Smell of Marijuana Provides Probable Cause to Arrest, Maryland Court Says

Smell of Marijuana Provides Probable Cause to Arrest, Maryland Court Says

Even though possession of less than 10 grams of marijuana is not a crime in Maryland, police officers have probable cause to arrest for marijuana possession if they smell the drug on a person, Maryland’s intermediate appellate court has ruled.

“We hold, consistent with authority in other jurisdictions, that the odor of marijuana, if localized to a particular person, provides probable cause to arrest that person for the crime of possession of marijuana. Here, where [the police officer] smelled the odor of marijuana emanating from appellant’s person and localized to appellant, he had probable cause to arrest appellant and search him incident to that arrest,” the Court of Special Appeals said.

The court’s decision began when a Baltimore City police officer received a tip that a black male, “with a certain clothing description” and a red bag, was seen with a handgun near a Baltimore City store rumored to be a selling place for illegal drugs.

The police officer sent to investigate the call was qualified as an expert in the identification and packaging of marijuana. The officer said he smelled marijuana on the man. When the officers searched the suspect, a firearm was discovered in the red bag and the officer recovered a zip lock baggie containing less than 10 grams of marijuana from the man’s jacket, as well as packaging material, believed to be for the marijuana.

The man’s Baltimore defense attorney moved to suppress the items sized during the search, arguing that the smell of marijuana does not justify a search of a person. The trial court denied the motion. The defendant appealed.

The Court of Special Appeals noted that possession of ten grams or less of marijuana being decriminalized did not change its analysis. In October 2014, possession of less than ten grams of marijuana became a civil offense under Maryland law that is punishable by participation in a drug education program, an assessment for substance abuse disorder, possible substance abuse treatment, and a fine, the amount of which depends on whether the violation is a first, second, or subsequent violation of the statute.

Despite the decriminalization of possession of less than ten grams of marijuana, the odor of marijuana remains evidence of a crime and provides probable cause to search a vehicle, the intermediate appeals court said, relying on cases decided by the state’s top court. The Court of Appeals has noted that the odor of marijuana may be just as indicative of crimes such as the possession of more than ten grams of marijuana, or possession of marijuana with the intent to distribute as it is of possession of less than ten grams of marijuana, and it is unreasonable to expect law enforcement officers to determine, based on odor alone, the difference between 9.99 grams or less of marijuana and 10 grams of marijuana.

As a result, Maryland’s appellate courts consistently have held that the odor of marijuana provides probable cause to believe that marijuana is present, and therefore, the smell of marijuana coming from a vehicle provides probable cause to believe that contraband or evidence of a crime will be in the vehicle authorizing a search of the vehicle.

In determining whether the smell of marijuana gives probable cause to arrest a person, however, whether the person is in a vehicle or standing in a public place, the key inquiry is whether the circumstances sufficiently link that person to the suspected criminal activity, the Court of Special Appeals said. The odor of marijuana, if localized to a particular person, provides probable cause to arrest that person for the crime of possession of marijuana.

Here, the arresting officer smelled marijuana coming from the defendant. Although the possession of ten grams or less of marijuana has been decriminalized, the odor of marijuana remains evidence of a crime, the court said. Because the officer was able to localize the odor of marijuana to appellant, the officer had probable cause to arrest appellant and search him incident to that arrest.

If the odor of marijuana is sufficiently localized to a specific person, the police have probable cause to arrest that person for the crime of marijuana possession, the court said.

Accordingly, the circuit court properly denied the motion to suppress the evidence recovered during the lawful search incident to arrest, the appeals court said.

If you are charged with a drug crime in Maryland, you should talk to a Baltimore criminal defense attorney. A Baltimore marijuana possession lawyer can get the charges reduced or work out a plea bargain, among other defense options. The attorneys at The Law Offices of Thomas J. Maronick have experience handling these cases. You can contact Thomas Maronick on his cellphone at 202.288.0167, the law office at 410.934.3007 or via our website for a free consultation.