By now, we have all heard a story about a traffic stop that led to an arrest for cannabis possession that started by a police officer stating, “I smell marijuana.” Under what is generally known as the “plain smell” doctrine, courts across the country have historically found that the odor of cannabis justifies the warrantless search of a vehicle. However, with cannabis legalization on the rise in America (including the federal legalization of hemp), is scent alone still sufficient to trigger probable cause to search a vehicle?
The Fourth Amendment and Exceptions to the Warrant Requirement
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. A warrantless search is considered per se unreasonable, and therefore presumptively violates the Fourth Amendment, unless it comes within one of the recognized exceptions to the warrant requirement.
Exceptions to the warrant requirement include exigent circumstances (i.e., threat of bodily harm, destruction of evidence, an escaping suspect, or some other consequence that would improperly frustrate legitimate law enforcement efforts), or items in plain view, which also encompasses the aforementioned plain smell doctrine. Courts have also recognized an exception for searches of motor vehicles.
Salt-Baked Staff – Matt Crawley
Drugs dogs have been trained to find the terpene, Myrcene, to locate cannabis. Terpenes are hydrocarbons, a chemical compound consisting of hydrogen and carbon located within the plant material. Terpenes are found in virtually every plant, and are what gives them their individual smells and tastes. Over 20,000 have been discovered and catalogued in nature.
Under the motor vehicle exception, a warrantless search of a vehicle is permitted when an officer has probable cause to believe the vehicle contains contraband or other evidence of a crime. Such probable cause, at least in the context of cannabis, usually comes from a purported claim that the officer can smell the odor of cannabis emanating from inside the vehicle.
Such claims by law enforcement have routinely been upheld under the so-called plain smell doctrine by courts at all levels across this country for decades in order to justify warrantless searches of vehicles. This has been the law in Utah since at least 1992. This has also been the law federally since 1948 (albeit in the broader context of illegal narcotics, generally).
Related Article: The Odor of Probable Cause: Part 2
The Odor of Cannabis Alone Does Not Justify the Warrantless Search of a Vehicle
Despite the fact that the majority of courts have sustained warrantless searches upon an officer’s sense of smell alone, not all courts have come to that same conclusion. In an opinion issued near the end of September, the Pennsylvania Superior Court held in Commonwealth v. Barr that the scent of cannabis alone did not per se establish probable cause to conduct a warrantless search of a vehicle.
In that case, the defendant, Timothy Oliver Barr II, was arrested and charged with two firearms violations and possession of a small amount of cannabis following a warrant search of Mr. Barr’s vehicle in conjunction with a routine traffic stop. In response to the charges, Mr. Barr filed a motion to suppress challenging the search of his vehicle.
The trial court granted the motion, ruling that the odor of cannabis no longer provides police with probable cause to search a motor vehicle from which the odor emanates because a substantial number of Pennsylvania citizens can now consume marijuana legally. By its ruling, the trial court called directly into question the continued validity of the plain smell doctrine. Unsatisfied with the ruling, the Commonwealth of Pennsylvania appealed.
In its briefing to the court, the Commonwealth argued that it has long been the case that the odor of cannabis alone is sufficient to demonstrate probable cause to search a vehicle in Pennsylvania. According to the Commonwealth, contrary to the conclusions of the trial court, nothing about the passage of Pennsylvania’s Medical Marijuana Act (MMA) changed the long-held rule.
Salt-Baked Staff – Matt Crawley
Terpenes are fragrant oils located within the trichomes of cannabis. Trichomes are the resin glands of the cannabis plant that contain THC, CBD, CBN and other active medicinal cannabinoids. They appear as the “frosty” mushroom-like crystals that everyone loves to see on their flower.
By rejecting the Commonwealth’s arguments, the Pennsylvania Superior Court noted that prior cases did not in fact establish that the scent of cannabis alone was “always” sufficient to establish probable cause. Nevertheless, the court did admit that in prior cases the odor of cannabis alone was “almost always controlling” in “the prior factual context of the substance’s universal illegality.”
Turning to the impact that Pennsylvania’s passage of the MMA had on prior precedent, the court concluded that the law’s passage “altered the underlying factual context in which [the test] for probable cause … applies.” Or, in other words, the fact that cannabis had been legalized medically for a portion of the population changed how courts should look at the probable cause analysis. As set forth by the court:
This much is true: marijuana is a prohibited substance under the CSA, despite the passage of the MMA. However, it is undisputed that a substantial number of Pennsylvania citizens may now possess and consume marijuana legally pursuant to the MMA. Previously, every instance in which marijuana was detected by smell indicated the commission of a crime. Soon, hundreds of thousands of Pennsylvanians will become potential lawful sources of that same odor. Thus, the strength of the inference of illegality stemming from the odor of marijuana has necessarily been diminished by the MMA in Pennsylvania.
It does not follow that the odor of marijuana is always sufficient to establish probable cause, or, relatedly, that the MMA is irrelevant to the test for probable cause. It would strain credulity to think the legislature intended that all medical marijuana users under the MMA—hundreds of thousands of Pennsylvanians already—may be presumptively subjected to searches by law enforcement due to the odor of marijuana alone. However, we need not read into the intent of the legislature here, because there is no statutory question before us. Lawful users of medical marijuana do not surrender their 4th Amendment rights merely because other citizens will continue to possess contraband marijuana in contravention of the CSA. The MMA has altered the fact of marijuana’s previously universal illegality….
Tune in tomorrow for The Odor of Probable Cause Part 2: The Odor of Cannabis Alone Does Not Justify the Warrantless Search of a Person.
