Do police have the right to search a vehicle just because it reeks of pot?
In a case that highlights the confusion over the legality of medical marijuana, a Lehigh County judge has ruled in favor of a Germansville man whose car was searched because it smelled of cannabis — potentially setting up a legal showdown over a rule that allows police to enter vehicles when they don’t see anything illegal.
Timothy O. Barr’s lawyer said Judge Maria L. Dantos’ ruling could be the first step in changing a procedural rule that allows police to search a vehicle based on the smell of drugs alone.
“This case will put a spotlight on the plain smell doctrine in Pennsylvania, which police use far too often to invade citizens’ privacy,” lawyer Joshua Karoly said.
Still a nascent market, legal marijuana sales in Pennsylvania last year totaled more than $133 million. The best seller at the dozens of state regulated dispensaries was “flower,” or unprocessed cannabis. The state has registered and issued cards to more than 140,000 qualified medical marijuana patients.
Barr, 27, has a valid prescription to use medical marijuana for an undisclosed condition, court records show. He was a passenger in his mother’s car, which was being driven by his wife when state troopers pulled it over on Nov. 7 because his wife failed to properly stop at a railroad overpass, court records say.
Troopers say they detected a strong odor of marijuana coming from the car. They told Barr that gave them the legal right to search the vehicle, even after he showed them his medical marijuana card.
The officers found less than a gram of marijuana in an unmarked bag inside a pill bottle, court records show.
They also found a loaded handgun wrapped in what troopers believed was Barr’s jacket, tucked under the driver’s seat. Barr is prohibited from possessing a firearm due to a prior conviction, court records show.
Barr was charged with possessing a small amount of marijuana and two firearms offenses.
In her ruling dismissing the marijuana charge and suppressing evidence in the firearms counts, Dantos said it was “illogical, impractical, and unreasonable” for the troopers to suspect illegal activity once Barr showed them his medical marijuana card.
“Pennsylvania legislators did not contemplate that people with legal medical marijuana cards would be arrested and prosecuted for possession of marijuana in a package that is not clearly marked with a dispensary name on it. Such actions are merely means of hampering the legalization of marijuana for medical purposes,” Dantos wrote in an opinion filed Friday.
Prosecutors must now decide whether to move forward with Barr’s case without the evidence, or appeal Dantos’ decision to the state Superior Court. District Attorney Jim Martin said his office is reviewing the opinion and transcripts from a July 17 hearing in the case and has not yet made a decision about an appeal.
Dantos wrote in the opinion that police officers’ confusion over medical marijuana in Barr’s case exemplified a “clear disconnect between the medical community and the law enforcement community” that needs to be addressed.
The state trooper who arrested Barr testified that she mistakenly thought dried marijuana was illegal and not used for medical purposes, court records show. Marijuana in flower and dry leaf form has been offered at dispensaries since August 2018.
Patients may not smoke dried medical marijuana, but must ingest it through a vaping pen, which emits an odor.
“The smell of marijuana is no longer per se indicative of a crime. With a valid license, an individual is permitted, and expected, to leave an odor of marijuana emanating from his or her person, clothes, hair, breath, and therefore, his or her vehicle,” Dantos wrote.
Had Barr been behind the wheel instead of in the passenger’s seat, he could have been charged with driving while under the influence of a controlled substance, even with his medical marijuana prescription.
The judge said she based her opinion, in part, on the testimony of David Gordon, a medical marijuana expert hired by the defense. He testified that there’s no physical difference between medical marijuana and marijuana bought on the street, and that the chemical compound of both drugs is the same.
Gordon testified that he advises all his patients to hold on to their dispensary receipts as evidence.
Dantos noted that there are about 143,000 Pennsylvania residents with prescriptions to use medical marijuana. Among the conditions approved for medical marijuana use are chronic pain, anxiety, Crohn’s disease, Parkinson’s, opioid use disorder, and post-traumatic stress disorder.
Karoly praised Dantos’ ruling, and said he believes the plain smell doctrine is unfair.
“The problem is there is no test for it. You can’t sample the air,” he said. “It puts a chilling effect on all citizens’ Fourth Amendment rights.”
Barr remains free on $1 bail.