The opinion
[J-70-2021] [MO: Baer, C.J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
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
CONCURRING AND DISSENTING OPINION
JUSTICE DOUGHERTY DECIDED: December 29, 2021
Because “the smell of marijuana indisputably can still signal the possibility of
criminal activity[,]” I join the majority’s central holding “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.” Majority Opinion at 24. I write separately to elaborate on how, in my view, the
smell of marijuana retains salience in the probable cause analysis after the enactment of
the Medical Marijuana Act (“MMA”), 35 P.S. §§10231.101-10231.2110. I also write to
explain my dissent from the majority’s decision to reinstate the trial court’s suppression
order rather than remand to that court for further consideration.
Notwithstanding the legalization of medical marijuana for qualified patients, there
are still several ways in which the smell of marijuana can combine with other factors to
supply probable cause for a search. One is that an officer who smells marijuana may
also discover evidence of a violation of the MMA, which, in turn, may establish probable
cause to believe a crime has been committed. As the majority correctly explains, “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.” Majority Opinion
at 24. But the inverse is also true: if an individual does not comply with the MMA, that
person cannot legally possess or consume marijuana. In fact, failure to comply with the
MMA’s terms renders an individual’s possession or use of marijuana unlawful and
subjects him to criminal liability under the Controlled Substance, Drug, Device, and
Cosmetic Act (“CSA”), 35 P.S. §§780-101–780-144. See 35 P.S. §10231.304(a) (“Except
as provided in [the MMA], the use of medical marijuana is unlawful and shall . . . be
deemed a violation of the [CSA].”). Given this, several of the MMA’s prohibitions warrant
examination, because they highlight several ways in which the smell of marijuana can still
signal the possibility of criminal activity. See generally Commonwealth v. Hicks, 208 A.3d
916, 954 (Pa. 2019) (Dougherty, J., concurring) (“the legislature has the exclusive power
to pronounce which acts are crimes and to define crimes, and it is the elements of those
crimes that officers must consider when determining whether” the requisite cause exists)
(internal quotations, brackets, and citation omitted).
Section 10231.304(b)(1) presents the most straightforward example. That section
declares it “unlawful” to “[s]moke medical marijuana.” 35 P.S. §10231.304(b)(1). So, for
example, if an officer smells marijuana emanating from an individual smoking a joint, the
MMA would not be implicated; instead, the officer almost certainly would have probable
cause to believe the individual has violated Section 780-113(a)(31) of the CSA, 35 P.S.
§780-113(a)(31). Even in less clear-cut situations, evidence indicative of smoking (as
opposed to vaping), including the presence of paraphernalia such as pipes, bowls, bongs,
[J-70-2021] [MO: Baer, C.J.] - 2
rolling papers, etc., may in conjunction with the smell of marijuana give rise to probable
cause.
The marijuana’s packaging can also be indicative of criminal activity. A condition
for the “lawful use of medical marijuana” is that a patient’s marijuana “shall be kept in the
original package in which it was dispensed.” 35 P.S. §10231.303(b)(6). Testimony from
the suppression hearing reveals the likely rationale for this obligation:
On the outside of the box, and this is for any packaging, on the outside of
the package you have a label that is generated by the growing processor.
It has a barcode on it and that’s how we keep track. That’s part of the seed-
to-sale system. That’s how we keep track of the product.
N.T. 7/17/2019 at 192-93; see also 35 P.S. §10231.701 (requiring growers, processors,
and dispensaries to “implement an electronic inventory tracking system which shall be
directly accessible to the [Department of Health] through its electronic database that
electronically tracks all medical marijuana on a daily basis”). Regardless of the wisdom
of imposing this original packaging requirement, the statute is clear: for marijuana use to
be lawful, the patient “shall” keep any unused marijuana “in the original package in which
it was dispensed.” 35 P.S. §10231.303(b)(6).1 Thus, where an officer who smells
marijuana also observes its packaging (or lack thereof) and there is no barcode or other
1 The trial court plainly was of a different mind on this point. See, e.g., N.T. 7/17/2019 at
101 (“But is this what we’re going to do now? . . . Every small amount case where a
person has a [medical marijuana] card we’re going to say, but it’s not properly, you know,
in a container?”); id. at 178 (asking defense expert if he believed “that in contemplating
the legalization of marijuana that perhaps not enough thought was put into what happens
if it’s not in the right package?”); id. at 199-200 (expressing belief that “there is a huge
disconnect between the medical/legal professions” because the medical community “did
not contemplate that Pennsylvania would be arresting people and charging them for not
having marijuana . . . in the proper container”). Respectfully, whether a particular expert
or the medical community at large deem the original packaging requirement a wise
legislative choice is irrelevant. Since the provision is unambiguous, “the letter of it is not
to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §1921(b).
[J-70-2021] [MO: Baer, C.J.] - 3
identifying information that typically appears on the original packaging from a dispensary,
that could be enough to establish probable cause.2
Beyond the MMA, there is also the Motor Vehicle Code’s prohibition on driving
under the influence of controlled substances, which includes marijuana. See 75 Pa.C.S.
