Pennsylvania Says Legal Medical Marijuana Means Cops Can’t Just Fight Their Way Into Warrantless Searches
from follow-my-snoot-to-deletion-orders-granted! department
Marijuana legalization is changing the equation of probable cause across the country. What was once an easy bust and/or great way to engage in warrantless searches is no longer warranted. A four-legged probable cause – police dogs for drugs – cannot automatically justify a new intrusion by the police. A drug dog trained to detect the scent of now legal drugs is now more of a hindrance than an enabler of warrantless searches.
The other subjective contributor to warrantless searches – “the smell of marijuana” – is no longer an automatic pass for government intrusion. Both factors – dog sniffles and cop sniffles – are almost impossible to dispute, as they rely solely on the officer’s subjective interpretation of animal activity and/or odors in the air. Fortunately, we will see less and less of this dubious “evidence” in the future as marijuana legalization continues across the country.
The Pennsylvania Supreme Court is the latest to rule that the smell of marijuana indicates nothing, let alone justification, for warrantless searches. (via FourthAmendment.com)
This case begins like so many others: with a pretext judgment. Two officers, including one still in training, stopped a car that the gendarmes had decided to follow for dubious reasons. of the decision [PDF]:
Troopers were on routine patrol in a marked police vehicle on Emaus Avenue in the Liberty Park area of the Allentown apartment complex in Allentown, Pennsylvania when, at approximately 12:30 p.m., Trooper Prentice observed a vehicle turn around. Allenbrook Drive, then continue east on Emaus Avenue. Despite the soldiers not observing any criminal activity, Private Prentice decided to follow the vehicle as no other cars were in the vicinity, the vehicle appeared to be traveling at a fast speed and it was past midnight.
Soldiers carried out a traffic stop after the car allegedly “failed to stop” at a white line in front of a stop sign. Cavalier Heimbach (who was training with Cavalier Prentice) approached the car and claimed to smell burning marijuana. Private Prentice claimed to smell both forms of marijuana: burnt and raw. Maybe that soldier shouldn’t have bothered to testify. Here is the court’s footnote:
During the suppression hearing, Private Prentice testified that he smelled both burnt and raw marijuana. However, the trial court found his testimony that he smelled of raw marijuana unbelievable.
The two people in the vehicle presented cards indicating that they were authorized to purchase and use medical marijuana. The two soldiers, who no doubt relied on “training and experience” to justify the stop, seizure and search, were apparently unfamiliar with the specifics of the state’s marijuana laws for medical purposes.
Notably, at the time of the arraignment, Private Prentice knew that green, leafy marijuana was legal for medical purposes, but he did not know how a patient was permitted to ingest this product for medical purposes. Additionally, Trooper Prentice believed that no odor is produced when a patient uses a vape pen to inhale medical marijuana. Private Heimbach did not know that green, leafy marijuana was legal for medical purposes. She too did not know how medical marijuana was ingested.
The search of the car – based on credible and unbelievable marijuana smell testimonies – uncovered “unprosecuted amounts” of raw marijuana on the floor of the vehicle and a Ziploc bag containing less than a gram of grass. The biggest find was the handgun, found rolled up in a jacket stuck halfway under the driver’s seat. This led to the criminal charges which led to this motion to suppress the evidence recovered during this search.
The Supreme Court – like the lower court – concluded that a recent (2019) concealed weapons decision applied to this case. State residents are permitted to legally carry concealed handguns. Thus, the presence of a concealed weapon does not automatically imply illegality. The same goes for marijuana, which can be legally obtained and consumed by state residents with medical marijuana cards, like the two people arrested in this case.
We conclude that MMA [Medical Marijuana Act] makes it very clear that marijuana is no longer illegal per se in this Commonwealth. As a result, the enactment of the MMA eliminated this primary pillar supporting the “ordinary smell” doctrine as applied to the possession or use of marijuana. Indeed, as long as a patient complies with the dictates of the MMA, that person can legally possess and consume various forms of medical marijuana, including the plant itself. Accordingly, the smell of marijuana alone cannot create probable cause warranting a search under the federal and state constitutions.
At best, according to the court, the smell of marijuana can only be one factor in determining probable cause, and a very small one, particularly in cases where those arrested by law enforcement have presented legitimate medical marijuana cards.
Yet, as the Superior Court pointed out, despite the enactment of the MMA, the CSA still makes possession of marijuana illegal for those not qualified under the MMA. Thus, the smell of marijuana can definitely signal the possibility of criminal activity. Given this dichotomy, we conclude that the smell of marijuana may be a factor, but not a stand-alone factor, in assessing the totality of the circumstances for the purpose of determining whether the police had probable cause to conduct a warrantless search.
Officers can no longer follow their noses into warrantless searches…at least not without another indicator of undisputed criminal activity.
Applying this case law to the facts presented, we conclude that while lawful possession of an item by virtue of legislative authority to possess it cannot, in and of itself, permit an officer to infer criminal activity for the purpose of carrying out a Terry’s control, lawful possession of an object under a statutory authorization is by itself insufficient to satisfy the more stringent probable cause requirement of criminal activity required to conduct a warrantless search of a vehicle.
And the proof goes. And, more importantly, the super-subjective “norm” that previously allowed warrantless searches just because a cop said they sensed something was off. No drugged dogs were used in this case, but it’s only a matter of time before state courts address the issue of K-9 units granting permission for searches on the sole based on the detection of a legal substance. Stay tuned!
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Filed Under: 4th Amendment, marijuana, Pennsylvania, warrantless searches