Marijuana Smell Doesn’t Give Police Probable Cause to Search

Marijuana Smell Doesn’t Give Police Probable Cause to Search

The Pennsylvania Supreme Court upheld a lower court’s ruling that the smell of marijuana wasn’t enough probable cause to search someone’s vehicle, effectively ending the drug crimes case against a Lehigh County man.

The smell can be one of the factors police use to justify a search but cannot be the only reason. The basis for the ruling is that Pennsylvania legalized medical marijuana in April 2016.

This search by police was deemed unconstitutional by a trial court because it was based solely on the smell of cannabis. The evidence the police procured could not be used in the trial and the small amount of cannabis charge was dismissed. That ruling was upheld by the state Supreme Court in a 5-2 decision.

The court said a state police search of a vehicle in Allentown three years ago was conducted only because the troopers smelled marijuana.

Background of the Marijuana Case

State troopers in Allentown pulled over a vehicle on Nov. 7, 2018, after it had failed to stop at a solid white line before a train overpass. The troopers smelled burned marijuana through a window, causing them to search the vehicle. In the search, the police found a plastic bag with less than 1 gram of marijuana. The couple in the car produced medical marijuana cards, but the bag had no barcode or other markings that it was purchased from a dispensary. A loaded handgun from beneath the driver’s seat was also recovered.

At the criminal trial, the court ruled that the search was unconstitutional, making any evidence found in the search inadmissible. The marijuana possession charge was dismissed.

Original Ruling Appealed

An appeals court reversed the decision of the trial court. Ultimately, the case came before the state’s Supreme Court.

In a brief, the prosecutors had argued that most marijuana use is still illegal. The odor of marijuana “has not lost its ‘incriminating’ smell by virtue of its legality for some.” Only medical marijuana cardholders can legally possess the drug.

The Supreme Court upheld the trial court’s determination in a 5-2 vote and reinstated the order suppressing the evidence. The majority ruled that law enforcement cannot infer criminal activity from the odor of marijuana because the possession of medical cannabis by authorized patients is legal under state law.

The majority opinion, written by Chief Justice Max Baer, was released on Dec. 30. He was joined by Justices Thomas Saylor, Debra Todd, Christine Donohue, and David Wecht. Justices Kevin Dougherty and Sallie Updyke Mundy dissented. The dissenting opinion, written by Justice Dougherty, noted the marijuana in packaging not provided by a licensed dispensary could establish probable cause.

Marijuana Laws Evolve Around the Country

Pennsylvania is not the only state where the odor of pot isn’t sufficient cause to search someone’s vehicle. Illinois, Maryland, Massachusetts, and Vermont are among the states who have limited the ability to search a person or vehicle based on smell alone.

With drug laws and their applications changing, having an attorney who stays up to date is critical to your defense.

At Scaringi Law, we provide aggressive defense against marijuana and other drug charges on the state and federal levels. We have six locations throughout central Pennsylvania. Our clients benefit from our team approach to every case. Our 11 attorneys collaborate to appropriately handle any legal issue that may arise.

If you are facing drug charges, contact us as soon as possible. Your first consultation is free. Schedule an appointment by calling (717) 775-7195 or submitting our online form.


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