COVID-19 Notice: We Are Here Fighting For You. Learn More.

Articles Posted in Marijuana

Published on:

technology-2500010__480-300x200Over the last several years the marijuana policy has greatly evolved in Maryland, and more changes are on the horizon.  From the decriminalization of small amounts of pot to medical cannabis, and even the Baltimore City State’s Attorney’s Office ending prosecution for marijuana possession, the progress has been undeniable.  On the other hand, marijuana continues to be the root of hundreds of criminal prosecutions each year in the state of Maryland, and the majority of these cases begin out on the roads and highways.  There is no easier way for police to make contact with the general public than through traffic stops, and this contact can quickly lead to a criminal investigation based on the smell of marijuana.  With all the changes going on it is important to take a minute to understand what police officers are legally allowed to do on the road, and what they will often do regardless of legality.

Through various rulings in 2019 and 2020 Maryland’s highest court has made it clear that police cannot search a driver or passenger of a vehicle based on the smell of marijuana.  The odor of marijuana or the presence of a small amount of marijuana is not evidence of a crime, and police cannot make a lawful arrest without more incriminating evidence.  Police also are not able to search a person based on the smell or presence of marijuana and then say they were concerned about the presence of a weapon to justify a search.  A search of person requires probable cause to believe that the person is armed or in possession of evidence of a crime.  In addition, police are not permitted to perform the lesser intrusion of a frisk or pat down for weapons unless they have reasonable suspicion that the person is armed.  Reasonable suspicion is a lower level of suspicion than probable cause, but still requires specific facts to indicate the presence of a weapon.

While police now have a far more limited ability to perform frisks and searches of people, they still have the power to perform automobile searches.  Since marijuana is still considered illegal contraband, the odor of marijuana or the presence of a small amount still gives police the authority to search a car under the automobile exception.  Contraband refers to goods that are illegal to possess regardless of whether possession of the goods is a crime.  When lawmakers made possession of less than 10 grams of marijuana a civil infraction, they essentially preserved a police officer’s right to search a car based on the smell of marijuana.  Nine out of ten times when police decide to search a car, they are not doing it solely to find a small amount of pot, and this is why marijuana is such a common cause of roadside arrests.  Searching a car requires time and multiple police units, as an officer cannot search a car and watch its occupants at the same time.  No officer is going to call for backup if he or she believes that the search will only yield a baggie of pot.  To the contrary, police are generally looking for other controlled substances, large amounts of marijuana combined with currency and other evidence of distribution such as scales and empty bags, and finally firearms.  We see dozens of handgun cases each year that begin as simple probable cause searches based on the odor of marijuana, and until marijuana is legalized this law enforcement tactic will continue.  Transporting marijuana of any quantity or smoking in the car essentially give police a free look into a vehicle after any type of lawful traffic stop.  Whether it’s a broken taillight or failing to signal, police do not need more than a primary moving violation or equipment violation to make contact with a potential suspect.

Published on:

joint-200x300Ocean City Police have issued more than 7 times the number of marijuana citations in May and June as they did those same months in 2019, and some local officials are getting concerned.  Last May police officers in Maryland’s only beachfront town wrote a measly 8 civil citations for marijuana possession less than 10 grams, and the number jumped slightly to 41 last June.  This May, Ocean City Police officers wrote 108 pot citations in May and 241 in June.  Marijuana has only been decriminalized for a couple years in Maryland and officers may not have thought it was worth their while to write the citations initially, but still the jump is far too significant to blame it on officers looking the other way.

City officials may attribute the jump to more and more citizens receiving their medical cannabis cards, but this likely is not the full story.  While we will never quite know the percentages of people who only started using marijuana when it became legal in Maryland, we suspect that most medical cannabis card holders used marijuana long before they were able to legally purchase it.  The drastic increase in marijuana citations is likely a result of beachgoers becoming more cavalier about public marijuana use.  OCMD tourists have traditionally been careless/ignorant when it comes to the town’s open container laws (open container of alcohol is punishable by jailtime in Ocean City), and now the word is out that you cannot be arrested for smoking pot in public.  Many tourists are in vacation mode and just not genuinely concerned about receiving a civil citation.  Also, based on last year’s statistics the word may be out that the police have looked the other way when it comes to lighting up around the boardwalk.  The high citation numbers this year may go a long way to changing that narrative, and we could less public consumption and fewer citations being issued to finish off the summer.  Town officials certainly hope this is the case, as they are always trying to preserve the family fun atmosphere around the boardwalk.

