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Law enforcement seeks to differentiate legal cannabis from contraband

(The Daily Record file photo)

(The Daily Record file photo)

Rapidly changing law on marijuana use and possession in Maryland, from the decriminalization of small amounts to the legalization of medical use, has left some law enforcement officers wondering what the presence or odor of marijuana means for them when they are conducting stops and searches.

In the two years since medical cannabis was legalized and made available, Maryland’s appellate courts have not addressed its impact on probable cause for police.

The prospect of deciding on the spot whether an individual in possession of marijuana is a law-abiding citizen or a potential criminal is troubling, according to Chief John Fitzgerald of the Village of Chevy Chase Police Department.

“Going back to the very recent past when marijuana was illegal and a crime in any quantity, it was very easy for police officers to make a decision,” said Fitzgerald, first vice president of the Maryland Chiefs of Police Association. “It was really, really easy when everything about marijuana was illegal.”

Baltimore County State’s Attorney Scott Shellenberger said Maryland courts are giving more guidance to law enforcement but, practically, it has become more of a challenge for officers to make a decision in the field.

“These are distinctions that are very hard to teach and understand when you’re on the side of the road at 2 o’clock in the morning,” he said. “There is no question that departments have tried to enhance officers’ training, knowledge and experience in this area and there’s no question that it’s not as simple as it was just a few years ago.”

For users, changes in the law regarding marijuana can also cause difficulties and confusion.

Keith Stroup, legal counsel for the National Organization for the Reform of Marijuana Laws (NORML), said it’s a “tricky time” for marijuana users, who can smoke marijuana legally in Washington but then be then stopped and searched in Maryland.

“All of us who smoke marijuana are interested in how (the case law) comes out, and I should say how quickly it comes about, because we’re all sort of vulnerable to those misapplications of the constitutional law,” he said.

Fitzgerald said that police don’t want to seize medical cannabis from a patient who needs it, but that they need more guidance from the Maryland Medical Cannabis Commission (MMCC) to make it easier to “sort” cases.

“There is a true risk that people that aren’t doing something wrong can be arrested and have their marijuana seized and for people to be going down the road and not be arrested because we can’t tell,” he said.

Fitzgerald suggested that individuals be required to carry their MMCC identification card and to display it to law enforcement when asked. He also said patients should have to keep their medical cannabis in the packaging in which it was sold.

A regulation that took effect in April requires patients to obtain an identification card, according to William C. Tilburg, acting executive director of the commission. Only 25% of patients paid to get their ID card before the requirement took effect, he said.

But Tilburg said the commission does not have the authority to require individuals to turn over something — including the MMCC card — to law enforcement, though it has supported bills in the General Assembly to include that requirement.

Probable cause

The Court of Appeals has reaffirmed as recently as August that the odor of marijuana remains evidence of a crime despite Maryland’s  decriminalization of small amounts.

The court ruled in Pacheco v. State that the smell of burnt marijuana coming from a car allows police to search the car but not to arrest and search the occupant without probable cause to believe he or she possessed 10 grams or more, a criminal amount.

The court will hear arguments early next year in a case about whether police can arrest people for possession of marijuana and search them based on an officer’s smelling the drug on them. The Court of Special Appeals held in Lewis v. State that the odor of marijuana is evidence of a crime and that officers have probable cause to arrest someone if they can localize the odor to a specific person.

Shellenberger said the courts so far have preserved the “automobile exception” to the Fourth Amendment, which allows law enforcement officers to search a vehicle if they have probable cause to believe it contains evidence of a crime. Searching a person, however, requires more than just the odor of marijuana in the car.

“That’s where the distinction at the moment is being drawn,” Shellenberger said. “If the odor of marijuana is in the car and then you find something in the car that does not constitute a crime, (for example) under 10 grams, then the search has to stop there.”

Shellenberger said the reasoning would be similar if a search of a vehicle turned up only medical marijuana; the inquiry would stop.

NORML’s Stroup said the automobile exception “is on its last gasp,” though it is still alive in states including Maryland.

“For the moment, apparently for those states that wish to have an excuse to extend for a few more years the auto exception to the Bill of Rights, they have the excuse to do that,” said Stroup, a Washington attorney.

Baltimore criminal defense attorney Steven Silverman said that, from his reading of the case law, as long as marijuana remains a Schedule I drug, an officer who detects an odor of marijuana will likely have a right to search a vehicle and possibly an individual.

“The whole concept is when a police officer is making a good-faith probable cause or reasonable articulable suspicion determination, the courts are going to support that,” said Silverman, partner at Silverman Thompson Slutkin & White LLC in Baltimore. “It’s when the officer is acting in bad faith is when the court will sanction with the exclusionary rule and not allow that evidence to come in.”

In other states, appellate courts have grappled with what the legalization of medical cannabis means for probable cause and suspicion.

Several courts have determined that because marijuana remains illegal for the majority of the population, the probability remains high that the odor of marijuana is evidence of a crime. But a Pennsylvania judge threw out a case in August for a defendant who produced a medical cannabis card at a traffic stop but was still subject to a search. The case is on appeal.

It is unclear if the legalization of medical cannabis will affect the Court of Appeals’ analysis of probable cause, but one of the Court of Special Appeals judges who decided the Lewis case expressed concerns about the injustices likely to result from the decision.

Judge Kevin F. Arthur said he joined in the decision to find Lewis’ arrest valid only because he was constrained by precedent of the Court of Appeals. He pointed out that the result was “difficult to square” with the legalization of medical cannabis.

“If a patient has the odor of marijuana on her person or breath because she recently smoked some marijuana that was grown by a state-licensed grower and purchased at a state-licensed dispensary at the recommendation of a state-regulated healthcare provider, this opinion establishes that the police have probable cause to arrest and search her,” Arthur wrote. “It is small solace that, according to the State, the officers are supposed to allow the patient to go free, as long as she remembered to carry her identification card from the Maryland Medical Cannabis Commission.”

Retired Court of Appeals Judge Joseph F. Murphy Jr. said the Lewis case provides “interesting, unique” facts for the high court to address some of the concerns raised by the Court of Special Appeals, including the fact that medical cannabis is now legal.

Murphy, who sat on the Court of Appeals from 2007 until 2011 and is now a partner at Silverman Thompson, said the concerns Arthur raised “will need to be addressed.”

“I’ve got to think that the court will insist upon a very specific, fact-intensive, case-by-case analysis rather than a sweeping rule,” he said.

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