Judge rules ‘plain smell’ of marijuana no longer provides authorities with probable cause to search a vehicle

In a case exposing some confusion regarding the legality of medical marijuana, a Pennsylvania judge issued a notable verdict when she ruled that police cannot legally search a citizen’s car based simply on the odor of marijuana.

On Aug. 2, Judge Maria L. Dantos ruled in favor of Timothy Barr in the Court of Common Pleas of Lehigh County, stating that the “‘plain smell’ of marijuana no longer provides authorities with probable cause to conduct a search of a subject vehicle.'”
       
Last November, Barr, 27, of Germansville, and his wife were pulled over by state troopers when his wife, who was driving, failed to stop at a railroad overpass, according to police.

Once a traffic stop was initiated, the troopers reportedly noticed a “strong odor” of marijuana coming from the vehicle. Although Barr presented the troopers with his medical marijuana card, the troopers claimed the odor legally permitted a search of the vehicle.

During the search, the troopers found less than a gram of marijuana in a pill bottle and a loaded handgun with a bullet in the chamber and four rounds in the magazine. The handgun was wrapped in a jacket and hidden under the driver’s seat. According to court records, Barr is prohibited from possessing a firearm because of a prior conviction.

Barr was charged with possession of “a small amount of marijuana” and also received two firearms charges.

In her ruling, Dantos concluded that because the “plain smell” of marijuana should no longer provide authorities with probable cause, the search of Barr’s vehicle was “unlawful,” and that all evidence confiscated from the vehicle was obtained unlawfully. In effect, Dantos dismissed the marijuana charge and granted Barr’s motion to withhold the evidence of the marijuana and the firearm. She said it was “illogical, impractical, and unreasonable” for the troopers to suspect illegal activity once Barr showed them his medical marijuana card.

The judge said she based her opinion, in part, on the testimony of David Gordon, a medical marijuana expert hired by the defense. According to his testimony, there is no physical difference between medical marijuana and marijuana bought on the street, and that the chemical compound of both drugs is the same. He also stated that he advises all his patients to hold on to their dispensary receipts as evidence.

Prosecutors must now decide whether to move forward with Barr’s case without the evidence, or appeal Dantos’ decision to the state Superior Court. District Attorney Jim Martin said his office is reviewing the opinion and transcripts from a July 17 hearing in the case and has not yet come to a decision about an appeal.

In an opinion drafted last Friday, Dantos wrote about a few important issues that she feels should be addressed regarding medical marijuana.

“Pennsylvania legislators did not contemplate that people with legal medical marijuana cards would be arrested and prosecuted for possession of marijuana in a package that is not clearly marked with a dispensary name on it. Such actions are merely means of hampering the legalization of marijuana for medical purposes,” Dantos wrote.

Dantos also noted that police officers’ confusion over medical marijuana in Barr’s case exemplified a “clear disconnect between the medical community and the law enforcement community” that needs to be addressed.

Court records show that the state trooper who arrested Barr testified that she mistakenly thought dried marijuana was illegal and not used for medical purposes. Marijuana in flower and dry leaf form has been offered at dispensaries since August 2018. Patients are not permitted to smoke dried medical marijuana, but are required to ingest it through a vaping pen, which does  emit an odor.

“The smell of marijuana is no longer per se indicative of a crime. With a valid license, an individual is permitted, and expected, to leave an odor of marijuana emanating from his or her person, clothes, hair, breath, and therefore, his or her vehicle,” Dantos wrote.

If Barr had been behind the wheel, he could have been charged with driving while under the influence of a controlled substance, even with his medical marijuana prescription.

Barr’s lawyer, Joshua Karoly, said this ruling could be the first step in the evolution of a procedural rule that gives police the legal right to search a vehicle based on the odor of drugs alone.

“This case will put a spotlight on the plain smell doctrine in Pennsylvania, which police use far too often to invade citizens’ privacy,” Karoly said.

Karoly also applauded Dantos’ ruling, and said he considers the plain smell doctrine to be unjust.

“The problem is there is no test for it. You can’t sample the air,” he said. “It puts a chilling effect on all citizens’ Fourth Amendment rights.”

Pennsylvania legalized medical marijuana in April 2016, and the state’s first medical marijuana dispensaries opened in February 2018.

Although it is still an emerging market, legal marijuana sales in Pennsylvania yielded more than $133 million last year. The “flower,” or unprocessed cannabis was the top seller at the dozens of state regulated dispensaries. The state has registered and issued cards to more than 140,000 qualified medical marijuana patients and approved over 1,000 prescribing practitioners.