Medical Marijuana and Vehicle Searches
I recently spent some time studying the case Commonwealth V. Barr which the Lehigh County (PA) DA’s Office has appealed to Superior Court. Lehigh County Common Pleas Judge Maria Dantos ruled the odor of marijuana emanating from a vehicle is no longer probable cause to search when the driver displays a Pennsylvania Medical Marijuana Card.
Vehicle search based on marijuana smell ruled illegal <<<<Post-Gazette Article<<<<
Commonwealth V. Barr <<<< Actual Ruling <<<<
The conundrum for Pennsylvania law enforcement is there is no quick way to verify the legitimacy of a PA medical marijuana card. While the Pennsylvania Medical Marijuana Act (SB3) mandates such a database be created and operated – law enforcement officers don't have immediate access to it. So what are the options for a police officer who pulls over a vehicle and smells the odor of marijuana but the driver (or a passenger) presents a medical marijuana card? Well under the reasoning of Judge Dantos they must be sent on their way without further delay. Even if all indications are the driver is a recreational marijuana user once a medical card is presented they get a free pass.
I did some research and found the following ruling from the Supreme Court of Illinois. The defendant in this case made virtually the same claim as Barr – the search of the car was illegal since he possessed a valid medical marijuana certification. However, in this case, the officer observed loose lead seeds and stems in the car prior to the search and made the observation to the court that having marijuana outside of a sealed container was in violation of the Illinois law.
State of Illinois V. Charles D. Hill <<<<Actual Ruling<<<<
While the mere presence of cannabis for medical users may no longer be immediately attributable to criminal activity or possession of contraband, such users must possess and use cannabis in accordance with the Act. Notably, section 11-502.1 of the Illinois Vehicle Code prohibits any driver or passenger, who is a medical cannabis cardholder, from possessing cannabis within an area of the motor vehicle “except in a sealed, tamper-evident medical cannabis container.” 625 ILCS 5/11-502.1(b), © (West 2016); see 410 ILCS 130/30(a)(5) (West 2016) (the Act does not allow any person to violate section 11-502.1 of the Illinois Vehicle Code). Violation of this provision constitutes a Class A misdemeanor. 625 ILCS 11- 502.1(d)(1) (West 2016).
The transcript of the evidence suppression hearing includes conversation from the officer's body camera. He makes mention, at the time of the stop, that he can see marijuana residue in the backseat of the car, clearly not packaged for medical use.
Once again good documentation and testimony of the police officer changed the outcome of the case.
Commonwealth V. Barr is sitting before the PA Superior Court. It will be interesting to see how this plays out.