J-A26008-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

MICHAEL L. JOHNSON,

Appellee No. 721 WDA 2015

Appeal from the Order Entered April 9, 2015

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0017177-2014

BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 22, 2016

The Commonwealth appeals from the trial court’s April 9, 2015 order 

granting Michael L. Johnson’s motion to suppress a gun that was discovered 

in Johnson’s car during a search following a traffic stop for minor motor 

vehicle violations. After careful review, we affirm.

Johnson was arrested on December 9, 2014, and charged with one 

count of carrying a firearm without a license, 18 Pa.C.S. § 6106, and one

count of failing to use required turn signals, 75 Pa.C.S. § 3334. On April 1, 

2015, Johnson filed a pretrial motion to suppress the firearm, contending 

that it was seized during an illegal search of his vehicle. On April 9, 2015, a 

suppression hearing was held. At the conclusion thereof, the trial court 

issued an order granting Johnson’s motion to suppress. The Commonwealth 

filed a timely notice of appeal, certifying that the court’s order handicaps 
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and/or effectively terminates the prosecution of the charges against 

Johnson. See Pa.R.A.P. 311(d). The Commonwealth also timely complied 

with the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. The trial court filed an opinion on January 21, 

2016. 

Herein, the Commonwealth presents two questions for our review in 

the “Statement of the Questions Involved” section of its brief; however, it 

only sets forth the following, single issue in its “Argument” section: “The 

officer’s observation of the odor of burnt marijuana coupled with [Johnson’s] 

statement that he had a firearm in the vehicle and admission that he had no 

carry permit provided the officer with probable cause to enter the vehicle 

and seize the firearm[;] accordingly, the suppression court erred in 

disregarding [Johnson’s] statement and in granting the motion to suppress.” 

Commonwealth’s Brief at 9. 

Our standard of review of the Commonwealth’s issue is as follows:

When reviewing an Order granting a motion to suppress

we are required to determine whether the record supports the 

suppression court's factual findings and whether the legal 

conclusions drawn by the suppression court from those findings 

are accurate. In conducting our review, we may only examine 

the evidence introduced by appellee along with any evidence 

introduced by the Commonwealth which remains uncontradicted. 

Our scope of review over the suppression court's factual findings 

is limited in that if these findings are supported by the record we 

are bound by them. Our scope of review over the suppression

court's legal conclusions, however, is plenary.
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Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)

(quoting Commonwealth v. Henry, 943 A.2d 967, 969 (Pa. Super. 2008) 

(citations omitted)). We also stress that “it is exclusively the province of the 

suppression court to determine the credibility of the witnesses and the 

weight to be accorded their testimony.” Commonwealth v. Krisko, 884 

A.2d 296, 299 (Pa. Super. 2005) (citation omitted).

We begin by summarizing the evidence presented at the April 9, 2015 

suppression hearing, where the Commonwealth presented one witness, Mt. 

Oliver Borough Police Officer Patrick Lucas. Officer Lucas testified that on 

December 9, 2014, at approximately 11:55 p.m., he conducted a traffic stop 

of Johnson’s vehicle after observing Johnson’s turning twice without 

signaling. N.T. Hearing, 4/9/15, at 5-6. Officer Lucas testified that after 

stopping Johnson’s vehicle, he approached the driver’s side door of the car. 

Id. Johnson had the driver’s side window down and the officer immediately 

detected an odor of marijuana. Id. Johnson was the only occupant of the 

car. Id. 

Officer Lucas testified that Johnson “did not have an identification card 

or driver’s license on him[,]” but he did give the officer information, which 

the officer then ran through the computer system in his patrol car. Id. at 7. 

That check confirmed that the information provided by Johnson was 

accurate, and that the vehicle was registered to Johnson. Id. at 14-15. 

Officer Lucas then testified as follows:
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[Officer Lucas:] I re-approached the vehicle after telling him 

about the odor of marijuana, and I asked him if he would step 

out of the vehicle. 

[The Commonwealth:] Did he step out of the vehicle?

[Officer Lucas:] He did.

[The Commonwealth:] After he got out of the vehicle, what 

happened?

[Officer Lucas:] I advised him again of the odor of marijuana, 

and he stated that he did smoke marijuana earlier inside his 

vehicle, but he stated that he did not believe there was anything 

still in the vehicle, and he stated there was nothing on him as far 

as the marijuana.

[The Commonwealth:] Did he say anything else?

[Officer Lucas:] He did. I didn’t ask him any more 

questions, and he uttered, the only thing in the car was 

[his] gun. 

[The Commonwealth:] At that point, once he indicated that there 

was a gun in the vehicle, did you ask him another question?

[Officer Lucas:] I did. I asked him if he owned a valid permit to 

carry a concealed firearm.

