Around 10:00 p.m. on May 26, 2016, officers noticed a “suspicious vehicle” in a parking lot with its windows down and nowhere near the business itself.[1] One officer testified that when he was “within a foot” of the vehicle, they smelled the odor of freshly burnt marijuana and the other officer said that the smell of marijuana was strong but did not specify how close he was when he could smell it.[2] Mr. Pacheco was sitting in the front seat and complied when the officer asked him to hand over the joint that was in the vehicle’s center console.[3] The officers then ordered Mr. Pacheco to exit the vehicle and conducted a search, where they found cocaine in his front left pocket.[4] Mr. Pacheco was issued a citation for possession of less than ten grams of marijuana and charged with possession of cocaine with intent to distribute.[5]

At trial, Mr. Pacheco moved to suppress the cocaine because the officers’ warrantless search of his person was illegal because they lacked probable cause to believe that he possessed more than ten grams of marijuana.[6] The State countered that the odor provided probable cause to search both the vehicle and Mr. Pacheco.[7] The circuit court held that the officers had probable cause to arrest Mr. Pacheco and conduct a search of his person incident thereto because of Mr. Pacheco’s possession of less than ten grams of marijuana.[8] Mr. Pacheco entered a conditional guilty plea, reserving his right to withdraw that plea upon a successful appeal on the court’s ruling of his motion to suppress.[9] The Court of Special Appeals relied predominately on pre-decriminalization cases and affirmed.[10]

However, the Court of Appeals of Maryland reversed the trial court’s ruling on the motion to suppress.[11] While the court found that the officers had probable cause to search Mr. Pacheco’s vehicle based on the presence of contraband, they did not have probable cause to search his person.[12] The court’s reasoning is that although Mr. Pacheco had a diminished expectation of privacy in his vehicle, he still enjoys a heightened expectation of privacy of his person. In the post-decriminalization era, Marylanders will no longer be subjected to searches of their person based on the possession of less than ten grams of marijuana, where there is not a fair probability that they possess a criminal amount of marijuana.[13] As such, its citizens no longer need to worry that the smell of marijuana alone will give an officer probable cause to search their persons.

Thaddeus C. Sheehy, Jr. is a 3L at the University of Baltimore and will graduate in December 2019. Thaddeus is a second-year staff editor on Law Forum. Thaddeus is from Anne Arundel County and currently resides there. Thaddeus currently works at Medifast, Inc. located in Baltimore City.

[1] Michael Pacheco v. State of Maryland, 2019 WL 3773773 at *1.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id. at *2.

[7] Pacheco, 2019 WL 3773773 at *2.

[8] Id.

[9] Id.

[10] Id.

[11] Id. at *8.

[12] Id.

[13] Pacheco, 2019 WL 3773773 at *8.