A judge in Eastern Pennsylvania has determined that if state police troopers smell marijuana in a car, they are not permitted to search it if shown a passenger’s medical marijuana card. A judge in Lehigh County rejected evidence presented in support of drug and firearms counts originating from a search in Allentown on Nov. 7. “The smell of marijuana is no longer per se indicative of a crime,” Judge Maria Dantos wrote, earlier this month.
Allegedly, Timothy Barr, 27, who was a passenger in the car driven by his wife was stopped by state troopers for a traffic violation. Troopers reported smelling a strong marijuana odor and indicated to Barr that it gave them the legal rights to search the vehicle even though he showed them his medical marijuana card. Officers discovered a loaded handgun under the driver’s seat in addition to small amounts of marijuana. Court records show that Barr couldn’t legally have a firearm because of a previous conviction. In Judge Dantos’ ruling, she stated that it was “illogical, impractical and unreasonable” for the troopers to assert illegal activity after Barr showed his medical marijuana card. She stated Pennsylvania lawmakers never foresaw people with a medical card being arrested and prosecuted for having marijuana unclearly marked without a dispensary name. “Such actions are merely means of hampering the legalization of marijuana for medical purposes,” Judge Dantos stated.
Prosecutors will now decide whether to appeal to a state Superior Court or try to move forward with the absence of evidence. District Attorney Jim Martin stated his office is examining the opinion and transcripts from a July 17 hearing and hasn’t made a decision on the appeal. Defense attorney Joshua Karoly states the ruling might be the first step in changing a procedure of allowing police to search a vehicle because of the smell of drugs only. “This case will put a spotlight on the plain smell doctrine in Pennsylvania which police use far too often to invade citizens’ privacy,” he said. Judge Dantos wrote in the opinion that officers’ confusion about medical marijuana showed a “clear disconnect between the medical community and the law enforcement community.” A trooper testified that he believed medical marijuana didn’t have a smell and the other said she erroneously believed that dried marijuana was not used for medical purposes deeming it illegal. However, cannabis flower and dry leaf form has been available at dispensaries as far back as August 2018.