§3802(d)(1)(i) and (iii) (“[a]n individual may not drive, operate or be in actual physical
control of the movement of a vehicle” where “[t]here is in the individual’s blood any
amount of a [ ] Schedule I controlled substance . . . [or] metabolite” of such substance)
(emphasis added). This statute clearly indicates that, “despite the passage of the MMA,
it still is illegal in Pennsylvania to smoke or vape marijuana while driving.” Commonwealth
v. Grooms, 247 A.3d 31, 40 n.11 (Pa. Super. 2021) (citation omitted). As such, it is not
hard to envision a situation where the smell of marijuana could supply an officer with
probable cause to believe a driver, rather than a passenger, has violated the law. See,
e.g., Pennsylvania District Attorneys Association’s Brief at 18 (“[I]f an officer smells an
odor of burnt marijuana when approaching a vehicle solely occupied by the driver, that
likely means that the driver is smoking marijuana while driving or smoked marijuana
shortly before driving.”).3
2 Another prerequisite for the lawful use of medical marijuana is that “[a] patient or
caregiver shall possess an identification card whenever the patient or caregiver is in
possession of medical marijuana.” 35 P.S. §10231.303(b)(7). Here, appellant presented
a valid medical marijuana card to the officers. Parenthetically, though, I observe Section
10231.1103 of the MMA permits the Department of Health to “verify to law enforcement
personnel in an appropriate case whether . . . an identification card is valid[.]” 35 P.S.
§10231.1103.
3 More broadly, it remains an open question “whether an odor of marijuana alone
emanating from a moving vehicle is sufficient to establish ‘reasonable suspicion’ to allow
further investigation into whether a crime has or is being committed, such that after further
investigation, the totality of facts ripens into probable cause to search.” Grooms, 247
A.3d at 40 n.11 (emphasis omitted).
[J-70-2021] [MO: Baer, C.J.] - 4
Turning now to the disposition of this case, preliminarily, I agree with Justice
Mundy the applicable “test is not whether the troopers’ subjective reason for searching
the car surmounted constitutional scrutiny. Rather, an assessment of probable cause is
an objective one measured by examining the totality of the circumstances.” Concurring
and Dissenting Opinion at 1 (citations omitted). I further agree with the Superior Court’s
conclusion that “other potentially relevant factors were not considered by the trial court,
and the court’s credibility assessments of the testimony ostensibly establishing those
factors are not in the record.” Commonwealth v. Barr, 240 A.3d 1263, 1289 (Pa. Super.
2020).
For example, as Justice Mundy notes, it appears the trial court “[o]verlooked . . .
the fact that officers’ suspicions of criminal activity increased after [a]ppellant became
hostile, refused to let anyone get out of the car upon request by the officers, and required
additional police support to respond to the scene.” Concurring and Dissenting Opinion at
2.4 Although the majority baldly asserts “it is more than reasonable to conclude that the
[trial] court implicitly discredited Trooper Prentice’s contention that” appellant’s behavior
was “indicative of criminal activity[,]” Majority Opinion at 29, the record does not support
the majority’s position. In fact, the trial court carefully explained that the only portion of
4 Specifically, Trooper Prentice testified that appellant
informed me to “do my job and to just issue me a ticket.” From the SHIELD
training that I had received I know that when a passenger is taking over a
traffic stop and becoming argumentative that there’s more than just a traffic
violation going on. The other thing that also took place was, Ms. Barr asked
me to just write her a ticket and asked me to just move on. Again, another
indicator of a criminal incident. And no one of those specifics just
determines that it’s a criminal matter. It’s the totality of the circumstances
where they start adding up to lead you to believe that there is some sort of
criminal element that’s going on.
N.T. 7/17/2019 at 31-32; see id. at 29 (explaining appellant was “being argumentative”
and “refusing to let [his wife] exit the vehicle”).
[J-70-2021] [MO: Baer, C.J.] - 5
the testimony it deemed incredible was Trooper Prentice’s assertion that he smelled both
burnt and dry marijuana emanating from the car. See N.T. 7/17/2019 at 61 (“As the
factfinder, I’m going to state for the record, as is my responsibility, I am not calling this
witness a liar. I’m saying perhaps he is not educated enough on the smells because one
smell is going to trump the other.”); Trial Court Opinion, 8/2/2019 at 4 n.10 (“Trooper
Prentice testified that he could smell the odor of raw and burnt marijuana through the
open window when he was at the rear of the vehicle. This Court takes issue with this
testimony of Trooper Prentice and finds it not to be credible.”) (emphasis added). I find
no basis in the record for concluding the trial court discredited any testimony other than
this limited point.
Aside from appellant’s behavior, there are other factors that could be relevant to
the probable cause analysis that were ignored by the trial court. For one, Trooper
Prentice testified he observed the car after midnight pull out of a particular apartment
complex where “a number of stolen gun and [drug] cases originate from[.]” N.T. 7/17/2019
at 14. As well, Trooper Prentice pointedly explained that, “[b]ased off of the odor of burnt
marijuana [he] didn’t know if [the driver] was possibly DUI.” Id. at 69. And there was the
presence of an individual in the backseat of the car who did not present a medical
marijuana card yet appeared “dazed and out of it.” Id. at 29.5
Because these potentially relevant factors were not considered by the trial court in
their totality, I agree with the Superior Court that “the most prudent course of action is to
remand for reconsideration by the trial court under the appropriate standard.” Barr, 240
A.3d at 1289. I therefore respectfully dissent from the majority’s decision to reverse the
5 The officers also discovered loose marijuana on the floor of the car and in a plain Ziploc
bag bearing “no reference numbers, no dispensary distributor numbers, nothing.” N.T.
7/17/2019 at 35; see id. at 81 (explaining the bag had “no markings on it in any way,
shape, or form”). However, this evidence appears to have been discovered during the
initial search of the interior of the car. See id. at 33-34.
[J-70-2021] [MO: Baer, C.J.] - 6
Superior Court’s remand order and reinstate the trial court’s order granting appellant’s
motion to suppress.
Justice Mundy joins this concurring and dissenting opinion.
[J-70-2021] [MO: Baer, C.J.] - 7