This page contains the current year’s legal cases and statutes that are relevant to municipal police officers throughout the Commonwealth, as these cases have a direct impact on how police officers perform their day-to-day duties.
12/29/21: On December 29, 2021 the Pennsylvania Supreme Court issued a decision in Commonwealth v. Barr.
In Barr, two Pennsylvania State Troopers, in full uniform and in a marked vehicle, observed Barr’s vehicle commit a motor vehicle violation, and effectuated a traffic stop. Commonwealth v. Barr, No. 28 MAP 2021. Upon approach, one of the Troopers smelled the odor of burnt marijuana. The second Trooper smelled the odor of burnt and raw marijuana through the open window of the vehicle. Barr became uncooperative with Troopers when the operator of the vehicle, Barr’s wife, was asked to step out so the Troopers could further assess her ability to safely operate the motor vehicle. The Troopers advised the occupants that they were going to search the vehicle believing the odor of marijuana provided them with probable cause, pursuant to Commonwealth v. Gary (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).
At that time, Barr provided a medical marijuana identification card, which legally permitted him to possess and ingest medical marijuana. Upon search of the vehicle, Troopers recovered a baggie of marijuana, a loaded handgun, and new and unused glassine packets consistent with drug packaging paraphernalia. The trial court granted Barr’s motion to suppress and held “the ‘plain smell’ of marijuana 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.” Barr, slip opinion pg. 6, citing Trial Court Opinion, 8/2/2019, at 14-15. After a ruling by the Superior Court, the matter was appealed to the Pennsylvania Supreme Court.
The Supreme Court accepted the Superior Court’s ruling that there is no per se “plain smell” rule. That is, “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.” Slip opinion pg. 24.
Officers must be able to explain the totality of the circumstances that led to their probable cause. Thought not an exhaustive list, factors that could be considered:
1. Officer’s training and experience with narcotics investigations,
2. The area of the vehicle stop,
3. Actor’s statements prior to the search,
4. Actor’s demeanor and any changes.
The Supreme Court further concluded, in light of their ruling in Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019)(holding that mere possession of a firearm, where it is lawfully carried, does not, alone, provide reasonable suspicion to permit a Terry frisk or investigative detention):
[I]f lawful possession of an item…cannot, in and of itself, permit an officer to infer criminal activity for purposes of effectuating a Terry stop, lawful possession of an item…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 Medical Marijuana Act (MMA) have been satisfied.
Barr, Slip opinion, pg. 27.
Officers should be aware of the legal requirements of the MMA. For instance, Medical Marijuana must be kept in the original packaging from an authorized dispensary. See 35 P.S. § 10231.303(b)(6) and § 10231.1308(a).
The Supreme Court relied heavily on the unrebutted defense witness, Dr. Gordon’s, expert opinion that, “vaping marijuana produces an odor and that there is no difference between the odor of legally vaped and illegally smoked marijuana.” Barr, Slip opinion pg 5. Troopers must be able to articulate the factors he/she uses in determining if a person is in unlawful possession of marijuana. While the odor of burnt marijuana emanating from a person or place is one factor in making that determination, Troopers must be prepared to explain his or her basis of knowledge of this fact, including his or her training related to the difference in the odor of smoked vs vaped marijuana, whether they were able to observe the mechanism by which the marijuana was ingested and any other lawful factors that may establish probable cause under the totality of the circumstances.
3/24/21: DL-26(3-21) PennDOT has revised and released new forms related to chemical test warnings as authorized by Sections 1547 (personal vehicles) and Section 1613 (commercial vehicles). The Bureau of Driver Licensing reports that the edits consisted of changing the maximum jail term and fine listed toward the end of the last sentence of the 3rd paragraph on the first form and the 2nd paragraph on the second form from five years and $10,000 to seven years and $15,000.
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