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High court to consider whether pot odor gives cause to arrest

Maryland’s top court will consider whether police 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 the state.

The Court of Appeals agreed this week to review a lower court ruling that police may constitutionally presume that the marijuana odor indicates the probable presence of at least 10 grams of the drug on the person.

The high court appeal was brought by Rasherd Lewis, who was arrested in February 2017 by a Baltimore police officer who testified that he smelled marijuana on Lewis. Officer David Burch Jr.’s search of Lewis incident to the controversial arrest revealed a handgun in the bag Lewis was carrying in the Bag Mart store in the 400 block of West Saratoga Street.

Lewis was convicted in Baltimore City Circuit Court of wearing, carrying or transporting a handgun. He was sentenced to three years in prison, with all but 90 days suspended, and to three years of supervised probation.

The Court of Special Appeals upheld the search and conviction in a reported 2-1 decision last year.

In his successful request for high court review, Lewis argued through counsel that enabling police to arrest someone because they smelled of marijuana – when possession of less than 10 grams is a civil offense punishable by a $100 fine — violates the Constitution’s Fourth Amendment prohibition on unreasonable seizures.

Such broad police discretion would mean “almost anyone in an area where the odor of marijuana is routinely present (like Baltimore, the state’s largest city) is subject to an arrest if that person’s clothing or outerwear absorbs any of the odor second hand,” stated Todd M. Brooks and Ioana Kastellorizios, Lewis’ appellate counsel, in their request.

“(I)f an officer now smells marijuana on a person – regardless of how that odor arrived on the person – the police may skip an investigatory stop and arrest the individual to confirm or dispel suspicion of a crime,” added the attorneys, who are with Whiteford Taylor & Preston LLP in Baltimore.

But Assistant Maryland Attorney General Daniel J. Jawor, in the state’s failed opposition to the review request, wrote that the marijuana scent clearly emanating from Lewis gave police probable cause to arrest him and conduct a search incident to the arrest.

In addition, the concern that a person smelling of secondhand marijuana smoke might be arrested does not offend the Constitution, as it “has always been true” that the aroma gives police valid cause to act, Jawor wrote.

“The truth of the matter is, a sober party injudiciously lingering amongst those smoking up a few joints necessarily exposes himself to second-hand smoke – and, with it, the reasonable suspicion of possession that an officer may rely on later to effectuate a stop and possible arrest on the street,” Jawor added. “But that is nothing new wrought by … the decision below.”

The high court’s consideration of whether odor on a person gives police probable cause to arrest the individual follows its decision last month in Michael Pacheco v. State of Maryland. In Pacheco, the court held that the smell of burnt marijuana emanating from a car could provide probable cause to search the vehicle but not to arrest the occupant unless the officers had probable cause to suspect he or she possessed at least 10 grams of the drug or was driving under its influence.

The Court of Appeals will hear arguments in Lewis’ appeal in January, according to the court clerk’s office.

The high court is expected to render its decision by Aug. 31, 2020, in the case, Rasherd Lewis v. State of Maryland, No. 44, September Term 2019.

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