Shifting Cannabis Standards in Pennsylvania: Probable Cause and Outside Ingredients

Statewide recall of vaporized products with non-cannabis derived ingredients.  

After conducting a statewide review of all vaporized medical marijuana products, on February 4th, 2022, the Medical Marijuana Office of Pennsylvania Department of Health (the “Department”) has ordered a mandatory recall for approximately 650 vaporized products with added ingredients.  

The review process began on November 16th, 2021, when the Department requested that licensed medical marijuana growers and processors submit added ingredients used in vape products – such as terpenes – for what the department called an additional level of review. Terpenes are aromatic compounds that occur naturally in marijuana and other botanicals. While most infused product manufacturers use terpenes that occur naturally in marijuana, some manufacturers use terpenes derived from other botanicals. Manufacturers had two weeks to comply with the directive or face penalties. Additionally, the Department sent an email to Commonwealth’s 630,000 patients on December 1st, 2021, advising them that previously approved ingredients will undergo an additional review. After finishing the review, the Department determined that certain vaporized medical marijuana products contained added ingredients that have not been approved for inhalation by the FDA.  

Although some of the added ingredients may be considered safe in non-inhaled products, the Department ordered the recall based on the lack of approval of the added ingredients by the FDA. While several retailers are accepting returns of the recalled products, many patients have expressed frustration with the lack of guidance from the Department. The affected manufacturers and retailers are questioning the reasoning behind the Department’s actions. It is expected that they will pursue clarification from the Department, as at least one group claimed that it is not the FDA’s role to approve the added ingredients for vaporization. 

Commonwealth v. Barr, 252 A.3d, 1086 (Pa. 2021)

At the end of 2021, the Pennsylvania Supreme Court acknowledged that the passage of the 2016 Pennsylvania Medical Marijuana Act (“MMA”) has changed the legal landscape as it pertains to the historically sound plain smell analysis used by law enforcement officers to establish probable cause for search and seizure. The court made a significant ruling to answer the question of the extent that the law enforcement officers can rely on the smell of marijuana to establish probable cause when conducting a warrantless search of a vehicle. The court held that the marijuana odor does not amount to probable cause to conduct a warrantless search of a vehicle on its own, but that odor may be considered as a factor in determining the totality of circumstances to establish such probable cause.  

In November of 2018, Pennsylvania state troopers pulled over a speeding vehicle that had also rolled a stop sign. After initiating a traffic stop, the troopers smelled what they presumed to be burnt marijuana emanating from the driver’s side. The appellant, Timothy Barr, and another occupant of the car presented their medical marijuana cards. In spite of the furnished medical marijuana cards, the troopers proceeded with a warrantless search of a vehicle basing their actions on the plain smell theory that states that marijuana odor alone is sufficient to establish probable cause to conduct a search. The search yielded a gun, a small amount of marijuana that lacked dispensary packaging, and clear unused plastic baggies that resulted in the appellant’s arrest. 

The trial court ruled that the troopers lacked probable cause to conduct a warrantless search. The court reasoned that the plain smell of marijuana no longer provided authorities with probable cause due to the legalization of medical marijuana in Pennsylvania. The court based its rationale on Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019), where the court ruled that police officers may not infer criminal activity merely from the individual’s possession of a concealed firearm in public because a firearm may be lawfully carried, and possession alone does not suggest criminal activity. As in the instant case, the mere possession of legal medical marijuana could produce the odor, and such possession alone does not suggest criminal activity. Lastly, the court opined that the General Assembly did not contemplate that people with medical marijuana cards would be arrested and prosecuted for possession of medical marijuana if the marijuana packaging lacked the dispensary identification. 

On appeal, the Superior Court held that the smell of marijuana remains a factor in providing police with probable cause to search a vehicle while agreeing with the trial court that the odor of marijuana alone does not establish probable cause for a warrantless search of a vehicle. The Superior Court distinguished Hicks from the present case by arguing that the possession of marijuana is not analogous to possession of a firearm in Hicks. The court opined that possession of marijuana remains generally illegal in Pennsylvania with a limited exception of lawful possession of medical marijuana whereas the possession of a firearm is generally legal with limited exceptions. The court added that the plain smell doctrine is a specific application of the totality-of-factors test used to establish probable cause. This doctrine was crafted in light of the previously universal fact of marijuana’s illegality and its distinctive order. The strength of inference of illegality stemming from the marijuana odor has been diminished by the presence of medical marijuana in Pennsylvania, making the passage of the MMA a relevant fact in the Superior Court’s probable cause analysis.  

The Pennsylvania Supreme Court held that the marijuana odor alone absent any other circumstances cannot provide individualized suspicion of criminal activity, but it can be a factor in providing the law enforcement agents with probable cause to search a vehicle. The court reasoned that the plain smell doctrine that once was sufficient to establish probable cause for a warrantless search has been undermined by the MMA enactment. Compliance with the MMA does not constitute a crime, and the MMA makes it abundantly clear that marijuana is no longer illegal in Pennsylvania. The court further opined that lawful possession of an item pursuant to a legislative authorization is alone insufficient to satisfy the stringent requirement of probable cause required to conduct a warrantless search of a vehicle. As in Hicks, the lawful activity alone cannot be the basis to establish probable cause for a warrantless search of a vehicle.  

As the push towards universal legalization continues in Pennsylvania, a signal from the State’s Supreme Court that the passage of the MMA has played a key role in the analysis of warrantless search and seizures is significant.