The Odor of Cannabis as Probable Cause Part 2

Is the odor of cannabis sufficient to detain an individual and search their person or vehicle?  The changing landscape of cannabis and hemp laws across the nation and here in Pennsylvania may put a stake through the heart of this “tried and true” law enforcement technique.

Under current Pennsylvania law, the “plain smell” doctrine can establish probable cause to detain an individual and conduct a vehicle search.  As will be discussed at length below, the “plain smell” doctrine relative the odor of cannabis has been applied in a per se manner because heretofore cannabis has always been illegal.  Thus, prior to the passage of Pennsylvania’s medical cannabis law a law enforcement officer could logically conclude that the distinctive odor of cannabis is highly indicative of an illegal act.

The past twenty years have witnessed a seismic shift in cannabis prohibition. Thirty-three states have legalized some form of medical cannabis.  Eleven states and the District of Columbia have also legalized all “adult use” of cannabis. Pennsylvania’s medical cannabis program has registered over 400,000 patients and has distributed millions of products since February, 2018, when the first dispensaries opened their doors.  “Dry leaf” or “flower” was added as a legal medical cannabis product in May, 2018, and was available in dispensaries in August, 2018.

The Superior Court of Pennsylvania recently issued a non-precedential memorandum opinion addressing the “plain smell” doctrine re: the odor of cannabis.  In Commonwealth v. Barr, 2347 EDA 2019, a panel of the Court rejected the argument that the odor of cannabis alone per se establishes probable cause.

In Barr, the defendant was a passenger in a motor vehicle lawfully stopped for a motor vehicle violation.  The record established that at the outset of the traffic stop the defendant was hostile towards law enforcement, but later became more cooperative as local police arrived.  At the suppression hearing, one of the investigating State Troopers testified that he could detect an odor of burned and fresh cannabis emanating from the interior of the motor vehicle.  In a very strongly worded opinion the trial court said:

Trooper Prentice testified that he could smell the odor of raw and burnt marijuana through the open window when he was at the rear of the vehicle. This [c]ourt takes issue with this testimony of Trooper Prentice and finds it not to be credible. Indeed, it is only reasonable to conclude that one (1) odor would trump the other odor, and that Trooper Prentice was not able to detect both raw and burnt marijuana. Also, this [c]ourt notes that the amount of raw marijuana located in the vehicle in a sealed Ziploc bag was only .79 grams. It is unfathomable to this [c]ourt that Trooper Prentice was able to detect the odor of both raw and burnt marijuana. (Emphasis added).

The defendant was a registered medical cannabis patient.  The cannabis that was recovered was not in its “original dispensary packaging” as required by Pennsylvania’s medical cannabis law, though the law enforcement witnesses admitted they did not know how medical cannabis was packaged.  Police also admitted not knowing how medical cannabis was ingested and whether there was any difference in odor between vaporizing and smoking cannabis.  One trooper testified that she did not even know that “green leafy” marijuana was a legal form of medical marijuana. Claiming the odor established probable cause the vehicle was searched and a firearm was seized.  Defendant Barr was charged with illegally possessing the firearm.

Citing both Pennsylvania and United States Supreme Court precedent in Commonwealth v. Stoner, 334 A.2d 633 (Pa. Super. 1975) and Johnson v. United States, 333 U.S. 10 (1948) the Superior Court in Barr rejected the Commonwealth’s argument that the odor of cannabis established probable cause per se meaning that the odor alone automatically established probable cause.  The Court analyzed Johnson and concluded that Johnson said that the odor of cannabis may establish probable cause.

In Stoner, this Court explicitly adopted the reasoning of Johnson, stating that the “Supreme Court of the United States has held that an odor may be sufficient to establish probable cause for the issuance of a search warrant.” Stoner, 344 A.2d at 635 (citing Johnson) (emphasis added) . . . . Applying that rule in the context of a legal environment where virtually every instance of possession of marijuana is illegal, the odor of marijuana becomes dispositive in establishing probable cause to conduct a search for that substance. (Emphasis added).

