As soon as the possession of less than 10 grams of marijuana became a civil offense — not a crime — two years ago, this hypothetical was discussed among criminal defense practitioners: Do cops have probable cause to search a car during a traffic stop merely from smelling marijuana, which in many cases wouldn’t be a crime now because of the new law? Do cops have super-powered noses that can detect 10 grams or more for a probable cause to search? I can just picture David Caruso on “CSI:Miami” sniffing the air, whipping off his sunglasses and melodramatically saying: “Smells like a crime. And someone is going to have to do the time.”
We will soon have our answer, because the Court of Appeals has agreed to review the cases of three men convicted of possessing illegal drugs in their cars after police found the drugs after smelling something from the car.
The attorney general’s office says 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. To that I say, “Where is the data on that probability assertion?”
I think a large portion of the time that, when there is marijuana emanating from a car, it is because there are a few stupid kids who have a small amount of marijuana on them. Wouldn’t it make sense that drug dealers would actually take measures to conceal any smell from the police? It sure seems like the law change was the General Assembly’s attempt to decriminalize marijuana for the masses, not allowing police to search people’s cars and find ways to charge them with more crimes. Also, would these kinds of searches disproportionately influence certain demographics?
For the Court of Appeals to say that these kinds of searches are OK, would be unfair and, frankly unconstitutional for Marylanders.