Commonwealth v. Barr, T., Aplt.

[J-70-2021]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 28 MAP 2021
:
Appellee : Appeal from the Order of the
: Superior Court at No. 2347 EDA
: 2019 dated September 25, 2020
v. : Vacating the Order of the Lehigh
: County Court of Common Pleas,
: Criminal Division, at No. CP-39-CR-
TIMOTHY OLIVER BARR II, : 0000279-2019 dated August 2,
: 2019 and Remanding.
Appellant :
: ARGUED: October 27, 2021
OPINION
CHIEF JUSTICE BAER DECIDED: December 29, 2021
We granted allowance of appeal in this matter to examine to what extent, if at all,
the smell of marijuana can be considered when determining whether law enforcement
had probable cause to conduct a warrantless search of a vehicle. This issue arises in
light of the General Assembly’s enactment of the Medical Marijuana Act (“MMA”), 35 P.S.
§§ 10231.101-10231.2110, which legalized the possession and use of marijuana in
limited circumstances, and this Court’s recent decision in Commonwealth v. Hicks, 208
A.3d 916 (Pa. 2019), which addressed whether police can stop and frisk a person merely
based on the fact that the person possesses a concealed firearm in public. Like the
Superior Court, we hold that the smell of marijuana may be a factor, but not a stand-alone
one, in determining whether the totality of the circumstances established probable cause
to permit a police officer to conduct a warrantless search of a vehicle. However, we
respectfully disagree with the Superior Court’s decision to remand the matter to the trial
court for reconsideration of its order granting the motion to suppress filed by Timothy Barr,
II (“Appellant”). Instead, for the reasons that follow, we vacate the Superior Court’s
judgment, reinstate the trial court’s order which granted Appellant’s motion to suppress,
and remand for further proceedings that are consistent with this opinion.
I. Background
As a result of a vehicle search that we describe in more detail infra, the
Commonwealth discovered a bag of marijuana and a firearm. In connection with these
items, the Commonwealth charged Appellant with persons not to possess a firearm,
possession of a firearm without a license, and possession of a small amount of marijuana.
Appellant subsequently filed an omnibus pretrial motion, which included a motion to
suppress the physical evidence gathered by police during the search, and a petition for a
writ of habeas corpus, contending that the Commonwealth could not establish a prima
facie case that Appellant possessed a small amount of marijuana or committed the
firearm offenses. Following a hearing, the trial court granted the motion to suppress and
granted in part the petition for a writ of habeas corpus, dismissing the count of possession
of a small amount of marijuana. The court authored an opinion in support of that order,
which included findings of fact and conclusions of law. Trial Court Opinion, 8/2/2019. We
glean the following summary from the trial court’s findings of fact.
In the early morning hours of November 7, 2018, Pennsylvania State Trooper
Edward Prentice was mentoring or “coaching” newly-hired State Trooper Danielle
Heimbach. The troopers were on routine patrol in a marked police vehicle on Emaus
Avenue in the area of the Liberty Park at Allentown apartment complex in Allentown,
Pennsylvania, when, at approximately 12:30 a.m., Trooper Prentice observed a vehicle
make a U-turn on Allenbrook Drive and then proceed east on Emaus Avenue. Despite
[J-70-2021] - 2
the fact that the troopers did not observe any criminal activity, Trooper Prentice decided
to follow the vehicle because no other cars were around, the vehicle appeared to be
traveling at a fast rate of speed, and it was past midnight.
As the troopers followed the vehicle, it made a left-hand turn onto Devonshire
Road/Mack Boulevard. The vehicle was driving at a high rate of speed but eventually
slowed down as it approached an overpass on which vehicles must pass in opposite
directions, one vehicle at a time. Troopers Prentice and Heimbach observed that the
vehicle failed to stop at the solid white stop line on the road at the stop sign that controls
the single lane overpass, causing the troopers to initiate a stop for this alleged Vehicle
Code violation. The vehicle pulled over as soon as the troopers engaged it.
Because Trooper Prentice was coaching Trooper Heimbach, Trooper Heimbach
took the lead of investigating the matter further by approaching the passenger side of the
vehicle. As the trooper got closer to the occupants of the vehicle, she smelled burnt
marijuana. Appellant’s wife, Teri Barr (“Barr”), was driving the vehicle, Appellant was in
the front passenger seat, and Luis Monteiro (“Monteiro”) was in the rear passenger seat,
where he was observed drifting in and out of sleep.
Soon thereafter, Trooper Prentice approached the vehicle on its driver’s side. As
the trooper began to arrive at the driver’s window, he smelled the odor of burnt marijuana
through the open window of the vehicle.1 Trooper Prentice then asked Barr to exit the
vehicle so that he could interview her and confirm that she was not unlawfully under the
influence of marijuana. At that point, Appellant began to argue with Trooper Heimbach
by repeatedly exclaiming that “no one is getting out of this fucking vehicle.” Backup
1 At the suppression hearing, Trooper Prentice testified that he smelled both burnt and
raw marijuana. However, the trial court found incredible his testimony that he smelled
raw marijuana.
[J-70-2021] - 3
officers from the Allentown Police Department soon arrived at the scene, causing
Appellant to become more cooperative.
Trooper Prentice then advised the occupants of the vehicle that, because he
smelled marijuana, he could search the vehicle pursuant to this Court’s decision in
Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (plurality) (holding that the federal
automobile exception to the warrant requirement of the Fourth Amendment applies in
Pennsylvania), overruled by Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020)
(holding that Article I , Section 8 of the Pennsylvania Constitution requires both a showing
of probable cause and exigent circumstances to justify a warrantless search of an
automobile). Appellant and Barr presented Trooper Prentice with medical marijuana
identification cards that permitted them to possess and consume medical marijuana
pursuant to the MMA.
Notably, at the time of the stop, Trooper Prentice was aware that green, leafy
marijuana was legal for medical purposes, but he was unsure how a patient was permitted
to ingest this product for medical purposes. In addition, Trooper Prentice believed that
no smell is produced when a patient utilizes a vaping pen to inhale medical marijuana.
Trooper Heimbach was unaware that green, leafy marijuana was legal for medical
purposes. She too was unsure how medical marijuana was ingested.
