Pot Odor Does Not Justify Warrantless Search, Court Rules

(PatriotWise.com)- On Wednesday, the Pennsylvania Supreme Court ruled that while the smell of marijuana can be a factor in justifying a warrantless search, it cannot be the sole basis for it.

The case involved a warrantless search of a vehicle by state police in Allentown three years ago in which troopers conducted the search after smelling marijuana coming from inside. Troopers pulled over the vehicle after it failed to stop at a solid white line before an overpass. They smelled burning marijuana through the window and searched the vehicle, finding a plastic bag with less than 1 gram of pot next to the front center console. The bag had no markings indicating it came from a legal dispensary. In the course of the search, the troopers also recovered a loaded gun beneath the driver’s seat.

The defendant, Timothy Oliver Barr II, and his wife who was behind the wheel produced medical marijuana cards.

The trial court determined the search unconstitutional and ruled all the evidence obtained through the search inadmissible. The marijuana possession charge was dismissed.

The majority on the Pennsylvania Supreme Court determined that there was sufficient grounds to support the trial judge’s ruling that the state troopers searched the vehicle solely based on smelling marijuana through the window. The majority reinstated the order suppressing the evidence.

Writing for the majority, Chief Justice Max Baer said the smell of marijuana does not amount to probable cause, however, it can be considered as a factor in examining “the totality of the circumstances.”

In a separate opinion, Justice Kevin Dougherty noted that the marijuana recovered in the search was not contained in packaging that is provided by a licensed dispensary. If the law enforcement officer who smells the marijuana also sees the packaging from which it came, Dougherty argued, “that could be enough to establish probable cause.”