J-S31045-21

2022 PA Super 24

COMMONWEALTH OF PENNSYLVANIA

v.

ANN LUTZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1047 EDA 2021

Appeal from the Judgment of Sentence Entered May 18, 2021

In the Court of Common Pleas of Carbon County Criminal Division at 

No(s): CP-13-CR-0001094-217

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*

OPINION BY PELLEGRINI, J.: FILED FEBRUARY 14, 2022

Ann Lutz (Lutz) appeals from the judgment of sentence imposed in the 

Court of Common Pleas of Carbon County (trial court) following her conviction 

for possession of drug paraphernalia and possession of a small amount of 

marijuana. Lutz challenges the trial court’s denial of her motion to suppress 

the evidence recovered from her vehicle and the court’s application of the 

plain view and search incident to arrest exceptions to the warrant 

requirement. We vacate the judgment of sentence, affirm and reverse the 

suppression order in part and remand for further proceedings.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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I.

A.

This case arises from Lutz’s arrest in May 2017 on charges of two counts 

of driving under the influence of a controlled substance (DUI) and one count 

each of possession of a controlled substance, possession of a small amount of 

marijuana and possession of drug paraphernalia.

1

 Prior to her jury trial, Lutz 

filed a motion to suppress evidence challenging the legality of the search of 

her vehicle.

Sergeant Shawn Nunemacher of the Lansford Police Department was 

the only witness at the December 10, 2019 suppression hearing. His 

testimony reflected that on May 5, 2017, at 8:30 a.m., he responded to a 

report of a suspicious vehicle parked at the foot of a private community on a 

water authority road. Police regularly patrolled this location because it is 

known for its drug activity and as an area where people dump garbage.

Sergeant Nunemacher approached Lutz’s vehicle, which was parked in 

a rocky area, and he heard loud music coming from her car. Upon noticing 

the police vehicle, Lutz exited her car, approached Sergeant Nunemacher and 

walked toward him with a slow, staggered gait to identify herself. Sergeant 

Nunemacher repeatedly asked Lutz for her driver’s license and “had to redirect 

____________________________________________

1 75 Pa.C.S. §§ 3802(d)(1),(d)(2) (DUI charges relating to controlled 

substance/drug impairment); 35 P.S. §§ 780-113(a)(16), (a)(31), (a)(32).
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her several times” before she retrieved it from her vehicle because she 

“continued to talk and wander off other ways.” (N.T. Suppression, 12/10/19, 

at 5). As they spoke, Sergeant Nunemacher detected the odor of alcohol on 

Lutz’s breath and observed that she used slow, slurred speech. He asked Lutz 

to perform three basic coordination tests and she exhibited a lack of balance

and signs of impairment during each test.

Sergeant Nunemacher called for backup and two police officers arrived 

at the scene to administer a preliminary breath test (PBT) to Lutz. Sergeant 

Nunemacher testified that the officers were unable to obtain an accurate

reading because Lutz did not follow the instructions to provide an adequate 

sample. Lutz “wouldn’t consistently blow or she would give short pulsing 

breaths so the PBT couldn’t get a reading” and he “explained to her that due 

to her showing signs of impairment if she couldn’t give me something on the 

PBT to show she wasn’t impaired, that I would be placing her under arrest for 

DUI.” (Id. at 7).

Sergeant Nunemacher then left Lutz in the custody of the two other 

police officers to continue PBT testing and he checked on her vehicle which 

was still running. Lutz had left her keys inside the car and the driver’s side 

door open with the window down. Sergeant Nunemacher looked inside the 

open door and immediately observed a metal pipe sitting on the driver’s seat. 

He picked up the pipe and it “smelled very strongly of burnt marijuana” and 

contained “remnants . . . and pieces in there.” (Id. at 24; see id. at 7-8). 
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He described the pipe as “cylinder . . . [with] a cone on the end of it [] with 

another end that is commonly used for smoking.” (Id. at 17). He 

acknowledged that the pipe could be used to smoke tobacco, but explained 

that “objects like this in my training and experience are commonly makeshift 

pipes used for drug use.” (Id.).

