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Pennsylvania Supreme Court Announces Smell of Marijuana Alone No Longer Establishes Probable Cause to Conduct Warrantless Vehicle Search

by Douglas Ankney

The Supreme Court of Pennsylvania held that the smell of marijuana, by itself, no longer creates probable cause to justify a warrantless search of a vehicle during a traffic stop.

After observing a vehicle fail to come to a complete stop at a stop sign, Pennsylvania State Troopers Edward Prentice and Danielle Heimbach conducted a trafficking stop. Both troopers smelled burnt marijuana as they approached the vehicle. Defendant Timothy Oliver Barr II was in the front passenger’s seat, and his wife, Teri Barr, was in the driver’s seat. Prentice advised the Barrs that because he smelled marijuana, he could conduct a warrantless search of the vehicle. The Barrs then showed their medical marijuana identification cards to Prentice, which authorized them to possess and consume marijuana.

Nevertheless, the troopers searched the vehicle, seizing a loaded firearm, a Ziploc bag containing 0.79 grams of marijuana, and unused Ziploc baggies often used in the sale of marijuana. Police charged Timothy Barr with firearm and drug-related offenses. He moved pretrial to suppress the evidence.

In granting the motion to suppress, the trial court reasoned that based on the passage of the Medical Marijuana Act, 35 P.S. §§ 10231.101 - 10231.2110 (“MMA”) and Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019) (possession of a concealed firearm alone in public isn’t indicative of criminal activity to justify a Terry search), “the smell of burnt or raw marijuana is no longer indicative of an illegal or criminal act.” The trial court found that the troopers conducted the search based solely on the odor of marijuana and explained “as in Hicks where the defendant possessed a valid license to carry a concealed firearm, [Barr] has a valid license to possess and ingest medical marijuana.” The trial court concluded that it was “illogical, impractical, and unreasonable for Trooper Prentice and Trooper Heimbach to have concluded there was criminal activity afoot when [Barr] was able to present them with a valid medical marijuana card which permitted him to possess and ingest marijuana.” The trial court ordered the evidence be suppressed. The Commonwealth appealed.

The Superior Court agreed that with the passage of the MMA, the smell of burnt marijuana, by itself, is no longer sufficient to support probable cause to justify a warrantless search. Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020). However, the odor was one of the factors to be considered in a review of the “totality of the circumstances” applicable in determining whether officers had probable cause to search. Id. The Superior Court stated that the trial court had not given due consideration to other factors, namely, the troopers’ experience and training, their observance of the Barrs’ demeanor, and the fact that the traffic stop occurred in a “high-crime” area. Id. The Superior Court vacated the order granting the suppression motion and remanded to the trial court for reconsideration of those additional factors. The Pennsylvania Supreme Court granted Barr’s petition for further review.

The Court observed that “[b]oth the Fourth Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable searches and seizures by police in areas where individuals have a reasonable expectation of privacy.” Commonwealth v. Loughnane, 173 A.3d 733 (Pa. 2017). While those areas may be lawfully searched if a warrant based upon probable cause is issued by a neutral magistrate, warrantless searches of such areas are presumptively unreasonable. Commonwealth v. McCree, 924 A.2d 621 (Pa. 2007).

However, there are exceptions to the warrant requirement. Commonwealth v. Hernandez, 935 A.2d 1275 (Pa. 2007). Police may search without a warrant if, based on the totality of the circumstances, “police have probable cause where the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution in the belief that an offense has been or is being committed.” Id. Similarly, police may conduct an investigative “stop and frisk” of an individual if they have “reasonable suspicion” that (1) criminal activity is afoot and (2) the person may be armed and dangerous. Terry v. Ohio, 392 U.S. 1 (1968) (known as a “Terry stop”). Because the purpose of a Terry stop is to ensure the safety of officers and other persons, officers may pat search or frisk the person’s outer clothing to detect weapons. Id. For this reason, the reasonable suspicion standard is somewhat less demanding than the probable cause standard. Commonwealth v. Rogers, 849 A.2d 1185 (Pa. 2004).

The Court observed that in Hicks, the defendant was seen carrying a concealed firearm in public. Police officers seized Hicks at gunpoint, removed the firearm from him, and restrained him solely based on his possession of the firearm in public. While removing the firearm, police discovered a small amount of marijuana in the Hicks’ pocket. It was subsequently determined Hicks was licensed to possess and carry the firearm. He was charged with, inter alia, possession of marijuana. The Pennsylvania Supreme Court reversed the denial of Hicks’ motion to suppress, concluding that the totality of the circumstances did not meet the requirements of Terry.

The Hicks Court found “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.” Because hundreds of thousands of Pennsylvanians are licensed to lawfully conceal and carry a firearm, that conduct alone does not give rise to individualized suspicion and is an insufficient basis for reasonable suspicion that criminal activity is afoot. Hicks.

Prior to the passage of the MMA, the odor of burnt marijuana alone could be sufficient to establish probable cause (known as the “plain smell” doctrine). Commonwealth v. Stainbrook, 471 A.2d 1223 (Pa. Super. 1984). The reason was because, under the Controlled Substance, Drug, Device, and Cosmetic Act, 35 P.S. §§ 780.101 - 780.144 (“CSA”), the use of marijuana in Pennsylvania was always—without exception—illegal. But with the passage of the MMA, more than 144,000 Pennsylvanians could now legally possess and ingest medical marijuana. Since there is no difference between the odor of illegal marijuana and legal marijuana, that odor, by itself, cannot support a reasonable suspicion that criminal activity is afoot—much less the more stringent standard of probable cause necessary for a warrantless vehicle search, the Court explained. Thus, the Court held that “the smell of marijuana alone cannot create probable cause to justify a search under the state and federal constitutions.”

The odor of marijuana, however, remains one factor in the review of the totality of the circumstances to determine whether police had probable cause, the Court instructed.

In the instant case, the Court concluded that the record supports the trial court’s finding that the troopers conducted the search based solely on the odor of burnt marijuana. The Court further concluded that the record refutes the Superior Court’s determination that the trial court failed to give due consideration to other relevant factors in the totality of the circumstances analysis. The Court stated that the troopers testified of their training and experience at the suppression hearing; the trial court heard testimony that Barr had initially argued with Heimbach; and there was no evidence that either trooper had observed Barr doing anything suspicious prior to the traffic stop, so the fact that the stop occurred in a “high-crime area” is inconsequential. By granting the suppression motion, the trial court had obviously concluded none of these factors gave rise to probable cause, the Court reasoned. Contrary to the Superior Court’s assessment, the trial court was not obligated to elaborate in detail its reasons for reaching this conclusion, the Court stated.

Accordingly, the Court vacated the judgment of the Superior Court, reinstated the trial court’s order granting the suppression order, and remanded to the trial court for proceedings consistent with the instant opinion. See: Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021). 

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