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Marijuana smell provides probable cause to arrest, Md. court says


‘(T)he odor of marijuana, if localized to a particular person, provides probable cause to arrest that person for the crime of possession of marijuana,’ Court of Special Appeals Judge Kathryn Grill Graeff wrote.

Police officers have probable cause to arrest someone for marijuana possession if they smell the drug clearly on the person — even though possession of less than 10 grams of marijuana is not a crime in Maryland, the state’s second-highest court very reluctantly ruled Thursday.

In its reported 2-1 decision, the Court of Special Appeals said police may constitutionally presume that the marijuana odor indicates the probable presence of at least 10 grams of the drug on the person.

“(A) police officer who has reason to believe that an individual is in possession of marijuana has probable cause to effectuate an arrest, even if the officer is unable to identify whether the amount possessed is more than 9.99 grams,” Judge Kathryn Grill Graeff wrote for the majority.

“In so concluding, we do not suggest that a general odor of marijuana in a certain location provides probable cause to arrest a person in the area,” Graeff added. “(T)he odor of marijuana, if localized to a particular person, provides probable cause to arrest that person for the crime of possession of marijuana.”

The slim majority, however, was achieved with a concurring opinion by Judge Kevin F. Arthur, who called the result “unjust” but required by the Court of Appeals’ ruling last year that police have probable cause to search a vehicle based on the smell of marijuana. The probable cause standard to search is the same as that to arrest, enabling people to be arrested if they are ultimately found to possess fewer than 10 grams, Arthur wrote in an opinion that sounded like a dissent.

“It is undeniable that the decision in this case will result in injustice,” Arthur wrote. “If a person has the odor of burnt marijuana on his breath, it is likely that he recently had temporary possession of at least a small amount of the substance, but it is nowhere near as likely that he current possesses any amount of it, much less an amount that would subject him to criminal penalties.

“Yet under the decision in this case,” he added, “he is subject to the indignity of an arrest and a search incident to an arrest. Worse yet, if the search turns up nothing, he has no civil remedy, because the officers will not have violated his civil rights – the mere odor of marijuana on his person or breath gave them the right to search and arrest him.”

The odor might even have resulted from secondhand smoke, as the smell of another’s marijuana use can cling to one’s clothing, Arthur wrote.

“If I were writing on a blank slate, I would reverse the conviction,” Arthur wrote. But the Court of Appeals, in Robinson v. Maryland, “set out an analytical framework that leaves me no choice but to affirm the conviction in this case,” he added.

The Maryland attorney general’s office praised the court’s decision in a statement Friday.

“While the General Assembly eliminated criminal penalties for small amounts of marijuana, it did not legalize marijuana or declare possession of it free of suspicion,” the office stated. “Quite the contrary, the assembly expressly declared its intent not to withdraw or diminish law enforcement’s longstanding, historical ability to investigate and seize marijuana. The attorney general is pleased that the Court of Special Appeals did not strike down the assembly’s carefully constructed policy choices.”

Unintended consequences?

In the case, Baltimore police officer David Burch Jr. said he smelled marijuana on Rasherd Lewis in the Bag Mart store in the 400 block of West Saratoga Street, arrested him and then conducted a search incident to the arrest. That search revealed a handgun in the bag Lewis was carrying, according to court papers.

Lewis was found guilty based on an agreed statement of facts to the charge of wearing, carrying or transporting a handgun. He was sentenced to three years in prison, with all but 90 days suspended, and three years of supervised probation.

On appeal, Lewis challenged the constitutionality of his arrest based on the smell of marijuana, noting that possession of less than 10 grams of the drug is a civil – not criminal — offense punishable by a $100 fine.

That argument, however, drew support from only one judge on the Court of Special Appeals panel.

In dissent, Judge Douglas R.M. Nazarian said the court is not bound by the Robinson decision because the probable cause required for an arrest is greater than that needed to search a vehicle under the federal Constitution’s Fourth Amendment prohibition on unreasonable searches and seizures.

“And it’s easy to foresee the ways, and how easily, today’s decision could lead to unintended consequences,” Nazarian wrote.

“There is no way to challenge or verify what the officer smelled, no way to test whether a person actually smelled of marijuana, no way to memorialize the smell that the officer smelled, and no way to control for the fully legal and otherwise non-criminal or second-hand ways someone could come to smell like marijuana,” Nazarian added, noting the many substances with similar aromas, including clove cigarettes and incense. “So long as the officer is acting in good faith (or can’t be proven to be acting in bad faith), the arrest will survive scrutiny and the fruits of the search will be admissible.”

Lewis’ appellate attorney, Todd M. Brooks, declined to comment on the court’s decision or any plans to appeal. Brooks is with Whiteford Taylor Preston LLP in Baltimore.

The Court of Special Appeals rendered its decision in Rasherd Lewis v. State of Maryland, No. 1115 September Term 2017.

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One comment


    One of the worst recent opinions written. Not well reasoned. Dessert is correct. Hopefully overturned quickly. Hopefully will prod legislators to join more enlightened progressive legislators in some other states.