The smell of marijuana alone is not enough to provide reasonable suspicion of criminal activity, and as a result, a stop based on this circumstance alone is unreasonable, Maryland’s Court of Special Appeals has ruled.
“We hold that the odor of marijuana, by itself, does not provide reasonable suspicion of criminal activity, and therefore, a stop based on this circumstance alone is unreasonable under the Fourth Amendment,” Maryland’s intermediate appellate court said in reversing the decision of the circuit court.
The case is another in a series of decisions in the Maryland court system grappling with the legality of searches and seizures based on instances where marijuana is detected by smell.
Playing music, smoking weed
The appeals court’s ruling started with two Prince George’s County policemen receiving a call for service at an apartment building about males in the basement playing music and smoking controlled dangerous substances at an apartment building. When the officers arrived, one of them “smelled a strong odor of marijuana.”
One of the officer’s told the group of five males to have a seat on the stairs and the other officer conducted a frisk of one of the individuals, finding a 9mm handgun hidden in a waistband. The boy, who was a juvenile when he was arrested, faced charges for carrying the weapon but argued in court that the officer did not have a legal reason to stop and frisk him. The circuit court denied the motion to suppress.
When the case came before the Court of Special Appeals, it reversed the lower court’s ruling. Maryland’s intermediate appellate court noted that because an officer cannot tell by the smell of marijuana alone that a person is involved in criminal activity, a whiff of weed, by itself, does not provide reasonable suspicion to conduct an investigatory stop. As a result, the officer did not have a reasonable suspicion of criminality to support the stop, and the stop was unreasonable under the Fourth Amendment.
Maryland’s laws on the smell of marijuana and searches and seizures are evolving
The appeals court noted that there has been an evolution in the law regarding the effect of the odor of marijuana as it relates to permissible searches and seizures under the Fourth Amendment.
Before 2014, the law was clear that the odor of marijuana provided probable cause to believe that criminal activity was occurring, justifying a search of a car or an arrest of a person. In 2014, however, the Maryland General Assembly decriminalized possession of less than 10 grams of marijuana, making it a civil offense, subject to a citation.
Since then, the appellate courts have grappled with its effect on searches and seizures based on the odor of marijuana, including ruling that when a law enforcement officer smells the odor of marijuana emanating from a vehicle, there is probable cause to believe that the vehicle contains contraband or evidence of a crime; that the odor of marijuana emanating from a vehicle does not allow a frisk of all occupants because it does not, by itself, provide reasonable suspicion that they are armed and dangerous; that police may not arrest an occupant of a vehicle and search incident to arrest based merely on the possession of a joint and the smell of burnt marijuana; that the mere odor of marijuana emanating from a person does not provide probable cause to arrest and search incident to arrest and ruling that there must be probable cause to believe that an arrestee is in possession of a criminal amount of marijuana. An Ocean City criminal defense attorney can provide more details.
The case is In re D.D.
If you are charged with a drug crime in Ocean City or Baltimore, you should talk to a 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. The consultation is free.
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