...

He stated no.

Id. at 7-8 (emphasis added). Officer Lucas explained that he placed 

Johnson into custody based on Johnson’s admissions about the gun and his 

lack of a permit to carry that weapon. Id. at 8. The officer then searched 

the vehicle and “removed a firearm from behind the passenger seat where 

[Johnson had] said [it] was.” Id. 

On cross-examination of Officer Lucas, defense counsel and the officer 

had the following exchange:
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[Defense Counsel:] So you come back to the vehicle, and at this 

point you ask [Johnson] to get out, correct?

[Officer Lucas:] I requested that he step out, yes.

...

[Defense Counsel:] At this point, you’re continuing your 

investigation into the smell of marijuana, right?

[Officer Lucas:] Correct.

[Defense Counsel:] And marijuana you know is not legal, so 

you’re asking him about what’s potentially an illegal substance in 

his car, correct?

[Officer Lucas:] Correct.

[Defense Counsel:] At this point, before you ask him any 

questions, did you tell him he had the right to remain silent, give 

him any Miranda[1] warnings, anything like that?

[Officer Lucas:] No, not at this time.

[Defense Counsel:] You asked him about the marijuana?

[Officer Lucas:] I advised him that I smelled the odor of 

marijuana.

...

[Defense Counsel:] He said what you previously said about him 

smoking marijuana in the car, right?

[Officer Lucas:] That’s correct.

[Defense Counsel:] He had no appearance that he was under the 

influence at that time, right?

[Officer Lucas:] Correct.

[Defense Counsel:] At that point in time, I’m assuming you’re 

asking him -- you’re continuing to ask him, you know, can we 

look through, right?

____________________________________________

1 Miranda v. Arizona, 384 U.S. 436 (1966).
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[Officer Lucas:] At that point in time, I was going to 

perform a sweep of the vehicle because of the odor of 

marijuana.

[Defense Counsel:] But you tell him this, right?

[Officer Lucas:] Yes.

[Defense Counsel:] At that point you ask him, anything we 

need to know about the car before we do the sweep; fair 

to say?

[Officer Lucas:] Fair to say.

[Defense Counsel:] At that point, he says, just to let you 

know, my gun is in the car, correct?

[Officer Lucas:] Correct.

Id. at 15-17 (emphasis added).

The trial court concluded that Officer Lucas’ direct-examination and 

cross-examination testimony differed significantly regarding what Johnson 

said to the officer after he stepped out of the vehicle. See TCO at 4. In the 

court’s Rule 1925(a) opinion, it summarized the pertinent differences in the 

officer’s testimony, and explained the credibility determinations it made 

based on those inconsistencies, as follows:

On direct exam[ination], Officer Lucas said Johnson ... said 

“he did not believe that there was anything still in the vehicle,” 

and that “there was nothing on him” and, “the only thing in the 

car was [his] gun[.”] On cross-examination, about the same 

sequence of events, Officer Lucas said he “was going to perform 

a sweep of the vehicle[,”] Johnson was told this, he asked 

Johnson if we need to know anything about the car before we do 

the sweep, to which Johnson replied that he had a gun in the 

car.

There are significant differences in these two stories. 

Initially, Officer Lucas portrayed Johnson’s comment about a 

gun’s presence as almost an after thought [sic] of Johnson’s. On 
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cross, the comment about a gun was in direct response to a 

question posed by Officer Lucas. The lack of candor by [Officer]

Lucas is significant. Support comes from [Officer] Lucas’ word 

choice. He prefaced his direct testimony with legalese. When 

asked if Johnson said anything else, the officer’s response was -

he did. But, [Officer] Lucas did not stop there. Despite 

answering the question in that short declarative way[] (“He 

did”), Officer Lucas added: “I didn’t ask any more questions, and 

he uttered...[.]” Why was it important to []reference the lack of 

questioning unless the officer felt he was crossing the line. And, 

then he says, Johnson “uttered[.”] Who talks like that? 

Certainly not one who is seeking to be believed by this jurist. 

Bottom line, the [c]ourt believes what happened after Johnson 

exited the car was what was elicited on cross-examination. The 

[c]ourt found that Johnson was asked about the 

marijuana and was told that a search [or] “sweep” of his 

vehicle was going to take place. That is all. The [c]ourt 

does not believe that Johnson said: “he did not believe that 

there was anything still in the vehicle[,”] “there was nothing on 

him” and “the only thing in the car was [his] gun.” 

Trial Court Opinion (TCO), 1/25/16, at 4-5 (emphasis added).

