J-S42023-19

                                   2019 PA Super 291

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN BATISTA,                              :
                                               :
                       Appellant               :   No. 1130 EDA 2018


            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 BY KUNSELMAN, J.:                          FILED SEPTEMBER 27, 2019

        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repealed their prohibitions against recreational use; Pennsylvania has not.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.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S42023-19



      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

                                      -2-
J-S42023-19


           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
____________________________________________


1   35 Pa.C.S.A. §§ 780-113(a)(30), 780-113(a)(32).

2   Batista and the trial court complied with Rule of Appellate Procedure 1925.

                                           -3-
J-S42023-19



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

                                     -4-
J-S42023-19



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. Const. Amend. IV.      Similarly, Article I, § 8 of the Constitution of the

Commonwealth of Pennsylvania provides:

         The people shall be secure in their persons, houses, papers
         and possessions from unreasonable searches and seizures,
         and no warrant to search any place or to seize any person
         or things shall issue without describing them as nearly as
         may be, nor without probable cause, supported by oath or
         affirmation subscribed to by the affiant.

      To determine if probable cause exists, courts employ the “totality-of-

the-circumstances approach . . . .” Gates, 462 U.S. at 230. Under this test,

the Supreme Court of the United States explained:

         the probable cause standard is . . . a practical, nontechnical
         conception. In dealing with probable cause, as the very
         name implies, we deal with probabilities. These are not
         technical; they are the factual and practical considerations
         of everyday life on which reasonable and prudent men, not
         legal technicians, act. Our observation in United States v.

                                       -5-
J-S42023-19


          Cortez, 449 U.S. 411, . . . (1981), regarding “particularized
          suspicion,” is also applicable to the probable cause standard
          . . . probable cause is a fluid concept — turning on the
          assessment of probabilities in particular factual contexts —
          not readily, or even usefully, reduced to a neat set of legal
          rules.

                               *      *        *   *   *

          The task of the issuing magistrate is simply to make a
          practical, common-sense decision whether, given all 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.

Id. at 231–32, 238 (some punctuation and citations omitted).3

       In Gates, the police received an anonymous letter detailing the drug-

trafficking business of Mr. and Mrs. Gates, which spanned several States. To

confirm the veracity of the anonymous tip, the police conducted their own

investigation and tracked the couple’s movements, which corroborated most

of the informant’s report.         After obtaining a search warrant, the police

searched their home and car and found the drugs. The defendants claimed

the warrant was unconstitutional, and the trial judge suppressed all the

evidence. The appellate courts of Illinois affirmed. The Supreme Court of the

United States granted certiorari and reversed, because the Illinois courts had
____________________________________________


3 We note that the totality-of-the-circumstances test announced in Illinois v.
Gates, 462 U.S. 213 (1983), is also the appropriate test under Article I,
Section 8 of the Constitution of the Commonwealth of Pennsylvania. See
Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985). Thus, our analysis under
Gates and the Fourth Amended is conterminous with our analysis under the
state constitution.

                                           -6-
J-S42023-19



taken too technical an approach in reviewing the officers’ affidavit of probable

cause and the magistrate’s probable cause finding.

      This cases replicates the facts from Gates. Officer Beattie received an

anonymous tip that illegal drugs could be found in Batista’s residence. Also,

like the unsigned letter in Gates, this anonymous report was highly detailed.

It specified where the drugs could be found, indicated there were security

cameras around the property, and described the smell of fresh marijuana

coming from a first-floor window through a ventilation system.

      Like the officers in Gates, instead of simply relying upon that report,

Officer Beattie and his colleagues went to investigate. Their observations of

the outside of Batista’s garage confirmed what they had heard in all respects.

This independent verification by the police imparted credibility to the

informant’s anonymous report.      As such, there existed a substantial basis

within the four corners of the affidavit for the magistrate to infer that the

informant’s ultimate claim – i.e., that 2015 E. Firth St. was a marijuana grow-

house – likewise had a fair probability of also being correct.

