If you’re lighting up in Maryland, you can forget the Febreze. The state’s Court of Appeals has ruled that merely smelling cannabis is no longer grounds for police to search and arrest a person.
The precedent-setting decision is the result of a 2014 state law that decriminalized possession of up to 10 grams of cannabis. While anything more still counts as a crime, having less than 10 grams is now designated as a civil offense.
And that, the Maryland court said in a ruling last week, means police went too far when they searched a man’s pockets after detecting the smell of burnt cannabis coming from his parked car.
“In the post-decriminalization era,” the court wrote, “the mere odor of marijuana coupled with possession of what is clearly less than ten grams of marijuana, absent other circumstances, does not grant officers probable cause to effectuate an arrest and conduct a search.”
The decision is the latest in a string of rulings across the country that are removing the scent of cannabis—long used by police to justify warrantless searches of people and property—as a source of probable cause.
The case arose after police in Wheaton, MD, noticed what they described as a “suspicious vehicle” parked behind a laundromat in 2016. As they approached the car, which had its windows down, they detected the smell of burnt cannabis and saw a joint in the vehicle’s center console.
“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.”
Police asked the vehicle’s occupant, Michael Pacheo, to hand over the joint, which he did. They ordered him to exit the vehicle and searched both him and his vehicle.
While the search of his car yielded only a cannabis stem and two packs of rolling papers, Pacheo’s front left pocket contained cocaine. He was given a citation for the cannabis and charged with possession of cocaine with the intent to distribute.
In its ruling, however, the court found the search of Pacheo’s person to be unconstitutional because officers had no evidence that he had committed a crime. “For the search to be reasonable under the Fourth Amendment, the police must be armed with probable cause to believe that the person subject to arrest has committed a felony or is committing a felony or misdemeanor in the presence of police.”
In Pacheo’s case, the court continued, “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.”
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It would have been one thing if authorities had simply searched Pacheo’s car, the ruling says, because the expectation of privacy is less with respect to vehicles. But under Supreme Court precedent, the search “extends no further than the automobile itself.”
“Expanding the scope of the automobile exception beyond the vehicle would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage,” the court wrote, “and ‘untether’ the automobile exception from the justifications underlying it.”