Maryland Court Rules that Smell of Marijuana Is Not Probable Cause

By Ashley Ravid on August 07, 2020

State marijuana laws and policies have substantially changed in recent years, from decriminalization to legalization and everything in between. In Maryland, the latest victory for anti-War on Drugs activists is the state's highest court ruling that the smell of marijuana does not qualify as probable cause to permit a police search.

Mary Jane in Maryland

The Fourth Amendment of the U.S. Constitution protects citizens from unreasonable stops and seizures by law enforcement by instituting the rule of probable cause. This places limits on when and where an officer can arrest or search a citizen without a warrant or extenuating circumstances.

Until recently, law enforcement has been able to use the smell of marijuana to justify searching someone suspected of possessing the substance. Maryland decriminalized the possession of 10 or less grams of cannabis in 2014, and passed legislation in 2012 to establish a medical marijuana program that began operations in 2017.

Because medical use and possession of small amounts of cannabis are not criminal offenses in Maryland, the state's court has now determined that the smell alone is not probable cause for search because not all marijuana use is illegal in the state.

The court stated, "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."

However, the ruling only applies to pedestrians and not to vehicle searches. While some Maryland residents see this as a small step in the right direction, others say that the frustratingly complex and piecemeal state cannabis policies are partly a result of the state not legalizing marijuana entirely.

The Turning Tide of Legalization

While marijuana is still federally illegal under the Controlled Substance Act, many individual states have reformed their own cannabis statutes. As of 2020, 11 states have legalized recreational marijuana for those age 21 and up. Recreational legalization began in 2012 with Washington and Colorado.

A total of 33 states, plus Puerto Rico and D.C., have legalized the use of medical marijuana. This means that approved qualifying adults can purchase marijuana products from state-licensed dispensaries.

Maryland is one of these states. Though there is no current strong legislation pushing for recreational legalization in that state, several other states seem poised to possibly legalize cannabis in the near future: The Smart and Safe Act in Arizona also aims to legalize cannabis and has drawn increasing support over the last few years, and though New York initiatives will likely not go through this year, Governor Cuomo has indicated a possible push for legalization in 2021.

Is the tide turning toward legalization across the country? It's too soon to say for sure, but there is a marked uptick in the number of states loosening their cannabis regulation statutes each year, particularly as discussions over racial discrimination in the prosecution of marijuana cases continue — and as states realize the revenue they can collect by taxing legal cannabis.

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