Pennsylvania Says Legal Medical Marijuana Means Cops Can't Just Sniff Their Way Into Warrantless Searches

from the follow-my-snoot-to-granted-suppression-orders! dept

The legalization of marijuana is changing the probable cause equation all over the nation. What used to be an easy bust and/or a great way to engage in warrantless searches is no longer guaranteed. Probable cause on four legs — police drug dogs — can’t automatically justify further intrusion by police officers. A drug dog trained to detect the odor of now-legal drugs is now more a hindrance than an enabler of warrantless searches.

The other subjective contributor to warrantless searches — “odor of marijuana” — is no longer an automatic pass for government intrusion. Both factors — dogs sniffs and cop sniffs — are almost impossible to challenge, seeing as they rely solely on the officer’s subjective interpretation of animal activity and/or odors in the air. Fortunately, we’ll be seeing less and less of this dubious “evidence” in the future as marijuana legalization continues around the country.

The Supreme Court of Pennsylvania is the latest to declare the odor of marijuana to be indicative of nothing, much less justification for warrantless searches. (via FourthAmendment.com)

This case begins like so many others: with a pretextual stop. Two officers — one still in training — pulled over a car the troopers had decided to follow for dubious reasons. From the decision [PDF]:

The troopers were on routine patrol in a marked police vehicle on Emaus Avenue in the area of the Liberty Park at Allentown apartment complex in Allentown, Pennsylvania, when, at approximately 12:30 a.m., Trooper Prentice observed a vehicle make a U-turn on Allenbrook Drive and then proceed east on Emaus Avenue. Despite the fact that the troopers did not observe any criminal activity, Trooper Prentice decided to follow the vehicle because no other cars were around, the vehicle appeared to be traveling at a fast rate of speed, and it was past midnight.

The troopers performed a traffic stop after the car supposedly “failed to stop” at a white line in front of a stop sign. Trooper Heimbach (who was training with Trooper Prentice) approached the car and claimed to smell burnt marijuana. Trooper Prentice claimed to smell both forms of marijuana: burnt and raw. Maybe this trooper shouldn’t have bothered testifying. Here’s the court’s footnote:

At the suppression hearing, Trooper Prentice testified that he smelled both burnt and raw marijuana. However, the trial court found incredible his testimony that he smelled raw marijuana.

Both people in the vehicle presented cards showing they were permitted to buy and consume medical marijuana. Both troopers, who no doubt relied on “training and experience” to justify the stop, seizure, and search, were apparently unfamiliar with the details of the state’s medical marijuana laws.

Notably, at the time of the stop, Trooper Prentice was aware that green, leafy marijuana was legal for medical purposes, but he was unsure how a patient was permitted to ingest this product for medical purposes. In addition, Trooper Prentice believed that no smell is produced when a patient utilizes a vaping pen to inhale medical marijuana. Trooper Heimbach was unaware that green, leafy marijuana was legal for medical purposes. She too was unsure how medical marijuana was ingested.

The search of the car — predicated on credible and incredible testimony about marijuana odor(s) — uncovered “non-prosecutorial amounts” of raw marijuana on the vehicle’s floor and a Ziploc bag containing less than a gram of weed. The bigger find was the handgun, found rolled up in a jacket stuck halfway under the driver’s seat. This led to the criminal charges that led to this motion to suppress the evidence recovered during this search.

The Supreme Court — like the trial court — found that a recent (2019) decision about concealed weapons applied to this case. Residents of the state are allowed to legally carry concealed handguns. Thus, the presence of a concealed weapon does not automatically infer illegality. The same goes for marijuana, which can be legally obtained and consumed by state residents with medical marijuana cards, like the two people pulled over in this case.

We conclude that the MMA [Medical Marijuana Act] makes abundantly clear that marijuana no longer is per se illegal in this Commonwealth. Accordingly, the enactment of the MMA eliminated this main pillar supporting the “plain smell” doctrine as applied to the possession or use of marijuana. Indeed, so long as a patient complies with the dictates of the MMA, that person can legally possess and consume various forms of medical marijuana, including the plant itself. Accordingly, the smell of marijuana alone cannot create probable cause to justify a search under the state and federal constitutions.

At best, the court says, the odor of marijuana can only be a factor in determining probable cause, and a very weak factor at that, especially in cases where people stopped by law enforcement have presented legitimate medical marijuana cards.

Yet, as the Superior Court highlighted, despite the enactment of the MMA, the CSA still renders possession of marijuana illegal for those not qualified under the MMA. Thus, the smell of marijuana indisputably can still signal the possibility of criminal activity. Given this dichotomy, we conclude that the odor of marijuana may be a factor, but not a standalone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search.

Officers can no longer follow their noses to warrantless searches… at least not without some other indicator of undisputedly criminal activity.

Applying such jurisprudence to the facts presented, we conclude that if lawful possession of an item due to legislative authorization to possess it cannot, in and of itself, permit an officer to infer criminal activity for purposes of effectuating a Terry stop, lawful possession of an item pursuant to legislative authorization is alone insufficient to satisfy the more stringent requirement of probable cause of criminal activity required to conduct a warrantless search of a vehicle.

