The Maryland legislature has now decriminalized the possession of less than 10 ounces of marijuana. However, use of the odor of marijuana is still used by the police in making arrests, as was explored by a divided panel from Maryland’s intermediate appellate court in a case called Rasherd Lewis v. State of Maryland.
The majority opinion indicates that Lewis was convicted of wearing, carrying or transporting a handgun, after his motion to suppress the handgun from evidence on 4th amendment unreasonable search and seizure grounds was denied by the trial judge.
The facts were that Baltimore City police received a credible tip that a person matching the description of the defendant was in possession of such a weapon. The police located him in a local store, that was known to the officers as a frequent location where drugs were sold.
Six officers entered the store, and the arresting officer testified that he smelled a general odor of marijuana. The officer was qualified to testify as an expert in the packaging and smell of cannabis, saying that there was “no other odor like it.”
He testified that when he approached the defendant there was a noticeable odor of marijuana coming from his body. He stopped the defendant and searched him, finding in his satchel the handgun and a baggie containing less than 10 ounces of marijuana.
The trial judge ruled that the tip about the gun alone did not justify a warrantless arrest of the defendant, but the odor of marijuana was sufficient.
The majority opinion noted that although simple possession of limited amounts of cannabis has been decriminalized, Maryland’s Court of Appeals has made it clear that the odor of marijuana is still evidence of a crime which justifies search of a vehicle. The judge opined that it was not sufficient to arrest someone if there is a general odor coming from a locality.
However, given the officer’s testimony of a specific odor coming from the person of the defendant, this was sufficient to justify the stop and arrest of the defendant, and search of his person incident to the arrest that meets 4th amendment requirements for a warrantless arrest.
The concurring opinion noted that, absent the Court of Appeals’ rulings on the odor of marijuana justifying a search, the conviction should be overturned.
The dissenting opinion argued that the case on search of a vehicle is not sufficient to support the conclusion that odor coming from an individual supports a warrantless arrest. It remains to be seen if the State’s highest court takes up this issue.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.