Pennsylvania Supreme Court ruled that the smell of marijuana can no longer serve as the sole basis for a warrantless vehicle search, according to The Legal Intelligencer.
The decision upheld in part a ruling from the
Superior Court, which determined that the odor of marijuana can still factor
into a police officer’s determination of probable cause to conduct a search,
but it cannot be the only factor.
James Martin of the Lehigh County District
Attorney’s Office, who represented the state of Pennsylvania in the case, said
that following this decision, there is still uncertainty regarding how cannabis
use can factor into determining probable cause under the MMA. “I don’t know
that it clears it up at all to tell you the truth,” he said.
“The Supreme Court will logically have to address
the totality of the circumstances factors at some future time when someone
takes issue with what the Superior Court may determine is a proper factor(s) to
be considered,” the defendant’s attorney Joshua Karoly of the Karoly Law
Firm wrote in an emailed response. “Until then, plain smell arrests will not be
made and there is still a lot of lawyering to do.”
Chief Justice Max Baer penned the majority opinion,
which Justices Debra Todd, Christine Donohue and David Wecht joined. In it he
wrote that, since marijuana use is no longer always criminal, the smell alone
does not indicate illegal activity.
Still, he wrote, there are many circumstances in
which cannabis is still illegal, and so “the smell of marijuana indisputably
can still signal the possibility of criminal activity. Given this dichotomy, we
conclude that the odor of marijuana may be a factor, but not a standalone one,
in evaluating the totality of the circumstances for purposes of determining
whether police had probable cause to conduct a warrantless search.”
In a two-paragraph concurring opinion,
Justice Thomas Saylor said he believed the smell of burnt marijuana was likely
to indicate criminal activity since smoking cannabis, regardless of whether the
product itself is obtained legally, is illegal.
The case, captioned Commonwealth v. Barr, also
addressed whether precedent established in Commonwealth v. Hicks can
apply to licensed marijuana use. Hicks determined that a police
officer cannot subject a person to “stop and frisk” practices solely for
carrying a concealed firearm because it is possible to do so lawfully.
The court found that the precedent applies
because, “like the carrying of a concealed weapon by a licensed individual in Hicks,
it is simply not a crime for an individual to possess or use marijuana if the
requirements of the MMA have been satisfied.”
The high court reversed
the Superior Court’s decision to remand the case back to the
trial court to reconsider the defendant’s motion to suppress physical evidence
that the police collected during a search of his vehicle. Instead, the state
Supreme Court reinstated the trial court’s grant of the motion, which prompted
two separate concurring and dissenting opinions from Justices Kevin Dougherty and
Both justices agreed with the majority’s conclusion
that the smell of weed must be considered alongside other factors when
considering probable cause, but they said the trial court erred in granting the
motion to suppress by not considering the “totality of the circumstances” under
which the stop occurred.
Dougherty also expanded upon how “the smell of
marijuana retains salience in the probable cause analysis.”
Martin said he applauded Dougherty and Mundy’s
opinions for recognizing that medical marijuana can still be used in an illegal
The defendant, Timothy Barr II, had been charged for
unlicensed possession of a firearm in addition to possession of a small amount
of marijuana after state troopers pulled him over and noticed the smell. Barr
presented the troopers with his medical marijuana card, but the officers
proceeded to search the vehicle, where they found a loaded handgun.
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