Nonetheless, at that point, the troopers conducted a search of the vehicle which
allegedly was supported by probable cause based on the smell of marijuana. During that
search, the troopers observed non-prosecutorial amounts of marijuana “shake,” i.e., small
flakes of marijuana leaf, on the vehicle’s floor. Trooper Heimbach also discovered a
Ziploc bag that contained 0.79 grams of marijuana. She found that bag between the front
[J-70-2021] - 4
passenger seat and the center console. The Ziploc plastic bag did not have any markings
or barcodes that would identify it as medical marijuana purchased at a dispensary.2
As part of the probable cause examination, Trooper Prentice searched the rear of
the vehicle, where he discovered a jacket that was rolled up into a ball and that stuck out
halfway under the driver’s seat. Inside of the jacket, the trooper found a handgun with
one bullet in the chamber and four bullets in the magazine. Trooper Prentice suspected
that it was Appellant’s jacket and advised his fellow officers to detain all three occupants
of the vehicle. A subsequent search of the vehicle’s trunk uncovered an Apple logo
baggie that contained unused clear plastic baggies that were consistent with both general
packaging for drug distribution and the particular baggie that contained the marijuana that
Trooper Heimbach found between the front passenger seat and the center console.
At the suppression hearing, Appellant presented the testimony of David Gordon,
M.D., a retired heart and lung surgeon and an expert in medical marijuana in
Pennsylvania. Dr. Gordon sees patients to determine whether they are appropriate
candidates for medical marijuana cards. In fact, he was the physician that recommended
that Appellant met the qualifications to receive the medical marijuana card that he
presented to the troopers before they searched the vehicle on the night in question.
During his testimony, Dr. Gordon explained to the trial court that there is no
difference between green, leafy medical marijuana and marijuana purchased illegally on
the streets. The doctor noted that smoking marijuana is illegal under the MMA; however,
he also informed the court that green, leafy marijuana can be consumed legally by way
of a vaping pen. Dr. Gordon stated that vaping marijuana produces an odor and that
there is no difference between the odor of legally vaped and illegally smoked marijuana.
2During the suppression hearing, Appellant produced a receipt from a medical marijuana
dispensary for the purchase of $85 worth of medical flower marijuana from a dispensary.
The receipt was dated November 2, 2018, i.e., five days before the stop.
[J-70-2021] - 5
Regarding the packaging of medical marijuana, Dr. Gordon explained that it can
be sold in a plastic container like a pill bottle with a plastic bag in it that contains the
medical marijuana. Dr. Gordon shared his belief that the inner bag contains markings
that indicate that it was purchased at a medical marijuana dispensary, but he was not
certain. According to Dr. Gordon, at the time of the hearing, there were more than
143,000 patients in Pennsylvania who could legally obtain, possess, and ingest medical
marijuana. He further suggested that there is a clear disconnect between the medical
and the law enforcement communities with respect to the legalization of medical
marijuana.
Based upon these findings of fact, the trial court concluded as a matter of law that
the troopers lacked probable cause to search the vehicle and, therefore, that the search
was unconstitutional. Consequently, the court held that the evidence seized during that
search must be suppressed. In addition, the court dismissed the charge of possession
of a small amount of marijuana based upon its determination that the Commonwealth
failed to establish a prima facie case in support of that charge. After presenting these
findings of fact and conclusions of law, the court offered a recitation of the rationale it
employed in reaching these results.
In this regard, the trial court stated that it found guidance from this Court’s recent
decision in Hicks, supra. According to the court, Hicks held that a police officer may not
infer criminal activity merely from an individual’s possession of a concealed firearm in
public because a firearm may lawfully be carried and, thus, possession alone does not
suggest criminal activity. The court opined that the reasoning in Hicks extends to the
instant matter because “the ‘plain smell’ of marijuana alone no longer provides authorities
with probable cause to conduct a search of a subject vehicle” because the drug has been
legalized in Pennsylvania for medical purposes. Trial Court Opinion, 8/2/2019, at 14-15.
[J-70-2021] - 6
In other words, the court explained, “the plain smell of burnt or raw marijuana is no longer
indicative of an illegal or criminal act.” Id. at 15.
The trial court then stated that, here, the troopers conducted a search of a vehicle
based solely on the odor of marijuana emanating from that vehicle. 3 Yet, the court
explained, “as in Hicks where the defendant possessed a valid license to carry a
concealed firearm, [Appellant] has a valid license to possess and ingest medical
marijuana.” Id. The court highlighted various portions of Dr. Gordon’s testimony,
including his observation that “there is no difference in odor of ingesting the medical
marijuana when utilizing a vaping pen and the odor of smoking regular marijuana from an
unlawful source.” Id. The court submitted that it “is illogical, impractical, and
unreasonable for Trooper Prentice and Trooper Heimbach to have concluded that there
was criminal activity afoot when [Appellant] was able to present them with a valid medical
marijuana card which permitted him to possess and ingest marijuana.” Id.
The trial court reiterated its view that the smell of marijuana is no longer per se
indicative of a crime. According to the court, with “a valid license an individual is
permitted, and expected, to leave an odor of marijuana emanating from his or her person,
clothes, hair, breath, and therefore, his or her vehicle.” Id. The court shared its opinion
that there is a disconnect between the medical and law enforcement communities, as the
General Assembly “did not contemplate that people with legal medical marijuana cards
would be arrested and prosecuted for possession of marijuana in a package that is not
clearly marked with a dispensary name on it.” Id. at 15-16. For these reasons, the trial
court directed that all evidence seized from the vehicle was illegally obtained and should
3 In making this statement, the court noted that the record reflects that the troopers’
education related to marijuana was limited to walking past a controlled marijuana burn for
a few seconds. Id. at 15-16 n.19. The court further concluded that the “troopers lacked
knowledge about the specifics of legal/medical marijuana and its usage.” Id.
[J-70-2021] - 7
be suppressed. The Commonwealth appealed the trial court’s order to the Superior
Court, certifying that an appeal is appropriate because the trial court’s order terminates
or substantially handicaps the prosecution. Pa.R.A.P. 311(d).
II. Superior Court Opinion
In a lengthy published opinion, a three-judge panel of the Superior Court agreed
with the trial court that the odor of marijuana does not per se establish probable cause to
allow police officers to conduct a warrantless search of a vehicle. Commonwealth v. Barr,
240 A.3d 1263 (Pa. Super. 2020). The Superior Court noted that the Commonwealth
presented a multipart argument that the trial court erred by concluding that the troopers
lacked probable cause to conduct a warrantless search of the vehicle in which they found
Appellant.
