J-A08019-19
2019 PA Super 201
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
MICHAEL PRENTICE HANDLEY
Appellant No. 932 WDA 2018
Appeal from the Judgment of Sentence Entered May 30, 2018 In the Court of Common Pleas of Beaver County Criminal Division at No: CP-04-CR-001321-2016
BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.
OPINION BY STABILE, J.: FILED JUNE 28, 2019
Appellant, Michael Prentice Handley, appeals from the May 30, 2018
judgment of sentence imposing five years of probation for one count of
possession with intent to deliver (“PWID”) a controlled substance. We affirm.
The trial court recited the pertinent facts in its opinion of January 16,
2018:
On August 27, 2015 [Detective Gregory Carney, of the New Sewickley Township Police Department], responded to a report from an employee of PennEnergy. The employee advised that he was at 1100 Blank Road clearing land to install a natural gas well pad when he was approached by [Appellant] and an argument ensued regarding the property line. The employee further advised that [Appellant] threatened to get his gun and then went into his residence. The employee then heard four or five gunshots, left the area and called the police. Det. Carney, accompanied by Patrolman [Thomas] Liberty and Patrolman [Timothy] Sovich, went to [Appellant’s] residence; Det. Carney testified that at that time it was only his intention to speak with [Appellant] about this incident. J-A08019-19
Det. Carney immediately observed a strong odor of marijuana at [Appellant’s] residence. Ptlm. Liberty and Det. Carney knocked on the door and received no response. From the home’s front porch Det. Carney could observe a firearm lying on the table inside the home. By looking through the home and looking through a sliding glass door leading to the side of the home he could also observe a [sic] two garbage bags sitting outside. One bag had a green marijuana stem protruding from the side and dried marijuana leaves on top; the other bag had a green marijuana stem on top of it. Det. Carney could immediately observe the marijuana leaves from this vantage point on the porch; as he walked around the outside of the residence he could more clearly observe the bags and the marijuana stems. Det. Carney made these observations without opening the bags. Det. Carney applied for and was issued a search warrant for the home. Upon executing the warrant, Det. Carney, accompanied by four other officers, found 33 marijuana plants and numerous jars containing marijuana. [Appellant and his wife] arrived at the residence while the officers were searching and were arrested.
Trial Court Opinion, 1/16/18, at 2-3.
Appellant filed a pre-trial motion to suppress the evidence gathered
during the execution of the search warrant, arguing that the supporting
affidavit failed to establish probable cause. The trial court denied that motion
on January 16, 2018. The case proceeded to a bench trial on stipulated facts,
at the conclusion of which the trial court found Appellant guilty of PWID and
imposed sentence as set forth above. This timely appeal followed.
Appellant presents two questions four our review:
Did the trial court err when it denied Appellant’s motion to suppress where the evidence presented demonstrates that law enforcement lacked probable cause to obtain a search warrant of the residence?
Did the trial court err when it denied Appellant’s motion challenging marijuana’s Schedule I classification when the Pennsylvania legislature enacted a comprehensive medical
-2- J-A08019-19
marijuana program, where marijuana otherwise does not meet the criteria for a Schedule I controlled substance, and were marijuana’s Schedule I classification other otherwise [sic] unconstitutional on its face?
Appellant’s Brief at 5. We will consider these issues in turn.
The scope of our review of an order denying suppression of evidence is
limited to the suppression court’s factual findings and legal conclusions. In
re L.J., 79 A.3d 1073, 1080 (Pa. 2013). “As for the record, we 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.” Id. A reviewing court cannot look
beyond the evidentiary record created at the pre-trial suppression hearing.
Id. at 1087. Probable cause exists when “the facts and circumstances which
are within the knowledge of the officer at the time of the arrest, and of which
he has reasonably trustworthy information, are sufficient to warrant a man of
reasonable caution in the belief that the suspect has committed or is
committing a crime.” Commonwealth v. Thompson, 985 A.2d 928, 931
(Pa. 2009). In discerning whether probable cause exists, the issuing authority
cannot consider evidence outside the four corners of the affidavit.
Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa. Super. 2003).
Pursuant to the ‘totality of the circumstances’ test set forth by the United States Supreme Court in [Illinois v. Gates, 462 U.S. 213 (1983)] the task of an issuing authority is simply to make a practical, common-sense decision whether, given all of 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
-3- J-A08019-19
of a crime will be found in a particular place…. It is the duty of a court reviewing an issuing authority’s probable cause determination to ensure that the magistrate had a substantial basis for concluding that probable cause existed. In so doing, the reviewing court must accord deference to the issuing authority’s probable cause determination, and must view the information offered to establish probable cause in a common-sense, non- technical manner.
[Further,] a reviewing court [is] not to conduct a de novo review of the issuing authority’s probable cause determination, but [is] simply to determine whether or not there is substantial evidence in the record supporting the decision to issue the warrant.
Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010). “A grudging or
negative attitude by reviewing courts towards warrants ... is inconsistent with
the Fourth Amendment’s strong preference for searches conducted pursuant
to a warrant; courts should not invalidate warrants by interpreting affidavits
in a hypertechnical, rather than a commonsense, manner.” Id. at 655–56
(quoting Gates, 462 U.S. at 236).
The affidavit of probable cause stated that Detective Carney noted a
strong odor of marijuana when he approached Appellant’s house to speak to
him about his aggressive behavior toward the PennEnergy employee. N.T.
Hearing, 8/1/17, at 21-22; Commonwealth’s Exhibit 3.1 The affidavit also
stated that Detective Carney observed marijuana leaves and stems protruding
from holes in a garbage bag outside the residence. Id. Closer inspection of
the trash bag revealed multiple stems and leaves from marijuana plants. Id.
____________________________________________
1 Detective Carney read the contents of the probable cause affidavit into the record at the suppression hearing.
-4- J-A08019-19
at 22. Detective Carney requested a warrant to search the residence,
outbuildings, curtilage, and a camper. Id.
A strong smell of marijuana emanating from a residence creates
probable cause to procure a search warrant. Commonwealth v. Johnson,
68 A.3d 990, 936 (Pa. Super. 2013) (“Having detected the strong smell of
marijuana emanating from [the defendant’s] trailer, [the investigating
officers] had probable cause to obtain a search warrant]); Commonwealth
v. Waddell, 61 A.3d 198, 215 (Pa. Super. 2012) (“The evidence certainly
surpassed the threshold necessary to establish probable cause after [the
investigating officer] detected the smell of marijuana emanating from [the
defendant’s] house.”).
Thus, the odor of marijuana, in and of itself, was sufficient to support
issuance of a warrant. Additionally, Detective Carney described his
observation of numerous marijuana stems and leaves in a trash bag outside
of Appellant’s home. Appellant argues the affidavit is deficient because
Detective Carney did not explain how he was able to recognize the odor of
marijuana or the appearance of the plants. But Appellant fails to cite any law
holding that the affidavit could not support a finding of probable cause without
that information. Appellant also challenges the breadth of the search, arguing
that the affidavit provided no basis for a search of outbuildings and camper.
Appellant fails to develop this argument legally, and he does not specify what
evidence, if any, police recovered from the camper or out buildings. Detective
-5- J-A08019-19
Carney’s testimony describes contraband recovered from Appellant’s house,
but not from any other structure. N.T. Hearing, 8/8/17, at 23-24. Based on
all of the foregoing, we conclude that the record contains substantial evidence
supporting the issuance of the search warrant.
In his second argument, Appellant claims that Schedule I of the
Controlled Substance, Drug, Device and Cosmetic Act is unconstitutional
insofar as it includes marijuana. 35 P.S. § 780-104(1)(iv)2. Pennsylvania’s
Medical Marijuana Act (“MMA”) took effect on May 17, 2016. 35 P.S.
