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Commonwealth v. Handley

Superior Court of Pennsylvania

June 28, 2019


          Appeal from the Judgment of Sentence Entered May 30, 2018 In the Court of Common Pleas of Beaver County Criminal Division at No: CP-04-CR-001321-2016



          STABILE, J.

         Appellant, 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.

         The 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 incident.
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 arrested.

Trial Court Opinion, 1/16/18, at 2-3.

         Appellant 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 appeal followed.

         Appellant 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 turn.

         The 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. Super. 2003).

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 manner.
[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).

         The 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.[1] 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. Id.

         A 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.").

         Thus, 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 ...

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