In addition to marijuana citations, OCPD has also been busier charging offenders with drug and weapons crimes.  Ocean City officers arrested 40 people each on drug and weapons charges in June of 2019, but this June those numbers jumped to 62 for drug crimes and 73 for weapons crimes.  Overall arrests also increased from 552 to 600 this June compared to last.  It is interesting to note that Ocean City police officers only issued 25 criminal citations.  Maryland allows its sworn law enforcement officers to issue criminal citations in leu of making an arrest, which is beneficial to both the suspect and the criminal justice system.  An arrest triggers a host of events including the time-consuming booking process.  Defendants must then see a District Court Commissioner, who determines the conditions of their bail or release on recognizance.  In addition to being held for a minimum of several hours, suspects who are arrested and booked will have a permanent arrest record that will become part of the FBI database.  These records are not eligible for expungement even if the case is dismissed, which is a huge and avoidable injustice.  The only legitimate reasons to arrest a suspect in leu of issuing a criminal citation would be serious concerns about public safety and the suspect’s ability to return to court.  Many Ocean City Police officers justify an arrest over a criminal citation based on the fact that the defendant does not live locally, and is thus less likely to return to court.  Realistically almost everyone who is charged with a crime in Ocean City during the summer is not an Ocean City resident, so this should not on its own support a decision to arrest.  We can only hope that police begin to think twice about arresting a suspect when they could just write a criminal citation.

Published on:

joint-200x300The 2020 Maryland legislative session came and went without much fanfare, as any news coming out of Annapolis was largely overshadowed by the COVID-19 pandemic.  Still, there were some interesting criminal law developments that came at the tail end of the shortened session.  For the last few years we have published multiple articles covering the state’s evolving marijuana policy.  Lawmakers and prosecutors have taken a firm stance on reducing the number of new marijuana cases in the criminal court system, and their efforts have produced significant results.  We have seen fewer marijuana possession cases each year, and most of the cases end up being resolved in a reasonable manner.  Lawmakers have also made a point to remove the negative stigma that follows anyone with a prior marijuana possession case.

Marijuana will eventually be legal for recreational use in Maryland and the rest of the country, and there is no reason why a person with a marijuana possession conviction should face discrimination from potential employers or the public in general.  Rather than wait until pot is actually legal to erase prior cases from the public record, lawmakers took the position to start this inevitable expungement process this year under House Bill 83.  The bill ordered the Maryland Judiciary to remove any information pertaining to District Court marijuana possession cases that were disposed prior to October 2014, as long as there were no other criminal counts attached to the case.  It seemed like a perfectly logical and just undertaking with little downside, and it passed easily in both the House and the Senate.  In fact, the Senate passed the bill 46-0 and while it seemed the process of erasing thousands of old pot possession cases would start in January of 2021, the governor had other ideas.

The governor vetoed House Bill 83 on May 7, and issued a letter to the leaders of the House and Senate explaining his decision.  The letter basically stated that as direct result of the legislature failing to pass his Violent Firearms Offenders Act a number of other criminal law bills were being vetoed.  This included the seemingly innocuous and remarkably uncontroversial marijuana expungement bill.  The governor did not specifically address his policy reasons for shutting down the bill or any other bills including one designed to preserve the confidentiality of juveniles charged as adults.  The veto was purely a political play; the governor didn’t get his way on one criminal law issue so he denied lawmakers on a few others.  Anyone with a six-year old or older marijuana possession case has to pay the price for a totally unrelated failed gun law.  Fortunately, these defendants will not have to wait long for their cases to be erased, as the General Assembly will almost certainly override the veto.  Defendants with newer marijuana possession convictions will eventually have their cases removed from public view by a similar bill to HB 83, though legalization of recreational use may happen sooner.  A defendant with a conviction for an offense that is no longer a crime under Maryland law is eligible for immediate expungement.

