Opinion
365 MDA 2023 J-A23026-23
02-06-2024
COMMONWEALTH OF PENNSYLVANIA v. ELELAKE JAMES JEFFERSON, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered February 20, 2023 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000935-2021
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E. [*]
MEMORANDUM
McLAUGHLIN, J.
Elelake James Jefferson, Jr. appeals from the judgment of sentence entered for firearms not to be carried without a license. He challenges the court's denial of his motion to suppress. We affirm.
Jefferson's conviction stems from the recovery of a gun following a traffic stop that Trooper Kyler Hull conducted after he observed Jefferson driving over the speed limit. The Commonwealth filed numerous charges against Jefferson including the firearms charge. Jefferson moved to suppress, and the court held a hearing where the Commonwealth presented the testimony of Trooper Hull and introduced into evidence a video recording of the interaction ("MVR"). Jefferson testified in his defense.
The MVR is not included in the certified record. Therefore, any argument regarding the contents of the MVR is waived.
The trial court made the following findings of fact:
On May 23, 2021, Trooper Kyler Hull ("Trooper Hull") was on patrol on Interstate 81 near mile marker 11.4. While on patrol, he observed a vehicle travelling 84 MPH in a 65 MPH speed limit zone. Trooper Hull executed a traffic stop around north bound mile marker 14.
As shown in Commonwealth's Exhibit A, the video recording of the interaction ("MVR"), Trooper Hull approached the vehicle and notified [Jefferson] that he was being stopped for a speeding violation. [Jefferson] told Trooper Hull that he was travelling home to New Jersey from his cousin's home in West Virginia. Trooper Hull then inquired about [Jefferson]'s license and the vehicle's registration and insurance. [Jefferson] provided this information to Trooper Hull, and Trooper Hull learned that the vehicle had a temporary registration tag that had expired four days earlier. [Jefferson], who was driving the car, explained that the discrepancy was due to a delay at the DMV in New Jersey resulting from the COVID-19 pandemic. At this point, Trooper Hull asked [Jefferson] to exit the vehicle so that Trooper Hull could continue talking with [Jefferson] but not be standing on the fog line of the highway. [Jefferson] complied with this request, and Trooper Hull continued to ask [Jefferson] about the expired registration. Trooper Hull then asked [Jefferson] if he had "anything in the car that is illegal . . . guns, drugs" in the vehicle, to which [Jefferson] responded that he had "a little bag of weed" and told Trooper Hull its location in the vehicle. At this point, Trooper Hull told [Jefferson] that he could smell marijuana and that was his reason for asking.
Trooper Hull then asked if he could "look around" in the car to see if there was anything else in the vehicle. At this point, [Jefferson] responded by moving his arms in a shrugging motion and stating "I can't . . . I don't see why . . . it doesn't matter but I'm just sayin'." Trooper Hull then informed [Jefferson] that
"marijuana is still a misdemeanor in Pennsylvania" and again asked to look in the car in order to make sure there was nothing else in the car that was not supposed to be there. [Jefferson] responded again with the same shrugging motion and stated[,] "[Yo]u could . . . it doesn't matter . . . I just don't see . . . ." Trooper Hull again informed the [Jefferson] he wanted to see if there was anything else besides the bag of marijuana in the car and said to the defendant, "cool?" [Jefferson] again shrugged his arms. Trooper Hull then directed [Jefferson] to sit on the police vehicle while he performed a search of the vehicle.Trial Court Opinion ("TCO"), filed 10/6/22, at 2-3 (footnote omitted).
Trooper Hull testified that when he first approached Jefferson's vehicle, Jefferson gave him documentation showing he was a resident of New Jersey. See N.T. 8/29/22, at 10, 12. Trooper Hull said that when he asked him where he was coming from, Jefferson grew "increasingly nervous" and was "struggling to describe where he was coming from." Id. at 10. The trooper testified that Jefferson eventually said he was heading home to New Jersey from West Virginia but had become so "extremely nervous" that he "said that West Virginia is also a town in New Jersey." Id. Trooper Hull stated that he asked Jefferson if there was anything illegal in the vehicle based on "Mr. Jefferson being extremely nervous, his body language, and the odor of marijuana that was emanating from the vehicle." Id. at 14. The trooper explained that he had asked Jefferson the question because Jefferson could not lawfully possess medical marijuana in Pennsylvania since he was a New Jersey resident.
