Robinson, Williams & Spriggs v. State

Jermaul Rondell Robinson v. State of Maryland, No. 37, September Term, 2016; Dexter
Williams v. State of Maryland, No. 39, September Term, 2016; Vernon Harvey Spriggs,
III v. State of Maryland, No. 46, September Term, 2016
ODOR OF MARIJUANA – PROBABLE CAUSE – CARROLL DOCTRINE –
SEARCH OF VEHICLE – DECRIMINALIZATION OF POSSESSION OF LESS
THAN TEN GRAMS OF MARIJUANA – Court of Appeals held that law enforcement
officer has probable cause to search vehicle where law enforcement officer detects odor of
marijuana emanating from vehicle, as marijuana in any amount remains contraband,
notwithstanding decriminalization of possession of less than ten grams of marijuana; and
odor of marijuana gives rise to probable cause to believe that vehicle contains contraband
or evidence of crime. There was probable cause to search vehicles in question, based on
law enforcement officers having detected odor of marijuana coming from vehicles that
Petitioners had been driving or in possession of.
Circuit Court for Baltimore City
Case No. 815049029
IN THE COURT OF APPEALS
Circuit Court for Baltimore City
Case No. 815147025 OF MARYLAND
Circuit Court for Dorchester County Nos. 37, 39, & 46
Case No. 09-K-14-015452
September Term, 2016
Argued: December 1, 2016
______________________________________
JERMAUL RONDELL ROBINSON
v.
STATE OF MARYLAND
______________________________________
DEXTER WILLIAMS
v.
STATE OF MARYLAND
______________________________________
VERNON HARVEY SPRIGGS, III
v.
STATE OF MARYLAND
______________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Watts
Hotten
Getty,
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: January 20, 2017
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.1 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. See 2014 Md. Laws. 1119 (Vol. II, Ch.
158, S.B. 364); Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2013 Supp.) § 5-
601(c)(2)(ii). As of October 1, 2014, under Maryland law, possession of less than ten
1
Under the following fifteen jurisdictions’ laws, first-time possession of a small
amount of marijuana is punishable only by a fine and/or participation in an examination,
drug education, or drug treatment: Connecticut, Delaware, Illinois, Maine, Maryland,
Minnesota, Mississippi, Missouri, Nebraska, Nevada, New York, North Carolina, Ohio,
Rhode Island, and Vermont. See Conn. Gen. Stat. § 21a-279a(a)(1); Del. Code Ann. tit.
16 § 4764(c); 720 Ill. Comp. Stat. 550/4(a); Me. Stat. tit. 22 § 2383(1)(A); Md. Code Ann.,
Crim. Law (2002, 2012 Repl. Vol., 2016 Supp.) § 5-601(c)(2)(ii); Minn. Stat. § 152.027Subd. 4(a); Miss. Code Ann. § 41-29-139(c)(2)(A)(1); Mo. S.B. 491 (2014), available at
http://www.senate.mo.gov/14info/BTS_Web/Bill.aspx?SessionType=R&BillID=277235
23 [https://perma.cc/J672-URZH]; Neb. Rev. St. § 28-416(13)(a); Nev. Rev. Stat. §
453.336(4)(a); N.Y. Penal Law § 221.05; N.C. Gen. Stat. § 90-95(d)(4); Ohio Rev. Code
Ann. § 2925.11(C)(3)(a); 1956 R.I. Gen. Laws § 21-28-4.01(c)(2)(iii); Vt. Stat. Ann. tit.
18 § 4230a(a)(1).
Seven jurisdictions—Alaska, California, Colorado, the District of Columbia,
Massachusetts, Oregon, and Washington—have legalized possession of a small amount of
marijuana. See Alaska Stat. Ann. § 17.38.020(1); 2016 Cal. Legis. Serv. Prop. 64 § 4.4;
Colo. Const. Art. 18, § 16(3)(a); DC Code Ann. § 48-904.01(a)(1)(A); Massachusetts Law
about Marijuana Possession, Massachusetts Trial Court Law Libraries (updated Nov. 14,
2016), http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-subj/about/marijuana.
html [https://perma.cc/X7RE-D3HW]; Or. Rev. Stat Ann. § 475.864; Wash. Rev. Code
Ann. § 69.50.4013(3)(a).
Possession of marijuana in any amount, however, remains a crime under federal
law. See 21 U.S.C. § 844(a).
grams of marijuana became “a civil offense”2 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. See 2014 Md. Laws. 1119, 1124 (Vol. II,
Ch. 158, S.B. 364); Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2014 Supp.) § 5-
601(c)(2).
Here, Jermaul Rondell Robinson (“Robinson”), Dexter Williams (“Williams”), and
Vernon Harvey Spriggs, III (“Spriggs”) (together, “Petitioners”) contend that, due to the
decriminalization of possession of less than ten grams of marijuana, a law enforcement
officer no longer has probable cause to search a vehicle where the law enforcement officer
detects an odor of marijuana emanating from the vehicle. In separate cases, each Petitioner
moved to suppress evidence that had been found in a vehicle that he had been driving or
had possession of. In each case, at a hearing on the motion to suppress, a law enforcement
officer testified that either a strong odor or an overwhelming odor of fresh marijuana was
emanating from the car that the Petitioner had been using. In each case, the circuit court
denied the motion to suppress, and each Petitioner was convicted of possession of at least
ten grams of marijuana under the amended statute. Petitioners appealed, and, in each case,
the Court of Special Appeals affirmed the circuit court’s judgment in an unreported
opinion. Petitioners separately filed petitions for writs of certiorari, which this Court
2
As discussed below, Maryland law provides a limited authorization for certain
eligible persons to possess and/or use marijuana for medical purposes. Possession and/or
use of medical marijuana is not at issue in these cases.
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granted. We heard one oral argument as to Petitioners’ cases on the same day, and this
opinion serves to consolidate the cases.
Petitioners raise an important matter of first impression: whether, in light of the
decriminalization of possession of less than ten grams of marijuana, a law enforcement
officer has probable cause to search a vehicle upon detecting an odor of marijuana
emanating from the vehicle. In a reported opinion in an earlier case—Bowling v. State,
227 Md. App. 460, 476, 134 A.3d 388, 398, cert. denied, 448 Md. 724, 141 A.3d 135(2016)—the Court of Special Appeals held that the decriminalization of possession of less
than ten grams of marijuana did not undermine the principle that the alert of a narcotics
dog, that is certified to detect marijuana along with other controlled dangerous substances,
constitutes probable cause to search a vehicle. In each of Petitioners’ cases, the Court of
Special Appeals applied Bowling and concluded that a law enforcement officer’s detection
of a strong odor of marijuana coming from a vehicle that the defendant possessed provides
probable cause to search the vehicle, despite the decriminalization of possession of less
than ten grams of marijuana, because marijuana in any amount remains contraband—i.e.,
goods that are illegal, but not necessarily criminal, to possess. In addition to the holding
of the Court of Special Appeals in Bowling, courts in Maine, Oregon, California,
Minnesota and Colorado have reached similar conclusions, namely, that where an officer
detects the odor of marijuana coming from a vehicle, the warrantless search of the vehicle
is permitted, even though these jurisdictions had decriminalized—and, in at least one
instance, legalized—the possession of a small quantity of marijuana. See State v. Barclay,
398 A.2d 794 (Me. 1979); State v. Smalley, 225 P.3d 844 (Or. App. 2010); People v.
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Waxler, 224 Cal. App. 4th 712 (2014), as modified on denial of reh’g (Apr. 3, 2014),
review denied (June 11, 2014); State v. Ortega, 749 N.W.2d 851 (Minn. Ct. App. 2008),
aff’d, 770 N.W.2d 145 (Minn. 2009); People v. Zuniga, 372 P.3d 1052 (Colo. 2016).
Upon careful consideration, in agreement with the conclusions of the Court of
Special Appeals and the appellate courts of other jurisdictions, we hold that a law
enforcement officer has probable cause to search a vehicle where the law enforcement
officer detects an odor of marijuana emanating from the vehicle, as marijuana in any
amount remains contraband, notwithstanding the decriminalization of possession of less
than ten grams of marijuana; and the odor of marijuana gives rise to probable cause to
believe that the vehicle contains contraband or evidence of a crime. Simply put,
decriminalization is not synonymous with legalization, and possession of marijuana
remains unlawful.
BACKGROUND
No. 37: Robinson v. State
On October 19, 2014, in the District Court of Maryland, sitting in Baltimore City,
the State, Respondent, charged Robinson with possession of oxycodone, possession of at
least ten grams of marijuana, and possession of drug paraphernalia. The case was
transferred to the Circuit Court for Baltimore City. In the circuit court, Robinson filed
“Omnibus Pre-Trial Defense Motions,” which included, among other things, a motion to
suppress all evidence that law enforcement had allegedly illegally seized from Robinson’s
vehicle.
On March 16, 2015, the circuit court conducted a hearing on the motion to suppress.
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The only witness at the hearing was Officer Steven A. Vinias of the Baltimore Police
Department. As a witness for the State, Officer Vinias testified that he was familiar with
the odor of marijuana, and was able to distinguish the odor of fresh marijuana from the
odor of burnt marijuana. On October 18, 2014, Officer Vinias was driving in the 3100
block of Oakfield Avenue in Baltimore. Sergeant Luis Ruiz was a passenger in the law
enforcement vehicle. Officer Vinias saw Robinson leaning against a Nissan Maxima,
which was the only vehicle on that side of Oakfield Avenue. Officer Vinias noticed an
overwhelming smell of fresh marijuana. Officer Vinias stopped, and he and Sergeant Ruiz
exited and approached Robinson, who was within arm’s length of the Nissan at the time.
Robinson made a movement toward his waistband, and Sergeant Ruiz detained Robinson.