Published on:

thirteen-bags-of-marijuana-found-in-taxi-cabAs the Maryland criminal code continues to evolve with the times there is an increasing need to address the issue of expungement.  Maryland has a fair and user-friendly expungement process, and in most cases, there is no fee to apply.  Lawmakers already did away with the $30 application fee for all criminal cases where there was a dismissal, nolle prosequi, STET or PBJ.  The one problem with the expungement process though is that most lay people do not realize they are eligible to apply.  This is especially true for defendants who were found guilty of offenses that are no longer crimes (such as possession of less than 10 grams of marijuana), defendants with older cases and those who live in other states.  This year the legislature is taking steps to assure uninformed defendants can still reap the benefits of the Maryland expungement process.  Or better stated, to assure uniformed defendants do not continue to suffer collateral consequences such as difficulty finding employment due to prior criminal charges.

There are two bills in Annapolis that are currently up for debate that would establish procedure for the courts to automatically seal or expunge cases without requiring the defendant to apply.  The bill that is currently in the Senate calls for the courts to automatically expunge all older cases involving only the possession of marijuana by October of 2022.  The bill would also require expungement of all new marijuana cases to commence 4 years of the disposition date.  In cases where there are other criminal counts, expungement of the marijuana counts must be completed by October of 2028.  This particular bill has received push back from the Chief Judge of the District Court as well as the Baltimore County State’s Attorney, who have argued that automatic expungement would be too large a burden for the courts and prosecutors to handle.  The expungement process requires an answer from the state and multiple orders to be signed and sent to the various organizations that keep records of criminal cases.  This includes police departments and the district court clerk’s office, who must then file certificates of compliance after the files are destroyed.  Automatic expungement would certainly cause an immense amount of work at one time should this bill become law.

The House of Delegates bill proposes a solution that would require exponentially less paperwork for government offices.  This proposal would require the courts to automatically seal prior marijuana cases from public view after an enumerated time frame.  The process of sealing would be a matter of simply blocking the case from appearing on the popular Maryland Judiciary Case Search web site.  This process is similar to what occurs with older payable traffic citations and civil marijuana citations.  The supporters of the bill argue that the main purpose of preventing prejudice against defendants with marijuana cases would be addressed through the sealing process.

Published on:

cannabis-1418332__480-261x300Fruitland is a small Eastern Shore city located off of Route 13, just south of Salisbury and a few miles north of Princess Anne.  As an incorporated municipality, Fruitland maintains a city council that can enact legislation, and a police department to enforce its laws.  With a population of around five thousand residents though, it’s no surprise that major news headlines do not appear when Fruitland passes new laws.  Last month, Fruitland lawmakers passed an ordinance making it a crime to smoke marijuana in public.  There was little fanfare surrounding the passage of this law despite the fact that almost everything cannabis makes it to the various online news site.  Last month there wasn’t a peep about the Fruitland law anywhere on the internets.  But other local government agencies were paying attention, and now Wicomico County officials have proposed the same type of legislation to their respective lawmakers in the county council.

The State’s Attorney’s Office and the Sheriff of Wicomico County have asked the council to consider sprucing up the county’s marijuana laws in order to give police arresting authority for public marijuana consumption.  In a time where marijuana laws are becoming more lenient some jurisdictions are pushing for the opposite.  As a criminal defense lawyer Blog we are almost always on the opposite side of law enforcement when it comes to reforming drug laws.  Public consumption of marijuana though is a complicated issue, and it’s hard to disregard either side of the argument.  For starters, nobody should ever be subject to criminal prosecution and the potential for a jail sentence for smoking marijuana.  At the same time, citizens have a right to object to being exposed to marijuana use when they are in public, and law enforcement has a right to speak for the public on this.

We have long since believed that marijuana should be treated the same as alcohol, as both are recreational drugs that people enjoy, and both cause impairment.  The purchase and sale of both should be legal, taxed and regulated, and the public consumption of both should be unlawful but not punishable by incarceration.  Public consumption of alcohol is a civil infraction under Maryland law, which is punishable by a fine, but certain municipalities have criminalized this offense.  When examining the utility of a stricter statute for public consumption of marijuana we can easily look to similar alcohol ordinances for comparison.

