Argued: October 9, 2018
Circuit Court for Montgomery County Case No. 130184 .
Barbera, C.J., Greene [*] Adkins McDonald Watts Hotten Getty,
JJ.
OPINION
BARBERA, C. J.
"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 near the 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 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.
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 country have 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
faced with 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, 395 U.S. 752 (1969).
The
Automobile Exception
Carroll
and its progeny authorize the warrantless search of 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 rigorous
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 and 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). "Expanding the scope of the automobile
exception [beyond the vehicle] would both undervalue the core
Fourth Amendment protection afforded to the home and its
curtilage and '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 before 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
probable 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 search warrant contemporaneously
to search persons lawfully arrested 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 ...