The trial court’s order finding probable cause to search a car just based on the smell of marijuana alone from the passenger compartment is contrary to two state decisions involving medical marijuana and is reversed. Commonwealth v. Shaw, 2021 Pa. Super. LEXIS 62 (Feb. 17, 2021).*
The police officer in Barr made a traffic stop for an MVC violation, and conducted a search of defendant’s vehicle based on the odor of marijuana emanating from the car’s window. Barr, 240 A.3d at 1270. In addressing whether the odor alone was enough to establish probable cause, we observed that the “plain smell doctrine,” which was premised on “the previously universal fact of marijuana’s illegality and its distinctive odor,” had been altered and “diminished” by Pennsylvania’s Medical Marijuana Act (MMA), 35 Pa.C.S.A. § 10231.101 et seq. Barr, 240 A.3d at 1275. In finding that the MMA “clearly altered the underlying factual context in which [the] probable cause test applies,” this Court held that the “odor of marijuana alone, absent any other circumstances, cannot provide individualized suspicion of criminal activity.” Id. at 1287 (emphasis added). We explained “the odor of marijuana may contribute to a finding of probable cause, as possession of marijuana remains illegal generally,” but “the odor alone does not imply individualized suspicion of criminal activity[.]” Id. at 1288 (emphasis added); see also id. at 1275 (holding that “odor of marijuana is a factor for consideration in a determination of the existence of probable cause.” (emphasis in original)). Because the suppression court in Barr ruled to the contrary, we vacated the order granting suppression and remanded for reconsideration. Id. at 1269 (noting the suppression court failed to give any weight to the odor of marijuana, and “did not appear to evaluate any other factors in conjunction with the odor of marijuana in its probable cause analysis”). The Barr Court:
remand[ed] for reconsideration of th[e] motion [to suppress] 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. . . . [T]he 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 the Appellee’s statements and demeanor during the stop . . . .
Id. at 1289 (emphasis added).
The Supreme Court in Alexander likewise concluded that it was appropriate to remand to the suppression court for further proceedings on probable cause to search, where “the testimony was not particularly directed at the exigencies of the situation,” and “further development” was warranted. Alexander, supra, at *25. The Supreme Court thus “reverse[d] the order of the Superior Court” (i.e., affirming defendant’s judgment of sentence), “with directions to remand the matter to the trial court for further proceedings consistent with this opinion.” Id.
Accordingly, we vacate Appellant’s judgment of sentence and remand for further proceedings consistent with the decisions in Alexander and Barr. See Alexander, supra at *25 (“whether the instant search was authorized under [the appropriate] standard … requires further development” on remand); Barr, supra (holding, under analogous circumstances, that “the most prudent course of action is to remand for reconsideration,” where the suppression court “failed to provide us with discrete credibility assessments relevant to the other potential factors affecting probable cause in its opinion.” (emphasis added)).
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)