And away goes the evidence. And, more importantly, away goes the super-subjective “standard” that previously allowed warrantless searches just because a cop said they smelled something. No drug dogs were used in this case, but it’s only a matter of time before the state courts address the issue of K-9 units granting permission for searches based on nothing more than the detection of a legal substance. Stay tuned!

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Comments on “Pennsylvania Says Legal Medical Marijuana Means Cops Can't Just Sniff Their Way Into Warrantless Searches”

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15 Comments
Steve says:

Re: Re:

Greetings my fellow Canuck.

Legal weed across the country is very nice. I once hopped on a plane and flew across the country, all with a bag of weed in my carry-on. At the time it felt very odd.

While I do agree with you that it is nice to have more or less the same rules across the country, I would read up on your provinces cannabis laws. It may save you a headache.

I live in Ontario so this may or may not apply to you. Under the Cannabis Control Act the police can legally search you, your vehicle, and everyone in it, if they have PC or reason to believe there is cannabis within reach of the driver. To the letter of the law you need to have your stuff stashed in the trunk or somewhere not within reach of the driver. Knowledge of this has saved my butt a few times when headed through a RIDE, (a RIDE program is simply DUI checkpoint for our USA friends). In theory if you have a doobie sitting in the cupholder you’ll likely be getting a ticket.

There was a case that came out of SASK where there the police searched a car because they smelt burnt cannabis in the car. The SASK superior court ruled that in theory if the cannabis was burnt there was no more weed. They ruled the search to be a charter violation. Something else to keep in mind as well.

Just a heads up. Hopefully this will save you a ticket in the future.

One of the best lessons someone ever taught me: "Know the game before you play it."

cattress (profile) says:

No DUI?

This will only last until a cop perks up and says they suspect the person was under the influence, had consumed marijuana before operating a vehicle. That’s why they have been fighting for specific physical measurement through some kind of biological sample test, like BAC but for weed. They pretend it’s about getting unsafe drivers off the road, but it’s just more easy busts with charge stacking and punishment enhancements that they can waive around to prove what heros they are.
A few years ago, my 27 year old friend was hit and killed by a 26yr old drunk driver, who wasn’t permitted to drive because of a 2nd DUI prior to killing my friend; he was going well above the speed limit, and didn’t hit the brakes until my friends body had rolled up the windshield into the air. The cops were doing their useless DUI checkpoints that evening. Rifling through people’s cars, demanding ID to find some unfortunate schlep with a warrant, sniffing college girls. Useless. And they will find another way to pretend they aren’t.

This comment has been deemed insightful by the community.
Scary Devil Monastery (profile) says:

"This will only last until a cop perks up and says they suspect the person was under the influence, had consumed marijuana before operating a vehicle."

It still keeps bugging me how this shit keeps happening in the US…because it’s not like we don’t have cops in europe yet the stuff I keep hearing about from the US is right out of anecdotal tales of "That time I went to some third-world hellhole and got shaken down by the local corrupt cops".

It’s as if the US is permanently stuck in a Stephen King novel. And not one of the good ones either.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

It still keeps bugging me how this shit keeps happening in the US

Believe me, this shit bugs a hell of a lot of USAmericans, too.

As for why it keeps happening? The primary reason is power⁠—and specifically, the power of law enforcement to fuck up someone’s entire life, justifiably or not. Those who have that power won’t give it up easily.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

Re: Re: 'Of course I'm anti-crime, that's why I'm going after the cops!'

That’s certainly a good part of it with few people wanting to draw the attention of their local badge-wearing gang of thugs, and the problem only gets worse when you factor in the far too successful tactic of the unions and any politicians looking to score cheap points of painting any politician who might try to crack down on corrupt cops as not being ‘tough on crime’ and/or being ‘pro-criminal’ despite the fact that that’s what those efforts are trying to tackle.

This comment has been deemed insightful by the community.
Wyrm (profile) says:

Re: Re: Re: 'Of course I'm anti-crime, that's why I'm going after the co

Funny how being a "tough on crime" politician must exclude "tough on police crime".

The rhetoric is that being "tough on crime" means you support cops unconditionally, even the criminal ones. Funny, that reminds me of a quote from a dusty old book: "Slaves, obey your masters, even the cruel ones." There might be a reason that the people who love to loudly refer to this book as their "source of morality" are so often the same ones who profess their unconditional love for cops.

This comment has been deemed insightful by the community.
Anonymous Coward says:

What about the gun

The article focuses on the weed, but what about the gun they found?

"… found that a recent (2019) decision about concealed weapons applied to this case. Residents of the state are allowed to legally carry concealed handguns…"

So not only did they make an illegal search over fabricated probable cause, they then made an illegal arrest because they found a perfectly legal gun??

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: What about the gun

And don’t forget – charged them anyway, prosecuted by the DA (instead of dropping the charges) , got definitively told "Hell No" by that court because of already established case law, and yet here we are at an appeal to that case, because quote "an appeal is appropriate because the trial court’s order terminates or substantially handicaps the prosecution"

Sometimes. Just sometimes "You have to stop the Q-tip when there is resistance".

That One Guy (profile) says:

Re: Re: What about the gun

because quote "an appeal is appropriate because the trial court’s order terminates or substantially handicaps the prosecution"

No, I can see that, if police and prosecutors have to actually follow the law and/or only bring charges according to what the law actually says respectively rather than being able to just make shit up that would make their jobs way harder, and we can’t have that now can we?

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