In a marijuana decriminalization state, merely finding evidence of marijuana usage, not trafficking, wasn’t probable cause for a search warrant even under Gates or the good faith exception. United States v. Lyles, 2017 U.S. Dist. LEXIS 193030 (D. Md. Nov. 20, 2017):
Here, there was no evidence in the affidavit of drug use or distribution other than the contents of the trash pull, and the items from the trash were closer in quantity and significance to those in Abernathy than in Briscoe. The Court agrees with the reasoning of Abernathy and concludes that the presence of only three marijuana stems and rolling paper, even if suggesting that someone had used marijuana in the house, does not establish a fair probability that additional marijuana will be found within the home. Thus, the Court concludes that, even under the highly deferential standard, that there was not a “substantial basis” to conclude that there was probable cause to search the residence. See Gates, 462 U.S. at 238; Abernathy, 843 F.3d at 255.