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Md. high court will consider validity of searches based on marijuana smell

The Court of Appeals ‘has yet to weigh in on the issue of whether the detection by an officer of the smell of marijuana coming from a car continues to provide police with probable cause to search the car in light of the recent amendments’ to Maryland Criminal Law, lawyers for three men convicted of possession successfully argued in their petition to the state’s top court. (Thinkstock)

The Court of Appeals ‘has yet to weigh in on the issue of whether the detection by an officer of the smell of marijuana coming from a car continues to provide police with probable cause to search the car in light of the recent amendments’ to Maryland Criminal Law, lawyers for three men convicted of possession successfully argued in their petition to the state’s top court. (Thinkstock)

ANNAPOLIS – Maryland’s top court will consider whether police officers who smell marijuana emanating from a car have probable cause to search the vehicle without a warrant even though possession of less than 10 grams of the drug has been a civil offense – not a crime – for the past two years.

The Court of Appeals this month agreed to review the cases of three men convicted of possessing illegal drugs in their cars after police found the contraband upon conducting odor-inspired searches of the vehicles. Each man has challenged the constitutionality of the searches, saying the suspected commission of a civil offense does not give a police officer probable cause under the Fourth Amendment to look for evidence of criminality in the vehicle.

In all three cases, the trial judge ruled against the defendant, as did the intermediate Court of Special Appeals in upholding the convictions.

The men note their vehicles were searched after Oct. 1, 2014, when Maryland law stopped treating possession of less than 10 grams of marijuana as a misdemeanor punishable by up to 90 days in jail but as a civil offense punishable by a fine of $100. They concede the police would have had probable cause to search without a warrant had Maryland still regarded such limited marijuana possession as a crime.

The appeals present “an issue of first impression, as this court has yet to weigh in on the issue of whether the detection by an officer of the smell of marijuana coming from a car continues to provide police with probable cause to search the car in light of the recent amendments to Section 5-601” of the Maryland Criminal Law Article, which decriminalized possession of small amounts of the drug, Assistant Public Defender Allison P. Brasseaux stated in petitions for two of the men, Dexter Williams and Jermaul Robinson.

Assistant Public Defender Ethan Frenchman also urged the Court of Appeals to “weigh in” on the probable-cause issue as he pressed the appeal of Vernon Spriggs III.

‘Fair probability’

But an attorney for the state urged the high court to let stand the Court of Special Appeals’ decision that marijuana remains an illicit drug that gives police probable cause to search a vehicle if they detect the smell.

“Moreover, even if the Court of Special Appeals were wrong in its assessment that marijuana in amounts less than 10 grams is still contraband, the odor of marijuana would still provide probable cause to believe that a vehicle contains evidence of a crime,” Assistant Maryland Attorney General Todd W. Hesel wrote.

“Probable cause does not require absolute proof or even a high probability that evidence of criminal activity will be found; it instead requires only ‘a fair probability,’” he added. “The odor of marijuana emanating from a vehicle provides a ‘fair probability’ that a criminal amount will be found inside, and thus continues to provide probable cause that a vehicle contains evidence of a crime.”

The Court of Appeals will likely hear the appeals in December, according to the clerk’s office.

The high court is expected to render its decisions by Aug. 31 in the three cases: Dexter Williams v. State of Maryland, No. 39 September 2016; Jermaul Rondell Robinson v. State of Maryland, No. 37 September Term 2016; and Vernon Harvey Spriggs III v. Maryland, No. 46 September Term 2016.

3 car searches

In Williams’ case, Baltimore detective Tristan Ferguson testified that he smelled marijuana emanating from Williams’ car at a stop sign at 10:30 p.m. on April 8, 2015. Ferguson asked Williams to get out of the car while officers searched the vehicle, where they found a backpack containing 170 grams of marijuana, according to court documents.

Williams pleaded guilty to marijuana possession while retaining his right to challenge the constitutionality of the search on appeal. Baltimore City Circuit Judge Edward R.K. Hargadon sentenced Williams to 20 days in jail.

In Robinson’s case, Baltimore police officer Steven Vinia testified that he smelled marijuana emanating from Robinson’s Nissan Stanza, which was parked near the 3100 block of Oakfield Avenue on Oct. 18, 2014.  Robinson, who had been sitting on the car, was watched by another officer while Vinia searched the vehicle and found 16 small bags of marijuana in a plastic bag in the armrest next to the driver’s seat, according to court documents.

Williams pleaded not guilty but agreed to a statement of facts that resulted in Baltimore City Circuit Judge Julie R. Rubin finding him guilty of marijuana possession. Rubin sentenced Williams to time served.

In Spriggs’ case, Cambridge police corporals Jeffrey Smith and Robert Ball smelled marijuana coming from his Honda Civic, which was parked alone in a lot of an abandoned building on Elm Street at about 5 p.m. on Oct. 12, 2014. Smith searched the car while Ball waited with Spriggs, who had been in the passenger seat, according to court documents.

Smith found a bag of marijuana, a bag of cocaine, a digital scale and several thousand dollars. A search of the trunk, which has also given off a marijuana smell, revealed several more bags of that drug, for a total of more than 1,130 grams, court documents stated.

Spriggs was convicted after a bench trial before Dorchester County Circuit Judge Brett W. Wilson of possession of cocaine and marijuana as well as possession with intent to distribute cocaine and marijuana. Spriggs was sentenced to 25 years in prison, with all but four years and a day suspended, and five years’ supervised probation.


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