Marijuana Smell and Amount Under 10 Grams Was not Probable Cause for Search Incident to Arrest

Marijuana Smell and Amount Under 10 Grams Was not Probable Cause for Search Incident to Arrest

The smell of marijuana combined with possession of an amount clearly less than 10 grams does not grant Maryland police officers probable cause for a search incident to the arrest, the Court of Appeals has ruled.

The legal action deals with the arrest and search of a man and his vehicle after two officers smelled marijuana. When the officers searched the man, they discovered cocaine. The case is another in a series of decisions in the Maryland court system grappling with the legality of searches and seizures based on the odor of marijuana.

Marijuana smell

Two Montgomery County police officers were conducting a routine foot patrol late at night in Wheaton, Maryland in May 2016 when they noticed a vehicle parked behind a laundromat with the windows rolled down. The officers said they thought it was suspicious that someone would sit in their car rather than the laundromat because the laundromats in the area had free Wi-Fi and television sets.

One officer testified that he noticed the smell of marijuana about a foot from the vehicle, the other officer testified that the smell was “strong.” The vehicle’s occupant was alone and sitting in the driver’s seat and the officer’s said they observed a marijuana cigarette in the vehicle’s center console, which the officer testified, was less than 10 grams. In 2014, the General Assembly decriminalized possession of less than 10 grams of marijuana, making possession of that amount a civil, not a criminal, offense.

The officer asked for the marijuana joint, asked the man to get out of the car and then searched him. During the search, they discovered cocaine in the man’s left front pocket. When they searched the vehicle, they discovered a marijuana stem and two packets of rolling papers. The man was charged with possessing less than 10 grams of marijuana and with possession of cocaine with intent to distribute it.

The trial court refused to suppress the cocaine, explaining that the possession of what appeared to be less than 10 grams of marijuana gave the officers probable cause to conduct a search incident to the arrest. The man entered a conditional guilty plea, preserving his right to withdraw the plea if he was successful in his appeal of the court’s ruling on the motion to suppress.

The Court of Special Appeals upheld the search of the man as incident to a lawful arrest. The court said the man was the driver and sole occupant of a vehicle that smelled of marijuana and police observed a marijuana joint in the center console. The court said these circumstances gave the police probable cause for the arrest.

But, when the case reached the state’s top court, the Court of Appeals disagreed. The record did not support that the officers had probable cause to arrest based on the belief that the man was committing, had committed or was about to commit a crime in their presence, the court said. The facts were sufficient to establish probable cause to search the vehicle based on the presence of contraband; but little else was presented that addressed why this “minimal amount of marijuana, which is not a misdemeanor, but rather a civil offense, gave rise to a fair probability that” the arrestee possessed a criminal amount of marijuana on his person, the state’s top court said.

The court said it had previously held that the mere odor of marijuana was not enough to establish reasonable suspicion that a vehicle’s occupants were armed and dangerous and, as a result, subject to being frisked. The court also noted that the arrested man had not contested that the officers had probable cause to search the vehicle based on the smell of marijuana and presence of a joint in the vehicle’s center console. It did not follow that, because the police lawfully searched the arrested man’s car for contraband or evidence of crimes, they had the right to search his person, the court said.  

Noting that a person has a heightened expectation of privacy regarding his or her person compared to the diminished expectation of privacy one has in an automobile, the arrest and search was unreasonable because nothing in the record suggested that possession of a joint and the odor of burnt marijuana gave the police probable cause to believe that the man possessed a criminal amount of the substance, the court said in reversing the decision.

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.