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Judge: Search allowed

Despite holding medical marijuana card, odor check found to be valid

A police officer may conduct a warrantless search of a car that “reeks of weed” even though the driver has a valid medical marijuana card, a Blair County Judge ruled late last week.

But the case before Judge Timothy M. Sullivan left open the question whether a search of a car driven by an Altoona man who was stopped by city Patrol Officer Garrett Trent on Jan. 16, 2020, due to a traffic violation near UPMC Altoona, was valid.

While the driver, Danny Tallie, 51, was eventually cited for a summary traffic offense, the officer’s attention, upon approaching the car, was drawn to the odor of marijuana.

He asked Tallie if he had a medical marijuana card. The driver presented him with a card that was valid.

The officer then contacted Blair County District Attorney Peter J. Weeks and told him the circumstances of the traffic stop, including a statement that the vehicle “reeks of weed,” and “it is fresh.”

Trent is a member of the Blair County Drug Task Force and is familiar with the odor of marijuana, it was pointed out.

After consulting with the District Attorney, the officer again approached Tallie and told him he was concerned about the odor from the car, at which point Tallie admitted that he had a roach, or a blunt of smoked marijuana, wrapped in cigar paper in the vehicle.

Occupants were removed from the vehicle and a search was conducted.

No additional drugs or drug paraphernalia was found, and the officer stated that Tallie was cooperative with police during the search.

The roach, consisting of “green leafy marijuana,” tested positive for THC, the psychoactive ingredient in marijuana.

Tallie was charged with use and possession of drug paraphernalia because it remains illegal to smoke marijuana.

The case ended up in Sullivan’s courtroom when Tallie’s Hollidaysburg defense attorney, Phillip O. Robertson, filed a pretrial petition seeking to suppress the evidence — the roach.

Sullivan, in a 14-page opinion, reviewed the complexity of the issue before him.

He reported that prior to Pennsylvania’s passage of the Medical Marijuana Act, when an officer smelled the odor of marijuana it indicated the commission of a crime.

This meant a police officer had probable cause to conduct a warrantless search of a vehicle.

The judge explained that things have changed.

“Lawful users of medical marijuana do not surrender their Fourth Amendment rights which protect them from unreasonable searches and seizures by police,” he stated in his opinion.

He ruled the “plain smell” of burnt or raw marijuana is no longer indicative of an illegal or criminal act, but he clarified the odor “may nevertheless indicate an illegal or criminal act, so as to provide probable cause for a warrantless search by police, because possession of marijuana remains generally illegal under (Pennsylvania’s Controlled Substance Act.)”

The judge continued, noting the odor of marijuana allows the “probabilistic suspicion” of criminal activity because most citizens cannot legally consume marijuana.

The presentation of a medical marijuana card, he ruled, does not “automatically defeat a finding that probable cause supported a police officer’s warrantless search.”

Turning his attention to the Tallie case, Sullivan ruled the traffic stop by the police officer was valid.

He then refused to suppress the roach, pointing out that the evidence against Tallie did not result from the search of the vehicle but was given to the officer by Tallie.

“At that time, Patrolman Trent had reasonable suspicion of unlawful activity,” Sullivan stated.

And, he reasoned, since the roach was voluntarily surrendered by Tallie, the evidence was lawfully obtained.

He went on to note that the search of the vehicle turned up no additional evidence of drug use and therefore, he stated, “there is no evidence to be suppressed.”

He upheld the drug paraphernalia charge against Tallie, emphasizing that medical marijuana may not be smoked or “consumed in edible form except as specifically allowed” under the present laws.

Tallie’s next appearance in court is scheduled for a trial list review on Aug. 2, Sullivan ordered.

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