§ 10231.101, et seq. Pursuant to that Act, the General Assembly found that
“[s]cientific evidence suggests that medical marijuana is one potential therapy
that may mitigate suffering in some patients and also enhance quality of life.”
35 P.S. § 10231.102(1). Appellant argues that Schedule I limits its
applicability to substances with no currently accepted medical use, and
because MMA is now in effect, Appellant argues that marijuana cannot
constitutionally remain on Schedule I. He offers a lengthy history of the
criminalization of marijuana and claims that Pennsylvania’s current statutory
framework is untenable, given an irreconcilable conflict, as to marijuana,
between Schedule I and the MMA. This Court addressed similar arguments in
Waddell and Commonwealth v. Jezzi, ___ A.3d ___, 2019 WL 1870750
(Pa. Super. April 26, 2019).
2 1972 P.L. 233, No. 64 § 4, as amended. A newly amended Schedule I, with revisions not pertinent this matter, will go into effect on October 23, 2019.
-6- J-A08019-19
First, Appellant addresses the statutory construction of Schedule I in
light of the MMA. Appellant’s Brief at 18-21. This Court offered a statutory
construction of Schedule I in Waddell in response to an argument very similar
to Appellant’s. Waddell argued that marijuana’s inclusion in Schedule I was
invalid because, as of that time, several other states recognized medical uses
of marijuana:
[Waddell] claims that principles of due process demand that prosecution under the provisions of the [CSA] which prohibit various activities relating to controlled substances (in this case the possession and the possession with intent to deliver controlled substances), is barred with respect to marijuana as marijuana ostensibly has ceased to qualify as a Schedule I controlled substance under the Drug Act.
Waddell, 61 A.3d at 200, 203.
The Waddell Court explained our standard for reviewing the
constitutionality of a statute:
It is axiomatic that: [A]ny party challenging the constitutionality of a statute must meet a heavy burden, for we presume legislation to be constitutional absent a demonstration that the statute clearly, palpably, and plainly violates the Constitution. The presumption that legislative enactments are constitutional is strong. All doubts are to be resolved in favor of finding that the legislative enactment passes constitutional muster. Moreover, statutes are to be construed whenever possible to uphold their constitutionality.
Id. at 202 (internal citations and quotation marks omitted) (quoting DePaul
v. Commonwealth, 969 A.2d 536, 545-46 (Pa. 2009)).
The Waddell Court went on to construe the pertinent language of
Schedule I, which provides in relevant part:
-7- J-A08019-19
(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).
Waddell held that the two sentences of § 780-104(1) are to be read
independently. The first sentence applies prospectively, governing the
conditions for adding a substance to Schedule I. Waddell, 61 A.3d at 206.
“The second sentence of 35 P.S. § 780–104(1) is most logically read to act
independently of the first, establishing a list of Schedule I controlled
substances that are not dependent on the criteria set forth allowing additions
to Schedule I by “the secretary” that is set forth in the first sentence.” Id.
Therefore, the substances originally listed in Schedule I were included
regardless of their compliance with the conditions specified in the first
sentence of § 780-104(1). Id. Moreover, substances listed in Schedule I
need not remain in continuous compliance with that sentence. Id.
It is clear that a narrow reading of the express and plain meaning of the statute indicates that there is no requirement that the Schedule I substances listed under 35 P.S. § 780–104 continuously conform to the standard that there be “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.” 35 P.S. § 780–104(1). Accordingly, we reject [a]ppellant’s suggested interpretation and conclude that his due process claim lacks merit. Regardless of whether there are accepted medical uses for marijuana in the United States,
-8- J-A08019-19
marijuana remains a Schedule I substance under the Drug Act.
Id. at 207 (emphasis added). This Court rejected Waddell’s due process
argument because it rested on a faulty interpretation of the CSA. Id.
