Post Decriminalization Search and Seizure

In 2014, Maryland joined a number of other states that have decriminalized marijuana in small amounts up to ten (10) grams. This law, which took effect October 1, 2014, made the possession of less than ten grams of marijuana a “civil offense” that is punishable by fine. The amount of the fine depends on whether the violation is the first, second, or subsequent violation of the new statute. In addition, the court could order the violator to participate in a drug education program, obtain an assessment for substance abuse disorder, and/or obtain possible substance abuse treatment. It is important to note that marijuana remains a crime under Federal law and is classified as a Schedule One drug. Even more importantly, marijuana paraphernalia was not decriminalized in Maryland and it remains a crime to possess paraphernalia such as bongs, bowls, marijuana pens, etc.

The Court of Appeals (COA), which is the highest court in Maryland, just published a new decision in January 2017 that clarifies law enforcement’s ability to search and seize based on the odor of marijuana. This case involved several different defendants appealing the issue of whether, in light of the decriminalization of marijuana in Maryland, a law enforcement officer has probable cause to search a vehicle upon detecting an odor of marijuana emanating from that vehicle. The Fourth Amendment of the United States Constitution prohibits against unreasonable search and seizure by law enforcement. Typically this means law enforcement needs a warrant to search, however, the Supreme Court has created a vehicle exception because of the exigency a vehicle provides. Exigency, or an urgent need to search a vehicle quickly, occurs because a vehicle may be quickly moved from one jurisdiction to another, making it impossible to obtain a warrant. The vehicle exception grants police the ability to search the vehicle when there is probable cause to do so. Probable cause exists where, based on the available facts, a person of reasonable caution would believe that contraband or evidence of a crime is present. The COA held that a law enforcement agent has probable cause to search a vehicle where the law enforcement officer detects an odor of marijuana coming from the vehicle. In other words, the police CAN search a car if they smell marijuana coming from the car even though up to 10 grams of marijuana is decriminalized. The odor of marijuana provides a reasonable basis to believe that there is marijuana in the vehicle in some amount.

The court came to this conclusion for a variety of reasons. The Court of Special Appeals (CSA), which is the intermediary appellate court, found in a 2016 case (Bowling v. State), that decriminalization of possession of less than ten grams DID NOT undermine the principle that the alert of a narcotics dog that is certified to detect marijuana along with other controlled substances constitutes probable cause to search a vehicle. This just means the CSA found that if a drug dogs alerts to marijuana, then the police may still search your vehicle even though up to 10 grams of marijuana is decriminalized. The COA in this recent case clarifies that this is because when the drug dog or the law enforcement officer detects the odor of marijuana there is no way to know if the amount of marijuana is under the 10 gram decriminalization amount. Additionally, it is still illegal to drive while intoxicated and that includes marijuana intoxication. If the police search the vehicle and find less than 10 grams, then the owner of that marijuana would be subject to the “civil penalties” set forth in the decriminalization bill.

The COA further explains the reasons behind their ruling. The court makes very clear that decriminalization is not synonymous with legalization and possession of any amount of marijuana is illegal. It is NOT LEGAL to have possession of up to 10 grams; the decriminalization bill just makes the penalties “civil” instead of criminal. Possession of marijuana in any amount is illegal and still considered contraband in Maryland. The odor of marijuana gives rise to probable cause to believe that the vehicle contains marijuana in some amount which is contraband and illegal. For probable cause to exist, there is no distinction between the significance of a criminal amount of marijuana (more than 10 grams) or the significance of a noncriminal amount of marijuana (less than 10 grams) – but still illegal – amount of marijuana. Thus, law enforcement may search a vehicle if the odor of marijuana is detected coming from the vehicle AND law enforcement may seize the marijuana because it is contraband and illegal in ANY amount. Search and seizure by law enforcement of marijuana IS PERMITTED despite circumstances of possession of less than ten grams of marijuana is decriminalized and is a civil offense. Odor of marijuana is evidence of a crime, regardless of possession of less than 10 grams of marijuana.

The holding of this case by the COA does not impede on the ability of eligible persons to possess and/or use marijuana for medical purposes. During a prosecution for possession or use of marijuana, a defendant may raise an affirmative defense that he or she has a debilitating medical condition that has been diagnosed by a physician with whom the defendant has a bona-fide patient-physician relationship; the medical condition is severe and resistant to conventional medication; and marijuana is likely to provide the defendant with therapeutic or palliative relief from said medical condition. In addition, a defendant that is being prosecuted for possession of marijuana may raise an affirmative defense if he or she is in possession of that marijuana because they are a caretaker for an individual whom the marijuana was intended for medical use. However, a defendant may NOT raise an affirmative defense if either the defendant was using marijuana in a public place or assisting an individual for whom the defendant is a caregiver in using marijuana in a public place or in possession of more than one ounce of marijuana.

Fred Antenberg has been practicing law in Howard County and surrounding counties in Central Maryland for more than 30 years. Call Fred today for a free initial consultation if you have been charged with a drug offense. Call 410-730-4404.