DA appeals ruling that the smell of marijuana not grounds for search

Germansville man charged after police found gun in his car; judge suppressed the evidence

The case of the medical marijuana patient in the weed-scented car is now in the hands of Pennsylvania’s Superior Court.

Lehigh County District Attorney Jim Martin on Monday appealed Judge Maria L. Dantos’ decision to suppress evidence in the case of Timothy O. Barr, whom state police accused of illegally possessing a firearm, which they found after searching a car he was riding in last November in Allentown.

In an opinion posted last week, Dantos said troopers overstepped the law when they searched Barr’s car based on the smell of marijuana alone and should have released the 27-year-old Germansville man as soon as he showed them his

medical marijuana card.

Heather Gallagher, chief of appeals in the Lehigh County district attorney’s office, disagreed.

“Respectfully, the judge is incorrect that the smell of marijuana is not indicative of a crime,” she said.

Gallagher noted that other states that have decriminalized small amounts of marijuana and allow medical marijuana still permit police officers to search vehicles when they smell a strong odor of cannabis.

“Those laws do not mean that marijuana is legal, just that it is legal under certain circumstances,” Gallagher said.

Barr’s attorney, Joshua Karoly, said he believes Dantos’ ruling will be upheld.

“The appeal is obviously unfortunate for my client because he was anxious to put this behind him and move on with his life,” Karoly said. “But as a lawyer, I welcome the opportunity for the Superior Court to weigh in and clarify an issue that is of great importance to the people of Pennsylvania, and across the country.”

Barr, who is prescribed medical marijuana for an undisclosed condition, was a passenger in his mother’s car, which was being driven by his wife, when state troopers pulled it over on Mack Boulevard around 12:30 a.m. Nov. 7 because his wife failed to properly stop at the Eighth Street railroad overpass, court records say.

Troopers say they smelled a strong odor of marijuana coming from the car and informed Barr that gave them the legal right to search the vehicle, despite his prescription. The officers found less than a gram of marijuana in an unmarked bag inside a pill bottle, as well as a small amount of marijuana residue in the cabin area, court records show.

“The appeal is obviously unfortunate for my client because he was anxious to put this behind him and move on with his life.” — Joshua Karoly, Timothy Barr’s attorney

They also found a loaded handgun wrapped in what troopers believed was Barr’s jacket, tucked behind the driver’s seat. Barr is prohibited from possessing a firearm due to a prior conviction, court records show.

Barr was charged with possessing a small amount of marijuana and two firearms offenses. Dantos threw out the marijuana charge and suppressed evidence in the gun counts.

Dantos said the troopers’ actions showed a “clear disconnect” between law enforcement and the medical community on the subject of medical cannabis. At a pretrial hearing, one of the troopers who arrested Barr testified that she didn’t know dried marijuana is prescribed for medical purposes.

“The smell of marijuana is no longer per se indicative of a crime,” Dantos wrote in her opinion. “With a valid license, an individual is permitted, and expected, to leave an odor of marijuana emanating from his or her person, clothes, hair, breath, and therefore, his or her vehicle.”

Barr is free on $1 bail. His case will remain on hold until the appellate court’s ruling.