The Legal Intelligencer
January 6, 2022
The Pennsylvania Supreme Court ruled in the final days of 2021, that “the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle.” This is “heady” stuff, no pun intended. The manner in which the trial court, and ultimately the Supreme Court, reached a decision in Commonwealth v. Barr, 28 WPA 2021, is interesting indeed.
In the fall of 2018, the appellant, Timothy Barr, was the occupant of a car pulled over by the Pennsylvania State Police in Allentown, Pennsylvania. As the troopers approached the car they smelled an odor of marijuana. The troopers used the odor of marijuana as probable cause to search the vehicle.
The troopers found a small amount of marijuana and a handgun. The appellant was arrested. He subsequently filed a motion to suppress and a writ of habeas corpus. A hearing was conducted before a judge of the Lehigh County Common Pleas Court.
David Gordon, a retired surgeon and an expert in medical marijuana in Pennsylvania, testified on behalf of the appellant. According to Gordon, “there is no difference between green, leafy medical marijuana and marijuana purchased illegally on the streets.” In addition, Gordon “noted that smoking marijuana is illegal under the Medical Marijuana Act (MMA), 35 P.S. Sections 10231.101-10231.2110 but can be legally consumed through a vaping pen.” He continued “there is no difference between the odor of legally vaped and illegally smoked marijuana.”
According to Pennsylvania Supreme Court Chief Justice Max Baer’s opinion, the trial court used the high court’s recent decision in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019) to make its decision. Hicks determined that a police officer cannot subject a person to “stop and frisk” solely for carrying a concealed firearm because it is possible to lawfully carry a concealed weapon.
In Hicks, the defendant, Michael Hicks, stopped at a gas station, talked with some friends, and showed them a gun he was carrying in a holster on his waistband. He then went into the convenience store. Police detained him and retrieved the firearm. Hicks had a permit to carry a concealed weapon. However, after being detained the police smelled alcohol on Hicks and found a bag of marijuana in his pocket.
The police initially detained Hicks based on the concealed weapon. He was arrested and subsequently convicted of driving under the influence.
He appealed his conviction. The Pennsylvania Supreme Court held there was “no justification for the notion that a police officer may infer criminal activity merely from an individual’s possession of a concealed firearm in public.” The Supreme Court “acknowledged that it is unlawful to carry a concealed firearm if the individual is statutorily prohibited from firearm ownership or unlicensed to carry a concealed firearm, we emphasized that it is not a criminal offense for a license holder to carry a concealed firearm in public.”
The Pennsylvania Supreme Court held in Hicks that “a police officer may not infer criminal activity merely from an individual’s possession of a concealed firearm in public because a firearm may lawfully be carried and, thus, possession alone does not suggest criminal activity.”
Using the reasoning in Hicks, the trial court in Barr found, “the ‘plain smell’ of marijuana alone no longer provides authorities with probable cause to conduct a search of a subject vehicle” because the drug has been legalized in Pennsylvania for medical purposes.
The trial court suppressed the evidence and the commonwealth appealed. The Pennsylvania Superior Court agreed with the trial court—the odor of marijuana does not per se establish probable cause to allow police officers to conduct a warrantless search of a vehicle, Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020). The court remanded the case back to the trial court to reconsider the defendant’s motion to suppress physical evidence.
The Pennsylvania Supreme Court granted certiorari. The appellant argued that the smell alone of marijuana should not be enough to establish probable cause. The appellant acknowledged “that the ‘determination of whether probable cause exists to support a warrantless search or seizure is based on an evaluation of the totality of the circumstances observed by the officer when making the arrest.’”
However, the appellant suggested with the passing of MMA,” the smell of marijuana cannot establish an individualized suspicion of criminal activity. Thus, the appellant maintains, the odor of marijuana should be given no weight at all in determining whether probable cause exists to conduct a warrantless vehicle search.”
The commonwealth disagreed; the MMA did not alter the well-settled totality of the circumstances test utilized to establish probable cause. The commonwealth suggested that the Pennsylvania Superior Court properly concluded that, while the smell of marijuana alone cannot, in and of itself, establish probable cause to support a search in the “post-MMA era,” the odor of marijuana is a relevant factor to consider when examining the totality of the circumstances.”
Baer agreed, there are many circumstances in which marijuana is still illegal, “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.”
The court found that Hicks applies, “like the carrying of a concealed weapon by a licensed individual … it is simply not a crime for an individual to possess or use marijuana if the requirements of the MMA have been satisfied.”
In spite of its finding, 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 and reinstated the trial court’s order to suppress.
Pennsylvania Supreme Court Justices Kevin Dougherty and Sallie Mundy agreed with the majority’s conclusion that the smell of marijuana is a factor to consider under the totality of circumstance when formulating probable cause, but took issue with the majority opinion granting the motion to suppress without remanding to the trial court to considering the totality of the circumstances at the time of the stop in question.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney of Lawrence County. He is the author of “The Executioner’s Toll.” You can follow him on twitter @MatthewTMangino or contact him at firstname.lastname@example.org.
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