Published on:

917191_fulles-04-223x300This past summer the Maryland Governor signed off on a bill that changed the definition of marijuana, and now the impacts of this bill could have a real effect in courtrooms across the state. The bill did not receive much media attention despite the fact that it was marijuana related because the bill was created with the intent to modify agricultural laws rather than continue to reform marijuana policy. House Bill 1123 was signed into law back in April, and went into effect on June 1, 2019. The bill was characterized as agricultural and focused on hemp research and production. It had numerous components, but the main emphasis was to expand hemp production and establish safeguards for assuring that hemp and marijuana remained two separate crops.

In order to separate hemp and marijuana, which is still highly regulated in Maryland and a controlled substance under federal law, the state legislature had to strictly define the meanings of the two crops. Lawmakers came up with a threshold amount of 0.3% THC to separate the two; any cannabis plants with a THC level above 0.3% would be classified as marijuana while anything under would be classified as hemp. In establishing this threshold, lawmakers not only changed the agricultural laws but also were forced to modify the Maryland controlled dangerous substance laws. Under criminal law section 5-101, marijuana does not include hemp for the purpose of criminal prosecution. Hemp as defined in section 14-101 of the agriculture code “means the plant Cannabis sativa L. and any part of that plant, including all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta–9–tetrahydrocannabinol concentration that does not exceed 0.3% on a dry weight basis”. This fancy language boils down to the fact that cannabis plants that do not have a THC over 0.3% are not marijuana for the purpose of a criminal prosecution, and the impacts of this clause could be huge.

In all drug crimes cases the state is required to prove beyond a reasonable doubt that the substance that is the basis of the charging document is actually what the police say it is. It is not proof beyond a reasonable doubt for an officer to simply look at a substance and say that it is cocaine, heroin, marijuana etc. The state has to test the substance police take in evidence, and this is traditionally done is by sending it off to the crime lab at the Maryland State Police in Pikesville or the city’s lab in Baltimore. Chemists do their tests and send a lab reports to the prosecutor, which are then introduced into evidence as proof the substance is CDS. But, the kicker is that the crime labs do not test marijuana for THC content, so now there might not be a way for the state to prove beyond a reasonable doubt whether the green vegetable matter police confiscated from your plastic baggie, jar or personal grow room is marijuana or hemp.

Published on:

weed4-300x194As we approach the two-year anniversary of the first medical marijuana sales in Maryland all signs point to the program’s continued growth. On December 1st of 2017 dozens of patients lined up at a Montgomery County dispensary to become the first purchasers of legal cannabis in the state. The Rockville dispensary stocked its shelves as soon as the products arrived that Friday afternoon, and there has been no looking back since then. Close to 20,000 patients signed up to legally purchase when the program began, and now that number is approaching 60,000. According to the MMCC (the state organization that oversees medical cannabis) between 250 and 350 new patients apply for their cards each day. If these numbers continue there could be a quarter of a million medical marijuana patients in the Maryland within the next couple of years.

In 2018 state dispensaries sold close to 100 million dollars worth of medical marijuana to patients. Revenue totals for 2019 won’t be released until the winter, but officials expect a 50 percent increase, which would bring revenue to about 150 million dollars. The temporary ban on out of state purchases may slow revenue numbers a tiny bit, but we believe the estimations are still on the conservative side, and that a 2019 revenue total of 200 million dollars is not out of the question. With increased sales come increased employment opportunity, and the larger dispensaries can easily employ over 50 full timers. A large Allegany County dispensary reports that it employs 90 people full time, and is currently planning an expansion. Along with more jobs at the grow houses and dispensaries, medical marijuana is also expanding the roles of caretakers who are able to administer cannabis to their own patients. As of now there are about 5,000 caretakers registered with the state to provide medical cannabis that is prescribed by the 1,300 licensed medical professionals approved by the MMCC.

