On Dec. 29, Pennsylvania's highest court confirmed a decision by a trial court that said the smell of cannabis cannot be the sole basis of a warrantless search by police officers. The State Supreme Court said law enforcement can use the smell of marijuana as part of the justification for a search, but it can’t be the only reason.
The decision stemmed from an incident in 2018 in which a driver in Allentown was pulled over after Pennsylvania state troopers who say they observed them failing to stop at a solid white line before an overpass. Then a trooper smelled the odor of burnt marijuana through the open window of the vehicle, wrote Chief Justice Max Baer in the majority opinion
. Police then searched the vehicle and found a plastic bag with less than one gram of cannabis next to the front center console, with no markings that would have indicated it was purchased from a medical cannabis dispensary
. Medical cannabis is legal in Pennsylvania, but not recreational
This search by police was deemed unconstitutional by a trial court based it was 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.
“We reiterate that the record supports the trial court’s conclusion that the troopers searched the car in question based solely on the odor of marijuana coming from it,” wrote Baer in the majority opinion. “We further hold that the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle but, rather, may be considered as a factor in examining the totality of the circumstances.”
The prosecutors — the Lehigh County District Attorney, in this case — had argued unsuccessfully that the smell of cannabis “has not lost its ‘incriminating’ smell by virtue of its legality for some,” referencing the state’s medical cannabis law, according to the Associated Press
That argument was rejected by Supreme Court justices. Baer was joined by Justices Debra Todd, Christine Donohue, and David N. Wecht. Justice Thomas G. Saylor wrote a concurring opinion.
Justices Kevin M. Dougherty filed a dissenting opinion
and was joined by Justice Sallie Updyke Mundy, with Dougherty writing: “Notwithstanding the legalization of medical marijuana for qualified patients, there are still several ways in which the smell of marijuana can combine with other factors to supply probable cause for a search. One is that an officer who smells marijuana may also discover evidence of a violation of the [Pennsylvania medical cannabis law], which, in turn, may establish probable cause to believe a crime has been committed.”