State judge: Pot smell not enough for vehicle search anymore

The Associated Press
With the possible legalization of recreational use on the radar, large marijuana companies are looking at a $22.7 billion national market by 2023. (Dreamstime/TNS)

ALLENTOWN — An eastern Pennsylvania judge has ruled that state police troopers who said they smelled marijuana in a vehicle weren’t allowed to search the vehicle once they were shown the passenger’s medical marijuana card.

The (Allentown) Morning Call reports that a Lehigh County judge tossed out evidence cited in support of drug and firearms counts stemming from the Nov. 7 search of the vehicle in Allentown.

“The smell of marijuana is no longer per se indicative of a crime,” Judge Maria Dantos wrote in her opinion filed earlier this month.

Authorities said Timothy Barr, 27, was a passenger in the car driven by his wife that was stopped by state troopers on a traffic violation. Troopers said they smelled a strong odor of marijuana and told Barr that gave them the legal right to search the vehicle even after he showed them his card authorizing the use of medical marijuana. Officers found small amounts of marijuana and residue and also found a loaded handgun under the driver’s seat. Court records indicate that Barr cannot legally possess a firearm due to a prior conviction.

In her ruling, Dantos said it was “illogical, impractical and unreasonable” for the troopers to suspect illegal activity once Barr showed them his medical marijuana card. She said Pennsylvania lawmakers never contemplated people with such cards being arrested and prosecuted for possession of marijuana in a package not clearly marked with a dispensary name.

“Such actions are merely means of hampering the legalization of marijuana for medical purposes,” Dantos wrote.

Prosecutors must now decide whether to appeal to state Superior Court or try to move forward without the evidence.

Defense attorney Joshua Karoly said the ruling could help change a rule allowing police to search based solely on the odor of drugs.

Dantos wrote in the opinion that officers’ confusion over medical marijuana exemplified a “clear disconnect between the medical community and the law enforcement community.” One trooper testified that he believed medical marijuana had no smell and the other said she mistakenly thought dried marijuana was illegal and not used for medical purposes. Marijuana in flower and dry leaf form has been offered at dispensaries since August 2018.