Once Robinson was detained, Officer Vinias could tell that the smell of marijuana was
coming from the Nissan. In response to questions by Officer Vinias, Robinson said that he
had been driving the Nissan, and that there was marijuana in the Nissan. Officer Vinias
searched the Nissan and seized sixteen small bags of marijuana and one oxycodone pill.
At the time of the seizure, Officer Vinias estimated that the marijuana weighed more than
ten grams. On cross-examination, Officer Vinias stated that the strength of the odor of
marijuana and the amount of marijuana are not always synonymous.
After Officer Vinias’s testimony, the circuit court heard argument from the parties.
Robinson’s counsel contended that a law enforcement officer lacks probable cause to
search a vehicle for marijuana unless the law enforcement officer has reasonable suspicion
that the vehicle contains more than ten grams of marijuana. The State argued that nothing
had changed as a result of the amendment to the marijuana statute with respect to a law
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enforcement officer’s ability to search a vehicle based on the odor of marijuana. After
hearing the parties’ arguments, the circuit court denied the motion to suppress without
making any findings of fact.
The parties agreed that Robinson would be tried on an agreed statement of facts only
as to the charge of possession of at least ten grams of marijuana. Robinson’s counsel
engaged in a waiver colloquy with Robinson, who waived the right to a trial. The
prosecutor read a statement of facts, to which Robinson’s counsel agreed. The circuit court
found Robinson guilty of possession of at least ten grams of marijuana and sentenced him
to time served. The docket entries reflect that the other two charges, possession of
oxycodone and possession of drug paraphernalia, were closed.
On March 26, 2015, Robinson noted an appeal. In an unreported opinion dated
April 29, 2016, the Court of Special Appeals affirmed the circuit court’s judgment, holding
that, despite the decriminalization of possession of less than ten grams of marijuana,
marijuana remains contraband, and its odor provides probable cause to search a vehicle.
On June 14, 2016, Robinson petitioned for a writ of certiorari, raising the following
two issues:
1. When an officer detects an “overwhelming smell” of “fresh marijuana”
coming from a car, does he have probable cause to search the car in light of
the fact that possession of a less than ten grams of marijuana is now a “civil
offense” punishable only by a fine?
2. Did the trial court err when it denied [] Robinson’s motion to suppress?
On August 19, 2016, this Court granted the petition. See Robinson v. State, 449 Md. 410,
144 A.3d 705 (2016).
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No. 39: Williams v. State
On April 8, 2015, in the District Court of Maryland, sitting in Baltimore City, the
State charged Williams with possession of marijuana and possession of drug paraphernalia.
The case was transferred to the Circuit Court for Baltimore City. In the circuit court,
Williams filed “Omnibus Pre-Trial Defense Motions,” which included, among other
things, a motion to suppress all evidence that law enforcement had allegedly illegally
seized from Williams’s vehicle.
On June 25, 2015, the circuit court conducted a hearing on the motion to suppress.
The only witness at the hearing was Detective Tristan Ferguson of the Baltimore Police
Department. As a witness for the State, Detective Ferguson testified that he was familiar
with the odor of marijuana, and was able to distinguish the odor of fresh marijuana from
the odor of burnt marijuana. According to Detective Ferguson, the greater the amount of
fresh marijuana, the stronger the odor and the greater the radius in which the marijuana can
be smelled. On April 8, 2015, Detective Ferguson was driving in the 4500 block of
Fairview Avenue in Baltimore. Detective Ferguson saw Williams in the driver’s seat of a
vehicle that was stopped in front of a stop sign. Detective Ferguson exited the law
enforcement vehicle and approached Williams. Once he was within four feet of Williams’s
vehicle, Detective Ferguson smelled a strong odor of fresh marijuana emanating from
Williams’s vehicle. Detective Ferguson asked Williams whether he smoked marijuana,
and Williams replied affirmatively. Detective Ferguson asked Williams to exit his vehicle.
Detective Ferguson searched Williams’s vehicle and seized a backpack that contained a
canister, which contained a scale and 170 grams of packaged marijuana. On cross-
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examination, Detective Ferguson acknowledged that even a small amount of the most
powerful grade of marijuana, known as “loud,” would have a potent odor.
Following Detective Ferguson’s testimony, the circuit court heard argument from
the parties. Williams’s counsel contended that probable cause to believe that a person is
engaged in conduct that constitutes a civil violation of the law—e.g., possession of less
than ten grams of marijuana—does not provide a basis for a warrantless search. The State
argued that the General Assembly had specifically indicated that decriminalization of
possession of less than ten grams of marijuana would not affect law enforcement officers’
authority to seize marijuana. After hearing the parties’ arguments, the circuit court denied
the motion to suppress.
On June 25, 2015, after the circuit court denied the motion to suppress, Williams
pled guilty to possession of at least ten grams of marijuana. The prosecutor read a
statement of facts, to which Williams’s counsel agreed. The circuit court found Williams
guilty of possession of at least ten grams of marijuana and postponed sentencing.
On July 2, 2015, Williams filed a “Motion for New Trial,” requesting a new trial
and that he be permitted to enter a conditional guilty plea, and thus preserve the right to
appeal the denial of the motion to suppress. Docket entries reflect that, on July 21, 2015,
a verdict of guilty was entered as to the charge for possession of at least ten grams of
marijuana; the charge for possession of drug paraphernalia was closed; and the circuit court
sentenced Williams to twenty days of incarceration.
On August 5, 2015, Williams noted an appeal. In an unreported opinion dated May
18, 2016, the Court of Special Appeals affirmed the circuit court’s judgment, holding that
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the odor of marijuana alone provides probable cause to search a vehicle.
On June 27, 2016, Williams petitioned for a writ of certiorari, raising the following
two issues:
1. When an officer smells “the odor of marijuana strongly emanating from
the interior” of a car and when the driver and sole occupant admits that he
has an unspecified amount of marijuana in the car, does the officer have
probable cause to search the car in light of the fact that possession of a less
than ten grams of marijuana is now a “civil offense” punishable only by a
fine?
2. Did the trial court err when it denied [] Williams’[s] motion to suppress?
On September 2, 2016, this Court granted the petition. See Williams v. State, 450 Md.
104, 146 A.3d 464 (Sept. 2, 2016).
No. 46: Spriggs v. State
On December 11, 2014, in the Circuit Court for Dorchester County, the State
charged Spriggs with possession of cocaine with the intent to distribute, possession of
marijuana with the intent to distribute, possession of cocaine, possession of marijuana, and
two counts of possession of drug paraphernalia. In the circuit court, Spriggs filed an
“Omnibus Motion for Appropriate Relief Under Rule 4-252,” which included, among other
things, a motion to suppress all evidence that law enforcement had allegedly illegally
seized.
On April 20, 2015, the circuit court conducted a hearing on the motion to suppress.
Two witnesses testified at the hearing. As a witness for the State, Corporal Jeffrey Smith
of the Cambridge Police Department testified that he was familiar with the odor of fresh
marijuana. According to Corporal Smith, the greater the amount of marijuana, the stronger
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the odor. On October 18, 2014, Corporal Smith was driving down Elm Street in Cambridge
with the windows down and detected a strong odor of fresh marijuana. Corporal Smith
saw Spriggs in a vehicle in a parking lot in front of an abandoned building. Corporal Smith
observed that the front passenger-side door was open, and Spriggs was sitting in the
passenger’s seat with his feet outside the vehicle. The odor of marijuana weakened as
Corporal Smith drove further down Elm Street. Corporal Smith made a U-turn, parked the
law enforcement vehicle, exited, and approached Spriggs. While Corporal Smith
approached, Spriggs exited his vehicle and began walking toward the back of his vehicle.
Meanwhile, Corporal Robert Ball drove down Elm Street, parked his law enforcement
vehicle, exited, and reached Spriggs before Corporal Smith did. While Corporal Ball was
speaking with Spriggs, Corporal Smith walked away from Spriggs’s vehicle, and noticed
that the odor of marijuana weakened. Corporal Smith walked back toward Spriggs’s
vehicle; at that point, Corporal Smith believed that he could tell that the odor of marijuana
was coming from the general area of Spriggs’s vehicle. At that time, Spriggs was holding
keys in his left hand; and, other than Corporals Smith and Ball, no one was in Spriggs’s
general area.
As a witness for the State, Corporal Ball testified that the greater the amount of
marijuana, the stronger the odor. Corporal Ball testified that, on October 18, 2014, he
drove down Elm Street and saw Corporal Smith on foot. Corporal Ball parked his law
enforcement vehicle, exited, and approached Spriggs, who was near a parked Honda Civic.
The Honda was the only vehicle in the parking lot. As he approached Spriggs, Corporal
Ball smelled a strong odor of fresh marijuana. Corporal Ball asked Spriggs how he was
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doing and whether he was just hanging out in the area. Spriggs said yes. Corporal Ball
testified that Corporal Smith said that he smelled marijuana. Spriggs said that he smelled
marijuana too, and that a couple of other people had just left the area. Corporal Ball
testified that no one else was in the area, and that he smelled marijuana coming from
Spriggs’s person. Spriggs was asked who owned the Honda, and Spriggs said that his boss
did. Corporal Ball testified that Spriggs told him that “he [Spriggs] had the vehicle” and
that he had been the only one in the Honda. Corporal Ball searched Spriggs and found a
large amount of United States currency, but no marijuana. Corporal Ball asked Spriggs for
the Honda’s key, and Spriggs complied. Corporal Ball searched the Honda.3
After Corporal Ball’s testimony, the circuit court heard argument from the parties.
Spriggs’s counsel contended that the odor of marijuana alone cannot justify a warrantless
search. The State contended that, based on prior case law, law enforcement officers have
the right to investigate upon detecting the odor of marijuana. After hearing the parties’
arguments, the circuit court denied the motion to suppress, making findings of fact that
were consistent with Corporal Smith’s testimony and Corporal Ball’s testimony.
