In Robinson, et. al. v State, Nos. 37, 39, & 46, September Term, 2016, decided January 20, 2017 (Watts, J.), the Maryland Court of Appeals, Maryland’s highest court, (the “Court”) held that a law enforcement officer (“officer(s)”) has probable cause to search a vehicle when an officer detects the odor of marijuana emanating from the vehicle, because marijuana in any amount remains “contraband” under Maryland law, notwithstanding decriminalization of possession of less than ten grams of the substance; and the scent of marijuana gives rise to probable cause to believe that the vehicle in question contains contraband or evidence of crime. Consequently, there was probable cause to search the vehicles involved in the appeal, based on the fact that the officers involved in the cases detected the odor of marijuana coming from vehicles which were the subject of “traffic stops” (“stops”).
In 2014, Maryland joined a number of other jurisdictions that have decriminalized, but not legalized, possession of small amounts of marijuana—that is, under the law of these jurisdictions, possession of a small amount of marijuana remains illegal, but is punishable by a fine, not by incarceration. Before October 1, 2014, under Maryland law, possession of less than ten grams of marijuana was a misdemeanor that carried a maximum penalty of ninety days of incarceration and a fine of $500. As of October 1, 2014, under Maryland law, possession of less than ten grams of marijuana became “a civil offense” that is punishable by participation in a drug education program, an assessment for substance abuse disorder, possible substance abuse treatment, and a fine, the amount of which depends on whether the violation is a first, second, or subsequent violation of the statute.
The defendants/petitioners argued that because of this “decriminalization”, officers had no right to search the vehicles involved in the stops. In each case, the officers involved in the stops testified that the odor of marijuana emanating from the vehicles was strong. The Court noted that the cases were ones of “first impression” in Maryland.
The petitioners made the following points:
- Because the General Assembly made possession of less than ten grams of marijuana a civil offense that is punishable by a fine, an officer may not conduct a warrantless search of a vehicle based only on the odor of marijuana.
- The odor of marijuana alone does not constitute probable cause that a vehicle contains more than ten grams of marijuana because the odor of marijuana indicates only its presence, not its amount.
- Officers could not conduct warrantless searches of their vehicles because a search warrant cannot be issued for civil offenses.
- A warrantless search is permissible only where reasonable.
- Carroll v. United States, 267 U.S. 132 (1925) and other cases do not answer the question of whether it is reasonable for an officer to search for items, the possession of which is not criminal.
- Whether a search is reasonable does not depend on the Maryland General Assembly’s intent in decriminalizing possession of a small amount of marijuana. Or, if relevant, the General Assembly’s intent was to limit the enforcement of laws related to the possession of marijuana, including laws related to searches.
The State of Maryland responded with the following assertions:
- The decriminalization of possession of less than ten grams of marijuana does not affect existing case law that permits a warrantless search of a vehicle based on the odor of marijuana.
- The “Carroll doctrine”, based on the case mentioned above, permits the warrantless search of a vehicle based on probable cause to believe that the vehicle contains contraband or evidence of a crime.
- “Contraband” and “evidence of a crime” are not synonymous, as “contraband” includes anything that is unlawful to possess, regardless of whether possession is criminal.
- Despite the decriminalization of possession of less than ten grams of marijuana, marijuana remains contraband, which is subject to seizure, and that the odor of marijuana coming from a vehicle gives rise to probable cause to believe evidence of crime may be found in the vehicle.
- Courts in other jurisdictions have applied the “Carroll doctrine” and upheld warrantless searches based on the odor of marijuana.
The Court noted that while it had not yet addressed the impact of the decriminalization of possession of less than ten grams of marijuana on an analysis of probable cause, the Court of Special Appeals (the second highest court in Maryland, “COSA”) had done so. In Bowling v. State, 227 Md. App. at 476, 134 A.3d at 398, (2016) COSA held that the decriminalization of possession of less than ten grams of marijuana did not alter the status of marijuana as contraband in Maryland, and that a narcotics dog’s alert provides probable cause to search a vehicle pursuant to the “Carroll doctrine”.
Carroll was the touchstone for an exception to the requirement that, generally, for a search to be reasonable, an officer must obtain a search warrant. One exception to the warrant requirement is the “automobile exception,” under which an officer may conduct a warrantless search of a vehicle based on probable cause. The automobile exception originates from the decision in Carroll and has been referred to as “the Carroll doctrine.”
In rejecting the arguments of petitioners the Court made the following points:
- Decriminalization is not the same as legalization. Possession of marijuana in any amount remains illegal in Maryland.
- The relevant statutes’ plain language and legislative history support the conclusion that the General Assembly did not intend to preclude a search of a vehicle based on the odor of marijuana.
- In changing the classification of possession of less than ten grams of marijuana from a “misdemeanor” to “a civil offense,” the General Assembly made clear that possession of marijuana in any amount is still illegal. When decriminalizing possession of less than ten grams of marijuana, the General Assembly added language to the law which states that decriminalization “may not be construed to affect the laws relating to . . . seizure and forfeiture.” See 2014 Md. Laws. 1122 (Vol. II, Ch. 158, S.B. 364).
- Under the plain language of the decriminalization statutes, marijuana remains a scheduled substance that is subject to seizure and forfeiture, notwithstanding the circumstance that possession of less than ten grams of marijuana is a civil offense. By definition, if officers may still seize marijuana, then they may still search for marijuana.
The Court, in affirming and upholding COSA’s position on the issue, stated that upon consideration of the Fourth Amendment jurisprudence of the Supreme Court on warrantless searches, Bowling, and decision of courts in other jurisdictions that have addressed the decriminalization or legalization of marijuana, reached the conclusion that an officer has probable cause to search a vehicle when he or she detects an odor of marijuana emanating from the vehicle.
Aidan Smith is an attorney at Pessin Katz Law, P.A. (PK Law). Aidan focuses his practice on general litigation, criminal defense and family law matters. His ability to listen to his clients, assess their issues and concerns and use his knowledge and experience of the criminal and civil judicial systems to help them resolve their situations has been recognized and praised by many of his clients. Aidan can be reached by phone at 410-339-6764 and by email at firstname.lastname@example.org.