The smell of marijuana alone isn’t enough justification for a warrantless search, though it can be considered with other factors to determine probable cause, the Pennsylvania Supreme Court has ruled.
Supreme Court Chief Justice Max Baer wrote in a majority opinion issued Dec. 29 that “the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle but, rather, may be considered as a factor in examining the totality of the circumstances.”
The high court reversed a Superior Court decision in September that vacated an order from the Lehigh County Court of Common Pleas to suppress evidence in the 2019 case of Commonwealth of Pennsylvania v. Timothy Oliver Barr II.
The case involves two state troopers who pulled a vehicle over in Allentown on Nov. 7, 2018, for allegedly failing to stop before a single lane overpass. The officers alleged that when they approached the vehicle with three occupants, they could smell burnt marijuana. Barr and his wife, the front seat passenger, produced state licensed medical marijuana cards, but officers argued the smell of burnt marijuana gave them probable cause to search the vehicle.
During the search, officers discovered an unmarked plastic bag with .79 grams of marijuana, as well as a loaded handgun wrapped up in a coat stuffed under the driver’s seat.
“Notably, at the time of the stop, Trooper (Edward) Prentice was aware that green, leafy marijuana was legal for medical purposes, but he was unsure how a patient was permitted to ingest this product for medical purposes. In addition, Trooper Prentice believed that no smell is produced when a patient utilizes a vaping pen to inhale medical marijuana,” according to the Supreme Court ruling.
“Trooper (Danielle) Heimbach was unaware that green, leafy marijuana was legal for medical purposes. She too was unsure how medical marijuana was ingested.”
It is illegal to smoke marijuana flower in Pennsylvania, but not illegal to vape the same.
The medical doctor who issued the medical marijuana cards, Dr. David Gordon, testified during a a suppression hearing that there is no difference between prescribed medical marijuana and illegal marijuana, and vaping marijuana produces an odor that’s no different than illegally smoked marijuana.
Gordon also noted 143,000 medical marijuana patients in the commonwealth can legally obtain, possess and ingest medical marijuana.
“Based upon these findings of fact, the trial court concluded as a matter of law that the troopers lacked probable cause to search the vehicle and, therefore, that the search was unconstitutional,” according to the Dec. 29 ruling.
Prosecutors appealed the trial court ruling to the Superior Court, which found in September that the trial court did not consider other factors in the case that would have supported probable cause for a search, including the troopers’ training and experience in narcotics investigations, the vehicle traveling in a high crime area, and the behavior and demeanor of the occupants of the vehicle.
The Superior Court ultimately dismissed a marijuana possession charge and vacated the rest of the lower court order and remanded the decision back to Court of Common Pleas for reconsideration.
The Supreme Court granted the defendant’s appeal and heard arguments in October. Justices disagreed that the trial court did not consider the totality of circumstances surrounding the stop, and found the circumstances were not sufficient to justify a warrantless search of the vehicle.
“We reiterate that the record supports the trial court’s conclusion that the troopers searched the car in question based solely on the odor of marijuana coming from it. We further hold that the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle but, rather, may be considered as a factor in examining the totality of the circumstances,” Baer wrote. “Consequently, here, the trial court properly granted appellant’s motion to suppress.
“For these reasons, we vacate the judgement of the Superior Court, reinstate the trial court order granting appellant’s motion to suppress, and remand to the trial court for proceedings that are consistent with this opinion.”
Justices Kevin Dougherty and Sallie Updyke Mundy argued in a dissenting opinion that the Superior Court was correct that the trial court neglected to consider relevant factors in the case, including the vehicle leaving an apartment complex known for stolen gun and drug activity, a “dazed and confused” backseat passenger who did not have a marijuana card, and the argumentative behavior of the other occupants.
“Because these potentially relevant factors were not considered by the trial court in their totality, I agree with the Superior Court that ‘the most prudent course of action is to remand for reconsideration by the trial court under the appropriate standard,’” Dougherty wrote.
See also:
Two Pennsylvania Senators Seek Co-sponsors for Grow-Your-Own-Medical-Marijuana Bill
Pennsylvania Bill Would Bring Farmers, Small Businesses into Cannabis Market
Republican Support Grows for Recreational Cannabis Legalization in Pennsylvania
Bipartisan Cannabis Legalization Bill Emerges in Pennsylvania Senate
Pennsylvania GOP Leader Says Recreational Marijuana Deal Unlikely This Fall