There were no occupants in Lutz’s vehicle and her personal belongings 

and garbage filled the passenger seat and entire backseat of the car. Sergeant 

Nunemacher took possession of the pipe and returned to where Lutz was in 

the custody of the other officers. They advised that the PBT reading showed 

a breath alcohol content (BrAC) of 0.06% but they were unable to confirm its 

accuracy because of Lutz’s lack of cooperation in taking the test.2 Sergeant 

Nunemacher informed Lutz that she was under arrest for suspicion of DUI, 

placed her in handcuffs and gave her Miranda3 warnings. He asked Lutz if 

she had anything illegal in the car and she admitted that she “might have 

some marijuana.” (Id. at 9).

Sergeant Nunemacher returned to Lutz’s vehicle and observed an open 

beer can sitting in the center console. He testified that he was able to see 

both the beer can and the metal pipe he had already confiscated “from the 

____________________________________________

2 The threshold BrAC for DUI─general impairment is 0.08%. See 75 Pa.C.S. 

§ 3802(a)(2).

3 Miranda v. Arizona, 384 U.S. 436 (1966).
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open door . . . without even going in the vehicle.” (Id. at 9-10; see id. at

24).

Sergeant Nunemacher then searched the car and recovered an eyeglass 

case containing suspected marijuana from underneath the driver’s seat. He 

also found a bag containing a blue pill and a cut straw from the area where 

the driver’s seat meets the center console.

4

 Testing on the substance found 

in the eyeglass case confirmed it was marijuana. Sergeant Nunemacher

testified that he did not ask Lutz for permission to search her vehicle because 

“she was in custody for DUI” and he conducted the search “incident to arrest.” 

(Id. at 10).

B.

The trial court denied Lutz’s suppression motion. Lutz filed a motion to 

reconsider the ruling in light of our Supreme Court’s decision in 

Commonwealth v. Alexander, 243 A.3d 177, 181 (Pa. 2020), which 

addressed the requirements under the Pennsylvania Constitution of the 

automobile exception to the warrant requirement. In Alexander, two 

Philadelphia police officers stopped a vehicle driven by Alexander at 2:30 a.m. 

The officers smelled marijuana and Alexander stated that he and his female 

passenger, who owned the vehicle, had just smoked a blunt. Officer Godfrey 

____________________________________________

4 The specific formulation of the pill was never identified and does not form 

the basis of any charges in this case.
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arrested Alexander and placed him in the patrol vehicle, while the passenger 

was removed from the car. The officers searched the interior for more 

marijuana but only found a metal box behind the driver’s seat. The box 

opened with a key Alexander had on his keychain and contained bundles of 

heroin. Alexander was charged with, inter alia, possession with intent to 

deliver and filed a suppression motion challenging the search, which was 

denied. At a bench trial, he was convicted of possession with intent to deliver. 

See id. at 181.

Our Supreme Court held “that Article I, Section 8 affords greater 

protection to our citizens than the Fourth Amendment, and reaffirm our prior 

decisions: the Pennsylvania Constitution requires both a showing of probable 

cause and exigent circumstances to justify a warrantless search of an 

automobile.” Id. “Obtaining a warrant is the default rule. If an officer 

proceeds to conduct a warrantless search, a reviewing court will be required 

to determine whether exigent circumstances existed to justify the officer’s 

judgment that obtaining a warrant was not reasonably practicable.” Id.

(emphasis original). The Court remanded the case to the trial court, noting 

that the testimony was not directed at the exigencies of the situation.

The trial court denied Lutz’s motion for reconsideration determining that 

Alexander did not impact its ruling because its decision did not “rest upon 

the analytical underpinnings of the automobile exception to the warrant 

requirement, but rather upon an application of the plain view and search 
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incident to arrest exceptions to the warrant requirement.” (Trial Court 

Opinion, 3/17/20, at 3).

