Maryland Court Rules Pot Smell Not Enough for Police to Search Person

Bob Dylan wrote his indelible classic “The Times They Are a-Changin’” at a moment of enormous political and cultural upheaval in the country. Nearly 60 years later, the lyrics have been invoked—in a court of law, no less—to capture the winds of change in marijuana policy.

The Maryland Court of Appeals ruled 7-0 this week that the smell of pot alone is not sufficient grounds to search an individual. The court cited the state’s five-year-old law that decriminalized marijuana possession for 10 grams or less. And it also cited the king of folk. At the very top of the opinion, Maryland’s highest court placed the iconic lyrics from the song, which Dylan released in 1965 as an anthem for the Civil Rights era.

The case dealt with the arrest of Michael Pacheco, a 26-year-old who was approached by a pair of Montgomery County, Maryland police officers in his parked vehicle in May of 2016. The officers testified that they smelled freshly burnt marijuana emanating from the vehicle and that they could see a joint in the center console. After ordering Pacheco out of the vehicle, the officers searched and found cocaine in one of his front pockets.

Pacheco and his attorneys contended that the cocaine was the result of an illegal search, arguing that the officers had no probable cause that he was in possession of more than 10 grams of marijuana. After entering a conditional guilty plea, Pacheco took it to the Maryland Court of Special Appeals, where he lost.

But the Court of Appeals reversed that ruling this week, saying it was based “predominantly on pre-decriminalization cases.”

“It is by now well known that the laws in Maryland and elsewhere addressing the possession and use of marijuana have changed,” the court wrote in the opening of the opinion, just after quoting Dylan. “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.”

“The same facts and circumstances that justify a search of an automobile do not necessarily justify an arrest and search incident thereto,” the court said in the conclusion of the majority opinion. “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 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.”

In the concurring opinion, two members of the panel sought to emphasize the “limited nature” of the ruling, saying that driving under the influence is a “matter of growing concern.” Those judges said that the ruling “should not be read to preclude a conclusion that an officer has probable cause for arrest when the officer comes upon an individual alone and awake in the driver’s seat of a vehicle with a marijuana joint at hand and the pungent odor of marijuana in the air.”

The Maryland legislature decriminalized marijuana possession for 10 grams or less in 2014, and it was signed into law by then-Democratic Governor Martin O’Malley.