Maryland’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.