Michael Pacheco v. State of Maryland , No. 17, September Term, 2018

CRIMINAL PROCEDURE — ODOR OF MARIJUANA — PROBABLE C AUSE — SEARCH INCIDENT TO LAWFUL ARREST EXCEPTION — DECRIM INALIZATION 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, a bsent 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 e xpectation 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 a nd circumstances of each case. Thus, although Petitioner’s possession of a marijuana cig arette along with the odor of marijuana may have given the officers probable cause to searc h his vehicle, it did not grant them probable cause to arrest him and conduct a search i ncident thereto.Circuit Court for Montgomery County

Case No. 130184 Argued: October 9, 2018 IN THE COURT OF APPEALS OF MARYLAND
No. 17 September Term, 2018

MICHAEL PACHECO

v. STATE OF MARYLAND

Barbera, C.J., *Greene

*Adkins McDonald Watts Hotten Getty,
JJ.

Opinion by Barbera, C.J. McDonald and Watts, JJ., concur.

Filed: August 12, 2019 *Greene and Adkins, JJ., now retired, participated in the hearing and conference of this case while active me mbers 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 a nd elsewhere addressing the possession and use of marijuana have changed. Thos e changes naturally have compelled examination of how the affected laws are to be inte rpreted and applied consistent with the dictates of other law including, here, the Fourth A mendment’s protection against unreasonable searches and seizures. Presented in this case is a question of first impre ssion. That question, as framed in the brief of Petitioner Michael Pacheco, is whether police are authorized to arrest a person fo r the criminal offenses of possession of more than ten grams of marijuana and/ or possession of marijuana with intent to distribute, based solely on fa cts indicating that the person is committing the civil offense of possession of le ss 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 th e 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 a s a “suspicious vehicle” parked behind a laundromat “in a dark parking spot . . . with the windows down. . . . and nowhere near2

the business itself.” 1 The officers found it suspicious that someone wou ld sit in his or her car rather than in the laundromat, which was open a t the time. In Officer Heffley’s experience, “people take their laundry in and they stayin 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 wo uld later testify, after having his recollection refreshed, that he was “within a foot” of t he vehicle when he smelled the odor of “fresh burnt” marijuana. Officer Groger also testi fied that he had detected the odor of burnt marijuana. He said the odor was “strong” but did n ot specify how far away he was when he detected it. Both officers could see that Mr. P acheco was alone and seated in the driver’s seat. Officer Heffley observed a marijuana cigaret te 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. Pa checo to exit the vehicle and searched him. During the search, the officers disc overed cocaine in Mr. Pacheco’s “left front pocket.” The officers then searched the vehi cle, whereupon they recovered a marijuana stem and two packets of rolling papers. The of ficers transported Mr. Pacheco to the police station, where they issued him a citation fo r possessing less than ten grams of marijuana and charged him with possession of cocaine wi th intent to distribute it.

1 Although the officers described the vehicle’s pos ition as suspicious and the hearing judge credited that testimony, the officers’ body camera footage reveals that Mr. Pacheco’s vehicle was parked in close proximity to other vehicl es.3

Mr. Pacheco moved to suppress the cocaine, arguing that the officers’ warrantless search of his person was illegal because, at the ti me of the search, the officers lacked probable cause to believe that he possessed ten grams o r more of marijuana. The State countered that the odor “provided probable cause to sea rch ‘both the vehicle and [Mr. Pacheco].’” At the suppression hearing, the officers differed a bout the basis for the arrest. Officer Heffley testified that Mr. Pacheco was arrest ed for possessing cocaine, stating that before the cocaine was found, no basis for an arres t existed because Mr. Pacheco only possessed a small quantity of marijuana. Officer G roger stated that he “searched Mr. Pacheco incident[] to [an] arrest [for] the fresh b urnt 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 there by 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 unre ported decision, upheld the search of Mr. Pacheco as incident to a lawful arres t. The Court of Special Appeals determined that Mr. Pacheco “was the driver and sole occ upant of a vehicle that smelled of4

freshly 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 pr obable 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 fa vorable to the party who prevails on the issue that the defendant raises in the motion to su ppress.” 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 circumstanc es 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 posse ssion of less than ten grams of marijuana. Robinson v. State , 451 Md. 94 (2017). The legislature made such pos session 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 ha s committed [that civil offense].” Id. at 97, 115 (citations omitted). Since then, courts in Maryland and others across the country5

have grappled with the constitutionality of searche s 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 clarifythis evolving area of Fourth Amendment jurisprudence. The Fourth Amendment, the Reasonableness Clause, an d 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 “presumptivel y unreasonable,” Henderson v. State , 416 Md. 125, 148 (2010), they may be deemed reasona ble 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 warrant less action on the part of the police is “reasonable” under the Fourth Amendment “depends ‘o n a balance between the public interest and the individual’s right to personal secur ity 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)). “In some circumstance s, such as ‘[w]hen

