We have written in the past about Maryland’s efforts to decriminalize the possession of certain, smaller amounts of marijuana. Those laws make possession of amounts of marijuana less than 10 grams a “civil wrong,” akin to a parking violation. That is, against the law, but not actually a crime that will lead to arrest, or jail time.
If smaller amounts of marijuana are no longer criminal offenses, how does that affect a police officer’s ability to search and seize property when the officer smells marijuana? In other words, does smelling marijuana still provide the probable cause needed for an officer to search a car in the absence of a warrant? A recent case dealt with just this question.
Marijuana Odor Leads to Arrest
Vehicles have a special place in constitutional law. Exceptions have been carved out that allow an officer to search a vehicle without a warrant, simply based on probable cause. That is exactly what happened in the case, when a man’s car was searched by police after they detected the odor of marijuana, and he was subsequently arrested.
The defendant tried to argue that the search based on the odor was illegal. First, he argued that a scent only detects the presence of marijuana, not the amount. It does not tell the officer that the defendant possessed an amount of marijuana that is illegal (that is, more than the amount that constitutes merely a civil offense). As such, because odor alone does not tell an officer whether anything illegal is actually occurring or an illegal amount is in a defendant’s possession, it cannot be the basis of a warrantless search.
In fact, the defendants argued that a warrant cannot even be obtained for a civil offense that is considered non-criminal.
Court Allows Search
The court disagreed, determining that despite the non-criminalization, marijuana is still considered “contraband.” As such, when an officer sees or smells it, the officer is still detecting the presence of something illegal, and thus, the scent provides the requisite probable cause to search a vehicle without a warrant.
The court noted that making possession of smaller amounts of marijuana non-criminal was not the same as legalizing its possession entirely. The court also noted that when the General Assembly decriminalized marijuana, it made no mention that marijuana could not be the basis of a warrantless, probable cause search, or that they intended to alter the rights of officers at all. In fact the Assembly noted in the law that the decriminalization “…may not be construed to affect the laws relating to . . . seizure and forfeiture.”
The case is a warning to citizens that just because marijuana (or other items) are made non-criminal, unless they are completely legal, those items can still open the door to bigger problems and affect a defendant’s constitutional rights.
If you are arrested or charged with a drug or marijuana-related crime, make sure evidence was obtained legally by police. Contact the attorneys of Brassel, Alexander & Rice, LLC today for a free consultation to discuss your case.