Maryland Marijuana Case Sets Standard For Police Searches Of Crime Suspects

August 21, 2019 by Tom Ramstack

A ruling last week by Maryland’s highest court is likely to help redefine the criminal law of marijuana possession as states nationwide search for new legal standards.

A unanimous Maryland Court of Appeals ruled that police who smell marijuana can use the odor to justify a search of a vehicle but not a person. A person can be searched only if there is probable cause to believe the suspects were involved in separate crimes, the court said.

“The same facts and circumstances that justify a search of an automobile do not necessarily justify an arrest and search incident thereto. This is based on the heightened expectation of privacy one enjoys in his or her person as compared to the diminished expectation of privacy one has in an automobile,” the court’s opinion says.

Like Maryland, 10 other states allow sales and recreational use of small amounts of marijuana. Another 15 states have decriminalized possession of the drug for personal use.

In 2014, the Maryland legislature downgraded possession of 10 grams or less of marijuana from a crime to a civil offense. It still can result in citations and fines of $100.

The state justices noted evolving popular opinions about marijuana by placing a lyric from a Bob Dylan song, “The Times They Are a-Changin,” in a notation at the top of their order.

The opinion was issued in the case of Michael Pacheco, who was sitting in a parked vehicle outside a laundromat in Wheaton, Md., on May 26, 2016, holding a marijuana cigarette.

Two Montgomery County Police officers nearby testified they smelled “fresh burnt” marijuana and saw a marijuana cigarette in the vehicle’s center console.

The officers searched the car and Pacheco, finding cocaine in his left front pocket. He was arrested, charged with possession of cocaine with intent to distribute and given a citation for marijuana possession.

Pacheco’s attorney moved to suppress evidence of the cocaine, arguing the search of his person was illegal because officers lacked probable cause to believe he possessed 10 grams or more of marijuana.

Prosecutors said the marijuana odor established probable cause to search the vehicle and Pacheco.

The Maryland Court of Appeals agreed with Pacheco. The police search and arrest “was unreasonable because nothing in the record suggests that possession of a joint and the odor of burnt marijuana gave the police probable cause to believe he was in possession of a criminal amount of that substance,” the court’s opinion said.

The court’s previous decisions granted exceptions to citizens’ Fourth Amendment privacy rights when police searched them during an arrest or when illegal items were seen in their automobiles.

In those cases, police did not need a search warrant.

Pacheco’s case was different, the Maryland court said. The smell of marijuana was not enough evidence for an arrest and search now that the drug is legalized in the state.

In an age of decriminalization, courts nationwide “have grappled with the constitutionality of searches and seizures” based on marijuana smell, the ruling said.

Recent court decisions in other states have reached similar conclusions.

In Pennsylvania, a state court judge ruled state troopers lacked probable cause to search a vehicle after smelling marijuana during a traffic stop. The evidence showed the man who was stopped carried a medical marijuana card.

In Florida, some prosecutors support an “odor-plus” standard in which marijuana smell is only one of several factors that proves probable cause to search suspects.

The case is Michael Pacheco v. State of Maryland, Maryland Ct. App., Case No. 17, September Term, 2018.

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