Maryland along with other states in recent years has changed its laws on possession of marijuana, in 2014 making possession of less than 10 grams of marijuana not a crime but subject to a civil citation.

The police have long used the distinctive odor of marijuana as grounds to arrest and search suspects or vehicles, often finding evidence of other crimes. How the changes in the marijuana laws affect whether searches and seizures are constitutional under the Fourth Amendment was addressed in a case this week from Maryland’s Court of Appeals called Michael Pacheco v. State of Maryland.

The opinion by Chief Judge Barbera indicates that two Montgomery County police officers were on foot patrol, when they noticed a suspicious parked vehicle. Upon approaching it, both officers smelled the odor of burnt marijuana, and observed the defendant in the car with a marijuana cigarette.

They asked the defendant to give it to them, exit the vehicle,  searched him and found cocaine in his pocket. A search of the vehicle only revealed another marijuana stem. The officers took the defendant to the station, gave him a citation for marijuana  possession but charged him with possession of cocaine with intent to distribute.

After a motion to suppress evidence seized incident to the arrest was denied, the case made its way to the state’s highest court. The Court of Appeals held that the mere odor of marijuana, and observation of one joint, may have been sufficient probable cause to search the vehicle.

However, the Court found that on this evidence alone there was not probable cause to arrest the defendant and search his person, for which he had a heightened sense of privacy.

The Court thus found that the odor of marijuana alone is not sufficient grounds, given that it requires possession of 10 grams or more to constitute a crime, to make an arrest and conduct a search incident to that arrest. Therefore, since the search was unconstitutional, the cocaine found during the search should have been suppressed and that conviction was overturned. As Judge Barbera noted in quoting Bob Dylan, when it comes to marijuana and Fourth Amendment law, “the times they are a-changin.’”

Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.

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