PA Supreme Court rules odor of marijuana alone not enough for vehicle search

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 Sallie Mundy. 

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 way.

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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