2 See also State v. Perry , 874 N.W.2d 36 (Neb. 2016); People v. Zuniga , 372 P.3d 1052 (Colo. 2016); Commonwealth v. Overmyer , 11 N.E.3d 1054 (Mass. 2014); State v. Ortega , 770 N.W.2d 145 (Minn. 2009); In re O.S. , 112 N.E.3d 621 (Ill. App. Ct.), appeal denied , 110 N.E.3d 189 (Ill. 2018); State v. Brito , 154 A.3d 535 (Conn. App. Ct.), cert. denied , 155 A.3d 755 (Conn. 2017).6

faced with special law enforcement needs, diminishe d expectations of privacy, minimal intrusions, or the like, the [Supreme] Court has fo und that certain general, or individual, circumstances may render a warrantless search or se izure reasonable.’” King , 569 U.S. at 447 (quoting Illinois v. McArthur , 531 U.S. 326, 330 (2001)). It is the State’s bur den to prove the legality of a warrantless search. Holt v. State , 435 Md. 443, 459 (2013). This case gives rise to consideration of two except ions 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 a rrest exception announced
in Chimel v. California , 395 U.S. 752 (1969). The Automobile Exception Carroll and its progeny authorize the warrantless search o f a vehicle if, at the time of the search, the police have developed “probable cause to believe the vehicle contains contraband or evidence of a crime.” Johnson , 458 Md. at 533 (citing United States v. Ross , 456 U.S. 798, 799 (1982)); see also California v. Carney , 471 U.S. 386, 391 (1985) (stating that “[b]esides the element of mobility, less rigor ous warrant requirements govern [automobile searches] because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office”). The automobile doctrine permits the search of “every part of the vehicle an d its contents that may conceal the object of the search.” Wyoming v. Houghton , 526 U.S. 295, 301 (1999) (quoting Ross , 456 U.S. at 825). The search, however, “extends no further than the automobile itself.” Collins v. Virginia , __ U.S. __, 138 S. Ct. 1663, 1671 (2018). “Expan ding the scope of the automobile exception [beyond the vehicle] would both unde rvalue the core Fourth Amendment7

protection afforded to the home and its curtilage a nd ‘untether’ the automobile exception ‘from the justifications underlying’ it.” Id. (quoting Riley v. California , 573 U.S. 373, 386 (2014)). The Search Incident to Arrest Exception The exception that authorizes a search incident to the (lawful) arrest of a person “has an ancient pedigree” and was recognized “[w]ell bef ore the Nation’s founding.” Birchfield v. North Dakota , 136 S. Ct. 2160, 2174 (2016). For the search to be reasonable under the Fourth Amendment, the police must be armed with pro bable cause to believe that the person subject to arrest has committed a felony or is committing a felony or misdemeanor in the presence of the police. Maryland v. Pringle , 540 U.S. 366, 369-70 (2003); see also United States v. Robinson , 414 U.S. 218, 225 (1973) (“The right without a se arch warrant contemporaneously to search persons lawfully arrest ed while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is n ot to be doubted.”) (quoting Agnello v. United States , 269 U.S. 20, 30 (1925)). The Supreme Court has n ot wavered from the original justification for a search incident to arr est: When an arrest is made, it is reasonable for the ar resting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest its elf frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to preve nt its concealment or destruction. . . . There is ample justification, the refore, for a search of the arrestee’s person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a8