At this point the only thing that could possibly derail the steadily increasing number of medical marijuana patients would be legalization. In states where pot is legal for recreational use, medical patients are typically able to purchase more powerful products for cheaper prices, but this incentive is often outweighed by the hassle (however small) and privacy concerns over becoming a registered patient. Some potential patients continue to express concerns about their ability to purchase firearms if they were to register for medical marijuana, as federal law prohibits any drug user from purchasing or possessing a firearm. As long as marijuana is classified as a controlled substance under federal law, medical users could be at risk of federal prosecution. The federal government is far more concerned with firearms falling in the hands of those disqualified by previous criminal convictions, and rightly so, but many potential medical marijuana patients still feel they must choose between cannabis and firearm ownership. Other potential patients are against their name being listed in a government database for marijuana use, and would simply prefer to be able to walk into a store anonymously and purchase cannabis products.

Published on:

joint-200x300Maryland’s highest court recently ruled that law enforcement officers are no longer permitted to search a person who is in possession of less than 10 grams of marijuana. The case came to the Court of Appeals after a Silver Spring man was arrested for possession of cocaine with intent to distribute, and later pled guilty to this charge in the Montgomery County Circuit Court. The guilty plea was entered conditionally pursuant to the Maryland rules, which allows a defendant to withdraw his or her plea if an appeal is successful down in road. In this case the defendant argued the search of his person was illegal and moved to have the cocaine suppressed, but the circuit court judge did not agree and the Court of Special Appeals, Maryland’s intermediate appeals court in Annapolis, didn’t buy the argument either. Both lower courts sided with the state that the search of the defendant was incident to a lawful arrest, and in doing so relied upon case law from the days before possession of marijuana under 10 grams became decriminalized.

The crux of the defendant’s motion was logically sound, but the case law just wasn’t’ there for the defendant’s attorney to make a bulletproof argument. The defendant argued that Montgomery County police officers did not have probable cause to search the his person based on their observation of a half smoked joint in his car. The officers testified that all they smelled was the odor of burnt marijuana and all they saw was the joint, and they not offer any evidence that led them to believe there was more than 10 grams of marijuana in the car.  Possession of less than 10 grams has been classified as a non-arrestable civil infraction for the last few years. The Supreme Court has long held that you cannot have a valid search incident to arrest if you don’t have a valid arrest in the first place, and this is exactly what transpired. In fact, one officer testified the defendant was arrested for possession of cocaine, but also agreed that he did not find the cocaine until the defendant was placed under arrest. Given the unequivocal testimony of the state’s witnesses it is somewhat surprising that the two lower courts did not side with the defendant, but again, the Maryland case law was not there yet.

The Court of Appeals reminded us that the police officers still maintain the lawful ability to search the defendant’s car regardless of whether officers believe a criminal act is in progress. Marijuana might be decriminalized, but it’s still illegal to possess in any amount without a medical use card, and as such is classified as contraband. The automobile exception has long since limited the amount of privacy we have in our cars, especially while in a public parking lot. If police observe a person with contraband in a car they will almost always perform a search, as this is how many larger drug and gun cases begin. Had the cocaine been anywhere in the defendant’s car the search, arrest and conviction would have been valid and upheld, but the fact that it was in his pocket made all the difference in the world. The defendant in this case received a felony conviction and a partially suspended sentence, but now the high court’s ruling will reverse the conviction. The defendant may have already served his sentence, but the bigger picture is the establishment of a clear rule that a suspect may not be searched based on the observance of a non-criminal amount of marijuana.

Published on:

weed4-300x194Over four years ago Washington D.C. residents voted to legalize marijuana by a majority of almost two to one, but reality set in soon after the celebrations ended. The natural progression of marijuana legalization (the path Maryland is currently traveling) begins with decriminalization, then the establishment of a medical program and finally full-blown legalization. D.C. seemed to be headed toward the ultimate goal of legalization when Initiative 71 passed, but Congress had other ideas and the progression stalled. The main opposition for legalized marijuana in D.C. came from a Maryland congressman with an M.D. from Hopkins, who has described cannabis as a gateway drug with no proven medical use. This congressman used his influence to insert language in the federal spending bill for D.C., which prohibits the local government from spending federal money on a program that regulates and taxes the recreational sale of marijuana. It was further established that any member of the Washington D.C. government faced prosecution from the Justice Department for spending federal money on legalization, and thus Initiative 71 became all bark and no bite.

