Can the Smell of Cannabis Get You Arrested?

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The distinctive odor of cannabis has long been a give-away exploited by law enforcement to justify a search of one’s vehicle, home or person. Many lives have been destroyed by this self-revealing nature of the plant. The matter has been brought before the courts many times, with some rulings favorable and others not. But with growing legal and cultural acceptance for cannabis, is the mere smell of weed still sufficient cause for a search that could potentially land you in jail? Pennsylvania doesn’t think so; on Dec. 29, the Pennsylvania Supreme Court ruled in favor of the Fourth Amendment, declaring that the smell of cannabis alone cannot be the basis to justify a warrantless search.   Fourth Amendment Victory in Keystone State  Last year’s ruling was prompted by events taking place in Allentown, Pa. in November of 2018, when state troopers stopped Timothy Oliver Barr II for a minor traffic violation—failing to stop at a solid white line. The officers said the cannabis smell was apparent at the car window. A loaded handgun and a small bag of cannabis—less than one gram—were found in the subsequent search of the vehicle. Pennsylvania’s medical marijuana has been in place since 2016, and both Barr and his wife (who was driving) showed their cards, indicating that they were enrolled in the state program. But the cannabis was in a plain unmarked baggie, with nothing to indicate it was purchased at a licensed dispensary. And in any event, the Pennsylvania program bars actual herbaceous cannabis. Charges were brought against Barr.   Swayed by the testimony of Dr. David Gordon, who had issued the medical marijuana cards and stated that smell alone could not indicate illegally obtained cannabis, the Lehigh County Court issued an order to suppress the evidence. But prosecutors argued that cannabis “has not lost its ‘incriminating’ smell by virtue of its legality for some,” and appealed to the state…

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