weapon or destructible evidence. Riley , 573 U.S. at 383 (alteration in original) (quoting Chimel , 395 U.S. at 762-63); accord Birchfield , 136 S. Ct. at 2174-76. By its express terms, the condition precedent to a search incident to arrest is that the police have made a lawful custodial arrest of the p erson, that is, an arrest supported by probable cause that the arrestee has committed or i s committing a crime. Pringle , 540 U.S. at 369-70; see also Rawlings v. Kentucky , 448 U.S. 98, 111 (1980) (stating that a search incident to an arrest may precede the formal arrest so long as the police already have amassed the requisite probable cause to make the ar rest and the search is conducted “incident” to the arrest). Because the search is premis ed on probable cause to make the arrest, the first question to be considered whenever such a search has been conducted is whether the police had the requisite probable cause before conducting the search. Donaldson v.
State , 416 Md. 467, 481 (2010). The Probable Cause Standard in Application The vehicle and search incident to lawful arrest ex ceptions are similar in that both turn on whether law enforcement had probable cause to conduct the warrantless search at issue. See Carroll , 267 U.S. at 149 (“On reason and authority the tru e rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to th e seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.”); Riley , 573 U.S. at 384 (“a ‘custodial arrest of a suspec t based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being9

lawful, a search incident to the arrest requires no additional justification.’”). The probable cause standard has been described gene rally as a “‘practical, nontechnical conception’ that deals with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal tech nicians, act.’” Pringle , 540 U.S. at 370 (quoting Illinois v. Gates , 462 U.S. 213, 231 (1983)). “Probable cause, more over, is ‘a fluid concept,’ ‘incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the tota lity of the circumstances.’” McCracken
v. State , 429 Md. 507, 519-20 (2012) (quoting Pringle , 540 U.S. at 370-71). For that reason, “[p]robable cause does not depend on a prepond erance of the evidence, but instead depends on a ‘fair probability’ on which a reasonab ly prudent person would act.” Robinson , 451 Md. at 109 (quoting Florida v. Harris , 568 U.S. 237, 244 (2013)). In describing probable cause, the Supreme Court has “rejected rig id rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-t hings-considered approach.” Id. at 110 (quoting Harris , 568 U.S. at 244). The authorization for and permitted scope of the se arch at issue is tied directly to the justification(s) for it. In that sense, the pr obable cause determinations for the automobile exception and the search incident to lawful ar rest exception are not “in all respects identical.” 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendm ent § 3.1(b), at 7 (5th ed. 2012) [hereinafter “LaFave” ]. Although the probable cause determination for each of these exceptions requires the sa me “quantum of evidence,” “[e]ach requires a showing of probabilities as to somewhat di fferent facts and circumstances—a point seldom made explicit in the appellate cases.” Id . “This distinction is a critical one, . . . .10

[and] there may be probable cause to search withoutprobable cause to arrest, and viceversa.” Id. at 12; see, e.g. , Butler v. United States , 102 A.3d 736, 741 (D.C. 2014) (noting that, prior to the legalization of marijuana in Was hington D.C., “the smell of marijuana ‘generally’ emanating from appellant’s vehicle . . . indisputably would allow the police to search the vehicle ,” but the court had “reservations” about whether t he driver’s arrest could have been upheld without the additional facts that the defendant “was the sole occupant of the vehicle” and “the aroma was of fresh marijuana.”). When determining whether probable cause exists for purposes of the automobile exception, courts ask whether “there is probable ca use to believe the vehicle contains contraband or evidence of a crime.” Johnson , 458 Md. at 533 (citing Ross , 456 U.S. at 799). However, before a person can be lawfully arrested a nd searched incident thereto the focus must be on the likelihood of the “guilt of the arre stee,” LaFave at 9, and asks whether “there is probable cause to believe that the individual ha s committed either a felony or a misdemeanor in an officer’s presence.” Donaldson , 416 Md. at 480; see also United States v. Humphries , 372 F.3d 653, 659 (4th Cir. 2004) (“In the search context, the question is whether the totality of circumstances is sufficient to warrant a reasonable person to believe that contraband or evidence of a crime will be foun d in a particular place. Whereas in the arrest context, the question is whether the totalit y of the circumstances indicate to a reasonable person that a ‘suspect has committed, is co mmitting, or is about to commit’ a crime.”) (citations omitted). The distinction between the two exceptions is at le ast in part due to the diminished expectation of privacy that justifies the automobil e exception, Carney , 471 U.S. at 390-92,11

