PA: Smell of burnt marijuana during a traffic stop is not PC to search the trunk of the car

The smell of burnt marijuana during a traffic stop is not probable cause to search the trunk of the car. Commonwealth v. Scott, 2019 PA Super 154, 2019 Pa. Super. LEXIS 459 (May 10, 2019):

We agree that Officer Kerr did not establish sufficient probable cause to continue to search trunk of Appellee’s vehicle. See Manuel, 194 A.3d at 1081. We emphasize the officer’s testimony that the blunt “was just smoked,” and “[t]he smell wasn’t going to go away.” See N.T. Suppression Hr’g at 15. Here, the lingering odor of burnt marijuana was consistent with the contraband that the officer observed in plain view. Compare Stoner, 344 A.2d at 635 (holding that probable cause supported the officer’s search of the trunk of the defendant’s vehicle where the officer noted a very strong odor of freshly cut marijuana, he observed marijuana seeds and leaves in the passenger compartment, and he was certain that the odor was too strong to be coming from the marijuana that was in plain view).

Further, the record does not provide any other facts that could have supported a belief that additional contraband was located in the trunk. The officer did not testify that Appellee fidgeted or displayed nervous behavior. Rather, the officer’s only testimony about Appellee’s demeanor was that he looked “like a deer in headlights” and “appeared like he didn’t know what to do. …” See N.T. Suppression Hr’g at 15. In the context of a traffic stop, such a demeanor is not unusual. See Commonwealth v. Cartagena, 63 A.3d 294, 305 (Pa. Super. 2013) (en banc) (explaining, “It is the rare person who is not agitated to some extent when stopped by police, even if the driver is a law-abiding citizen who simply failed to notice or repair a broken taillight ….”).