On appeal, the Commonwealth interprets the trial court’s ruling as 

finding credible Officer Lucas’ testimony that he told Johnson a search of the 

car was going to be conducted, and that Johnson revealed, during 

subsequent questioning by the officer, that a gun was in the car. The 

Commonwealth then contends that the trial court erroneously disregarded 

Johnson’s statements about the gun and his lack of a permit because Officer 

Lucas did not provide Johnson with Miranda warnings prior to Johnson’s 

making those statements. According to the Commonwealth, Johnson was 

not under arrest when Officer Lucas questioned him and, therefore, no 

Miranda warnings were required. Consequently, the Commonwealth argues 

that the court should have considered Johnson’s statements about the gun, 
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and found that Officer Lucas had probable cause to search Johnson’s vehicle 

for that weapon.

Johnson, however, interprets the trial court’s ruling differently. He 

maintains that the court’s opinion demonstrates that it did not believe any

of Officer Lucas’ testimony about the gun. More specifically, Johnson avers 

that the trial court wholly disbelieved Officer Lucas’ claims that Johnson 

told the officer there was a gun in the vehicle prior to the search. In 

support, Johnson relies on the above-emphasized portion of the court’s 

opinion. See Johnson’s Brief at 11.

We agree with Johnson that the language in the court’s opinion 

indicates that the court completely rejected Officer Lucas’ testimony 

pertaining to Johnson’s statements about the gun. In particular, the court 

explicitly stated that all it believed was that Officer Lucas asked Johnson 

about the marijuana and told Johnson he would be conducting a ‘sweep’ of 

the vehicle. See TCO at 4 (“The [c]ourt found that Johnson was asked 

about the marijuana and was told that a search [or] ‘sweep’ of his vehicle 

was going to take place. That is all.”) (emphasis added). 

We also stress that nothing in the court’s opinion indicates that it ruled 

in the manner suggested by the Commonwealth, i.e., that the court believed 

that Johnson made the gun comments in response to Officer Lucas’ 

questioning, but it did not consider those statements because Miranda 

warnings were not provided to Johnson. At no point in the court’s opinion 

does it mention Miranda, let alone examine the implications of that decision 
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to the facts at hand. Instead, following the court’s discussion of Officer 

Lucas’ lack of credibility, quoted supra, the court assesses only whether 

Officer Lucas possessed probable cause to search Johnson’s vehicle for 

marijuana. See TCO at 6-7. The absence of any Miranda analysis by the 

court bolsters our rejection of the Commonwealth’s interpretation of the 

court’s ruling. Instead, the record supports Johnson’s claim that the court 

completely rejected Officer Lucas’ testimony that Johnson said there was a 

gun in the car. We cannot disturb the trial court’s credibility determination 

on appeal. See Krisko, 884 A.2d at 299.

Moreover, the Commonwealth has also not convinced us to reverse the 

court’s conclusion that Officer Lucas did not possess probable cause to 

search Johnson’s vehicle, premised only on the officer’s smelling an odor of 

marijuana. We recognize that this Court has held “that an odor [of 

marijuana] may be sufficient to establish probable cause for a search of an 

automobile, which had been legitimately stopped for an unrelated vehicle 

code violation.” Commonwealth v. Stoner, 710 A.2d 55, 59 (Pa. Super. 

1998) (emphasis added) (citing Commonwealth v. Stoner, 344 A.2d 633 

(Pa. Super. 1975)). Here, however, the court found that Officer Lucas’ 

smelling marijuana was not sufficient, in and of itself, to provide him with 

probable cause to search Johnson’s vehicle. See TCO at 6. The court 

emphasized that “Officer Lucas said Johnson did not appear to be under the 

influence of the drug[,]” which was “consistent with Johnson’s statement 

that at some previous time he had smoked marijuana in the car.” Id. The 
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court also noted that Officer Lucas did not observe anything inside the 

vehicle that would suggest the presence of marijuana, such as use 

paraphernalia or “remnants of recent use.” Id. Ultimately, the trial court 

found that the “odor, in the absence of other incriminating circumstances, 

[was] not sufficient to establish probable cause.” Id. at 7. 

The Commonwealth offers no argument to challenge the court’s 

conclusion that Officer Lucas did not possess probable cause based only on 

his smelling an odor of marijuana. Instead, the Commonwealth solely 

argues that the court erred by not considering Johnson’s statements about 

the gun, which, according to the Commonwealth, provided Officer Lucas with 

probable cause to search Johnson’s car for the firearm. For the reasons 

stated supra, we reject the Commonwealth’s interpretation of the trial 

court’s ruling, and decline to overturn the court’s credibility determinations 

regarding Officer Lucas’ testimony. Because the Commonwealth does not 

provide any meaningful challenge to the court’s finding that no probable 

cause existed based only on Officer Lucas’ smelling an odor of marijuana, 

the Commonwealth has not demonstrated that the court’s order granting 

Johnson’s motion to suppress the gun should be reversed. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016