The Pennsylvania Superior Court has decided that the odor of marijuana alone does not give police sufficient probably cause to engage in a warrantless search a vehicle. The decision in Commonwealth v. Barr overturns a 2019 decision by the Lehigh County Court of Common Pleas ruling that a warrantless police search prompted by the smell of marijuana was illegal once the passenger showed his medical marijuana card.
On November 7, 2018, Barr, who was prescribed medical marijuana for an undisclosed condition, was a passenger in his mother’s car, which was being driven by his wife. The police pulled the car over after observing a traffic violation. The police testified that on approaching the vehicle they could smell the odor of marijuana coming from the car and asked the occupants of the vehicle to get out of the car. The police advised Mr. Barr that they could search the vehicle because the smell of marijuana permitted them to engage in a warrantless search of the car pursuant to what was commonly known as the “plain smell doctrine.”
At that time, Mr. Barr presented his medical marijuana identification card that allowed him to possess and ingest medical marijuana. Despite this, the police searched the car and found less than a gram of marijuana in an unmarked bag inside an unmarked pill bottle, as well as a small amount of marijuana residue in the cabin area. Barr was charged with possession of a small amount of marijuana.
The Commonwealth appealed the local court’s ruling that the warrantless police search prompted by the smell of marijuana was illegal once Barr showed his medical marijuana card. The Superior Court agreed with the lower court at least in part.
The Superior Court recalled that the plain smell doctrine upon which the police relied to search the car was predicated upon “marijuana’s distinctive odor and illegal status . . . previously, every instance in which marijuana was detected by smell indicated the commission of a crime.” The passage of the Medical Marijuana Act changed the predicate of the doctrine. A substantial number of Pennsylvania citizens may now possess and consume marijuana legally pursuant to the MMA. The court observed that “soon, hundreds of thousands of Pennsylvanians will become potential lawful sources of that same odor. Thus, the strength of the inference of illegality stemming from the odor of marijuana has necessarily been diminished by the MMA in Pennsylvania.”
Based upon the circumstances that have changed since the plain smell doctrine was first recognized, the court held that “[w]hile the odor of marijuana may contribute to a finding of probable cause, as possession of marijuana remains illegal generally, the odor alone does not imply individualized suspicion of criminal activity, and Appellee’s presentation of an MMA card was at least one factor that tends to undermine the inference of criminality.”
Can the police search your car if they smell marijuana? For now, the answer is “maybe”. The prosecution has appealed this ruling, arguing that the search was legal under recent Pennsylvania Supreme Court precedent. What is clear is that marijuana odor as justification for a warrantless search is an evolving issue in the courts. The Barr decision will place an increased burden on police to observe and note other factors, in addition to the odor of marijuana, at the time of the traffic stop that might serve as sufficient justification for a search.
Other factors to consider in future cases include whether the smell is so overpowering that an officer may conclude that the driver has a quantity of marijuana that exceeds what is allowed. Also, driving under the influence of marijuana is illegal in Pennsylvania, so police are still free to search the car of a driver who shows signs of impairment. To learn more about Pennsylvania criminal law or what to do if you are charged with a crime, call or contact Fiffik Law Group, P.C. at 412.391.1014 to schedule a consultation with an experienced attorney who can provide initial guidance and advice.