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Commonwealth v. Batista

Superior Court of Pennsylvania

September 27, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN BATISTA, Appellant

          Appeal from the Judgment of Sentence March 28, 2018, in the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0007160-2017.

          BEFORE: OTT, J., KUNSELMAN, J., and COLINS, J. [*]

          OPINION

          KUNSELMAN, J.:

         Over 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 Some States have also repealed their prohibitions against recreational use; Pennsylvania has not.

         In this 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 suppression.

         According 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." Id.

         Officer 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 investigations.

Id.

         Officer 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.

         The 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.[1] The trial court imposed an aggregate sentence of 11½ to 23 months' incarceration, from which Batista now timely appeals.[2]

         Batista 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 in turn.

         A. Probable Cause within the Four Corners of the Affidavit

         When 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).

         Batista 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 "narcotics."

         In 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.

         Both 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. ...


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