Lehigh County Judge Rules Police Search Prompted By Weed Odor Illegal After Man Presents Medical Marijuana Card

Lehigh County Court of Common Please Judge Maria L. Dantos ruled that a warrantless police search prompted by the smell of marijuana was illegal once the passenger showed his medical marijuana card. On August 2, 2019, Judge Dantos issued an opinion stating that Pennsylvania State Troopers overstepped the law when they searched a vehicle that Timothy O. Barr was passenger in based the smell of marijuana alone, and that the Troopers should have released Barr as soon as he showed them his medical marijuana card.

On November 7, 2018, Barr, who is prescribed medical marijuana for an undisclosed condition, was a passenger in his mother’s car, which was being driven by his wife at the time. At around 12:30 a.m., the Troopers observed the car driven by Mr. Barr’s wife make u-turn out of parking lot and then proceed to a train overpass that narrows so only one vehicle at a time can pass through. The Troopers stated that they observed Mr. Barr’s wife fail to properly stop at the railroad overpass. The Troopers testified that on approaching the vehicle they could smell the odor of both burnt and raw marijuana coming from the car and asked the occupants of the vehicle to get out of the car. (Judge Dantos found the Trooper’s testimony with regards to smelling both burnt and raw marijuana as not credible as one odor would have trumped the other). Mr. Barr refused to exit the vehicle and an argument with the Troupers ensued. A few minutes latter, Allentown Police arrived to back up the Troopers and the occupants of the vehicle exited the car.

The Troopers advised Mr. Barr that they could search the vehicle because the smell of marijuana provided the Troopers probable cause under Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102 (2014) (warrantless search of vehicle allowed as the plain smell of marijuana exiting the vehicle provides probable cause to search). At that time, Mr. Barr presented to the Troopers his medical marijuana identification card that allows him to posses and ingest medical marijuana. Despite this, Troopers conducted a probable cause search of the vehicle based on the odor of marijuana they detected.

The Troopers found less than a gram of marijuana in an unmarked bag inside an unmarked pill bottle, as well as a small amount of marijuana residue in the cabin area. The Troopers also found a loaded handgun wrapped in what the Troopers believed was Mr. Barr’s jacket, tucked behind the driver’s seat. Mr. Barr is prohibited from possessing a firearm due to a prior conviction.

Barr was charged with possessing a small amount of marijuana and two firearms offenses. Judge Dantos concluded, inter alia, that the Troopers did not possess probable cause to conduct a search of the subject vehicle and, therefore the search was illegal. Judge Dantos threw out the marijuana charge and suppressed evidence in the gun counts.

Judge Dantos stated that “it is illogical, impractical, and unreasonable for [the Troopers] to have concluded that there was criminal activity afoot when the Defendant was able to present them with a valid medical marijuana card which permitted him to possess and ingest marijuana.” Judge Dantos further stated “this Court is not willing to make such an irrational leap based on the within facts and circumstances and utilizing commons sense.”

In her opinion, Judge Dantos said “this is not a simple issue of ‘plain smell’ since the legalization of marijuana” and that “the smell of marijuana is no longer per se indicative of a crime.“ The Judge further stated that “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.”

Judge Dantos found there to be a clear disconnect between the medical community and the law enforcement community and further stated that Pennsylvania legislators did not contemplate that people with legal medical marijuana cards would be arrested and prosecuted for possession of marijuana in a package not clearly marked with a dispensary name.

The Lehigh County District Attorney, Jim Martin, has filed an appeal to the Pennsylvania Superior Court. However, if the ruling stands, it is noteworthy decision in that not only undermines the “plain smell” doctrine set forth in Commonwealth v. Gary but it also represents a significant next step in the decriminalization of marijuana. There is some underlying facts that may have contributed to Judge Dantos not finding the Troopers’ testimony credible but Judge Dantos clearly focused on the fact marijuana possession and use is no longer per se criminal.