Given the foregoing, we also cannot accept Appellant’s argument that
Waddell is distinguishable because it predates the MMA. In Waddell, as
here, the appellant argued that mounting evidence of marijuana’s medicinal
value renders Schedule I constitutionally invalid insofar as it includes
marijuana. Waddell rejected that argument, holding that Schedule I
controlled substances need not continuously conform to the first sentence of
§ 780-104(1).3 Thus, there is no conflict between Schedule I, as construed in
Waddell, and the MMA. In essence, Appellant invites this Court to construe
Schedule I in precisely the way the Waddell Court rejected. Appellant’s Brief
at 18-21. We decline to do so, as we believe the enactment of the MMA does
not affect the Waddell Court’s construction of § 780-104(1).
Appellant also raises substantive due process and equal protection
arguments. We will consider these arguments in turn. The Fourteenth
Amendment to the United States Constitution provides that no state shall
3 The MMA anticipates the removal of marijuana from Schedule I (see 35 P.S. § 10231.2108), but our General Assembly has not done so. Appellant does not cite § 10231.2108 in support of his argument. In any event, Marijuana remains a Schedule I controlled substance after an amendment to § 780-104 set to take effect on October 24, 2019. 2018 Pa. Laws 662. Likewise, Pennsylvania House Bill 616, introduced on February 28, 2019, does not address the classification of marijuana. 2019 PA H.B. 616.
-9- J-A08019-19
“deprive any person of life, liberty, or property, without due process of law
[.]” U.S. CONST. amend. XIV, § 1. Similarly, the Pennsylvania Constitution
provides: “All men are born equally free and independent, and have certain
inherent and indefeasible rights, among which are those of enjoying and
defending life and liberty, of acquiring, possessing and protecting property
and reputation, and of pursuing their own happiness.” PA CONST. art. I, § 1.
The government, through its police power, may enact laws that limit the
enjoyment of personal liberty and property. Commonwealth v. Gambone,
101 A.2d 634, 636 (Pa. 1954). The government’s police power is, however,
subject to constitutional restrictions and judicial review. Id.
The constitutional analysis applied to the laws that impede upon these inalienable rights is a means-end review, legally referred to as a substantive due process analysis. Under that analysis, courts must weigh the rights infringed upon by the law against the interest sought to be achieved by it, and also scrutinize the relationship between the law (the means) and that interest (the end). Where laws infringe upon certain rights considered fundamental, such as the right to privacy, the right to marry, and the right to procreate, courts apply a strict scrutiny test. Under that test, a law may only be deemed constitutional if it is narrowly tailored to a compelling state interest.
Alternatively, where laws restrict the other rights protected under Article 1, section 1, which are undeniably important, but not fundamental, Pennsylvania courts apply a rational basis test. According to that test, which was defined by this Court almost a century ago, a law must not be unreasonable, unduly oppressive or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relation to the objects sought to be attained.
Nixon v. Commonwealth, 839 A.2d 277, 287 n.15 (Pa. 2003) (internal
citations and quotation marks omitted).
- 10 - J-A08019-19
Instantly, Appellant requests rational basis review. The Pennsylvania
Supreme Court has written that the substantive due process guarantees under
the Pennsylvania Constitution are “substantially coextensive” with those of the
Fourteenth Amendment, but that “a more restrictive rational basis test is
applied under [the Pennsylvania] Constitution.” Nixon v. Commonwealth,
839 A.2d 277, 287 n.15 (Pa. 2003). Appellant relies on Nixon in his brief but
he does not acknowledge the distinction between the federal and state rational
basis tests. Because we conclude that Appellant’s argument fails under
Pennsylvania law, it necessarily fails under the less restrictive federal test.
Our Supreme Court recently described the rational basis analysis in
detail:
Under the guise of protecting the public interests the legislature may not arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. The question whether any particular statutory provision is so related to the public good and so reasonable in the means it prescribes as to justify the exercise of the police power, is one for the judgment, in the first instance, of the law-making branch of the government, but its final determination is for the courts.
