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Maryland Court: Marijuana Smell OK to Search Car, but Not to Arrest, Search Person

Marijuana joint in the hand, drugs concept
By Christopher Coble, Esq. | Last updated on

"The times they are a-changin'," according to Bob Dylan and a Maryland Court of Appeals. Whereas officers in the state could once search and arrest someone based on the odor of
"fresh burnt" marijuana, they no longer have that luxury now that small amounts of weed have been decriminalized in Maryland.

"It is by now well known that the laws in Maryland and elsewhere addressing the possession and use of marijuana have changed," the court noted. "Those changes naturally have compelled examination of how the affected laws are to be interpreted and applied consistent with the dictates of other law including, here, the Fourth Amendment’s protection against unreasonable searches and seizures."

So, legalization can have some far reaching legal implications, beyond just the ability to toke up every now and then.

Michael Pacheco was enjoying a marijuana cigarette in his car parked behind a laundromat when two officers approached. They asked for the joint, then asked him to get out of the car.

"During the search, the officers discovered cocaine in Mr. Pacheco's 'left front pocket'," according to the appeals court. "The officers then searched the vehicle, whereupon they recovered a marijuana stem and two packets of rolling papers." Pacheco was arrested, given a citation for possessing less than ten grams of marijuana, and charged with possession of cocaine with intent to distribute.

The court ruled that officers were allowed to search Pacheco's car, based on the automobile exception to the Fourth Amendment's warrant requirement and the fact that "marijuana in any amount remains contraband and its presence in a vehicle justifies the search of the vehicle." The search of his person (which turned up the cocaine) was another matter entirely:

What we must decide, then, is whether the circumstances leading up to the officers' search of Mr. Pacheco supplied probable cause that he had committed either a felony or a misdemeanor in the officers' presence. The officers testified that they observed Mr. Pacheco in the driver's seat of what they further described as a "suspicious," though legally parked, vehicle. They also testified to their detection of "fresh burnt" marijuana emanating from the vehicle and the joint they observed in the center console. These facts, without more, do not meet the standard for probable cause to arrest and thereby to search Mr. Pacheco.

Because the officers testified that they knew the joint did not contain more than 10 grams of marijuana (decriminalized due to a change in Maryland's law in 2014), they had no probable cause to arrest and search him.

As the court concluded: "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."

State Smells and Statutes

However, that ruling does not apply nationwide. Some courts in weed legal state have said that the odor of marijuana does not constitute reasonable suspicion for law enforcement to order you out of a vehicle, while others have ruled that marijuana smell alone can justify a warrantless search. Whether a whiff of weed is enough for cops to search will often depend on the underlying marijuana laws in the state, and whether officers want to search a home, a car, or your person.

If you've been charged with marijuana possession, based on a police officer's olfactory senses or otherwise, contact an experienced drug crime attorney immediately.

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