Cause to arrest, search? High court weighs issue of pot odor.

ANNAPOLIS — Police have probable cause to arrest someone for marijuana possession and to search him or her if they clearly smell the drug on the person – even though possession of less than 10 grams of marijuana is not a crime in Maryland, an attorney for the state told Maryland’s top court Thursday.

Assistant Maryland Attorney General Daniel J. Jawor said that the state has not legalized the drug — it has made simple possession of under 10 grams a civil offense payable by a $100 fine — and that police may presume the marijuana odor indicates the probable presence of an unlawful amount of the drug on the person.

Officers may then search the person incident to the arrest without violating the Constitution’s Fourth Amendment prohibition on unreasonable searches and seizures, Jawor told the Court of Appeals. Jawor urged the high court to uphold the handgun-possession conviction of Rasherd Lewis, whose weapon police found on Lewis after his arrest when they smelled marijuana on him.

But Court of Appeals Judge Brynja M. Booth wondered aloud whether Jawor might be according police unconstitutional power. She asked him if police could arrest and search her if she was at a Baltimore Ravens game and smelled of marijuana simply because she was seated near fellow football fans who were smoking the drug.

When Jawor said yes, Booth incredulously blurted, “Really?”

Jawor responded that the smell provides police probable cause to arrest and search because “the scent of marijuana still portends a substantial chance” that the person is in possession of an unlawful amount.

Lewis’ appellate attorney, Todd M. Brooks, assailed what he called Jawor’s “dangerous rule that mere odor is sufficient” for police to have probable cause to arrest and search someone.

“Marijuana crimes are crimes of possession,” said Brooks, of Whiteford Taylor & Preston LLP in Baltimore. “Smelling like marijuana is not a crime.”

To illustrate the rule’s danger, Brooks said he could be subject to arrest and search when he frequents a convenience store near his St. Paul Street office, a trip that requires him to walk on a stretch of Light Street that reeks of marijuana.

“I have walked through marijuana (odors),” Brooks told the high court. “I smell like marijuana.”

Jawor said he, too, walks through areas of Baltimore that smell of marijuana and accepts that the odor when “localized to (a) person” by the police can give officers probable cause to arrest and search that individual based on “a reasonable belief that there is a substantial chance” that he or she possesses an unlawful amount of the drug.

Lewis 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 in June 2018, prompting Lewis’ appeal to the high court.

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

The Court of Appeals’ consideration of whether odor on a person gives police probable cause to arrest the individual follows the court’s decision last year 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.