The Pennsylvania Supreme Court recently decided that the smell of marijuana, by itself, is not probable cause for a warrantless search.[1] This decision ended the “plain smell” doctrine, under which the odor of marijuana gave automatic probable cause for a search due to its unique smell and illegality.
The law has changed since the passage of the 2016 Medical Marijuana Act (“MMA”). Under the MMA, qualified users can own and use marijuana for medical purposes. While it is illegal to smoke medical marijuana, there is no practical difference between the smell of legally used marijuana (vaping pen) and illegally smoked marijuana. Thus, the smell of marijuana no longer guarantees a crime.
This does not mean that marijuana smell can never qualify as “probable cause.” The police can consider the odor of marijuana with other facts that might show criminal activity. For example, the presence of an illegal marijuana pipe, rolling papers, or the inability to produce a medical marijuana card. There are many other factors that might also qualify as “probable cause” when combined with the smell of marijuana.
At Ward Law, we believe in protecting the rights of all Pennsylvania citizens. If you believe you are the victim of an illegal search, please contact our office for a consultation. We will fight for you and for anybody who is the victim of illegal police activity.
[1] See Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021).