Maryland’s Court of Appeals quoted Bob Dylan’s “The Times They Are-A-Changing” in a ruling earlier this year, which held that the smell of marijuana alone no longer provides police with probable cause to search an individual’s person.
For decades, police officers used the odor of marijuana as a means of justifying a warrantless search of a person or his vehicle. Often, police officers would cite the smell of marijuana as the only basis for probable cause. The claim alone gave police the justification to search the person, open his bags, tear through his car and trunk, or even enter his apartment.
Increasingly, many of the individuals stopped because the officer claimed to smell marijuana were black and Latino men. Minority communities were disproportionately targeted because police could associate the smell of marijuana to anyone in the area and use it to search and seize any contraband, even if they did not find marijuana on their person.
Marijuana has been decriminalized in nearly every state. As a result, laws detailing the legal amount to grow or possess are changing rapidly, so states are forced to confront the issue of whether the odor of marijuana gives police officers probable cause to search. Courts around the country have held that the plain smell of marijuana no longer gives authorities probable cause to conduct a search because the smell alone is no longer indicative of an illegal or criminal act.
The highest court in Maryland recently decided a series of cases addressing this very issue. In Pacheco v. State, police searched Pacheco’s person and car after smelling the odor of marijuana and observing a marijuana cigarette in the car’s center console.The Maryland Court of Appeals held that, without more, the officer’s detection of “fresh burnt marijuana,” and the joint they observed did not rise to the level of probable cause. 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."
The Court of Appeals, however, distinguishes probable cause to search a person with the probable cause to search a vehicle. Citing to Robinson v. State, the court specified that marijuana in a car could provide probable cause for many of the offenses involving cars and marijuana that are still illegal, such as driving under the influence. As such, the detection of marijuana in a car justifies the search of a vehicle under the Automobile Exception.
Maryland is not the only state to come to this conclusion. A Pennsylvania county court judge recently declared that state police did not have a valid legal reason for searching a car merely because it smelled like marijuana. The Massachusetts Supreme Judicial Court has said repeatedly that the smell of marijuana alone cannot justify a warrantless vehicle search. In Vermont, the state Supreme Court also ruled that the “faint odor of burnt marijuana” did not give state police the right to impound and search a man’s car. Similarly, Colorado’s Supreme Court ruled in May that because a drug-detection dog was trained to sniff for marijuana — which is legal in the state — along with several illegal drugs, police could not use the dog’s alert to justify a vehicle search.
As states continue to decriminalize and legalize marijuana, law enforcement agencies are scrambling to understand how this shift affects the way they police. Courts are now tasked with examining more closely the basis for probable cause in order to protect our Fourth Amendment rights.