Pennsylvania Supreme Court Rules Cannabis Odor not Probable Cause for Warrantless Search

Connor Aberle

Historically, many state courts have held that the odor of marijuana alone is sufficient probable cause to conduct a warrantless search of an automobile, because marijuana has such a unique and recognizable odor and has been illegal in the United States for decades. As marijuana laws have seen significant reform across the country however, many state courts are reevaluating whether the smell alone means that there is probable cause that illegal activity is occurring.

In a recent opinion on December 29, 2021, the Pennsylvania Supreme Court ruled in Commonwealth of Virginia v. Timothy Oliver Barr II that the smell of marijuana does not constitute probable cause to search a vehicle without a warrant. The court noted that the odor of cannabis may be a contributing factor to probable cause, but the odor alone is not sufficient. Medical marijuana is legal in the state of Pennsylvania and the defendant produced a medical card when prompted. The limited legality of the substance in Pennsylvania means that it is unreasonable to presume that the odor of marijuana indicates illegal activity.

Pennsylvania joins other states like Maryland and Colorado, both of which saw cases in the past few years involving marijuana as a factor in probable cause. Colorado made marijuana legal, whereas Maryland decriminalized possession of 10 grams or less of the drug. The courts in both states ruled that the smell of burnt cannabis didn’t reach probable cause to search a vehicle because the smell alone was not a guarantee that criminal conduct was occurring.

While marijuana is not legal for recreational or medicinal purposes in North Carolina yet, there may still be a reason for North Carolina courts to follow the other states above. In North Carolina, CBD hemp flower, which bears genetic similarities to marijuana, is legal to sell and consume. The odor associated with burnt marijuana is derived from its specific terpines—oily aromatic compounds found in many plants. These terpines can be found in legal hemp, which is used for CBD and Delta-8 products. This means that legal substances in North Carolina already share the aroma profile of marijuana. Therefore, it is not clear that if an officer smells marijuana, criminal activity is occurring. The NC State Bureau of Investigation has essentially admitted this reality in a recent memo found here.

Additionally, the NC Compassionate Care Act (NC S711), introduced in the North Carolina Senate, is a bipartisan bill seeking to legalize marijuana for medical purposes. In August, the bill cleared key hurdles in the Senate. If the bill passes, it will only be more likely that a North Carolina court may ultimately find that marijuana odor alone is not sufficient probable cause for a warrantless search. Evidence obtained from warrantless searches can be suppressed in court if the officers don’t have probable cause to search. Though North Carolina caselaw still maintains that marijuana odor alone can provide sufficient probable cause, the availability of CBD products and changing landscape of marijuana legality in North Carolina may challenge that precedent.