Probable Cause; Medical Marijuana Act

Commonwealth v. Barr, 240 A.3d 1263 (Pa. Super. 2020), allocatur granted Apr. 28, 2021, appeal docket 28 MAP 2021

The Pennsylvania Supreme Court will consider whether the odor of marijuana per se establishes probable cause to conduct a warrantless search of a vehicle notwithstanding the legality of marijuana for medical purposes under the Medical Marijuana Act (MMA).

During a traffic stop, officers conducted a warrantless search of Barr’s vehicle based on, inter alia, the odor of marijuana from Barr’s vehicle, notwithstanding Barr’s assertion that he was registered as a medical marijuana patient pursuant to the MMA. The officers uncovered a firearm and marijuana during the search and Barr was charged with firearm and marijuana possession crimes. Barr filed a motion to suppress the seized firearm and marijuana, and a habeas corpus petition seeking dismissal of all charges. Following a suppressing hearing, the trial court granted Barr’s suppression and habeas corpus petitions. Applying the Supreme Court’s recent holding in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019) wherein the Court held that the presence of a concealed firearm alone does not provide police with reasonable suspicion that criminal activity is afoot, the trial court concluded that because “marijuana has been legalized in Pennsylvania for medical purposes, the plain smell of burnt or raw marijuana is no longer indicative of an illegal or criminal act.” Slip op. at 29 (emphasis added by Superior Court). The Commonwealth appealed, arguing that longstanding precedent that the odor of marijuana is alone sufficient to demonstrate probable cause to conduct a search was not superseded by the MMA nor by our Supreme Court’s recent decision in Hicks. Alternatively, the Commonwealth argued that even if the odor of marijuana does not itself establish probable cause, it is nonetheless a relevant factor that, in conjunction with other factors, may contribute to a finding of probable cause such that the trial court erred by affording the odor of marijuana no weight in assessing the at-issue search under the totality of the circumstances test for probable cause.

Superior Court held that the trial court abused its discretion in directly applying Hicks to this case, explaining that:

First, as is obvious, the holding in Hicks could not directly apply because it concerned what constitutes reasonable suspicion of criminality justifying a Terry stop when possession of a concealed firearm is observed, not whether probable cause to search a vehicle exists based on the odor of marijuana alone. Moreover, even assuming the trial court merely adopted the reasoning of Hicks, the respective conduct is not sufficiently analogous to compel an identical result. The possession of a firearm is generally legal, with limited exceptions. The possession of marijuana, by contrast, remains generally illegal, but for the limited exception of lawful possession of medical marijuana pursuant to the MMA.

Slip op. at 33. However, the court further noted that “the reasoning in Hicks is not completely irrelevant here,” opining that:

While there is a legal distinction to be made between possession of marijuana and possession of a concealed firearm, the Hicks decision was not premised solely on the general legality of firearms. See Hicks, 208 A.3d at 945 (“The seizure at issue was not unconstitutional due to the statutory classification of Hicks’ license; it was unconstitutional because the police officers had no way of determining from Hicks’ conduct or appearance that he was likely to be unlicensed and therefore engaged in criminal wrongdoing.”). It remains a fact that police cannot distinguish between contraband marijuana and medical marijuana legally consumed by a substantial number of Pennsylvanians based on odor alone, just as police cannot determine from a person’s possession of a concealed firearm that he or she is unlicensed to carry it concealed.

The Commonwealth argues that there is no way for law enforcement to determine whether someone is complying with the MMA “absent investigation,” and therefore the MMA “cannot have a negative impact on an officer’s assessment of probable cause.” Commonwealth’s Brief at 27. The second proposition does not flow from the first. It is precisely because the police cannot discern lawful from unlawful conduct by the odor of marijuana alone that the police may need to rely on other circumstances to establish probable cause to believe that the possession of marijuana detected by that odor is criminal.

To the extent that the Commonwealth implies that the MMA exists only as an affirmative defense to the CSA, and that compliance with the MMA is a matter irrelevant to the probable cause test, there is no statutory support for such a claim. Although marijuana is generally illegal under the CSA, nowhere in the MMA does the legislature purport to create an affirmative defense to CSA crimes. Rather, the MMA declares that medical marijuana is legal, and that it takes precedence over conflicting provisions in the CSA. See 35 P.S. § 10231.2101.

In any event, even if the MMA provides an affirmative defense to the CSA, the Hicks Court rejected the so-called “element-or-defense” test for 4th Amendment questions:

The element-or-defense test amounts to a “seize now and sort it out later” approach. This is antithetical to the foundational protections of the Fourth Amendment. It casts too wide a net, with no regard for the number of law-abiding citizens ensnared within.

Hicks, 208 A.3d at 944. The Court further elaborated that “it is certainly the legislature’s prerogative to define the elements of crimes and to set forth affirmative defenses. However, the constitutionality of enforcement tactics is a matter of judicial concern.” Id. at 943.

Slip op. at 33-35. Noting that particularized suspicion was required to justify the search in this case, the court concluded:

Here, ‘many people’ are licensed to consume marijuana under the MMA, and ‘violate no law’ by doing so. The odor of marijuana alone, absent any other circumstances, cannot provide individualized suspicion of criminal activity when hundreds of thousands of Pennsylvanians can lawfully produce that odor. What it does provide to police is a general, probabilistic suspicion of criminal activity based on the fact that most citizens cannot legally consume marijuana. Thus, it is a factor that can contribute to a finding of probable cause, consistent with prior precedent discussed above, assuming some other circumstances supply more individualized suspicion that the activity is criminal. This does not imply a change in the probable cause test, because, previously, the possession of marijuana was universally illegal. That universal factual circumstance established particularized suspicion of criminal activity, because every instance of possession of marijuana was previously a crime. However, here, the trial court afforded the odor of marijuana no weight in its determination that police lacked probable cause to search Appellee’s vehicle. That extreme view is not justified by the Hicks decision. The general illegality of marijuana under the CSA cannot simply be ignored merely because it is lawfully used in limited circumstances under the MMA and, thus, we must reject the trial court’s conclusion that the odor of marijuana provides no indication of criminal activity. At the same time, those who act in compliance with the MMA should not be subjected to searches based solely on a generalized suspicion that is provided by that odor when the 4th Amendment also requires particularized suspicion.

Slip op. at 36-37.

The Pennsylvania Supreme Court granted allocatur limited to the following issues:

(1) What weight, if any, should the odor of marijuana be given in determining whether probable cause exists for a warrantless vehicle search, in light of the enactment of the Medical Marijuana Act, 35 P.S. § 10231.101 et seq.?

(2) To what extent does this Court’s decision in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), apply to probable cause determinations involving the possession of marijuana following the enactment of the Medical Marijuana Act, 35 P.S. § 10231.101 et seq.?

For more information, contact Kevin McKeon or Dennis Whitaker.

For more information, contact Kevin McKeon or Dennis Whitaker.