J-A13005-20

2020 PA Super 236

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : TIMOTHY OLIVER BARR II : No. 2347 EDA 2019

Appeal from the Order Entered August 2, 2019 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000279-2019

BEFORE: BENDER, P.J.E., LAZARUS, J., and STRASSBURGER, J.*

OPINION BY BENDER, P.J.E.: FILED SEPTEMBER 25, 2020

This is a Commonwealth appeal from the trial court’s order granting

Appellee’s, Timothy Oliver Barr II, motion to suppress and habeas corpus

petition (“habeas petition”). In granting Appellee’s suppression motion, the trial court held that the odor of marijuana no longer provides police with probable cause to search a motor vehicle from which the odor emanates because a substantial number of Pennsylvania citizens can now consume marijuana legally, calling into question the so-called plain smell doctrine.

After careful review, we agree with the trial court that the odor of marijuana does not per se establish probable cause to conduct a warrantless search of a vehicle. However, because the trial court failed to afford that factor any weight, and did not appear to evaluate any other factors in conjunction with

the odor of marijuana in its probable cause analysis, we vacate the portion of ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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the order granting suppression and remand for reconsideration by the trial court. We also vacate the portion of the order granting Appellee’s habeas petition, and remand for reconsideration by the trial court following resolution of the suppression issue. The Commonwealth charged Appellee with person not to possess a firearm, 18 Pa.C.S. § 6105, possession of a firearm without a license, 18 Pa.C.S. § 6106, and possession of a small amount of marijuana (“PSAM”), 35 Pa.C.S. § 780-113(a)(31)(i), following a warrantless search of his vehicle conducted on November 7, 2018. Appellee filed a motion to suppress the seized firearm and marijuana, and a habeas corpus petition seeking dismissal of all charges.1 The trial court conducted a suppression hearing on July 17, 2019. The court summarized its factual findings from that hearing as follows: FINDINGS OF FACT 1. On November 7, 2018, at approximately 12:30 A.M., Trooper Edward Prentice and Trooper Danielle Heimbach of the Pennsylvania State Police, Fogelsville Barracks, Troop M, were on routine patrol in full uniform and in a marked police unit on Emaus Avenue in the area of the Liberty Park at Allentown apartment complex, Allentown, Lehigh County, Pennsylvania.^[5] At that time, Trooper Prentice observed a silver Chrysler 300 sedan making a U-turn in the Liberty Park at Allentown apartment complex on Allenbrook Drive, and then proceeding east on Emaus Avenue. Trooper Prentice turned his cruiser around and decided to follow the vehicle.^[6]

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October 12, 2018. On that night, Trooper Prentice was operating the police cruiser and was Trooper Heimbach’s training officer.

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passed out or in and out of sleep. There was limited interaction with Mr. Monteiro. Co-Defendant Monteiro did not present a medical marijuana card at the time of the traffic stop.

4. After Trooper Prentice completed his tasks in the police cruiser, he approached the vehicle on the driver’s side. Upon approach, Trooper Prentice could smell the odor of both burnt and raw marijuana through the open window of the vehicle.^[10] At that time, Trooper Prentice asked the driver to exit the vehicle so that he could interview her and confirm that she was not under the influence and incapable of safe driving. He stepped back to make room for her egress from the vehicle. When Trooper Prentice overheard the passenger arguing with Trooper Heimbach and stating[,] “no one is getting out of this fucking car,” Trooper Prentice walked back to the driver’s side door. The argument ensued for approximately two (2) to three (3) minutes, until members of the Allentown Police Department arrived as backup.^[11] When members of the Allentown Police Department arrived, [Appellee]’s attitude changed and he became more cooperative. He exited the vehicle, along with the other occupants. They were patted down for officer safety.

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Prentice with a medical marijuana identification card that allows him to possess and ingest medical marijuana pursuant to this license.^[12] Trooper Prentice admitted that while he knew that green leafy marijuana was legal for medical purposes, he was not familiar with how a person ingests green leafy medical marijuana.^[13] Also, Trooper Prentice was under the misconception that medical marijuana, when ingested through a vaping pen, has no odor.^[14] J-A13005-20 marijuana. No photos of the “shake” were taken at the time of the traffic stop.

