Pennsylvania's highest court confirmed Wednesday that police may not use the smell of cannabis as the sole basis for a warrantless search. The case concerned a motorist whose vehicle was searched on this basis in 2018; since then, cannabis has been legalized in the state so long as it is prescribed.
"We reiterate that the record supports the trial court's conclusion that the troopers searched the car in question based solely on the odor of marijuana coming from it," wrote Baer in the majority opinion. "We further hold that the odor of marijuana alone does not amount to probable cause to conduct a warrantless search of a vehicle but, rather, may be considered as a factor in examining the totality of the circumstances."
The prosecutors — the Lehigh County District Attorney, in this case — had argued unsuccessfully that the smell of cannabis "has not lost its 'incriminating' smell by virtue of its legality for some," referencing the state's medical cannabis law, according to the Associated Press.
"Sure it's not criminal, but it is incriminating" was good enough to two of nine PA supreme court justices, one of whom, Justice Kevin M. Dougherty, went as far as to suggest that finding evidence of a crime retroactively creates probable cause to search for it: "an officer who smells marijuana may also discover evidence of a violation of the [law], which, in turn, may establish probable cause to believe a crime has been committed."
I was going to describe this as a shot at the legal doctrine of the fruit of the poisonous tree, which generally bars the use of illegally-obtained evidence, but until I read the dissent in full I wouldn't want to assume Justice Dougherty is familiar with it.