J

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

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

ERIK RICHARD GOLANT :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 4071 EDA 2017 Appeal from the Order Entered November 20, 2017 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP

- 23

- CR

- 0005102

- 2016

BEFORE: GA NTMAN, P.J., OTT, J., and PLATT  , J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 09, 2018
The Commonwealth appeals fr om the order entered November 20 , 2017, in the Court of Common Pleas of Delaware County , suppressing
evidence and dismissing the charges against Appellee/Defendant Erik Richard

Golant. 1 After a thorough r eview of the submissions by the parties , the
certified record, and relevant law, we affirm in part, reverse in part and
remand for further proceedings consistent with this decision.
We relate the facts and procedural history of this matter as stated in th e trial judge’s Pa.R.A.P. 1925(a) opinion.

On May 15, 2016, at approximately 8:40 p.m., Officer James Hal l man of the Trainer Borough Police Department received a radio report of an unconscious man inside a car. He proceeded to

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 Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth has filed certification pursuant to Pa.R.A.P. §311(d) that the trial court’s order will terminate or substantially handicap the prosecution.J

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the vicinity of Post Road a nd Pennell Street, where he found a blue Volkswagen legally parked with its engine running and lights on. He parked his police car behind the subject vehicle, exited and walked to the Volkswagen, where he found a man, later identified as [Golant], asleep in the driver’s seat with the engine running and the keys in the ignition. After awakening the man by banging on the window, he shone a flashlight in [Golant’s] face and noted bloodshot and glassy eyes and profuse amounts of sweat. All of this suggested the ingestion of alcohol and, perhaps, narcotics.
He directed [Golant] to step out of the car. As the door opened, he detected the smell of marijuana emanating from both the interior of the car and from [Golant’s] person. He turned off the engine and r emoved the keys from the ignition.
After assisting [Golant] to the rear of the car for evaluation by the medic s, who had arrived on the scene, h e performed a pat

- down search for anything that [Golant] might use as a weapon or that might poke or stab him or the medical personnel. During the search, he detected a hard object that he suspected might be a pill bottle containing a substance [Golant] had recently ingested. He asked what it was. [Golant] pulled out the container and explained that it was “jus t a little bit of weed.”
Because he could smell marijuana, he searched [Golant’s] car and found on the front passenger seat a black book bag. In an open front pouch, he saw a clear plastic baggie containing nine red cubes, later identified as THC. He returned to the ambulance and questioned [Golant] further about any consumption of the cubes. [Golant] explained he had ingested something at a concert and, while driving home, pulled over because he felt too tired to drive. He did not administer any fil ed sobriety tests. Rather, the ambulance crew took [Golant] to the hospital.
At the emergency room, he read to [Golant] the contents of the DL

- 26 form and advised him of the Section 1547 Chemical Test warnings. [Golant] signed the form, and blood was d rawn.

The Commonwealth charged [Golant] with Count 1, [ D ] riving under the influence, 75 Pa.C.S.A. § 3802(d)(3), Count 2 , Driving under the influence, 75 Pa.C.S.A. § 3802(d)(2), and Count 3 Posse ssion of Marijuana, 35 [P.S.] § 780

- 113(a )(31 )(UM). On March 23, 2017, the Information was amended to add Count 4, Driving under the influence, 75 Pa.C.S.A. § 3802(a)(1), Count 5,J

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Driving under the influence, 75 Pa.C.S.A. § 3802(d)(1)(i), Count 6, Driving under the influence, 75 Pa.C.S.A. § 3802(d)(1)(ii), Count 7, Driving under the influence, 75 Pa.C.S. § 3802(d)(1)(iii).
On March 23, 2017, this Court conducted a suppression hearing. Although the Commonwealth conceded that the officer’s use of the DL

- 26 form rendered [Golant’s] consent inoperative under Birchfiel d v. North Dakota , 136 S.Ct. 2160 (2016), it argued that the blood test results would be otherwise admissible under the Inevitable Discovery Doctrine. This Court disagreed and suppressed the blood test results.
After hearing arguments, this Court conclud ed that absent the blood test results, the evidence was too “trivial” to find [Golant] guilty beyond a reasonable doubt. Accordingly, it dismissed the entire case. Trial Court Opinion, 2/26/2018, at 1

- 3.
Subsequently, the Commonwealth appealed, 2 and file d a Pa.R.A.P.
1925(b) statement of errors complained of on appeal. Those issues, as argued
in the Commonwealth’s Appellant’s brief are:

Did the suppression court properly recognize in its opinion that it erred because dismissal is not a suppression remed y and the Commonwealth had a right to appeal and right to a jury trial? [ 3 ]

... Did the suppression court err by suppressing the statements [made by Golant] because perso ns temporarily detained during vehicle stops are not in custody for the purposes of Miranda [ 4 ] and not entitled to Miranda warnings?

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2 Although the trial court verbally suppressed all evidence and dismissed the
c ase on March 23, 2017, the written order was not docketed until November 20, 2017. Pursuant to Pa.R.A.P. 301(b) and (c), the order was not appealable until the written order was docketed.

3 In its Rule 1925(b) statement, the Commonwealth claimed the tria l court erred in dismissing the case after granting Golant’s motion to suppress. In its Rule 1925(a) opinion, the trial court agreed it had erred.