      Moreover, under Gates, we may not adopt a cramped, hyper-technical

reading of the affidavit as Batista suggests in his brief. For example, he asks

us to construe the word “narcotics” in Officer Beattie’s affidavit according to

its definition in the Controlled Substances, Drug, Device, and Cosmetic Act,

35 P.S. § 780-101 et seq.     Section 780-102 defines “narcotic” as opiates.

Batista therefore believes that Officer Beattie’s experience, as described in the

affidavit, only extends to opioids and similar drugs – not marijuana.

                                      -7-
J-S42023-19



      This is precisely the overly technical, lawyerly scrutiny of an officer’s

affidavit that Gates forbids. Probable cause “affidavits are normally drafted

by non-lawyers in the midst and haste of a criminal investigation . . . many

warrants are — quite properly — issued on the basis of nontechnical, common-

sense judgments of laymen applying a standard less demanding than those

used in more formal legal proceedings.”        Gates, 462 U.S. at 235–36

(emphasis added).

      To a layperson, the word “narcotics” can reasonably mean any illegal

drug, not just opium and its derivatives as Batista asserts. Indeed, Officer

Beattie is a member of Philadelphia’s Narcotics Bureau, and his superiors

assigned him to investigate a suspected marijuana grow-house. As such, the

magistrate reasonably could have inferred that, from the perspective of law

enforcement, Officer Beattie used the term “narcotics” in its everyday

meaning – i.e., any illegal drug. The magistrate’s implied determination that

Officer Beattie’s training and experience extended to marijuana was

reasonable and supported by substantial evidence within the affidavit.

      Also, Batista attempts to parse out various averments from the affidavit;

this defies the totality-of-the-circumstances test.   He shaves off individual

facts and asks us to review them in a vacuum. Batista erroneously isolates

Officer Beattie’s report of a ventilation system, which signaled to the officer

that marijuana was very probably growing inside the building. See Batista’s

Brief at 29-30. Batista observes that the officer did not state “how many grow

houses, if any, [he] has investigated. If this is the only ‘grow house’ that

                                     -8-
J-S42023-19



[Officer Beattie] has investigated, the information is utterly useless . . . .” Id.

at 29.

         This argument disregards everything else in the affidavit.      In other

words, it views Officer Beattie’s failure to include his full curriculum vitae in

the absence of all the other indicia of probable cause within the affidavit.

Batista cites no case law (and we know of none) for the proposition that an

officer must include the number of marijuana busts he has made in an

affidavit.

         It was sufficient for the officer to inform the magistrate that he has 23

years on the force, with 20 of those in drug enforcement.          From this, the

magistrate could reasonably infer that this was probably not Officer Beattie’s

or the two other investigating officers’ first raid on a marijuana grow-house.

The magistrate was also free to draw upon his or her prior experience with

Officer Beattie as an affiant, a history of which we know nothing. So it may

be that the magistrate knew from prior interactions with Officer Beattie that

the policeman was a trustworthy affiant with prior marijuana busts.

         Lastly, we come to Battista’s claim that the smell of fresh marijuana can

no longer serve as an element of probable cause in Pennsylvania. He bases

this claim on the fact that Philadelphia has rendered the possession of 30

grams or less for personal use a non-criminal violation.         Batista likewise

indicates that the use of medical marijuana is now legal in Pennsylvania. Thus,

he reasons that marijuana’s smell is now insufficient to give rise to probable

cause.

                                        -9-
J-S42023-19



      Regardless of what law Philadelphia’s City Council enacted, Pennsylvania

law still holds sway there.     Generally speaking, growing and distributing

marijuana remain illegal. 35 P.S. §§ 780-133(a)(1),(30),(32). Indeed, the

trial court convicted Batista of violating that very statute.

      The Medical Marijuana Act is a limited exception to that criminal statute.

Only a “grower/processor” or “dispensary”, as defined under the MMA, may

“receive a permit to operate as a medical marijuana organization to grow,

process, or dispense medical marijuana.” 35 P.S. § 10231.601. A grower is

a “natural person, corporation, partnership, association, trust or other entity,

or any combination thereof, which holds a permit from the Department [of

Health] under this act to grow and process medical marijuana.” 35 P.S. §

10231.103.