In summarizing the various principles of law that govern review of this claim, the
Superior Court explained the automobile exception to the warrant requirement, which,
according to the court, “permits the search and/or seizure of a motor vehicle if supported
by probable cause—no separate finding of exigent circumstances is required.”4 Id. at
1274 (quoting Commonwealth v. Loughnane, 173 A.3d 733, 741 (Pa. 2017)). The court
stated that this exception applies if the police possess probable cause to believe that a
search of a vehicle will uncover evidence of a crime. The court further explained, “In
determining whether probable cause exists, we apply a totality of the circumstances
test. . . . Probable cause is a practical, nontechnical conception: it is a fluid concept -
turning on the assessment of probabilities in particular factual contexts not readily, or
even usefully, reduced to a neat set of legal rules.” Id. (citations and internal quotation
marks omitted).
4As we explain infra, the automobile exception to the warrant requirement no longer
exists in Pennsylvania.
[J-70-2021] - 8
Next, the Superior Court provided an overview of the Commonwealth’s various
arguments, namely that: (1) it is well-settled that the odor of marijuana is sufficient to
create probable cause to conduct a search; (2) this rule has not been altered by the MMA
or this Court’s decision in Hicks; and (3) assuming arguendo that the odor of marijuana
alone does not establish probable cause to search, that odor is nonetheless a relevant
factor that may contribute to a finding of probable cause - yet, the trial court afforded no
weight to that factor. As to the Commonwealth’s first contention, the court closely
examined prior precedent, concluding that, “contrary to the Commonwealth’s claim, there
is no preexisting, per se rule that the odor of marijuana is always sufficient to establish
probable cause to believe a crime is being committed. Rather, the existing rule, properly
stated, is that the odor of marijuana may alone be sufficient to establish probable cause
to search in particular factual contexts.” Id. at 1276 (emphasis in original). The court then
discussed the interplay between the MMA and the Controlled Substance, Drug, Device,
and Cosmetic Act (“CSA”), 35 P.S. §§ 780.101-780.144.
In so doing, the Superior Court opined, inter alia, that “the plain smell doctrine is a
specific application of the totality-of-the-circumstances test for probable cause, crafted in
light of the previously universal fact of marijuana’s illegality and its distinctive odor.” Id.
at 1278. The court, however, observed that the passage of the MMA altered the premise
underlying this principle. The court conceded that marijuana remains a prohibited
substance under the CSA, regardless of the enactment of the MMA. However, echoing
the trial court’s observations, the Superior Court insisted that “the strength of the inference
of illegality stemming from the odor of marijuana has necessarily been diminished by the
MMA in Pennsylvania.” Id. After the Superior Court explained its prior precedent
concerning the “plain smell” doctrine, it concluded “that the trial court did not err in merely
considering the passage of the MMA as a relevant fact in its probable cause analysis.”
[J-70-2021] - 9
Id. at 1283. According to the court, the only question that remained was “whether the
lower court abused its discretion in concluding that the odor of marijuana cannot
contribute to a finding of probable cause in the post-MMA environment.”5 Id.
In answering this question, the Superior Court addressed this Court’s decision in
Hicks. According to the Superior Court, Hicks held that “possession of a concealed
firearm by an individual in public is not sufficient to create a reasonable suspicion that the
individual may be dangerous or committing a criminal offense[.]” Id. The court agreed
with the Commonwealth that the trial court erred by finding that the reasoning in Hicks
was directly applicable to this case. “First,” the court noted, “the holding in Hicks could
not directly apply because it concerned what constitutes reasonable suspicion of
criminality justifying a Terry[6] stop when possession of a concealed firearm is observed,
not whether probable cause to search a vehicle exists based on the odor of marijuana
alone.” Id. at 1285. Additionally, the Superior Court stated its belief that the conduct at
issue here, possession of marijuana, is not analogous to the conduct at issue in Hicks,
possession of a firearm. According to the court, “[t]he possession of a firearm is generally
legal, with limited exceptions. The possession of marijuana, by contrast, remains
generally illegal, but for the limited exception of lawful possession of medical marijuana
pursuant to the MMA.” Id.
Despite these observations, the Superior Court took some guidance from Hicks.
In this regard, the court explained that “the Hicks decision was not premised solely on the
general legality of firearms.” Id. at 1286. The court opined, “It remains a fact that police
5 As discussed in more detail infra, a close reading of the trial court’s opinion reveals that
it did not, in fact, conclude that the odor of marijuana cannot contribute to a finding of
probable cause given the enactment of the MMA. The court simply determined that the
smell of marijuana alone cannot establish probable cause to search a vehicle.
6 Terry v. Ohio, 392 U.S. 1 (1968).
[J-70-2021] - 10
cannot distinguish between contraband marijuana and medical marijuana legally
consumed by a substantial number of Pennsylvanians based on odor alone, just as police
cannot determine from a person’s possession of a concealed firearm that he or she is
unlicensed to carry it concealed.” Id. In addition, the court rejected the Commonwealth’s
position that the MMA acts as an affirmative defense to marijuana violations, as the
Legislature expressed no such intent in the MMA.
Next, the Superior Court noted that Fourth Amendment precedent requires the
presence of individualized suspicion to justify otherwise constitutionally protected
searches and seizures of a person. Id. at 1287. Again relying upon Hicks, the court
observed that many Pennsylvania citizens can legally possess and consume marijuana
under the MMA. Thus, the court submitted, “The odor of marijuana alone, absent any
other circumstances, cannot provide individualized suspicion of criminal activity when
hundreds of thousands of Pennsylvanians can lawfully produce that odor.” Id.
However, according to the court, the smell of marijuana provides police with
“probabilistic suspicion of criminal activity based on the fact that most citizens cannot
legally consume marijuana.” Id. In other words, the smell of marijuana can be a factor in
providing police with probable cause to search a particular place. The Superior Court
concluded that the trial court failed to appreciate this nuance, as it allegedly “afforded the
odor of marijuana no weight in its determination that police lacked probable cause to
search [Appellant’s] vehicle.” Id. At this point, the Superior Court outlined the
Commonwealth’s argument that the trial court did not adequately consider several other
potential factors that could have supported a finding of probable cause to search the
vehicle in which the troopers found Appellant.
Specifically, the Commonwealth argued that the trial court did not appropriately
consider or weigh the following factors in conducting its probable cause analysis: (1)
[J-70-2021] - 11
Trooper Prentice’s training and experience in narcotics investigations; (2) the fact that
Trooper Prentice identified the area where the troopers stopped the vehicle as a high
crime area; and (3) Appellant’s statements and demeanor throughout the stop. As to
these alleged factors, the Superior Court ultimately concluded that the trial court “failed
to provide . . . discrete credibility assessments relevant to the other potential factors
affecting probable cause in its opinion.” Id. at 1288. To illustrate, the Superior Court
suggested that the trial court did not assess whether the vehicle stop occurred in a high
crime area or analyze Appellant’s demeanor during the stop. Consequently, the Superior
Court concluded that it should vacate the trial court’s order which granted Appellant’s
motion to suppress and remand the matter to the trial court for reconsideration of its
suppression ruling.