as compared to the “unique, significantly heightene d” constitutional protections afforded a person to be secure in his or her body, Houghton , 526 U.S. at 303. Stated differently, [p]robable cause to believe that a person is carryi ng evidence does not justify a warrantless search of the person any more than pr obable cause to believe a home contains evidence justifies a warrantless sear ch of a home. Only places or things enjoying a lesser expectation of privacy, such as automobiles, are vulnerable to probable-cause-based warrantless sear ches for the purpose of discovering and seizing evidence of crime. State v. Funkhouser , 140 Md. App. 696, 724 (2001). The Supreme Court, in Terry v. Ohio , 392 U.S. 1, 25 (1968), emphasized the significant l evel of intrusion upon a person that is a “search incident to an arrest,” in comparing that i ntrusion to the lesser intrusion upon the person that is a “pat down.” The Terry Court had this to say on the subject: An arrest is a wholly different kind of intrusion u pon individual freedom from a limited search for weapons, and the interest s each is designed to serve are likewise quite different. An arrest is the ini tial stage of a criminal prosecution. It is intended to vindicate society’s inte rest in having its laws obeyed, and it is inevitably accompanied by future interfer ence with the individual’s freedom of movement, whether or not trial or convic tion ultimately follows. Id. at 26. Probable Cause in the Post-Decriminalization Era
1. The General Assembly’s decriminalization of less th an ten grams of marijuana In 2014, citing concerns over the disproportionate number of African-Americans arrested for marijuana possession compared to white s, despite comparable usage rates, the General Assembly decriminalized the possession of l ess than ten grams of marijuana. 3

3 See Criminal Law—Possession of Marijuana—Civil Offense: Hearing on S.B. 364 Before the H. Judiciary Comm. , 2014 Reg. Sess. (Md. 2014), available at http://m gahouse.maryland.gov/mga/play/1f0ace2b889b4079bcfb85b6ba52d452/ ?catalog/03e481c7-8a42-4438- a7da-93ff74bdaa4c&playfrom=2926752 [https://perma.c c/V5ZW-NLPQ].12

With the enactment of Maryland Code Ann., Crim. Law Article (“CL”) (2002, 2012 Repl. Vol., 2014 Supp.) §§ 5-601 and 5-601.1, the possess ion of less than ten grams of marijuana became a civil offense. Although marijuana possess ion was not legalized outright, possession of less than ten grams would be from then on c onsidered a “civil offense” and not a criminal one. Id. ; see also supra note 3. The decriminalization was an effort to re duce the considerable time and resources spent on arresting, prosecuting, and adjudicating marijuana cases, which many legislators believed should n ot be considered criminal or, at the very least, should not be considered a high priorit y for the criminal justice system. See

supra note 3. The parties spar over the legislative history of CL §§ 5-601 and 5-601.1 but ultimately to no end insofar as it concerns the presentcase. The question before us is a constitutional one; consequently, the answer hinges no t on what was said at a House Judiciary Committee Hearing, but rather on application of set tled Fourth Amendment law to the facts and circumstances presented here. Relevant to that analysis are two recent decisions of this Court, Robinson v. State , 451 Md. 94 (2017), and Norman v. State , 452 Md. 373, cert. denied , 138 S. Ct. 174 (2017), both of which apply Fourth Amendment jurisprudence to situations implicating the decriminalization of pos session of less than ten grams of marijuana. 4

4 Mr. Pacheco notes that both CL §§ 5-601 and 5-601 .1 have been amended since he was arrested. Those amendments, however, did not chang e the amount of marijuana that constitutes criminal possession, nor did they change t he other relevant provisions. See 2016 Maryland Laws Ch. 514, 6232-38 (H.B. 565) and 2016 Maryland Laws Ch. 515, 6373-75 (S.B. 1005).13

2. Robinson and Norman Robinson was a consolidated appeal in which three defendant s in three unrelated cases argued that the odor of marijuana emanating f rom their respective vehicles did not provide law enforcement with probable cause to sear ch the vehicles. See 451 Md. at 98. After a thorough analysis of the relevant constitut ional principles, discussed above, and application of those principles to the circumstance s presented in Robinson in light of CL §§ 5-601 and 5-601.1, we concluded that a law enforcement officer has probable cause to sea rch a vehicle where the law enforcement officer detects an odor of marijuan a emanating from the vehicle, as marijuana in any amount remains contrab and, notwithstanding the decriminalization of possession of less than ten gr ams of marijuana; and the odor of marijuana gives rise to probable cause to b elieve that the vehicle contains contraband or evidence of a crime. Id. at 99. The Robinson Court made clear that contraband and evidence of a crime are not always synonymous. Id. at 128-30. “Contraband” refers to “goods that are illegal to possess, regardless of whether possession of the goods is a crime,” id. at 128 (emphasis in original); “evidence of a crime” is just that, rega rdless of the inherent “legality” of such evidence. We stated in Robinson that for purposes of probable cause in the context of vehicle searches, “there is no distinction between the sign ificance of a criminal amount of marijuana versus the significance of a noncriminal—but st ill illegal—amount of marijuana.” Id. at 130. The Court identified three crimes in which the presence of the odor of marijuana and/or a marijuana cigarette could provide the requ isite probable cause to believe that the14

