The smell of marijuana can be one factor police use to justify a search without a warrant. But it can’t be the sole basis for it, the Pennsylvania Supreme Court ruled Wednesday.
The court said a 2018 state police search of a vehicle in Allentown was conducted only because the troopers smelled weed, reports NBC Philadelphia.
“The odor of marijuana alone does not amount to probable cause to conduct a warrantless search of the vehicle but, rather, may be considered as a factor in examining the totality of the circumstances,” wrote Chief Justice Max Baer for the majority.
Troopers pulled over the vehicle after it had failed to stop at a solid white line before an overpass. They then smelled burned marijuana through a window, Baer recounted.
Husband, Wife Both Had Pennsylvania Medical Marijuana Cards
Police found a plastic bag with less than 1 gram of Cannabis next to the front center console. It had no markings from a dispensary. They also recovered a loaded handgun from beneath the driver’s seat.
The defendant, Timothy Oliver Barr II, and the driver, his wife, produced medical marijuana cards.
The trial court ruled the search unconstitutional. It said the evidence produced was inadmissible in court. And it dismissed the charge of possession of a small amount of marijuana.
The Lehigh County DA’s office had argued that the herb remains illegal for most in Pennsylvania. This is even though medical marijuana cardholders can legally possess it. Prosecutors claimed the odor “has not lost its ‘incriminating’ smell by virtue of its legality for some.”
They argued that’s because it’s illegal for most.
Search Based Solely On Smell
The Supreme Court majority said there was sufficient grounds to support the trial judge’s determination that the troopers searched the vehicle based solely on smell. The majority reinstated the order suppressing the evidence.
In a separate opinion, Justice Kevin Dougherty kvetched that the marijuana recovered in the search was not in packaging provided by a licensed dispensary.
“Where an officer who smells marijuana also observes its packaging (or lack thereof) and there is no barcode or other identifying information that typically appears on the original packaging from a dispensary, that could be enough to establish probable cause,” Dougherty wrote.
