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Maryland Court Says Smell of Marijuana is No Longer Probable Cause to Arrest

The Maryland Court of Appeals has recently ruled that police officers cannot deem a person’s “smell of marijuana” as probable cause to make an arrest. The legal update should make it more difficult for police officers to stop and arrest people on suspicion of drug charges without convincing evidence that a criminal amount of marijuana is on their person or in their possession.

Why Marijuana Smell Does Not Equal Probable Cause

In Maryland, possessing less than 10 grams of recreational marijuana is not a criminal violation, it is a civil offense. You can be cited for a civil offense, but you cannot be arrested for one. In order to establish probable cause to make an arrest, it has always been that a police officer must have reason to believe the suspect or “arrestee committed a felony or was committing a felony or misdemeanor” in the police officer’s presence.

Smoking any amount of marijuana is likely to make a strong odor that permeates throughout the area. The smoke can cling to people and objects long after marijuana has been used, too. To this end, someone could smoke one gram of marijuana and still smell strongly of the substance for a while afterward.

Given that any amount of marijuana can produce a “marijuana smell,” the Maryland Court of Appeals held that it was unjustified to make an arrest based on the smell alone.

Further Issues with Relying on an Officer’s Nose

Without a probable cause to make an arrest based on marijuana smell, it will also become more difficult for law enforcement officers to lawfully conduct a stop-and-search. There have long been complaints of police officers saying they “smell marijuana” on a person during a traffic stop and using that claim to conduct a full search of their vehicle, possibly ending in an arrest for another type of criminal violation.

The problem with relying on smell to justify a search and arrest is that the smell cannot be reliable proven or unproven later. As mentioned, the odor of marijuana can linger on different surfaces for varying amounts of time. It is possible that a suspect could be arrested based on having the “odor of marijuana” on them that no one else ever smelled, but that suspect would never have a chance to argue their case with tangible evidence, putting them at a serious disadvantage in the criminal justice system.

You can learn more about this important legal update by clicking here and viewing a full article from The Baltimore Sun. You can also click here to see a PDF copy of the Maryland Court of Appeals documents regarding the decision. For legal help following a drug charge arrest in Waldorf that started only because an officer “smelled marijuana” on you, call (301) 265-2220 and connect with the Law Office of James E. Farmer, LLC.


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