Don’t confuse marijuana decriminalization, legalization, Md. court says

A Maryland appeals court has expressed exasperation with defense attorneys who it said confuse decriminalization with legalization when trying to suppress the introduction of evidence found in their clients’ automobiles by police officers who saw or smelled small amounts of marijuana before conducting their search.

The confusion is based on the “tendency … of defense counsel to overread, stubbornly  and massively,” Maryland’s 2014 law that made possession of less than 10 grams of marijuana a civil offense sanctionable by a $100 fine rather than a crime punishable by incarceration, the Court of Special Appeals stated in a reported 3-0 opinion Monday.

Defense lawyers continue to insist — despite a Maryland high court ruling to the contrary — that suspicion of a mere civil marijuana offense does not give officers probable cause to suspect criminality is afoot when they see or smell less than 10 grams of the drug, the appellate court said.

But these attorneys do not realize that an “offense” – even if not a crime — is by definition an unlawful act the suspicion of which can provide probable cause to search, the Court of Special Appeals said.

The court rendered its biting, often sarcastic decision in upholding the search of a man’s car and his subsequent convictions for illegally possessing ammunition and at least 10 grams of marijuana.

“The bottom line is that, contrary to the interpretation of (the 2014 law) solemnly urged upon us by this appellant and by others, a finding of guilty of a code violation of (the law) has definitely not received the Good Housekeeping Seal of Approval,” Judge Charles E. Moylan Jr. wrote for the court.

“The possession or use of marijuana in any amount has not become normal and proper behavior,” added Moylan, a retired judge sitting by special assignment. “It is illegal.”

As evidence of the illegality, the Court of Special Appeals cited the legislature’s deliberate use of the word “offense” in the 2014 law.

“The General Assembly chooses its words carefully and deliberately,” Moylan wrote.

“It is nothing less than Orwellian Newspeak to conclude that the legislature would take conduct that it deems to be completely inoffensive and would then denominate such conduct as an ‘offense,’ civil or otherwise,” Moylan added. “It is an oxymoron to say that one can be found ‘guilty’ of being inoffensive.”

The intermediate appeals court noted that the Maryland Court of Appeals in 2017 similarly upheld an officer’s search of an automobile sparked by the smell of marijuana. The high court stated in Robinson v. State that “decriminalization is not synonymous with legalization, and possession of marijuana remains unlawful.”

The Court of Special Appeals rendered its decision as Marylanders prepare to vote this November on a constitutional amendment to legalize recreational marijuana use for people 21 and older beginning in July 2023.

The controversial car search arose after Anne Arundel County detectives spotted Chalon Johnson in the parked Chevrolet Malibu on Lamplighter Ridge in Glen Burnie three years ago.

Johnson, upon seeing the officers, ran from the car, according to the court’s opinion.

The officers chased but did not catch Johnson and then went to his car, which was locked with the tinted windows rolled up. Detective Philip Clarke peered through a window and saw what he later said “appeared to be marijuana crumbs” and detected the smell of unlit marijuana emanating from the car.

Saying they had probable cause, officers searched the car and found a bag containing 52 grams of marijuana, a digital scale and five bullets.

Johnson was later arrested and charged. He sought to have the marijuana and ammunition suppressed as evidence, saying the officers lacked probable cause to search based on the smell and sight of just a small amount of marijuana.

Anne Arundel County Circuit Judge Alison L. Asti rejected that argument. Anne Arundel County Circuit Judge J. Michael Wachs subsequently found Johnson guilty based on an agreed statement of facts.

Johnson was sentenced to one year in prison, with all but 21 days suspended, for illegally possessing ammunition and to six months in prison, with all but 21 days suspended, for marijuana possession, according to online court records.

The Court of Special Appeals upheld the search of Johnson’s car and his convictions, saying the detective’s sight and smell of marijuana provided probable cause, especially when combined with Johnson’s dash from the car upon seeing police officers in the drug-ridden neighborhood.

“In assessing the Fourth Amendment reasonableness of the police response, the geography of the encounter can be critically important,” Moylan wrote, referring to the constitutional amendment prohibiting unreasonable searches.

“In terms of its exposed vulnerability, the abandoned Malibu here, probably containing an undetermined quantity of illegal drugs, sat helplessly amid an opportunistic crowd of drug users and drug peddlers,” Moylan added. “It was not resting quietly somewhere in the outback of rural Finland. All else being equal, a difference in geographic setting can make a critical difference in level of suspicion and also in level of vulnerability.”

Johnson’s appellate attorney, Samuel P. Feder, declined to comment Tuesday on the court’s decision. Feder, an assistant Maryland public defender, said no decision has yet been made regarding an appeal to Maryland’s high court.

The Maryland attorney general’s office did not immediately respond Tuesday to a request for comment.

Moylan was joined in the opinion by Judges Christopher B. Kehoe and Andrea M. Leahy.

The Court of Special Appeals rendered its decision in Chalon Joshua Johnson v. State of Maryland, No. 572, September Term 2021.