The Court of Appeals Continues Defining the Fourth Amendment Implications of the Odor of Marijuana in a Post-Decriminalization Maryland

By John R. Grimm

In 2014, the General Assembly decriminalized possession of small amounts of  marijuana; rather than being a crime, possessing less than 10 grams of marijuana is now a civil offense punishable by a fine.[1]  Courts have been grappling with the effects of this change ever since.  Most notably, since the possession of marijuana is no longer categorically a crime, courts have had to clarify the rules for whether the odor of marijuana still constitutes probable cause sufficient to justify a search or arrest.  Several recent Court of Appeals decisions define the contours of the Fourth Amendment with respect to the odor of marijuana in a post-decriminalization world, and a recent cert grant seems poised to confirm Fourth Amendment limits on marijuana-related arrests.

Although any warrantless search is presumptively unreasonable, courts have long recognized numerous exceptions to the warrant requirement.  Nearly all of these exceptions require, as one of their elements, that the search be supported by probable cause.  Once possession of less than 10 grams of marijuana was decriminalized, defense attorneys began challenging warrantless searches by arguing that the odor of marijuana no longer gave police probable cause that crime was being committed, because not all marijuana possession was illegal.

The Court first considered such an argument when it decided Robinson v. State.[2]  In Robinson, the Court held that the odor of marijuana still constitutes probable cause to search a car under the automobile exception to the warrant requirement, which allows police to search a car when they possess probable cause that the car contains contraband or evidence of a crime.[3]  The Court reasoned that although possessing marijuana is not per se a crime, its presence can still be evidence of crimes, including possession of more than 10 grams of marijuana, distribution of  marijuana, or driving under the influence.[4]

In 2018, a divided Court of Special Appeals applied Robinson to affirm a conviction for handgun violations after he was searched based on the odor of marijuana.[5]  In Lewis v. State, the police searched the defendant based on the smell of marijuana on his breath, which led to the discovery of illegal firearms.  The court upheld the search, citing Robinson, but in a concurrence, Judge Arthur was clear that “[i]f I were writing on a blank slate, I would reverse the conviction,”[6] and that “[i]t is undeniable that the decision in this case will result in injustice.”[7]  Judge Nazarian dissented, arguing that Robinson—which applies to cars—does not necessarily extend to searches of persons.[8]

This past August, the Court of Appeals appeared to agree with Judge Nazarian when it decided Pacheco v. State.[9]  In Pacheco, the police smelled marijuana in the defendant’s car, and found what they immediately recognized was less than 10 grams.[10]  They ordered him out of the car, searched him, and found cocaine, which he was charged with possessing.[11]  Although Robinson would appear to hold that this search was lawful, the Court disagreed.  It noted the distinction that the Lewis court wrestled with between probable cause that justifies the search of a car versus probable cause that justifies arresting and searching a person.  The Court explained that the automobile exception applies when there is probable cause that a car might contain contraband, and that marijuana remains contraband even though it is not always a crime to possess it.[12]  But a warrantless arrest is only constitutional if there is probable cause that the person arrested is committing a crime, not possessing contraband.  Since the police only had probable cause that the defendant possessed a non-criminal amount of marijuana, they had no probable cause he was committing a crime were not justified in arresting him.[13]

To the extent the Lewis court felt constrained by Robinson, Pacheco clarifies the limits of that decision.  Indeed, the Court recently granted cert to review the Court of Special Appeals’ decision,[14] suggesting that it might reverse the lower court’s decision and harmonize it with the holding in Pacheco.

The Court of Appeals, thus, appears to be drawing clear lines around what kinds of searches the odor or marijuana, standing alone, will and will not justify in Maryland.  But one unanswered set of questions is how Robinson and its ilk relate to the federal system, where marijuana possession is still a crime.  Undoubtedly, Pacheco will give federal defense attorneys fodder for challenging searches based on the odor of marijuana, and federal courts—which must respect federal marijuana laws.  Maryland’s criminal statute provides that decriminalization of marijuana “may not be construed to affect the laws relating to . . . seizure . . . .”[15] and at least one District of Maryland decision had applied that language to reject a challenge to a search post-decriminalization.[16]  That analysis may become more complicated post-Pacheco.

Relatedly, an argument that Pacheco does not seem to answer is that the odor of marijuana still provides probable cause that a person is committing a federal crime and therefore justifies a warrantless arrest.  Such an argument, if accepted, would eviscerate the Court’s careful and nuanced analysis in Pacheco, and could result in the same “injustice” Judge Arthur warned about in Lewis.  Yet it is not clear from those decisions why local police must make investigatory decisions solely with respect to potential violations of state law.  Perhaps this uncertainty is just the result of the natural tension that exists when federal and state law differ, but perhaps in future cases courts will explore the dual-sovereignty dynamic presented by marijuana searches.

[1]              Md. Code Ann., Crim. L. § 5-601(c)(2)(ii).

[2]              451 Md. 94 (2017).

[3]              Id. at 109.

[4]              Id. at 134.

[5]              Lewis v. State, 237 Md. App. 661 (2018).

[6]              Id. at 685 (Arthur, J., concurring).

[7]              Id. at 690.

[8]              Id. at 629 (Nazarian, J., dissenting).

[9]              — Md. —, 2019 WL 3773773 (Aug. 12, 2019).

[10]             Id. at *1.

[11]             Id.

[12]             Id. at *6.

[13]             Shortly after deciding Robinson, the Court held, in Norman v. State, 452 Md. 373 (2017), that the odor of marijuana, without more, does not give rise to reasonable suspicion that someone is armed and justify a pat-down.

[14]             See “High Court to Consider Whether Pot Odor Gives Cause to Arrest,” The Daily Record,  https://thedailyrecord.com/2019/09/11/high-court-to-consider-whether-pot-odor-gives-cause-to-arrest/.

[15]             Md. Code Ann., Crim. L. § 5-601(d), (d)(2).  The Court of Appeals did not address this language in Pacheco.

[16]             See United States v. Lyles, No. TDC-17-0039,2017 WL 5633093 (D. Md. Nov. 20, 2017).