HARRISBURG (KDKA) -- Just because you smell it, doesn't mean you can search for it.
The Pennsylvania Supreme Court ruled the smell of marijuana alone isn't enough to search a vehicle in a traffic stop.
As KDKA's Jon Delano, an attorney, explains, the ruling came from a case out of Allentown and won't be the last on this subject.
Teri Barr was driving late at night with her husband, a medical marijuana user, asleep in the backseat.
State police pulled her over for a traffic violation, and when they smelled marijuana, they claimed probable cause to search Barr's car without a warrant. They found illegal cannabis and a firearm.
The state Supreme Court ruled the search was illegal.
"Under the Fourth Amendment and Article I, Section 8, of the Pennsylvania Constitution, citizens cannot be stopped or searched without probable cause," Patrick Nightingale, a criminal defense attorney, says.
Generally, that requires a search warrant, but there are exceptions like when something illegal is in plain view or even the smell of an illegal odor.
"If that officer smells something and it is immediately apparent to that officer that that smell is related to an illegal substance or an illegal item, then that officer can conduct a warrantless search," says Nightingale.
But the Pennsylvania Supreme Court ruled the problem in the Barr case is that medical marijuana is now legal in Pennsylvania, and it smells the same as illegal weed.
Delano: "Does medical cannabis have an odor?"
Nightingale: "Absolutely. The flower, buds, the flower material, the nugs, that which we are familiar with, the green leafy vegetable matter – that has been legal to purchase in our medical marijuana dispensaries since august of 2018."
"What gives marijuana, what gives cannabis, what gives that flower its unique odor is not the presence of THC or other cannabinoids. It is the presence of what are called plant terpenes."
Given that, the Supreme Court said police can no longer claim the plain smell of weed means something illegal like they did before medical marijuana became legal.
"The odor is no longer per se probable cause to search," says Nightingale.
The court said the smell must be accompanied by other factors that lead police to believe criminal activity is afoot. With none here, the Barr search was illegal and the charges had to be dropped.
This won't be the last medical marijuana court case.
Right now, medical marijuana users can be charged with a DUI, says Nightingale, even if their driving is not impaired.
A case challenging that is making its way through the courts now.
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