Find a Local Criminal Defense Lawyer Near You

  • 1
    • Criminal Law
    • Misdemeanors
    • Drug Crimes
    • Speeding and Moving Violations
    • White Collar Crime
    • Felonies

Warrantless Searches Not Legal In Pennsylvania Based On Marijuana Smell Alone


A driver in Allentown Pennsylvania was pulled over after state troopers saw the driver allegedly failing to stop at a solid white line before an overpass. A trooper smelled burnt marijuana through the open window of the vehicle. The officers searched the vehicle and found a plastic bag with less than one gram of marijuana next to the front center console. The marijuana was not in a container or had any other markings indicating it was purchased from a medical marijuana dispensary.

Medical marijuana is legal in Pennsylvania, but recreational marijuana use is not. The prosecution argued that the smell of cannabis still indicated illegality as marijuana is still illegal for most of the state, even if it was legal for a small minority.

The trial court determined that the police search was unconstitutional based solely on the smell of marijuana. Defendant’s expert explained during the evidentiary hearing that there was no different in how medical marijuana and marijuana “off the streets” were consumed. The officers conducting the search stated they did not know how medical marijuana was ingested. The trial court ordered the evidence inadmissible and the criminal charge was dismissed.

The ruling was upheld by the state Supreme Court in a 5-2 decision. The majority agreed that while the smell of marijuana could be part of the justification for a search of a vehicle, it could not be the only reason.

The Smell of a Legal Drug Should Not Constitute Probable Cause to Search a Home or Vehicle

Police searches without a warrant, voluntary consent, or probable cause are considered unreasonable and illegal. If a police search was conducted without one of these three elements, then the evidence discovered can be excluded from trial. Probable cause exists when it is more likely than not that evidence of a crime can be found in the area being searched.

The trial court’s reasoning makes perfect sense. Police officers cannot conclude that the mere smell of marijuana constitutes evidence of a crime if marijuana itself is legal for certain purposes. The officers testified they had no knowledge as to how marijuana is ingested for medical purposes – i.e. they had no way of distinguishing between marijuana for legal use and marijuana for illegal use. In fact, an expert explained that there is actually no difference in how people consume marijuana regardless of why they are using marijuana.

If law enforcement cannot distinguish between legal use and illegal use of a substance, then the defendant should be released. There are a variety of reasons why this is preferable to locking more people up. First, police do not have the power to decide what is legal or illegal. That power resides with lawmakers and any effort by police to change this would be a violation of separation of powers. Second, Americans are considered innocent until proven guilty. Assuming that all instances of marijuana use must be illegal would violate the notion that citizens are innocent until proven otherwise.

Finally, conflating legal and illegal uses of a product will only lead to the erosion of more rights. It is typically the intent of the defendant not the possession of a product that determines whether a defendant is innocent or guilty. Most firearms are legal to own but are often used in an illegal manner. Medical drugs are typically legal but some jurisdictions make abuse of prescription drugs illegal. The line between legality and illegality should not come down to smelling or finding a certain product or substance but in how it is being handled or applied.

Do I Need a Lawyer If I Am Charged With a Marijuana Crime?

If you have been charged with a federal criminal offense in connection with marijuana, you should contact a skilled criminal defense lawyer. A lawyer can provide the best possible result in your case and represent your best interests in court.


Leave a Reply * required