vehicle contained contraband or evidence of a crime : “possession of ten grams or more of marijuana, crimes involving the distribution of mar ijuana, and driving under the influence of a controlled dangerous substance,” none of which have been decriminalized. Id. at 134. Thus, the mere odor of marijuana emanating from a v ehicle provides probable cause that the vehicle contains additional contraband or evide nce of a crime, thereby permitting the search of the vehicle and its contents. Id. at 130, 134. Shortly after Robinson , this Court in Norman faced, in a somewhat similar factual scenario, a different legal question: “whether a la w enforcement officer who detects an odor of marijuana emanating from a vehicle with mul tiple occupants has reasonable articulable suspicion that the vehicle’s occupants are a rmed and dangerous, and thus may frisk— i.e. , pat down—the vehicle’s occupants for weapons.” 4 52 Md. at 378. In that case, the State argued that the rationale of Robinson extended beyond searches of vehicles and applied to Terry frisks as well. We disagreed. We explained in Norman that a “frisk” of a person is “different from a se arch of a person,” both in purpose and in scope. Id. at 388. The purpose of a frisk 5 is to uncover weapons to ensure officer safety, and thus its scop e is limited to a pat down of the vehicle’s occupant(s) for weapons. Id. The frisk is not based on “probable cause,” but ins tead, “reasonable suspicion” that a person is armed and d angerous. In that regard a frisk is a

5 In a line of cases beginning with Terry v. Ohio , 392 U.S. 1 (1968), the Supreme Court has held that the Fourth Amendment permits a “pat-d own” of an individual whom the police have lawfully stopped based on a reasonable su spicion of criminal activity, if, but only if, the police have the requisite reasonable suspic ion that the person stopped is armed or dangerous. Id. at 30; see also Arizona v. Johnson , 555 U.S. 323, 326-27 (2009); Sellman v. State , 449 Md. 526, 541-42 (2016).15

lesser intrusion upon the person than is a full sea rch. The latter, a greater intrusion, requires a higher level of suspicion, i.e. , probable cause to believe that the person is arme d or in possession of evidence of a crime. We held in Norman that the mere odor of marijuana was not sufficient to establish reasonable suspicio n that “the vehicle’s occupants are armed and dangerous, and thus subject to frisk.” Id. at 411.
In Norman , this Court also clarified the limits of Robinson , stating that the only issue in Robinson was whether an odor of marijuana emanating from a vehicle provides probable cause to search the veh icle. No frisks or searches of persons were at issue in Robinson , and nowhere in Robinson did this Court imply, one way or the other, whether a frisk of a p erson would be permissible based on an odor of marijuana alone emanating from a vehicle. Id. Pertinent to the case before us, we did not mention in either Robinson or in Norman , nor need we have done so under the facts presented in those cases, whether the lawful detection of the odor of burnt marijuana emanating from a vehicle gives rise to probable cause to arrest the occupant(s) and pursuant to suc h probable cause conduct a full search of the occupant(s) incident to the arrest. The Present Case Mr. Pacheco does not contest that the police office rs had probable cause to search his vehicle based on the odor of marijuana and pres ence of a joint in the vehicle’s center console. As we made clear in Robinson , marijuana in any amount remains contraband and its presence in a vehicle justifies the search of t he vehicle. 451 Md. at 124-33. Therefore, the eventual search of Mr. Pacheco’s vehicle was pe rmissible by application of the automobile doctrine.16

