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Odor-based pot arrests are unconstitutional: Md. high court

“(P)olice officers must have probable cause to believe a person possesses a criminal amount of marijuana in order to arrest that person and conduct a search incident thereto,” Chief Judge Mary Ellen Barbera wrote for the high court. (iStock photo)

“(P)olice officers must have probable cause to believe a person possesses a criminal amount of marijuana in order to arrest that person and conduct a search incident thereto,” Chief Judge Mary Ellen Barbera wrote for the high court. (iStock photo)

Police officers lack probable cause to arrest and search someone for marijuana possession simply for smelling of the drug, because possession of less than 10 grams of marijuana is not a crime in Maryland, the state’s top court unanimously ruled Monday.

In its 7-0 decision, the Court of Appeals said enabling police to arrest and search someone because they smelled of marijuana would violate the Constitution’s Fourth Amendment prohibition on unreasonable seizures and searches since odor alone does not indicate that a person is possessing at least 10 grams of the drug.

Under Maryland law, possession of less than 10 grams of marijuana is a civil offense punishable by a $100 fine.

“(P)olice officers must have probable cause to believe a person possesses a criminal amount of marijuana in order to arrest that person and conduct a search incident thereto,” Chief Judge Mary Ellen Barbera wrote for the high court.

“Although marijuana in any amount is considered contraband, the search incident to arrest exception (to the Fourth Amendment) can be invoked only upon the occurrence of a felony or attempt of a felony or misdemeanor; a civil infraction is neither a felony nor a misdemeanor,” Barbera added. “The odor of marijuana alone is not indicative of the quantity (if any) of marijuana in somebody’s possession. …”

In its decision, the Court of Appeals overturned lower court rulings 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’s decision followed its three earlier rulings that the smell of marijuana emanating from a car could provide probable cause for the police 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 distinguished those cases allowing car searches from its current decision barring arrest based on odor, noting that one has a “diminished expectation of privacy” in an automobile.

“In juxtaposition, there is a heightened expectation of privacy enjoyed in one’s person,” Barbera wrote. “Arresting and searching a person, without a warrant and based exclusively on the odor of marijuana on that person’s body or breath, is unreasonable and does violence to the fundamental privacy expectation in one’s body; the same concerns do not attend the search of a vehicle.”

The high court’s decision is a victory for 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 in 2018, prompting Lewis’ successful appeal to the high court.

Lewis’ attorney, Todd M. Brooks, stated Tuesday that he and his client are “pleased” with the result they have been seeking since 2017.

“The Court of Appeals has confirmed that, after the partial decriminalization in 2014, an officer cannot arrest and then conduct a full-blown search of a person merely because that person smells like marijuana,” Brooks, of Whiteford Taylor Preston LLP in Baltimore, stated in an email message. “The Lewis opinion helps to reinforce and place in context the application of the first three decisions, and how the constitutional safeguards of the Fourth Amendment apply to searches of a vehicle as opposed to searches of a person.”

The Maryland attorney general’s office did not immediately respond to a request for comment on the decision and potential plans to seek review by the U.S. Supreme Court.

The Court of Appeals rendered its decision in Rasherd Lewis v. State of Maryland, No. 44, September Term 2019.


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