Smell of Marijuana is Probable Cause for Search

Marijuana Musk The Aroma of Cannabis as Probable Cause for a Search

Lewis v. State, No. 1115, SEPT.TERM,2017, 2018 WL 3199217, at *1 (Md. Ct. Spec. App. June 28, 2018)

A casual walk down a busy street in Denver, San Francisco, or Washington D.C., for that matter, is all one needs to recognize that the state of marijuana laws across the country is in significant flux. Being the purple state it is, Maryland seemingly appears not far behind our more liberal contemporaries when it comes to the evolution in thinking around marijuana legalization. Medical marijuana is now available in abundance in Maryland. There are now approximately 30 dispensaries, 12 processors, and 14 growers operating in the state’s medical cannabis industry. In April 2014, marijuana use in the state was decriminalized by the legislature (after overriding a veto by Governor Hogan). The casual observer or occasional partoker might begin to develop a false sense of security that use of marijuana is all but legal in the state. It’s not. As a gentle reminder to those who are so inclined, not only can use of marijuana place you in legal jeopardy, but the wafting aroma that might be familiar on a leisurely walk through a park in Brooklyn, NY, is enough for probable cause to arrest in the Old Line State.

In a June 28, 2018 opinion, the Court of Special Appeals held that despite the decriminalization of small amounts of marijuana, probable cause still exists to effectuate a warrantless arrest when an officer smells cannabis. The Maryland 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 emanating from a vehicle provides probable cause to believe that contraband or evidence of a crime will be in the vehicle, thereby 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 odor of marijuana, if localized to a particular person, provides probable cause to arrest that person for the crime of possession of marijuana.

In Lewis v. State, the Court of Special appeals affirmed that the law in the State of Maryland surrounding warrantless searches has not been shaken by decriminalization. In that case, the search incident to arrest produced a handgun that was being carried without the proper authorization. However, a search incident to arrest, with valid probable cause resulting from the odor of marijuana, could result in arrest for any number of other criminal offenses. The Maryland Office of the State’s Attorney continues to prosecute offenses for marijuana, including distribution and possession of paraphernalia to the full extent of the law. It is important to know your rights, and it is important to remember that for those smoking trees, you aren’t out of the woods yet.

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