Although a Pennsylvania appeals court recently held that the scent of cannabis alone was insufficient to support a finding of probable cause, it did conclude that “it is a factor that can contribute to a finding of probable cause, assuming other circumstances supply more individualized suspicion of criminal activity based on the fact that most citizens cannot legally consume marijuana.”
Thus, while smell alone cannot provide probable cause to search a vehicle in Pennsylvania, it is still a factor in the overall probable cause analysis as most Pennsylvanians are not authorized to consume cannabis.
The Pennsylvania Superior Court’s decision can be seen as a win for medical cannabis users in the state, even if not a total win. What is most important about the decision is the willingness of courts to see that state cannabis legalization laws in the face of the federal Controlled Substances Act (CSA) may alter the traditional probable cause analysis. That is, state legalization laws have changed, or otherwise provide an exception to, the CSA.
Salt-Baked Staff – Matt Crawley
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.
The Court of Appeals of Maryland has also adopted a similar stance to that of the Pennsylvania Superior Court, at least in the context of a search of a person following an arrest.
In Pacheco v. Maryland, a case involving a search of a person incident to arrest, the court concluded that, although an individual’s possession of a cannabis joint along with the odor of cannabis may give officers probable cause to search a vehicle, it does not necessarily give the police the right to arrest the individual and conduct a search incident thereto.
Following up on the Pacheco decision, the court issued an opinion towards the end of this past July that concluded that the odor of cannabis, without more, does not provide law enforcement with probable cause to arrest and perform a warrantless search of a person incident to his or her arrest.
Like the defendant in the Barr case, Rasherd Lewis moved to suppress evidence against him in the trial, which included, among other things, cannabis, that was discovered during a search of his person at a convenience store in downtown Baltimore City. Relying on its earlier holding in Pacheco, the court determined that “more than the odor of marijuana is required for probable cause to arrest a person and conduct a search incident thereto.”
Related Article: The Odor of Probable Cause: Part 3
As a result, the court held that Mr. Lewis was entitled to the suppression of the handgun and other items seized during the search because the arresting officer, at the time he undertook the search, “did not have probable cause to believe that [Mr. Lewis] had committed a felony or was committing a felony or misdemeanor.”
Instead of citing Maryland’s medical cannabis laws as justification for its ruling, the court in the Lewis case relied on Maryland’s decriminalization of ten grams or less of cannabis that was passed into law in 2014. According to the court, because the odor of cannabis alone was insufficient to prove that Mr. Lewis possessed an illegal amount of cannabis (i.e., more than ten grams), law enforcement lacked probable cause to arrest Mr. Lewis and to perform a search incident to such arrest.
