from the Judgment of Sentence March 28, 2018, in the Court of
Common Pleas of Philadelphia County, Criminal Division at
BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J. [*]
the past several years, nearly half of our Sister States and
this Commonwealth have legalized medical marijuana. Some
States have also repealed their prohibitions against
recreational use; Pennsylvania has not.
appeal, John Batista makes the novel argument that, because
marijuana is now medically available in Pennsylvania, police
officers may no longer rely upon its smell as a factor for
developing probable cause. Like the trial court, we reject
this theory. In certain instances, the smell of marijuana may
still indicate that a crime is afoot, because the growth,
distribution, possession, and use of marijuana without a
state-issued permit remains illegal. Thus, the magistrate had
a substantial basis to issue a search warrant for
Batista's garage, and we affirm the order denying
to the Affidavit of Police Officer Matthew Beattie, which
served as the bases for the search warrant in question, on
June 19, 2017, he heard that 2015 E. Firth Street in the City
of Philadelphia was "a major, weed grow-house . . . with
cameras all over . . . ." Commonwealth's Suppression
Ex. 1 at 2. Officer Beattie also learned from the
unidentified source "that you can smell the odor of
fresh marijuana coming out of the exhaust system that's
located in the front window of the first floor."
Beattie and two other investigators immediately went to see
and to smell the supposed grow-house. They observed "a
surveillance camera . . . directed at the front door and . .
. a gated-in lot, with a shed located inside of the lot, with
surveillance camera focused on the front of 2015 E. Firth
St." Id. One of the officers walked:
by 2015 E. Firth St. and smelled a strong odor of fresh
marijuana coming from the exhaust system that was running in
the first floor window, which is consistent with a marijuana
grow-house. P.O. Beattie, ten minutes later,
[also walked] by 2015 E. Firth St. and smelled a strong odor
of fresh marijuana coming from the exhaust system that was
running in the first floor window, which has been used in
every grow-house that P.O. Beattie has investigated.
P.O. Beattie did a real estate check that revealed the owner
[to be] John Bruno Batista . . .
Based on the above events, your Affiant believes that
marijuana is being grown and stored at the above location.
Your Affiant respectfully requests that a daytime search
& seizure warrant be approved for 2015 E. Firth St.
Your Affiant has been a Philadelphia Police Officer for
approximately (23) years and assigned to the Narcotics Bureau
for approximately (20) years. The assigned is familiar with
the sales of illegal narcotics in and around the City of
Philadelphia having participated in hundreds of narcotics
Beattie brought the affidavit to a magistrate that same day.
The magistrate concluded sufficient probable existed to
suspect Batista of illegally growing marijuana in his garage
and issued a search warrant.
next day, police executed the search warrant and uncovered 91
marijuana plants in Batista's garage-turned-greenhouse.
They arrested him and charged him with various drug-related
offenses. The trial court refused to suppress the evidence.
At a bench trial, the court convicted Batista of possession
of marijuana with intent to deliver and possession of drug
paraphernalia. The trial court imposed an aggregate
sentence of 11½ to 23 months' incarceration, from
which Batista now timely appeals.
raises two issues challenging the affidavit of probable
cause. First, he claims the affidavit failed to establish
probable cause. See Batista's Brief at 5.
Second, Batista contends the suppression court erroneously
concluded there were no material misrepresentations within
the affidavit. See id. at 6. We address each issue
Probable Cause within the Four Corners of the Affidavit
reviewing a magistrate's decision to issue a search
warrant based upon an affidavit of probable cause, our scope
of review is narrow, and our standard of review is
restrained. We review only "the information within the
four corners of the affidavit submitted in support of
probable cause . . . ." Commonwealth v. Rogers,
615 A.2d 55, 62 (Pa. Super. 1992); see also
Pennsylvania Rule of Criminal Procedure 203(D). The
"duty of a reviewing court is simply to ensure that the
magistrate had a substantial basis for concluding that
probable cause existed." Illinois v. Gates, 462
U.S. 213, 238–39, (1983) (some punctuation omitted).
Thus, we "may not conduct a de novo
review of the issuing authority's probable cause
determination." Commonwealth v. Huntington, 924
A.2d 1252, 1259 (Pa. Super. 2007) (emphasis added).
argues that the magistrate's finding of probable cause
was erroneous. He contends the presence of security cameras
and ventilation systems are not, per se, illegal or
uncommon. Batista also criticizes the lack of specificity
regarding how many grow-houses Officer Beattie investigated
during his 23-year career and his use of the word
addition, Batista argues that "marijuana is legal in
Pennsylvania, and decriminalized in Philadelphia."
Batista's Brief at 18. He notes that "medical
marijuana became legal in Pennsylvania more than one year
before the search of [his] home when the legislature enacted
the Medical Marijuana Act [("MMA")], 35 P.S. §
10231.101 et seq., on April 17, 2016, with an
effective date of May 17, 2016." Id. at 34.
Batista then asserts the City of Philadelphia legalized
marijuana for recreational use when it reduced the penalty
for personal use below 30 grams to a civil offense,
punishable by a $25 fine. See id. at 34-35.
Thus, he contends, "given the location specified in the
affidavit, the smell of marijuana is not indiciative of
criminal activity. It is certainly not a circumstance that
would prompt a person of reasonable caution to believe that a
search of a private home should be conducted without
more." Id. at 35.
the Constitution of the United States and the Constitution of
the Commonwealth of Pennsylvania safeguard individuals from
unreasonable governmental intrusions into the privacy of
their homes. "The right of the people to be secure in
their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated,
and no Warrant shall issue, but upon probable cause,
supported by Oath or affirmation . . . ." U.S. ...