By Bella-Serefina Nystrom
The Pennsylvania Supreme Court case, Commonwealth v. Barr, 2021 WL 6136363 (Pa. Dec. 29, 2021), considers the question: “Can the smell of marijuana be the sole probable cause to search a vehicle without a warrant?” This case considers whether searching a vehicle without a warrant is a violation of an individual’s fourth amendment right when such search is premised solely on the smell of marijuana coming from the vehicle. The fourth amendment case law precedent requires the presence of individual suspicion of criminal activity to justify the act of searching a person without a warrant. In Barr, the Pennsylvania Supreme Court agreed with the lower courts in determining that “the smell of marijuana may be a factor, but not a stand-alone one, in determining whether the totality of the circumstances establishes probable cause to permit a police officer to conduct a warrantless search of a vehicle.”
During a late-night routine patrol, Pennsylvania State Trooper Edward Prentice and newly hired State Trooper Danielle Hembach observed a vehicle making a U-turn then “proceed to travel at a fast speed”. Despite not observing any criminal activity, the Troopers proceeded to follow the car and eventually pulled said car over for making a minor vehicle code violation (failing to stop at the solid white stop line on the road at the stop sign that controls the single lane overpass). When approaching this vehicle, Hembach noticed the “burnt smell of marijuana” coming from the vehicle. Officer Prentice approached the vehicle also noticing the smell of burnt marijuana through the open driver side window. The appellant, Timothy Bar, was in the front passenger’s seat with his wife, Terri Barr, driving the vehicle. Luis Monterio was in the back passenger seat. Officer Prentice proceeded to ask Barr to step out of the vehicle to interview her to confirm she was not unlawfully under the influence of marijuana. Barr was initially noncompliant stating, “No one is getting out of this fucking vehicle.” Once backup officers from the Allentown Police Department joined the scene, Barr became more cooperative.
Officer Prentice erroneously stated to Barr and Monterio that because of the court’s decision in Commonwealth v. Gary (Pa. 2014), Prentice was able to search the vehicle without a warrant. However, Officer Prentice was apparently unaware that the Gary case was overturned by Commonwealth v. Alexander, (243 A.3d 177 (Pa. 2020)) in 2020 where the Pa Supreme Court determined that both probable cause and exigent circumstances need to exist in order to justify a warrantless search. At the time of the search the appellant Timothy Barr and Terri Barr both presented their medical marijuana identification cards that permitted them to legally possess and consume medical marijuana. With this information the troopers proceeded to conduct an unwarranted search of the vehicle which was allegedly supported by the smell of marijuana being the single probable cause. Resulting from the search, Heimbach found a plastic baggie of 0.79 grams of marijuana. Noticeably, this bag did not contain any proof that it had been purchased from a dispensary, but an expert witness later testified that he believed such baggies were used at permitted dispensaries. In the search the Troopers found 0.79 grams of marijuana, a handgun wrapped in a jacket, and unused clear plastic baggies typically used for drug distribution. It is also notable to mention that both Trooper Prentice and Trooper Heimbach had incorrect knowledge of how those who had a medical card can consume marijuana. Officer Prentice knew it was legal for medical purposes but unaware of what ways to consume marijuana was legal. Officer Heimbach was unaware leafy marijuana was legal for medical purposes. At the suppression hearing Barr, the appellant, presented testimony from David Gordon M.D. who had recommended Barr for a medical marijuana card. Barr also presented the receipt from a medical marijuana dispensary proving the legal purchase of marijuana flower five days prior to the stop.
Based upon the facts above, the trial court concluded the troopers lacked probable cause to search the vehicle meaning the search was unconstitutional. As a result of the search being deemed unconstitutional the evidence seized was suppressed, and the court dismissed the charge of possession of small amounts of marijuana because the Commonwealth failed to establish a prima facie case in support of that charge. “Prima facie” is a legal claim having enough evidence to proceed to trial or judgment. Because there was not enough evidence the charge was dropped.
In the end, the Supreme Court agreed with the trial court that, though the smell of marijuana does not alone establish probable cause, it is a relevant factor that can contribute to finding a probable cause. Though the smell of marijuana can be a factor it is up to circumstance and observation to determine if the smell of marijuana is one aspect of other potential criminal activities.
In summary, those with medical marijuana cards should treat their cards as they do their state driver’s licenses. Meaning, for one’s own safety and criminal liability it is best to keep the medical marijuana card with you at all times so if you were to be in a similar situation as Barr you would also be able to prove that the marijuana you possess is legal. A medical marijuana user should also, according to Pennsylvania State regulations, always keep the medical marijuana in the same container in which it was purchased along with the receipt to prove such purchase. Pennsylvania patients who are certified to use medical marijuana should stay educated on marijuana laws, regulations, and the court decisions that further interpret them because these laws and interpretations may frequently change as we observed in the present case. The changing regulations and evolving court interpretations coupled with those in law enforcement who may not be up to speed on these changes, are good causes for medical marijuana users to take great care in their strict compliance with the laws.