The case proceeded to a jury trial where Lutz was found guilty of 

possession of drug paraphernalia and possession of a controlled substance. 

The trial court found Lutz guilty of possession of a small amount of marijuana 

and not guilty of the DUI offenses.5 On May 18, 2021, the trial court imposed 

a sentence of one year of probation on the possession of drug paraphernalia 

conviction and a $150.00 fine on the possession of a small amount of 

marijuana charge. Lutz timely appealed and she and the trial court complied 

with Rule 1925. See Pa.R.A.P. 1925(a)-(b).

II.

On appeal, Lutz contends the trial court erred in denying her motion to 

suppress. She challenges the trial court’s application of the plain view doctrine

and claims Sergeant Nunemacher unlawfully seized the metal pipe from her 

vehicle because he was not justified in entering the car without a warrant. 

Lutz also contests the trial court’s finding that Sergeant Nunemacher properly 

searched her vehicle as incident to her arrest on suspicion of DUI.6

____________________________________________

5 Pursuant to a stipulation by the parties, the trial court vacated the simple 

possession jury conviction in light of its bench conviction on the possession of 

a small amount of marijuana charge.

6

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether the 

(Footnote Continued Next Page)
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A.

“The law is clear that citizens are protected by both federal and state 

constitutional provisions from unreasonable searches and seizures. U.S. 

Const. Amend. IV; Pa. Const. Art. I, § 8.” Martin, supra at 1228 (case 

citation omitted). A warrantless search or seizure is presumptively 

unreasonable under the Fourth Amendment and Article I, § 8, subject to a 

few established, well-delineated exceptions. See id. Such exceptions include 

“the consent exception, the plain view exception, the inventory search 

exception, the exigent circumstances exception, the automobile exception ...

the stop and frisk exception, and the search incident to arrest exception.” 

____________________________________________

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 

. . . 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. Martin, 253 A.3d 1225, 1227–28 (Pa. Super. 2021)

(citation omitted). Our scope of review of a suppression ruling is limited to 

the evidentiary record that was created at the suppression hearing. See 

Commonwealth v. Bumbarger, 231 A.3d 10, 15 (Pa. Super. 2020), appeal

denied, 239 A.3d 20 (Pa. 2020).
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Commonwealth v. Simonson, 148 A.3d 792, 797 (Pa. Super. 2016)

(citation omitted).

B.

We first address Lutz’s contention that her Fourth Amendment and 

Article 1, § 8 rights were violated when Sergeant Nunemacher seized the 

metal pipe from the driver’s seat of her vehicle. She argues that the plain 

view exception did not relieve him of his obligation to obtain a search warrant.

“The plain view doctrine provides that evidence in plain view of the 

police can be seized without a warrant.” Commonwealth v. Luczki, 212 

A.3d 530, 546 (Pa. Super. 2019) (citation omitted). “This doctrine permits a 

valid warrantless seizure of an item where: (1) the police have not violated 

the Fourth Amendment in arriving at the location from which the item could 

be viewed; (2) the item is in plain view; (3) the incriminating character of the 

item is immediately apparent; and (4) the police have a lawful right of access 

to the item itself.” Id. (citation omitted).

“There can be no reasonable expectation of privacy in an object that is 

in plain view.” Id. at 547 (citation omitted). “There is no reason a police 

officer should be precluded from observing as an officer what would be entirely 

visible to him as a private citizen.” Id. (citation omitted). To assess whether 

the incriminating nature of an object was immediately apparent to the police 

officer, reviewing courts must consider the totality of the circumstances. See 
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id. “In viewing the totality of the circumstances, the officer’s training and 

experience should be considered.” Id. (citation omitted).

In this case, it is clear from the record that Sergeant Nunemacher was 

lawfully outside of Lutz’s still-running vehicle when he first observed the pipe 

in plain view on the driver’s seat from the vantage point of the open car door 

and window. The legality of the seizure of the pipe hinges on whether its

incriminating character was readily apparent and whether the Sergeant had a 

lawful right of access to the pipe itself. See Luczki, supra at 546.

