Marijuana odor justifies warrantless vehicle search, Court of Appeals rules

Marijuana odor justifies warrantless vehicle search despite decriminalization, Md high court rules

Though possession of small amounts of marijuana has been decriminalized in Maryland, it remains a banned substance and gives police probable cause to search a vehicle, the state's highest court has ruled.

"Simply put, decriminalization is not synonymous with legalization, and possession of marijuana remains unlawful," Court of Appeals Judge Shirley M. Watts wrote in a unanimous opinion issued Friday.

The case was brought on behalf of three men whose vehicles were searched after police officers said they smelled marijuana, leading to the discovery of more drugs.

The searches had been previously upheld by trial courts and the Maryland Court of Special Appeals, but attorneys for the appellants argued before the Court of Appeals that police should be required to cite factors that give them reason to believe the amount they smell is larger than 10 grams. The smell of marijuana indicates only its presence, not its amount, they argued.

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.

The state attorney general's office argued in December that marijuana remains defined under state law as "contraband," which is subject to seizure and enough to provide probable cause that there may be evidence of a crime found in the vehicle.

The court found that the General Assembly did not intend to preclude a search of a vehicle based on the odor of marijuana, and made clear that any amount is still illegal.

"By definition, if law enforcement officers may still seize marijuana, then law enforcement officers may still search for marijuana," the court ruled.

The court said their ruling was consistent with the majority of other states where the issue has arisen, and declined to follow a Massachusetts ruling that found marijuana does not provide probable cause for a vehicle search.

"Unless law enforcement officers were trained to detect by odor alone the difference between less than 10 grams of marijuana and 10 grams or more of marijuana, law enforcement officers would not be able to conduct warrantless searches of vehicles," the court wrote. "This would permit a myriad of crimes to go undetected."

jfenton@baltsun.com

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