Though Philadelphia has effectively decriminalized possession of small amounts of marijuana — and close to 200,000 Pennsylvania residents now have medical marijuana cards — the odor of marijuana has recently become one of the most common reasons police give for searching vehicles.
But in all those searches, Philadelphia police are not finding much marijuana.
In the last five years, police listed the smell of weed as the reason for more than 25,000 car stops and a growing number of searches. In the first quarter of 2019, searches related to the smell of marijuana surged to the highest level at least since 2014. Police identified the odor in 3,300 searches in that quarter, a number that has increased tenfold.
At the same time, the “hit rate” — or rate at which contraband was found — plummeted to 9.7%, down from 40% in 2014.
That’s according to the Defender Association of Philadelphia, which, after analyzing thousands of police stops, is arguing that the odor of marijuana can no longer be considered probable cause for officers to believe a crime has occurred and conduct a search.
The defender argued that the low hit rates — combined with stark racial disparities — indicate that Philadelphia police are just not reliable when it comes to sniffing out marijuana, either because they don’t know what it smells like or because they’re falsely listing the smell as the basis for a search.
“Marijuana seems like an easy way to get [access] to a car,” said assistant defender Michael Mellon. “There’s no way to prove ... that they didn’t smell it. It becomes a crutch to justify anything.”
African American drivers represented 84% of those searched after an officer reported smelling marijuana. But those searches turned up marijuana only 12.6% of the time, compared with 20.3% of the time for white drivers.
Philadelphia police spokesman Capt. Sekou Kinebrew said the police and the Philadelphia Law Department are still evaluating the accuracy of the defenders’ data analysis. But the law, he said, is clear: “The courts still recognize that the odor of marijuana constitutes probable cause for the search of a vehicle.”
The Defender Association obtained the police data through a settlement under the state’s Right to Know law but agreed with the city to keep the information confidential and so could not share underlying data.
The analysis was made public as part of a motion to suppress evidence found in the car of Marcus James, 29, who was in a parked car in Northeast Philadelphia in January when officers said they smelled marijuana as they drove by. Their search turned up two bags of marijuana and an illegal gun. James, who has one past misdemeanor drug conviction, is awaiting trial on drug and gun charges.
James’ lawyers point to the records of the arresting officers, Michael Chichearo and Edward Solvibile, who each searched far more cars that smelled of marijuana in 2017 than they had in years past, and whose hit rates for “odor of marijuana” searches subsequently declined to just about 5%.
In an analysis of Chichearo’s searches, the lawyers wrote: “Even if the officer believed he smelled marijuana, in light of his history and experience, the officer’s belief was unreasonable and his ability to detect the odor of marijuana unreliable.”
Solvibile declined to comment, and Chichearo did not respond to email and phone messages.
A spokesperson for District Attorney Larry Krasner declined to comment on whether it considers such stops reliable, or whether it’s reviewing its policies in light of the defenders’ analysis.
The rise in marijuana-related searches comes alongside a dramatic rise in vehicle stops and searches across Philadelphia this year, mostly affecting African American residents.
The Philadelphia Police Department has been monitoring pedestrian stops and searches under consent decree since 2011, after a federal civil rights lawsuit, Bailey v. City of Philadelphia, that alleged racial profiling. The number of pedestrian stops and searches without legal justification has declined under the Bailey monitoring but still adds up to thousands each year.
Recently, the parties to the lawsuit agreed on a new monitoring and discipline process for officers and supervisors responsible for illegal searches or presenting patterns of problematic behavior.
“We look forward to full implementation in the coming year, which will allow the [Police Department] to proactively identify issues and take the necessary actions,” Kinebrew said.
To Mellon, of the Defender Association, it seems likely that, as officers are increasingly required to document reasons for stopping people, a waft of weed provides convenient cover.
“We are skeptical this is happening,” Mellon said. “We think the Bailey review can be gamed, and we think they’re gaming it.”
Kinebrew said if officers were falsifying reasons for stops, it “would be a violation of Department policy, and would be of great concern to the Department.”
The defenders’ analysis adds a new wrinkle to a debate that’s been playing out in Pennsylvania’s appellate courts regarding whether marijuana, detectable in “plain smell,” is sufficient cause for a search, and how the proliferation of legal, medical marijuana could affect that standard.
A Lehigh County judge this year suppressed evidence found in an “odor of marijuana” vehicle search, ruling the search was illegal because a passenger in the car had a medical marijuana card.
Now, the Defender Association and others are arguing that appellate courts should overturn the 2014 state Supreme Court decision, Commonwealth v. Gary, that cleared the way for that search by removing basic protections for drivers in Pennsylvania. Previously, the state had prohibited warrantless searches unless police could identify both probable cause to believe a crime is underway and “exigent circumstances,” requiring fast action. In Gary the court ruled that the smell of marijuana constituted probable cause and a car’s mobility in itself qualified as exigency.
Kinebrew said the police were developing a training bulletin in light of recent court decisions and the growing issue of medical marijuana. (A further complication is a 2019 state Supreme Court ruling that police can’t infer illegal activity from a person’s possession of a gun; many lawyers believe the same logic must apply in marijuana cases.)
“It depends on the facts and circumstances, but a Medical Marijuana card could affect the ability to conduct a lawful search,” he said.
The data analysis from the Defender Association could transform this debate — if courts decide to take it up, said Temple University law professor Jules Epstein.
“There has not been much developed law on whether, if in a particular jurisdiction, the smell of marijuana results in one [recovery] in 10 [searches], or one in 20, or one in three ... to say, ‘What’s the hit rate?’ and then say going forward that is or is not probable cause,” he said. “The truth is courts haven’t done data-based probable-cause analysis, at least to my knowledge. Given all the data about stop-and-frisk, one could make a very good argument to say we should.”