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Recently-passed legislation decriminalizing marijuana paraphernalia as well as smoking it in public may set the stage for a Fourth Amendment battle if Gov. Larry Hogan signs the measure into law.

The law follows on the heels of 2014's decriminalization of possession of less than 10 grams of marijuana and would also decriminalize use and possession of marijuana paraphernalia.

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With the last remaining criminal element of small quantities of marijuana eliminated, law enforcement and prosecutors are left wondering whether the odor of marijuana will be sufficient probable cause to search individuals and vehicles.

"We're putting our officers in a position where it's very unclear," Carroll County State's Attorney Brian DeLeonardo said.

Under current law, the odor of raw or burned marijuana is a factor which can give police probable cause to search a person or a vehicle. Now, DeLeonardo said, the odor doesn't necessarily mean criminal activity is occurring because the marijuana could be less than 10 grams and the paraphernalia won't be illegal.

Police are obliged to show they have probable cause prior to beginning a search so as to protect the right to be free from unreasonable searches and seizures, guaranteed in the Constitution's Fourth Amendment. Probable cause — a reasonable basis for believing evidence of a crime is present — is required to conduct a search unless the person consents to the search.

DeLeonardo said he is prepared to argue marijuana is still contraband and the odor of marijuana could still indicate a crime, but he said defense attorneys will argue these searches are invalid.

Samuel Nalli, a defense attorney based in Columbia, said he will definitely argue that the change in the law prohibits searches based on a suspicion that marijuana alone is present.

"I would argue that a probable cause search because of an odor of marijuana is not valid anymore," he said.

In preparation for these arguments, DeLeonardo said he will most likely instruct police to look for other suspicious circumstances to show probable cause of a crime and more than just the odor of marijuana.

Use of drug-sniffing dogs may also come into question because dogs are trained to detect an array of controlled dangerous substances, not just marijuana. A positive dog alert to a person or vehicle could be the result of an offense that isn't of a criminal nature.

"The dog could be alerting to heroin, but we can't say that [in court]," DeLeonardo said. "It's not like the dog will lift the left leg for marijuana and the right leg for heroin."

Nalli said because the dog cannot detect quantity, only presence, a positive alert cannot give police cause to search.

"I'm looking forward to a case that comes up that way," Nalli said.

DeLeonardo said he and other prosecutors will be looking for a "test case" once the law kicks in: one that encapsulates the issues and can be brought before the Court of Appeals to settle the matter.

Jurisdictions that have faced these questions are split on the issue, DeLeonardo said, and it will take a case reaching the state's highest court to settle the matter.

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Logical next step

DeLeonardo said the State's Attorney's Association, which is opposed to the decriminalization and legalization of marijuana, supported decriminalizing paraphernalia because it made no sense for the bag or rolling paper found in a case involving a non-criminal amount of marijuana to be against the law.

Sen. Justin Ready, R-District 5, echoed this sentiment, saying he voted for the law because it wasn't logical for paraphernalia to remain illegal. The law closes a loophole left from last year's law, according to Ready. He said he didn't vote for last year's decriminalization law and opposes decriminalization and marijuana.

"The thing I want to do is have law that make sense," he said.

DeLeonardo said when he took office he instructed law enforcement to fall in line with the statewide trend of writing civil citations for possession of less than 10 grams of marijuana and ignoring the paraphernalia even though it remained illegal. The logic behind the move was to follow the spirit of the law and in expectation that lawmakers would soon pass a law decriminalizing paraphernalia as well.

Other questions

Despite supporting the law overall, DeLeonardo said the State's Attorney's Association has sent a letter to Hogan asking him not to sign the bill into law because it fails to criminalize smoking marijuana in public or in a car.

The most police could do under the new law would be to issue a citation carrying a fine of up to $500 to a person smoking marijuana in a public place, which is not clearly defined, according to DeLeonardo.

Driving while impaired by drugs remains illegal, DeLeonardo said, but driving while smoking marijuana will no longer be a criminal offense.

Ready said some members of the Senate realized too late the version of the law they passed left smoking in public and in cars non-criminal acts.

"Obviously it doesn't make sense to smoke in cars," Ready said, adding that he will seek to introduce legislation next year to make it a crime.

Ready advocated for treating marijuana like alcohol and criminalizing public consumption in the same way, mirroring open container laws.

DeLeonardo said not making it a criminal offense to smoke marijuana in public sends mixed messages because marijuana is still a controlled dangerous substance and kids are told not to use, but at the same time police can't arrest an adult using it in the open.

The deadline for final presentment of bills to the governor is May 3. Hogan must sign or veto bills by June 2.

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