An officer can never be 100 percent certain that an item in plain view is 

incriminating, but his belief must be supported by probable cause. See

Commonwealth v. Turner, 982 A.2d 90, 92 (Pa. Super. 2009), appeal 

denied, 992 A.2d 889 (Pa. 2010). A determination of probable cause requires 

only a probability and not a prima facie showing of criminal activity applying 

a totality of the circumstances test. See Commonwealth v. Grooms, 247 

A.3d 31, 38 (Pa. Super. 2021). “Thus, probable 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.” Id. (citation omitted).

Indicia of illegal marijuana use forming the basis of probable cause has 

been impacted by the enactment of the Medical Marijuana Act (MMA) in 
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Pennsylvania.7 Commonwealth v. Barr, 2021 WL 6136363 (Pa. filed Dec. 

29, 2021), a case involving the “plain smell” doctrine rather than “plain view,”

is instructive and was not available to the trial court at the time it decided 

Lutz’s suppression motion. In Barr, our Supreme Court held that “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.” Id. at *15.

In that case, Pennsylvania State Police troopers pulled over a vehicle

driven by the defendant’s wife for a Vehicle Code violation and they detected 

the smell of burnt marijuana as they approached the vehicle. The troopers 

stated their intention to search the vehicle based upon probable cause from 

the odor of marijuana, whereupon the defendant, who was in the passenger 

seat of the vehicle, presented a medical marijuana identification card. After 

the troopers recovered a firearm and marijuana from the vehicle, the 

defendant was charged with person not to possess a firearm and possession 

of a small amount of marijuana.

In analyzing the impact of the MMA on probable cause assessments, the 

Court found “that the MMA makes abundantly clear that marijuana no longer 

is per se illegal in this Commonwealth. Accordingly, the enactment of the 

____________________________________________

7 The General Assembly enacted the MMA, 35 P.S. 

§§ 10231.101─10231.2110. with an effective date of May 2016. It became 

effective approximately one year prior to the search of Lutz’s vehicle.
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MMA eliminated this main pillar supporting the ‘plain smell’ doctrine as applied 

to the possession or use of marijuana.” Id. at *12. However,

the [Controlled Substance, Drug, Device and Cosmetic Act, 

35 P.S. §§ 780-101─144] still renders possession of marijuana 

illegal for those not qualified under the MMA. Thus, the smell of 

marijuana indisputably can still signal the possibility of criminal 

activity. Given this dichotomy, we conclude that the odor of 

marijuana may be a factor, but not a stand-alone one, in 

evaluating the totality of the circumstances for purposes of 

determining whether police had probable cause to conduct a 

warrantless search.

In so doing, we emphasize that the realization that a 

particular factor contributing to probable cause may involve legal 

conduct does not render consideration of the factor per se

impermissible, so long as the factor is considered along with other 

factors that, in combination, suggest that criminal activity is afoot. 

As recognized by the Commonwealth, the totality-of-thecircumstances analysis encompasses the consideration of factors 

that may arguably be innocent in nature.

Id. at *13 (case citation omitted).

The Supreme Court determined that because the record supported the 

trial court’s conclusion that the troopers searched the car in question based 

solely on the odor of marijuana coming from it, the trial court properly granted 

the defendant’s motion to suppress. See id. at *15.

Here, in contrast to Barr, the suppression record establishes that at the 

time Sergeant Nunemacher approached Lutz’s still-running vehicle, several

factors contributed to his belief that there was probable cause that she had 

engaged in driving under the influence of alcohol or a controlled substance. 

He smelled the odor of alcohol on her breath when she spoke and her speech 

was slow and slurred. Lutz walked with a sluggish gait, wandered off while 
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she was speaking with him and failed three basic coordination tests. She 

referenced no medical marijuana identification card and she was parked in a 

location known to police as frequented by drug users.