It does not follow, however, that because the polic e lawfully searched Mr. Pacheco’s car for contraband or evidence of the three crimes identified in Robinson , they likewise had the right to search his person. It is not in dispu te that the only rationale offered by the State in support of the search of Mr. Pacheco was that it was a proper search “incident to his arrest.” For such a search to have been reasonable under the Fourth Amendment, the officers must have possessed, before the search, probable cause to believe that Mr. Pach eco was committing a felony or a misdemeanor in their p resence. The Supreme Court has long held that a search incid ent to a lawful arrest is permissible only if the underlying arrest is lawful. See Pringle , 540 U.S. at 371 (“To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide ‘whether these hist orical facts, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.”) (emphasis added) (quoting Ornelas v. United States , 517 U.S. 690, 696 (1996)); Smith v. Ohio , 494 U.S. 541, 543 (1990) (“As we have had occasion in t he past to observe, ‘[i]t is axiomatic that an incident search may not precede an arrest a nd serve as part of its justification.’”) (quoting Sibron v. New York , 392 U.S. 40, 63 (1968)); Bailey v. State , 412 Md. 349, 375 (2010) (“In the case of a search incident to arrest , the State must show that probable cause supported a lawful arrest before the officer conduc ted the search.”); see also Rawlings , 448 U.S. at 111 (stating that the search can occur eith er before or after the arrest so long as probable cause exists for the arrest at the time of the search). The State wisely does not argue that the product of the search of Mr. Pacheco—the cocaine—supplied probable cause for that search. A nd, for his part, Mr. Pacheco concedes17

that if the officers had searched the car before se arching him and they had found evidence of his commission of a crime, then they would have had the requisite probable cause to search him. 6 What we must decide, then, is whether the circums tances leading up to the officers’ search of Mr. Pacheco supplied probable c ause that he had committed either a felony or a misdemeanor in the officers’ presence. The officers testified that they observed Mr. Pacheco in the driver’s seat of what they furth er described as a “suspicious,” though legally parked, vehicle. They also testified to th eir detection of “fresh burnt” marijuana emanating from the vehicle and the joint they obser ved in the center console. These facts, without more, do not meet the standard for probable cause to arrest and thereby to search Mr. Pacheco. As we earlier mentioned, this Court, in Robinson , identified three crimes that the odor of marijuana may indicate are occurring: posse ssion of ten grams or more of marijuana, possession of marijuana with the intent to dis tribute, or the operation of a vehicle under the influence of a controlled dangerous substance. 451 Md. at 133. The State argues that the first of these crimes—possession of ten grams o r more of marijuana—is relevant here. 7

6 We note that the search of the vehicle following the search of Mr. Pacheco led to the recovery of two packets of rolling papers and a mar ijuana stem, which Officer Heffley testified had no “evidentiary value.” He was corre ct because under CL § 5-619(c), the “use or possession of drug paraphernalia involving the u se or possession of marijuana” is not criminal.

7 Nothing in the record suggests, nor does the Stat e argue, that Mr. Pacheco intended to distribute marijuana or was operating the vehicle w hile under the influence of marijuana. The only indication that Mr. Pacheco operated the v ehicle at an earlier time was that he was alone and in the driver’s seat when the police encountered him; moreover, the record18

In the probable cause determination, “the experienc e and special knowledge of police officers who are [attempting to establish prob able cause] are among the facts which may be considered.” Longshore v. State , 399 Md. 486, 534 (2007) (alteration in original) (quoting Wood v. State , 185 Md. 280, 286 (1945)). “The observations of t he police, however, must be based on something factual.” Id. Our research has not disclosed a case decided by this Court, nor does the State supply us with a case, holding that the police have probable cause to search a person incident to arres t based on facts precisely like those we have here. The officers here did not testify that in their experience and training the possession of one joint—which the officers recognized cle arly contained less than ten grams of marijuana 8 —supported an inference that Mr. Pacheco also posse ssed roughly nine and a half more grams of that substance on his person. N or did the officers’ testimony at the hearing on the suppression motion offer the court a ny facts that might have supported an inference that, at the moment they searched Mr. Pac heco, the officers had probable cause to arrest him. In sum, the record before us simply does not suppor t the conclusion that the officers had probable cause to arrest Mr. Pacheco based on t he belief that he was committing, had committed, or was about to commit a crime in their presence. The facts presented by the

does not make clear that the police even considered him to have been under the influence of that drug.

