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Md. high court: Burnt-marijuana smell does not justify arrest, search

The smell of burnt marijuana emanating from a car may give police probable cause to search the vehicle but not to arrest and search the occupant unless the officers had probable cause to suspect he or she possessed at least 10 grams of the drug or was driving under its influence, Maryland’s top court ruled Monday.

The Court of Appeals said Montgomery County police had no valid reason to suspect Michael Pacheco of a crime when they arrested him and patted him down after smelling marijuana and seeing him in a legally parked car with just a single joint. That small amount of marijuana was clearly less than 10 grams and its possession was thus not a crime under Maryland law, the court added.

The unconstitutional arrest and pat-down revealed cocaine in Pacheco’s pocket, resulting in his conviction for possessing that drug, a conviction the high court overturned with its ruling.

In its decision, the Court of Appeals noted the arresting officers never testified that they believed Pacheco possessed at least 10 grams of marijuana when they asked him to step out of his vehicle, arrested him and patted him down before searching the car, from which they recovered a marijuana stem and two packets of rolling papers.

To execute an arrest and to search an individual, police must have probable cause to suspect that he or she has committed or is committing a crime. But under Maryland law, possession of less than 10 grams of marijuana — roughly 20 joints — is not a crime but a civil offense punishable by a $100 fine, the high court said.

The Court of Appeals’ decision followed its 2017 ruling in Robinson v. State that the smell of marijuana from a vehicle gives police probable cause to search it because the drug remains unlawful, though not necessarily criminal, to possess in any amount.

The legal threshold for searching a vehicle, however, is much lower than that for arresting and searching an individual, the court said.

“The distinction between the two … is at least in part due to the diminished expectation of privacy that justifies the automobile exception” to the Fourth Amendment ban on unreasonable searches “as compared to the unique, significantly heightened constitutional protections afforded a person to be secure in his or her body,” Chief Judge Mary Ellen Barbera wrote for the court.

“The officers here did not testify that in their experience and training the possession of one joint – which the officers recognized clearly contained less than 10 grams of marijuana – supported an inference that Mr. Pacheco also possessed roughly nine and a half more grams of that substance on his person,” Barbera added. “The arrest and search of Mr. Pacheco 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 Maryland Attorney General’s Office said in a statement Tuesday that it was reviewing the high court’s decision.

Barbera was joined in the opinion by Judges Michele D. Hotten and Joseph M. Getty, as well as by retired Judges Clayton Greene Jr. and Sally D. Adkins, who were sitting by special assignment.

In a concurring opinion, Judge Robert N. McDonald wrote that the court’s decision invalidating the officers’ arrest and search of Pacheco should not hinder police in their enforcement of laws against driving under the influence of marijuana, which remains as much a crime as driving while intoxicated.

McDonald noted that Pacheco’s trial record did not indicate whether the officers believed him to be impaired, nor did prosecutors argue that the police had probable cause to arrest him based on impaired driving.

“A conscientious law enforcement officer who comes upon a vehicle occupied by one individual who is seated in the driver’s seat with a marijuana joint close at hand and the odor of freshly burnt marijuana in the air will be duty-bound to investigate” whether the individual is committing the offense of driving while impaired, wrote McDonald, whose concurrence was joined by Judge Shirley M. Watts.

“In many situations involving those circumstances, the officer will have probable cause – which (this court has agreed) ‘is not a high bar’ – to arrest the individual for that offense,” McDonald added. “Under the particular circumstances of this case the majority opinion has reached the right conclusion. But it should not be read to preclude a conclusion that an officer has probable cause for arrest when the officer comes upon an individual alone and awake in the driver’s seat of a vehicle with a marijuana joint at hand and the pungent odor of marijuana in the air.”

The Court of Appeals rendered its decision in Michael Pacheco v. State of Maryland, No. 17, September Term 2018.

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