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Marijuana Smell, Alone, Insufficient for Warrantless Search: Supreme Court of Pennsylvania

Because marijuana use is legal in PA for certain individuals under the Medical Marijuana Act (MMA), the smell of it, per se (in of itself), is not sufficient to establish probable cause to conduct a warrantless search.

Commonwealth v. Barr, No. 28 MAP 2021, Pa. (Dec. 29, 2021)

Brief History Leading Up to This Ruling

Prior to the effective date (May 2016) of the Medical Marijuana Act (MMA), it was illegal for any person in Pennsylvania to possess even small amounts of marijuana. Therefore, the unique scent of it alone was indicative that a crime had been or was being committed.

Resultantly, Pennsylvania law applied the “plain smell” doctrine which deemed the smell of marijuana sufficient to establish probable cause to conduct a warrantless search, as long as the police officer who smelled the marijuana was in a place where he or she was justified to be.

This meant that if a police officer detected the odor of marijuana during a traffic stop, he or she could search the vehicle without a warrant, and any evidence of drug use or of any other crime was deemed legally obtained.

Commonwealth v. Barr Decision (Dec. 29, 2021)

In a decision decided Dec. 29, 2021 (Commonwealth v. Barr, No. 28 MAP 2021, Pa.), the Supreme Court of Pennsylvania explored the legality of the “plain smell” doctrine in light of the Medical Marijuana Act (MMA) of 2016.

In its analysis, the Court explored the case of Commonwealth v. Hicks, 208 A.3d 916 (2019), which although didn’t involve marijuana, did involve a similar matter of legality.

In Hicks, an individual was restrained by police based solely upon his possession of a concealed firearm in public. Despite later learning that the individual was licensed to carry and possess this firearm, police charged him with DUI after smelling alcohol on his breath.

Although he was convicted of DUI, this conviction was ultimately reversed by the Supreme Court of Pennsylvania in 2021, which 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.”

The Supreme Court Applies the Reasoning in Hicks to the Barr Case

In Hicks the Supreme Court found that a person’s carrying a concealed firearm in public is an insufficient basis for reasonable suspicion that criminal activity is afoot because it is not a criminal offense for a license holder to carry a concealed firearm in public.

In applying this reasoning to a person suspected of possessing or smoking marijuana based upon smell alone, and with respect to reasonable suspicion versus probable cause, the Court stated:

“Applying such jurisprudence to the facts presented [in Barr], we conclude that if lawful possession of an item due to legislative authorization to possess it cannot, in and of itself, permit an officer to infer criminal activity for purposes of effectuating a Terry stop, lawful possession of an item pursuant to legislative authorization is alone insufficient to satisfy the more stringent requirement of probable cause of criminal activity required to conduct a warrantless search of a vehicle.

Final Ruling

In reversing the opinion of the Pennsylvania Superior Court (decided September 25, 2020), the Pennsylvania Supreme Court in Barr (decided December 29, 2021) concluded:

“… the odor of marijuana may be a factor, but not a stand-alone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search.”

This means that marijuana smell can be a factor in a police officer’s assessing probable cause, but not the only one.

How This Ruling Can Help You

For certain individuals in PA whose cases involved a warrantless search based upon the smell of marijuana, the ruling in Carr could provide legal relief.

Please contact a Pittsburgh criminal defense lawyer at Shrager Defense Attorneys for a free analysis as to whether you are eligible to receive relief based upon this Supreme Court ruling.

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