After decriminalization, pot smell and joint didn’t justify search, court says; hemp laws also raise issues

By Debra Cassens Weiss


Changing marijuana laws may be destroying probable cause that police officers use to justify some kinds of searches.

The latest evidence is an Aug. 12 decision by Maryland’s top court that found that officers did not have probable cause to arrest and search a man after smelling burning marijuana and discovering a joint in his car. The Legal Profession Blog and Courthouse News Service noted the decision.

The officers knew that the joint contained less than 10 grams of marijuana, a civil offense in the state, yet they arrested Michael Pacheco and searched him, discovering cocaine in his pocket, the Maryland Court of Appeals said. Officers also searched Pacheco’s car and found a marijuana stem and rolling papers.

The car search was permissible, but the full search of Pacheco was not, the court said.

Pacheco was sitting alone in his car outside a laundromat in Wheaton, Maryland, in May 2016 when the officers detected the smell.

The state high court noted that there are two exceptions to the Fourth Amendment requirement that police get a warrant before conducting a search. One is the “automobile exception,” and the other is search incident to arrest.

Officers may search a vehicle if they have probable cause to think it contains contraband or evidence of a crime, the court explained. A search incident to arrest is allowed if officers have probable cause to think a person committed a felony or is committing a felony or misdemeanor in the presence of police.

Maryland’s top court previously has ruled that the smell of marijuana justifies police searches of vehicles because possession of more than 10 grams of marijuana is still a crime, as is distribution of marijuana and driving under the influence.

But marijuana smell does not provide probable cause to frisk an individual, the court previously has ruled. In Pacheco’s case, the smell and the marijuana cigarette did not supply probable cause for the arrest and search, 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,” the Maryland Court of Appeals said. “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 opinion began with the quote, “The times they are a-changin,’” from the Bob Dylan song.

The decision said that, in the era of decriminalization, courts in Maryland and across the country “have grappled with the constitutionality of searches and seizures” based on marijuana smell.

In Pennsylvania, a state court judge recently ruled that state troopers didn’t have probable cause to search a vehicle after smelling marijuana in a traffic stop. The judge ruled that there was no probable cause because the man had produced a medical marijuana card, report Fox43 and the Allentown Morning Call.

New laws legalizing hemp also are raising concerns among prosecutors and police. Some fear that probable cause to search a vehicle is destroyed in such states because marijuana’s smell can’t be distinguished from that of hemp.

In Florida, some prosecutors are backing a new “odor-plus” standard in which marijuana smell is just one factor that can be used in determining probable cause.