In Maryland, smelling like you just smoked a joint won’t land you in trouble with the law.
In most places, smelling like you just partook in an illegal acticity is enough for police to warrant “probable cause” and search you and your belongings.
However, the top court in Maryland just ruled that simply smelling like marijuana, in the age of decriminalization and legalization, is not enough to warrant a person to be searched. In fact, according to this court, being searched for smelling like marijuana goes against a person’s fourth amendment rights, which protects unreasonable seizures.
While this ruling will make most of Maryland’s stoners happy, it doesn’t apply to those in Texas or Utah, however, the precedent set could become the national precedent in the coming years.
What Exactly Happened?
Police happened upon Michael Pacheco, one night sitting alone in an empty parking lot and decided to check out what he was doing.
After walking up to the car, they realized it smelled like the man had just smoked some cannabis and police officers could see joint and other materials inside of the Chevrolet Trailblazer, prompting them to do a search of the car.
During this search, they also decided that the smell was enough to warrant probable cause in searching Pacheco, where they found cocaine.
In 2014, Maryland decriminalized 10 grams or less of marijuana, with a $100 fine attached for the civil offense, meaning that while the man was fined for the materials in the car, he was also charged with cocaine possession with intent to distribute, a much heavier felony.
During the trial, it was argued that the police overstepped their bounds by searching Pacheco, as the small amount of marijuana found and the manner in which is was found, through smell first, did not warrant the man to be searched himself. Searching the vehicle was fine, however, using “probable cause” from the odor of the vehicle was not solid enough warrant Pacheco to be searched.
Maryland’s Court of Appeals, the highest court in the state, ruled that Pacheco had a point.
“In the post-decriminalization era, 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 incident thereto,” the court stated in the ruling.
“It is well established that individuals have a heightened expectation of privacy in their person as compared to their automobile, meaning the probable cause analysis for the search incident to arrest exception versus the automobile exception will often differ given the respective justifications for those exceptions and the facts and circumstances of each case,” it added.
What Does The Ruling Mean?
This ruling sets up a number of precedents that will impact some possibly major decisions in the coming years.
First, it entirely rules out marijuana odor as being probable cause in Maryland, which is a big deal in how police interact will now interact with marijuana.
To warrant probable cause, officers need to either see something or have some form of concrete evidence that will hold up in court to search a person, place or thing. By clearly being barred from using odor as probable cause, stoners don’t have to worry as much, yes, but now police have less incentive to act on marijuana-related crimes.
By focusing less on cannabis, police can free up time, money and resources and put them toward harder and more serious crimes. People of color and impoverished people, who are often disproportionately impacted for marijuana crimes, will also now have a new ruling to keep them from being unfairly prosecuted.
Secondly, the ruling sets a precedent that can be used in the future. Although the ruling only applies to Maryland, it isn’t impossible that if or when the day for national recreational legalization comes to fruition, that federal lawmakers look to what has already been established.
While it is still possible that a federal law could make marijuana odor a justification for searching, if it comes up in court, Maryland’s ruling could be used to help create a nationwide precedent.
The ruling allowed Pacheco to get the cocaine discovery removed from his court proceedings.
The precedent set in Maryland may also be looked at by other judges, courts or lawmakers doing research for their own jurisdiction.
Across The Country
In Allentown, Pennsylvania, a judge ruled earlier this month that the smell of cannabis did not warrant a search, IF the suspect had a medical card. While it is illegal across the board to drive under the influence of marijuana, there is no method to test then and there on the road if a person is high from THC.
The judge in the case ruled that once the suspect showed police their medical card it was “illogical, impractical and unreasonable” for the officers to suspect illegal activity.
The defense attorney for the case, Joshua Karoly, said that this ruling could be the first step into changing the guideline that allows police to search someone or something based on the smell.
“This case will put a spotlight on the plain smell doctrine in Pennsylvania which police use far too often to invade citizens’ privacy,” Karoly told the Pittsburgh Post-Gazette.
In New York State, lawmakers are still debating over whether to allow police to search based on smell as they enter an era of legal marijuana.
While many law enforcement officials argue that prohibiting smell as a factor for probable cause is detrimental to how evidence will be found and used to prosecute crimes, marijuana or not.
However, the fact remains that in the age of legal marijuana, having smell be probable cause effectively means that the smell of marijuana is illegal.