In the case of Commonwealth of Pennsylvania v. Timothy Oliver Barr, II, the Lehigh County, Pennsylvania trial Judge determined that the state troopers did not possess probable cause to conduct a warrantless search of the subject vehicle based solely on the odor of marijuana emanating from the vehicle. Since the search was considered unlawful, all evidence seized from the search, specifically a small amount of marijuana and a firearm, were unlawfully obtained and therefore not allowed into evidence at trial.
Here is what happened: two state troopers conducted a traffic stop after observing a vehicle failing to stop at a solid while stop line on the road. The troopers approached the vehicle and immediately smelled the odor of burnt marijuana. The driver of the vehicle was a female and the wife of the defendant, Timothy Barr, who was seated in the front passenger seat. One of the troopers advised the occupants of the vehicle that he could search the vehicle, as the odor of marijuana provided them with probable cause to conduct a warrantless search. The defendant presented the trooper with a medical marijuana license. The troopers conducted the probable cause search of the vehicle and they found marijuana, plastic bags, and a handgun. The Commonwealth charged the defendant with Person Not to Possess Firearm, Possession of a Firearm without a license, and Possession of a Small Amount of Marijuana.
As background, the Fourth Amendment of the U.S. Constitution prohibits unreasonable searches and seizures. In order to conduct a warrantless search of a motor vehicle, there must be probable cause. Probable cause can exist when a police officer can articulate a particularized justification based on the totality of the facts and circumstances for believing the individual is engaged in criminal conduct. This standard was used in the case of Commonwealth v. Hicks. The Hicks case held that police officers cannot infer criminal activity merely from an individual’s possession of a concealed firearm in public, as a firearm may lawfully be carried and, alone, is not suggestive of criminal activity. Therefore, the Supreme Court in Hicks found that reasonable suspicion, a lesser standard of probable cause, of criminal activity did not exist to support a warrantless search of a person.
The Court in the Barr case applied these laws to the facts and circumstances and determined that the smell of marijuana is no longer per se indicative of a crime since individuals in Pennsylvania may have a valid medical marijuana card, which permits them to possess and ingest marijuana legally. In other words, if someone has a medical marijuana card, then it is expected that there might be an odor of marijuana emanating from his or her person, clothes, hair, breath, and vehicle.
The prosecution has appealed this ruling, arguing that the search was legal under recent Pennsylvania Supreme Court precedent. However, the prosecution does acknowledge that marijuana odor is an evolving issue in the courts. Other factors to consider in future cases include whether the smell is so overpowering that an officer may conclude that the driver has a quantity of marijuana that exceeds what is allowed. Also, driving under the influence of marijuana is illegal in Pennsylvania, so police are still free to search the car of a driver who shows signs of impairment.
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