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Home My WebLink AboutCP-21-CR-0002219-2020 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : NATHAN LOREMAN : CP-21-CR-2219-2020 IN RE: SECOND OMNIBUS PRETRIAL MOTION OPINION & ORDER OF COURT Masland, J., March 22, 2021:-- I. INTRODUCTION On May 21, 2020, Defendant Nathan Loreman was stopped on North Orange Street in the Borough of Carlisle for a moving violation by Troopers Gilbert and 1 Panosetti of the Pennsylvania State Police (“PSP”). Discovering that Defendant’s operating privilege had been suspended, smelling the odor of burnt and raw marijuana, and observing Defendant’s nervous behavior, Trooper Gilbert proceeded to conduct a “probable cause search” of Defendant’s vehicle, recovering inter alia quantities of 2 controlled substances, a loaded firearm, and large amount of US currency. During the course of this search, after some but not all of the evidence had been collected, 3 Defendant was placed under arrest. Defendant filed an Omnibus Pretrial Motion on December 14, 2020 arguing that Trooper Gilbert lacked probable cause to conduct the search of the vehicle. Thereafter, on December 22, 2020 our Supreme Court decided 1 Affidavit of Probable Cause, filed May 22, 2020. 2 Id. 3 Id. CP-21-CR-2219-2020 Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020), in light of which we granted Defendant leave to file the Second Omnibus Pretrial Motion now before us. II. WARRANTLESS VEHICLE SEARCH The law of vehicle search in the Commonwealth has fluctuated substantially in recent years. In 2014, our Supreme Court abrogated our somewhat opaque local rule in favor of the decidedly tidier federal rule, according to which a showing of probable cause alone suffices to justify the warrantless search of a vehicle. Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014). However, in Alexander supra, the high court reversed course, holding that a warrantless search of a vehicle requires not only a showing of probable cause, but of exigent circumstances, such as would have made application for a warrant impractical. In reviewing the circumstances of the case sub judice, we find it significant that Defendant and his female passenger had already complied with Trooper Gilbert’s request to exit the vehicle by the time of the search, that neither Defendant nor passenger exhibited any intent to destroy evidence, take flight, or otherwise interfere in the investigation, and that Trooper Panosetti was available to assist Trooper Gilbert in 4 the event of any difficulty. In short, we find – and the Commonwealth presents – no indication of exigency such as might justify an exception to the usual rule. Further, even if exigent circumstances had been present, the search would have been unlawful for lack of probable cause, which, as recently clarified by the Superior Court in Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020), cannot be established solely by the odor of burnt and raw marijuana. Nor, do we find probable cause by joining to this odor the fact that Defendant exhibited the kind of modestly 4 Id. -2- CP-21-CR-2219-2020 nervous behavior that must be more rule than exception in interactions between law 5 enforcement and the general public. Finally, while we have no reason to doubt that Trooper Gilbert conducted the vehicle search in good faith reliance on the then-prevailing precedent of Gary, and we appreciate the difficult task facing law enforcement officers by virtue of frequently changing legal standards, it is clear that the federal good faith exception to the warrant requirement has never been adopted in Pennsylvania. See e.g. Commonwealth v. Johnson, 86 A.3d 182 (Pa. 2014). III. INEVITABLE DISCOVERY However, this does not conclude our inquiry, as the Commonwealth offers in the alternative that the incriminating evidence would have been discovered inevitably in the course of the routine inventory search that would have been conducted following Defendant’s arrest and the impounding of his vehicle, and is thus admissible despite having been acquired actually by unlawful means. In determining whether Defendant’s arrest was founded on probable cause, we may consider only those facts discovered by Trooper Gilbert independently of the unlawful search, which are limited to his observations that Defendant’s vehicle emitted an odor of burnt and raw marijuana, that 5 The Commonwealth avers that Trooper Gilbert also observed unspecified drug paraphernalia in plain view prior to the illegal search of the vehicle. Brief in Opposition of Defendant’s Omnibus Motion, filed February 5, 2021, at pp. 4-5. However, as noted by Defendant, “the factual basis of this argument is unclear.” Brief in Reply to Commonwealth’s Brief in Opposition to Defendant’s Omnibus Pretrial Motion, filed February 9, 2021, at p. 3. Trooper Gilbert reports having