The Odor of Marijuana and Probable Cause

The Odor of Marijuana and Probable Cause for a Warrantless Search

By: Daniel Mudrick, Esquire

With the enactment of the Medical Marijuana Act (MMA) in 2016, which legalized the use and possession of marijuana in limited circumstances, questions have been arisen about the legality of police searches where the odor of marijuana is present. Nowadays, many possess a medical marijuana identification card which allows them to lawfully possess and use marijuana. More frequently, we are being asked if a police officer may search an individual or a vehicle solely because of the smell of marijuana. Well, the Pennsylvania Supreme Court has recently decided such a case.  Here are some things to know:

1. The Odor of Marijuana May be a Factor …

The Pennsylvania Supreme Court recently decided that the smell of marijuana alone cannot create probable cause to justify a warrantless search under the state constitution. In Commonwealth v. Barr, the search of defendant’s vehicle was based solely on the odor of marijuana in the vehicle. Officers stopped the vehicle for a minor traffic violation and smelled marijuana upon approaching the vehicle. A search of the vehicle was conducted which allegedly was supported by probable cause based on the smell of marijuana. It was determined that the Defendant possessed a lawful medical marijuana identification card.

Pursuant to the “Plain Smell” doctrine, the “plain smell” of marijuana alone establishes probable cause due to marijuana’s distinctive odor and its status as an illegal drug. Our Courts have often applied this doctrine when called upon to discern whether police had probable cause to conduct a warrantless search of a vehicle. Essentially, that doctrine provides that, if a police officer smells marijuana in a place where the officer is justified to be, then the odor of marijuana alone may be sufficient to establish probable cause to conduct a search.

However, the “Plain Smell” doctrine, as applied to the possession and use of marijuana, has been impacted by the enactment of the MMA. It is not a crime for an individual to possess or use marijuana if the requirements of the MMA have been satisfied. (However, it is still illegal to “smoke” marijuana under the MMA). The odor of marijuana may be a factor, but not a stand-alone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search.

2. … But Not a Stand-Alone Factor

Ultimately, the Supreme Court concluded that the odor of marijuana may be a factor, but not a stand-alone one, in evaluating the totality of the circumstances for purposes of determining whether police had probable cause to conduct a warrantless search. Thus, the odor of marijuana is a factor to be considered along with other factors, that in combination, suggest that criminal activity may be occurring. In other words, the police should not be permitted to search a vehicle just because they smell marijuana.

If you have questions regarding this issue, or any criminal issue, please contact our attorneys.