York County judges hear argument on challenge to searches

In a rare session before the entire criminal court bench, York County judges on Friday heard argument about whether the smell of marijuana alone is still enough for police officers to stop people and search their cars.

Assistant Conflict Counsel Anthony Tambourino was the sole defense attorney to present argument during the hearing in the York County Administrative Center.

He built on a recent decision from the Pennsylvania Supreme Court, which held that law enforcement cannot stop people just for having a concealed firearm to investigate whether they have a license to carry. That’s because, the justices ruled, there’s no way to tell from appearance alone if they’re prohibited from possessing guns.

Tambourino argued that, with medical marijuana now being legal, the smell of weed is no longer indicative of a crime in Pennsylvania. Police officers, he said, should not be able to stop people and search their cars for that reason alone.

“Once activity is lawful, that right to privacy kicks in,” Tambourino said. “I think it applies regardless of whether it’s guns or whether it’s marijuana.”

RELATED: Smelling weed: How York County court cases could help change how police work in Pa.

But Tambourino faced several questions from some judges who noted that it’s illegal for people to drive if they have any detectable amount of marijuana in their system.

Common Pleas Judge Gregory M. Snyder asked why the smell of marijuana would not permit law enforcement to continue an investigation.

“Under current Pennsylvania law, operating a motor vehicle on a public road in the commonwealth, when you have marijuana in your system, is a misdemeanor. It is a crime,” Snyder said. “That is not true of a case of possession of a handgun.”

READ: Efforts to decriminalize, legalize weed in Pa. haven’t led to big drop in arrests

Senior Deputy Prosecutor Steph Lombardo focused her argument on whether the smell of weed is still enough for police officers to have probable cause to search a car.

Probable cause is not certainty, Lombardo said. It’s a probability, she said, and it doesn’t even have to be the most likely one.

Lombardo said marijuana is presumptively illegal, except for circumstances outlined in the Medical Marijuana Act. That’s the opposite of carrying a firearm, she said, which is presumptively legal unless someone is prohibited from possessing guns.

“It means, on the whole, marijuana, remains illegal, but for a limited exception,” Lombardo said.

ALSO OF INTEREST: Pennsylvania Supreme Court tosses Lebanon County’s ban on probationers using medical pot

In Lehigh County, a judge has ruled that state troopers were not allowed to search a car after a passenger showed them his medical marijuana card. The smell of marijuana, she determined, was no longer itself indicative of a crime.

The opinion does not bind other judges in the state. The ruling is on appeal before the Pennsylvania Superior Court.

Common Pleas Judge Maria Musti Cook said the bench in York County will likely issue its opinion before that appeal is decided.

“Maybe we’ll get overruled, maybe we won’t,” Cook said. “But we’ll issue an opinion.”

Contact Dylan Segelbaum at 717-771-2102.

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