observed an indeterminate “something” under the passenger’s leg prior to the search of the vehicle, but this object was subsequently identified as a Bic lighter. Affidavit of Probable Cause; Transcript of Proceedings – Defendant’s Omnibus Motion, held January 11, 2021, at pp. 12:17-24, 26:1-12. Therefore, we do not consider this averment in our analysis of whether Trooper Gilbert possessed probable cause in the context of either the vehicle search or the arrest. -3- CP-21-CR-2219-2020 Defendant behaved nervously, that Defendant had driven his vehicle with a suspended license, and that Defendant committed the moving violation that prompted the stop. As discussed supra in relation to the recent Barr decision, the odor of burnt and raw marijuana, even coupled with Defendant’s nervous demeanor, did not supply probable cause to believe that a drug-related offense had occurred or was occurring. Concerning Trooper Gilbert’s other observations, i.e. that Defendant drove with a suspended license and committed a moving violation, the PSP are statutorily authorized to arrest individuals for such offenses where, as here, the offenses are committed in their presence. 75 Pa.C.S. §6304(a). However, the impounding statute relied upon by the Commonwealth permits seizure of a vehicle upon arrest of its driver only where the driver was arrested “for an alleged offense for which the officer is required by law to take the person arrested before an issuing authority without unnecessary delay.” 75 Pa.C.S. §3352(c)(3). This qualifying phrase is not mere surplusage, but operates in conjunction with Pa.R.Crim.P. 441, which in turn sets forth the conditions under which a summary offense arrestee must either be released or taken promptly before a magistrate. Importantly, the Rule mandates release, and thus prohibits delivery to a magistrate, where “the defendant poses no threat of immediate physical harm to any other person or to himself” and “the arresting officer has reasonable grounds to believe that the defendant will appear as required.” Pa.R.Crim.P. 441(b). The record before us suggests that the interaction between Defendant and Troopers Gilbert and Panosetti was altogether temperate and routine, there being no indication that Defendant was intoxicated, unusually agitated, combative, or otherwise likely to harm himself or -4- CP-21-CR-2219-2020 another. Indeed, it is instructive that Defendant was not charged with any species of impaired driving. Nor, do we find any reasonable basis for supposing that a person facing only summary offenses under the Motor Vehicle Code would fail to appear in court to address those charges. Therefore, while Trooper Gilbert was indeed permitted to arrest Defendant for the summary offenses committed in his presence, these were not “offense\[s\] for which the officer \[was\] required by law to take the person arrested before an issuing authority without unnecessary delay,” and so the impounding statute relied upon by the Commonwealth is inapposite. In sum, no inventory search could have been conducted, and the evidence in question would not have been inevitably 6 discovered. Accordingly, we find Counts 1-7 to be unsupported by any admissible evidence and issue the following order. ORDER OF COURT AND NOW, this day of March, 2021, for the reasons set forth in our accompanying opinion, Defendant’s Omnibus Pretrial Motion is GRANTED, all evidence arising from the search of Defendant’s vehicle is suppressed, and Counts 1-7 are DISMISSED. By the Court, Albert H. Masland, J. 6 The Commonwealth further contends that the unlawfully discovered evidence is admissible because Trooper Gilbert could have obtained a search warrant. However, the Commonwealth cites, and we find, no authority for this apparently novel theory, which would practically eviscerate the exigency requirement of Alexander, and which we are therefore loath to adopt. Moreover, as discussed supra, the facts discovered by Trooper Gilbert independently of the illegal search were insufficient to establish probable cause, and so would not have justified the issuance of a search warrant in any event. -5- CP-21-CR-2219-2020 Nichole Vito, Esquire Office of the District Attorney Shawn M. Stottlemyer, Esquire 213 South Hanover Street Carlisle, PA 17013 -6- COMMONWEALTH : IN THE COURT OF COMMON PLEAS : OF CUMBERLAND COUNTY, PENNSYLVANIA : V. : : : NATHAN LOREMAN : CP-21-CR-2219-2020 IN RE: SECOND OMNIBUS PRETRIAL MOTION ORDER OF COURT AND NOW, this day of March, 2021, for the reasons set forth in our accompanying opinion, Defendant’s Omnibus Pretrial Motion is GRANTED, all evidence arising from the search of Defendant’s vehicle is suppressed, and Counts 1-7 are DISMISSED. By the Court, Albert H. Masland, J. Nichole Vito, Esquire Office of the District Attorney Shawn M. Stottlemyer, Esquire 213 South Hanover Street Carlisle, PA 17013