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9. Dr. Gordon explained that there is no distinguishable physical difference between the green leafy medical marijuana and regular marijuana purchased on the streets. Indeed, the chemical compositions are the same. Dr. Gordon further explained how a person lawfully ingests green leafy medical marijuana. He indicated that the green leafy marijuana is placed in a battery- operated vaping pen that heats up the marijuana without combustion, producing a vapor. A person then breathes in the vapors through the vaping pen. Dr. Gordon indicated it is a violation of regulations to smoke medical marijuana without a vaping pen, such as placing it into cigarettes or pipes.

10. Dr. Gordon stated that there is no difference in odor of ingesting the medical marijuana when utilizing a vaping pen and the odor of smoking regular marijuana from an unlawful source.

11. Dr. Gordon is familiar with the packaging of medical marijuana and explained that it can be dispensed in a plastic container similar to a pill bottle, which then has a plastic bag in it containing the medical marijuana. Dr. Gordon believed that the inner plastic bag does contain some marking on it to reflect that it was purchased at a medical marijuana dispensary, but he was not certain. Dr. Gordon advises all of his patients to maintain their receipts to evidence what was purchased.

12. As of now, there are more than 143,000 patients in Pennsylvania legalized to obtain, possess, and ingest medical marijuana.

13. Dr. Gordon opined that there is a clear disconnect between the medical community and the law enforcement community with respect to the legalization of marijuana.

Trial Court Opinion (TCO), 8/2/19, at 2-8 (citations to hearing exhibits omitted).

On August 2, 2019, the trial court issued an opinion and order granting

both Appellee’s suppression motion and his habeas petition.2 The ____________________________________________

2 The order granted suppression of all evidence obtained during the search of Appellee’s vehicle. Order, 8/2/19, at 1 (single page). The order is somewhat

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Commonwealth filed a timely notice of appeal on August 8, 2019. On August 15, 2019, the trial court ruled that its August 2, 2019 order granting Appellee’s suppression motion and habeas petition was a final order. See Order, 8/15/19, at 1 (single page) (citing Pa.R.A.P. 341(c) (permitting “the trial court” to “enter a final order as to one or more but fewer than all of the claims and parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case” which then “becomes appealable when entered”)). The court did not order the Commonwealth to file a Pa.R.A.P. 1925(b) statement. The trial court filed a Rule 1925(a) opinion, which fully adopted its August 2, 2019 opinion, to address the Commonwealth’s claims. See Rule 1925(a) Opinion, 8/14/19, at 2. In addition to the briefs filed by the Commonwealth and Appellee, the Defender Association of Philadelphia and the American Civil Liberties Union of Pennsylvania filed an Amici Curiae brief (“Amici Brief”) in support of the order granting suppression. The Commonwealth now presents the following questions for our review: I. Did the trial court err in granting [Appellee]’s motion to suppress the drugs and firearm seized by Pennsylvania State ____________________________________________ inconsistent with regard to the habeas petition. Appellee sought dismissal of all charges in his habeas petition, and the order initially indicated that the habeas petition was granted. Id. However, the order then stated that only the PSAM charge was dismissed. Id. The lower court docket also reflects that only the PSAM charge was dismissed by the trial court.

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Police where the search of the vehicle in which [he] was a passenger was supported by probable cause?

II. Did the trial court err in granting [Appellee]’s [habeas petition] with regard to Count 3, [PSAM,] at the same time it granted [his] [m]otion to [s]uppress and where the Commonwealth established that it was more probable than not that [he] possessed the marijuana in violation of the Controlled Substances Act, 35 P.S. § 780-113(a)(31)(i)?

Commonwealth’s Brief at 4.

I

The Commonwealth’s first claim presents a multipart argument that the trial court erred in determining that the police lacked probable cause to conduct a warrantless search of Appellee’s vehicle.3

We begin by noting that where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.

Commonwealth v. DeWitt, 608 A.2d 1030, 1031 (Pa. 1992) (citations omitted).

Both the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect

____________________________________________

3 We refer to “Appellee’s vehicle” for convenience, while we recognize that Appellee was a passenger in the vehicle that his wife was driving. In any event, the Commonwealth makes no claims that Appellee lacked standing to challenge the search of the vehicle, nor does it claim that he lacked a reasonable expectation of privacy therein.

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individuals from unreasonable searches and seizures by police in areas where individuals have a reasonable expectation of privacy. An expectation of privacy exists if a person has a subjective expectation of privacy that society is willing to recognize as legitimate and reasonable. Where there exists a reasonable expectation of privacy, Article I, Section 8 and the Fourth Amendment generally require police to obtain a warrant, issued by a neutral and detached magistrate and founded upon probable cause, prior to conducting a search or seizure of a person and/or a person’s property, unless one of the few well delineated exceptions apply. One such exception is the automobile exception, adopted by this Court in Gary, which permits the search and/or seizure of a motor vehicle if supported by probable cause—no separate finding of exigent circumstances is required.

Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa. 2017) (some citations omitted).

In the case sub judice, it is undisputed that the automobile exception

applies if the police possessed probable cause to believe that a search of the vehicle would uncover evidence of a crime. “In determining whether probable cause exists, we apply a totality of the circumstances test.” Commonwealth

v. Thompson, 985 A.2d 928, 931 (Pa. 2009). “Probable cause is a practical, nontechnical conception: it 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.” Commonwealth v. Glass, 754 A.2d

655, 663 (Pa. 2000) (cleaned up).

The Commonwealth first asserts that it has long been the case that the odor of marijuana is alone sufficient to demonstrate probable cause to conduct a search. Commonwealth’s Brief at 14-15. Second, the Commonwealth argues that, contrary to the trial court’s analysis, this long-held rule has

- 10 - J-A13005-20 neither been altered by intervening legislation, namely, the Medical Marijuana Act (“MMA”), 35 P.S. § 10231.101 et seq., nor by our Supreme Court’s recent decision in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019) (holding that the presence of a concealed firearm, alone, does not provide police with reasonable suspicion that criminal activity is afoot). Commonwealth’s Brief at 16-32. Third, the Commonwealth contends that even if the odor of marijuana does not itself establish probable cause, it is nonetheless a relevant fact that, in conjunction with other factors, may contribute to a finding of probable cause. Id. at 32-36. Under that view, the Commonwealth argues that the trial court erred by affording the odor of marijuana no weight in assessing the at-issue search under the totality of the circumstances test for probable cause, and by failing to consider other relevant factors. Prior Precedent The Commonwealth first argues that prior precedent firmly establishes that the odor of marijuana, alone, provides probable cause to search a vehicle. Appellee partially concedes this point. See Appellee’s Brief at 12-13 (stating that in Commonwealth v. Stoner, 334 A.2d 633 (Pa. Super. 1975), “the [C]ourt adopted the rationale in United States v. Ventresca, 380 U.S. 102 (1965)[,] and Johnson v. United States, 333 U.S. ^[10] (1948)[,] that an odor may be sufficient to establish probable cause for the issuance of a search warrant[,]” and that … “Pennsylvania courts held thereafter that the plain smell of marijuana alone was sufficient to establish probable cause due to marijuana’s distinctive odor and illegal status”). Appellee rejects the notion - 11 - J-A13005-20 that the Stoner Court adopted a per se legal rule. However conceived, Appellee maintains, and the trial court agreed, that the plain smell doctrine was contingent upon the previously universal factual premise that the possession of marijuana was always and necessarily illegal; i.e., the detection of marijuana by smell was previously always evidence of criminal activity. They argue that the MMA changed that universal factual assumption in Pennsylvania and, applying the reasoning of Hicks, the odor of marijuana is no longer alone sufficient to establish probable cause to believe criminal activity is afoot. Initially, we agree with the Commonwealth that prior cases in this Commonwealth established that the odor of marijuana may be alone sufficient to establish probable cause for a search, as conceded by Appellee. We need not belabor that point; however, clarification of the nature of that rule is warranted. The Commonwealth seems to further argue that the odor of marijuana is always sufficient to establish probable cause under the prior precedent, suggesting the existence of a per se rule of law that applies regardless of any other circumstances known to an officer prior to his conducting a search. We disagree with this conception of the plain smell doctrine as a per se legal rule. To the contrary, courts have routinely held that the odor of marijuana is a factor for consideration in a determination of the existence of probable cause, a factor that was dispositive, or almost always controlling, in the prior factual context of the substance’s universal illegality. As this Court stated in - 12 - J-A13005-20 Commonwealth v. Trenge, 451 A.2d 701 (Pa. Super. 1982), “[a]t least since the Supreme Court of the United States decided Johnson v. United States, 333 U.S. ^[10] … (1948), it has been clear that probable cause may be established” by the odor of marijuana alone. Trenge, 451 A.2d at 706 (emphasis added). In Johnson, the Supreme Court explained: If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character. Johnson, 333 U.S. at 13 (emphasis added). Justice Jackson did not articulate a per se rule regarding the odor of obvious contraband in Johnson. Instead, he clearly expressed that the odor of a “forbidden” substance is a factor that “might” constitute evidence of the “most persuasive character” when considered in the totality-of-the-circumstances test for probable cause. Id. In Stoner, this Court explicitly adopted the reasoning of Johnson, stating that the “Supreme Court of the United States has held that an odor may be sufficient to establish probable cause for the issuance of a search warrant.” Stoner, 344 A.2d at 635 (citing