In the instant appeal from judgment of sentence imposed for possession of a controlled substance following a bench trial, Appellant contends that the contraband was seized in the course of an unlawful warrantless search of his person and should have thus been suppressed. We disagree and therefore affirm.
Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn
In light of these principles, it appears that the facts underlying Appellant's contention, as developed at the suppression hearing below, are virtually uncontested and simply stated. On October 5, 1977, at approximately 10:30 a.m., Sergeant William Norton of the Salisbury Police Department, Lehigh County, Pennsylvania, while on duty, was walking through a wooded area in a public park in the Township, endeavoring to locate two truant juveniles he had reason to believe were in the park. As he proceeded, Sergeant Norton observed the juveniles, both of whom were known to him, seated upon a log in the company of Appellant who was unknown to him.
As Sergeant Norton approached the log, he detected the strong odor of burning marijuana. Although he observed no smoke and saw none of the three smoking, the odor intensified as Norton neared the trio. When he reached the log, Sergeant Norton asked Appellant for identification. As Appellant arose to comply with the request, Sergeant Norton observed what appeared to him to be the end of a pipe stem protruding approximately one-half inch from a pocket of Appellant's jacket.
Sergeant Norton, a 14-year veteran of the Allentown and Salisbury Township Police Departments, was particularly experienced in dealing with marijuana and implements and paraphernalia used to smoke the substance.
Sergeant Norton testified that the pipe stem he observed was not the usual flat or pinched stem found on the ordinary smoking pipe but was, rather, rounded in shape and appeared to be metallic. Norton also testified that in his
Upon observing the pipe stem, Sergeant Norton grasped it and withdrew the pipe from Appellant's jacket pocket. Norton, having earlier observed a "bulge" under Appellant's jacket, commenced a "pat down" search of Appellant and at the same time, advised Appellant that he was under arrest for possession of marijuana. Norton continued the pat down search and in the area where he had earlier observed the bulge, under Appellant's outer jacket, Norton found a bag with a strap securing it over Appellant's shoulder. Sergeant Norton confiscated the bag, immediately opened it and discovered 350 grams of marijuana inside. Later, upon analysis, the pipe was found to contain marijuana residue.
Pretrial, Appellant moved to suppress the pipe and marijuana, and following a hearing, the suppression judge refused to suppress the same, concluding that both were seized pursuant to a lawful search based upon probable cause. Both the pipe and the marijuana found in the shoulder bag were introduced in evidence at Appellant's trial.
Ruling upon the same issues as raised in Appellant's post trial motions, the Court en banc concluded that the odor of burning marijuana, in combination with the protruding pipe stem, provided probable cause to arrest Appellant without a warrant. The court en banc also concluded that the marijuana found in the shoulder bag was the product of a search incident to a lawful arrest. Opinion of the Court En Banc at 2.
It is clear that a police officer may in appropriate circumstances stop and question a person for investigatory purposes when he observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889, 911 (1968); Commonwealth v. Dennis, 289 Pa.Super. 305, 310, 433 A.2d 79, 81 (1981); Commonwealth v. Galadyna, 248 Pa.Super. 226, 232, 375 A.2d 69, 72 (1977). It is equally clear, however, that once
Addressing the first of these exceptions, it is settled that a generalized suspicion or good faith on the part of a police officer that the subject of his focus is armed will not justify a search of the person; rather, the officer must be able "to point to particular facts from which he reasonably inferred that the individual was armed and dangerous". United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); Sibron v. New York, 392 U.S. 40, 64, 88 S.Ct. 1889, 1903, 20 L.Ed.2d 917, 935 (1968); Commonwealth v. Berrios, supra 437 Pa. at 341, 263 A.2d at 343; Commonwealth v. Prengle, 293 Pa.Super. 64, 67, 437 A.2d 992, 994-95 (1981); Commonwealth v. Williams, 287 Pa.Super. 19, 23-4,
At bar, Sergeant Norton testified on cross examination:
As is at once obvious, this testimony is utterly devoid of "particular facts" from which Sergeant Norton might reasonably have inferred that Appellant was armed and dangerous. Sibron v. New York, supra. Sergeant Norton's testimony that Appellant "could have been armed", and that he believed that Appellant was armed and dangerous by reason of the "circumstances involved", without more, are in our view gross generalities and do not rise to that level of "particularized" or "articulable" suspicion necessary to permit a search under the second of the two exceptions. Sibron
The question we must answer, then, is whether the odor of burning marijuana in Appellant's immediate vicinity, in combination with Sergeant Norton's observation of the rounded pipe stem protruding from Appellant's jacket provided probable cause to arrest Appellant.
In Commonwealth v. Kazior, 269 Pa.Super. 518, 410 A.2d 822, allocatur denied 269 Pa.Super. 518, 410 A.2d 822 (1980), reiterated recently in Commonwealth v. Simmons, 295 Pa.Super. 72, 82, 440 A.2d 1228, 1233 (1982) and in Commonwealth v. Allen, 287 Pa.Super. 88, 102, 429 A.2d 1113, 1119-20 (1981), we enunciated the test for probable cause:
It is apparent that Appellant was arrested for the crime of possession of marijuana. In the context of our definition of probable cause, then, we must determine whether Sergeant Norton's senses provided him with sufficient information to justify his conclusion that the suspected contraband was present.
It is obvious as well that Sergeant Norton relied primarily upon his sense of smell in concluding that marijuana was then present. At least since the Supreme Court of the United States decided Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), it has been clear that probable cause may be established in this fashion. See, LaFave, Search and Seizure (1978) § 3.6(b) at 648-54.