When troopers searched the vehicle, they found two firearms, one with the serial number partially ground off. They also found a plastic bag containing a small amount of marijuana and a bag of individually packaged containers of marijuana. See TCO at 3.
The trial court denied suppression. Jefferson subsequently entered a conditional guilty plea to the firearms charge, and the court sentenced him to 11½ to 23 months' incarceration. This timely appeal followed.
Jefferson now raises two issues challenging the denial of his motion to suppress:
1. Did the [trial] court err when it denied Jefferson's motion to suppress where the Commonwealth failed to establish that the trooper had reasonable suspicion to support the new investigative detention that occurred when he asked whether there was "anything" illegal in the car?
2. Did the [trial] court when it denied Jefferson's motion to suppress where the Commonwealth failed to establish that Jefferson gave valid consent?Jefferson's Br. at 4 (answers of trial court and suggested answers omitted).
We review the denial of suppression by determining "whether the [certified] record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings." Commonwealth v. Griffin, 24 A.3d 1037, 1041 (Pa.Super. 2011) (citation omitted). We "consider only the evidence of the prosecution's witnesses and so much of the defense as, fairly read in the context of the record as a whole, remains uncontradicted." Id. (citation omitted). Where the record supports the trial court's factual findings, we will reverse "only if there is an error in the legal conclusions drawn from those factual findings." Id. (citation omitted).
In his first issue, Jefferson claims that the Commonwealth failed to show that Trooper Hull had reasonable suspicion to conduct an investigative detention. Jefferson does not challenge "the trooper's ability to ask him out of the car." Jefferson's Br. at 14. Rather, he argues that "[Trooper] Hull abandoned the purpose of the traffic stop and detoured into an unrelated investigation by changing the subject and asking whether there was 'anything' illegal in the car." Id. Therefore, Jefferson claims that a new investigative detention commenced when Trooper Hull asked him if there was "anything illegal" in his vehicle. Id. at 20 (internal quotations omitted).
Jefferson maintains that neither the strong odor of marijuana nor his nervous behavior alone was sufficient to establish reasonable suspicion. He further claims that "the evidence did not show excessive nervousness[.]" Id. at 23. He likens the instant case to Commonwealth v. Lomax, 2022 WL 439087 (Pa.Super. filed February 14, 2022) (unpublished mem.), where this Court concluded that the smell of fresh marijuana alone was insufficient to establish reasonable suspicion. He further maintains that even if Trooper Hull had reasonable suspicion, "he went too far with his inquiry." Id. at 25. He argues that the inquiry "must have been reasonably related to that for which he had reasonable suspicion, and that was, if anything, marijuana[.]" Id.
Interactions between police officers and citizens are categorized as a mere encounter, an investigative detention, or a custodial detention. See Commonwealth v. Beasley, 761 A.2d 621, 624 (Pa. 2000). "[A]n investigative detention, by implication, carries an official compulsion to stop and respond, but the detention is temporary[.]" Commonwealth v. DeHart, 745 A.2d 633, 636 (Pa.Super. 2000) (internal quotations omitted). Thus, an investigative detention requires that an officer have "reasonable suspicion that the person seized is then engaged in unlawful activity." Beasley, 761 A.2d at 625. "In determining whether police had reasonable suspicion to initiate an investigative detention, the fundamental inquiry is an objective one, namely, whether the facts available to police at the moment of the intrusion warrant a [person] of reasonable caution in the belief that the action taken was appropriate." Commonwealth v. Jefferson, 256 A.3d 1242, 1248 (Pa.Super. 2021) (en banc) (citation and internal quotations omitted).
Here, the parties agree that Trooper Hull's inquiry regarding whether there was anything illegal in Jefferson's vehicle commenced an investigative detention that required reasonable suspicion. The trial court determined that Trooper Hull acquired reasonable suspicion based on the smell of marijuana. See TCO at 8. The court rejected Jefferson's reliance on Lomax, noting that it was a non-precedential decision and finding it distinguishable from the instant case. The court concluded that, unlike in Lomax, here the "smell of marijuana alone was not solely used to order [Jefferson] out of the car and initiate the investigative detention." Id. at 9. Rather, "for officer safety reasons," Trooper Hull asked Jefferson to exit the vehicle and while inquiring about the vehicle's registration, "asked a question regarding the smell of marijuana, which can still 'signal the possibility of criminal activity.'" Id. (quoting Commonwealth v. Barr, 266 A.3d 25, 41 (Pa. 2021)).