On April 29, 2015, Spriggs elected a bench trial, at which Corporal Smith and
Corporal Ball testified as witnesses for the State. As witness for the State, Detective
Edward Howard of the Cambridge Police Department testified that, when he was part of
the Narcotics Division, he delivered the bags of suspected drugs taken from the Honda to
3
At trial, Corporal Smith testified that he found marijuana in a Ziploc bag in a plastic
grocery bag in front of the Honda’s driver’s seat, and that he found cocaine in another
Ziploc bag in the Honda.
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a crime lab in Berlin. As a witness for the State, Detective Jamie McDaniel testified that
the seized items were $3,056 in United States currency, 143 grams of cocaine, and 142
grams of marijuana.
The circuit court found Spriggs guilty of possession of cocaine with the intent to
distribute, possession of marijuana with the intent to distribute, possession of cocaine, and
possession of marijuana. The circuit court found Spriggs not guilty of both counts of
possession of drug paraphernalia. The circuit court sentenced Spriggs to twenty years of
imprisonment, with all but three years suspended, for possession of cocaine with the intent
to distribute; five consecutive years of imprisonment, with all but one year and one day
suspended, for possession of marijuana with the intent to distribute; and five years of
supervised probation. The circuit court merged the remaining two convictions for
sentencing purposes.
On May 6, 2015, Spriggs noted an appeal. In an unreported opinion dated June 23,
2016, the Court of Special Appeals affirmed the circuit court’s judgment, concluding that
the odor of marijuana alone provides probable cause to search a vehicle.
On August 3, 2016, Spriggs petitioned for a writ of certiorari, raising the following
two issues:
1. When an officer detects an “overwhelming strong odor” of “raw
marijuana” coming from a car, does he have probable cause to search the car
in light of the fact that possession of less than ten grams of marijuana is now
a “civil offense” punishable only by a fine?
2. Did the trial court err when it denied [] Spriggs’s motion to suppress?
On September 2, 2016, this Court granted the petition. See Spriggs v. State, 450 Md. 102,
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146 A.3d 463 (Sept. 2, 2016).
DISCUSSION
The Parties’ Contentions
Petitioners contend that, because the General Assembly has made possession of less
than ten grams of marijuana a civil offense that is punishable by a fine, a law enforcement
officer may not conduct a warrantless search of a vehicle based only on the odor of
marijuana. Petitioners argue that 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. Petitioners assert that law
enforcement officers could not conduct warrantless searches of their vehicles because a
search warrant cannot be issued for civil offenses. Petitioners point out that a warrantless
search is permissible only where reasonable. Petitioners maintain that Carroll v. United
States, 267 U.S. 132 (1925) and its progeny do not answer the question of whether it is
reasonable for a law enforcement officer to search for items, the possession of which is not
criminal. Petitioners contend that whether a search is reasonable does not depend on the
General Assembly’s intent in decriminalizing possession of a small amount of marijuana.
Alternatively, Petitioners argue that, 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 responds that 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 State contends that the Carroll doctrine permits the
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warrantless search of a vehicle based on probable cause to believe that the vehicle contains
contraband or evidence of a crime. The State asserts that “contraband” and “evidence of a
crime” are not synonymous, as “contraband” includes anything that is unlawful to possess,
regardless of whether possession is criminal. The State maintains that, 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 a crime may be found in the
vehicle. The State points out that courts in other jurisdictions have applied the Carroll
doctrine and upheld warrantless searches based on the odor of marijuana. In sum, the State
argues that the odor of marijuana provides probable cause to believe that a vehicle contains
contraband or evidence of a crime.
The Standard of Review
In Varriale v. State, 444 Md. 400, 410, 119 A.3d 824, 830 (2015), this Court
explained the standard of review for a ruling on a motion to suppress as follows:
In reviewing a trial court’s ruling on a motion to suppress, an appellate court
reviews for clear error the trial court’s findings of fact, and reviews without
deference the trial court’s application of the law to its findings of fact. The
appellate court views the trial court’s findings of fact, the evidence, and the
inferences that may be drawn therefrom in the light most favorable to the
party who prevails on the issue that the defendant raises in the motion to
suppress.
(Citation omitted).
The Fourth Amendment, the Carroll Doctrine, and Contraband
The Fourth Amendment to the United States Constitution provides in pertinent part:
“The right of the people to be secure in their persons, houses, papers, and effects, against
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unreasonable searches and seizures, shall not be violated[.]” U.S. Const. amend. IV.4 The
Fourth Amendment does not prohibit all searches—only unreasonable ones. See Sellman
v. State, 449 Md. 526, 540, 144 A.3d 771, 779 (2016). Whether a search is reasonable
depends on the public interest versus an individual’s right to be free from arbitrary
interference by a law enforcement officer. See id. at 540, 144 A.3d at 779.
Generally, for a search to be reasonable, a law enforcement officer must obtain a
warrant. See Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 2482 (2014). One
exception to the warrant requirement is the “automobile exception,” under which a law
enforcement officer may conduct a warrantless search of a vehicle based on probable cause.
See California v. Acevedo, 500 U.S. 565, 569 (1991). The automobile exception originates
from the case of Carroll, 267 U.S. 132, and has been referred to as “the Carroll doctrine.”
See Acevedo, 500 U.S. at 569-70. In Wyoming v. Houghton, 526 U.S. 295, 300 (1999),
the Supreme Court discussed Carroll as follows:
Carroll . . . involved the warrantless search of a car that law enforcement
officials had probable cause to believe contained contraband—in that case,
bootleg liquor. The Court concluded that the Framers would have regarded
such a search as reasonable in light of legislation enacted by Congress from
1789 through 1799—as well as subsequent legislation from the founding era
and beyond—that empowered customs officials to search any ship or vessel
without a warrant if they had probable cause to believe that it contained
goods subject to a duty. Thus, the Court held that “contraband goods
concealed and illegally transported in an automobile or other vehicle may be
searched for without a warrant” where probable cause exists.
(Citations omitted).
4
The Fourth Amendment applies to the States under the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. See Sellman v. State, 449 Md.
526, 539, 144 A.3d 771, 779 (2016).
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Probable cause exists where, based on the available facts, a person of reasonable
caution would believe “that contraband or evidence of a crime is present.” Florida v.
Harris, ___ U.S. ___, 133 S. Ct. 1050, 1055 (2013) (emphasis added) (citations omitted).
Probable cause does not depend on a preponderance of the evidence, but instead depends
on a “fair probability” on which a reasonably prudent person would act. Id. (citation
omitted). Specifically, in Illinois v. Gates, 462 U.S. 213, 231 (1983), the Supreme Court
described the concept of probable cause as follows:
[T]he probable cause standard is . . . a “practical, nontechnical conception.”
“In dealing with probable cause, as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent [people],
not legal technicians, act.” Our observation in United States v. Cortez, 449
U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981), regarding
“particularized suspicion,” is also applicable to the probable cause standard:
The process does not deal with hard certainties, but with
probabilities. Long before the law of probabilities was
articulated as such, practical people formulated certain
common-sense conclusions about human behavior; jurors as
factfinders are permitted to do the same—and so are law
enforcement officers. Finally, the evidence thus collected must
be seen and weighed not in terms of library analysis by
scholars, but as understood by those versed in the field of law
enforcement.
As these comments illustrate, probable cause is a fluid concept—turning on
the assessment of probabilities in particular factual contexts—not readily, or
even usefully, reduced to a neat set of legal rules.
(Ellipsis and some citations omitted). And more recently, in Harris, 133 S. Ct. at 1055-
56, the Supreme Court stated:
The test for probable cause is not reducible to precise definition or
quantification. Finely tuned standards such as proof beyond a reasonable
doubt or by a preponderance of the evidence have no place in the probable-
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cause decision. All we have required is the kind of fair probability on which
reasonable and prudent people, not legal technicians, act.
In evaluating whether the State has met this practical and common-
sensical standard, we have consistently looked to the totality of the
circumstances. We have rejected rigid rules, bright-line tests, and
mechanistic inquiries in favor of a more flexible, all-things-considered
approach. . . .
(Citations, ellipsis, brackets, and internal quotation marks omitted).
As to the automobile exception to the warrant requirement, in Carroll, 267 U.S. at
153, the Supreme Court held that, with probable cause to believe that a vehicle contains
contraband, a law enforcement officer may search a vehicle without a warrant, because
vehicles can be quickly moved from one jurisdiction to another, thus making it
impracticable to obtain a warrant. In Carroll, during the Prohibition era, a law enforcement
officer stopped a vehicle, searched the vehicle, and found alcohol inside of the vehicle. See
Carroll, 267 U.S. at 172 (McReynolds, J., dissenting).5 The occupants of the vehicle were
found guilty of violating a statute that made it a crime to transport alcohol in violation of
the National Prohibition Act. See Carroll, 267 U.S. at 144-45. On appeal, the defendants
argued that a law enforcement officer could conduct a warrantless search of a vehicle only
if the law enforcement officer could arrest the driver—which the law enforcement officer
could do only if he or she either had probable cause to believe that the driver had committed
a felony, or had seen the driver commit a misdemeanor. See id. at 156-57. The Supreme
Court rejected the defendants’ contention, concluding that a law enforcement officer’s
5
Justice McReynolds’s dissenting opinion expounded on Carroll’s facts in greater
detail than the majority opinion did. Compare Carroll, 267 U.S. at 160-61 with id. at 171-
74 (McReynolds, J., dissenting).
