The Smell of Marijuana

On July 28, 2020, Maryland’s highest court issued another ruling that limits the ability of police to use the smell of marijuana as a reason to arrest and search people. The ruling stated that police officers may not arrest people based on the smell of marijuana alone.

Chief Judge Mary Ellen Barbera authored the opinion and stated, “The order of marijuana, without more, does not provide law enforcement officers with the requisite probable cause to arrest and perform a warrantless search of that person incident to the arrest.”

What Does This Ruling Mean?

This ruling builds on an opinion and ruling issued last year, in the summer of 2019, by the same Maryland court. The 2019 ruling held that an officer could not arrest and search someone based on an observation of an amount of marijuana that is fewer than 10 grams, which is within the range that was decriminalized in 2014. In that case, the court determined that the police officer knew that the marijuana was below the criminal threshold, and therefore his subsequent arrest and continued search were illegal.

The Maryland court agreed that vehicle-related searches differed, as there is a reduced expectation of privacy in a vehicle. The 2019 and recent 2020 opinion, applies to searches of people. The court ruled, “there is a heightened expectation of privacy enjoyed in one’s person. 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.”

Thus, remains a wide array of tools at the disposal of police to justify a minor stop into a search. Despite being decriminalized, marijuana has remained a common way for police officers to stop and search people. Police officers may stop people based on a traffic violation, smell marijuana, and search the vehicle still. However, this recent 2020 opinion could be a step in the right direction to address those concerns.

Chief Judge Barbera wrote, “For such a search to be supported by probable cause the police must possess information indicating possession of a criminal amount of marijuana.” 

Recent Cases

In the recent Maryland case, Baltimore Police officers received a tip about an armed person at a general location. A man, Rasherd Lewis, matched that description of the person and was witnessed entering a store. The police officers entered the store and Mr. Lewis walked past them, “emitting” the smell of marijuana. Mr. Lewis was handcuffed and searched, based on the smell of marijuana. During the search, police officers found a handgun inside Mr. Lewis’s bag along with a small amount of marijuana.

The Baltimore State’s Attorney’s office argued that “the odor of marijuana provided [the officers] with probable cause to arrest and search [Mr. Lewis] because marijuana in any amount is contraband, and although possession of less than ten grams of marijuana was decriminalized, ‘it was never the legislature’s intention to reclassify marijuana as not being contraband.” A judge upheld the search and Mr. Lewis was convicted of possessing the handgun.

Maryland’s highest court heard the issue on appeal and ruled against the Baltimore State’s Attorney’s office, sending the case back to Baltimore City court, with instructions to grant the motion to suppress the search of Mr. Lewis which resulted in the handgun being found.

So what does this mean for Michigan? This case provides direction and guidance for Michigan courts regarding the same issue. If you have been charged with a crime based on a search and/or arrest pursuant to the smell of marijuana, we may be able to challenge that search and seizure.

Contact us at Tanis Schultz to schedule your free consultation and get started on your defense today!

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