You could call Initiative 71 a partial victory, as it ended local criminal prosecution for possession, use and cultivation of marijuana, but to this day there is no legal means to purchase marijuana without a medical license. As a result citizens are forced to illegally purchase a substance that is technically legal, and has been for four years. The whole situation seems like politics at its worst; a congressman from another jurisdiction with strong views has exerted his power over the will of the people because he simply knows better. It’s actually quite frustrating, but it seems the local government in D.C. is not giving up. Last week the mayor revealed a bill that attempts to once again establish a clear path for the District to begin a fully functioning recreational marijuana program. The bill, entitled the Safe Cannabis Sales Act of 2019, aims to topple the illegal marijuana market in the city that is dangerous for residents who are lawfully permitted to use cannabis. A 17% tax on recreational sales would apply, and recreational businesses would be required to employ at least 60% D.C. residents. The purchase of up to one ounce of flower per day would be permitted, as well as limitations on the daily purchase of concentrates and edible products. Tax revenue, would be reinvested in the District’s affordable housing programs and other programs designed to benefit residents.

The D.C. government is confident that their work toward legalization does not constitute a violation of the federal spending limitations, but the program will not get off the ground absent changes in Congress. The Maryland lawmaker originally responsible for the flame out of Initiative 71 has reiterated his disapproval of the Mayor’s efforts in a stern statement. He reaffirmed his believe that recreational marijuana is poor public policy and not so subtly requested that the Mayor respect the Constitution, which gives Congress authority over the District. The statement reads like a threat from a power hungry politician that feels his authority has been questioned.

Published on:

annapolis-237078_960_720-300x195The 2019 Maryland legislative session has come to an end, and unlike previous years where marijuana was decriminalized or mandatory prison sentences for certain drug offenses were effectively discarded, there will be no drastic changes to the criminal code come October. While not headline makers, lawmakers did successfully address some minor offenses such as gambling and possession of alcohol, and changes are on the horizon. We previously wrote about a bill that proposed to decriminalize small time gambling, which in our opinion was long overdue. With state casinos booming, and sports betting on the verge of becoming legal in Maryland it really makes zero sense to impose criminal sanctions on citizens engaged in unlawful gambling. Both houses agreed and passed the bill that will now punish illegal gamblers with a civil citation and a fine, rather than a potential misdemeanor conviction and jail time. Anyone caught running an unauthorized casino or taking bets as a bookie still faces criminal liability, though lawmakers did away with the archaic 6-month mandatory minimum penalty. The maximum fine for civil gambling offenses will be $500 if less than $100 is at stake or $1,000 if more than $100 is at stake. Illegal gambling cases were not common to begin with, but now police will be even more motivated to look the other way.

Lawmakers also passed legislation that will make consumption of alcohol in public and possession of an open container a civil infraction rather than a criminal misdemeanor. The $100 fine will remain the same, but offenders no longer run the risk of a criminal conviction for drinking a beer, wine or liquor in public. This bill does not directly impact citations for minors in possession of alcohol, which will remain a civil infraction with a potential $500 fine for a first offense. Each of these civil infractions may be prosecuted by the local State’s Attorney’s Office, which is generally a good thing. The SAO has the ability to offer some sort of pre-trial diversion such as community service or alcohol education in exchange for a dismissal, while a district court judge has no such ability. The passage of this bill may affect the way open container violations are handled in local jurisdictions such as Ocean City. Previously public consumption or possession of an open container of alcohol was punishable by jail time in Ocean City, and police officers of this popular summer destination had the authority to arrest those, who for example were leaving Secrets with a drink in their hand. The Blog will pay attention to the local code to see if the city counsel is forced to make any changes to the existing laws regarding alcohol.

There was a lot of talk before the 2019 session began that the threshold of criminal possession of marijuana would be raised from 10 grams to one ounce (28 grams) but this change may not be on the immediate horizon. In addition to raising the lawful possession threshold, a Montgomery County lawmaker also proposed to allow adults over the age of 21 the right to use marijuana, to possess up to 5 grams of marijuana concentrates, and to cultivate up to 6 marijuana plants in their homes. The proposal was in the form of a constitutional amendment that would be put to a vote in this year’s general election.

Contact Information