Com. v. Barr, T.
240 A.3d 1263
Pa. Super. Ct.2020Background
- On Nov. 7, 2018, state troopers stopped a vehicle after observing a traffic violation; Troopers smelled marijuana as they approached. Appellee (Barr) was a front-seat passenger; the driver was his wife.
- Barr presented a Pennsylvania medical-marijuana identification card during the stop; officers testified they nonetheless smelled raw/burnt marijuana and conducted a warrantless probable-cause search.
- Search recovered ~0.79 grams of marijuana in a Ziploc and marijuana "shake" in the cabin; a loaded handgun was found in a jacket in the rear passenger area.
- At the suppression hearing the trial court credited expert testimony that medical marijuana is chemically indistinguishable and that vaping and smoking can produce similar odors; the court found aspects of troopers’ testimony not credible and concluded that the odor alone no longer establishes probable cause post‑MMA.
- The trial court granted suppression and dismissed the PSAM charge; the Commonwealth appealed. The Superior Court vacated the suppression/habeas relief and remanded for reconsideration, holding that odor may still contribute to probable cause but the trial court erred by giving it no weight and failing to evaluate other factors.
Issues
| Issue | Commonwealth's Argument | Barr's Argument | Held |
|---|---|---|---|
| Whether the odor of marijuana alone provides probable cause to search a vehicle | Precedent shows the plain smell doctrine can alone supply probable cause; MMA is a limited exception and does not eliminate the doctrine | MMA and changed factual context mean odor no longer reliably indicates criminal activity; Hicks reasoning supports limiting inferences from lawful conduct | Odor of marijuana is not per se probable cause post‑MMA but remains a relevant factor that may contribute to probable cause under the totality of circumstances; remand because trial court afforded odor no weight and failed to consider other factors |
| Whether the trial court erred in granting habeas dismissal of the PSAM count after suppression | Commonwealth: dismissal improper if it prevents Commonwealth’s appeal and is inconsistent with procedure (Micklos) | Barr: procedural posture here was pretrial and habeas dismissal was lawful | Superior Court vacated habeas dismissal and remanded for reconsideration because the habeas relief was conditioned on the suppression ruling; Micklos was inapplicable given the pretrial posture |
Key Cases Cited
- Johnson v. United States, 333 U.S. 10 (1948) (odor of forbidden substance can be probative of probable cause when properly assessed)
- Commonwealth v. Stoner, 334 A.2d 633 (Pa. Super. 1975) (adopting Johnson’s rationale re: plain smell doctrine)
- Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (automobile exception: vehicle searches may be conducted on probable cause)
- Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019) (possession of a concealed firearm alone does not create reasonable suspicion; limits inferences from conduct lawful for many citizens)
- Commonwealth v. Batista, 219 A.3d 1199 (Pa. Super. 2019) (post‑MMA: odor of fresh marijuana, combined with other facts indicating a grow house, supported probable cause)
- Commonwealth v. Scott, 210 A.3d 359 (Pa. Super. 2019) (odor/smoke supported search of passenger compartment but not of trunk absent a fair probability of additional contraband)
- Commonwealth v. Micklos, 672 A.2d 796 (Pa. Super. 1996) (trial court may not dismiss charges after jeopardy attaches without allowing Commonwealth opportunity to appeal)