Following the passage of the Medical Marijuana Act ("MMA"), our Supreme Court has recognized that "the MMA makes abundantly clear that marijuana no longer is per se illegal in this Commonwealth" for those who "compl[y] with the dictates of the MMA." Barr, 266 A.3d at 41; 35 P.S. § 10231.101. Thus, the Court in Barr 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." Barr, 266 A.3d at 44.
Following Barr, this Court has found the smell of marijuana to be a factor supporting a finding of reasonable suspicion. In Commonwealth v. Cunningham, 287 A.3d 1 (Pa.Super. 2022), this Court found that an officer had reasonable suspicion based on: 1) the smell of burnt marijuana; 2) the suspect's attempt to evade the officer; and 3) the suspect's aggressive response towards the officer. 287 A.3d at 10. In Commonwealth v. Mercedes, No. 1275 MDA 2021, 2022 WL 4392687 (Pa.Super. filed Sept. 23, 2022) (unpublished mem.), we concluded an officer had reasonable suspicion to conduct an investigative detention where the officer, while in a high crime area, saw an individual smoking a cigarillo, smelled burnt marijuana, and the officer had knowledge "that it is a common practice to smoke a cigarillo that had been hollowed out and filled with marijuana leaf." 2022 WL 4392687 at *3.
In Commonwealth v. Sloan, 303 A.3d 155 (Pa.Super. 2023), this Court concluded that an officer had reasonable suspicion to conduct an investigative detention based on the smell of burnt marijuana coming from Sloan's vehicle and the officer's observations of Sloan's bloodshot and glassy eyes. 303 A.3d at 166. In reaching this conclusion, we reiterated that this Court recognizes that "the [Medical Marijuana Act] does not permit the smoking of medical marijuana." Id.
In Lomax, which Jefferson contends is like his case, an officer conducted a traffic stop of Lomax's vehicle for a broken brake light. After noticing a smell of fresh marijuana, the officer asked Lomax to exit his vehicle and asked if he had recently smoked marijuana. Lomax said that he had not and handed the officer his medical marijuana card. The officer conducted a field sobriety test and subsequently arrested Lomax for driving under the influence of marijuana. Lomax filed a motion to suppress, and the court granted the motion. We affirmed, concluding that the smell of fresh marijuana, absent any other evidence of wrongdoing, was insufficient to establish reasonable suspicion for an investigative detention. Lomax, 2022 WL 439087 at *4.
The trial court's findings here are supported by the record and it committed no error of law. Trooper Hull testified that Jefferson grew "increasingly nervous" as they discussed where Jefferson was coming from, to such an extent that he said West Virginia was a town in New Jersey. Then, when Jefferson opened the door to his vehicle, the trooper could smell a strong odor of marijuana coming from inside. Trooper Hull knew that the MMA limits the lawful possession of marijuana to Pennsylvania residents and that because Jefferson was not a Pennsylvania resident, Jefferson could not possess marijuana pursuant to the MMA. The trial court properly concluded that Trooper Hull had reasonable suspicion.
See 35 P.S. §§ 10231.103 ("Patient"), 10231.303(a), 10231.303(b)(1)(ii). Jefferson makes no argument that any potential authorization to possess medical marijuana under New Jersey law deprived the trooper of reasonable suspicion, or that Pennsylvania must give full faith and credit to an out-of-state authorization. We therefore do not consider these issues.
Jefferson also claims that he did not consent to the search of his vehicle. He alleges that by stating that Trooper Hull could search his vehicle, "he was attempting to communicate that the trooper could do that, meaning he had the ability to do that, but did not see why he would." Jefferson's Br. at 28 (emphasis in original). He maintains that his statements to the trooper did not amount to consent because they were "uncertain, equivocal, and reluctant." Id. at 29. He also claims that even if he gave consent, it was involuntary. He notes the trooper's repeated requests to search the vehicle and that these requests "conveyed to Jefferson that [the trooper] was not satisfied with his answer[], and Jefferson needed to change [it]." Id. at 30. Jefferson also points to his testimony that he "felt uncomfortable" and "pressured." Id.