      To receive a grower permit under the MMA, a person must undergo an

extensive application and permitting process through the Department. See

35 § 10231.602 (requiring, among other things, full, financial disclosure of all

backers; descriptions of responsibilities within the partnership or corporation;

criminal background checks; statements of “good moral character;” title

searches for the land use; and personal information for all investors).

      The number of authorized growers and processors who have completed

that administrative process is currently very small. The General Assembly has




                                      - 10 -
J-S42023-19



capped the number of permits for growers. “The department may not initially

issue permits to more than 25 growers/processors.” 35 P.S. § 10231.616.4

       Given the extremely limited number of permits that the Department has

issued, we hold that, when an officer smells fresh marijuana emanating from

a building that is a reported grow-house there still exists a fair probability that

the marijuana inside is illegal. Law enforcement still holds the power and the

duty to investigate that probability.

       Thus, Batista has failed to persuade us that enactment of the MMA

abrogates our precedents holding that the aroma of marijuana contributes to

the finding of probable cause. See Commonwealth v. Trenge, 451 A.2d

701, 706 (Pa. Super. 1982) (stating “probable cause may be established . . .

primarily upon [an officer’s] sense of smell in concluding that marijuana was

then present”); see also Commonwealth v. Stoner, 344 A.2d 633, 635 (Pa.

Super. 1975) (en banc) (accord).

       Batista’s first appellate issue affords him no relief.

B.     The Alleged Material Misstatements

       As his second claim of error, Batista asserts that Officer Beattie made a

material misrepresentation in the affidavit of probable cause. He argues that

____________________________________________


4 See also The Department of Health of the Commonwealth, “Resources for
Growers and Processors:         Frequently Asked Questions,” available at
https://www.health.pa.gov/topics/programs/Medical%20Marijuana/Pages/Gr
owers-Processors.aspx (indicating that the 25-permit cap remains in effect)
(last visited 8/23/19). We judicially notice the Department of Health’s website
describing its own regulatory activity as a source “whose accuracy cannot
reasonably be questioned.” Pa.R.E. 201(b)(2).

                                          - 11 -
J-S42023-19



the ventilation system, which Officer Beattie averred was an indicator that the

garage was a grow-house, was disproven at the suppression hearing. See

Batista’s Brief at 43-45. Instead, the ventilation system turned out to be an

air conditioner, which, he says, would not give rise to a suspicion of criminal

activity in late June.   Batista asserts that the misidentification of the air

conditioner as a ventilation system was material to the magistrate’s finding of

probable cause. See id. Hence, Batista asserts that the suppression court

should have stricken that erroneous portion of the affidavit and suppressed

the Commonwealth’s evidence.

      In reviewing this issue, our focus shifts from the ruling of the magistrate

to the suppression court’s findings of fact and conclusions of law. Therefore,

our scope and standard of review shift as well.

      Now, our scope of review expands to the factual findings made during

the suppression hearing “to determine whether the factual findings are

supported by the record.        If so, we are bound by those findings.”

Commonwealth v. Howard, 762 A.2d 360, 361 (Pa. Super. 2000). But that

expansion does not reach a plenary scope of review. “[W]e 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.” In re L.J., 79 A.3d 1073, 1080 (Pa.

2013). Also, we may “not simply comb through the record to find evidence

favorable to a particular ruling. Rather, [we must] look to the specific findings




                                     - 12 -
J-S42023-19



of fact made by the suppression court,” based upon the record that was

developed in the suppression court. Id. at 1085.

      Our standard of review for the suppression court’s factual findings

remains deferential, while our standard for reviewing that court’s legal

conclusions reaches its zenith. As the Supreme Court of Pennsylvania has

stated:

          When we state that part of our “task” is to determine
          whether the record supports the suppression court’s factual
          findings, this is another way of expressing that our standard
          of review is highly deferential with respect to the
          suppression court’s factual findings and credibility
          determinations. In other words, if the record supports the
          suppression court’s findings, we may not substitute our own
          findings. In stark contrast, our standard of review of the
          suppression court’s legal conclusions is de novo: appellate
          courts give no deference to the suppression court’s legal
          conclusions.