The Superior Court dedicated the remainder of its opinion to addressing the
Commonwealth’s contention that the trial court erred by granting Appellant’s petition for
a writ of habeas corpus and dismissing the charge of possession of a small amount of
marijuana, a claim that is not at issue in this appeal. The Superior Court held that, given
its disposition of the Commonwealth’s first issue, the portion of the trial court’s order
granting Appellant habeas relief also should be vacated and reconsidered, following the
trial court’s disposition of Appellant’s suppression issue.
The late Honorable Eugene Strassburger, III, penned a brief but thoughtful
concurring opinion. Judge Strassburger joined the Majority Opinion in its entirety. He
wrote “separately to note [his] discontent with the Commonwealth’s reliance on the ‘high-
crime area’ factor in support of a finding of probable cause.” Id. at 1291 (Strassburger,
J., concurring). Judge Strassburger expressed his view that “the status of the
neighborhood at issue as a ‘high-crime area’ should not be relevant to the probable cause
determination.” Id. In his opinion, “[p]eople who live in poor areas that are riddled with
[J-70-2021] - 12
crime do not have fewer constitutional rights than people who have the means to live in
‘nice’ neighborhoods.” Id. The two other judges on the panel joined Judge Strassburger’s
Concurring Opinion.
III. Allowance of Appeal
Appellant petitioned this Court for allowance of appeal, which was granted, limited
to the following issues:
(1) What weight, if any, should the odor of marijuana be given in determining
whether probable cause exists for a warrantless vehicle search, in light of
the enactment of the Medical Marijuana Act, 35 P.S. § 10231.101 et seq.?
(2) To what extent does this Court’s decision in Commonwealth v. Hicks,
652 Pa. 353, 208 A.3d 916 (2019), apply to probable cause determinations
involving the possession of marijuana following the enactment of the
Medical Marijuana Act, 35 P.S. § 10231.101 et seq.?
Commonwealth v. Barr, 252 A.3d 1086, 1087 (Pa. 2021).7
IV. Parties’ Arguments
A. Appellant’s Argument8
Appellant first contends that the trial court was correct in holding that the troopers
who searched his vehicle erroneously relied upon the smell of marijuana to establish
probable cause. He posits that the “plain smell” doctrine as it relates to marijuana rests
upon two grounds: (1) the per se illegality of marijuana; and (2) the purported ability of
law enforcement to detect readily the substance’s unique aroma. Appellant’s Brief at 21
(citing Commonwealth v Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984) (providing
7 These issues are inextricably intertwined; thus, we will address them and the parties’
arguments together. We further note that the overarching issue in this case requires
consideration of how the smell of marijuana impacts whether police have probable cause
to conduct a warrantless search of a vehicle. “This issue [] presents a question of law;
thus, our scope of review is plenary, and our standard of review is de novo.”
Commonwealth v. Hill, 238 A.3d 399, 409-10 (Pa. 2020).
8 The Defender Association of Philadelphia and the American Civil Liberties Union jointly
filed an amicus brief in support of Appellant.
[J-70-2021] - 13
that the plain smell of marijuana alone establishes probable cause due to marijuana’s
distinctive odor and its status as an illegal drug)).
These two grounds, Appellant submits, were eliminated in 2016 when the General
Assembly enacted the MMA. After passage of the Act, he argues, marijuana is no longer
per se illegal. He further asserts that the expert testimony of Dr. Gordon, which the trial
court credited at the suppression hearing, establishes that there is no discernable
difference between the appearance or odor of lawful medical marijuana and that of illegal
marijuana; the chemical composition of both types of marijuana are the same. Appellant
further maintains that the record supports the trial court’s findings that: (1) he was
licensed to possess and use medical marijuana at the time of the vehicle search and his
arrest, Trial Court Opinion, 8/2/2019, at 5; (2) he provided that license to the troopers
prior to the search, id.; (3) Trooper Prentice was unfamiliar with how a person ingests
green, leafy medical marijuana and mistakenly believed that the ingestion of medical
marijuana by vape pen created no odor, id.; and (4) Trooper Heimbach was unaware of
how medical marijuana was ingested and believed mistakenly that green, leafy marijuana
was illegal and not utilized for medicinal purposes, id.Appellant acknowledges that the “determination of whether probable cause exists
to support a warrantless search or seizure is based on an evaluation of the totality of the
circumstances observed by the officer when making the arrest.” Appellant’s Brief at 19
(citing Commonwealth v. Banks, 658 A.2d 752 (Pa. 1995)). Nevertheless, Appellant
posits, in the post-MMA era, the smell of marijuana cannot establish an individualized
suspicion of criminal activity. Thus, he maintains, the odor of marijuana should be given
no weight at all in determining whether probable cause exists to conduct a warrantless
vehicle search.
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In this regard, Appellant challenges specific passages of the Superior Court’s
opinion referencing the general illegality of marijuana. Appellant’s Brief at 31 (citing Barr,
240 A.3d at 1287 (providing that the smell of marijuana may provide to police “a general,
probabilistic suspicion of criminal activity based on the fact that most citizens cannot
legally consume marijuana”)). This “general, probabilistic suspicion of criminal activity,”
Appellant contends, is unsupportable, as is the Superior Court’s reasoning that because
most people are not licensed to smoke marijuana, the odor of marijuana is probably
deriving from someone unlicensed under the MMA. Appellant’s Brief at 33 (citing Barr,
240 A.3d at 1287 (holding that “[t]he general illegality of marijuana under the CSA cannot
simply be ignored merely because it is lawfully used in limited circumstances under the
MMA and, thus, we must reject the trial court’s conclusion that the odor of marijuana
provides no indication of criminal activity”)). Appellant submits that the Superior Court’s
analysis in this regard is the antithesis of particularized suspicion that is required to
establish probable cause to justify a search or seizure under the Fourth Amendment.
