Pacheco v. State

Michael Pacheco v. State of Maryland, No. 17, September Term, 2018 CRIMINAL PROCEDURE — ODOR OF MARIJUANA — PROBABLE CAUSE — SEARCH INCIDENT TO LAWFUL ARREST EXCEPTION — DECRIMINALI- ZATION 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 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 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. *Greene and Adkins, JJ., now retired, participated in the hearing and conference of this case while active members 2019-09-13 of this Court; after being recalled pursuant to the MD. 13:33-04:00 Constitution, Article IV, Section 3A, they also partici- Suzanne C. Johnson, Clerk pated 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 unrea- sonable 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 mari- juana 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 mari- juana. 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 expe- rience, “people take their laundry in and they stay in the [l]aundromat,” because the laun- dromats 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 recol- lection 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 mariju- ana 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 mari- juana and charged him with possession of cocaine with intent to distribute it. 1 Although the officers described the vehicle’s position as suspicious and the hearing judge credited that testimony, the officers’ body camera footage reveals that Mr. Pacheco’s ve- hicle was parked in close proximity to other vehicles. 2 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 prob- able cause to believe that he possessed ten grams or more of marijuana. The State coun- tered 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. Of- ficer 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 deter- mined that Mr. Pacheco “was the driver and sole occupant of a vehicle that smelled of 3 freshly burnt marijuana, and police observed a marijuana joint in the center console.” Re- lying predominately on pre-decriminalization cases, the Court of Special Appeals con- cluded 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 4 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 Amend- ment jurisprudence. The Fourth Amendment, the Reasonableness Clause, and Exceptions to the Warrant Re- quirement It is well settled that the Fourth Amendment to the United States Constitution pro- hibits “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 in- terest 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)). “In some circumstances, 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). 5 faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the [Supreme] Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.’” King, 569 U.S. at 447 (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 [auto- mobile 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 automo- bile exception [beyond the vehicle] would both undervalue the core Fourth Amendment 6 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 per- son 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 effect an escape from custody, is not to be doubted.”) (quoting Agnello v. United States, 269 U.S. 20, 30 (1925)). The Supreme Court has not wavered from the original justification for a search incident to arrest: When an arrest is made, it is reasonable for the arresting 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 itself 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 prevent its concealment or de- struction. . . .

There is ample justification, therefore, for a search of the ar- restee’s person and the area “within his immediate control”—construing that phrase to mean the area from within which he might gain possession of a 7 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 person, that is, an arrest supported by probable cause that the arrestee has committed or is 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 arrest and the search is conducted “inci- dent” to the arrest).

Because the search is premised 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 exceptions 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 true 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 the 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 suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being 8 lawful, a search incident to the arrest requires no additional justification.’”).

The probable cause standard has been described generally as a “‘practical, nontech- nical conception’ that deals with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” Pringle, 540 U.S. at 370 (quoting Illinois v. Gates, 462 U.S. 213, 231 (1983)). “Probable cause, moreover, is ‘a fluid concept,’ ‘incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.’” McCracken v. State, 429 Md. 507, 519-20 (2012) (quoting Pringle, 540 U.S. at 370-71 ). For that rea- son, “[p]robable cause does not depend on a preponderance of the evidence, but instead depends on a ‘fair probability’ on which a reasonably prudent person would act.” Robin- son, 451 Md. at 109 (quoting Florida v. Harris, 568 U.S. 237, 244 (2013)). In describing probable cause, the Supreme Court has “rejected rigid rules, bright-line tests, and mecha- nistic inquiries in favor of a more flexible, all-things-considered approach.” Id. at 110 (quoting Harris, 568 U.S. at 244 ). The authorization for and permitted scope of the search at issue is tied directly to the justification(s) for it.

In that sense, the probable cause determinations for the automo- bile exception and the search incident to lawful arrest exception are not “in all respects identical.” 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.1(b), at 7 (5th ed. 2012) [hereinafter “LaFave”]. Although the probable cause determi- nation for each of these exceptions requires the same “quantum of evidence,” “[e]ach re- quires a showing of probabilities as to somewhat different facts and circumstances—a point seldom made explicit in the appellate cases.” Id. “This distinction is a critical one, . . . . 9 [and] there may be probable cause to search without probable cause to arrest, and vice- versa.” 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 Washington 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 the 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 cause to believe the vehicle contains con- traband 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 and searched incident thereto the focus must be on the likelihood of the “guilt of the arrestee,” LaFave at 9, and asks whether “there is probable cause to believe that the individual has committed either a felony or a misde- meanor 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 found in a particular place.

Whereas in the arrest context, the question is whether the totality of the circumstances indicate to a rea- sonable person that a ‘suspect has committed, is committing, or is about to commit’ a crime.”) (citations omitted). The distinction between the two exceptions is at least in part due to the diminished expectation of privacy that justifies the automobile exception, Carney, 471 U.S. at 390-92 , 10 as compared to the “unique, significantly heightened” 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 carrying evidence does not justify a warrantless search of the person any more than probable cause to believe a home contains evidence justifies a warrantless search of a home. Only places or things enjoying a lesser expectation of privacy, such as automobiles, are vulnerable to probable-cause-based warrantless searches 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 level of intrusion upon a person that is a “search incident to an arrest,” in comparing that intrusion 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 upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prose- cution. It is intended to vindicate society’s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows.

Id. at 26 . Probable Cause in the Post-Decriminalization Era 1. The General Assembly’s decriminalization of less than ten grams of marijuana In 2014, citing concerns over the disproportionate number of African-Americans arrested for marijuana possession compared to whites, despite comparable usage rates, the General Assembly decriminalized the possession of less 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://mgahouse.mary- land.gov/mga/play/1f0ace2b889b4079bcfb85b6ba52d452/?catalog/03e481c7-8a42-4438- a7da-93ff74bdaa4c&playfrom=2926752