Cops smell weed – can you be arrested?

The Pennsylvania Supreme Court has just addressed, though not necessarily answered, the long-standing question of whether police may search or arrest based upon the mere odor of marihuana. The Court held that the odor of marihuana alone is no longer sufficient to create probable cause to arrest now that marihuana is legal in many forms and places in Pennsylvania.

Unfortunately, that does not answer all of the questions about this issue. As Justice Saylor noted, it remains illegal to smoke marihuana in Pennsylvania. Thus, the smell of burnt marihuana might give rise to probable cause to search and make an arrest. That issue was not raised in the case just decided, so the case is not precedential (or binding) on that point.

The key take away from the new decision is that police who have been searching or arresting people merely based upon the odor of fresh marihuana are violating those people’s rights.

Some interesting questions to watch: Does the person need to respond to the officer’s questions about whether he or she has a medical marihuana card? Does the odor of marihuana coming from a large plastic wrapped brick consistent with a pound of marihuana still give rise to probable cause that the person is possessing marihuana with intent to deliver to another person? If police smell marihuana and see the person hand something to another person do they have reasonable suspicion to detain or probable cause to arrest?

The Court’s new decision leaves many questions unanswered as the only holding is that the odor of marihuana alone is insufficient upon which to base a warrantless search. The Court expressly noted that each case will now depend on the factors present in that case. Thus, if you or a loved one have been stopped, searched, and arrested based upon police smelling an odor of marihuana you should consult a qualified criminal defense lawyer who handles drug cases to review all of the factors present in that particular case.