8 A recent analysis of federal arrest data shows th at a joint typically contains .32 grams of marijuana. See Niraj Chokshi, How Much Weed is in a Joint? Pot Experts have a Ne w Estimate , N.Y. Times (July 14, 2016), https://www.nytimes.c om/2016/07/15/science/howmuch-weed-is-in-a-joint-pot-experts-have-a-new-esti mate.html [https://perma.cc/HPQ2- 6PW6].19

State and credited by the hearing judge were suffic ient to establish probable cause to search the vehicle based on the presence of contraband. H owever, little else was presented that addressed why this minimal amount of marijuana, whi ch is not a misdemeanor, but rather a civil offense, gave rise to a fair probability th at Mr. Pacheco possessed a criminal amount of marijuana on his person. In a different case, a dditional facts or testimony beyond what we have here may well have compelled a different re sult. But because the State bears the burden of proving that a warrantless search is neve rtheless legal, we cannot say that burden was met in the present case.
IV. Conclusion The same facts and circumstances that justify a sea rch of an automobile do not necessarily justify an arrest and search incident ther eto. This is based on the heightened expectation of privacy one enjoys in his or her perso n as compared to the diminished expectation of privacy one has in an automobile. The ar rest and search of Mr. Pacheco was unreasonable because nothing in the record suggests that possession of a joint and the odor of burnt marijuana gave the police probable cause t o believe he was in possession of a criminal amount of that substance.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO REVERSE THE JUDGMENT OFTHE CIRCUIT COURT FOR MONTGOMERY COUNTY AND REMANDTO THAT COURT WITH INSTRUCTIONS TO GRANT THE MOTION20 TO SUPPRESS. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY MONTGOMERY COUNTY.**Circuit Court for Montgomery County**

**Case No. 130184 Argued: October 9, 2018**  **IN THE COURT OF APPEALS OF MARYLAND** 
**No. 17 September Term, 2018** 

**MICHAEL PACHECO**

**v. STATE OF MARYLAND** 

**Barbera, C.J.,** ***Greene**

***Adkins McDonald**  **Watts Hotten**  **Getty,**
**JJ.**

**Concurring Opinion by McDonald, J., which Watts, J., joins.** 

**Filed: August 12, 2019*****Greene and Adkins, JJ., now retired, partici pated in the hearing and conference of this case**  **while active members of this Court; after being recalled pursuant to the MD. Constitution, Arti**  **cle IV, Section 3A, they also participated in the decision and adoption of this opinion.** **The Majority Opinion is reasonable and thoughtful. However, it is worth noting its** 

**limited nature. The essential and undisputed circumstances of the p**  **olice encounter with Mr. Pacheco are as follows. Mr. Pacheco was sitting al**  **one in the driver’s seat of a vehicle in a suburban parking lot. Two police officers patrolli**  **ng the area approached the vehicle, de tected the odor of “fresh burnt marijuana” emanatin**  **g from within, and observed a mariju ana joint on the center console near Mr. Pacheco.**  **They asked Mr. Pacheco to get out of the vehicle. After he did so, they arrested him an**  **d found cocaine in his pocket. As the Majority opinion notes, under current State**  **law, the odor of marijuana may simply be evidence of a civil infraction involving**  **less than 10 grams of marijuana and possession of contraband – or it may be evidence of** **a crime. In particular, it may be evi dence of: possession of 10 grams or more of mariju**  **ana, possession of the drug with the intent to distribute, or the operation of a vehicle**  **under the influence of a controlled dan gerous substance.**  **1** See Robinson v. State, **451 Md. 94, 133-34 (2017). 2** 

**1** See **Maryland Code, Transportation Article, §21-902(c) ( defining offenses that**  **may be committed by a person who “drive[s] or attem pt[s] to drive any vehicle while so**  **far impaired by any drug ... that the person cannot d rive a vehicle safely”), §21-902(d)**  **(defining offenses that may be committed by a perso n who “drive[s] or attempt[s] to drive**  **any vehicle while the person is impaired by any con trolled dangerous substance ... if the**  **person is not entitled to use the controlled danger ous substance under the laws of this**  **State”).**

**2 In**  Robinson **, the Court unanimously held that law enforcement o fficers had prob**  **able cause to search a vehicle based on a smell of marijuana emanating from the vehicle.** **2**