- 17 -
ability to search a vehicle does not depend on the law enforcement officer’s right to make
an arrest, but instead depends on probable cause to believe that the vehicle’s contents are
illegal. See id. at 158-59. Specifically, the Court stated: “The right to search and the
validity of the seizure are not dependent on the right to arrest. They are dependent on the
reasonable cause the seizing officer has for belief that the contents of the automobile offend
against the law.” Id. Although the Court noted that, under the National Prohibition Act,
the driver of a vehicle that contained alcohol was subject to arrest, the Court determined
that the nature of the offense for which the driver could be prosecuted did not affect the
validity of the search. See id. at 159. In sum, in Carroll, id. at 153, 158-59, the Supreme
Court concluded that, with probable cause to believe that a vehicle contains contraband, a
law enforcement officer may search a vehicle without a warrant, and the determination of
probable cause does not depend upon the right to make an arrest.
Following Carroll, the Supreme Court has stated that a law enforcement officer has
probable cause to search a vehicle when he or she believes that contraband or evidence of
a crime may be found in the vehicle. For example, in Harris, 133 S. Ct. at 1053, 1055, a
case involving a drug-detection dog’s alert during a traffic stop, the Supreme Court stated:
“A police officer has probable cause to conduct a search when the facts available to him
[or her] would warrant a person of reasonable caution in the belief that contraband or
evidence of a crime is present.” (Citation, brackets, and internal quotation marks omitted).
In Houghton, 526 U.S. at 297, 304, a case involving a search of a passenger’s personal
belongings inside of an automobile, the Supreme Court stated:
Effective law enforcement would be appreciably impaired without the ability
- 18 -
to search a passenger’s personal belongings when there is reason to believe
contraband or evidence of criminal wrongdoing is hidden in the car. As in
all car-search cases, the ‘ready mobility’ of an automobile creates a risk that
the evidence or contraband will be permanently lost while a warrant is
obtained.
(Citation omitted). And, in Texas v. Brown, 460 U.S. 730, 733, 742 (1983), a case
involving a routine driver’s license checkpoint stop, the Supreme Court stated:
As the Court frequently has remarked, probable cause is a flexible,
common-sense standard. It merely requires that the facts available to the
officer would warrant a [person] of reasonable caution in the belief, that
certain items may be contraband or stolen property or useful as evidence of
a crime; it does not demand any showing that such a belief be correct or more
likely true than false.
(Citation and internal quotation marks omitted).
The Decriminalization of Possession of Less Than Ten Grams of Marijuana
Before October 1, 2014, Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2013
Supp.) § 5-601 was effective, and stated in relevant part:
(a) Except as otherwise provided in this title, a person may not:
(1) possess or administer to another a controlled dangerous substance,
unless obtained directly or by prescription or order from an authorized
provider acting in the course of professional practice;
***
(c) (1) Except as provided in paragraphs (2) and (3) of this subsection, a
person who violates this section is guilty of a misdemeanor and on conviction
is subject to imprisonment not exceeding 4 years or a fine not exceeding
$25,000 or both.
(2) (i) A person whose violation of this section involves the use or
possession of marijuana is subject to imprisonment not exceeding 1
year or a fine not exceeding $1,000 or both.
(ii) 1. A person convicted of the use or possession of less
- 19 -
than 10 grams of marijuana is subject to imprisonment not exceeding
90 days or a fine not exceeding $500 or both.
2014 Md. Laws. 1119, 1124 (Vol. II, Ch. 158, S.B. 364). Thus, before 2014, possession
of marijuana in any amount was a crime—albeit one that carried less of a maximum penalty
than possession of other drugs.
In 2014, the General Assembly amended Md. Code Ann., Crim. Law (2002, 2012
Repl. Vol., 2013 Supp.) § 5-601(c)(2), the penalty provisions regarding marijuana, to state
in pertinent part:
(i) Except as provided in subparagraph (ii) of this paragraph, a person whose
violation of this section involves the use or possession of marijuana is subject
to imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both.
(ii) 1. A first violation of this section involving the use or possession of
less than 10 grams of marijuana is a civil offense punishable by a fine not
exceeding $100.
2. a second violation of this section involving the use or possession of
less than 10 grams of marijuana is a civil offense punishable by a fine not
exceeding $250.
3. a third or subsequent violation of this section involving the use or
possession of less than 10 grams of marijuana is a civil offense punishable
by a fine not exceeding $500.
4. A. In addition to a fine, a court shall order a person under the
age of 21 years who commits a violation punishable under
subsubparagraph 1, 2, or 3 of this subparagraph to attend a drug
education program approved by the Department of Health and Mental
Hygiene, refer the person to an assessment for substance abuse
disorder, and refer the person to substance abuse treatment, if
necessary.
B. In addition to a fine, a court shall order a person at least 21
years old who commits a violation punishable under subsubparagraph
3 of this subparagraph to attend a drug education program approved
by the Department of Health and Mental Hygiene, refer the person to
- 20 -
an assessment for substance abuse disorder, and refer the person to
substance abuse treatment, if necessary.
2014 Md. Laws. 1119 (Vol. II, Ch. 158, S.B. 364).6
6
Although the General Assembly has amended the statute since 2014, the penalty
provisions regarding marijuana remain substantively identical; and, subsubparagraph
(ii)(4)(C) has been added. Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2016 Supp.)
§ 5-601(c)(2) currently states:
(i) Except as provided in subparagraph (ii) of this paragraph, a person whose
violation of this section involves the use or possession of marijuana in the
amount of 10 grams or more is guilty of the misdemeanor of possession of
marijuana and is subject to imprisonment not exceeding 1 year or a fine not
exceeding $1,000 or both.
(ii) 1. A first finding of guilt under this section involving the use or
possession of less than 10 grams of marijuana is a civil offense punishable
by a fine not exceeding $100.
2. A second finding of guilt under this section involving the use or
possession of less than 10 grams of marijuana is a civil offense punishable
by a fine not exceeding $250.
3. A third or subsequent finding of guilt under this section involving
the use or possession of less than 10 grams of marijuana is a civil offense
punishable by a fine not exceeding $500.
4. A. In addition to a fine, a court shall order a person under the
age of 21 years who commits a violation punishable under
subsubparagraph 1, 2, or 3 of this subparagraph to attend a drug
education program approved by the Department of Health and Mental
Hygiene, refer the person to an assessment for substance abuse
disorder, and refer the person to substance abuse treatment, if
necessary.
B. In addition to a fine, a court shall order a person at least 21
years old who commits a violation punishable under subsubparagraph
3 of this subparagraph to attend a drug education program approved
by the Department of Health and Mental Hygiene, refer the person to
an assessment for substance abuse disorder, and refer the person to
- 21 -
The General Assembly also added Md. Code Ann., Crim. Law (2002, 2012 Repl.
Vol., 2014 Supp.) § 5-601(d), which stated:
The provisions of subsection (c)(2)(ii) of this section making the possession
of marijuana a civil offense may not be construed to affect the laws relating
to:
(1) operating a vehicle or vessel while under the influence of or while
impaired by a controlled dangerous substance; or
(2) seizure and forfeiture.
2014 Md. Laws. 1122 (Vol. II, Ch. 158, S.B. 364).
Additionally, the General Assembly created Md. Code Ann., Crim. Law (2002,
2012 Repl. Vol., 2014 Supp.) § 5-601.1, which stated in pertinent part:
(a) A police officer shall issue a citation to a person who the police officer
has probable cause to believe has committed a violation of § 5-601 of this
part involving the use or possession of less than 10 grams of marijuana.
(b) (1) A violation of § 5-601 of this part involving the use or possession
of less than 10 grams of marijuana is a civil offense.
(2) Adjudication of a violation under § 5-601 of this part involving
the use or possession of less than 10 grams of marijuana:
(i) is not a criminal conviction for any purpose; and
(ii) does not impose any of the civil disabilities that may result
from a criminal conviction.
2014 Md. Laws. 1122-23 (Vol. II, Ch. 158, S.B. 364).
substance abuse treatment, if necessary.
C. A court that orders a person to a drug education program or
substance abuse assessment or treatment under this subsubparagraph
may hold the case sub curia pending receipt of proof of completion of
the program, assessment, or treatment.
- 22 -
Bowling v. State
Although this Court has 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 has done so. In Bowling, 227 Md. App. at 476, 134 A.3d at 398, the
Court of Special Appeals concluded 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. In Bowling, 227 Md. App. at 462, 134 A.3d at 390, a law enforcement
officer stopped a vehicle that the defendant was driving. The law enforcement officer
noticed that the defendant appeared nervous, and the officer called for a narcotics dog. See
id. at 462-63, 134 A.3d at 390. Before the narcotics dog arrived, the defendant exited his
vehicle, and was unable to get back in because he had locked his key inside. See id. at 463,
134 A.3d at 390. The narcotics dog arrived, and alerted near the rear driver’s side door.
See id. at 463-64, 134 A.3d at 390-91. Afterward, a tow truck driver arrived, and opened
the defendant’s vehicle. See id. at 464, 134 A.3d at 391. The law enforcement officer,
who had been planning to have the defendant’s vehicle towed to the police station,
immediately searched the defendant’s vehicle instead of conducting an inventory search at
the police station. See id. at 464, 134 A.3d at 391. The law enforcement officer found
nearly 200 grams of marijuana, an OxyContin tablet, a smoking device, a scale, and a large
amount of cash. See id. at 464, 134 A.3d at 391. The defendant moved to suppress all of
the evidence that had been found in his vehicle, contending that the narcotics dog’s alert
did not provide probable cause for a warrantless search of the vehicle in light of the General
- 23 -
Assembly’s decriminalization of possession of less than ten grams of marijuana, and
because the narcotics dog could not distinguish between more than ten grams of marijuana
and less than ten grams of marijuana. See id. at 464-65, 134 A.3d at 391.
