The Pennsylvania Superior Court decided the case of Commonwealth v. Batista, holding that the smell of fresh marijuana, along with other indications that the property was being used as a grow house, provided police with probable cause to obtain a search warrant for the premises. Although there has been a liberalization of marijuana laws in Pennsylvania and Philadelphia, it is still illegal to grow and possess marijuana under many circumstances. Therefore, appellate courts have continued to hold that the odor of marijuana may give police probable cause to conduct a search.
Commonwealth v. Batista
Officer Beattie of the Philadelphia Police learned from an unidentified source that a major marijuana growing operation was occurring at the defendant’s residence. 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.” Officer Beattie and two other investigators went to see and smell the residence. The officers observed “a surveillance camera directed at the front door…a gated-in lot, with a shed located inside of the lot, and a surveillance camera” which faced the front of the property. Multiple officers then walked by the front of the residence and smelled a strong odor of fresh marijuana coming from the exhaust system that was running in the first-floor window.
Officer Beattie then performed a real estate check that revealed that the defendant was the owner of the property. Officer Beattie next applied for a search warrant of the residence based on the above information. Additionally, Office Beattie included that he has been a Philadelphia police officer for approximately 23 years and assigned to the Narcotics Bureau for 20 of those years. The magistrate then concluded that there was sufficient probable cause to suspect the defendant of illegally growing marijuana in his garage and issued a search warrant.
The next day, the police executed a search warrant and uncovered 91 marijuana plants in the defendant’s garage. The defendant was then placed under arrested and he was charged with various drug-related offenses. The defendant then filed a motion to suppress which was denied. The defendant then proceeded to a bench trial where he was found guilty of possession of marijuana with the intent to deliver and possession of drug paraphernalia. The defendant was then sentenced to an aggregate sentence of 11 ½ to 23 months incarceration. He appealed.
The Defendant’s Appeal
In his appeal, the defendant argued that the magistrate’s finding of probable cause was erroneous. Specifically, he argued that marijuana is legal in Pennsylvania and decriminalized in Philadelphia. Further, he stated 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.” Also, he stated that because Philadelphia made possession of marijuana a civil offense the smell of marijuana is not indicative of criminal activity. Therefore, because of these new developments in the law regarding marijuana, the defendant argued that the policed lacked probable cause to search his residence.
Can the Police Stop Me if They Smell Marijuana?
Probably. In general, marijuana is still illegal under state and federal law. The fact that Philadelphia has stopped enforcing most marijuana prohibition does not mean that police do not have reasonable suspicion or probable cause based on the odor of marijuana. Further, there are very few medical marijuana dispensaries in the state of Pennsylvania, and the fact that some people now have medical marijuana does not necessarily mean that the odor of marijuana does not provide reasonable suspicion or probable cause for police to make a stop or search. However, as marijuana laws continue to be liberalized, it is possible that courts will eventually find that the odor of marijuana does not provide reasonable suspicion or probable cause for police to search someone because the police should not just assume that the person does not have a prescription to smoke marijuana.
The Superior Court’s Decision
The Superior Court denied the defendant’s appeal. The Superior Court found that though the defendant’s argument was “novel,” he still would not prevail. The reason was, as discussed above, is that the police are still allowed to stop someone when they smell marijuana. Additionally, there was no evidence that his residence qualified as a dispensary. As the Superior Court noted, a very small number of growers have been qualified as a “grower/processor” under the Medical Marijuana Act. As of now, there can only be, at most, 25 of these growers/processors. Further, the Superior Court deferred to Officer Beattie’s experience as a narcotics officer. It is important to note that the Superior Court did not rely entirely on the odor of marijuana alone in justifying the search. The officer also noted other factors such as the camera, the exhaust system, and things of that nature in concluding that the defendant was operating a grow house. Had the officer merely smelled marijuana, the outcome may have been different. Therefore, the Superior Court held that there was sufficient probable cause to issue the search warrant. As such, the defendant will not get a new trial and he will have to serve his sentence.
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