Id. at 1080 n.6. (some punctuation and citations omitted).

      Applying our deferential standard of review to the suppression court’s

factual findings exposes the leap in Batista’s logic. His argument presumes,

without directly attacking the suppression court’s finding to the contrary, that

Officer Beattie made a material misstatement in the affidavit. However, the

suppression court, as sole finder of fact, concluded that Officer Beattie merely

misidentified the air conditioner as a ventilation system. In addition, it did

not find that that mistake was material to the development of probable cause.

In other words, even if Officer Beattie had correctly identified the ventilation

system as an air conditioner, the remaining indicia of probable cause coupled


                                     - 13 -
J-S42023-19



with the anonymous tip would still have created probable cause to support the

magistrate’s issuance of the warrant.

      We have said “courts may uphold a warrant if an independent basis

exists to support a finding of probable cause; however . . . a court must

invalidate a search warrant if the sole basis for finding probable cause is the

material misstatements.” Commonwealth v. Antoszyk, 985 A.2d 975, 982

(Pa. Super. 2009), affirmed, 38 A.3d 816 (Pa. 2012) (emphasis added). In

applying this rule, the suppression court explained its findings of fact and

opined:

                  During the evidentiary hearing, this court made a
          finding that Officer Beattie testified credibly when he stated
          that he believed the air conditioner unit located in [Batista’s]
          first floor window to be an exhaust system as it was emitting
          a strong smell of fresh marijuana, as had been similarly
          described by the informant. Officer Beattie testified that at
          the time he prepared the affidavit he was not able to
          determine that this exhaust system was an air conditioner,
          because he had not been inside the house.

                 On cross-examination, Officer Beattie explained that
          the wording in the affidavit stating that he had seen an
          “exhaust system” in every grow house he had investigated
          did not mean this particular exhaust unit found in [Batista’s]
          window but of an exhaust system generally. Further, Officer
          Beattie testified that in his experience, grow houses also
          utilize air conditioners as exhaust systems and even though
          it was the month of June and the weather was hot, “you
          don’t smell marijuana coming out of it either.”

                Upon reviewing Officer Beattie’s testimony at the
          evidentiary hearing, as well as photographs of the subject
          air conditioner (exhaust system) and the affidavit of
          probable cause, this court ruled that Officer Beattie’s
          statement in the affidavit was not a misstatement, but was
          merely his description of what he observed from his limited


                                      - 14 -
J-S42023-19


            viewpoint. As such, this court properly ruled that Officer
            Beattie did not deliberately, knowingly, or with reckless
            disregard misrepresent what he had observed in the window
            of [Batista’s] property in the supporting probable cause
            affidavit.

                  Moreover, had Officer Beattie been aware that the
            exhaust system was in fact an air conditioner and had placed
            that information in the supporting affidavit, along with the
            accompanying observations of the strong smell of fresh
            marijuana, the surveillance cameras and the corroborated
            information supplied by the informant, that it was a major
            weed grow house, this would have been equally sufficient to
            establish the requisite probable cause to support the
            issuance of a search warrant.

                  Therefore, [Batista’s] contention that the affidavit of
            probable cause contained a knowing and deliberate material
            misstatement of fact and that when excised from the
            affidavit it would have be insufficient to establish the
            probable cause necessary to support the issuance of the
            search warrant is without merit.

Trial Court Opinion, 11/15/18, at 8-9.

      We agree with the well-reasoned analysis of the suppression court and

adopt it as our own. Accordingly, we dismiss Batista’s second and final claim

of error.

      Judgment of sentence affirmed.

      Judge Colins joins this Opinion.

      Judge Ott concurs in the result.




                                       - 15 -
J-S42023-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/19




                          - 16 -
