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Marijuana possession now a fine, but prosecutors see complications

The Baltimore Sun

Starting Wednesday, you can no longer be arrested in Maryland for possessing a small amount of marijuana. But how the rest of that interaction with police plays out might depend on what jurisdiction you're in.

Lawmakers did not legalize marijuana, but made possession of less than 10 grams an offense that results in a $100 ticket for a first infraction. That means that thousands of cases each year will no longer lead to a criminal record.

In Montgomery County, you can avoid arrest even for an amount far exceeding 10 grams, if police deem your stash to be for personal use only. In Baltimore County, prosecutors are advising police against searching pockets or vehicles if they believe the person is holding an amount below the decriminalized threshold. And while possessing marijuana paraphernalia remains illegal, Baltimore police won't be charging people over it anymore.

Maryland prosecutors, who as a group opposed the decriminalization law, say the bill is rife with unanswered questions, some of which won't be settled until the issues reach appellate courts more than a year from now.

"This has opened up this huge can of worms, and these issues are being discussed in every police department and state's attorney's office across the state," said Baltimore County State's Attorney Scott Shellenberger.

Del. Keiffer J. Mitchell Jr., a Baltimore Democrat, said one of the goals of the bill is to reduce racial disparities in marijuana arrests.

"The reality is African-Americans who are arrested with small amounts of marijuana were disproportionately affected by these arrests and prosecutions," Mitchell said. "You won't see the real effects of this legislation until five, 10 years down the road, as it relates to the disparities of criminal convictions."

Anne Arundel County police and the Maryland State Police say they have been training officers to determine the difference between amounts of marijuana that should trigger an arrest and amounts that should be let go with a citation. There are no plans for officers to carry scales, but they could take drugs back to police stations to weigh them, a state police spokesman said.

"We've been giving [officers] visuals on what 10 grams of marijuana looks like, feels like, so they can understand it a bit more," said Anne Arundel Lt. T.J. Smith. "It's a huge shift, but it won't change tactics as much as people think."

Prosecutors see more complications. The law carries increased penalties for people caught with less than 10 grams more than once. But people stopped for a citation don't have to show identification, and the law doesn't allow police to track offenses, so they won't know whether someone is on their first, second or 10th citation.

"They're left without a mechanism to really enforce it," said Frederick County State's Attorney J. Charles Smith, the head of the Maryland state's attorneys association. "People can give false names and false addresses, and what's to be done?"

The legality of smoking in public is unresolved, and the legislature hasn't taken up the issue of drugged driving, Smith said.

Mitchell said "there probably are" issues that need to be resolved, "but there is discretion among the prosecutors' offices."

The broadest use of that discretion may be in Montgomery County, where State's Attorney John McCarthy said authorities have taken a progressive view of marijuana for two decades. People arrested for marijuana possession there have long been steered toward diversionary programs.

McCarthy, who supported decriminalization, said he was disappointed that the new law no longer allows prosecutors to divert people found with 10 grams or less to educational programs and is also concerned about drugged driving.

But taking a cue from what he believes was the legislature's intent, McCarthy has decided that Montgomery County authorities will now treat all possession cases, even those well above 10 grams, as a civil citation offense.

"No one will be charged criminally for simple possession, regardless of quantity," McCarthy said in an interview.

McCarthy said people still will be arrested if there is evidence that they planned to distribute marijuana — he says tally sheets, baggies, and scales will trigger such action. He also said that county authorities will have "zero tolerance" for possession on school property, and that people suspected of additional crimes or weapons possession will still be charged.

That approach means that personal use of marijuana has effectively been decriminalized in Montgomery County.

"We're not legalizing it — we're broadening it out," McCarthy said. "We're trying to be more logical. I think the legislature arbitrarily came up with a weight."

He said law enforcement resources would be better directed toward "an explosion of heroin overdoses and deaths."

"Quite candidly, that's where we should be focusing our efforts" he said. "Our focus should be on the drugs costing us the lives of loved ones."

McCarthy said he's instructing police to "proceed exactly the same" as they have been when conducting searches.

The Maryland attorney general's office has opined that the odor of marijuana may still be used as a basis to search a vehicle. Police say the amount in the vehicle can't be known until a search is conducted.

But some prosecutors aren't so sure. Appellate courts in Massachusetts and on the West Coast have reached different opinions on that topic, they say.

"We would base it on the specific facts of the case," said Elizabeth Embry, a deputy state's attorney in Baltimore. "It's a new consideration. … It's not an easy question."

Shellenberger said the rules concerning car searches should depend on the circumstances. Smoke billowing out of a car window creates probable cause to search a car, he said. But if an officer knows that an individual has 10 grams or less, officers "do not have a right to do a search" of his or her pockets or vehicle.

"It comes down to knowledge," Shellenberger said. "If you know they have 10 grams or less, you can't go further. If you don't know the answer to that question, then I believe you can go further."

That's a major change for authorities who have relied on illegal drugs, even in minor amounts, to gain authority for searches.

Supporters of decriminalization have said that approach allowed officers to apply the laws disproportionately.

Not in dispute is that authorities will see a reduction in their caseloads.

Embry said prosecutors in Baltimore are expecting to see more than 6,000 cases lifted from their dockets.

Under State's Attorney Gregg Bernstein, city prosecutors were already de-prioritizing such arrests, she said, and the new law will aid in that effort.

City prosecutors will continue to handle citations involving juveniles, while the city law department or Police Department legal affairs are expected to oversee police-issued citations for adults on a docket at the North Avenue courthouse.

Neill Franklin, the former Maryland state trooper who is now executive director of Law Enforcement Against Prohibition, said decriminalization will "free up law enforcement officials' time and allow them to focus on more pressing issues."

But he said legalization is the next, necessary step.

"Until we fully legalize and regular marijuana, sales will continue to be conducted by criminals in an underground market," he said. "Until [legalization] happens, we are not going to see the public safety benefits that are possible in a post-prohibition world."

jfenton@baltsun.com

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