The trial court denied the motion to suppress, and the Court of Special Appeals
affirmed the trial court’s judgment. See id. at 465, 476,134 A.3d at 391, 398. The Court
of Special Appeals explained that decriminalization is not synonymous with legalization;
even though possession of less than ten grams of marijuana is no longer a crime, it is still
illegal. See id. at 470, 134 A.3d at 394. The Court of Special Appeals examined the plain
meaning and legislative history of the statute decriminalizing possession of less than ten
grams of marijuana and concluded: “[I]t is clear that the [] General Assembly intended that
marijuana remain classified as ‘contraband,’ and that the decriminalization of small
amounts of marijuana would not affect existing case law allowing officers to search a
vehicle based upon a K-9 alert to the smell of marijuana.” Id. at 476, 134 A.3d at 398. The
Court of Special Appeals also examined case law from the Supreme Court and other
jurisdictions and concluded that the automobile exception to the warrant requirement is not
limited to where there is probable cause to believe there is evidence of a crime in a vehicle;
rather, the Court of Special Appeals determined that “a search is permitted when there is
probable cause to believe that the car contains evidence of a crime or contraband.” Id. at
472, 134 A.3d at 396 (emphasis in original). The Court of Special Appeals explained that
marijuana in any amount remains contraband—i.e., goods that are unlawful to possess. See
id. at 476, 134 A.3d at 398. As such, in Bowling, id. at 476, 134 A.3d at 398, the narcotics
dog’s alert provided probable cause to believe that contraband would be discovered in the
- 24 -
vehicle irrespective of the decriminalization of possession of less than ten grams of
marijuana.7
Other Jurisdictions’ Case Law
Courts in other jurisdictions have addressed whether decriminalization—or, in one
instance, legalization—of possession of a small amount of marijuana negates probable
cause to search a vehicle based on an odor of marijuana. The view of the majority of other
jurisdictions that have addressed the issue—four out of five jurisdictions, to be exact—is
that decriminalization has no such effect. A sixth jurisdiction has determined that
legalization of possession of a small amount of marijuana does not foreclose the existence
of probable cause to search a vehicle upon detection of an odor of marijuana.
In Barclay, 398 A.2d at 798, the Supreme Judicial Court of Maine held that, despite
a statute that made possession of a small amount of marijuana “a civil violation,” marijuana
remained contraband, and thus remained subject to seizure. In Barclay, id. at 796, a law
enforcement officer stopped a vehicle that the defendant was driving because the vehicle’s
exhaust system appeared to be faulty. While at the driver’s side of the vehicle, the law
enforcement officer smelled marijuana smoke. See id. The law enforcement officer
7
The Court of Special Appeals’s holding in Bowling is consistent with prior case
law in which the Court of Special Appeals and this Court have held that a drug detection
dog’s alert provides probable cause for the search of a vehicle. See McKoy v. State, 127
Md. App. 89, 101, 732 A.2d 312, 318 (1999) (The Court of Special Appeals held that a law
enforcement officer did not unreasonably detain the defendant by conducting a traffic stop
during which a narcotics dog scanned a vehicle.); Wilkes v. State, 364 Md. 554, 565, 586,
774 A.2d 420, 426, 439 (2001) (This Court held that law enforcement officers had probable
cause to search the defendant’s vehicle and the defendant where a narcotics dog,
accompanied by a licensed trained handler, alerted to the presence of drugs in the
defendant’s vehicle.).
- 25 -
searched the vehicle and found two pipes and several marijuana cigarette butts, which were
tested and found to contain marijuana. See id. The defendant moved to suppress the
marijuana, contending that the search was illegal because the Fourth Amendment does not
permit a search for evidence of a civil violation. See id.A trial court denied the motion to suppress, and the Supreme Judicial Court of Maine
affirmed. See id. at 796, 798. In Barclay, id. at 797, the Court concluded that the law
enforcement officer “had probable cause to believe that the vehicle in question contained
marijuana. When [the officer] arrived at the driver’s window, he detected the odor of
marijuana smoke emanating from the interior of the vehicle. That odor was sufficient to
establish probable cause to search.” The Court determined that a law enforcement officer
may search for goods whose possession is punishable only by a civil violation, as such
goods can be the subject of a search warrant under Maine statutes. See id. at 797-98. The
Court specifically stated that “marijuana, notwithstanding its new status under [a Maine
statute], is still contraband and thus subject to seizure.” Id. at 798.
In Smalley, 225 P.3d at 848, the Court of Appeals of Oregon determined that,
notwithstanding a statute that made possession of less than an ounce of marijuana a civil
violation, marijuana in any amount still constituted contraband. In Smalley, id. at 845, a
law enforcement officer stopped a vehicle in which the defendant was a passenger. The
driver consented to a search of the vehicle, and the law enforcement officer noticed an odor
of marijuana coming from a backpack behind the driver’s seat. See id. The law
enforcement officer searched the backpack and discovered marijuana, and the defendant
admitted that the backpack belonged to him. See id. The defendant moved to suppress the
- 26 -
marijuana, contending that the search violated the Oregon Constitution’s counterpart to the
Fourth Amendment. See id.A trial court granted the motion to suppress, and the Court of Appeals of Oregon
reversed. See id. at 845, 848. The Court concluded that the law enforcement officer had
probable cause to believe that the backpack contained “at least some amount of
contraband” based on the officer’s testimony concerning the odor of marijuana emanating
from the backpack. See id. at 847. The defendant contended that a law enforcement officer
cannot search for marijuana without probable cause to believe that there is a criminal
amount of marijuana. See id. at 848. The Court rejected this contention and concluded
that a law enforcement officer may conduct a warrantless search for “contraband or crime
evidence” where there is probable cause to believe that such items are in a container in a
vehicle. Id. at 848 (citation and emphasis omitted). The Court explained that the phrase
“contraband or crime evidence” indicated that the two were not identical, and “that
probable cause to believe in the presence of either could justify an automobile search.” Id.(citation omitted). Thus, the Court determined that a law enforcement officer could search
for goods that were contraband, even if the goods did not constitute evidence of a crime.
See id. The Court observed that, under both its legal definition and its common definition,
“contraband” includes anything that is illegal to possess—which encompasses marijuana
in any amount. See id.In Waxler, 224 Cal. App. 4th at 715, a Court of Appeal of California held that,
despite a statute under which possession of less than an ounce of marijuana was punishable
only by a fine, a law enforcement officer has probable cause to search a vehicle where the
- 27 -
law enforcement officer smells burnt marijuana emanating from the vehicle and sees burnt
marijuana in a pipe in the vehicle.8 In Waxler, id. at 716, a law enforcement officer
approached a parked vehicle in which the defendant was sitting in the driver’s seat. As the
law enforcement officer got closer to the vehicle, he noticed an odor of burnt marijuana
and saw a marijuana pipe that contained what appeared to be burnt marijuana. See id. The
law enforcement officer searched the vehicle and found methamphetamine and a
methamphetamine pipe. See id. The defendant moved to suppress, contending that the
law enforcement officer lacked probable cause to believe that the defendant had been
committing a crime. See id. at 717.
A trial court denied the motion to suppress, and the Court of Appeal of California
affirmed. See id. at 716. The Court noted that, despite the removal of incarceration as a
possible penalty for possession of less than an ounce of marijuana, marijuana in any amount
remained illegal, and thus still constituted contraband. See id. at 721. The Court stated
that its holding was not limited to situations where a law enforcement officer sees or smells
more than an ounce of marijuana; instead, a law enforcement officer has probable cause to
search a vehicle where the law enforcement officer detects marijuana in any amount. See
id. at 725. Specifically, the Court concluded that the law enforcement officer “had probable
cause to believe [the defendant]’s truck contained contraband after smelling burnt
marijuana near the truck and seeing burnt marijuana in the truck, irrespective of whether
possession of up to an ounce of marijuana is an infraction and not an arrestable offense.”
8
In 2016, after the Court of Appeal of California’s decision in Waxler, California
legalized possession of a small amount of marijuana. See supra note 1.
- 28 -
Id. at 721 (citation omitted). The Court noted that other jurisdictions had reached similar
conclusions. See id.
In Ortega, 749 N.W.2d at 853-54, the Court of Appeals of Minnesota held that the
odor of marijuana provides probable cause to search a vehicle, notwithstanding a statute
under which possession of a small amount of marijuana was not a crime. In Ortega, id. at
852, a law enforcement officer stopped a vehicle in which the defendant was a passenger.
The law enforcement officer noticed an odor of burnt marijuana coming from the vehicle’s
passenger compartment. See id. The driver consented to a search of the vehicle, and the
law enforcement officer asked the defendant to exit the vehicle. See id. The law
enforcement officer patted down the defendant, who handed over a pocket knife and a
small amount of marijuana. See id. A narcotics dog alerted to the vehicle’s center console
and the seat where the defendant had been sitting. See id. The law enforcement officer
searched the vehicle’s center console and found a rolled-up dollar bill with cocaine on it.
See id. at 852-53. The law enforcement officer searched the defendant more thoroughly
and found a folded dollar bill with cocaine on it. See id. at 853. The defendant moved to
suppress the cocaine. See id. at 853.
A trial court denied the motion to suppress, and the Court of Appeals of Minnesota
affirmed. See id. at 852. The Court concluded that the law enforcement officer had
probable cause to search the vehicle based on the odor of marijuana. See id. at 854. The
Court also determined that the law enforcement officer had probable cause to search the
defendant after he handed over a noncriminal amount of marijuana because, whether
detected by sight or smell, the presence of marijuana in any amount in one location
- 29 -
indicates that there may be more in another location. See id. Specifically, the Court held
that the law enforcement officer had probable cause to search the defendant “for a
criminally significant quantity of marijuana upon smelling the odor of marijuana emanating
from within the vehicle,” and that the officer “had an independent basis for probable cause
when [the defendant] later also handed [the officer] the small, noncriminal amount of
marijuana from his pocket.” Id.In Zuniga, 372 P.3d at 1060, the Supreme Court of Colorado held that a law
enforcement officer had probable cause to search a vehicle where, among other
circumstances, the law enforcement officer smelled an odor of marijuana. In Zuniga, id.
at 1054, the law enforcement officer stopped a vehicle in which the defendant was a
passenger. As he approached the passenger-side window, the law enforcement officer
noticed a strong odor of fresh marijuana. See id. The law enforcement officer spoke with
the defendant and the driver, who exhibited extreme nervousness and provided inconsistent
information. See id. at 1055. A law enforcement officer had a narcotics dog scan the
vehicle, and the narcotics dog alerted to the vehicle’s rear hatch, which contained a duffel
bag. See id. The law enforcement opened the duffel bag and found marijuana inside. See
id. The law enforcement officer then opened a cooler that had been next to the duffel bag,
and found more marijuana inside. See id. The defendant admitted that the marijuana in
both containers was his. See id. The defendant moved to suppress the marijuana, and a
trial court granted the motion to suppress, determining that the law enforcement officer
lacked probable cause to search the vehicle. See id.