Johnson) (emphasis added). The Stoner Court further opined that it “would have been a dereliction of duty for [an officer] to ignore the obvious aroma of an illegal drug which he was trained to identify.” Id. Stoner neither departed from nor exceeded the rationale of Johnson, that the detection of an odor of a prohibited substance may be sufficient by itself to establish probable cause. Applying that rule in the - 13 - J-A13005-20 context of a legal environment where virtually every instance of possession of marijuana is illegal, the odor of marijuana becomes dispositive in establishing probable cause to conduct a search for that substance. This is assuming, of course, yet another factual premise upon which all plain smell cases are contingent—that the odor in question is emanating from the location sought to be searched. See, e.g., Commonwealth v. Scott, 210 A.3d 359, 365 (Pa. Super. 2019) (holding “the odor of burnt marijuana and small amount of contraband recovered from the passenger compartment of the vehicle did not create a fair probability that the officer could recover additional contraband in the trunk” because, citing the suppression court in that case, the “officers could only smell burnt marijuana as a result of [the defendant’s] having just smoked a blunt in the car and therefore they could not discern the odor of fresh marijuana that would lead them to reasonably believe additional narcotics had been concealed within the vehicle”). While that factor is not at issue in this case, it further serves to demonstrate the absence of a per se rule giving police carte blanche authority to search based on the odor of marijuana despite any circumstances that might serve to undermine the otherwise strong inference of criminal activity that the odor typically implied. A per se rule undermines the very nature of the totality-of- the-circumstances test for probable cause, which 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.” Glass, 754 A.2d at 663 (emphasis added). - 14 - J-A13005-20 Thus, contrary to the Commonwealth’s claim, there is no preexisting, per se rule that the odor of marijuana is always sufficient to establish probable cause to believe a crime is being committed. Rather, the existing rule, properly stated, is that the odor of marijuana may alone be sufficient to establish probable cause to search in particular factual contexts. In practical terms, historically, the circumstances wherein the odor of marijuana would not alone be sufficient to establish probable cause were necessarily rare or even nonexistent when marijuana was, in all or virtually all circumstances, illegal to possess. To the extent that the Commonwealth suggests a per se rule existed prior to, much less survived the MMA, and that the trial court erred by failing to mechanically follow that rule once it deemed credible that the odor had been detected by the police, we deem that aspect of its claim to be meritless. The trial court was free to weigh the inference of criminality implied by the odor of marijuana against other relevant facts known to the officers in determining whether they possessed probable cause to conduct the search. MMA Next, the Commonwealth contends that the MMA “did not legalize nor did it render possession or use of marijuana presumptively legal.” Commonwealth’s Brief at 18. Thus, the Commonwealth argues that the “MMA merely constitutes one limited exception” to the Controlled Substance, Drug, Device, and Cosmetic Act (“CSA”) and that “Pennsylvania’s long[-]standing - 15 - J-A13005-20 precedent that the smell of marijuana establishes probable cause … control[s].” Id. In Commonwealth v. Jezzi, 208 A.3d 1105 (Pa. Super. 2019), this Court described the interplay between the MMA and the CSA as follows: This appeal involves the interplay of two public safety statutes; the first statute is the CSA, which describes five schedules of controlled substances. 35 P.S. § 780-104. In outlining the Schedule I substances, the Act states: § 780-104. Schedules of controlled substances (1) Schedule I—In determining that a substance comes within this schedule, the secretary shall find: a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision. The following controlled substances are included in this schedule: *** (iv) Marihuana. 35 P.S. § 780-104(1)(iv) (effective June 14, 1972). The second statute is the MMA, which states in its declaration of policy: § 10231.102. Declaration of policy The General Assembly finds and declares as follows: (1) Scientific evidence suggests that medical marijuana is one potential therapy that may mitigate suffering in some patients and also enhance quality of life. (2) The Commonwealth is committed to patient safety. Carefully regulating the program which allows access to medical marijuana will enhance patient safety while research into its effectiveness continues. (3) It is the intent of the General Assembly to: - 16 - J-A13005-20 (i) Provide a program of access to medical marijuana which balances the need of patients to have access to the latest treatments with the need to promote patient safety. (ii) Provide a safe and effective method of delivery of medical marijuana to patients. (iii) Promote high quality research into the effectiveness and utility of medical marijuana. (4) It is the further intention of the General Assembly that any Commonwealth-based program to provide access to medical marijuana serve as a temporary measure, pending Federal approval of and access to medical marijuana through traditional medical and pharmaceutical avenues. 