Maryland: Marijuana Odor Insufficient Cause for a Warrantless Search

Baltimore, MD: Police may not rely on the odor of marijuana as a justification to perform a warrantless search of a person or to make an arrest, according to a unanimous decision issued last week by the state’s highest court.

The court opined: “The Fourth Amendment’s protection against unreasonable searches and seizures prohibits law enforcement officers from arresting and searching a person without a warrant based solely upon the odor of marijuana on or about that person. Probable cause to conduct a lawful arrest requires that the arrestee committed a felony or was committing a felony or misdemeanor in a law enforcement officer’s presence. Possession of less than ten grams of marijuana is a civil offense, not a felony or a misdemeanor [in the state of Maryland], therefore law enforcement officers need probable cause to believe the arrestee is in possession of a criminal amount of marijuana to conduct a lawful arrest. The odor of marijuana alone does not indicate the quantity, if any, of marijuana in someone’s possession.”

The ruling reverses a lower court ruling that had held the search to be lawful. The ruling does not overturn prior case law in the state upholding some searches of a person’s vehicle based on the smell of cannabis.

Courts in various other states, including Colorado, Massachusetts, and Vermont, have also issued opinions limiting the ability of an officer to conduct a warrantless search following statewide changes in the legal status of cannabis possession.

The case is Lewis v. Maryland.

For more information, contact NORML Legal Counsel Keith Stroup. Additional information is available in the paper, “In the age of decriminalization, is the odor of marijuana enough to justify a warrantless search?”