Thus, under our state charter, we must assess whether the challenged law has a real and substantial relation to the public interests it seeks to advance, and is neither patently oppressive nor unnecessary to these ends. Nevertheless, we bear in mind that, although whether a law is rationally related to a legitimate public policy is a question for the courts, the wisdom of a public policy is one for the legislature, and the General Assembly’s enactments are entitled to a strong presumption of constitutionality rebuttable only by a demonstration that they clearly, plainly, and palpably violate constitutional requirements.
- 11 - J-A08019-19
Shoul v. Commonwealth, Dep't of Transp., Bureau of Driver Licensing,
173 A.3d 669, 677-78 (Pa. 2017).
Appellant claims the Commonwealth violated substantive due process
by prosecuting for possession with intent to deliver a Schedule I substance
that has accepted medical use. This is, by and large, the due process
argument raised in Waddell. Nonetheless, we are cognizant that the
Waddell Court did not find a need to address the law of due process because
it rejected the argument on statutory construction grounds. Instantly, we
conclude that Appellant’s argument fares no better under the law of
substantive due process, regardless of the subsequent enactment of the MMA.
Most importantly, Appellant fails to identify the nature of the right
implicated here. In Nixon and Shoul, for example, the defendants argued
that the laws in question were unconstitutional because they improperly
restricted the defendants’ right to pursue a lawful occupation. We cannot
write a similar summary of Appellant’s argument, as it is unclear what would
follow the word “because.” In other words, it is clear that Appellant believes
marijuana’s continued Schedule I classification is unconstitutional, but it is not
clear which right Appellant believes is unnecessarily restricted by that
classification. His brief contains a history of the criminalization of marijuana,
in which he purports to demonstrate that marijuana’s inclusion on the federal
Schedule I was, in large part, the product of the Nixon administration’s animus
toward some of its most common users, including racial minorities and
- 12 - J-A08019-19
persons opposed to the Vietnam War. Appellant’s Brief at 21-26. Appellant
thus argues that criminalization of the possession and distribution of
marijuana under Pennsylvania’s Schedule I, which largely tracks the federal
version, is arbitrary. Even if we were to assume that Appellant’s historical
account is accurate (we need not and do not opine on the matter), that
assumption would not lead to the conclusion that the Commonwealth is
powerless to regulate marijuana in the way that it has. Appellant’s historical
argument does not preclude the possibility of a rational basis for including
marijuana on Schedule I.
In asking for rational basis review, Appellant has disavowed the violation
of any fundamental right. Thus, Appellant must assert the impingement of a
right that is important, but not fundamental. He does not do so. Appellant
relies in part on Nixon, but growing and distributing recreational marijuana is
not a lawful occupation. Appellant therefore cannot be asserting an unusual
and unnecessary restriction on the right to pursue a lawful occupation, as were
the litigants in Shoul and Nixon. Appellant develops no legal argument with
regard to any other important right.
Likewise, Appellant does not argue that regulation of marijuana bears
no real and substantial relation to a public interest. Appellant does not argue,
for example, that marijuana should be removed from the list of controlled
substances because the Commonwealth has no valid interest in regulating it.
Appellant does not deny that marijuana is a psychoactive drug that causes
- 13 - J-A08019-19
impairment to its users.4 He simply argues that marijuana cannot remain on
Schedule I because it has accepted medical use, and his conviction should fall
on that basis. We observe, nonetheless, that the five-year statutory
maximum punishment applicable to possession with intent to deliver
marijuana (as well as many other Schedule I drugs) applies to Schedule II
and Schedule III substances. 35 P.S. § 780-113(f)(2). Thus, a reclassification
of marijuana to Schedule II or III—both of which include drugs with accepted
medical use—would not alter the potential punishment for possession with
intent to deliver it.