35 P.S. § 10231.102(1)-(4) (emphasis added). In essence, the MMA creates a temporary program for qualified persons to access medical marijuana, for the safe and effective delivery of medical marijuana, and for research into the effectiveness and utility of medical marijuana. Id.; 35 P.S. § 10231.301. Significantly, the MMA does not declare that marijuana is safe and effective for medical use; instead, the MMA is a temporary vehicle to access the substance pending research into its medical efficacy and utility. 35 P.S. § 10231.102(1)-(4). Section 10231.303 of the MMA allows for the limited lawful use of medical marijuana, and pertinent to this case, Section 10231.304 emphasizes the unlawful use of medical marijuana: § 10231.304. Unlawful use of medical marijuana (a) General rule.—Except as provided in section 303, section 704, Chapter 19 or Chapter 20, the use of medical marijuana is unlawful and shall, in addition to any other penalty provided by law, be deemed a violation of the [CSA]. (b) Unlawful use described.—It is unlawful to: (1) Smoke medical marijuana. (2) Except as provided under subsection (c), incorporate medical marijuana into edible form. - 17 - J-A13005-20 (3) Grow medical marijuana unless the grower/processor has received a permit from the department under this act. (4) Grow or dispense medical marijuana unless authorized as a healthy medical marijuana organization under Chapter 19. (5) Dispense medical marijuana unless the dispensary has received a permit from the department under this act. (c) Edible medical marijuana.—Nothing in this act shall be construed to preclude the incorporation of medical marijuana into edible form by a patient or a caregiver in order to aid ingestion of the medical marijuana by the patient. 35 P.S. § 10231.304. Further, the MMA states: “The growth, processing, distribution, possession and consumption of medical marijuana permitted under [the MMA] shall not be deemed a violation of the [CSA]” and “[i]f a provision of the [CSA] relating to marijuana conflicts with a provision of [the MMA], [the MMA] shall take precedence.” 35 P.S. § 10231.2101. In other words, compliance with the MMA will not constitute a crime under the CSA. Id. Jezzi, 208 A.3d at 1111–12 (footnotes omitted). As established above, the plain smell doctrine is a specific application of the totality-of-the-circumstances test for probable cause, crafted in light of the previously universal fact of marijuana’s illegality and its distinctive odor. The MMA has clearly altered the underlying factual context in which that probable cause test applies. See Amici Brief at 5 (“The logical nexus between smelling marijuana in a car and the likelihood of finding unlawfully possessed narcotics is not immune to the effects of time and changes in law; it is affected and altered by both.”). This much is true: marijuana is a prohibited substance - 18 - J-A13005-20 under the CSA, despite the passage of the MMA.4 However, it is undisputed that a substantial number of Pennsylvania citizens may now possess and consume marijuana legally pursuant to the MMA.^[5] Previously, every instance in which marijuana was detected by smell indicated the commission of a crime. Soon, hundreds of thousands of Pennsylvanians will become potential lawful sources of that same odor. Thus, the strength of the inference of illegality stemming from the odor of marijuana has necessarily been diminished by the MMA in Pennsylvania. The Commonwealth cites several post-MMA cases by this Court, implying that the MMA has not affected the plain smell doctrine. However, the cited decisions do not preclude a finding by a suppression court that probable cause is lacking, despite a credible finding that police smelled marijuana coming from the location to be searched, nor do they provide analogous facts to the instant case that are controlling here. First, in Commonwealth v. Handley, 213 A.3d 1030 (Pa. Super. 2019), the police responded to a report that Handley had an argument with a utility worker outside of his home, and that he had threatened to get a gun from inside the house. Id. at 1033. The worker also reported that he heard ____________________________________________ 4 As the Jezzi Court held, “the CSA and the MMA can be read in harmony and given full effect….” Jezzi, 208 A.3d at 1115. 5 As noted by Amici Curiae, nearly 163,000 Pennsylvania have active medical marijuana cards in Pennsylvania, and some 70,000 more are pending approval. See Amici Brief at 4. The Commonwealth does not dispute these statistics. - 19 - J-A13005-20 “four or five gunshots” after Handley returned to his residence. Id. When police arrived, they detected “a strong odor of marijuana” coming from the house. Id. Handley did not respond when the officers knocked on his door. Id. Additionally, the police observed a firearm inside the house from their vantage point on the front porch, and they further discovered marijuana leaves and stems protruding from garbage bags that were outside the home. Id. at 1033-34. Based on this information, the police obtained a warrant to search the home. Id. at 1034. A subsequent search yielded “33 marijuana plants and numerous jars containing marijuana.” Id. Handley filed a suppression motion, which was denied. On appeal, Handley argued that the police lacked probable cause to secure the search warrant. The Handley Court disagreed, stating, inter alia, that a “strong smell of marijuana emanating from a residence creates probable cause to procure a search warrant” and that “the odor of marijuana, in and of itself, was sufficient to support issuance of a warrant.” Id. at 1035 (citing Commonwealth v. Johnson, 68 A.3d 930 (Pa. Super. 