Maryland High Court: Cannabis Odor Not Enough to Search a Person

Maryland’s Court of Appeals has unanimously ruled that law enforcement officers in the state cannot make an arrest based on the odor of cannabis alone, the Baltimore Sun reports. The ruling, though, does not prevent officers from searching a vehicle based on the odor of cannabis. State case law says there is a reduced expectation of privacy in a motor vehicle and the court’s recent opinion does not challenge that law.

“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,” Chief Judge Mary Ellen Barbera in the ruling.

Barbara wrote that there is “a heightened expectation of privacy enjoyed in one’s person” that “do not attend the search of a vehicle.”

“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,” she wrote in the opinion.

The ruling also requires a “probable cause” search based on cannabis odor to require police to “possess information indicating possession of a criminal amount” of cannabis since it is decriminalized throughout the state.

The ruling comes in the case of Rasherd Lewis, who police said in on Feb. 1, 2017 fit the description of a man in a tip about an armed person and was followed by police into a store.

Inside the store, officers said Lewis walked past “emitting” the smell of cannabis, and Lewis was handcuffed and searched based on the smell. During the search, police found a handgun inside a bag strapped to his chest and a small amount of cannabis in his pocket.

The Baltimore State’s Attorney’s Office argued that “the odor of marijuana” provided the officer with probable cause to arrest and search Lewis because any amount of cannabis is contraband, despite the 10-gram threshold for decriminalized possession.

Lewis was convicted of possessing a handgun and sentenced to three years in prison. The ruling sends the case back to Baltimore City court with instructions that prosecutors cannot use the evidence of the search that found the weapon. Lewis’ sentence and conviction will likely be vacated due to the ruling.