Despite Partial Decriminalization, Marijuana Possession Provides Philadelphia Police Authority to Arrest and Search

Observing or Smelling Marijuana Often Gives Police Probable Cause to Search

As a general rule, both state and federal prosecutors may not use illegally obtained evidence against a defendant in a criminal trial. There are exceptions, but if the police search a defendant illegally and recover drugs, guns, or other contraband, the evidence may not be used in court. The defense may move to exclude the illegally seized evidence by filing a motion to suppress. Once the defendant moves to suppress the evidence, the court will hold an evidentiary hearing, and the Commonwealth must show that that the police obtained the evidence pursuant to a lawful search and seizure. In a recent case from the Superior Court, Commonwealth v. Edward Young, the Superior Court held that the trial court erred in suppressing a gun and marijuana because Philadelphia police officers were free to conduct a full search of the defendant after the defendant admitted that he had marijuana on him.

Commonwealth v. Young

In Young, plain clothes officers were patrolling what they described as a high crime area in Philadelphia. They observed the defendant standing outside of a corner store. When officers returned an hour later, they saw that the defendant was still standing in front of the store despite the fact that it was raining. The three officers got out of their unmarked car and approached the defendant. They identified themselves as police officers and asked him what he was doing. He told them he was waiting for a bus, and one of the officers then asked the defendant if he had anything on him which could harm the officers. The defendant responded that he did not have anything that could harm the officers, but he did have “two bags of weed.”

After the defendant admitted to possessing marijuana, the officers went into the defendant’s pockets and found both a gun and a small amount of marijuana. The defendant moved to suppress the gun and marijuana, and the trial court granted the motion to suppress. The court found that the police had conducted an investigatory detention (“Terry stop”) which required them to have probable cause. Although it was a little fishy that the defendant would stand outside in the rain and claim to be waiting for the bus for over an hour, it did not actually establish that the defendant was engaged in criminal activity. Therefore, the trial court found that the police had conducted an illegal stop when three officers identified themselves as police and demanded to know if the defendant had any weapons on him. Accordingly, the trial court suppressed the evidence. 

The Commonwealth appealed the trial court’s ruling to the Superior Court, and the Superior Court reversed. The Superior Court noted that there are three different legal standards which govern encounters between pedestrians and police officers. The court held that because police had only asked two questions of the defendant, they had simply engaged in a mere encounter which did not require them to have reasonable suspicion prior to interacting with the defendant. Further, once the defendant voluntarily admitted to having marijuana, the police had full probable cause to conduct a search of the defendant and recover the gun. 


The Superior Court explained that under the Pennsylvania and United States constitutions, there are three legal standards which govern interactions between the police and pedestrians. First, police may always engage in a mere encounter with a person on the street. This means that even if they have not seen someone do anything illegal, police officers may approach a person, ask them some questions, and attempt to have a conversation with the person. The police may do that even if they suspect the person is engaged in criminal activity without any solid basis for that belief. If the subject of the mere encounter volunteers something incriminating or hands over contraband, then that evidence may be used in court. Here, the Superior Court rejected the trial court's reasoning that the fact that there were three officers involved and that they immediately asked about weapons converted the interaction into something more than a mere encounter.

Second, police may conduct a Terry stop and frisk when they have reasonable suspicion. Police officers have reasonable suspicion when they can state specific, articulable facts which lead them to believe that criminal activity may be ongoing. Reasonable suspicion is a fairly low standard, but it requires a showing that the police had more than just a hunch that the suspect was involved in a crime. If police have reasonable suspicion, then they may conduct a stop of a person in which that person is not free to leave or disengage from the interaction. In some cases, the police may also conduct a frisk of the suspect. However, in order to properly conduct a frisk, the police must have not only reasonable suspicion of criminal activity, but also reasonable suspicion that the person is armed and dangerous. Even then, the frisk is limited to a pat down of the person’s outer clothing. The officers may pat the suspect down and feel for weapons, but they may not go into the person’s pockets or manipulate or squeeze any bulges. Further, a Terry stop must be limited and brief or it could escalate into the equivalent of an arrest.

An arrest or its equivalent requires the police to have probable cause. A stop becomes an arrest or its equivalent when a reasonable person would believe that they were under arrest. Important factors in evaluating whether a stop was the equivalent of an arrest may include whether police use handcuffs, provide Miranda warnings, point their guns at the person, transport the person in the patrol car or require them to go to the police station, and the number of officers involved in the encounter. If a police encounter rises to the level of an arrest, then the police must have probable cause that the defendant committed a crime. Probable cause requires a showing that it was more likely than not that the defendant committed a crime. If the police have probable cause, then they may fully arrest the defendant. They may also conduct a search incident to arrest, meaning they may conduct a full search of the defendant.  

In Young, the Superior Court held that the police had not exceeded the scope of a mere encounter when they simply approached the defendant, asked him what he was doing, and asked if he had any weapons on him. The police are always free to walk up to someone and ask the person some questions. Then, once the defendant admitted to having marijuana on him, the police were free to conduct a full search of the defendant because they had probable cause to make an arrest. Once they had probable cause to make an arrest, they were legally authorized to conduct a full search incident to arrest. Therefore, the police did not do anything illegal in finding the gun. The police did not surround the defendant or indicate that they were going to search him; thus, they did not do anything that made the interaction into something more than a mere encounter. 


It is important to note that police still had probable cause to arrest and search the defendant despite Philadelphia’s recent city ordinances providing police with the authority to issue citations for marijuana possession instead of making arrests. Although the police do not arrest most people who are caught with 30 grams of marijuana or less, possession of even a small amount of marijuana remains a crime under both state and federal law. Therefore, the police still have the discretion to make an arrest, which gives them the authority to conduct a full search of someone who admits to possessing marijuana.

Award-Winning Philadelphia Criminal Defense Attorneys

Philadelphia Marijuana Lawyers

Philadelphia Marijuana Lawyers

If you are facing criminal charges for drugs, guns, or other contraband, our Philadelphia criminal defense lawyers can help. We have won countless motions to suppress in the Philadelphia Municipal Court, Court of Common Pleas, and in the surrounding counties. Call 267-225-2545 for a free criminal defense strategy session.