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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Filed Under: 4th amendment, marijuana, pennsylvania, warrantless searches
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