. Alexander, __ A.3d __, 2020 WL 7567601 (Pa. filed 

December 22, 2020), the Court concluded that Article I, Section 8 of the 

Pennsylvania Constitution “affords greater protection to our citizens than the 

Fourth Amendment,” reaffirming pre-Gary decisions that required police to 

have both probable cause and exigent circumstances before conducting 

a warrantless search of an automobile. Alexander, 2020 WL 7567601, at *1, 

25. 

7 Then-Justice, now Chief Justice, Saylor joined the opinion announcing the 

judgment of the court subject to his observations about “inconsistency in the 

courts’ rejection of bright-line rules restraining law enforcement as a means 

of protecting individual rights, while simultaneously embracing such rules 

when they facilitate law enforcement.” Gary, 91 A.3d at 138-39 (Saylor, J.,

concurring). 
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that a search of the black Mercedes would yield evidence of a crime.8 He

simply disputes the existence of probable cause itself.

9

 As stated, 

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8 The decision in Alexander, supra, overruling Gary, announced a new 

criminal rule. When a United States Supreme Court decision “results in a ‘new 

rule,’ that rule applies to all criminal cases still pending on direct review.” 

Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citing Griffith v. 

Kentucky, 479 U.S. 314, 328 (1987)). “Case law is clear, however, 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); see also Commonwealth v. Newman, 99 

A.3d 86, 90 (Pa. Super. 2014) (en banc) (“To be entitled to retroactive 

application of a new constitutional rule, a defendant must have raised and 

preserved the issue in the court below.”), appeal denied, 121 A.3d 496 (Pa. 

2015). Appellant here did not challenge the Gary automobile exception. 

Thus, to the extent relevant to the disposition of this appeal, and consistent 

with Tilley and Newman, Appellant cannot rely on Alexander to challenge 

the warrantless search of his vehicle. 

9 Because Appellant did not contest the application of the automobile 

exception announced in Gary, which now has been overruled by Alexander, 

he logically had no occasion to address whether exigent circumstances existed 

to justify the officers’ judgment that obtaining a warrant was not reasonably 

practicable. Thus, because Appellant did not raise the issue of exigency before 

the trial court or in his Rule 1925(b) statement, the issue is waived. See

Commonwealth v. Hill, 16 A.3d 484, 492 (Pa. 2011) (citing 

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998)); Pa.R.A.P. 

1925(b)(4)(vii) (“[i]ssues not included in the Statement and/or not raised in 

accordance with the provisions of this paragraph (b)(4) are waived.”); see 

also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”). Separately, we would also 

deem the issue raised, since Appellant only referenced the lack of exigent 

circumstances in passing for the first time in his question presented, but fails 

to develop the same in the argument section of his brief. In re Jacobs, 936 

A.2d 1156, 1167 (Pa. Super. 2007) (allegation raised in statement of the 

questions presented but not addressed in the argument section of brief was 

waived); Commonwealth v. Long, 753 A.2d 272, 278–79 (Pa. Super. 2000) 

(a contention set forth in defendant’s statement of questions involved but 

there was no “argument with respect to this issue in his brief”; we deemed 

the issue waived).
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“[g]enerally, a warrant stating probable cause is required before a police 

officer may search for or seize evidence.” Commonwealth v. Bumbarger, 

231 A.3d 10, 19 (Pa. Super. 2020) (citation omitted), appeal denied, 239 

A.3d 20 (Pa. 2020). As our Supreme Court has explained:

Probable cause is made out when the facts and circumstances 

which are within the knowledge of the officer at the time of the 

arrest, and of which he has reasonably trustworthy information, 

are sufficient to warrant a man of reasonable caution in the belief 

that the suspect has committed or is committing a crime. The 

question we ask is not whether the officer’s belief was correct or 

more likely true than false. Rather, we require only a probability, 

and not a prima facie showing, of criminal activity. In determining 

whether probable cause exists, we apply a totality of the 

circumstances test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citations and 

quotation marks omitted) (emphasis in original). Thus, “[p]robable 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.” Commonwealth v. Barr, 240 

A.3d 1263, 1274 (Pa. Super. 2020) (citing Commonwealth v. Glass, 754 

A.2d 655, 663 (Pa. 2000)). “The level of probable cause necessary for 

warrantless searches of automobiles is the same as that required to obtain a 

search warrant.” Commonwealth v. Scott, 210 A.3d 359, 363 (Pa. Super. 