The government appealed, and the Supreme Court of Colorado reversed. See id. at
- 30 -
1056, 1060. The Court determined that the trial court erred in disregarding the odor of
marijuana in its analysis of probable cause; the Court explained that, even though
possession of up to an ounce of marijuana is legal under Colorado law, several other
marijuana-related activities remained unlawful. See id. at 1059-60. Specifically, the Court
stated: “[T]he odor of marijuana remains relevant to probable cause determinations and
can support an inference that a crime is ongoing even though possession of one ounce or
less of marijuana is allowed under Colorado law.” Id. at 1060. Accordingly, the Court
concluded that an odor of marijuana suggests criminal activity, and remains relevant to an
analysis of probable cause. See id.
By contrast, in Commonwealth v. Overmyer, 11 N.E.3d 1054, 1060 (Mass. 2014),
the Supreme Judicial Court of Massachusetts concluded that the odor of fresh marijuana
did not give rise to probable cause to search a vehicle. In Overmyer, id. at 1055-56, law
enforcement officers responded to a vehicle collision in which the defendant’s vehicle had
rear-ended another vehicle. The law enforcement officers noticed a strong odor of fresh
marijuana near the defendant’s vehicle. See id. at 1056. One of the law enforcement
officers asked the defendant whether his vehicle contained marijuana, and the defendant
responded in the affirmative and provided the key to his vehicle’s glove compartment. See
id. One of the law enforcement officers found a bag of marijuana in the defendant’s
vehicle’s glove compartment. See id. After removing the bag of marijuana, the law
enforcement officers continued to detect a strong odor of marijuana in the defendant’s
vehicle. See id. One of the law enforcement officers questioned the defendant, who
eventually admitted that his vehicle contained more marijuana. See id. One of the law
- 31 -
enforcement officers found a backpack in the defendant’s vehicle’s backseat; the backpack
contained more marijuana. See id. The defendant moved to suppress all of the marijuana
found in his vehicle. See id. at 1057. A trial court denied the motion to suppress as to the
bag that was in the defendant’s vehicle’s glove compartment, but granted the motion to
suppress as to the marijuana that was in the backpack. See id. The State appealed, and,
while Overmyer was pending in the intermediate appellate court, the Supreme Judicial
Court of Massachusetts transferred the case on its own initiative. See id.The Court vacated the trial court’s grant of the motion to suppress, and remanded
with instructions to determine whether the law enforcement officers had probable cause to
arrest the defendant after they seized the marijuana in the glove compartment. See id. at
1060. The Court noted that, in an earlier case, Commonwealth v. Cruz, 945 N.E.2d 899,
910 (Mass. 2011), the Court had held that, because Massachusetts’s legislature had made
possession of one ounce or less of marijuana “a civil violation,” the odor of burnt marijuana
alone did not suggest criminal activity. See Overmyer, 11 N.E.3d at 1058. Addressing the
circumstance of fresh marijuana in Overmyer, id., the Court reasoned that, although the
strength of the odor of fresh marijuana could correlate to the amount of marijuana more
closely than the strength of the odor of burnt marijuana, it did not follow that a strong odor
of fresh marijuana indicated a criminal amount, which was necessary to establish probable
cause. The Court observed that the record contained “no evidence that the officers [] had
undergone specialized training that, if effective, would allow them reliably to discern, by
odor, not only the presence and identity of a controlled substance, but also its weight.” Id.
at 1059. The Court opined:
- 32 -
In sum, we are not confident, at least on this record, that a human nose can
discern reliably the presence of a criminal amount of marijuana, as distinct
from an amount subject only to a civil fine. In the absence of reliability, a
neutral magistrate would not issue a search warrant, and therefore a
warrantless search is not justified based solely on the smell of marijuana,
whether burnt or unburnt.
Id. at 1059-60 (citations and internal quotation marks omitted).
Analysis
Upon careful consideration of the Fourth Amendment jurisprudence of the Supreme
Court, Bowling, and authority from other jurisdictions that have addressed the
decriminalization—or, in one instance, the legalization—of marijuana, we conclude that a
law enforcement officer has probable cause to search a vehicle where the law enforcement
officer detects an odor of marijuana emanating from the vehicle.
Our logic is straightforward. Decriminalization is not the same as legalization.
Despite the decriminalization of possession of less than ten grams of marijuana, possession
of marijuana in any amount remains illegal in Maryland. To be sure, the amended
marijuana statute changed the categorization of, and maximum penalty for, possession of
less than ten grams of marijuana. Specifically, possession of less than ten grams of
marijuana is now categorized as a civil offense rather than a crime, and it is punishable by
a fine, participation in a drug education program, an assessment for substance abuse
disorder, and possible substance abuse treatment, rather than a fine and/or a period of
incarceration. Decriminalization notwithstanding, however, the possession of less than ten
grams of marijuana—i.e., the possession of any amount of marijuana—remains illegal. See
Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2016 Supp.) § 5-601(c).
- 33 -
Petitioners contend that the General Assembly’s intent in decriminalizing
possession of less than ten grams of marijuana is irrelevant to the issue of whether probable
cause exists to search a vehicle based on the odor of marijuana. Although not dispositive
of whether a law enforcement officer may search a vehicle upon detection of the odor of
marijuana, we observe that 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. See 2014
Md. Laws. 1119 (Vol. II, Ch. 158, S.B. 364). Significantly, when decriminalizing
possession of less than ten grams of marijuana, the General Assembly added Md. Code
Ann., Crim. Law (2002, 2012 Repl. Vol., 2014 Supp.) § 5-601(d)(2), which states that the
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) (paragraph break
omitted). As to laws relating to seizure, since 2002, Md. Code Ann., Crim. Proc. (2001,
2002 Supp.) § 12-201(a)(1) has stated: “A Schedule I substance listed in § 5-402 of the
Criminal Law Article shall be seized and summarily forfeited to the State if the substance
is[] possessed, transferred, sold, or offered for sale in violation of the Controlled Dangerous
Substances law[.]” (Paragraph break omitted). Marijuana is, and has been, a Schedule I
substance subject to seizure and forfeiture. See Md. Code Ann., Crim. Law (2002, 2012
Repl. Vol.) § 5-402(d)(1)(vii).
In other words, the plain language of the relevant statutes demonstrate that the
- 34 -
General Assembly expressly indicated that decriminalization of possession of less than ten
grams of marijuana does not mean that law enforcement officers can no longer seize
marijuana. Indeed, Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2014 Supp.) § 5-
601(d)(2) plainly provides that the provisions “making the possession of marijuana a civil
offense may not be construed to affect the laws relating to . . . seizure and forfeiture.”
(Paragraph break omitted). Thus, under the plain language of the statutes, marijuana
remains a Schedule I substance that is subject to seizure and forfeiture, notwithstanding the
circumstance that possession of less than ten grams of marijuana is now a civil offense. By
definition, if law enforcement officers may still seize marijuana, then law enforcement
officers may still search for marijuana.
The legislative history of the amended statute also makes clear that the General
Assembly did not intend to preclude a search of a vehicle based on the odor of marijuana
or to otherwise alter the seizure and forfeiture of marijuana. As the Court of Special
Appeals has observed with respect to the statute’s legislative history:
On April 1, 2014, at the hearing to discuss Senate Bill 364, members of the
House Judiciary Committee questioned whether this bill, as initially drafted,
would cause a change in the existing law authorizing police officers to search
a car based on a K-9 alert. Senator Robert Zirkin, one of the sponsors of the
bill, testified that this was not a problem in most states that had
decriminalized small amounts of marijuana, but he stated that, if the General
Assembly wanted to make that clear, it could amend the bill.
On April 5, 2014, the House Judiciary Committee adopted an
amendment to address this issue. This amendment added the [] language
regarding seizure and forfeiture, which ultimately was codified at [Md. Code
Ann., Crim. Law (2002, 2012 Repl. Vol., 2014 Supp.)] § 5-601(d)[.]
...
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In light of the foregoing, it is clear that the [] General Assembly
intended that marijuana remain classified as “contraband,” and that the
decriminalization of small amounts of marijuana would not affect existing
case law allowing officers to search a vehicle based upon a K-9 alert to the
smell of marijuana.
Bowling, 227 Md. App. at 474-75, 134 A.3d at 397 (citations omitted). In addition to the
testimony referenced in Bowling, at the same hearing, Senator Zirkin testified that “[t]he
intention of this bill is not to stop what would be right now a lawful search incident to
arrest.” See Crim. L. Possession of Marijuana Civ. Offense: Hearing on S.B. 364 Before
the Sen. Jud. Comm., 2014 Reg. Sess. (Md. Apr. 1, 2014). Senator Zirkin clarified that
“[t]his is not legalization.” Id. The legislative history, and the enactment of Md. Code
Ann., Crim. Law (2002, 2012 Repl. Vol., 2014 Supp.) § 5-601(d), make clear that the
decriminalization of possession of small amounts of marijuana was not to affect existing
case law allowing law enforcement officers to search a vehicle based not only upon a K-9
alert to the smell of marijuana, but also based upon a law enforcement officer’s own
detection of the smell of marijuana. In short, the statute’s plain language and legislative
history demonstrate that the General Assembly, in decriminalizing possession of small
amounts of marijuana, did not intend to otherwise alter existing case law concerning the
search, seizure, and forfeiture of marijuana, which remains illegal.