Moreover, contrary to the Superior Court’s determination, Appellant avers that the
warrantless search of the vehicle was based exclusively on the odor of marijuana
emanating from it. Appellant’s Brief at 27-29 (citing N.T., 7/17/2019, at 69-70 (answering
in the affirmative when Trooper Prentice was asked whether he explained to the vehicle’s
occupants that the odor of marijuana provided probable cause to search the vehicle), id.
at 71-72 (answering in the affirmative when Trooper Prentice was asked whether he
searched the car “based upon the burnt smell of marijuana in that car”), id. at 128-29
(providing that Trooper Heimbach searched the vehicle because she detected the odor
of burnt marijuana). Absent any additional factors suggesting probable cause that
criminal activity was occurring, Appellant maintains that the search of the vehicle in which
he was riding was constitutionally unsupportable.
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Lastly, Appellant contends, this Court’s decision in Hicks governs the instant
appeal, as it stands for the proposition that where the possession of an item is lawful due
to the grant of a license to possess it, that possession is not suggestive of criminal activity
and, thus, cannot contribute to a finding of probable cause. Stated differently, Appellant
argues that Hicks affords him constitutional protection from a search and seizure based
exclusively upon his lawful engagement in a commonly licensed activity. Recognizing
that the licensed activity in the two cases differ (lawful marijuana possession or use in this
case, as opposed to lawful concealment of a firearm in Hicks), Appellant submits that the
legal analysis remains the same.
In Appellant’s view, this Court in Hicks contemplated the application of its holding
to other licensed activities. Appellant’s Brief at 57 (citing Hicks, 280 A.3d at 944-45
(stating that “[i]f the consequence of our decision is that future courts afford meaningful
Fourth Amendment protection to individuals engaged in other commonly licensed
activities, that result is preferable to our allowance of governmental overreach that
undermines the individual freedom that is essential to our way of life in this constitutional
republic”)). He posits that the Superior Court ignored this sentiment when it distinguished
Hicks based upon an inappropriate “inference of illegality” arising from the possession or
use of marijuana in the post-MMA world. Appellant relies upon the affirmation in Hicks
that “individualized suspicion of wrongdoing remains essential under the Fourth
Amendment,” Hicks, 208 A.3d at 938, and finds that the Superior Court’s “general
probabilistic suspicion” precept is irreconcilable with that mandate.9
9 Further, Appellant finds unpersuasive the intermediate court’s attempt to distinguish
Hicks based on its factual premise involving a Terry stop, as opposed to a warrantless
search of a vehicle as occurred here, because a warrantless search requires satisfaction
of a more stringent standard (probable cause) than that required for an investigative
detention (reasonable suspicion).
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B. Commonwealth’s Argument10
In response, the Commonwealth disputes Appellant’s contention that the
enactment of the MMA eliminated the smell of marijuana as an appropriate factor to
consider when determining whether probable cause exists. It emphasizes the Superior
Court’s conclusion that the “MAA did not legalize marijuana nor did it render possession
or use of marijuana presumptively legal.” Commonwealth’s Brief at 12 (quoting Barr, 243
A.3d at 1285-86). Instead, the Commonwealth maintains, the MMA simply “provides a
very limited and controlled vehicle for the legal use of medical marijuana by persons
qualified under the MAA.” Commonwealth’s Brief at 13 (citing Commonwealth v. Jezzi,
208 A.3d 1105, 1115 (Pa. Super. 2019)).
The Commonwealth cites the MMA’s strict guidelines for the lawful purchase,
possession, and use of marijuana, as reflected in 35 P.S. § 10231.303, and its
enumeration of unlawful activities relating to medical marijuana, as provided in 35 P.S.
§ 10231.304(b). Moreover, it contends, enactment of the MMA did not abrogate the CSA,
which identifies marijuana as a prohibited substance at 35 P.S. § 780-104(1)(iv). Finally,
the Commonwealth emphasizes that, while legal, medical marijuana can impair driving,
and the MMA did not alter the Motor Vehicle Code’s prohibition on driving under the
influence of controlled substances, including marijuana. Commonwealth’s Brief at 13
(citing 75 Pa.C.S. § 3802(d)(1)(i) (providing that “[a]n individual may not drive, operate
or be in actual physical control of the movement of a vehicle” where the individual’s blood
contains any amount of a “Schedule I controlled substance,” as defined in the CSA).
Accordingly, the Commonwealth posits, the MMA did not alter the well-settled
totality of the circumstances test utilized to establish probable cause. Commonwealth’s
10The Pennsylvania District Attorneys Association filed an amicus brief in support of the
Commonwealth.
[J-70-2021] - 17
Brief at 6 (citing Illinois v. Gates, 462 U.S. 213 (1983) (establishing the totality of the
circumstances test for determining whether a request for a search warrant under the
Fourth Amendment is supported by probable cause)). It submits that the Superior Court
properly concluded that, while the smell of marijuana alone cannot, in and of itself,
establish probable cause to support a search in the post-MMA era, the odor of marijuana
is a relevant factor to consider when examining the totality of the circumstances.
In applying the totality-of-the-circumstances test, the Commonwealth argues,
police officers should be permitted to consider all relevant factors including, inter alia, the
smell of marijuana, the presentation of a card indicating MMA qualification, and the
implication of statements or behavior of the suspect. See Commonwealth’s Brief at 14
(citing Maryland v. Pringle, 540 U.S. 366, 372 (2003) (requiring a reviewing court, when
determining the existence of probable cause: (1) to consider the whole picture, as
opposed to evaluating each fact in isolation; and (2) not to dismiss outright any
circumstances that may be susceptible of innocent explanation)). In the Commonwealth’s
view, this totality of the circumstances includes factors which may arguably be innocent
in nature. Id. at 16-17 (citing Gates, 462 U.S. at 243 n.13 (providing that “[i]n making a
determination of probable cause the relevant inquiry is not whether particular conduct is
‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of non-
criminal acts”)). Further, it maintains, police officers must be permitted to employ their
experience, common sense, and observations of all the factors before them to determine
whether explanations given by the suspect for certain behavior are credible. Id. at 17.
Additionally, the Commonwealth contends that the Superior Court properly
determined that Hicks does not govern this appeal, notwithstanding the General
Assembly’s enactment of the MMA. It submits that Hicks did not alter the test for probable
cause or render the smell of marijuana irrelevant in an analysis of the totality of the
[J-70-2021] - 18
circumstances. Rather, the Commonwealth posits, Hicks merely held that carrying a
concealed weapon in public, in and of itself, does not establish reasonable suspicion to
stop and seize a person. Notably, it argues, Hicks expressly instructed that its holding “is
confined to the lawfulness of seizures based solely upon the possession of a concealed
firearm – conduct that is widely licensed and lawfully practiced by a broad range of
people.” Commonwealth’s Brief at 22-23 (citing Hicks, 208 A.3d at 945).
