Search Based on Odor of Marijuana in Maryland (Part I)
Odor of Marijuana Coming from a Vehicle Does Not Create Probable Cause to Search
In August of 2019 the Maryland Court of Appeals ruled in Pacheco v. State that the odor of marijuana coming from a vehicle does not create probable cause to search the person of the driver of that vehicle. This decision was captioned with the title of a song from well known Constitutional scholar Robert Allen Zimmerman, “The Times They Are a-Changin.” This decision is a step along the path of dealing with medical cannabis and the partial decriminalization of marijuana in Maryland. It’s not the end of the road, but it does make it significantly harder for police to search people based on possession or even consumption of a small amount of marijuana.
In Pacheco, officers found the Defendant smoking a joint in his car, which was parked in front of a laundromat in Wheaton at around 10:00 pm. Officers walked up to the car and told the driver to hand them the joint. They then told the Defendant to step out of the car. Officers then searched him and discovered a small packet of cocaine in his pocket. Officers also searched his vehicle and found a stem and 2 packs of rolling papers. The officers arrested him, transported him to the station, and charged him with a civil citation for the marijuana and Possession with Intent to Distribute for the cocaine.
At trial, Pacheco argued that the cocaine should be suppressed because it was the result of an illegal search. He argued that the officers did not have probable cause to believe that a crime had taken place because they had no reasonable way of suspecting that he possessed more than 10 grams of marijuana, which is only a civil offense in Maryland. The Montgomery County Circuit Court denied this argument and ruled that officers could search Mr. Pacheco even if they only believed that he had less than 10 grams of marijuana.
Mr. Pacheco then appealed this decision to the Court of Special Appeals upheld the Circuit Court ruling that the facts of the case created probable cause to arrest Mr. Pacheco. The Court relied on cases that dated primarily from the days of full marijuana criminalization in making its decision. Mr. Pacheco then appealed to the Court of Appeals.
In this decision the Court of Appeals ruled differently than both the trial court and the Court of Special Appeals. They ruled that the officer’s search of Mr. Pacheco was unlawful and the cocaine should be suppressed. The Court of Appeals found it significant that officers first asked Mr. Pacheco to step from the vehicle and then searched his person.
The Court had previously ruled in Robinson v. State that officers were allowed to search vehicles based on the odor of marijuana. The Court held that odor of marijuana was sufficient for officers to have probable cause to search a vehicle. They cited the fact that officers could suspect that a person was in possession of criminal amounts of marijuana, or operating a vehicle under the influence of marijuana. The Court also cited the automobile doctrine, which states that people have a reduced expectation of privacy in the contents of their vehicle than in their person, to support its ruling in Robinson.