Maryland’s highest court affirms that police can’t use the smell of marijuana to search and arrest a person

Maryland’s highest court has issued another ruling that limits the ability of police to cite marijuana as a reason to arrest and search people, saying officers may not arrest people based on the smell of marijuana alone.

“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,” the court said in a unanimous ruling authored by Chief Judge Mary Ellen Barbera.


It builds on a ruling last summer by the same court that an officer could not arrest and search someone based on an observation of an amount of marijuana that is fewer than 10 grams, which is within the range that was decriminalized in 2014. In that case, the court ruled that the officer knew the source of the marijuana was below the criminal threshold, and therefore should not have made an arrest and searched for more.

The latest ruling goes further, saying that the smell alone is also not justification to make an arrest.


The state has argued that an odor could be indicative of a larger amount, which gives police probable cause to search for more.

The court agreed in a 2017 ruling related to car searches, and has not changed that conclusion with this latest opinion, which applies to searches of people. Officers can still search vehicles, based on case law that says there is a reduced expectation of privacy in an automobile.

“One of the justifications for the automobile exception is the diminished expectation of privacy one enjoys in his or her vehicle,” the court ruled this week. “In juxtaposition, there is a heightened expectation of privacy enjoyed in one’s person. Arresting and searching a person, without a warrant and based exclusively on the odor of marijuana on that person’s body or breath, is unreasonable and does violence to the fundamental privacy expectation in one’s body; the same concerns do not attend the search of a vehicle.”

David Jaros, a law professor at the University of Baltimore, said the ruling is more “evidence that a mere citation-level of marijuana cannot be leveraged into probable cause to search ... and serves notice on police and state’s attorneys.”

But, he said, “while it seems significant, if you want to change the trajectory of policing and criminalization in terms of how police searches and marijuana are used, we have to confront” the issue of vehicle searches based on the smell of marijuana.

There remains a wide array of tools at the disposal for police to parlay a minor stop into a search, and despite being decriminalized, marijuana has remained a common way for police to stop and search people. Police may stop people based on a traffic violation, say they smell marijuana, and search the vehicle.; such stops are often racially disproportionate.

“It’s a massive impact of not going all the way and fully legalizing marijuana,” Jaros said.

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But the court could be inching closer to addressing those concerns.


“For such a search to be supported by probable cause, the police must possess information indicating possession of a criminal amount of marijuana,” Barbera wrote in this week’s opinion.

The case at the center of this week’s ruling involved a Baltimore man named Rasherd Lewis. Baltimore Police officer David Burch said he received a tip about an armed person in the 400 block of W. Saratoga St. on Feb. 1, 2017, and that a man matching the description of the person was seen entering a store.

Burch and other officers entered the store, and said Lewis walked past him “emitting” the smell of marijuana. Lewis was handcuffed based on the marijuana smell, and searched. Police found a handgun inside a red bag strapped across his chest. A small amount of marijuana was found in his pocket.

The Baltimore State’s Attorney’s Office argued, according to the appeals court, that “the odor of marijuana provided Officer Burch with probable cause to arrest and search Petitioner because marijuana in any amount is contraband, and although possession of less than ten grams of marijuana was decriminalized, ‘it was never the legislature’s intention to reclassify marijuana as not being contraband.‘”

A judge upheld the search, and Lewis was convicted of having a handgun and sentenced to three years in prison with all but 90 days suspended.

The high court’s ruling sends the case back to Baltimore City court, with instructions to grant the motion to suppress the search of Burch which netted the gun, virtually ensuring the conviction and sentencing will be vacated.