The Commonwealth submits that possession of marijuana is not akin to
possession of a concealed weapon because the CSA prohibits the possession or use of
marijuana, and the MMA did not abrogate that statute. Rather, it reiterates that the MMA
merely carved out a limited exception to the general rule that marijuana is illegal. The
Commonwealth suggests that the Superior Court correctly concluded that unlike firearms,
marijuana remains presumptively illegal in Pennsylvania. Thus, the Commonwealth
asserts, “the odor of marijuana has not lost its ‘incriminating’ smell by virtue of its legality
for some, because it in fact remains illegal for the vast majority of Pennsylvania residents.”
Commonwealth’s Brief at 24.
Finally, while not asserting expressly that the Superior Court erred in remanding
the matter to the trial court to reconsider the totality of the circumstances, the
Commonwealth argues that the search in this case was supported by probable cause. In
support of this proposition, it asserts that: (1) Trooper Prentice had been an officer for
ten years, had investigated marijuana crimes, and was trained to identify the smell of
marijuana; (2) Trooper Prentice was familiar with the “corridor” where the stop occurred,
as he had investigated purported drug deals and claims of stolen firearms in that area;
(3) Trooper Prentice observed the vehicle in which Appellant was a passenger commit a
traffic violation and lawfully stopped the vehicle, after which he detected the odor of burnt
marijuana emanating from the vehicle’s open window; (4) Appellant became
[J-70-2021] - 19
argumentative when the occupants of the vehicle were directed to exit the car and
informed Officer Heimbach that they were not getting out of the car; and (5) based on his
training, Officer Prentice believed that Appellant’s statements and conduct suggested that
criminal activity was afoot.
V. Analysis
We begin by highlighting the general principles of law that govern these
circumstances. We review trial court suppression orders to determine whether the factual
findings are supported by the record and whether the legal conclusions drawn from those
facts are correct. Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017). “We are
bound by the suppression court’s factual findings so long as they are supported by the
record.” Id. “In reviewing an appeal by the Commonwealth of a suppression order, we
may consider only the evidence from the [defendant’s] witnesses along with the
Commonwealth’s evidence which remains uncontroverted.” Commonwealth v. Brown,
996 A.2d 473, 476 (Pa. 2010). Our scope of review of suppression court factual findings
is limited to the suppression hearing record. Yandamuri, 159 A.3d at 516. We, however,
are not bound by a suppression court’s conclusions of law; “rather, when reviewing
questions of law, our standard of review is de novo and our scope of review
is plenary.” Hicks, 208 A.3d at 925 (quoting Commonwealth v. Wilmer, 194 A.3d 564,
567 (Pa. 2018)).
Turning to the substantive law at issue, we observe that “[b]oth the Fourth
Amendment to the United States Constitution and Article I, Section 8 of the Pennsylvania
Constitution protect individuals from unreasonable searches and seizures by police in
areas where individuals have a reasonable expectation of privacy.”11 Commonwealth v.
11 The Fourth Amendment of the United States Constitution provides as follows:
[J-70-2021] - 20
Loughnane, 173 A.3d 733, 741 (Pa. 2017). If a person has a reasonable expectation of
privacy in a place, then these constitutional provisions generally require police to obtain
a warrant to search the place; a search warrant must be supported by probable cause
and issued by a neutral, detached magistrate. Id. Warrantless searches are
presumptively unreasonable under the state and federal constitutions. Commonwealth
v. McCree, 924 A.2d 621, 627 (Pa. 2007).
“Probable cause” is a practical, non-technical concept. Commonwealth v.
Coleman, 830 A.2d 554, 560 (Pa. 2003). To establish probable cause, the
Commonwealth must demonstrate that a search meets the requirements of the totality-
of-the-circumstances” test. Commonwealth v. Jones, 988 A.2d 649, 655-56 (Pa. 2010).
Pursuant to that test, when presented with an application for a warrant, “[a] magistrate is
to make a practical, common-sense decision whether, given all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Commonwealth v. Jones, 668
A.2d 114, 116-17 (Pa. 1995) (citation and some internal quotation marks omitted).
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. CONST., amend. IV.
Article I, Section 8 of the Pennsylvania Constitution states:
The people shall be secure in their persons, houses, papers and
possessions from unreasonable searches and seizures, and no warrant to
search any place or to seize any person or things shall issue without
describing them as nearly as may be, nor without probable cause,
supported by oath or affirmation subscribed to by the affiant.
PA. CONST., art. I, § 8.
[J-70-2021] - 21
There, however, are exceptions to the general warrant requirement. For example,
the police may conduct a warrantless search of a home if they have probable cause to
believe that contraband or evidence of a crime will be found in the home and exigent
circumstances are present. See Commonwealth v. Roland, 637 A.2d 269, 270 (Pa. 1994)
(“Absent probable cause and exigent circumstances, the entry of a home without a
warrant is prohibited under the Fourth Amendment.”). Another exception, which is
relevant here but is no longer part of Pennsylvania jurisprudence, is the federal
automobile exception. This exception allowed police at the time the incident occurred to
conduct a warrantless search or seizure of an automobile so long as it is supported by
probable cause, and no separate finding of exigent circumstances was required.12
Loughnane, 173 A.3d at 741.
Under these circumstances, “police have probable cause where the facts and
circumstances within the officer’s knowledge are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is being
committed.” Commonwealth v. Hernandez, 935 A.2d 1275, 1284 (Pa. 2007) (quoting
Commonwealth v. Rogers, 849 A.2d 1185, 1192 (Pa. 2004)). Whether police had
probable cause to conduct a warrantless search also is evaluated under a traditional
totality-of-the-circumstances test. Id.Concerning the law as it pertains to marijuana, it is indisputable that, prior to the
enactment of the MMA, the CSA rendered marijuana per se illegal, inter alia, to possess.
12 At the time of the vehicular search at issue in this case, this Court’s plurality decision
in Gary, supra, which adopted the automobile exception for purposes of the Pennsylvania
Constitution, was considered to control the law in this area. However, since that time,
this Court decided Alexander, supra, which held that Article I, Section 8 of the
Pennsylvania Constitution requires both a showing of probable cause and exigent
circumstances to justify a warrantless search of an automobile. Because this matter is
resolved based upon a lack of probable cause, we need not address the application of
Alexander or whether the circumstances demonstrate exigency.
