Pacheco v. State

MICHAEL PACHECO v. STATE OF MARYLAND

No. 17

COURT OF APPEALS OF MARYLAND

Argued: October 9, 2018

September Term, 2018

August 12, 2019

CRIMINAL PROCEDURE — ODOR OF MARIJUANA — PROBABLE CAUSE — SEARCH INCIDENT TO LAWFUL ARREST EXCEPTION — DECRIMINALIZATION OF LESS THAN TEN GRAMS OF MARIJUANA

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. It is well established that individuals have a heighted 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. Thus, although Petitioner's possession of a marijuana cigarette along with the odor of marijuana may have given the officers probable cause to search his vehicle, it did not grant them probable cause to arrest him and conduct a search incident thereto.

Circuit Court for Montgomery County

Case No. 130184

Barbera, C.J., ^*Greene ^*Adkins McDonald Watts Hotten Getty, JJ.

Opinion by Barbera, C.J.

McDonald and Watts, JJ., concur.

^*Greene and Adkins, JJ., now retired, participated in the hearing and conference of this case while active members of this Court; after being recalled pursuant to the MD. Constitution, Article IV, Section 3A, they also participated in the decision and adoption of this opinion.

"The times they are a-changin'."

—Bob Dylan, The Times They Are a-Changin'

It is by now well known that the laws in Maryland and elsewhere addressing the possession and use of marijuana have changed. 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.

Presented in this case is a question of first impression. That question, as framed in the brief of Petitioner Michael Pacheco, is

whether police are authorized to arrest a person for the criminal offenses of possession of more than ten grams of marijuana and/or possession of marijuana with intent to distribute, based solely on facts indicating that the person is committing the civil offense of possession of less than ten grams of marijuana.

For reasons that follow, we answer that question in the negative.

I.Facts and Procedural History

On May 26, 2016, Officers Groger and Heffley, of the Montgomery County Police Department, were conducting a "routine foot patrol" in Wheaton, Maryland. Around 10:00 p.m., they noticed what they would later describe as a "suspicious vehicle" parked behind a laundromat "in a dark parking spot . . . with the windows down. . . . and nowhere nearthe business itself."¹ The officers found it suspicious that someone would sit in his or her car rather than in the laundromat, which was open at the time. In Officer Heffley's experience, "people take their laundry in and they stay in the [l]aundromat," because the laundromats in the area have "free Wi-Fi . . . and TVs." As they approached the vehicle (a Chevrolet Trailblazer), Officer Groger went to the driver's side while Officer Heffley headed to the passenger's side. Officer Heffley would later testify, after having his recollection refreshed, that he was "within a foot" of the vehicle when he smelled the odor of "fresh burnt" marijuana. Officer Groger also testified that he had detected the odor of burnt marijuana. He said the odor was "strong" but did not specify how far away he was when he detected it. Both officers could see that Mr. Pacheco was alone and seated in the driver's seat. Officer Heffley observed a marijuana cigarette in the vehicle's center console, which he testified he knew immediately was less than ten grams. The officer asked Mr. Pacheco to give him the "joint." Mr. Pacheco complied.

Immediately thereafter, the officers ordered Mr. Pacheco to exit the vehicle and searched him. During the search, the officers discovered cocaine in Mr. Pacheco's "left front pocket." The officers then searched the vehicle, whereupon they recovered a marijuana stem and two packets of rolling papers. The officers transported Mr. Pacheco to the police station, where they issued him a citation for possessing less than ten grams of marijuana and charged him with possession of cocaine with intent to distribute it.

Mr. Pacheco moved to suppress the cocaine, arguing that the officers' warrantless search of his person was illegal because, at the time of the search, the officers lacked probable cause to believe that he possessed ten grams or more of marijuana. The State countered that the odor "provided probable cause to search 'both the vehicle and [Mr. Pacheco].'"

