from the Judgment of Sentence Entered May 30, 2018 In the
Court of Common Pleas of Beaver County Criminal Division at
BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.
Michael Prentice Handley, appeals from the May 30, 2018
judgment of sentence imposing five years of probation for one
count of possession with intent to deliver ("PWID")
a controlled substance. We affirm.
trial court recited the pertinent facts in its opinion of
January 16, 2018:
On August 27, 2015 [Detective Gregory Carney, of the New
Sewickley Township Police Department], responded to a report
from an employee of PennEnergy. The employee advised that he
was at 1100 Blank Road clearing land to install a natural gas
well pad when he was approached by [Appellant] and an
argument ensued regarding the property line. The employee
further advised that [Appellant] threatened to get his gun
and then went into his residence. The employee then heard
four or five gunshots, left the area and called the police.
Det. Carney, accompanied by Patrolman [Thomas] Liberty and
Patrolman [Timothy] Sovich, went to [Appellant's]
residence; Det. Carney testified that at that time it was
only his intention to speak with [Appellant] about this
Det. Carney immediately observed a strong odor of marijuana
at [Appellant's] residence. Ptlm. Liberty and Det. Carney
knocked on the door and received no response. From the
home's front porch Det. Carney could observe a firearm
lying on the table inside the home. By looking through the
home and looking through a sliding glass door leading to the
side of the home he could also observe a [sic] two garbage
bags sitting outside. One bag had a green marijuana stem
protruding from the side and dried marijuana leaves on top;
the other bag had a green marijuana stem on top of it. Det.
Carney could immediately observe the marijuana leaves from
this vantage point on the porch; as he walked around the
outside of the residence he could more clearly observe the
bags and the marijuana stems. Det. Carney made these
observations without opening the bags. Det. Carney applied
for and was issued a search warrant for the home. Upon
executing the warrant, Det. Carney, accompanied by four other
officers, found 33 marijuana plants and numerous jars
containing marijuana. [Appellant and his wife] arrived at the
residence while the officers were searching and were
Trial Court Opinion, 1/16/18, at 2-3.
filed a pre-trial motion to suppress the evidence gathered
during the execution of the search warrant, arguing that the
supporting affidavit failed to establish probable cause. The
trial court denied that motion on January 16, 2018. The case
proceeded to a bench trial on stipulated facts, at the
conclusion of which the trial court found Appellant guilty of
PWID and imposed sentence as set forth above. This timely
presents two questions four our review:
Did the trial court err when it denied Appellant's motion
to suppress where the evidence presented demonstrates that
law enforcement lacked probable cause to obtain a search
warrant of the residence?
Did the trial court err when it denied Appellant's motion
challenging marijuana's Schedule I classification when
the Pennsylvania legislature enacted a comprehensive medical
marijuana program, where marijuana otherwise does not meet
the criteria for a Schedule I controlled substance, and were
marijuana's Schedule I classification other otherwise
[sic] unconstitutional on its face?
Appellant's Brief at 5. We will consider these issues in
scope of our review of an order denying suppression of
evidence is limited to the suppression court's factual
findings and legal conclusions. In re L.J.,
79 A.3d 1073, 1080 (Pa. 2013). "As for the record, we
are limited to considering only the evidence of the
prevailing party, and so much of the evidence of the
non-prevailing party as remains uncontradicted when read in
the context of the record as a whole." Id. A
reviewing court cannot look beyond the evidentiary record
created at the pre-trial suppression hearing. Id. at
1087. Probable cause exists when "the facts and
circumstances which are within the knowledge of the officer
at the time of the arrest, and of which he has reasonably
trustworthy information, are sufficient to warrant a man of
reasonable caution in the belief that the suspect has
committed or is committing a crime." Commonwealth v.
Thompson, 985 A.2d 928, 931 (Pa. 2009). In discerning
whether probable cause exists, the issuing authority cannot
consider evidence outside the four corners of the affidavit.
Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa.
Pursuant to the 'totality of the circumstances'
test set forth by the United States Supreme Court in
[Illinois v. Gates, 462 U.S. 213 (1983)] the task
of an issuing authority is simply to make a practical,
common-sense decision whether, given all of the
circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place…. It is the duty of a court
reviewing an issuing authority's probable cause
determination to ensure that the magistrate had a
substantial basis for concluding that probable cause
existed. In so doing, the reviewing court must accord
deference to the issuing authority's probable cause
determination, and must view the information offered to
establish probable cause in a common-sense, nontechnical
[Further, ] a reviewing court [is] not to conduct a de
novo review of the issuing authority's probable
cause determination, but [is] simply to determine whether or
not there is substantial evidence in the record supporting
the decision to issue the warrant.
Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010).
"A grudging or negative attitude by reviewing courts
towards warrants ... is inconsistent with the Fourth
Amendment's strong preference for searches conducted
pursuant to a warrant; courts should not invalidate warrants
by interpreting affidavits in a hypertechnical, rather than a
commonsense, manner." Id. at 655-56 (quoting
Gates, 462 U.S. at 236).
affidavit of probable cause stated that Detective Carney
noted a strong odor of marijuana when he approached
Appellant's house to speak to him about his aggressive
behavior toward the PennEnergy employee. N.T. Hearing,
8/1/17, at 21-22; Commonwealth's Exhibit 3. The affidavit
also stated that Detective Carney observed marijuana leaves
and stems protruding from holes in a garbage bag outside the
residence. Id. Closer inspection of the trash bag
revealed multiple stems and leaves from marijuana plants.
Id. at 22. Detective Carney requested a warrant to
search the residence, outbuildings, curtilage, and a camper.
strong smell of marijuana emanating from a residence creates
probable cause to procure a search warrant. Commonwealth
v. Johnson, 68 A.3d 990, 936 (Pa. Super. 2013)
("Having detected the strong smell of marijuana
emanating from [the defendant's] trailer, [the
investigating officers] had probable cause to obtain a search
warrant]); Commonwealth v. Waddell, 61 A.3d 198, 215
(Pa. Super. 2012) ("The evidence certainly surpassed the
threshold necessary to establish probable cause after [the
investigating officer] detected the smell of marijuana
emanating from [the defendant's] house.").
the odor of marijuana, in and of itself, was sufficient to
support issuance of a warrant. Additionally, Detective Carney
described his observation of numerous marijuana stems and
leaves in a trash bag outside of Appellant's home.
Appellant argues the affidavit is deficient because Detective
Carney did not explain how he was able to recognize the odor
of marijuana or the appearance of the plants. But Appellant
fails to cite any law holding that the affidavit could not
support a finding of probable cause without that information.
Appellant also challenges the breadth of the search, arguing
that the affidavit provided no basis for a search of
outbuildings and camper. Appellant fails to develop this
argument legally, and he does not specify what evidence, if
any, police recovered from the camper or out buildings.
Detective Carney's testimony describes contraband