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Can Maryland Police Officer Arrest or Search Me if They Smell Marijuana / Cannabis?

The decriminalization of marijuana has led to changes in Maryland search and seizure law.  In 2014, Maryland reclassified the possession of less than 10 grams of marijuana from a crime to a civil infraction. Possession of more than 10 grams, remains a crime. Longstanding precedent holds that police may conduct a warrantless search a person incident to their lawful arrest, and may arrest a person if they have probable to believe that person committed a felony, or if that unfortunate person actually commits a misdemeanor in their presence. Moreover, if the police have probable cause to believe a vehicle contains contraband or evidence of a crime, they may likewise conduct a warrantless search of that vehicle. If you’ve been arrested, it’s vital that you understand the application of those longstanding rules in the context of marijuana.

Police May Search a Vehicle Without Getting a Warrant if They Smell Marijuana.

“[A] law enforcement officer has probable cause to search a vehicle where the law enforcement officer detects an odor of marijuana emanating from the vehicle, as marijuana in any amount remains contraband, notwithstanding the decriminalization of possession of less than ten grams of marijuana; and the odor of marijuana gives rise to probable cause to believe that the vehicle contains contraband or evidence of a crime.” Robinson v. State, 451 Md. 94 (2017). It does not necessarily follow that the police may also search the person of the driver or passengers based on detecting that same odor.

Police May Not Search Your Person Based Only on a Smell of Marijuana.

The police must get a warrant, or satisfy one of the exceptions to the warrant requirement, before conducting a search of your person. One such exception permits a warrantless search if a person is lawfully arrested. As explained below, the odor of marijuana is not a sufficient basis to arrest and individual. Another exception to the warrant requirement allows a limited “frisk” for weapons based on a reasonable expectation that the individual is armed. This is not the same as a search for contraband. The odor of marijuana does not give police a justification to search you.

Police May Not Arrest A You Based Only on a Smell of Marijuana.

"In order to lawfully arrest someone for possession of marijuana, the law enforcement officer must have probable cause to believe the arrestee possesses a criminal amount of marijuana, i.e., ten grams or more. A law enforcement officer cannot determine by the odor of marijuana alone the quantity of marijuana, if any, someone possesses. Therefore, the mere odor of marijuana does not create probable cause to believe an arrestee possesses a criminal amount of that substance.” Rasherd Lewis v. State of Maryland, No. 44, September Term, 2019.

Police May Not Arrest You if They Smell Marijuana and See Only a Joint.

"[T]he mere odor of marijuana coupled with possession of what is clearly less than ten grams of marijuana, absent other circumstances, does not grant officers probable cause to effectuate an arrest and conduct a search incident thereto. Michael Pacheco v. State of Maryland, No. 17, September Term, 2018, — Md. —, 2019 WL 3773773 (Aug. 12, 2019).

If the state has brought charges against you: contact me. The most important thing you can do at this point is to act quickly, and effectively, to protect your interests. 

Text Me: (410) 835-4272
Eric T Kirk
Attorney

After graduating with honors from Albany Law School in New York, Eric Kirk has spent most of his 25 year legal career battling insurance companies to secure fair and just compensation for his clients in Maryland, New York, and Florida.

410-657-5962