Last week, Maryland’s Court of Appeals issued an important ruling for cannabis advocates and fourth amendment warriors: A police officer in Maryland can no longer use the smell of cannabis as a reason to search and arrest someone. “The mere odor of marijuana emanating from a person, without more, does not provide the police with probable cause to support an arrest and a full-scale search of the arrestee incident thereto,” the unanimous ruling, written by Chief Judge Mary Ellen Barbera reads.
Much of this is connected to the 2014 decriminalization of cannabis possession up to 10 grams in Maryland. In 2019, the Maryland Court of Appeals ruled that a police officer couldn’t arrest and search someone because they observed the person in possession of 10 grams or less of cannabis because that amount was decriminalized. Last week’s ruling expands that and says that because cannabis possession of up to 10 grams has been decriminalized in Maryland—making it neither a felony or a misdemeanor—and a police officer needs probable cause to believe someone has more cannabis on them, and smell alone cannot be used as probable cause.
The summary of the opinion reads in full: “The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. For a warrantless arrest to be reasonable, there must be probable cause to believe that the arrestee committed a felony or was committing a felony or misdemeanor in the presence of a law enforcement officer. Possession of less than ten grams of marijuana is neither a felony nor a misdemeanor, but rather a civil offense. In order to lawfully arrest someone for possession of marijuana, the law enforcement officer must have probable cause to believe the arrestee possesses a criminal amount of marijuana, i.e., ten grams or more. A law enforcement officer cannot determine by the odor of marijuana alone the quantity of marijuana, if any, someone possesses. Therefore, the mere odor of marijuana does not create probable cause to believe an arrestee possesses a criminal amount of that substance.”
Lewis v. State of Maryland was argued on January 9 of this year with an opinion filed on July 27 and dates back to a 2017 arrest in Baltimore City. On February 1, 2017, Baltimore Police Officer David Burch searched Rasherd Lewis inside of a convenience store based on Burch claimed, a tip that Lewis was carrying a gun. Lewis was spotted on one of Baltimore City’s many Citiwatch surveillance cameras and so Burch and other officers entered the convenience store. They said when they approached Lewis they smelled cannabis and proceeded to search him. They found a handgun on Lewis. That search, predicated on them identifying Lewis and a tip that said Lewis had a gun was deemed insufficient. In other words, Burch used the smell of cannabis to contrive what was otherwise, an illegal search.
This ruling however, does not overturn Robinson v. State, which means that officers can still search one’s vehicle based on cannabis smell. Read the opinion in full here.
Illustration by Kathy Wyche.