**The latter offense is a matter of growing concern. It has been reported that, between**  **2017 and 2018, the number of vehicle crashes in Mar yland linked to marijuana-impaired**  **driving rose by nearly 40 percent. 3**  **A conscientious law enforcement officer who comes upon a vehicle occupied by one individual who is se**  **ated in the driver’s seat with a mariju ana joint close at hand and the odor of freshly bur**  **nt marijuana in the air will be duty-bound to investigate whether the individual is committing**  **that offense. In many situations in volving those circumstances, the officer will have**  **probable cause – which (this Court has agreed) “is not a high bar”**  **4 – to arrest the individual for that offense. As t**  **his Court ex plained in**  Robinson **, the marijuana decriminalization law was not inten ded to alter existing**  **law relating to search and seizure. 451 Md. at 125 -28;**  see also **Maryland Code, Health General Article, §13-3314(a)(2) (medical marijuana**  **law does “not prevent the imposition of any civil, criminal, or other penalties for ...**  **[o]perating, navigating, or being in actual physical control of any motor vehicle, aircraft, or** **boat while under the influence of mari juana.”).**  **As in cases involving alcohol-impaired driving, the fact that the vehicle does not**  **happen to be moving is not determinative. “Driv[in g]” includes being “in actual physical**  **control of a vehicle.” Maryland Code, Transportati on Article, §11-114. This Court has** 

**3** See **McKenna Oxenden,** Most Americans don’t think it’s a problem to drive high. Here’s why it is **. Baltimore Sun (June 26, 2019), https://perma.cc/FP3W-L742**  **; Neal Au genstein,**  Marijuana-impaired driving spikes in Maryland, poli ce say, **WTOP (February 19, 2019),**  **https://perma.cc/EXR8-N5QX**

**.**

**4** State v. Johnson **, 458 Md. 519, 535 (2018) (quoting** District of Columbia v. Wesby **, 138 S. Ct. 577, 586 (2018)).** **3**

**listed factors for a trial court to consider in det ermining whether an individual is in actual**  **physical control of the vehicle and explained “that any definition of ‘actual physical con**  **trol,’ no matter how carefully considered, cannot a spire to cover every one of the many**  **factual variations that one may envision.”** Atkinson v. State **, 331 Md. 199, 216 (1993) 5**  **;** see also Dukes v. State **, 178 Md. App. 38, 46 (2008) (holding that driver f ound asleep in**  **driver’s seat was in “actual physical control” as t hat determination turns on “whether it is**  **reasonable to assume that the person will, while un der the influence, jeopardize the public**  **by exercising some measure of control over the vehi cle”).**  **In this case, Mr. Pacheco was alone and awake in th e driver’s seat of the vehicle,**  **with apparent control over it. There were no passe ngers who conceivably could have been**  **responsible for the joint or the fresh odor of mari juana.**  **6 However, as the Majority Opinion** 

**5 The factors are:**  **1) whether or not the vehicle’s engine is running, or**  **the ignition on; 2)**  **where and in what position the person is found in t he vehicle;**  **3) whether the person is awake or asleep;**  **4) where the vehicle’s ignition key is located;**  **5) whether the vehicle’s headlights are on;**  **6) whether the vehicle is located in the roadway or is**  **legally parked.** Atkinson **, 331 Md. at 216.**

**6 This is in contrast to**  Norman v. State **, 452 Md. 373 (2017), in which the Court held that a police frisk of one of several passenge**  **rs of a vehicle violated the Fourth Amend ment because an odor of marijuana in the car by its**  **elf did not provide the officer with reasonable suspicion that the particular passenger**  **was armed and dangerous. The individ ual’s status as a**  passenger **was central to the Court’s reasoning in** Norman **: “a vehicle’s passenger ‘is generally not perceived to have the k**  **ind of control over the contents of the vehicle as does a driver’; additionally, under Mary**  **land law, there is a ‘distinction between drivers and owners and passengers of vehicles.’” 4**  **52 Md. at 399-400 (quoting**  State v

**.** Wallace **, 372 Md. 137, 158-159 (2002)). 4** 

**notes in a footnote, the record does not indicate w hether the officers believed that Mr.**  **Pacheco was impaired and the State did not argue th at there was probable cause to arrest**  **him for impaired driving. Majority slip op. at 17 n.6. And neither officer testified that Mr.**  **Pacheco was arrested for an impaired driving offens e, although that in itself is not dispos**  **itive.** See, e.g., Devenpeck v. Alford **, 543 U.S. 146 (2004). Under the particular circum**

  ** stances of this case the Majority opinion has reach** **ed the right conclusion. But it should not be read to preclude a conclusion that an office**  **r has probable cause for arrest when the officer comes upon an individual alone and awake in**  **the driver’s seat of a vehicle with a marijuana joint at hand and the pungent odor of mar**  **ijuana in the air. Judge Watts has advised that she joins this opinion** 

**.**