Maryland Appeals Court: Cannabis Odor Doesn’t Justify Personal Search

The Maryland Court of Appeals has unanimously ruled that while police can still use cannabis odor has justification for a vehicle search, they cannot search anyone in the vehicle unless they find evidence of a crime which does not include finding a small amount of cannabis, the Baltimore Sun reports.

“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.” – Maryland Court of Appeals opinion

In Maryland, possession of 10 grams or less of cannabis is considered a criminal offense that carries a $100 fine.

The ruling comes from the May 2016 arrest and search of Michael Pacheco in Wheaton by Montgomery County Police officers. According to the report, police testified they had smelled “fresh burnt” cannabis when they approached his vehicle while he was parked and found a joint in the vehicle’s center console. The officers searched Pacheco and found cocaine in his pocket and upon searching the vehicle they found a cannabis stem and two packs of rolling papers.

Pacheco moved to suppress the cocaine, arguing that he was illegally searched because officers didn’t have probable cause to believe he possessed more than 10 grams of cannabis. Prosecutors argued the smelt of cannabis gave the officers cause to search both Pacheco and the vehicle. Pacheco was charged with possession of cocaine with intent to distribute and given a citation for the cannabis possession.

The Court of Special Appeals ruled on behalf of the prosecution; however, the Court of Appeals said the lower court’s ruling relied on “pre-decriminalization cases” and that the search and arrest were “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.”

In a concurring opinion, judges called the decision “reasonable and thoughtful” but said that cannabis odor may be evidence of possession of 10 grams or more of cannabis, possession with intent to sell, or operation of a vehicle under the influence” which gives them cause to search vehicles. They said that police who smell cannabis can only search a person if they find evidence of those, more serious, crimes.

Courts in Pennsylvania and Vermont have made similar rulings.

Earlier this month, a Pennsylvania judge ruled that cannabis odor was not grounds for search if anyone in the vehicle has a valid medical cannabis card. In Vermont, which allows adults to possess cannabis, the Supreme Court ruled in January that the smell of cannabis was not grounds for a search.