In summary, Appellant’s argument that marijuana’s Schedule I
classification violates substantive due process is patently insufficient to
overcome the strong presumption of constitutionality that a legislative
enactment enjoys. In Jezzi, this Court considered an apparently similar
argument from Appellant’s counsel and rejected it because Jezzi failed to
explain the right involved. Jezzi, 2019 WL 1870750 at *3. Likewise, the
Waddell Court held, as a matter of statutory construction, that the medical
4 We note our agreement with the panels in Jezzi and Waddell that proper regulation of marijuana, with the ongoing scientific study of the potential benefits and hazards of its various components, is a matter best left to our General Assembly. Jezzi, 2019 WL 1870750, at *8; Waddell, 61 A.3d at 207 n.20. See, e.g., Moises Velasquez-Manoff, Can CBD Really Do All That?, N.Y. TIMES, May 14, 2019, magazine; Gruber, et. al, The Grass Might Be Greener: Medical Marijuana Patients Exhibit Altered Brain Activity and Improved Executive Function after 3 Months of Treatment, FRONTIERS IN PHARMACOLOGY, Volume 8, Article 983 (January 17, 2018).
- 14 - J-A08019-19
value of marijuana does not create a due process problem with regard to the
continued classification of marijuana as a Schedule I controlled substance. For
the reasons explained above, we reach the same conclusion, in accord with
both Jezzi and Waddell.
Finally, we consider Appellant’s argument that marijuana’s continued
Schedule I classification violates his right to equal protection. “Appellant
contends that making marijuana available as a medicine through
Pennsylvania’s medical cannabis law denies anyone who is not a registered
patient equal protection by prosecuting that individual for possession of a
Schedule I controlled substance.” Appellant’s Brief at 32.
The applicable law is well settled. “The essence of the constitutional
principle of equal protection under the law is that like persons in like
circumstances will be treated similarly.” Jezzi, 2019 WL 1870750 at *5
(quoting Commonwealth v. Bullock, 868 A.2d 516, 524 (Pa. Super. 2005),
affirmed, 913 A.2d 207 (Pa. 2006), cert. denied, 550 U.S. 941 (2007)).
The law recognizes three levels of scrutiny, depending upon the nature of the
right involved. Id. Appellant concedes that the lowest level of scrutiny—that
the law be rationally related to a legitimate governmental interest—applies
here. “Under the rational basis test, if any state of facts can be envisioned to
sustain the classification, equal protection is satisfied.” Id. (quoting
Commonwealth v. Albert, 758 A.2d 1149, 1153 (Pa. 2000)).
- 15 - J-A08019-19
The Jezzi Court considered the same argument presently before us.
First, the Jezzi Court noted the Waddell Court’s conclusion, i.e., that
marijuana could remain on Schedule I regardless of its accepted medical uses.
Id. at *6. Thus, the Jezzi Court found no conflict between the CSA and the
MMA as concerns any currently accepted medical use for marijuana. Id. at
*7. This Court concluded that the CSA is “social legislation that falls within
the purview of the General Assembly,” and that it “furthers the legitimate
government interest of public safety by protecting the public from unfettered
access to unsafe substances.” Id. “[A] genuine safety purpose existed when
the General Assembly passed the CSA, and [a]ppellant failed to prove the
Schedule I classification of marijuana is no longer rationally related to that
legitimate government interest.” Id. Accordingly, Jezzi’s equal protection
argument failed.
In summary, the Jezzi Court concluded that the continued classification
of marijuana as a Schedule I controlled substance after enactment of the MMA
does not offend constitutional equal protection. That holding is directly on
point and controlling here. We further observe that Appellant’s argument,
quoted above, appears to assert that persons who wish to possess or use
marijuana without a valid medical reason are denied equal protection as
compared to persons who qualify for use and possession under the MMA. This
argument, as Appellant phrases it, would call into question the constitutional
validity of all prescription medication. To accept it, we would have to conclude
- 16 - J-A08019-19
that the Commonwealth has no rational basis for permitting medical
prescriptions of controlled substances but denying those substances to
persons who want them for recreational purposes. To state that proposition
is to refute it.
For all of the foregoing reasons, we conclude that Appellant’s arguments
lack merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/28/2019
- 17 -