PA Supreme Court Agrees: Odor of Marijuana Does Not Provide Probable Cause to Search Vehicle

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Barr, holding that the odor of marijuana alone no longer provides the probable cause necessary for the police to search a motor vehicle. Instead, the police may consider the odor of marijuana as a factor in terms of whether they have probable cause, but they may not search a car solely because it smells like marijuana. The Superior Court had previously reached a similar conclusion, and the Supreme Court has now upheld that decision.

The Facts of Barr

In Barr, a Pennsylvania State Police Trooper was training a newly-hired Trooper. The troopers were on routine patrol in Allentown, PA when they saw a vehicle make a U-turn. The U-turn was not illegal, but the troopers decided to follow the vehicle. The vehicle appeared to be speeding and it was past midnight, so the troopers continued to follow it. Eventually, the vehicle failed to properly stop at a stop sign, so the troopers pulled it over. The troopers approached the vehicle, and as they arrived at the window, they smelled the odor of marijuana. The defendant’s wife was the driver of the vehicle, the defendant was in the front passenger seat, and a third gentleman was in the rear passenger seat. He appeared to be drifting in and out of sleep.

After smelling the odor of burnt marijuana, the troopers directed the driver to get out of the car. The defendant began to argue with the troopers and insist that “no one is getting out of this fucking vehicle.” Backup officers from the Allentown Police Department arrived, and the defendant became more cooperative. The trooper then informed the occupants of the vehicle that he was going to search the vehicle due to the odor of marijuana. The driver and the defendant both provided proof that they had medical marijuana prescriptions to the troopers before the troopers conducted the search. By that time, Pennsylvania had in fact legalized medical marijuana.

The troopers believed that medical marijuana could only be consumed through a vape pen which would not produce an odor, and so they searched the car anyway. In the car, they found marijuana and a gun. They arrested the defendant and charged him with possession as well as violations of the uniform firearms act.

The defendant moved to suppress the evidence. At the suppression hearing, he presented an expert witness who testified that medical marijuana smells the same as illegal marijuana and that green, leafy marijuana can be consumed legally by using a vaping pen. The pen would also produce an odor of marijuana. Accordingly, it would not be possible to tell from the odor alone whether the marijuana was legal or illegal. Because marijuana is now potentially legal in Pennsylvania and because the troopers had no other reason for searching the car, the trial court granted the motion to suppress. The court found that the troopers did not have probable cause for the search.

The Superior Court Appeal

The Commonwealth appealed to the Superior Court. The Superior Court agreed that the odor of marijuana alone does not always justify as search, but it found that the trial court should have considered it as a factor in terms of whether or not the search was supported by probable cause. The odor must be considered along with all of the other factual circumstances surrounding the search in order to determine whether the police had probable cause. Therefore, the Superior Court remanded the case with instructions for the trial court to reconsider its ruling and consider all of the factors. The defendant then appealed to the Pennsylvania Supreme Court, and the Court accepted the case.

The Supreme Court’s Ruling

The Pennsylvania Supreme Court reinstated the trial court’s ruling. It found that the police did not have probable cause to search the car based on the odor of marijuana alone. The enactment of the medical marijuana act in Pennsylvania made it so that many people may legally possess marijuana, and there is often no way to tell whether someone possesses marijuana legally or illegally. As marijuana is no longer per se illegal in Pennsylvania, its odor no longer provides probable cause for a search of a vehicle pursuant to the “plain smell” doctrine. Like the Superior Court, the Supreme Court concluded that the odor of marijuana could be a factor in determining whether or not police have probable cause, but the odor alone is not enough. The Supreme Court also agreed with the trial court that the evidence should have been suppressed, so it reversed the Superior Court’s ruling to the extent that the Superior Court had directed the trial court to reconsider in light of its opinion. Accordingly, the evidence will be suppressed, and the Commonwealth will be unable to proceed with the case. It is now established law in Pennsylvania that the odor of marijuana alone does not provide the police with the probable cause necessary for a search.

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