Is Marijuana Decriminalization Intended to Reduce or Facilitate Intrusive Searches? MD High Court says Cops Can't Stop & Search Based on the Odor of Weed, Reversing Black Man's Conviction

Odor-based pot arrests are unconstitutional. Police officers lack probable cause to arrest and search someone for marijuana possession simply for smelling of the drug, because possession of less than 10 grams of marijuana is not a crime in Maryland, the state’s top court unanimously ruled Monday in a 7-0 decision. According to the decision:

“Rasherd Lewis, Petitioner, was convicted in the Circuit Court for Baltimore City of wearing, carrying, or transporting a handgun upon the court’s finding him guilty of that charge based on an agreed statement of facts. That proceeding followed a hearing on Petitioner’s motion to suppress a handgun, marijuana, cash, and plastic baggies that the police seized during a search of him at a convenience store in downtown Baltimore City on February 1, 2017.
The Suppression Hearing

Baltimore City Police Officer David Burch, Jr., was the sole witness to testify at the suppression hearing, after being accepted as an expert in the identification and packaging of marijuana. The court, having credited the testimony of Officer Burch, denied Petitioner’s motion to suppress the items seized during the search. We summarize Officer Burch’s testimony, viewed in the light most favorable to the prevailing party, here, the State.

On February 1, 2017, Officer Burch received a tip about a potentially armed individual in the 400 block of West Saratoga Street in Baltimore City. The tipster was not a confidential informant but someone whom Officer Burch described as having provided reliable information to him for “a little less than a month” before the incident at issue in the present case. Officer Burch conveyed the tip and a description of the individual to CitiWatch, which monitors Baltimore City’s surveillance cameras. The CitiWatch Operator reported back that an individual matching the description given by Officer Burch—later identified as Petitioner—was observed on a surveillance camera entering the Bag Mart, a convenience store located at 401 West Saratoga Street. Officer Burch was familiar with that store, as it was in a “high crime area” and known to him as an “open air drug market” where marijuana was often distributed both inside and in front of the store. He previously made controlled dangerous substance and handgun arrests at the location.

Officer Burch and five other officers responded to the Bag Mart. The store is small. As he and the other officers were entering, Officer Burch saw that the store was “fairly crowded” and smelled of the odor of marijuana. Officer Burch spotted Petitioner move from a position near the cash register and follow others who were heading toward the exit. Petitioner had a red bag strapped across his chest, was walking normally, and appeared to be calm.

As Petitioner passed “literally right in front of” Officer Burch, the officer smelled “the odor of marijuana emitting from [Petitioner’s] person.” By that time, the officers had asked the other patrons to exit the store, leaving only the store’s owner, Petitioner, and the six police officers.

Officer Burch testified that he reached out and “stopped” Petitioner based on “the odor of marijuana and the information [he] received to further investigate.”1 Officer Burch described the stop. While standing “face to face” with Petitioner, he used his right hand to grab Petitioner’s right hand and his left hand to grab Petitioner’s left shoulder. The other five officers surrounded Petitioner, with Officer Curtis situated directly behind Petitioner.

Officers Burch and Curtis were wearing department-issued body worn cameras. Footage from each of the cameras was entered into evidence at the suppression hearing. Officer Burch testified that he turned on his camera when he came into direct contact with Petitioner. Officer Burch acknowledged, however, that for about thirty seconds the camera

was “buffering.” As best we can discern from the record, during that time, Officer Burch directed Petitioner to raise his hands and Petitioner complied. When Petitioner began to lower his hands, Officer Curtis, at Officer Burch’s direction, grabbed one then presumably the other of Petitioner’s arms and handcuffed Petitioner. Officer Curtis’s camera recorded Officer Burch advising Petitioner to calm down as Officer Curtis handcuffed him.

Once Petitioner was handcuffed, Officer Burch undertook a full search of Petitioner. He first searched the red bag and found a handgun inside. Then, as he searched Petitioner’s pockets and waistband, Petitioner advised that he was carrying a small amount of marijuana. Officer Burch found that quantity of marijuana in a sealed, one-inch plastic baggie in one of Petitioner’s pockets.2

Petitioner, through counsel, advanced two theories to support his motion to suppress the fruits of the search. He argued first that, pursuant to Terry v. Ohio, 392 U.S. 1 (1968), the police did not possess the requisite reasonable suspicion to “stop” Petitioner at the outset of the encounter.3 Independent of that argument, Petitioner contended that the full search of Petitioner and the bag he carried was unlawful because at the time the search was undertaken, the police lacked probable cause to believe he had committed a felony or was committing a felony or misdemeanor in their presence.

Specific to the probable cause argument, Petitioner argued that the search incident to arrest exception—the justification propounded by the State—did not justify a full-scale search because no probable cause existed to arrest him. Petitioner noted that someone in possession of less than ten grams of marijuana may be issued a civil citation but cannot be arrested, therefore no lawful arrest occurred. The State responded that the odor of marijuana provided Officer Burch with probable cause to arrest and search Petitioner because marijuana in any amount is contraband, and although possession of less than ten grams of marijuana was decriminalized, “it was never the legislature’s intention to reclassify marijuana as not being contraband.”

The suppression court determined that the tip that caused Officer Burch and his five fellow officers to respond to the Bag Mart lacked sufficient reliability to justify the initial stop of Petitioner. In making that determination, the court quoted Florida v. J.L., 529 U.S. 266, 272 (2000), which states that reasonable suspicion “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Given the lack of sufficient indicia of reliability, the court granted Petitioner’s motion to suppress evidence of the tip.

The suppression court credited Officer Burch’s testimony that he smelled the odor of marijuana on Petitioner’s breath and body as soon as he and Petitioner were “face to face.” Based on that finding, the court ruled that the odor of marijuana gave police probable cause to arrest Petitioner and, incident to such arrest, conduct a full search of his person. In making that ruling, the court relied on Robinson v. State, 451 Md. 94 (2017), which we

noted at the outset of this opinion involved the automobile exception, not the search incident to arrest exception, to the Fourth Amendment’s warrant requirement.

Extrapolating upon the reasoning of Robinson, the suppression court concluded: “[I]t would appear that the odor of marijuana emanating from a person provides probable cause to believe that that person contains evidence of a crime[; consequently,] a police officer may search that person under such circumstances.” Based on that ruling, the court denied the defense’s motion to suppress the handgun found during the search of Petitioner.4 Subsequent Procedural History

Petitioner pleaded not guilty on an agreed statement of facts to the charge of wearing, carrying, or transporting a handgun. After the State’s presentation of the agreed- upon facts, the circuit court found Petitioner guilty of the handgun charge and sentenced him to three years’ incarceration with all but ninety days suspended and three years’ supervised probation.”

Ruling on the case the court stated,

“For the reasons that follow, we agree with Petitioner that Robinson does not control the outcome of this case. Instead, it is Pacheco, decided after the Court of Special Appeals issued its opinion in the case at bar, that dictates the outcome here. We hold that more than the odor of marijuana is required for probable cause to arrest a person and conduct a search incident thereto. We therefore further hold that Petitioner was entitled to suppression of the handgun and other items seized during the search because Officer Burch, at the time he undertook the search of Petitioner that produced the seized items, did not have probable cause to believe that Petitioner had committed a felony or was committing a felony or misdemeanor. “ [MORE]