The Maryland Court of Appeals recently decided that the smell of cannabis alone is not enough justification for police to conduct personal searches or arrest individuals, said The Baltimore Sun.

The ruling applies to situations in which the individuals have expectations of privacy. Chief Judge Mary Ellen Barbera said, “The odor of marijuana, without more, does not provide law enforcement officers with the requisite probable cause to arrest and perform a warrantless search of that person incident to the arrest.” Barbera described warrantless arrest and searches due to such odor as “unreasonable“ and violates the “fundamental privacy expectation in one’s body.”

The chief judge noted that situations being referred to in the ruling is when the source of the odor is a person’s body or breath. For searches and arrests based on odor to be justified as probable cause, information regarding criminal amounts of marijuana possession should exist.

Police Can’t Use Odor for Search and Arrest

This decision was made in connection with the Rasherd Lewis case in 2017 where Lewis was followed by police into a store as he fit the description of an armed man described in a tip. Lewis was handcuffed and searched because the officer smelled a cannabis odor “emitting” from his body.

The search resulted in the discovery of a handgun, which was strapped to Lewis’ chest, and a small amount of marijuana in his pocket. A report filed in the Court of Special Appeals of Maryland said that Lewis possessed less than 10 grams of marijuana.

It is important to note that there is a 10-gram allowance implemented in Maryland because the state has decriminalized minor possession. The report also noted in Barbera’s remarks that a marijuana odor does not qualify as probable cause.

According to Baltimore State’s Attorney’s Office, the cannabis odor emanating from Lewis is the probable cause of the arrest and search conducted by the office. The Office also argued that “any amount” found on a person is considered contraband. It also asserted that decriminalization did not express “the legislature’s intention to reclassify marijuana as not being contraband.”

Vehicle Searchers and Cannabis Odors

Barbera highlighted the need for “a heightened expectation of privacy enjoyed in one’s person.” This means that the decision does not apply on private vehicles and police can conduct vehicle searches based on marijuana smells.

According to state law, which was agreed upon by the court, the expectations of privacy in a car are reduced and the high court’s ruling does not dispute this. In fact, the chief judge said that the same concerns with expectations of privacy applied to a person’s body or breath “do not attend to the search of a vehicle.”

Can’t Use Odor for Search and Arrest

The Baltimore Sun noted that marijuana has been a common reason for police to stop and search individuals.

University of Baltimore law professor David Jaros said that while this ruling is significant in reducing arrests and searches due to marijuana smells in the body and breath, it is important to challenge vehicle searches due to the same odor. Jaros considers this as a substantial point in fully legalizing the plant.

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