Court weighs change to drug search

Po­lice are us­ing odor of mar­i­juana as probable cause

Baltimore Sun - - NEWS - By Justin Fen­ton jfen­ton@balt­sun.com

Mary­land de­crim­i­nal­ized mar­i­juana pos­ses­sion two years ago, mak­ing pos­ses­sion of a small amount pun­ish­able by civil fine.

But po­lice still use the mere smell of the drug as the ba­sis for search­ing ve­hi­cles.

The Mary­land Court of Ap­peals heard ar­gu­ments Thurs­day on whether that should change.

“The smell alone does not give rise to sus­pect a per­son is in pos­ses­sion of 10 grams or more of mar­i­juana,” at­tor­ney Ethan French­man told the court.

The ap­peal stems from three re­cent cases in which po­lice of­fi­cers smelled mar­i­juana and cited it as probable cause to search ve­hi­cles where more drugs were found. The prac­tice was up­held by trial courts and the Mary­land Court of Spe­cial Ap­peals.

The Gen­eral Assem­bly passed a law in 2014 that made pos­ses­sion of less than 10 grams of mar­i­juana a civil of­fense that car­ries a $100 fine. The fine climbs to $500 for re­peat of­fenses.

Law­mak­ers said they were hop­ing to end racial dis­par­i­ties in ar­rest rates for the drug and aim­ing to re­move the em­ploy­ment and ed­u­ca­tional bar­ri­ers that drug charges pose for thou­sands of Mary­lan­ders.

When the law took ef­fect, some law en­force­ment of­fi­cials won­dered how the change might af­fect car stops, in which the smell of mar­i­juana is of­ten cited as grounds to con­duct a search of a ve­hi­cle.

The first round of chal­lenges in the ap­pel­late courts re­sulted in swift af­fir­ma­tion that the drug re­mained il­le­gal and de­tec­tion of any amount could be used to jus­tify a search.

“Mary­land has not le­gal­ized the pos­ses­sion of less than10 grams of mar­i­juana. It has sim­ply ame­lio­rated the pun­ish­ment,” Court of Spe­cial Ap­peals Judge Charles Moy­lan wrote in one opin­ion. “The sanc­tion of a fine is not im­posed for be­hav­ior that is le­gal.”

On Thurs­day, French­man com­pared a per­son with a small amount of mar­i­juana to a fish­er­man in waters where catch­ing 10 or more fish is banned.

“If you see a fish­er­man who’s out fish­ing … and he smells like fish and you know he has some fish on him, is there any ba­sis to con­clude … that the fish­er­man has 10 or more fish?” he said.

Be­cause pos­ses­sion of a small amount of mar­i­juana is no longer a crime, French­man said, po­lice should be re­quired to cite some other fac­tor to es­tab­lish probable cause that a sus­pect has more than 10 grams.

Car­rie Wil­liams, an as­sis­tant at­tor­ney gen­eral ar­gu­ing for the state, said mar­i­juana re­mains an il­le­gal sub­stance in Mary­land and is still sub­ject to seizure and for­fei­ture in any amount. She said the Gen­eral Assem­bly in­tended only to free up the crim­i­nal sys­tem from the bur­den of such cases, not le­gal­ize the drug.

Pres­ence of the drug “is enough to pro­vide of­fi­cers with a fair prob­a­bil­ity that more grams of mar­i­juana will be found in that ve­hi­cle,” or that ev­i­dence of other crimes could be dis­cov­ered, Wil­liams said.

“Any amount is not in­no­cent be­hav­ior,” she said.

French­man agreed that mar­i­juana may be seized, but said dis­cov­ery of a small amount was not enough to take the step of con­duct­ing an “in­tru­sive” search. He com­pared it to a ju­ve­nile smok­ing a cig­a­rette, which can be seized by po­lice but is not grounds for a search.

One of the cases un­der ap­peal in­volved a search just two weeks af­ter the de­crim­i­nal­iza­tion went into ef­fect in 2014.

A Bal­ti­more po­lice of­fi­cer said he was driv­ing past a man lean­ing against a parked ve­hi­cle and was able to smell an “over­whelm­ing” odor of mar­i­juana. The man ad­mit­ted he had mar­i­juana in the car, prompt­ing a search that turned up more than 10 grams of it, along with oxy­codone pills.

“But no longer are law en­force­ment go­ing to be al­low[ed] to walk down a street corner, de­tect mar­i­juana and ar­rest every­body in that street corner,” the man’s at­tor­ney ar­gued, ac­cord­ing to court records. “That’s specif­i­cally what the leg­is­la­ture was con­cerned about.”

The judge dis­agreed, as did the Court of Spe­cial Ap­peals.

In an­other case, po­lice said they pulled up to a stop sign along­side an­other ve­hi­cle, ap­proached the car and smelled mar­i­juana.

At a hear­ing to ar­gue over the sup­pres­sion of ev­i­dence, the sides de­bated “the aro­matic po­tency of fresh mar­i­juana ver­sus that of burnt mar­i­juana and the re­la­tion­ship be­tween the amount of mar­i­juana at the source of the smell and the re­sul­tant dis­tance at which the smell might be de­tected.”

The ap­pel­late court said it was be­ing asked to “as­sess the rea­son­able outer limit” of the de­tec­tive’s “ol­fac­tory power,” but con­cluded the is­sue was moot: mar­i­juana was and re­mains il­le­gal in Mary­land.

The Court of Ap­peals is ex­pected to de­cide the is­sue in the next sev­eral months.

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