PA: Because of MMJ, smell of marijuana alone not RS or PC without more

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)).