[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Court for Montgomery County, Case No. 130184. Marielsa A.
by Eva Shell, Asst. Public Defender (Paul B. DeWolfe, Public
Defender of Maryland of Baltimore, MD), on brief, for
by Todd W. Hesel, Asst. Atty. Gen. (Brian E. Frosh, Atty.
Gen. of Maryland of Baltimore, MD), on brief, for Respondent.
before: Barbera, C.J.,[*] Greene,[*] Adkins, McDonald, Watts,
Hotten, Getty, JJ.
Md. 316] "The times they are a-changin."
— Bob Dylan, The Times They Are a-Changin
Md. 317] 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 Amendments 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
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.
reasons that follow, we answer that question in the negative.
and Procedural History
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 near the business itself." 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 Heffleys 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 [465
Md. 318] Trailblazer), Officer Groger went to the drivers
side while Officer Heffley headed to the passengers 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 drivers seat. Officer Heffley observed a marijuana
cigarette in the vehicles center console, which he testified
he knew immediately was less than ten grams. The officer
asked Mr. Pacheco to give him the "joint." Mr.
Immediately thereafter, the officers ordered Mr. Pacheco to
exit the vehicle and searched him. During the search, the
officers discovered cocaine in Mr. Pachecos "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.
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]. "
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 [465 Md. 319] be a civil offense "[i]f that
was all that was recovered in the joint."
circuit court denied the motion to suppress the cocaine. In
the courts 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 courts ruling on the motion to suppress.
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 of 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 probable cause to arrest [Mr.
Standard of Review
review of a circuit courts denial of a motion to suppress
evidence is "limited to the record developed at the
suppression hearing." Moats v. State, 455 Md.
682, 694, 168 A.3d 952 (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,
156 A.3d 940, cert. denied, __ U.S. __, 138 S.Ct.
174, 199 L.Ed.2d 42 (2017). We accept the trial courts
factual findings unless they are clearly erroneous, but we
review de novo the "courts 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, 141
A.3d 138 (2016) [465 Md. 320] (quoting State v.
Wallace, 372 Md. 137, 144, 812 A.2d 291 (2002)).