The Court said:

“Thus, contrary to the Commonwealth’s claim, there is no preexisting, per se rule that the odor of marijuana is always sufficient to establish probable cause to believe a crime is being committed. Rather, the existing rule, properly stated, is that the odor of marijuana may alone be sufficient to establish probable cause to search in particular factual contexts. In practical terms, historically, the circumstances wherein the odor of marijuana would not alone be sufficient to establish probable cause were necessarily rare or even nonexistent when marijuana was, in all or virtually all circumstances, illegal to possess.”  (Emphasis in original).

The Barr Court went on to say that a per se interpretation goes against the very heart of the “totality of the circumstances” test applied when determining whether probable cause had been established.  It rejected the Commonwealth’s argument that Pennsylvania’s medical cannabis law created only a very limited exception to the Controlled Substances Act, stating:

Previously, every instance in which marijuana was detected by smell indicated the commission of a crime. Soon, hundreds of thousands of Pennsylvanians will become potential lawful sources of that same odor. Thus, the strength of the inference of illegality stemming from the odor of marijuana has necessarily been diminished by the MMA in Pennsylvania.

The trial court based its decision to suppress on the 2019 Pennsylvania Supreme Court decision in Commonwealth v. Hicks.  In Hicks, the Court addressed the issue of whether a law enforcement officer had probable cause to detain an individual observed carrying a concealed firearm.  Justice Wecht, writing for the majority, said “Under Pennsylvania law, there can be no doubt that a properly licensed individual who carries a concealed firearm in public engages in lawful conduct. Indeed, millions of people lawfully engage in this conduct on a daily basis, both within this Commonwealth and across the nation.”  Thus, because carrying a concealed firearm is lawfully permitted in Pennsylvania, merely observing a concealed firearm cannot provide a legal basis to detain an individual.

The Barr Court agreed with the Commonwealth that the trial court’s reliance on Hicks was an abuse of discretion.  It said that, generally speaking, possession of a firearm was a legal act with some exceptions, while possession of cannabis, generally speaking, was still illegal in Pennsylvania with the exception of registered medical cannabis patients.  But it did find Hicks to have some relevancy, stating:

“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 Superior Court remanded the case to the trial court to determine whether other factors at the time of the traffic stop, including the odor of cannabis, could together under the “totality of the circumstances test” establish probable cause.

While not addressed in the Barr case, the distinctive “odor” of cannabis can come from legal “hemp” pursuant to the passage of the Farm Bill in December, 2018.  The Farm Bill legalizes the cultivation of cannabis plants with less than .3% THC, also known as “industrial hemp.”  It also legalizes the commercial application of hemp products, from textiles to food products and health supplements.  Cannabinoids extracted from hemp, such as cannabidiol (CBD), are legal pending regulations from the Department of Agriculture and the Food & Drug Administration.

What is it that gives cannabis this distinctive odor? Is it the presence of the psychoactive chemical tetrahydrocannabinol (THC)? The answer is actually no.  That distinctive smell comes from “terpenes”.  According to Jason Lupoi, PhD, Editor-in-Chief of Terpenes and Testing Magazine:

“(t)erpenes are volatile, fragrant molecules in a myriad of plants, and comprise the bulk of many plants’ essential oils. Because of their volatility, you can often smell their essence at ambient conditions, such as when smelling plants, such as a flower, a forest, an orange, or a cannabis plant. Over 200 terpenes have been identified in cannabis

Terpenes are found in cannabis with high THC content and hemp with a THC content of .3% or below.  What this means is that the “odor” detected by the officer (or the K9, which is trained to detect a specific terpene) may come from illegal “marijuana” or it may come from legal hemp flower.

Unfortunately for defendant Barr and for hundreds of thousands of registered medical cannabis patients the “plain smell” doctrine survives, though diminished.  The mechanical per se application of the “plain smell” doctrine appears to be dead. But because cannabis remains illegal in Pennsylvania for the majority of those who may be found in possession of it the odor remains a factor in determining whether probable cause exists to search.

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