When the General Assembly passes new laws that affect the criminal statutes, those changes can potentially have wide-ranging effects. As one example, the legislature’s law decriminalizing small (<10 grams) quantities of marijuana has led some to question whether a law enforcement officer can still conduct a warrantless search based upon no more probable cause than the mere perception of the smell of marijuana. While the Court of Special Appeals had generally upheld searches based upon detecting the odor of marijuana, even after the law took effect, the Court of Appeals has taken up the issue, hearing oral arguments on a case contesting the convictions of three men convicted under these circumstances.
In 2014, the General Assembly changed possession of less than 10 grams of marijuana from a criminal offense to a civil one. Under the new law, possession of such small quantities of marijuana was subject to, at most, a $100 fine for a first offense. This alteration in the treatment of small amounts of marijuana had an additional impact. It potentially changed the analysis of a certain percentage of warrantless vehicle searches. Many warrantless vehicle searches result from law enforcement making a valid traffic stop and then, upon approaching the vehicle, detecting the odor of marijuana. These searches were generally legal in the past because the smell, as long as the officer did not violate the driver’s rights in positioning himself to get a whiff, clearly created probable cause of a criminal offense, namely, possession of marijuana.
In challenging convictions that occurred after the new law, many have argued that the mere perception of an odor of marijuana does not automatically give rise to probable cause. Just because the officer can smell marijuana, even if he obtains that sniff in a way that complies with the Fourth Amendment, that still does not automatically mean that the person in the car has committed a crime. The officer could correctly perceive the smell of marijuana, and the amount could be less than 10 grams.
Of the defendants who have pursued this line of reasoning on appeal, their efforts have generally been unsuccessful in the Court of Special Appeals. In three cases from the spring and early summer (Spriggs v. State, Williams v. State, and Robinson v. State), the appeals court concluded each time that the range of things that allow a warrantless search to be reasonable includes not only crimes but also contraband. Even under the new law, small amounts of marijuana are considered contraband and are subject to seizure and forfeiture. As a result, even if the defendant possessed less than 10 grams of marijuana, the officer’s (or drug dog’s) identification of the smell of marijuana is still enough to make a warrantless search reasonable.
On Dec. 1, 2016, the highest court in Maryland heard arguments on this issue. The case was a combined appeal of the unfavorable rulings against Spriggs, Williams, and Robinson. According to the Baltimore Sun, the attorney for Spriggs reiterated the argument that the Fourth Amendment required that the officer suspect that the accused person had a criminal amount of marijuana. “There must be some kind of information that gives rise to an identified suspicion that there’s a criminal quantity of marijuana,” he argued.
The state argued, as the Court of Special Appeals had declared, that this was not accurate. Warrantless searches do not violate the Fourth Amendment as long as the police have probable cause to suspect that the vehicle contains anything “subject by law to seizure and forfeiture, and marijuana belongs to that class.” Spriggs’ attorney pointed out that the law already carves out exceptions for items subject to seizure and forfeiture that, on their own, do not allow the police to undertake a warrantless search, such as a cigarette that is being smoked by a juvenile. The police can seize the cigarette but, without something additional, cannot search that juvenile.
The high court will likely issue its ruling on this matter sometime next year.
As the laws change, these new creations and modifications have the potential to affect a criminal case brought against you or a loved one. To ensure that you have a strong defense, retain counsel who is current on the latest developments in criminal law. Maryland drug crime attorney Anthony A. Fatemi has the skill and experience to protect your rights. Contact us at 301-519-2801 or via our online form.
More blog posts:
How Ambiguity Regarding a Police Search Can Get Evidence Excluded in a Maryland Criminal Trial, Maryland Criminal Lawyer Blog, Oct. 7, 2016
Maryland Man’s Conviction Overturned Because Police Conducted Illegal ‘Frisk’ Search, Maryland Criminal Lawyer Blog, Sept. 8, 2016