A sense of discrimination

PA Supreme Court ruling on marijuana scent could have positive impact on people of color

Published by Mac Bell, Date: March 4, 2022
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A Pennsylvania Supreme Court ruling regarding how the scent of marijuana is handled during traffic stops is expected to have far-reaching effects for Pennsylvanians, including people of color.

The Dec. 29 ruling from the Pennsylvania Supreme Court stems from a 2018 traffic stop that involved medical marijuana, which was legalized in April 2016. 

Timothy Oliver Barr was pulled over for making a U-turn on Nov. 7, 2018, by two state troopers near an apartment complex in Allentown, Pennsylvania. The troopers both smelled burnt marijuana and told Barr and his wife they were going to search the vehicle on the basis of probable cause based on the scent.

A three-judge panel of the state Superior Court had ruled that police could no longer easily assume legal wrongdoing just based on the smell of an occupant’s vehicle. The ruling was later upheld by the state Supreme Court. 

This new ruling does come with many questions regarding who benefits from the change in law, or if anyone benefits at all. Cheryl Kerchis, an associate professor in the political science department at Slippery Rock University, believes that this is a big first step for furthering racial equity and fairness across the state of Pennsylvania.

“If [the ruling] is followed to the letter of the law, I think it could have a big impact on all races, you know, because there are all kinds of people that get caught up in this criminal justice system,” Kerchis said. “In general, I’m a person that thinks that any people that we can divert from the criminal justice system – that’s a good thing.”

According to the US Census Bureau, Pennsylvania’s population is about 13 million people, with 1.4 million residents identifying as Black. Although Black Pennsylvanians only make up approximately 12% of the state’s population, they account for 32% of marijuana related arrests. White Pennsylvanians account for about 66% of marijuana arrests, yet make up 81% of the state’s overall population.

As well as helping to lessen the commonality of marijuana related arrests for all races in Pennsylvania, Kerchis also believes that this new ruling could specifically help with racial equity.

“I think it’s going to help racial equity, reason being, we know from statistical data that Black people are more likely to be pulled over in the first place,” Kerchis said. “And they are more likely to have their cars searched.”

According to a national study by the American Civil Liberties Union (ACLU), on average a Black person is 3.64 times more likely to be arrested for marijuana possession than a white person, even though both use marijuana at identical rates.

More specifically in Pennsylvania, state and local police have made about 20,000 marijuana related arrests in 2020 alone, according to the National Organization for the Reform of Marijuana Laws (NORML).

Although smell can no longer be the sole determining factor regarding vehicular searches, the state Supreme Court ruling does allow for the scent to be a factor for officers to consider during a police stop. 

Police must have more proof of wrongdoing aside from marijuana odor before they conduct a search such as seeing the drugs or paraphernalia, statements made by the vehicle’s occupants, or the officer’s education and experience.

With this new ruling put into place, many police departments around Pennsylvania, including the Slippery Rock University Police Department, will soon be implementing changes regarding how to deal with traffic stops involving marijuana and ensure the proper implementation of this ruling.

“We do updates on classes through our MPOETC [Municipal Police Officers’ Education and Training Commission] certifications,” University Police Chief Kevin Sharkey said. “So, that will probably be one of our legal updates coming up, they might add it this year to the curriculum, but if not, it’ll be in the following year.”

About two months after the ruling, MPOETC published guidance and instructions for law enforcement officers to ensure their practices are in line with the new ruling. 

Since its passing, the applications of the new ruling have some people looking at its effects beyond traffic stops.

At SRU, police officers are regularly called out to student housing to investigate marijuana possession based on scent alone. When students are caught with marijuana, they are typically charged with disorderly conduct, a summary offense. This ruling will have bearing on those investigations, according to Sharkey.

“[At SRU], you’re not allowed to have [marijuana] unless you do have that medical marijuana card,” Sharkey said. “It has to be packaged correctly with the manufacturing and stuff with the card and packaged and with their name on it. 

“That’s totally legal but having the marijuana and smoking it and not having the card, that is still illegal.”

Still, at SRU, consumption of legal medical marijuana by a student is an offense that can be recommended to the Office of Student Conduct and can result in punishment ranging from disciplinary probation to expulsion. 

Chief Student Affairs Officer David Wilmes told The Rocket back in October that those rules are in place due to federal statutes.

“Slippery Rock University is subject to the Drug-Free Schools and Communities Act,” Wilmes said. “A federal law which requires colleges and universities to establish policies that address unlawful possession, use or distribution of illicit drugs.

“Marijuana is still considered an illicit drug under the federal schedule and therefore is not allowed on college property per the Drug-Free Schools Act.”

Data collected by the ACLU shows states that have legalized marijuana have significantly lower rates of racial disparities in regard to marijuana possession related arrests than states that have not legalized. In legal states these arrests are about 1.7 times more likely to happen to Black people, whereas states that still uphold the prohibition of marijuana have about 3.2 times the likelihood of racial disparities towards Black people.

Moving forward, Kerchis believes that if this ruling is implemented properly across the state, we could notice a difference on the road.

“One of the things you should see if the police are following this to the letter of the law, is you should see a lot fewer searches – I would think,” Kerchis said. “So, one thing they could do is keep track of [vehicular searches]. 

“This is one of the things we have to do after we put a law or policy in place is try to track how it’s being implemented.”

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