The state police pulled over the maroon Cadillac with dark window tint and several broken taillights.  Rob Lomax, the owner operator of the car was cooperative and calm, not displaying behavior suggesting impairment. The smell of fresh, unburnt marijuana was present and he was ordered out of the car.  He showed the trooper his official medical marijuana card.

The trooper returned to his cruiser, turned off his mobile video recorder and spoke with another trooper. He then turned the MVR back on, returned to Lomax, and asked when he last smoked marijuana, to which Lomax responded approximately four hours before the traffic stop. Field sobriety tests were conducted to which the Trooper claimed Lomax failed.  Lomax was arrested and charged with driving under the influence of marijuana.

At trial Lomax filed a suppression motion claiming his MMA card eliminated any reasonable suspicion of criminal activity and there was no probable cause to search the car or investigate the DUI. The trial court agreed.  Pennsylvania’s Superior Court agreed affirmed the trial court’s suppression of all investigatory arrest evidence.

Relying on a long line of cases, the appellate court reiterated important Pennsylvania legal principles.  An officer’s order for a driver to exit the vehicle once the authority for the original stop has expired initiates a new investigative detention, requiring independent reasonable suspicion of additional illegal activity. When an officer abandons the investigation of the underlying violation (typically and always with Pa Troopers a trumped up window tint violation) and begins questioning the driver about unrelated criminal activity — this DUI and pot smell —  he effectively ends the traffic stop and initiates an independent investigative detention. To lawfully do so requires independent reasonable suspicion.

In the past, Pennsylvania courts have held that, because marijuana is illegal to possess, the smell of marijuana alone can be sufficient to establish a reasonable suspicion of criminal activity.  Due to the legalization of medical marijuana in the Commonwealth, the “plain smell doctrine,”  Commonwealth   v.   Hicks,   208   A.3d   916,   945   (Pa.   2019)   and Commonwealth v. Barr, No. 28 MAP 2021, 2021 WL 6136363 (Pa. Dec. 29, 2021), all but eliminated this rule..

The new Rule is that “conduct in which hundreds of thousands of Pennsylvanians are licensed to engage lawfully” is, on its own, “an insufficient basis for reasonable suspicion that criminal activity is afoot.” The mere possession of an item whose possession is regulated under a licensing scheme to establish, on its own, reasonable suspicion to support an investigatory detention “unjustly places the onus upon the citizen to demonstrate that her possession of the [object] is not criminal, reversing the constitutional mandate that the police officer must establish a valid basis for the intrusion upon her privacy in the first instance.”

In Barr, the Court recognized that, due to the passage of the Medical Marijuana Act, the possession of marijuana belongs to this category of licensed activity. As such, “one’s liberty may not be abridged on the sole basis that a law enforcement officer detected the smell of marijuana[.]”  While the Barr Court only directly considered the question of whether the smell of marijuana can meet the higher standard of probable cause, it anchored its logic in Hicks’ broader proscription against allowing “conduct for which the individual obtained a license to serve as the exclusive basis for the deprivation of the licensee’s liberty.”

Returning to Lomax and the facts of that case, the court held: “We agree with the suppression court’s conclusions. Trooper Horan initiated the traffic stop based on a broken taillight, which is a traffic violation that requires no further investigation before issuing a citation. When Trooper Horan ordered Lomax out of the car and began questioning him about the smell of marijuana, he initiated an independent investigative detention to investigate additional potential illegality. To lawfully do so, Trooper Horan needed a reasonable suspicion of criminal activity. The only credited evidence justifying Trooper Horan’s suspicion, however, was the smell of fresh marijuana. Absent any other indicia of wrongdoing this smell cannot objectively suggest anything more than the possession of a substance that many Pennsylvanians can legally possess. As such, it cannot, on its own, establish the kind of reasonable suspicion necessary to initiate an investigative detention.”

Another case where a Pa State Trooper makes up facts, charges someone with a criminal offense which the law determines is not illegal and the courts have to intercede to straighten the state police out.  Call me to discuss your MMA card, police stop, DUI investigation.