2013) (hereinafter, “PA Johnson,” and Commonwealth v. Waddell, 61 A.3d 198 (Pa. Super. 2012)). On first glance, Handley may appear to support the Commonwealth’s position. However, under further scrutiny, it is easily distinguishable from the case sub judice. Although Handley was decided after passage of the MMA, - 20 - J-A13005-20 the search at issue in that case occurred several years prior.^[6] Thus, at the time the warrant in Handley was secured, there was no possibility that Handley lawfully possessed the marijuana detected by the investigating officers pursuant to the MMA, and Handley presented no such claim on appeal. The Handley Court relied on prior expressions of the plain smell doctrine in PA Johnson and Waddell, both cases that were issued several years before the MMA could have contributed to the factual context in which a probable cause determination is made, and both of which involved facts that far exceeded the mere smell of marijuana as the justification for a search.^[7] ____________________________________________ 6 As noted by the Handley Court, the MMA “took effect on May 17, 2016.” Id. at 1036. Handley’s home was searched nearly a year before on August 27, 2015. Id. at 1033. 7 In Waddell, this Court did not ‘hold’ that the odor of marijuana was in-and- of-itself sufficient to establish probable cause. Indeed, Waddell was not even a probable cause case. The issue in Waddell was whether exigent circumstances existed to search a home without a warrant, not whether police possessed probable cause for the search. Waddell, 61 A.3d at 207. In any event, numerous facts supported a determination of probable cause in that case, including: a tip from an informant that the home was used for distributing marijuana; observations of suspicious persons going to and from the residence with backpacks purportedly containing marijuana; and a person stopped after leaving Waddell’s residence, who was in possession of a large quantity of marijuana, told the police that he had obtained the marijuana from Waddell’s home. Id. at 208-29. Only after recounting all those contributing facts did the Waddell Court state that “the evidence certainly surpassed the threshold necessary to establish probable cause after [police] detected the smell of marijuana emanating” from Waddell’s home. On appeal, Waddell even conceded that probable cause existed. Id. at 212. Needless to say, there were ample facts supporting a finding of probable cause to conduct the search at issue in Waddell independent of the odor detected, and the - 21 - J-A13005-20 Additionally, there were more circumstances known to the officer in Handley when he obtained the warrant beyond the mere odor of marijuana. The officer responded to a reported threat and a report of shots fired, observed a firearm inside the residence, and discovered marijuana leaves and stems in the garbage outside the residence. The Commonwealth’s extraction of a single sentence from the Handley opinion, outside that greater factual context in which the probable cause determination was made, does not convince us that the rule derived from Stoner and Johnson evolved into a per se test. The Commonwealth also cites Scott, where police were patrolling in a high crime area when they stopped Scott’s vehicle due to a malfunctioning brake light. Scott, 210 A.3d at 360-61. When the officer approached the vehicle, he smelled burnt marijuana, saw “smoke was still emanating from the vehicle,” and then further observed Scott “attempt to place a [marijuana] ____________________________________________ Waddell Court had simply opined in dicta that the odor of marijuana was the proverbial icing on the cake. Similarly, in PA Johnson, which itself relied on Waddell, police received tips from two anonymous sources that the ultimately-searched trailer park home was being used for the sale of marijuana and prescription pills, and the sources gave a specific description of one of the female suspects. See PA Johnson, 68 A.3d at 931. When they arrived at the scene, police observed a woman who fit the provided description near the identified home. Id. at 932. When they approached the home, they detected the smell of burnt marijuana. Id. Based on those facts, the PA Johnson Court concluded that probable cause existed once the police detected the smell of marijuana. The PA Johnson Court did not state nor suggest that the smell of marijuana was alone sufficient to establish probable cause independent of the preceding tips and partial corroboration of those tips. - 22 - J-A13005-20 blunt” in the center console. Id. at 361 (emphasis added). The officer conducted a search of the passenger