Aside from the statute’s plain language and legislative history, in our independent
assessment of the issue, we conclude that a warrantless search of a vehicle is permissible
upon detection of the odor of marijuana emanating from the vehicle. For purposes of the
Fourth Amendment, probable cause to search exists where a person of reasonable caution
would believe “that contraband or evidence of a crime is present.” Harris, 133 S. Ct. at
- 36 -
1055 (citations omitted); see also Houghton, 526 U.S. at 304 (“contraband or evidence of
criminal wrongdoing”); Brown, 460 U.S. at 742 (“contraband or stolen property or useful
as evidence of a crime”). The Supreme Court’s use of the phrase “contraband or evidence
of a crime” demonstrates that the terms “contraband” and “evidence of a crime” have
different meanings. In our view, “contraband” means goods that are illegal to possess,
regardless of whether possession of the goods is a crime. The definition of “contraband”
that we adopt is warranted by the Supreme Court’s conclusion in Carroll, 267 U.S. at 158-
59, that a law enforcement officer can search a vehicle based on probable cause to believe
that the vehicle’s contents are contraband, even if the law enforcement officer cannot arrest
the driver.
The conclusion that the terms “contraband” and “evidence of a crime” are not
synonymous is supported by the plain meaning of the word “contraband.” Significantly,
the words “crime” and “criminal” do not appear in the definitions of “contraband” in both
Black’s Law Dictionary and Merriam-Webster. Black’s Law Dictionary defines
contraband, in relevant part, as “[g]oods that are unlawful to import, export, produce, or
possess.” Contraband, Black’s Law Dictionary (10th ed. 2014) (emphasis added).
Similarly, Merriam-Webster defines contraband, in relevant part, as “goods or merchandise
whose importation, exportation, or possession is forbidden[.]” Contraband, Merriam-
Webster, http://www.merriam-webster.com/dictionary/contraband [https://perma.cc/
PDL8-V83L] (emphasis added). These definitions support the conclusion that marijuana
in any amount constitutes contraband. Moreover, if “contraband” and “evidence of a
crime” had the same meaning, then it would have been superfluous for the Supreme Court
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to have included “contraband” in its explanation of probable cause.
We recognize that Petitioners argue that the contraband in Carroll, namely, the
prohibited alcohol, was a crime to possess, and that the term “contraband” refers to items
that are criminal to possess. The fallacy of this argument is that, in Carroll, the Supreme
Court concluded that ability to search does not depend on the suspected offense being an
offense for which arrest is authorized. Petitioners rely on Warden, Md. Penitentiary v.
Hayden, 387 U.S. 294, 296 (1967) for the proposition that the Supreme Court considered
the term “contraband,” and concluded that, in the context of the Fourth Amendment, items
that may be searched for include “the instrumentalities and means by which a crime is
committed, the fruits of crime such as stolen property, weapons by which escape of the
person arrested might be effected, and property the possession of which is a crime.”
(Footnote and internal quotation marks omitted). This reliance is misplaced. We observe
that in Hayden, the Supreme Court sought to describe items that may be seized pursuant to
the execution of a search and seizure warrant of a home after a determination of probable
cause has been made. Accordingly, in Hayden, id. at 307, the Supreme Court determined
that there must be a nexus between the items to be seized and the criminal behavior at issue,
i.e., the criminal behavior that necessitated the need for the warrant. With its holding in
Hayden, the Supreme Court sought to define the permissible scope for the seizure of items
from a home upon the execution of a search warrant, and thereby to ensure that seizures in
such circumstances would not be unnecessarily broad or intrusive. This is vastly different
from describing whether a law enforcement officer has probable cause to conduct a
warrantless search of a vehicle based on the belief the vehicle contains contraband or
- 38 -
evidence of a crime. The suggestion that the definition of “contraband” for purpose of the
warrantless search of an automobile is limited to “property the possession of which is a
crime” appears nowhere in the Supreme Court’s decision in Hayden.
We note that, in each of the three instant cases, the first question presented in the
petition for a writ of certiorari referred to the circumstance that, according to law
enforcement testimony, the odor of marijuana was either strong (in Williams and Spriggs)
or overwhelming (in Robinson). Rather than cabining our holding to the requirement that
the odor must be strong or overwhelming, we conclude that the odor of marijuana provides
probable cause to search a vehicle. As discussed above, marijuana in any amount, no
matter how small, is contraband; accordingly, the odor of marijuana constitutes probable
cause to search a vehicle. In other words, for purposes of probable cause, there is no
distinction between the significance of a criminal amount of marijuana versus the
significance of a noncriminal—but still illegal—amount of marijuana. As the parties
acknowledge, it is effectively impossible for law enforcement officers to identify a quantity
of marijuana based on odor alone. Indeed, according to the law enforcement officers’
testimony in the instant cases, the strength of the odor of marijuana and the amount of
marijuana do not always correlate, and even a small amount of the most powerful grade of
marijuana may have a strong odor. Thus, requiring that law enforcement officers detect a
strong or overwhelming odor of marijuana to have probable cause to conduct a warrantless
search a vehicle would serve no useful purpose.
We join the Court of Special Appeals and courts in other jurisdictions in holding
that marijuana remains contraband, despite the decriminalization of possession of small
- 39 -
amounts of marijuana, and that, as such, the odor of marijuana constitutes probable cause
for the search of a vehicle. In Bowling, 227 Md. App. at 476, 134 A.3d at 398, the Court
of Special Appeals held that, notwithstanding the decriminalization of possession of less
than ten grams of marijuana in Maryland, a narcotics dog’s alert provides probable cause
to search a vehicle. In Barclay, 398 A.2d at 798, the Supreme Judicial Court of Maine held
that marijuana was contraband even though a Maine statute made possession of a small
amount of marijuana “a civil violation.” In Smalley, 225 P.3d at 848, the Court of Appeals
of Oregon held that marijuana in any amount is contraband, despite an Oregon statute under
which possession of less than an ounce of marijuana is a civil violation. And, in Waxler,
224 Cal. App. 4th at 715, a Court of Appeal of California held that a law enforcement
officer has probable cause to search a vehicle where the law enforcement officer smells
burnt marijuana and sees burnt marijuana in a pipe in the vehicle, notwithstanding a
California statute that made possession of less than an ounce of marijuana punishable only
by a fine. In Ortega, 749 N.W.2d at 853-54, the Court of Appeals of Minnesota concluded
that the odor of marijuana gave rise to probable cause to search a vehicle, even though
possession of a small amount of marijuana was not a crime in the state. And, in Zuniga,
372 P.3d at 1060, the Supreme Court of Colorado determined that there was probable cause
to search a vehicle where, among other things, a law enforcement officer detected the odor
of marijuana, even though possession of up to one ounce of marijuana is legal in Colorado.
At oral argument, Petitioners’ counsel contended that Barclay, Smalley, Waxler,
Ortega, and Zuniga are unpersuasive because the cases allegedly involve a mechanical
application of the term “contraband,” and the respective appellate courts did not analyze
- 40 -
whether the Carroll doctrine applies to items that are not criminal, but rather are illegal, to
possess. We disagree. Although the appellate courts in other jurisdictions did not
explicitly mention the Carroll doctrine by name, each court determined that probable cause
existed to search a vehicle based on the odor of marijuana where the State had
decriminalized—or, in one instance, legalized—possession of marijuana. In Barclay,
Smalley, and Waxler, the appellate courts specifically determined that marijuana was
contraband notwithstanding its decriminalization; it was still illegal to possess marijuana.
In those three cases, the appellate courts applied the principle that a law enforcement officer
may conduct a warrantless search of a vehicle where the law enforcement officer has
probable cause to believe that the vehicle contains contraband, and the appellate courts
came to the conclusion that a noncriminal amount of marijuana remains contraband. See
Barclay, 398 A.2d at 798; Smalley, 225 P.3d at 848; Waxler, 224 Cal. App. 4th at 720. In
Ortega, 749 N.W.2d at 853-54, and Zuniga, 372 P.3d at 1060, the appellate courts reached
similar conclusions. This is entirely consistent with the Supreme Court’s holding in
Carroll, 267 U.S. at 158-59, that the existence of probable cause to search a vehicle does
not depend on the ability to arrest.9
9
We note that, in Bowling, 227 Md. App. at 470, 134 A.3d at 394, the Court of
Special Appeals distinguished the case of State v. Crocker, 97 P.3d 93 (Alaska Ct. App.
2004), on which the defendant in Bowling relied, explaining:
In Crocker, the Court of Appeals of Alaska held that the “strong odor of
growing marijuana” did not constitute probable cause to support a search
warrant for Crocker’s house because, in Alaska, it is legal to possess less than
four ounces of marijuana for personal use in the home. [97 P.3d] at 95, 97.
The court held that the warrant application needed to establish probable cause
- 41 -
We decline to follow Overmyer, 11 N.E.3d at 1057-58, in which the Supreme
Judicial Court of Massachusetts held that an odor of marijuana does not provide probable
cause to search a vehicle; in so holding, the Court equated “contraband” with criminal
goods. We decline to adopt the Court’s reasoning, as we do not see a basis for determining
the existence of criminal contraband as opposed to other types of contraband. As discussed
above, the term “contraband” includes more than items or goods that are criminal to
possess, but may also include items or goods that are simply illegal to possess.
