Can the police search the trunk if they smell marijuana coming from a car?
Maybe not. Just recently, the Pennsylvania Superior Court decided the case of Commonwealth v. Scott. The court held that Philadelphia Police Officers did not have probable cause to search the car’s trunk despite the fact that the car smelled like marijuana, police could see marijuana smoke come from the car when they opened the door, and they found a still-burning marijuana blunt in the car. Because the police had found the obvious source of the odor, they did not have probable cause to believe that they would find additional contraband in the trunk. This is an important opinion which provides at least some limitation on the automobile exception, which is the rule that allows police to search a car without a search warrant so long as they have probable cause to do so.
Commonwealth v. Scott
On February 1, 2017, at approximately 10:00 PM Officers Tamamoto and Kerr of the Philadelphia Police were traveling in a marked police car in the vicinity of 5800 North 16th Street in Philadelphia. Per Officer Kerr, this is a high crime area where numerous shootings and robberies have occurred.
On this night, the officers noticed a 2000 Nissan Altima traveling north on North 16th Street with a malfunctioning center brake light. The officers initiated a traffic stop of the car. When the officers stopped the car, the defendant was the only person in it. According to the police, there was a strong odor of burnt marijuana emanating from the vehicle. The officers also stated that there was still marijuana smoke coming from the vehicle. After he was stopped, the defendant allegedly attempted to place a blunt in the center console. The officers claimed to have seen this and ordered the defendant to exit the vehicle. They then performed a Terry frisk of the defendant, but they did not find anything illegal on him. They then put the defendant in the back of their police car without handcuffing him.
The officers then searched the passenger compartment of the defendant’s car. They did not ask for his permission to search the car. In the center console, the officers recovered the blunt that they allegedly saw the defendant place there. In the driver’s side door, the officers found a jar with an orange lid that contained marijuana. The officers also found a black ski mask in the back seat of the car. After searching the passenger compartment, the officers then searched the trunk of the car. Upon searching the trunk, the officers found a loaded .38 caliber revolver wrapped up in clothes. At no point during their investigation did the officers request a drug-sniffing dog to search the defendant’s vehicle.
The defendant was subsequently arrested. He was charged with carrying a firearm without a license, carrying a firearm on the public streets in Philadelphia, possession of a small amount of marijuana, and DUI. The defendant then litigated a motion to suppress the firearm recovered from the trunk of his vehicle. The defendant argued that the officers conducted an illegal, warrantless search of the trunk. The defendant did not contest the recovery of the marijuana.
The trial court granted the motion to suppress. The court determined that the police “failed to articulate any facts that could have given them probable cause to use the key to open the trunk, search the trunk, and then the clothing which contained the firearm at issue in this case.” Thus, the trial court granted the defendant’s motion.
The Commonwealth appealed. The trial court filed a responsive opinion that stated that there was “no credible testimony or other evidence to suggest that it was reasonable for the officers to continue searching the vehicle for drugs after they recovered both the blunt and the jar of marijuana” from the vehicle. The Commonwealth argued on appeal that the automobile exception to the warrant requirement allowed the officers to search the defendant’s entire vehicle and thus the trial court’s decision to grant the defendant’s motion to dismiss was incorrect.
What is the Automobile Exception to the Warrant Requirement?
Both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution prohibits the government from engaging in unreasonable searches and seizures in areas where individuals have a reasonable expectation of privacy. If the police wish to search a place where a person has a reasonable expectation of privacy, then the police must obtain a warrant. However, in Commonwealth v. Gary, a plurality of the Pennsylvania Supreme Court adopted the federal automobile exception to the warrant requirement. This exception provides that the police do not need a search warrant to search a defendant’s automobile. Courts have approved of this exception because of the inherent mobility of automobiles and on the basis that individuals have a reduced expectation of privacy in automobiles. Therefore, if the police find contraband or have probable cause to believe that contraband is in the vehicle, then they may search any part of the vehicle that may contain that contraband.
The problem this poses for defendants is that it is really easy for the police to claim that they smelled marijuana coming from a person or a car, and that accusation is difficult to rebut. Thus, police can stop a car, claim they smelled marijuana, and then typically justify a search of the entire car. Even if they do not find marijuana during the ensuing search, courts will often approve of the search anyway, finding that the odor must have come from smoking in the car at some earlier point in time.
The Superior Court’s Decision
The three-judge panel of the Superior Court affirmed the trial court’s decision in granting the defendant’s motion to suppress. The majority opinion gave great weight to the trial court’s analysis of the officer’s testimony. Specifically, the majority focused on how the officer described that the blunt “was just smoked.” Additionally, per the majority opinion, the record did not provide any other facts that could have supported a belief that additional contraband was located in the trunk. There was no testimony that the driver could access the trunk from the passenger compartment of the vehicle. The officer also did not indicate that he had received any sort of special training to support his belief that additional contraband was located in the trunk. Finally, and most importantly, the majority opinion found that the odor of burnt marijuana and the small amount of contraband recovered from the defendant’s vehicle “did not create a fair probability that the officer could recover additional contraband in the trunk.” Therefore, the trial court’s ruling will stand. It is likely that the Commonwealth will appeal this decision.
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