[J-70-2021] - 22
See, e.g., 35 P.S. § 780-113(a)(31) (rendering it illegal for persons to possess small
amounts of marijuana). Due to the illegal nature of marijuana and because of its distinct
odor, the Superior Court often has employed the so-called “plain smell” doctrine when
called upon to discern whether police had probable cause to conduct a warrantless
search of a vehicle. Stated succinctly, that doctrine provides that, if a police officer smells
marijuana in a place where the officer is justified to be, then the odor of marijuana alone
may be sufficient to establish probable cause to conduct a search. Commonwealth v.
Stainbrook, 471 A.2d 1223, 1225 (Pa. Super. 1984) (explaining the plain smell doctrine);
see also In Interest of A.A., 195 A.3d 896, 904 (Pa. 2018) (stating that “the odor of
marijuana alone, particularly in a moving vehicle, is sufficient to support at least
reasonable suspicion, if not the more stringent requirement of probable cause”).
To the extent that the “plain smell” doctrine would allow the smell of marijuana
alone to establish probable cause to conduct a warrantless search of a vehicle, we agree
with Appellant that the enactment of the MMA in 2016 undermined the rationale that could
justify such a result. In passing the MMA, the General Assembly stated its intent to
“[p]rovide a program of access to medical marijuana which balances the need of patients
to have access to the latest treatments with the need to promote patient safety” and to
“[p]rovide a safe and effective method of delivery of medical marijuana to patients.” 35
P.S. § 10231.102(3)(i) and (ii). Pursuant to the MMA, if a patient receives certification
from a practitioner and possesses a valid identification card from the Commonwealth’s
Department of Health, then that patient can possess and consume medical marijuana in
a manner that is consistent with the MMA. See, e.g., 35 P.S. § 10231.303(b)(1)(i) (stating
that medical marijuana may be dispensed to “a patient who receives a certification from
a practitioner and is in possession of a valid identification card issued by the department”).
[J-70-2021] - 23
Notably, there is no dispute that dry leaf or plant medical marijuana is available to
certified patients and can be consumed by way of vaporization.13 We further observe that
the MMA clearly states that, to the extent that the Act conflicts with the CSA, the MMA
“shall take precedence.” 35 P.S. § 10231.2101. “In other words,” as the Superior Court
astutely stated, “compliance with the MMA will not constitute a crime under the CSA.”
Barr, 240 A.3d at 1278.
We conclude that the MMA makes abundantly clear that marijuana no longer is
per se illegal in this Commonwealth. Accordingly, the enactment of the MMA eliminated
this main pillar supporting the “plain smell” doctrine as applied to the possession or use
of marijuana. Indeed, so long as a patient complies with the dictates of the MMA, that
person can legally possess and consume various forms of medical marijuana, including
the plant itself. Accordingly, the smell of marijuana alone cannot create probable cause
to justify a search under the state and federal constitutions.
Yet, as the Superior Court highlighted, despite the enactment of the MMA, the CSA
still renders possession of marijuana illegal for those not qualified under the MMA. Thus,
the smell of marijuana indisputably can still signal the possibility of criminal activity. Given
this dichotomy, we conclude that the odor of marijuana may be a factor, but not a stand-
alone one, in evaluating the totality of the circumstances for purposes of determining
whether police had probable cause to conduct a warrantless search.
In so doing, we emphasize that the realization that a particular factor contributing
to probable cause may involve legal conduct does not render consideration of the factor
per se impermissible, so long as the factor is considered along with other factors that, in
combination, suggest that criminal activity is afoot. As recognized by the Commonwealth,
the totality-of-the-circumstances analysis encompasses the consideration of factors that
13 It, however, remains illegal to smoke this product. 35 P.S. § 10231.304(b)(1).
[J-70-2021] - 24
may arguably be innocent in nature. See Gates, 462 U.S. at 243 n.13 (providing that “[i]n
making a determination of probable cause the relevant inquiry is not whether the
particular conduct is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to
particular types of non-criminal acts”).
While this Court’s analysis in Hicks does not directly resolve this appeal, we find
that it substantially supports our conclusion in the matter sub judice.14 Unlike the instant
case, Hicks did not involve a warrantless search of a vehicle based exclusively upon a
trooper’s smell of marijuana. In Hicks, the defendant stopped at a gas station to fuel his
vehicle, spoke with an acquaintance, and showed that individual his concealed firearm
before he proceeded to enter the convenience store to pay for his gasoline. Surveillance
camera footage revealed that the defendant was carrying the concealed weapon as he
entered the store. Police officers had been alerted to this fact, and when the defendant
exited the establishment, police officers seized him at gunpoint, removed him from his
vehicle, and restrained him based exclusively upon his possession of a concealed firearm
in public, which, it subsequently was determined, the defendant was licensed to possess
and carry. During this incident, officers retrieved the defendant’s firearm from a holster
on his waistband, when they noticed the odor of alcohol emanating from him. They also
discovered a small amount of marijuana in his pocket.
After being charged with, inter alia, driving under the influence of alcohol and
possession of marijuana, the defendant filed a motion to suppress the evidence recovered
in the search. The trial court denied suppression based upon the Superior Court’s ruling
14 As the Commonwealth emphasizes, we stated expressly in Hicks that “[o]ur holding is
confined to the lawfulness of seizures based solely upon the possession of a concealed
firearm – conduct that is widely licensed and lawfully practiced by a broad range of
people.” Hicks, 208 A.3d at 945; see also id. at 944 (expressly noting that the Court was
not reaching any issue relating to the prohibition upon the possession of marijuana in light
of the passage of the MMA).
[J-70-2021] - 25
in Commonwealth v. Robinson, 600 A.2d 957 (Pa. Super. 1991), which held that the
“possession of a concealed firearm by an individual in public is sufficient to create a
reasonable suspicion that the individual may be dangerous, such that an officer can
approach the individual and briefly detain him in order to investigate whether the person
is properly licensed.” Id. at 959. The defendant in Hicks was subsequently convicted of
driving under the influence of alcohol, and later appealed his judgment of sentence,
challenging the denial of suppression. The Superior Court affirmed the defendant’s
judgment of sentence based on its previous decision in Robinson.
This Court granted allowance of appeal in Hicks to consider the viability of the
Robinson holding. Upon close examination of the issue, we held that the Robinson rule
subverts the fundamental protections of the Fourth Amendment and contravenes Terry v.
Ohio, 392 U.S. 1 (1968), which requires law enforcement officers, in effectuating a lawful
stop and frisk of an individual, to suspect reasonably: (1) that the person apprehended is
committing or has committed a criminal offense; and (2) that the person stopped is armed
and dangerous. Hicks, 208 A.3d at 921
In analyzing whether the requisites of Terry were established, this Court found “no
justification for the notion that a police officer may infer criminal activity merely from an
individual’s possession of a concealed firearm in public.” Hicks, 208 A.3d at 936.