Overmyer has the effect of precluding all warrantless searches of vehicles based on
the odor of marijuana, which would not be a salutary development in Maryland. The
Supreme Judicial Court of Massachusetts theorized that it may be possible for a law
enforcement officer to be trained to gauge the amount of marijuana based on odor alone,
but based its holding on the circumstance that the record did not demonstrate that a law
enforcement officer could discern a criminal amount of marijuana. See Overmyer, 11
N.E.3d at 1059. It is unclear, however, whether the training to which that Court referred
would ever be possible at all, let alone effective. Thus, were we to adopt the rationale of
Overmyer, unless law enforcement officers were trained to detect by odor alone the
that the possession of marijuana was illegal. Id. at 94. That case is inapposite
because, as explained, possession of marijuana in any amount remains illegal
in Maryland.
We observe that, in addition to possession of marijuana in any amount remaining illegal in
Maryland as opposed to the circumstance in Alaska where statutes provided that adults
may possess any amount less than four ounces of marijuana in the home for personal use,
Crocker, 97 P.3d at 94, is further distinguishable because it involved execution of a search
warrant of a home, and not a warrantless search of a vehicle.
- 42 -
difference between less than ten grams of marijuana and ten grams or more of marijuana,
law enforcement officers would not be able to conduct warrantless searches of vehicles
based on the odor of marijuana. This would permit a myriad of crimes to go undetected.
Indeed, at oral argument and in its brief, the State argued that, separate from the
odor of marijuana providing probable cause to believe that a vehicle contains contraband,
the odor of marijuana provides probable cause to believe that a vehicle contains evidence
of a crime. Put simply, we agree. Despite the decriminalization of possession of less than
ten grams of marijuana, the odor of marijuana remains evidence of a crime. The odor of
marijuana emanating from a vehicle may be just as indicative of crimes such as the
possession of more than ten grams of marijuana, possession of marijuana with the intent to
distribute, or the operation of a vehicle under the influence of a controlled dangerous
substance, as it is of possession of less than ten grams of marijuana. As explained above,
it is unreasonable to expect law enforcement officers to determine, based on odor alone,
the difference between 9.99 grams or less of marijuana and 10 grams of marijuana. In
short, possession of ten grams or more of marijuana, crimes involving the distribution of
marijuana, and driving under the influence of a controlled dangerous substance have not
been decriminalized in Maryland, and, thus, the odor of marijuana emanating from a
vehicle provides probable cause to believe that the vehicle contains evidence of a crime,
and a law enforcement officer may search the vehicle under such circumstances.
We find no merit in the contention that it is unreasonable to permit law enforcement
officers to conduct a warrantless search of a vehicle based on the odor of marijuana.
Petitioners argue that Carroll and its progeny do not answer the question of whether it is
- 43 -
reasonable to permit law enforcement officers to search for noncriminal items, and that
warrantless searches should not be permitted where officers could not obtain a search
warrant. In Maryland, marijuana, in any amount, is a Schedule I substance. See Md. Code
Ann., Crim. Law (2002, 2012 Repl. Vol.) § 5-402(d)(1)(vii). By statute, all Schedule I
substances are subject to seizure and summary forfeiture “to the State if the substance[] is
possessed, transferred, sold, or offered for sale in violation of the Controlled Dangerous
Substances [L]aw[.]” Md. Code Ann., Crim. Proc. (2001, 2002 Supp.) § 12-201(a)(1)
(paragraph break omitted). Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2014
Supp.) § 5-601(c)(2)(ii), which makes possession of less than ten grams of marijuana a
civil offense, is part of the Controlled Dangerous Substances Law. And Md. Code Ann.,
Crim. Law (2002, 2012 Repl. Vol., 2014 Supp.) § 5-601(d)(2) provides that the provisions
“making the possession of marijuana a civil offense may not be construed to affect the laws
relating to . . . seizure and forfeiture.” (Paragraph break omitted). Because marijuana, in
any amount, is subject to seizure and forfeiture, it can be the legitimate object of a search
warrant, notwithstanding the circumstance that possession of less than ten grams of
marijuana is a civil offense. Indeed, Md. Code Ann., Crim. Proc. (2001, 2008 Repl. Vol.,
2014 Supp.) § 1-203(a)(1)(ii) provides that “[a] circuit court judge or District Court judge
may issue forthwith a search warrant whenever it is made to appear to the judge, by
application . . . , that there is probable cause to believe that[] property subject to seizure
under the criminal laws of the State is on the person or in or on the building, apartment,
premises, place, or thing.” (Paragraph break omitted). The seizure of Schedule I
substances is authorized under the criminal laws of the State of Maryland, and nothing in
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Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2014 Supp.) § 5-601 purported to alter
the classification of marijuana as a Schedule I substance. Because marijuana is property
subject to seizure under the criminal laws of the State, a search warrant may be obtained.
We observe that our holding in the instant cases does not in any way impede the
ability of eligible persons to possess and/or use marijuana for medical purposes. Under
Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2016 Supp.) § 5-601(c)(3)(iii)1, in a
prosecution for possession or use of marijuana, a defendant may raise as an affirmative
defense the circumstances that “the defendant has a debilitating medical condition that has
been diagnosed by a physician with whom the defendant has a bona fide physician-patient
relationship”; “the debilitating medical condition is severe and resistant to conventional
medicine”; and “marijuana is likely to provide the defendant with therapeutic or palliative
relief from the debilitating medical condition.” (Paragraph breaks omitted). Under Md.
Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2016 Supp.) § 5-601(c)(3)(iii)2A, in a
prosecution for possession of marijuana, a defendant may raise as an affirmative defense
the circumstance that “the marijuana was intended for medical use by an individual with a
debilitating medical condition for whom the defendant is a caregiver.” Md. Code Ann.,
Crim. Law (2002, 2012 Repl. Vol., 2016 Supp.) § 5-601(c)(3)(iii)3A and B provide that a
defendant may not raise an affirmative defense if the defendant was either “using marijuana
in a public place or assisting the individual for whom the defendant is a caregiver in using
the marijuana in a public place” or “in possession of more than 1 ounce of marijuana.”
Code of Maryland Regulations (“COMAR”) 10.62.04.02 and 10.62.04.04 require
medical marijuana patients and caregivers, respectively, to apply for registration with the
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Natalie M. LaPrade Maryland Medical Cannabis Commission (“the Cannabis
Commission”).10 COMAR 10.62.06.01 and 10.62.06.02 enable medical marijuana patients
and caregivers, respectively, to apply for Cannabis Commission-issued identification cards
that include the registration numbers that the Cannabis Commission has assigned to the
medical marijuana patients and caregivers.
Further, Md. Code Ann., Health-Gen. (1982, 2015 Repl. Vol.) § 13-3313(a)
provides, in pertinent part, as follows:
Any of the following persons acting in accordance with the provisions of this
subtitle may not be subject to arrest, prosecution, or any civil or
administrative penalty, including a civil penalty or disciplinary action by a
professional licensing board, or be denied any right or privilege, for the
medical use of cannabis:
(1) A qualifying patient:
(i) In possession of an amount of medical cannabis determined
by the [Cannabis] Commission to constitute a 30-day supply; or
(ii) In possession of an amount of medical cannabis that is
greater than a 30-day supply if the qualifying patient’s certifying
physician stated in the written certification that a 30-day supply would
be inadequate to meet the medical needs of the qualifying patient;
...
(4) A caregiver[.11]
10
In 2013, the General Assembly authorized the Cannabis Commission, which was
originally entitled the Natalie M. LaPrade Medical Marijuana Commission. See 2013 Md.
Laws 3625 (Vol. IV, Ch. 403, H.B. 1101). The General Assembly directed that the
Cannabis Commission would be independent, but would function within the Department
of Health and Mental Hygiene. See id. at 3623. In 2015, the General Assembly gave the
Cannabis Commission its current name. See 2015 Md. Laws 1164 (Vol. II, Ch. 251, H.B.
490).
11
The Cannabis Commission’s website advises medical marijuana patients that, if a
law enforcement officer stops them, they do not have to disclose that they possess
marijuana, and do not have to consent to a search; however, if a law enforcement officer
- 46 -
Permitting law enforcement officers to conduct a warrantless search of a vehicle based on
the odor of marijuana will have no effect upon the statutes and regulations pertaining to
medical marijuana.
Conclusion
For the reasons set forth above, we hold that a law enforcement officer has probable
cause to search a vehicle where the law enforcement officer detects an odor of marijuana
emanating from the vehicle, as marijuana in any amount remains contraband,
notwithstanding the decriminalization of possession of less than ten grams of marijuana;
and the odor of marijuana gives rise to probable cause to believe that the vehicle contains
contraband or evidence of a crime. Applying our holding to the instant cases, we conclude
that there was probable cause to search the vehicles in question, based on a law enforcement
officer having detected an odor of marijuana coming from a vehicle that Petitioner had
been driving or in possession of. Accordingly, we affirm the judgments of the Court of
Special Appeals.
IN CASE NO. 37, JUDGMENT OF THE COURT
OF SPECIAL APPEALS AFFIRMED.
PETITIONER TO PAY COSTS.
IN CASE NO. 39, JUDGMENT OF THE COURT
OF SPECIAL APPEALS AFFIRMED.
PETITIONER TO PAY COSTS.
conducts a search and finds marijuana, a medical marijuana patient should offer his or her
Cannabis Commission-issued identification card and direct the law enforcement officer to
the Cannabis Commission’s database. See Patients FAQ’s, Natalie M. LaPrade Maryland
Medical Cannabis Commission (updated Dec. 7, 2016), http://mmcc.maryland.gov/pages/
patients/patients_faq.aspx [https://perma.cc/P8XH-T7XB].
- 47 -
IN CASE NO. 46, JUDGMENT OF THE COURT
OF SPECIAL APPEALS AFFIRMED.
PETITIONER TO PAY COSTS.
- 48 -