2019) (citation omitted) (emphasis added). “[T]he evidence required for a 

warrantless search must be more than a mere suspicion or a good faith belief 

on the part of the police officer.” Id. (citation omitted). 
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With the foregoing in mind, we now turn to Appellant’s contention that 

the trial court erred in determining that an odor of marijuana without more 

and standing alone is always sufficient to establish probable cause. In 

reaching its determination, the trial court principally relied on 

Commonwealth v. Stoner, 344 A.2d 633 (Pa. Super. 1975). 

In Stoner, the defendants were in an automobile lawfully stopped by 

police for a traffic violation. As an officer reached into the car to secure a 

pistol that had fallen out of the glove compartment, he noticed a very distinct 

odor of marijuana about the interior of the vehicle and saw numerous 

marijuana seeds and leaves on the floor, seats, and clothing in the car. The 

officer testified he was certain that the odor was too strong to be coming from 

the small amount of the drug he could see. A warrantless search of the vehicle 

commenced, whereupon police found approximately 150 pounds of freshly cut 

marijuana in five burlap bags in the trunk. The officer testified that he 

considered it necessary to search the car immediately because the owner was 

not present and there was a possibility that if the car was left unguarded and 

the search delayed, evidence could have been removed from the car. The 

officers felt it inadvisable to leave one of their number to guard the car while 

the four persons in custody were transported to the barracks. They felt it 

would be dangerous to attempt to transport four suspects with only two police 

officers. It was felt the most reasonable course of action would be to search 

the vehicle on the spot and transport the evidence at the same time the 

appellants and co-defendants were transported. Following the search, the car 
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was locked and subsequently towed to the police station. The sole argument 

raised on appeal was that the warrantless search of the trunk of the car while 

stopped on the turnpike was illegal as being in violation of the Fourth 

Amendment to the United States Constitution. The appeal did not challenge 

whether exigent circumstances existed to justify a warrantless search. 

Rather, the argument focused solely on whether there was sufficient probable 

cause to believe that the stopped automobile contained contraband. 

The Stoner court concluded that probable cause existed to search the 

vehicle based upon the plain view by officers of marijuana seeds and leaves 

on the floor, seats, and clothing in the car when police leaned in to secure the 

pistol. The marijuana that was in plain view was sufficient to establish 

probable cause for the search of the car. Stoner, 344 A.3d at 635 (citing 

Commonwealth v. Clelland, 323 A.2d 60 (Pa. Super. 1974)). While we 

decided that the plain view of this contraband was sufficient to establish 

probable cause to search, we additionally noted that we did not need to base 

our decision solely on the evidence in plain view. One of the officers testified 

that he noted a very strong odor of marijuana coming from inside the car and 

that this was similar to standing in the center of a field of marijuana. He was 

able to provide this testimony based upon the fact he previously stood in a 

field of marijuana while serving as a Military Policeman in Vietnam and that 

freshly cut marijuana emits a stronger odor than does dried marijuana. 

Relying upon precedent from the United States Supreme Court, we too 

concluded that probable cause to search also might exist based upon odors, 
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so long as it is first established that the officer is lawfully in the place where 

the search is conducted. We concluded it would have been totally 

unreasonable for the police to lock up the car and leave it along the turnpike 

when they knew by “plain smell” that much more contraband than was visible 

was secreted in the car. 

As can be observed, our decision in Stoner was not based upon a bright 

line rule that an odor alone is sufficient to establish probable cause to search. 

Our affirmance of the suppression denial was based upon the “plain view” 

doctrine after it was established police were lawfully inside the vehicle. To the 

extent Stoner alternatively endorsed that a “plain odor” alone is sufficient to 

justify a warrantless search for marijuana, that holding now has been called 

into question based upon the passage of the MMA. When Stoner was decided, 

all forms and uses of marijuana were illegal. With the passage of the MMA,

the use of marijuana in specified forms is now legal for medicinal use, which 

may include the vaping of dry leaf marijuana.10 Since the mere smell of burnt 

marijuana now does not always establish an illegal use, we recently in Barr

arrived at the conclusion that while odor certainly may be a contributing factor 

to establish probable cause to search, odor alone may not always be sufficient.

