IS THAT WEED I SMELL, OR A CHANGE IN THE LAW? (Hint: The law in PA has not changed … yet.)

In the ever-evolving body of law surrounding the legalization of marijuana, the Pa. Superior Court has recently rejected the 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.

In the case at issue, police received an anonymous tip that illegal drugs could be found in the Defendant’s residence. The tip, although anonymous, was “highly detailed … 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.” Officers were informed 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.”

The officers “immediately went to see and to smell the supposed grow-house” and 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 property in question. 

Officers investigating the property also “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.” 

The police obtained a Search Warrant from the Magisterial District Judge, based on the above information. They served the warrant and arrested the Defendant, charging him with various drug-related offenses.

The Defendant filed a Motion to Suppress the evidence seized as a result of the search warrant service with the trial court. However, the trial court rejected the Motion and the Defendant was convicted after a bench trial of possession of marijuana with intent to deliver and possession of drug paraphernalia.

The Defendant appealed his sentence of 11 1/2 to 23 months of incarceration to the Superior Court, challenging the trial court’s decision that the officer’s affidavit establish the requisite probable cause for the search warrant to be valid.

On appeal, the Superior Court determined that the officer’s “observations of the outside of [the Defendant’s] garage confirmed what they had heard in all respects [of the anonymous tip]. 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 [the property in question] was a marijuana grow-house – likewise had a fair probability of also being correct.”

The Superior Court noted that, “generally speaking, growing and distributing marijuana [in PA] remain illegal.” Further, “[t]he 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.’” 

Accordingly, “[g]iven the extremely limited number of permits that [have been] issued, [the Superior Court held] 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.” 

In sum, the Superior Court noted: 

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, [the Defendant] 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 [the Defendant’s] garage, and we affirm the order denying suppression.


Commonwealth v. Batista, No. 1130 EDA 2018 (PA. Super. September 27, 2019).

DISCLAIMER – The information contained in this article is for general guidance on the subject matter only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, and the inherent hazards of electronic communication, there may be delays, omissions or inaccuracies in information in this article. Case summaries are primarily excerpted directly from the decisionhs authored by the Courts. The decisions are cited and linked and the reader is encouraged to read the entire decision. Accordingly, the information in this article is provided with the understanding that the authors and publishers are not herein engaged in rendering legal or other professional advice and services. As such, it should NOT be used as a substitute for consultation with a McMahon Winters Strasko attorney about this or any other legal issue. Before making any decision or taking any action, you should always consult with a McMahon Winters Strasko attorney.