Merely claiming to smell cannabis on a suspect is no longer enough for Maryland police to make an arrest and conduct a warrantless search, a state appeals court has ruled. Advocates for drug policy reform and racial justice see the opinion as a major win for the movements to end the war on drug users and to defend Black lives.
On July 27, a judge for the Appeals Court of Maryland filed an opinion finding a Baltimore City Police officer to have lacked adequate probable cause, meaning the constitutionally required reasonable grounds, for the 2017 warrantless search of appellant Rasherd Lewis, who allegedly smelled of marijuana.
While investigating a tip, the Baltimore cop, David Burch, grabbed Lewis by the arm, placing cuffs on his wrists, in a corner store due to the cannabis odor. The officer proceeded to conduct a body search, through which he discovered a baggie of weed and a handgun, among other things. Lewis sought to have the evidence suppressed, working his way through Baltimore’s Suppression Court, Special Appeals Court, and then finally Maryland’s Appeals Court.
The latter ruled in Lewis’ favor, stating that the given “probable cause” was invalid and that he is entitled to the suppression of the handgun as evidence against him in criminal court. The rejection of cannabis odor as probable cause was made possible by 2014 Maryland small-quantity decriminalization and its previous ruling in Pacheco v. State, where the judge found that probable cause for a vehicle search had been in fact given by cannabis odor, though it did not extend to the officers making an arrest.
Some advocates and medical providers took to Twitter to hail it as a big step forward.
This is actually a really big deal. https://t.co/60fYGh5qb3
— Sheila Vakharia PhD MSW (@MyHarmReduction) July 28, 2020
This is good news for Black and Brown patients who use medical cannabis. https://t.co/SdC1yjZDGU
— Danielle Doyle, MD (@PainGuruDC) July 28, 2020
Others noted its limitations. For one, the ruling prohibiting cannabis odor alone as probable cause seems to only apply to body searches, and not those of vehicles. “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,” wrote the judge. “[T]he same concerns do not attend the search of a vehicle.”
In light of this, the fight is far from over. The broad language used by the judge could provide a window of opportunity for defendants who experienced a vehicle search, as independent Baltimore-based journalist Justine Barron notes. “Judges may push back, until the next ruling, but a good MD lawyer should be able to at least use this finding to fight searches of your car based on smell of MJ alone,” wrote Barron on July 28.
So to amend the original point: smell is not PC for warrantless search. It might be for DWI/other. And whether or not this applies to searches of cars will prolly be tested. It seems like the "car exemption" is holding on by a thin strand…
— Justine Barron (@jewstein3000) July 28, 2020
Some Twitter users expressed concern about racist policing of Black people, despite the illegality of certain practices. Cops frequently and disproportionately exercise unconstitutional uses of force against people of color. The notorious stop-and-frisk practices of the New York Police Department persist in Baltimore despite being ruled unconstitutional in 2013.
Cops gon break the rule anyway this means nothing no offense https://t.co/X3zaqLG2QF
— (@Jayy_Green) July 28, 2020
okay but how does this apply to black ppl cause… https://t.co/BDLMRfUwue
— ??? aka bill (@moshpitemotions) July 28, 2020
*This article was originally published by Filter, an online magazine covering drug use, drug policy and human rights through a harm reduction lens. Follow Filter on Facebook or Twitter, or sign up for its newsletter.