PA addresses smell of MJ in a new MMJ state: it’s a factor in RS, and not determinative of RS or PC

Under the Pennsylvania Medical Marijuana Act, the smell of marijuana is only a factor in reasonable suspicion for a detention or probable cause for a search since many Pennsylvanians can now legally possess. There is no per se rule. Presentation of a MM card is a significant factor. Commonwealth v. Barr, 2020 Pa. Super. LEXIS 826 (Sept. 25, 2020):

Thus, contrary to the Commonwealth’s claim, there is no preexisting, per se rule that the odor of marijuana is always sufficient to establish probable cause to believe a crime is being committed. Rather, the existing rule, properly stated, is that the odor of marijuana may alone be sufficient to establish probable cause to search in particular factual contexts. In practical terms, historically, the circumstances wherein the odor of marijuana would not alone be sufficient to establish probable cause were necessarily rare or even nonexistent when marijuana was, in all or virtually all circumstances, illegal to possess. To the extent that the Commonwealth suggests a per se rule existed prior to, much less survived the MMA, and that the trial court erred by failing to mechanically follow that rule once it deemed credible that the odor had been detected by the police, we deem that aspect of its claim to be meritless. The trial court was free to weigh the inference of criminality implied by the odor of marijuana against other relevant facts known to the officers in determining whether they possessed probable cause to conduct the search.

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We conclude, therefore, that the post-MMA cases cited by the Commonwealth do not control our decision and, consequently, we consider the question before us in the first instance. The Commonwealth contends that the MMA did not make marijuana presumptively legal, and that it remains presumptively illegal, despite the MMA. As a factual matter, the trial court credited expert testimony that there is no distinction between legal medical marijuana and contraband marijuana that can be detected through odor alone. See TCO at 7. Nevertheless, the Commonwealth maintains that all marijuana remains presumptively illegal, and that medical marijuana exists only as a limited exception to the CSA. As far as the Commonwealth asserts that the MMA is a limited exception to the CSA, we agree. See Batista, 219 A.3d at 1205. 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, and probable cause is a fact-driven standard “not readily, or even usefully, reduced to a neat set of legal rules.” Glass, 754 A.2d at 663. Thus, we conclude that the trial court did not err in merely considering the passage of the MMA as a relevant fact in its probable cause analysis. The question remains, however, whether the lower court abused its discretion in concluding that the odor of marijuana cannot contribute to a finding of probable cause in the post-MMA environment.

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Here, ‘many people’ are licensed to consume marijuana under the MMA, and ‘violate no law’ by doing so. The odor of marijuana alone, absent any other circumstances, cannot provide individualized suspicion of criminal activity when hundreds of thousands of Pennsylvanians can lawfully produce that odor. What it does provide to police is a general, probabilistic suspicion of criminal activity based on the fact that most citizens cannot legally consume marijuana. Thus, it is a factor that can contribute to a finding of probable cause, consistent with prior precedent discussed above, assuming some other circumstances supply more individualized suspicion that the activity is criminal. This does not imply a change in the probable cause test, because, previously, the possession of marijuana was universally illegal. That universal factual circumstance established particularized suspicion of criminal activity, because every instance of possession of marijuana was previously a crime. However, here, the trial court afforded the odor of marijuana no weight in its determination that police lacked probable cause to search Appellee’s vehicle. That extreme view is not justified by the Hicks decision. The general illegality of marijuana under the CSA cannot simply be ignored merely because it is lawfully used in limited circumstances under the MMA and, thus, we must reject the trial court’s conclusion that the odor of marijuana provides no indication of criminal activity. At the same time, those who act in compliance with the MMA should not be subjected to searches based solely on a generalized suspicion that is provided by that odor when the 4th Amendment also requires particularized suspicion.

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In sum, the factual record before us is inadequate to conclude whether police possessed probable cause to search Appellee’s vehicle. While the odor of marijuana may contribute to a finding of probable cause, as possession of marijuana remains illegal generally, the odor alone does not imply individualized suspicion of criminal activity, and Appellee’s presentation of an MMA card was at least one factor that tends to undermine the inference of criminality. However, other potentially relevant factors were not considered by the trial court, and the court’s credibility assessments of the testimony ostensibly establishing those factors are not in the record. Thus, the most prudent course of action is to remand for reconsideration by the trial court under the appropriate standard.

Accordingly, we conclude that we must vacate the order granting suppression and remand for reconsideration of that motion by the trial court given the deficiencies in the court’s opinion identified herein. We instruct the court that while it is not compelled by case law to find that probable cause exists solely on the basis of the odor of marijuana, that fact may, in the totality of the circumstances, still contribute to a finding of probable cause to believe the marijuana detected by the odor was possessed illegally. The court may consider Appellee’s presentation of an MMA card as a factor that weighs against a finding of probable cause, as it provides at least some evidence tending to suggest the marijuana in question was possessed legally. However, the court must also consider (or explain why it need not consider) the other factors suggested by the Commonwealth as contributing to a finding of probable cause, such as Appellee’s statements and demeanor during the stop, as well as the nature of the location of the stop.

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