compartment and recovered the blunt and a small jar of marijuana. The officer then searched the trunk of Scott’s vehicle, where he discovered an illegal firearm. On appeal, Scott challenged only the search of his trunk, essentially conceding probable cause existed to search the passenger compartment. While presenting boilerplate law on the plain smell doctrine, the Scott Court correctly stated the standard that “an odor may be sufficient to establish probable cause[.]” Id. at 363 (quoting Stoner). It then cited the application of that rule in another case, which was just another rephrasing of the rule in Stoner, but from which the Commonwealth again attempts to construe a statement of a per se rule from a poorly-crafted recitation of boilerplate law that was not critical to the issue of probable cause in that case.^[8] Indeed, the Scott Court held that, despite the odor of marijuana emanating from the vehicle, police did not possess probable cause to further search the trunk after having already discovered the likely source of the odor. Id. at 365 (“Under these circumstances, the odor of burnt marijuana and small amount of ____________________________________________ 8 The Scott Court quoted Commonwealth v. Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984), wherein this Court stated: “In Stoner, we analogized a plain smell concept with that of plain view and held that where an officer is justified in being where he is, his detection of the odor of marijuana is sufficient to establish probable cause.” As discussed at length above, the applicable rule from Stoner is not a per se test. There is no suggestion in Stainbrook that the Court’s omission of the word ‘may’ in its recitation of the standard was intentional, much less relevant to the holding in that case. - 23 - J-A13005-20 contraband recovered from the passenger compartment of the vehicle did not create a fair probability that the officer could recover additional contraband in the trunk.”). Moreover, although Scott was stopped a few months after the passage of the MMA, he did not present officers with a medical marijuana card, nor did he present an argument on appeal that the MMA altered the factual context in which probable cause is assessed based on the odor of marijuana. Indeed, the Scott Court did not address any issue related to the passage of the MMA. Accordingly, Scott also does not support the Commonwealth’s arguments. Next, in Commonwealth v. Batista, 219 A.3d 1199 (Pa. Super. 2019), this Court addressed the odor of marijuana’s effect on probable cause determinations in light of the MMA, and that decision does provide some guidance in the instant matter. However, it does not decide the question before us, because it is distinguishable in several respects. In that case, the police received a tip from an unidentified source that Batista’s home was being used to grow large quantities of marijuana, and that the odor of fresh marijuana was emanating from an exhaust vent on the first floor. Id. at 1201. When the police went to the house to investigate, they detected a strong smell of fresh marijuana coming out of a first-floor exhaust vent. Id. The police further testified that the exhaust vent and smell were consistent with all other grow houses they had previously investigated. Id. Based on those facts, they secured a warrant to search the premises, and upon execution of the warrant, they discovered 91 marijuana plants growing in Batista’s home, and charged - 24 - J-A13005-20 him with possession with intent to deliver marijuana. Batista challenged the warrant for lack of probable cause, but the suppression court denied the suppression motion, and Batista was ultimately convicted. Id. at 1201-02. On appeal, Batista claimed, inter alia, that “the smell of fresh marijuana can no longer serve as an element of probable cause in Pennsylvania” after passage of the MMA. Id. at 1204–05. The Batista Court disagreed, reasoning: The [MMA] is a limited exception to [the CSA]. 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 P.S. § 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 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. 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. - 25 - J-A13005-20 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. Batista, 219 A.3d at 1205 (footnote omitted). Contrary to the Commonwealth’s claim that a per se, plain-smell rule exists, the Batista Court did not apply such a rule, instead characterizing the prior precedents as establishing the rule that the odor of marijuana may contribute to a finding of probable cause. Id. The Court considered whether the odor of marijuana, in conjunction with other circumstances, contributed to a finding of probable cause, and concluded that it did—a wholly unnecessary task if the odor of marijuana was alone sufficient to establish probable cause to search Batista’s home. The additional circumstances considered were both specific to the case and universal; specific in that the odor of marijuana, and its location, had directly corroborated a tip that marijuana was being illegally grown there, and universal in the sense that the Court deliberated on the likelihood that the detected marijuana might have complied in some sense with the MMA. Because the odor corroborated the