____________________________________________

10 Although dry leaf medical marijuana was available for purchase in this 

Commonwealth effective August 1, 2018—well before the incident at issue—

we noted in Commonwealth v. Yeager that vaporizing medical marijuana 

produces the same odor as burning marijuana. Yeager, No. 2036 MDA 2019, 

2020 WL 6799113, at *4-5, unpublished memorandum, (Pa. Super. filed 

November 19, 2020) (citation omitted). 
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In Barr, a case we find instructive and controlling, and not available to

the trial court at the time it decided Appellant’s suppression motion, we 

addressed an almost identical issue as that presented in the present appeal. 

In Barr, police conducted a warrantless search of a lawfully stopped vehicle 

after they detected an odor of marijuana emanating from the vehicle. We 

examined whether the odor of marijuana may provide police with probable 

cause to search a motor vehicle from which the odor emanates when a 

substantial number of Pennsylvania citizens can now consume marijuana 

legally, calling into question the so-called plain smell doctrine. We 

acknowledged that prior cases in this Commonwealth established that the odor 

of marijuana might alone be sufficient to establish probable cause for a search 

in light of the substance’s then-universal illegality. Upon review, however, we 

concluded that the odor of marijuana does not per se establish probable cause 

to conduct a warrantless search of a vehicle. We explained:

The MMA has clearly altered the underlying factual context in 

which that probable cause test applies. . . . This much is true: 

marijuana is a prohibited substance under the [Controlled 

Substance, Drug, Device, and Cosmetic Act], despite the passage 

of the MMA. However, it is undisputed that a substantial number 

of Pennsylvania citizens may now possess and consume marijuana 

legally pursuant to the MMA. Previously, every instance in which 

marijuana was detected by smell indicated the commission of a 

crime. Soon, hundreds of thousands of Pennsylvanians will 

become potential lawful sources of that same odor. Thus, the 

strength of the inference of illegality stemming from the odor of 

marijuana has necessarily been diminished by the MMA in 

Pennsylvania.
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Barr, 240 A.3d at 1278. “It is precisely because the police cannot discern 

lawful from unlawful conduct by the odor of marijuana alone that the police 

may need to rely on other circumstances to establish probable cause to believe 

that the possession of marijuana detected by that odor is criminal.” Id. at 

1286. We therefore concluded that the odor of marijuana alone, absent any 

other circumstances, cannot provide individualized suspicion of criminal 

activity. Id. What the odor does provide is “a general, probabilistic suspicion 

of criminal activity based on the fact most citizens cannot legally consume 

marijuana.” Id. at 1287. Odor is a factor that can contribute to a finding of 

probable cause, assuming other circumstances supply more individualized 

suspicion that the activity is criminal.11 Id.

We also agree that Hicks lends some support for the conclusion that 

the mere odor of marijuana does not give rise to probable cause. In Hicks, 

police stopped Hicks’ vehicle in a gas station parking lot based on information 

that he was in possession of a firearm. Hicks, 208 A.3d at 922. An officer

restrained Hicks’ arms and removed his handgun from his holster, and a 

____________________________________________

11 We hasten to point out that here, as in Barr, we address, pre-Alexander, 

whether the totality of circumstances, including the odor of marijuana, was 

sufficient to establish probable cause to conduct a warrantless search of an 

automobile. We did not decide in Barr, nor do we here decide, whether an 

odor of marijuana alone emanating from a moving vehicle is sufficient to 

establish “reasonable suspicion” to allow further investigation into whether a 

crime has or is being committed, such that after further investigation, the 

totality of facts ripens into probable cause to search. We do note, however, 

that despite the passage of the MMA, it still is illegal in Pennsylvania to smoke 

or vape marijuana while driving. See Yeager, 2020 WL 6799113 at *6 

(Stabile, J., concurring).
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search of the vehicle followed. Id. Police later determined that Hicks 

possessed a valid license to carry a concealed firearm, and he was not 

statutorily prohibited from possessing a firearm. Id. Relevantly, Hicks was 

not charged with firearms offenses. Id. The trial court denied suppression, 

reasoning that possession of a concealed weapon justifies an investigatory 

stop to determine whether the individual has a license. Id. at 922-23. 