4 Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).J

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Did the officer’s observations of the intoxicated defendant and the odor of marijuana in his vehicle give him probable cause to search the vehicle without a warrant? Commonwealth Appellant’s Brief at 2

- 3 (p refatory statements to each
question omitted).
Initially, we agree with the Commonwealth and the trial court that the
case was improperly dismissed after the trial court suppressed all the

evidence. See Commonwealth v. Miklos , 672 A.2d 796 (Pa. Super. 19 96)
( en banc ) (suppression court not asked to resolve questions related to factual
guilt or innocence). Accordingly, the dismissal of all charges is reversed.

Our standard of review is well settled.
When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant ’ s witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court ’ s findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the la w to the facts.

Our standard of review is restricted to establishing whether the record supports the suppression court's factual findings; however, we maintain de novo review over the suppression court's legal conclusions.

Commonwealth v. Newsome , 170 A.3d 1151, 1153

- 54 (Pa. Super. 2017)
(citation omitted).
The Commonwealth’s first suppression issue is a claim the trial court
improperly suppressed statements made by Golant. The CommonwealthJ

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argues Golant was not under arrest at the time the statements were made

and therefore Miranda warnings were not required.
Although the Commonwealth does not specifically state what statements
by Golant they refer to, our review of the certified record leads to the

conclusion the statements are those mentioned in the trial court opinion: (1)
Golant’s admission that he possessed a little weed after the pat down search,
and (2) his admission that he had ingested “something” at the concert he
attended and felt too tired to drive, after Officer Hallman found the THC ca ndy
in his backpack.
The trial court did not suppress the first statement due to a failure to
give Golant Miranda warnings. Rather, the trial court determined the pat
down search was improper. Therefore, the discovery of the pill bottle was
improper a nd Golant’s statement regarding there being a little weed in the
bottle were both fruit of the poisonous tree. We agree with the trial court’s

assessment. Officer Hallman admitted he had no suspicion that Golant was
armed, dangerous or presented any thre at to the police officer’s safety. See
N.T. Hearing, 3/23/2017, at 52. Accordingly, Officer Hallman had no authority

to conduct a Terry 5 frisk. 6 See Commonwealth v. Shelly , 703 A.2d 499
(Pa. Super. 1997) (safety frisk allowable upon reasonable suspicion criminal
activity is afoot and suspect is armed and dangerous). Further, Officer

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5 Terry v. Ohio , 88 S.Ct. 1868 (1968).

6 Officer Hallman testified he conducted a pat down search of every person he dealt with. N.T. Hearing, 3/23/2017, at 26, 52. This practice is improper.J

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Hallman testified that Golant was not under arrest at the time of the search;
therefore, the search cannot be justified as a search pursuant to arre st.

Because Officer Hallman had no authority to conduct the pat down search of
Golant, the discovery of the pill bottle with the small amount of marijuana and

Golant ’s statement, confirming the contents of the container was “weed” , were
rightfully suppres sed as fruit of the poisonous tree.

Evidence obtained as a result of an unlawful search is subject to the fruit of the poisonous tree doctrine. The United States Supreme Court has stated that any material, tangible, or verbal evidence “obtained either d uring or as a direct result of an unlawful invasion” is inadmissible at trial. Wong Sun v. United States , 371 U.S. 471, 485, 83 S.Ct. 407, 9 L.Ed.2d. 441 (1963). Commonwealth v. Chesney , ___ A.3d ___, 2018 WL 4496148 at *5 (Pa.
Sup er. 9/20/2018).

Golant m ade the other statements mentioned in the trial court opinion

after Officer Hallman searched Golant’s car and found n ine THC candies in a
plastic bag, which in turn, was in an open pocket of a book bag that was on
the front passenger seat of the car. Offi cer Hallman justified thi s search based

on the stro ng odor of marijuana he noticed coming from both Golant and the
car when Golant first opened the car door. N.T. Hearing, 3/23/2017, at 31.
This argument, as well as the Commonwealth’s final argument , are based on

Officer Hallman ’s testimony that the car smelled strongly of marijuana.
Therefore, we will address these arguments together.
We agree with the Commonwealth that the odor of marijuana, alone,
may be sufficient to establish probable cause to cond uct a warrantless searchJ

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of an automobile. See Commonwealth v. Stoner , 710 A.2d 55, 59 (Pa.
Super. 1998). However, the trial court made no findings regarding the
propriety of the search based upon Officer Hallman ’s claim to have smelled
marijuana. 7 We are not a fact

- finding court and we are in no position to make
a credibility determination. This is especially true where the testimony found
in the certified record shows no apparent reason for that smell. There was no
smoke in the car, no smoking residue, no “roaches”, no smoking paraphernalia
and no raw marijuana found in the car. Accordingly, we may make no
inference in support of the officer’s testimony from the evidence. Because we
are in no position to rule on this aspect of the Commonwealth ’s argument, we
must remand the matter to the trial court for findings of fact and conclusions
of law specific to this argument.

Order a ffirmed in part, reversed in part. This matter is remanded for
further proceedings consistent with this decision. Ju risdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/9/18

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7 Having based its decision on other grounds, the trial court did not specifically address t his issue.