The Fourth Amendment of the United States Constitution and Article 1, Section 8 of the Pennsylvania Constitution protect citizens from unreasonable searches and seizures. See Commonwealth v. Mattis, 252 A.3d 650, 654 (Pa.Super. 2021). A warrant is required to conduct a search or seizure unless an exception applies. See id. One exception to the warrant requirement is voluntary consent. See Commonwealth v. Valdivia, 195 A.3d 855, 861 (Pa. 2018). "Where the underlying encounter is found to be lawful, voluntariness becomes the exclusive focus." Commonwealth v. Strickler, 757 A.2d 884, 888-89 (Pa. 2000). The Commonwealth bears the burden of establishing the voluntariness of consent by showing that it "is the product of an essentially free and unconstrained choice-not the result of duress or coercion, express or implied, or a will overborne-under the totality of the circumstances." Id. at 901. Factors that may be considered under the totality of the circumstances include:
1) the presence or absence of police excesses; 2) whether there was physical contact; 3) whether police directed the citizen's movements; 4) police demeanor and manner of expression; 5) the location of the interdiction; 6) the content of the questions and statements; 7) the existence and character of the initial investigative detention, including its degree of coerciveness; 8) "the degree to which the transition between the traffic stop/investigative detention and the subsequent encounter can be viewed as seamless, . . . thus suggesting to a citizen that his movements may remain subject to police restraint," [Strickler, 757 A.2d at 890]; 9) the "presence of an express admonition to the effect that the citizen-subject is free to depart is a potent, objective factor;" and 10) whether the citizen has been informed that he is not required to consent to the search. Id. . . . at 898-899.Commonwealth v. Moyer, 954 A.2d 659, 665 (Pa.Super. 2008) (en banc).
In this case, the trial court determined that Jefferson's consent was voluntary:
Here, the factors that weigh in favor of the consent being voluntary are that, at the time of the stop, [Jefferson] was a sophomore in college and he had no trouble understanding the trooper. Moreover, demeanors were calm throughout the
interaction, showing a lack of overt coercion. Further supporting a lack of overt coercion is the fact that [Jefferson] aided in the investigation and cooperated with the officers by telling Trooper Hull where the bag of weed was after being asked about "anything illegal." There were no express or implied threats by the trooper and nothing "involving a demonstrative exercise of police authority," such as "a show of weapons, unusual commands, aggressive behavior or any use of language or tone by the officer that was not commensurate with the circumstances." Strickler, 757 A.2d 900.
The factors that weigh against a finding of voluntariness are that the consent was given during a lawful detention, engrafting a level of coercion on the interaction, the fact that [Jefferson] was not told of his right to refuse consent, and the fact that the Troopers still retained [Jefferson's] driving documentation. These factions do not outweigh the factors favoring voluntariness listed above. The coercion inherent in a lawful detention was not exacerbated by the demeanors of the Trooper or [Jefferson]. Rather, the calmness of the whole interaction and the cooperation of [Jefferson] weigh towards a finding that consent as voluntary, and [Jefferson's] will was not overborne.
Additionally, it was reasonable for Trooper Hull to interpret [Jefferson's] shrugging his shoulders and stating "you could" as consent to search the vehicle. A defendant need not be enthusiastic about giving consent; the consent needs only be voluntary under the totality of the circumstances. While [Jefferson] testified that his subjective meaning in these statements was not to give consent the Court must look objectively at the totality of the circumstances. Here, in considering the totality of the circumstances, the consent given in this interaction was voluntary because it was not the product of coercion or a will overborne, and it was reasonable for Trooper Hull to interpret [Jefferson's] statements and movements as consent. As such, the search of the vehicle was permissible under the consent exception to the warrant requirement.TCO at 11-12.
The trial court's findings are supported by the record and it did not commit any errors of law. It was reasonable for Trooper Hull to interpret Jefferson's statement that the trooper "could" search the vehicle as consent.
Jefferson's claim that he was allegedly merely observing that the trooper had the hypothetical ability to perform a search is not only facially implausible but also is not a basis for relief, even taking his claim as true. Jefferson's subjective intent is not controlling. See Commonwealth v. Miller, 186 A.3d 448, 451 (Pa.Super. 2018). The trial court properly found that Jefferson's consent was voluntary and was "not the result of duress or coercion, express or implied, or a will overborne[.]" Strickler, 757 A.2d at 901. We affirm the judgment of sentence.
Judgment of sentence affirmed.
[*] Former Justice specially assigned to the Superior Court.