Ultimately, in evaluating whether carrying a concealed firearm could justify an 

investigative detention, the Pennsylvania Supreme Court first noted that an 

individual may legally carry a concealed firearm in public if he is licensed to 

do so. Id. at 926. The Court also noted it is impossible to ascertain an 

individual’s licensing status from his appearance. Id. at 937. Following an 

extensive review of applicable Fourth Amendment jurisprudence, see id. at 

930-36, the Court concluded that there is “no justification for the notion that 

a police officer may infer criminal activity merely from an individual’s 

possession of a concealed firearm in public.” Id. at 936.

In Barr, we noted the legal distinction between Hicks and cases 

involving marijuana. “The possession of a firearm is generally legal, with 

limited exceptions. The possession of marijuana, by contrast, remains 

generally illegal, but for the limited exception of lawful possession of medical 

marijuana pursuant to the MMA.” Barr, 240 A.3d at 1285. Yet, despite this 

distinction, we explained that the Hicks decision was not premised solely on 

the general legality of a firearm. Id. at 1286 (citing Hicks, 208 A.3d at 945). 

The search was not unconstitutional due to the statutory classification of Hicks’ 
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license; it was unconstitutional because the police had no way of determining 

from Hicks’ conduct or appearance that he was likely to be unlicensed and 

therefore engaged in criminal wrongdoing. Against this backdrop, we pointed 

out the fact that “police cannot distinguish between contraband marijuana and 

medical marijuana legally consumed by a substantial number of 

Pennsylvanians based on odor alone, just as police cannot determine from a 

person’s possession of a concealed firearm that he or she is unlicensed to 

carry it concealed.” Id. As a result, “because the police cannot discern lawful 

from unlawful conduct by the odor of marijuana alone[,] the police may need 

to rely on other circumstances to establish probable cause to believe that the 

possession of marijuana detected by that odor is criminal.” Id. 

Instantly, the trial court determined the officer was entitled to rely on 

the odor of marijuana to conduct a warrantless search of Appellant’s vehicle, 

which was unoccupied, locked, and lawfully parked during business hours in a 

mall parking lot. Our review of the record does not indicate that the trial court 

considered—beyond the smell of marijuana—any additional factors in 

analyzing probable cause. Here, as in Barr, we once again conclude that the 

trial court should have considered Appellant’s argument about the effect of 

the passage of the MMA as a relevant factor in its probable cause analysis.12 

In sum, and as discussed, the police here detected the smell of

marijuana coming from an unoccupied, locked, and legally parked vehicle. 

____________________________________________

12 Unlike in Barr, the suppression record here does not establish whether 

Appellant possessed a medical marijuana card.
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Consistent with Barr, the enactment of the MMA, and the rationale set forth 

in Hicks, we conclude that the odor of marijuana alone does not always 

establish probable cause. Rather, it is a factor that may contribute to a finding 

of probable cause when assessed under the totality-of-the-circumstances test. 

The trial court in this case erred in applying a per se rule for establishing 

probable cause. It anchored its conclusion that the police officers possessed 

probable cause to search Appellant’s vehicle—which was unoccupied, locked,

and legally parked in a mall parking lot—solely on the odor of marijuana 

emanating therefrom. Accordingly, we are constrained to vacate Appellant’s 

judgment of sentence, reverse the order denying Appellant’s suppression 

motion, and remand this matter to the trial court for proceedings consistent 

with this decision. On remand, the trial court shall determine on the existing 

record and consistent with this Opinion, whether the police officers relied on, 

or were influenced by, any additional factors beyond the smell of marijuana, 

to establish probable cause to execute a warrantless search of Appellant’s 

vehicle. 

Judgment of sentence vacated. Suppression ordered reversed. Case 

remanded. Jurisdiction relinquished. 
J-A22032-20

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/24/2021