"BUSTED” – ON ODOR OF WEED! - LEWIS V. STATE
Now the police in Maryland can arrest a person merely for smelling like marijuana and handcuff and conduct a full custodial search that person incident to that arrest.
The odor of marijuana, detected by a trained and qualified police officer, has always been held to provide probable cause to search a vehicle.
In Lewis v. State, (No. 1115, CSA, decided June 28, 2018) the Maryland Court of Special Appeals held, in a 2-1 decision, that that same odor can now justify the custodial arrest of a person if the police officer can testify that the odor was detected coming from a person’s body or breath. Neither the fact that Maryland has decriminalized the possession of less than ten grams of marijuana nor the fact that a person might have a medical marijuana card would make legal the possession of a quantity of marijuana makes any difference.
The Lewis opinion stated that “[w]e hold, consistent with authority in other jurisdictions, that the odor of marijuana, if localized to a particular person, provides probable cause to arrest that person for the crime of possession of marijuana” and it further held that the police can then, incident to that arrest, search that person.
Lewis was suspected of possessing a weapon. The trial court and the appellate court both agreed that the information in the possession of the police was not sufficient to justify a frisk or search of Lewis to determine if he was armed. However, where the police officer testified that when he was “literally right in front of [Lewis]” that he “smelled an odor of marijuana emitting from [Lewis’] person” and further testified that the odor “could have been from his breath when I was speaking with him or his person” that fact was sufficient to justify the arrest of Lewis for possession of marijuana.
This is the third in a series of recent cases where the Maryland appellate courts have addressed the question as to what police action is justified where a police officer detects the odor of marijuana coming from a vehicle or a person.
In Robinson v. State, 451 Md. 94 (2017) the Maryland Court of Appeals held that despite the decriminalization of possession of less than ten grams of marijuana, the odor of marijuana “remains evidence of a crime” and provides probable cause to search a vehicle because the odor of marijuana “may be just as indicative of crimes such as the possession of more than ten grams of marijuana, [or] possession of marijuana with the intent to distribute. . . as it is of possession of less than ten grams of marijuana,” and it is “unreasonable to expect law enforcement to determine, based upon odor alone, the difference between 9.99 grams or less of marijuana and 10 grams of marijuana.”
The Lewis court does caution that its holding should not be read to suggest that a general odor of marijuana in a certain location provides probable cause to arrest a person in the area under such circumstances where the odor could not be tied to a particular person.
In Norman v. State, 452 Md 373 (2017) the Court of Appeals held that the odor of marijuana alone emanating from a vehicle did not give rise to reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous and subject to a frisk. Norman was a front seat passenger in the vehicle and there was no information specific to Norman that would have justified a frisk of his person.
Lewis was decided on a 2-1 vote. Judge Arthur, who concurred in the opinion affirming the conviction did so noting that he only did so because he believed he was bound by the Court of Appeals decision in Robinson and that “[i]f [Judge Arthur] were writing on a blank slate, [he] would reverse the conviction.” Judge Arthur, noting that he was bound by the trial court’s finding crediting the arresting officer’s testimony that the arrest was based upon his detecting the odor of marijuana coming from Lewis’ person, strongly suggested that he was highly skeptical of that finding.
It is worth quoting directly from Judge Arthur’s concurring opinion as to why he believes the decision in Lewis will “result in injustice.” Judge Arthur cautioned:
“It is undeniable that the decision in this case will result in injustice. If a person has the odor of burnt marijuana on his breath, it is likely that he recently had temporary possession of at least a small amount of the substance, but it is nowhere near as likely that he currently possesses any amount of it, much less an amount that would subject him to criminal penalties. Yet, under the decision in this case, he is subject to the indignity of an arrest and a search incident to an arrest. Worse yet, if the search turns up nothing, he has no civil remedy, because the officers will not have violated his civil rights – the mere odor of marijuana on his person or breath gave them the right to arrest and search him.
Furthermore, if the mere odor of burnt marijuana on a citizen’s breath gives the police probable cause to make an arrest, it would seem to follow that the odor of marijuana smoke on a person’s clothes or hair would give probable cause as well. so, it is not difficult to imagine scenarios in which police officers would have probable cause to arrest and search someone whose only exposure to marijuana is from second-hand smoke – e.g., someone who was standing inside a bus enclosure in the rain while others smoked marijuana; someone whose family members or housemates smoke marijuana; someone who borrowed a piece of clothing or outerwear from an acquaintance who smokes marijuana; someone who just came from a concert at which members of the audience were smoking marijuana; etc. In fact, the officers would have probable cause to arrest and search someone who got off a bus or subway train in Maryland after smoking marijuana in the District of Columbia, where the private use and possession of up to two ounces has been legalized (and not merely decriminalized).”
Judge Arthur continued in his opinion noting that “[t]he facts of this case suggest that our conclusion will not only result in injustices but may encourage overreaching or abuse.”
Judge Arthur concluded his concurring opinion observing that “…it is difficult to square the result in this case with the medical-marijuana regime that Maryland has now put in place. If a patient has the odor of marijuana on her person or breath because she recently smoked some marijuana that was grown by a state licensed grower and purchased at state-licensed dispensary at the recommendation of a state-regulated healthcare provider, this opinion establishes that the police have probable cause to arrest and search her. It is small solace that, according to the State, the officers are supposed to allow the patient to go free, as long as she remembered to carry her identification card from the Maryland Medical Cannabis Commission.”
Judge Nazarian offered a dissenting opinion in Lewis and expressed his concern and agreement with Judge Arthur about “the real-life consequences of a holding that police have probable cause to arrest a person, and conduct a full warrantless search incident to that arrest, based solely upon that marijuana order.”
Judge Nazarian disagreed with the majority holding and wrote that he did not believe that the holding in Robinson, which addressed probable cause to search a vehicle based upon the odor of marijuana, compelled the conclusion that the mere odor of marijuana provides probable cause to arrest and search an individual.
What is clear from the Lewis, Robinson and Norman decision is that there no uniformity of opinion amongst Maryland’s appellate court judges as to how to treat the issue of when and how the mere odor of marijuana, in a environment that of decriminalization and legalization of the use of medical marijuana, is to be used to justify police action and avoid the danger of abuses and injustice that may arise from such police conduct .