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Marijuana funk no longer probable cause to search people; Maryland appeals court cites Bob Dylan

Citing Bob Dylan’s “The Times They Are a-Changin,” Maryland highest court ruled this week that the smell of marijuana alone is not enough justification for law enforcement to search a person.

The 7-0 Maryland Court of Appeals opinion differentiates between the necessary level of probable cause that law enforcement must obtain to search a vehicle and what it needs to search a person.

Police still can use the smell of marijuana as justification to search a vehicle, the opinion said. But they can’t search anyone in the vehicle unless they find evidence of a crime, not even if police find a small amount of marijuana.

“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 wrote.

The opinion comes five years after the state legislature decriminalized marijuana possession of 10 grams or less. Such small amounts are considered a civil offense, not a criminal offense, and can result in a citation that carries a $100 fine.

The ruling is a sign of the changing landscape for marijuana, something the justices noted — somewhat playfully — by placing Dylan’s famous lyric in a notation at the very top of their order.

The opinion stems from the arrest and search of Michael Pacheco who, on May 26, 2016, was sitting in a parked vehicle in Wheaton with a marijuana joint when he was approached by two Montgomery County Police officers. Officers testified that they smelled “fresh burnt” marijuana, found Pacheco seated in the driver’s seat alone, and a marijuana cigarette in the vehicle’s center console, the opinion said.

Officers ordered Pacheco out of the car, searched him and found cocaine in Pacheco’s “left front pocket.” Then they searched his car where they found a marijuana stem and two packets of rolling papers. He was arrested and charged with possession of cocaine with intent to distribute it. He also was given a citation for possessing less than ten grams of marijuana.

Pacheco moved to suppress the cocaine, arguing it was an illegal search of his person because officers lacked probable cause to believe he possessed ten grams or more of marijuana. But prosecutors argued the marijuana odor provided probable cause to search both the vehicle and Pacheco, the opinion said.

Pacheco entered a conditional guilty plea, which still allowed him to appeal to the Court of Special Appeals. He lost at that level when the court found the officers did have probable cause. But the Court of Appeals said the lower court’s opinion largely relied on “pre-decriminalization cases.”

Pacheco’s 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 opinion said.

Pacheco’s trial attorney, Richard A. Finci, praised the ruling, saying the court’s opinion mirrored his own argument.

“Evidence of possession of 10 grams or less of marijuana is not probable cause for arrest and therefore a search is not lawful,” he said in an interview.

But Finci said he believes the court also should find that the odor of marijuana is not sufficient justification to search a vehicle.

“I think it needs to go further,” he said, noting that odor of alcohol alone doesn’t warrant the lawful search of a vehicle.

In a separate, concurring opinion, judges wrote that the court’s latest opinion is “reasonable and thoughtful" but limited.

The concurrent opinion said officers still must be allowed to search a vehicle if they smell marijuana.

“In particular," they wrote, “it may be evidence of: possession of 10 grams or more of marijuana, possession of the drug with the intent to distribute, or the operation of a vehicle under the influence of a controlled dangerous substance.”

An officer in similar circumstances to the Pacheco case “will be duty-bound” to investigate whether the individual could be driving under the influence, the court said.

“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,” the concurring opinion said.

The concurring opinion cited vehicle crashes “linked to marijuana-impaired driving rose by nearly 40 percent” between 2017 and 2018.

A spokeswoman with the Maryland Attorney General’s Office, which represents the state in Court of Appeals cases, did not respond to a request for comment.

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