MD: With decriminalization of MJ, smell alone is not PC

The decriminalization of marijuana in Maryland, the odor of marijuana, without more, is not probable cause. Smell alone doesn’t tell the quantity. Lewis v. State, 2020 Md. LEXIS 348 (July 27, 2020):

In 2014, the General Assembly decriminalized the possession of less than ten grams of marijuana, making such possession a civil offense. Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2014 Supp.), § 5-601(c)(2). Since then, this Court has issued three opinions in three cases addressing the Fourth Amendment implications of such decriminalization: Robinson v. State, 451 Md. 94, 152 A.3d 661 (2017), Norman v. State, 452 Md. 373, 156 A.3d 940, cert. denied, 138 S. Ct. 174, 199 L. Ed. 2d 42 (2017), and Pacheco v. State, 465 Md. 311, 214 A.3d 505 (2019). All three cases involved police officers’ actions in response to their knowledge or suspicion of either the presence or odor of marijuana. The outcome of each, however, was dictated by the underlying facts and consideration of the pertinent exception(s) to the Fourth Amendment’s warrant requirement. See Robinson, 451 Md. at 125-35 (automobile exception); Norman, 452 Md. at 411-13 (stop and frisk exception); Pacheco, 465 Md. at 321-23 (search incident to arrest and automobile exceptions).

We here consider, and for the reasons that follow hold, that the odor 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.

Summary by the court:

The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. For a warrantless arrest to be reasonable, there must be probable cause to believe that the arrestee committed a felony or was committing a felony or misdemeanor in the presence of a law enforcement officer. Possession of less than ten grams of marijuana is neither a felony nor a misdemeanor, but rather a civil offense. In order to lawfully arrest someone for possession of marijuana, the law enforcement officer must have probable cause to believe the arrestee possesses a criminal amount of marijuana, i.e., ten grams or more. A law enforcement officer cannot determine by the odor of marijuana alone the quantity of marijuana, if any, someone possesses. Therefore, the mere odor of marijuana does not create probable cause to believe an arrestee possesses a criminal amount of that substance.