Lehigh County judge Maria Dantos tossed out evidence found by police during a vehicle search in support of drug and firearms charges against 27-year-old Timothy Barr.
Police say the smell of marijuana gave them legal right to search.
The only problem: Barr had a medical marijuana card and a medical reason to possess the plant.
Pennsylvania state troopers argued the smell of marijuana alone gave them grounds to search the vehicle anyway.
“The smell of marijuana is no longer per se indicative of a crime,” Judge Maria Dantos wrote in her August 9 ruling.
“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.”
In her ruling suppressing evidence on the firearms counts against Barr, Dantos wrote it was “Illogical, impractical and unreasonable” for the troopers to suspect illegal activity once Barr presented them with his card.
“Pennsylvania legislators 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, Dantos wrote in her opinion, which was filed on Friday, according to the Morning Call.
“Such actions are merely means of hampering the legalization of marijuana for medical purposes.”
Barr, who has a prescription from a Dr. to use medical marijuana for an undisclosed condition, was a passenger in his mother’s car being driven by his wife when troopers pulled him over on November 7.
Troopers said they smelled a “strong odor of marijuana” emanating from the vehicle.
Troopers then told Barr that the odor they smelled gave them the legal right to search his car, even though he had already shown them his marijuana card.
During their search, the officers discovered less than a gram of marijuana inside of a pill bottle and some residue inside the vehicle’s cabin area.
They also discovered a handgun tucked under the seat and wrapped in a jacket, according to his arrest report.
Barr was charge for two firearms offenses and possessing marijuana.
Prosecutors must now decide if they will move forward with the case without evidence discovered from the search.
Joshua Karoly, a criminal defense attorney, said Judge Dantos’ ruling could be the first step in changing the procedural rules that allow police to search vehicles based on smell alone.
“This case will put a spotlight on the plain smell doctrine in Pennsylvania which police use far too often to invade citizens’ privacy,” Karoly said, praising Dantos’ ruling.
“The problem is there is no test for it. You can’t sample the air,” he said.
“It puts a chilling effect on all citizens’ Fourth Amendment rights” against unreasonable searches.
One trooper in the case testified that he thought medical marijuana had no smell.
Another officer testified she mistakenly believed dried marijuana was illegal and couldn’t be used for medical purposes.
In Pennsylvania, dry leaf forms and marijuana in flower form has been legally sold in dispensaries since August 2018.
Dantos said the officers’ knowledge and confusion over medical marijuana exemplified a “clear disconnect between the medical community and the law enforcement community.”
Judge Dantos said she based her opinion, at least in part, on the testimony of Dr. David Gordon, a medical marijuana expert hired by Barr’s defense team.
Dr. Gordon testified saying there’s no physical difference between marijuana bought on the street and medical marijuana, pointing out that the chemical compounds from both types are the exact same.
Gordon said to avoid confusion with law enforcement, he advises all of his patients to hold on to their receipts from the marijuana dispensay for evidence to show if they’re suspected of illegal activity.
Barr is free on bond after posting a $1 bail.