tip, in addition to the fact that it was extremely unlikely that Batista had been granted one of a handful of licenses to grow marijuana under the MMA, the Batista Court concluded that the search warrant was supported by probable cause to believe that the marijuana detected was illegal. Here, there was no tip suggesting that Appellee or the other passengers in the vehicle were illegally using marijuana, and Appellee presented the - 26 - J-A13005-20 officers with his MMA card prior to the search at issue. Moreover, while licenses to grow marijuana under the MMA are extremely limited—on the order a few dozen statewide—hundreds of thousands of Pennsylvania citizens will soon legally possess and consume marijuana pursuant to the MMA. Thus, the likelihood that police will encounter the lawful possession and use of marijuana through its odor pursuant to the MMA is exponentially greater than the likelihood that they will discover a lawful grow house, and no facts known to police before the search was conducted supported the belief that marijuana was being manufactured or sold in or from Appellee’s vehicle. Thus, Batista does not control here. We conclude, therefore, that the post-MMA cases cited by the Commonwealth do not control our decision and, consequently, we consider the question before us in the first instance. The Commonwealth contends that the MMA did not make marijuana presumptively legal, and that it remains presumptively illegal, despite the MMA. As a factual matter, the trial court credited expert testimony that there is no distinction between legal medical marijuana and contraband marijuana that can be detected through odor alone. See TCO at 7. Nevertheless, the Commonwealth maintains that all marijuana remains presumptively illegal, and that medical marijuana exists only as a limited exception to the CSA. As far as the Commonwealth asserts that the MMA is a limited exception to the CSA, we agree. See Batista, 219 A.3d at 1205. It does not follow that the odor of marijuana is always sufficient to establish probable cause, or, relatedly, that the MMA is irrelevant to the test - 27 - J-A13005-20 for probable cause. It would strain credulity to think the legislature intended that all medical marijuana users under the MMA—hundreds of thousands of Pennsylvanians already—may be presumptively subjected to searches by law enforcement due to the odor of marijuana alone. However, we need not read into the intent of the legislature here, because there is no statutory question before us. Lawful users of medical marijuana do not surrender their 4th Amendment rights merely because other citizens will continue to possess contraband marijuana in contravention of the CSA. The MMA has altered the fact of marijuana’s previously universal illegality, and probable cause is a fact- driven standard “not readily, or even usefully, reduced to a neat set of legal rules.” Glass, 754 A.2d at 663. Thus, we conclude that the trial court did not err in merely considering the passage of the MMA as a relevant fact in its probable cause analysis. The question remains, however, whether the lower court abused its discretion in concluding that the odor of marijuana cannot contribute to a finding of probable cause in the post-MMA environment. Hicks Next, the Commonwealth argues that the trial court erroneously applied the reasoning of Hicks in granting Appellee’s suppression motion. In Hicks, our Supreme Court held that possession of a concealed firearm by an individual in public is not sufficient to create a reasonable suspicion that the individual may be dangerous or committing a criminal offense, explicitly overruling this Court’s longstanding decision in Commonwealth v. Robinson, 600 A.2d 957 (Pa. Super. 1991). Hicks, 208 A.3d at 947. Here, - 28 - J-A13005-20 the trial court “applied” Hicks in determining “that the plain smell of marijuana alone no longer provides authorities with probable cause to conduct a search of a subject vehicle. As marijuana has been legalized in Pennsylvania for medical purposes, the plain smell of burnt or raw marijuana is no longer indicative of an illegal or criminal act.” TCO at 14-15 (emphasis added). The Commonwealth contends that Hicks is distinguishable because it was expressly limited to the possession of firearms, and that the rationale of Hicks cannot apply here because the possession of a concealed firearm is ostensibly not analogous to the possession of medical marijuana. Essentially, the Commonwealth maintains that possession of marijuana under the MMA is in a distinct legal category that makes it presumptively illegal in a manner that does not apply to the possession of a concealed firearm. In Hicks, at approximately 2:30 a.m., a remote camera operator conducting live surveillance of a gas station and convenience store … notified police officers that a patron of the establishment was in possession of a firearm. According to the suppression court’s factual recitation, the camera operator advised officers that the observed individual showed the firearm to another patron, put the firearm in his waistband, covered it with his shirt, and walked inside the convenience store. The observed individual was Michael Hicks. It later emerged that Hicks possessed a valid license to carry a concealed firearm. See