At the suppression hearing, the officers differed about the basis for the arrest. Officer Heffley testified that Mr. Pacheco was arrested for possessing cocaine, stating that before the cocaine was found, no basis for an arrest existed because Mr. Pacheco only possessed a small quantity of marijuana. Officer Groger stated that he "searched Mr. Pacheco incident[] to [an] arrest [for] the fresh burnt odor of marijuana," although he acknowledged that possession of less than ten grams would be a civil offense "[i]f that was all that was recovered in the joint."

The circuit court denied the motion to suppress the cocaine. In the court's opinion, the possession of what appeared to the officers to be less than ten grams of marijuana gave them probable cause to arrest Mr. Pacheco and thereby to conduct a search of his person incident to the arrest. Mr. Pacheco then entered a conditional guilty plea, which preserved his right to withdraw the plea if he was successful in his appeal of the court's ruling on the motion to suppress.

On appeal, the Court of Special Appeals, in an unreported decision, upheld the search of Mr. Pacheco as incident to a lawful arrest. The Court of Special Appeals determined that Mr. Pacheco "was the driver and sole occupant of a vehicle that smelled offreshly burnt marijuana, and police observed a marijuana joint in the center console." Relying predominately on pre-decriminalization cases, the Court of Special Appeals concluded that "these circumstances gave the police probable cause to arrest [Mr. Pacheco]."

II.Standard of Review

Our review of a circuit court's denial of a motion to suppress evidence is "limited to the record developed at the suppression hearing." Moats v. State, 455 Md. 682, 694 (2017). We assess the record "in the light most favorable to the party who prevails on the issue that the defendant raises in the motion to suppress." Norman v. State, 452 Md. 373, 386, cert. denied, 138 S. Ct. 174 (2017). We accept the trial court's factual findings unless they are clearly erroneous, but we review de novo the "court's application of the law to its findings of fact." Id. When a party raises a constitutional challenge to a search or seizure, this Court renders an "'independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case.'" Grant v. State, 449 Md. 1, 15 (2016) (quoting State v. Wallace, 372 Md. 137, 144 (2002)).

III.Discussion

In 2014, the General Assembly decriminalized possession of less than ten grams of marijuana. Robinson v. State, 451 Md. 94 (2017). The legislature made such possession a "civil offense" and mandated that a "police officer shall issue a citation to a person who the police officer has probable cause to believe has committed [that civil offense]." Id. at 97, 115 (citations omitted). Since then, courts in Maryland and others across the countryhave grappled with the constitutionality of searches and seizures that are based, at least in part, on the odor of marijuana. See Norman v. State, 452 Md. 373, cert. denied, 138 S. Ct. 174 (2017); Robinson v. State, 451 Md. 94 (2017).² The present case adds to that collection and provides us with another opportunity to clarify this evolving area of Fourth Amendment jurisprudence.

The Fourth Amendment, the Reasonableness Clause, and Exceptions to the Warrant Requirement

It is well settled that the Fourth Amendment to the United States Constitution prohibits "unreasonable" searches and seizures. State v. Johnson, 458 Md. 519, 533 (2018); see also Maryland v. King, 569 U.S. 435, 447 (2013) (citation omitted) ("[T]he ultimate measure of the constitutionality of a governmental search is 'reasonableness.'"). Although warrantless searches and seizures are "presumptively unreasonable," Henderson v. State, 416 Md. 125, 148 (2010), they may be deemed reasonable if the circumstances fall within "a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). Whether a particular warrantless action on the part of the police is "reasonable" under the Fourth Amendment "depends 'on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'" Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). Those exceptions tend to arise "[w]hen facedwith special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like." King, 569 U.S. at 447 (alteration in original) (quoting Illinois v. McArthur, 531 U.S. 326, 330 (2001)). It is the State's burden to prove the legality of a warrantless search. Holt v. State, 435 Md. 443, 459 (2013).

This case gives rise to consideration of two exceptions to the warrant requirement of the Fourth Amendment: the so-called "automobile exception" announced in Carroll v. United States, 267 U.S. 132 (1925), and the search incident to arrest exception announced in Chimel v. California, ...