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Maryland Police Can No Longer Use Cannabis Odor As A Basis To Conduct Searches

September 3, 2020 in Cannabis Law

In the state of Maryland, the police may no longer arrest nor conduct a search without a warrant on a citizen whom they claim smells of cannabis. This is a huge victory towards upholding the civil rights of cannabis users, especially people of color. They are stopped by police much more frequently than white people, although rates of use are very similar. In this article I will cite the case of Rasherd Lewis that led to this outcome. I will also discuss whether that applies to searches of automobiles.

Maryland Cannabis Law

In 2014, possession of up to 10 grams of cannabis was decriminalized in Maryland. It is a civil not a criminal offense, punishable by a fine of $100. Due to this legislation, there is no longer probable cause for the warrantless search of an individual based solely on the fact that they smell of cannabis. However, it does not afford the same protection to the search of vehicles which smell of cannabis.

The Case of Rasherd Lewis

On February 1, 2017, Baltimore Police Officer, David Burch, was given a tip by a reliable source that a potentially armed man was spotted on W Saratoga St. Officer Burch relayed the tip and description of the man to CitiWatch, Baltimore City’s surveillance camera’s monitoring system. The CitiWatch Operator reported to Officer Burch that a man matching the description, later identified as Rasherd Lewis, was seen on the surveillance camera entering a convenience store at 401 W. Saratoga.

Burch and 5 other officers responded, entering the store, which was small, fairly crowded and smelled of cannabis. Burch spotted Lewis and saw him move away from the cash register, following other customers who were on their way towards the exit. He was carrying a red bag, walking normally and calmly. Lewis walked right by Burch who claimed the suspect smelled of cannabis. The 6 police officers asked all the other customers to exit the store, leaving the store owner, Lewis and the police officers. Burch stopped Lewis, later claiming in court that he detained Lewis based of his odor and the tip he had received. Burch grabbed Lewis’ right hand and left shoulder. All 6 officers surrounded him. Burch handcuffed Lewis and began to conduct a full search. This included the red bag he was carrying which contained a handgun, his waistband, and his pockets which contained a small bag of cannabis. He was arrested.

Through his lawyer, Lewis argued that there was no justification for a full search because there was no probable cause to arrest him. Furthermore, someone possessing less than 10 grams of cannabis cannot be arrested, but merely issued a civil citation. This was an unlawful arrest.

A representative of the Baltimore State’s Attorney argued that the smell of cannabis gave Burch probable cause to arrest and search Lewis because any amount of cannabis, even less than ten grams, is considered to be contraband, per Maryland law. The state’s case also argued that the smell could indicate possession of a larger amount of cannabis, thereby presenting probable cause to search for more.

Lewis’ lawyer entered a motion to suppress the handgun and the cannabis. The suppression court sided with Lewis, determining that the tip lacked sufficient reliability to justify stopping him in the first place. However, that decision was overturned based on Officer Burch’s testimony that Lewis smelled of cannabis.

Lewis was convicted by the Circuit Court of Baltimore City for wearing, carrying or transporting a handgun. He was sentenced to three years in prison with all but 90 days suspended and three years of supervised probation.

Lewis’ lawyer appealed to the Maryland Court of Special Appeals which ultimately sided with Lewis. In September, 2019, Chief Judge Mary Ellen Barbera agreed that there was no “probable cause” to search him without a warrant and that the handgun was suppressed as evidence in criminal court. Probable cause to conduct a lawful arrest requires that the suspect committed or was committing a felony or misdemeanor in the presence of the police officer. The judgment of the Court of Special Appeals was reversed and the motion to suppress was granted.

According to Judge Barbera, “arresting and searching a person, without a warrant and based exclusively on the odor of marijuana on that person’s body or breath, is unreasonable and does violence to the fundamental privacy expectation in one’s body. The same concerns do not attend the search of a vehicle.”

Search of Vehicles That Smell of Cannabis

In a 7-0 Maryland Court of Appeals opinion in the September 2018 term of the case of Michael Pacheco vs State of Maryland, a distinction was made between probable cause needed to search a vehicle and an individual. Police officers are allowed to use the smell of cannabis as probable cause to search a vehicle. This is based on a case law that says that there is a reduced expectation of privacy in a vehicle. However, unless they determine evidence of a crime, the police may not search anyone in the vehicle, even if they find small quantities of cannabis.

Maryland cannabis reform law advocates are not giving up on the fight against vehicle searches based solely on the smell of cannabis. It is clear that police continue to use supposed traffic violations as an excuse to stop and search citizens, often disproportionately racially motivated. They claim they smell cannabis and proceed to search the vehicle. This is the impact that decriminalizing rather than fully legalizing cannabis has on all communities but even more so on minority communities.

Sources:
baltimoresun.com, Maryland’s Highest Court Affirms That Police Can’t Use Smell of Marijuana to Search and Arrest Person, July 28, 2020, Justin Fenton
talkingdrugs.org, Maryland Judge: Police Can’t Search You Because They
Smell Weed, July 30, 2020
baltimoresun.com, Marijuana Funk No Longer Probable Cause To Search People; Maryland Appeals Court Cites Bob Dylan in Ruling, Jessica Anderson, Aug. 15, 2019
mdcourts.gov, Lewis vs. State – Maryland Courts, July 27, 2020

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