In a decision issued at the beginning of May, 2021 a Maryland appeals court has issued a ruling that the odor of cannabis alone does not constitute probable cause to justify a police search under the Fourth Amendment. A “reasonable suspicion” that a crime is being committed is required before Maryland police can detain an individual. In this article I will discuss how the 2014 legislation to decriminalize cannabis has led to this ruling. I will also cite the case that precipitated the ruling and explain its ramifications.
Opinion by the Judge
In her opinion on the subject, Judge Kathryn Grill Graeff weighed in with the following statement:
“Because an officer cannot tell by the smell of marijuana alone that a person is involved in criminal activity, we hold that the odor of marijuana, by itself, does not provide reasonable suspicion to conduct an investigatory stop.”
This decision is in response to the many cases brought before the Maryland appeals court, the second-highest court in the state. The court sided with the defendants that the smell of cannabis alone does not warrant police involvement. This new decision also limits the types of violations that authorize police intervention, including the search of individuals for weapons.
Professor David Jaros of the University of Baltimore Law School interprets these rulings by the courts as an indication that they are finally upholding the 2014 cannabis decriminalization legislation. Jaros believes that the police should not have the power to investigate citizens for something as innocuous as the smell of cannabis. This latest ruling is a step in the right direction to putting an end to finding minor excuses for searches.
2014 Decriminalization Legislation
- Decriminalized possession of less than 10 grams of cannabis
- Civil offense subject to a citation rather than a criminal offense
- First offense: a fine up to $100
- Second offense: a fine up to $250
- Possession of paraphernalia is still a criminal offense with one year in jail and a $1,000 fine.
- It is still a criminal offense to possess more than 10 grams of cannabis.
- Third and subsequent offense: a fine up to $500, attendance in a drug education program and referral to substance abuse evaluation
For those younger than 21, possession of less than 10 grams would require attendance in a drug education program and a referral to a substance abuse evaluation. It may also include driver’s license suspension and participation in a supervised work program.
The Case That Led To The Ruling
Officers Jeffery Walden and Alexandra Moser responded to a call for service on November 15, 2019 at 7:42pm at an apartment complex in Capitol Heights, Prince George’s County. The call involved a group of 5 young males reported to be in the basement of one of the buildings. They were allegedly playing loud music and smoking Controlled Dangerous Substances (CDS). The officers arrived at the building and just as they opened the front door, the five men were walking up the steps, smelling strongly of cannabis.
Officer Walden instructed the young men to have a seat on the stairs which they did. The officer testified that he was fearful for the safety of his fellow officer and himself since they were outnumbered. He asked the young men if any of them lived in the building. The response was evasive and non-cooperative as they snickered and laughed. Officer Walden was worried that one of the group was armed, so he and Officer Moser decided to search the young men for firearms.
Officer Moser frisked one of the men, found a gun in his waistband and handcuffed him. It was later determined to be a BB gun. Officer Walden frisked another young man, discovering inside his waistband a 9 mm handgun containing a magazine with rounds. He was not named in the appeal case because he was a minor at the time of his arrest. He was charged with carrying a weapon. His lawyer argued in court that Officer Walden had no legal reason to stop and frisk him.
The juvenile’s public defender, Michele Hall, berated the Maryland Police Department for engaging in aggressive policing by using the smell of cannabis as an excuse to justify a search, especially in communities of people of color. She noted that many dealings with law enforcement officers begin with something as innocent as the smell of cannabis. She believes that the smell of cannabis should not warrant probable cause to stop an individual on the streets of Maryland.
There was no comment for this article by the Maryland Attorney General’s Office which represented the state in this case. Their representative also declined to answer if the decision will be appealed.
This decision further strengthens the ruling of two previous judgments:
In 2019, the Maryland Court of Appeals, the highest court in the state, ruled that as long as the police could visibly identify a legal amount of cannabis, they could not arrest an individual on the basis of the smell of cannabis.
In 2020, the high court ruled that police officers could not arrest an individual based solely on their smelling of cannabis.
In response to the sheer number of black men who have died at the hands of police officers, many department officials are questioning whether police officers should continue to respond to low-level offenses such as traffic violations.
Search of Vehicles
This latest ruling does not change the law regarding the right to search vehicles based on the odor of cannabis due to a specific privacy rule for cars.
Mike Lewis, Wicomico County Sheriff, supports the latest ruling regarding individual searches. However, he hopes that subsequent rulings do not limit the power of the police to search vehicles smelling of cannabis. He sees that power as an important means for intercepting large quantities of black market cannabis.
delmarvanow.com, MD Court Rules Smell of Marijuana Doesn’t Justify Police Stops, Madeleine O’Neill, May 3, 2021
governing.com, Marijuana Decriminalization Takes effect in Maryland, McClatchy News, Oct. 1, 2014