The Court notes the difference between a vehicle search and the search of a person. Also, the odor of pot alone is not probable cause for a search in the 33 states that have legalized pot.

 

Excerpts from the Article:

The Court of Appeals of Maryland held that the odor of marijuana emanating from a person alone does not provide police with probable cause to support an arrest and warrantless search incident to the arrest.

Rasherd Lewis was in a convenience store in Baltimore City on February 1, 2017, when officers got a tip that someone matching his description was “potentially armed.” Officers located Lewis, but the tip was not, by itself, sufficient to search or arrest him. Offices ordered the patrons of the store to leave, and when Lewis was passing them, Officer Burch said he smelled the odor of burnt marijuana on him.

Officers searched him and found a non-criminal amount of marijuana, plastic baggies, $367 in cash, and a handgun. Lewis was charged with criminal possession of a firearm. He filed a motion to suppress the firearm on the ground that the search was unconstitutional, but the motion was denied. Lewis was convicted in a bench trial and sentenced to three years’ incarceration with all but 90 days suspended, and three years’ probation. Lewis appealed the results of the suppression hearing.

The Court of Special Appeals affirmed the results of the suppression hearing by relying on Robinson v. State, 152 A.3d 661 (Md. 2017). In Robinson, the Court of Appeals ruled that the odor of marijuana emanating from a vehicle justified a search of the vehicle because “possession of ten grams or more of marijuana, crimes involving the distribution of marijuana, and driving under the influence of a controlled dangerous substance have not been decriminalized in Maryland.”

On appeal to the Court of Appeals, Lewis argued the search of a person, outside the context of a vehicle, is separate and due greater deference than the search of a vehicle. The Court of Appeals agreed.

The Fourth Amendment to the U.S. Constitution and the Maryland Declaration of Rights, article 26, prohibit unreasonable searches of a person or property. This right is “subject to only a few specifically established exceptions.” Grant v. State, 141 A.3d 138 (Md. 2016). Two of these are the automobile exception and the search incident to arrest exception. Pacheco v. State, 214 A.3d 505 (Md. 2019). “The distinction between the two exceptions is at least in part due to the diminished expectation of privacy that justifies the automobile exception … as compared to the unique, significantly heightened constitutional protections afforded a person to be secure in his or her body.” Id.

The Court of Appeals noted that Pacheco was not available when the Court of Special Appeals decided Lewis’ direct appeal, and thus that court relied solely on Robinson. However, as established in Pacheco, greater protections are attached to searches of a person since Maryland decriminalized marijuana possession. As possession of less than 10 grams and use of marijuana carries only a civil penalty (a fine), the smell of marijuana cannot be used to infer that a person is committing or has committed a felony or misdemeanor. Thus, officers lacked probable cause to arrest Lewis or conduct a search incident to arrest, so both the arrest and subsequent search were in violation of Lewis’ constitutional rights.

Also, in a concurring opinion to Lewis’ direct appeal and noted by the Court of Appeals, Judge Arthur voiced concern that if the odor of marijuana is sufficient to establish probable cause then “it is not difficult to imagine scenarios in which police officers would have probable cause to arrest and search someone whose only exposure to marijuana is from second-hand smoke…. I would have thought that the reform of Maryland’s marijuana laws was intended to reduce rather than facilitate intrusive searches in circumstances such as these.” It is this reason, in combination with greater protections afforded to individuals to be free from unreasonable searches of their person vis-à-vis vehicles, that guided the ruling of the Court of Appeals.

Accordingly, the Court reversed the Court of Special Appeals and remanded the case with instructions to grant the motion to suppress. See: Lewis v. State, 233 A.3d 86 (Md. 2020).

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