The Maryland Court of Appeals Reverses Baltimore Conviction, Holding that Marijuana Smell is Insufficient Probable Cause for Search Incident to Arrest

Last week, on July 27, 2020, the Maryland Court of Appeals issued an opinion in Rasherd Lewis v. State of Maryland (No. 44), holding that the smell of marijuana does not provide a law enforcement officer with probable cause sufficient to make an arrest and conduct a search incident to that arrest. In Lewis, the Maryland Court of Appeals explained that the “search incident to arrest” exception to the Fourth Amendment’s warrant requirement demands that the police have probable cause to believe that the arrestee has committed a felony or attempted to commit a felony or a misdemeanor. Since possession of less than 10 grams of marijuana is a civil infraction, not a felony or a misdemeanor, a law enforcement officer must have probable cause not only to believe the arrestee possesses marijuana, but also that he possesses a criminal amount (more than 10 grams) of marijuana. The Maryland Court of Appeals reasoned that since a law enforcement officer cannot determine the quantity of marijuana-based on its smell, the odor of marijuana alone does not provide sufficient probable cause for an arrest.

This decision in Lewis clarified rules set forth in two of the Court of Appeals’ earlier opinions: Pacheco v. State, 465 Md. 311 (2019), and Robinson v. State, 451 Md. 94 (2017). It relied on and expanded upon the 2019 decision in Pacheco, which had held that the search of Mr. Pacheco’s person was unreasonable because the scope of a search pursuant to the automobile exception could not extend beyond the automobile to places where privacy expectations would be heightened, such as to one’s person. Lewis also distinguished the warrantless search of Mr. Lewis’s person in a convenience store, from the facts of the Court of Appeals’ 2017 decision in Robinson, which, like Pacheco, dealt with the less onerous standard applicable to a search as part of the automobile exception. The Court of Appeals ultimately explained in Lewis, that “arresting and searching a person, without a warrant and based exclusively on the odor of marijuana on that person’s body or breath, is unreasonable and does violence to the fundamental privacy expectation in one’s body; the same concerns do not attend the search of a vehicle.” Since the search of Mr. Lewis was based solely on the odor of marijuana emanating from his person, and under Pacheco, that information on its own, falls short of supplying the requisite probable cause to conduct that search, the Court of Appeals reversed the Court of Special Appeals opinion and vacated Mr. Lewis’s conviction.

The full opinion of the Maryland Court of Appeals in Rasherd Lewis v. State of Maryland can be found at: https://www.courts.state.md.us/data/opinions/coa/2020/44a19.pdf.

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