Commonwealth v. Barr

The Pennsylvania Supreme Court held that that “the smell of marijuana may be a factor, but not a stand-alone one, in determining whether the totality of the circumstances established probable cause to permit a police officer to conduct a warrantless search of a vehicle.” Troopers pulled the defendant’s car over. As a trooper approached the defendant’s vehicle, she smelled burnt marijuana. The defendant presented the trooper with a medical marijuana identification card that permitted them to possess and consume medical marijuana pursuant to the Medical Marijuana Act. Nonetheless, the troopers searched the vehicle at that point, which allegedly was supported by probable cause based on the smell of marijuana. As part of the probable cause examination, Trooper Prentice searched the rear of the vehicle and discovered a jacket under the driver’s seat. Inside the coat, the trooper found a handgun. Trooper Prentice suspected that it was the defendant’s jacket and advised his fellow officers to detain all three occupants of the vehicle. A subsequent search of the vehicle’s trunk uncovered a baggie that contained unused clear plastic baggies that were consistent with both general packaging for drug distribution and the particular baggie that contained the marijuana that Trooper Heimbach found between the front passenger seat and the center console. The defendant filed a motion to suppress, and the trial court concluded that the search was unconstitutional. The Superior Court suggested that the trial court did not assess whether the vehicle stop occurred in a high crime area or analyze the defendant’s demeanor during the stop. Consequently, the Superior Court vacated the trial court’s order and remanded for reconsideration of its suppression ruling. The Supreme Court vacated the Superior Court’s order and reinstated the trial court’s order. The Supreme Court ruled 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. In so doing, we emphasize that the realization that a particular factor contributing to probable cause may involve legal conduct does not render consideration of the factor per se impermissible, so long as the factor is considered along with other factors that, in combination, suggest that criminal activity is afoot.” The Court analogized its holding in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), and concluded, “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.”

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