In Johnson, trained narcotics officers recognized the odor of burning opium emanating from a hotel room. They knocked upon the door, arrested the person who admitted
On appeal, the Defendant contended inter alia, that odors cannot constitute probable cause. Responding to this contention, the Court said pertinently:
Although he observed marijuana leaves and seeds on the floor and seats of the vehicle, the officer was certain the odor was too strong to be emanating from the seeds and leaves in his view. Another officer arrived upon the scene and both then searched the trunk and found therein a large quantity of marijuana.
Following denial of appellant's motion to suppress the marijuana, he was convicted, inter alia, of possession of a controlled substance, and on appeal, contended that the warrantless search of the trunk violated the Fourth Amendment.
Our Court, discussing the question of probable cause to search the trunk, first held that the marijuana leaves and seeds alone established probable cause to search the automobile. We then added:
We next observed that the Supreme Court of the United States has held "that an odor may be sufficient to establish probable cause for the issuance of a search warrant". Id., 236 Pa.Super. at 166, 344 A.2d at 635, citing Johnson, supra,
We then noted that as the police officer was justifiably in the position from which he detected the odor, "[i]t would have been a dereliction of duty for him to ignore the obvious aroma of an illegal drug which he was trained to identify". Id. 236 Pa.Super. at 166, 344 A.2d at 635.
Affirming appellant's conviction, we finally quoted a passage from United States v. Martinez-Miramontes, 494 F.2d 808 (9th Cir. 1974), and adopted it as the law of Pennsylvania:
More recently, a panel of this Court decided Commonwealth v. Pullano, 295 Pa.Super. 68, 440 A.2d 1226 (1982) where one of several police officers, while executing a search warrant in an apartment located on the second and third floors of a building, smelled a strong odor of marijuana which he determined to be emanating from another apartment on the first floor. After completing the search pursuant to the warrant, the police went to the first floor apartment to ascertain the names of the occupants. They knocked on the door and it was soon opened, revealing a group of persons surrounded by drug paraphernalia and marijuana cigarettes. The Appellant was seated in a chair holding a plastic vial containing a pill and a small plastic bag. When he saw the police, the Appellant attempted to drop the vial. He was thereupon placed under arrest and a search of his person revealed a pipe containing marijuana residue.
Many of our sister jurisdictions, as well as a number of Circuit Courts of Appeal have also held that the odor of marijuana may, in combination with other circumstances, provide probable cause. See, e.g., United States v. Rivera, 595 F.2d 1095 (5th Cir. 1979); United States v. Curran, supra; United States v. Bowman, 487 F.2d 1229 (10th Cir. 1973); State v. Medders, 153 Ga.App. 680, 266 S.E.2d 331 (1980); Miller v. State, 373 So.2d 1004 (Miss. 1979); Moulden v. State, 576 S.W.2d 817 (Tex.Cr.App. 1978); State v. Harrison, 111 Ariz. 508, 533 P.2d 1143 (1975); People v. Cook, 13 Cal.3d 663, 119 Cal.Rptr. 500, 532 P.2d 148 (1975); A Minor Boy v. State, 91 Nev. 456, 537 P.2d 477 (1975); State v. Compton, 13 Wn.App. 863, 538 P.2d 861 (1975); State v. Salcido, 22 Ariz.App. 167, 525 P.2d 298 (1974); Rogers v. State, 131 Ga.App. 136, 205 S.E.2d 901 (1974); People v. Parisi, 46 Mich.App. 322, 208 N.W.2d 70 (1973); State v. McGuire, 13 Ariz.App. 539, 479 P.2d 187 (1971); Commonwealth v. Cohen, 359 Mass. 140, 268 N.E.2d 357 (1971); Vaillancourt v. Superior Court for County of Placer, 273 Cal.App.2d 791, 78 Cal.Rptr. 615 (1969). See also, 1 LaFave, Search and Seizure (1978) § 3.6, supra.
As we have observed, odors without more in the usual case will not provide probable cause. Johnson, supra, citing Taylor v. United States, supra; United States v. Curran, supra; and See and Compare State v. Olson, 180 Mont. 151, 589 P.2d 663 (1979); State v. Valenzuela, 121 Ariz. 274, 589 P.2d 1306 (1979); People v. Hilber, 403 Mich. 312, 269 N.W.2d 159
Testifying on the subject of the protruding stem, Sergeant Norton said the following:
The observations and opinions thus described and expressed by Sergeant Norton are obviously those of a highly trained and experienced police officer and we find that when viewed through his eyes, the circumstances were sufficient "to warrant a man of reasonable caution in the belief" that Appellant had committed or was committing a crime. Commonwealth v. Kazior, supra. We therefore conclude that when Sergeant Norton observed the pipe stem protruding from Appellant's pocket, he had probable cause to arrest Appellant.
It is of course axiomatic that an arresting officer may, without a warrant, search a person validly arrested, and the constitutionality of a search incident to a valid arrest does not depend upon whether there is any indication that the person arrested possesses weapons or evidence as the fact of a lawful arrest, standing alone, authorizes a search. Michigan v. DeFillippo, 443 U.S. 31, 35, 99 S.Ct. 2627, 2630, 61 L.Ed.2d 343, 348 (1979). And see, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980); Commonwealth v. Bess, 476 Pa. 364, 382 A.2d 1212 (1978); Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (1977).
It follows, then, that the search of Appellant's person, resulting in the discovery and seizure of the pipe and the shoulder bag containing the marijuana, was a lawful search and the lower court properly refused to suppress such evidence.
See also, United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 2582, 45 L.Ed.2d 607, 619 (1975) ("In all situations the officer is entitled to assess the facts in light of his experience . . ."); United States v. Tinkle, 655 F.2d 617, 621 (5th Cir. 1981) ("But in analyzing whether probable cause exists [to arrest] we must consider all of the relevant factors viewed from the perspective of the arresting officer".) (Emphasis added).