Acknowledging that it is unlawful to carry a concealed firearm if the individual is statutorily
prohibited from firearm ownership or unlicensed to carry a concealed firearm, we
emphasized that it is not a criminal offense for a license holder to carry a concealed
firearm in public. Id.
We explained that “[u]nless a police officer has prior knowledge that a specific
individual is not permitted to carry a concealed firearm, and absent articulable facts
supporting reasonable suspicion that a firearm is being used or intended to be used in a
[J-70-2021] - 26
criminal manner, there simply is no justification for the conclusion that the mere
possession of a firearm, where it lawfully may be carried, is alone suggestive of criminal
activity.” Id. at 937. This Court reasoned that the Robinson rule eliminated the
requirement of individualized suspicion, and misapplied the totality of the circumstances
test. Id. Further, we explained, the Robinson rule impermissibly allowed the conduct for
which the individual obtained a license to serve as the exclusive basis for the deprivation
of the licensee’s liberty. Id. at 940. Accordingly, we held that “with respect to the conduct
at issue – in which hundreds of thousands of Pennsylvanians are licensed to engage
lawfully, [ ] that conduct alone is an insufficient basis for reasonable suspicion that criminal
activity is afoot.” Id. at 945.
Applying such jurisprudence to the facts presented, we conclude that if lawful
possession of an item due to legislative authorization to possess it cannot, in and of itself,
permit an officer to infer criminal activity for purposes of effectuating a Terry stop, lawful
possession of an item pursuant to legislative authorization is alone insufficient to satisfy
the more stringent requirement of probable cause of criminal activity required to conduct
a warrantless search of a vehicle. See Commonwealth v. Rogers, 849 A.2d 1185, 1189
(Pa. 2004) (observing that the reasonable suspicion standard that must be satisfied to
effectuate a Terry stop is less stringent than the probable cause standard).
The fact that the legislatively approved activity in the instant case differs from that
at issue in Hicks does not alter our analysis. As in Hicks, the lawful activity cannot alone
be the basis for probable cause to search a vehicle without a warrant. Like the carrying
of a concealed weapon by a licensed individual in Hicks, it is simply not a crime for an
individual to possess or use marijuana if the requirements of the MMA have been
satisfied. Thus, one’s liberty may not be abridged on the sole basis that a law
enforcement officer detected the smell of marijuana, because, to do so, would eliminate
[J-70-2021] - 27
individualized suspicion required for probable cause and would misapply the totality-of-
the-circumstances test. Notwithstanding, for the reasons set forth supra, consistent with
the reasoning in Hicks, the lawful possession and use of marijuana, in conjunction with
other articulable facts supporting a finding of probable cause, may be considered in the
requisite analysis of the totality of the circumstances.
VI. Application
As we discussed in detail supra, the trial court concluded as a matter of fact that
the troopers searched the vehicle in question based solely on the odor of marijuana
emanating from that vehicle. The record supports this conclusion. By way of example,
we observe that, during his cross-examination at the suppression hearing, Trooper
Prentice stated on at least two occasions that he conducted a probable cause search of
the vehicle in question based upon the smell of marijuana. N.T., 7/17/2019, at 69-70 and
71-72. Likewise, Trooper Heimbach explicitly stated that she searched the vehicle
because she “detected the odor of burnt marijuana[.]” Id. at 128-29.
Further, unlike the Superior Court, we are unpersuaded by the Commonwealth’s
contention that the trial court failed to consider adequately other factors that could have
established that the troopers had probable cause to search the vehicle. First, the trial
court’s opinion makes abundantly clear that the court was aware of Trooper Prentice’s
training and experience as it relates to narcotics. However, as we noted above, the court
specifically concluded that the troopers’ education related to marijuana was lacking as it
was limited to walking past a controlled marijuana burn for a few seconds and that the
“troopers lacked knowledge about the specifics of legal/medical marijuana and its usage.”
Trial Court Opinion, 8/2/2019, at 15-16 n.19.
Second, the characteristics of the neighborhood where the troopers stopped the
vehicle are legally irrelevant to whether the troopers had probable cause to search the
[J-70-2021] - 28
vehicle. Specifically, the record makes clear that the troopers did not witness the
occupants of the vehicle do anything suspicious from the time that the troopers initially
observed the vehicle turn around until the time that the troopers eventually pulled over
the vehicle for allegedly failing to stop properly. Because the troopers simply stopped the
vehicle for a minor traffic violation and then smelled marijuana upon approaching the
vehicle, it is of no moment whether the area in which the stop occurred is known as a
“high crime area.”
Third and last, the trial court’s opinion reflects that the court was well aware of
Appellant’s statements and demeanor during the stop. See, e.g., Trial Court Opinion,
8/2/2019, at 11 (“When Trooper Prentice overheard the passenger arguing with Trooper
Heimbach and stating that ‘no one is getting out of this fucking car,’ Trooper Prentice
walked back to the driver’s side door.”). Given this awareness, it is more than reasonable
to conclude that the court implicitly discredited Trooper Prentice’s contention that such
behavior from a passenger is indicative of criminal activity. 15 The trial court acted within
its discretion in this regard, and contrary to the Superior Court’s assessment, the trial
court was not obligated to elaborate in detail its reasons for reaching this conclusion.
VII. Conclusion
We reiterate that the record supports the trial court’s conclusion that the troopers
searched the car in question based solely on the odor of marijuana coming from it. We
further hold that the odor of marijuana alone does not amount to probable cause to
conduct a warrantless search of a vehicle but, rather, may be considered as a factor in
examining the totality of the circumstances. Consequently, here, the trial court properly
granted Appellant’s motion to suppress. For these reasons, we vacate the judgment of
15 At the suppression hearing, Trooper Prentice stated that he was trained that, when a
passenger takes over a traffic stop and becomes argumentative, “there’s more than just
a traffic violation going on.” N.T., 7/17/2019, at 31.
[J-70-2021] - 29
the Superior Court, reinstate the trial court order granting Appellant’s motion to suppress,
and remand to the trial court for proceedings that are consistent with this opinion.
Justices Todd, Donohue and Wecht join the opinion.
Justice Saylor files a concurring opinion.
Justice Dougherty files a concurring and dissenting opinion in which Justice Mundy
joins.
Justice Mundy files a concurring and dissenting opinion.
[J-70-2021] - 30