As previously noted, Sergeant Nunemacher acknowledged that the 

metal pipe could be used to smoke tobacco, but unequivocally opined that 

“objects like this in my training and experience are commonly makeshift pipes 

used for drug use.” (Id. at 17). Based on the totality of the circumstances, 

we conclude Sergeant Nunemacher’s belief that the pipe in plain view was 

readily discernible as incriminating in nature provided ample probable cause. 

See Turner, supra at 92, 94 (holding defendant cannot claim legitimate 

expectation of privacy in shotgun shell laying on front passenger seat clearly 

visible from outside of an unlocked, unoccupied vehicle).

Because, in addition to probable cause, Alexander requires exigent 

circumstances to enter the car, we now turn to the question of whether 

Sergeant Nunemacher had a lawful right of access to go into the car and seize 

the pipe itself without getting a warrant. In this case, the still-running vehicle 

and open car door fulfilled the requirement of exigent circumstances because 

the Sergeant needed to enter the car to turn off the ignition. Once he entered 

the vehicle to safely secure the scene, he had lawful access to the pipe sitting 

on the driver’s seat and seizure of it was lawful under the plain view doctrine, 

as informed by Alexander.
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C.

We next address Lutz’s challenge to the trial court’s finding that 

Sergeant Nunemacher properly searched her vehicle as incident to her arrest 

on suspicion of DUI. Lutz contends that because she was handcuffed and 

detained by two police officers outside of the immediate vicinity of her vehicle 

at the time Sergeant Nunemacher conducted the search and she could not 

access the contents of her car, the search incident to arrest exception to the 

warrant requirement does not apply. We agree.

“The search incident to arrest exception allows arresting officers, in 

order to prevent the arrestee from obtaining a weapon or destroying

evidence, to search both the person arrested and the area within his

immediate control.” Commonwealth v. Simonson, 148 A.3d 792, 799 

(Pa. Super. 2016) (citation omitted; emphasis added). Furthermore, this 

“exception to warrantless searches permits police to search an arrestee’s

person as a matter of course, without a case-by-case adjudication of whether 

such search is likely to protect officer safety or evidence.” Commonwealth

v. Yorgey, 188 A.3d 1190, 1198 (Pa. Super. 2018) (en banc) (emphasis 

added; citation omitted). “Stated another way, in all cases of lawful arrests, 

police may fully search the person incident to the arrest.” Commonwealth

v. Ingram, 814 A.2d 264, 272 (Pa. Super. 2002) (emphasis added; citation 

omitted).
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In this case, Sergeant Nunemacher searched Lutz’s vehicle incident to 

her arrest on suspicion of DUI. Thus, the relevant search and seizure did not 

involve “the person arrested [or] the area within h[er] immediate control.” 

Simonson, supra at 799 (emphasis added). While Lutz was in the general 

vicinity of her car at the time of the search, she was handcuffed and in the 

custody of two police officers. There was no risk that she would obtain a 

weapon from her vehicle or destroy evidence indicating that she was

intoxicated. It was also not in plain view. Because the search at issue was 

not related to Lutz’s person whatsoever, it was not lawful as incident to her 

arrest; therefore, this exception did not operate to relieve police of the default 

requirement to seek a warrant to search the entire vehicle.

In sum, our review of the record in conjunction with the foregoing case

law supports Lutz’s claim that the evidence of the marijuana contained in the

eyeglass case under the driver’s seat found during the search incident to her 

arrest should have been suppressed. However, the evidence of the metal pipe 

was properly admitted by the trial court under the plain view doctrine. 

Accordingly, we affirm the suppression order in part as to the metal pipe but 

reverse its denial of Lutz’s motion to suppress the marijuana in the eyeglass 

case and remand for further proceedings consistent with this Opinion.

Suppression Order affirmed in part and reversed in part. Judgment of

sentence vacated. Case remanded for further proceedings. Jurisdiction

relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/14/2022