The smell of Marijuana isn’t enough to search a car in Pennsylvania but the Supreme Court says police can still use it.

Recently, in its decision in the matter of Commonwealth v. Barr, the Pennsylvania Supreme Court ruled that the smell of marijuana can be a factor police use to justify a search without a warrant but can’t be the sole basis for it

According to the Court’s decision, “The odor of marijuana alone does not amount to probable cause to conduct a warrantless search of the vehicle but, rather, may be considered as a factor in examining the totality of the circumstances,”

In this recent case, Commonwealth v. Barr II, an Allentown police officer conducted a warrantless search of the defendant’s car based on the odor of marijuana he detected from within the car, despite the defendant providing a valid PA medical marijuana license. The trial court dismissed the marijuana charge and suppressed a gun charge, stating “this is not a simple issue of ‘plain smell’ since the legalization of marijuana” and that “the smell of marijuana is no longer per se indicative of a crime.”  

The, Pennsylvania Supreme Court affirmed this trial court’s decision and found the search illegal, because it was based on the smell of marijuana alone.

Our criminal defense law firm represents person charged with illegal drug and narcotic crimes in Pennsylvania and New Jersey.  Most of our illegal drug and narcotic cases come to us following vehicle or car stops on a street, road or highway.  Remember that police and other law enforcement need probable cause to search your car or vehicle!

A major issue, however, is what suffices as probable cause (reasonable belief that a crime is, has occurred).  There is no exact answer and courts will evaluate this issue based on a totality of the circumstances analysis.   Probable cause is based on a number of factors and some can weigh heavily than others.  A major factor in many drug cases can be the odor of drugs, especially marijuana.  We often see this issue in many of our cases in Philadelphia, its surrounding suburbs of Delaware, Montgomery, Bucks and Chester counties as well as New Jersey  

New Jersey – Probable Cause Searches & Smells/Odor  

In a recent case for our criminal defense law firm, a police officer stopped a defendant for having dark window tints on his vehicle. The officer approached the defendant’s vehicle to obtain the defendant’s identification and inquire about his driving record, and put his head into the open passenger window to better hear the defendant.  While speaking to the defendant, the officer smelled the odor of marijuana coming from inside the vehicle.  Based on this observation, the officer searched the car and found a small amount of marijuana under the passenger seat.   

Although main issue was whether the officer violated the defendant’s Fourth Amendment right when he stuck his head into the window (which the court ultimately found minimally intrusive and not unreasonable), the court discussed probable cause to search a vehicle based on the smell of marijuana. 

Similar to the “plain smell doctrine” recognized by the federal courts, New Jersey recognizes that “the smell of marijuana itself constitutes probable cause ‘that a criminal offense ha[s] been committed and that additional contraband might be present.’”   This is different from the standard in Pennsylvania. 

The Court in this case found that “smell of marijuana emanating from a car establishes probable cause to believe that it contains contraband or drugs. 

Warrantless Searches are legal in New Jersey but illegal in Pennsylvania

In New Jersey, officers may conduct warrantless, nonconsensual searches in situations where:  

(1) the police have probable cause to believe the vehicle contains evidence of a criminal offense; and  

(2) the circumstances giving rise to probable cause are unforeseeable and spontaneous.  

While the odor of marijuana has been repeatedly recognized by New Jersey decisions as providing probable cause to search vehicles, a police officer must not only have probable cause to believe that the vehicle is carrying contraband but the search must be reasonable in scope.  

This means that the scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible.  In another case that our law firm handled in South Jersey, the Superior Court found that the police officers had probable cause to search the interior of defendant’s car (based on a Black & Mild cigar, a vape-pen, and claiming to have smelled marijuana).  The court, however, said that the scope of the search did not extend to the trunk of the defendant’s car, where 30 pounds of vacuumed-sealed marijuana was discovered. Since nothing in the interior of the passenger area or in the defendant’s conduct gave any suspicion of drugs in the trunk, extending the search to the trunk was illegal and unconstitutional.  

Pennsylvania:  Probable Cause Searches & Smells/Odor – Warrantless Searches are still illegal in Pennsylvania.  Police still need a search warrant to search your vehicle in Pennsylvania.   

In Pennsylvania, both probable cause and exigent circumstances are required to justify the search of a vehicle.  In 2014, the Pennsylvania Supreme Court in Commonwealth v. Gary ruled that “with respect to a warrantless search of a motor vehicle that is supported by probable cause, Article I, Section 8 of the Pennsylvania Constitution affords no greater protection than the Fourth Amendment to the United States Constitution. 

Through this decision, Pennsylvania adopted the federal automobile exception to the warrant requirement, which allows police officers to search a motor vehicle when there is probable cause to do so and does not require any exigency beyond the inherent mobility of a motor vehicle. 

The scope of a police officer’s warrantless search is limited to “the totality of the circumstances demonstrating a fair probability that contraband or evidence of a crime will be found in a particular place.” Similar to New Jersey, Pennsylvania courts have found that police officers who establish probable cause to search the cabin a vehicle, do not necessarily establish probable cause to search the trunk of the car.   

Recently, however, warrantless searches were ruled illegal in Pennsylvania (Com v. Alexander) and so we are back to the pre-Gary era in Pennsylvania. So basically, police still can’t conduct a warrantless search of vehicle but they can use the smell of the drug to support an application for a search warrant. 

Contact Our Criminal Defense Lawyers in PA & NJ  

Please click here to contact our Philadelphia criminal defense lawyers. We offer free case reviews and serve the following areas in Pennsylvania and New Jersey,  Atlantic City, Camden, Cherry Hill, Chester, Conshohocken, Doylestown, Media, Norristown, Philadelphia, Pottstown, Salem, Upper Darby, Upper Merion, Upper Providence, Vineland & Woodbury areas.