Pennsylvania: Supreme Court Rules Marijuana Odor Is Insufficient Grounds for a Warrantless Search

Harrisburg, PA: Police officers may not engage in the warrantless search of a vehicle based solely upon the smell of marijuana, according to a determination by the state’s Supreme Court.

The majority ruled that law enforcement cannot infer criminal activity from the odor of marijuana because medical cannabis can legally be possessed by authorized patients under state law.

“We conclude that the MMA [Medical Marijuana Act] makes abundantly clear that marijuana no longer is per se illegal in this Commonwealth,” the majority opined. “Accordingly, the enactment of the MMA eliminated this main pillar supporting the ‘plain smell’ doctrine as applied to the possession or use of marijuana. Indeed, so 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 to justify a search under the state and federal constitutions.”

 The court concluded, “We hold that the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle but, rather, may be considered as a factor in examining the totality of the circumstances.”

A growing number of states, including Delaware, Maryland, and Virginia, similarly limit police from conducting either warrantless searches or arrests based solely upon the odor of cannabis.

The case is Commonwealth of Pennsylvania v. Barr.