RASHERD LEWIS v. STATE OF MARYLAND
Court of Special Appeals of Maryland, Graeff, June 28, 2018,
Arrest – Odor of marijuana coming from an individual can provide probable cause to arrest that person

(Concur – Arthur – If I were writing on a blank slate, I would reverse the conviction.)
(Dissent – Nazarian – Robinson doesn’t require holding in this case)

Facts:
In 2017, BPD Officer Burch received a tip that a man with a certain clothing description and a red bag had a gun in the area of Eutaw and Saratoga. Officer Burch testified that he had received information from this source for a little less than a month, but the information had been reliable. No further information was introduced about the tip was or about the source of the information other than Officer Burch’s testimony that the source was not providing information for money.
Officer Burch notified City Watch, who saw an individual matching that description inside of the nearby Bag Mart store.
Officer Burch responded to the store, known to him as a drug-trafficking location with numerous prior calls for service, and noted the odor of marijuana. Officer Burch saw Lewis holding a red bag and approached him. Officer Burch testified that, when he was “literally right in front of” Lewis, he “smelled an odor of marijuana emitting from Lewis’s person.” Officer Burch stated that the odor “could have been from his breath when I was speaking with him or on his person.”
Officer Burch then stopped Lewis and conducted a search. Located in the red bag was a handgun. Located in Lewis’ jacket was a ziplock containing less than 10 grams of marijuana.
At trial, Lewis attempted to have the evidence suppressed. Lewis argued that Officer Burch did not have reasonable suspicion to detain him and illegally searched him.
The trial judge found that the tip wasn’t enough to justify the stop because there was insufficient testimony about the reliability of the information and informant. However, the judge found that Officer Burch “detected the odor of marijuana coming from Lewis’ person specifically and the odor of marijuana emanating from Lewis may be just as indicative of possession of more than ten grams or less than ten grams.” Therefore, the judge found that there was probable cause.
After the evidence was ruled admissible, Lewis pled out on an agreed statement of facts.
Lewis then appealed, arguing that the handgun and marijuana were the result of an illegal seizure and illegal search.

Held: The Court of Special Appeals held that the officer’s detection of the odor of marijuana coming from Lewis gave probable cause to arrest and search him.

Seizure – A “seizure” (stop) occurs when a suspect stops in response to police action that “would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”

Seizure – An arrest must be justified by probable cause, which “we must remember, is not a high bar.” Probable cause does not require a preponderance of the evidence, but only a “fair probability on which a reasonably prudent person would act.”

Marijuana – Maryland courts “consistently have held that the odor of marijuana provides probable cause to believe that marijuana is present.”

Marijuana – Even though Maryland has decriminalized possession of less than 10 grams of marijuana, “the odor of marijuana remains evidence of a crime.”

Practice Note: While this allows arrest and thus a search incident to arrest, what the officer finds during the search will determine how the suspect will be charged.

Marijuana – However, just because marijuana is present does not automatically mean that there is probable cause that a particular person is committing the crime of marijuana possession. To have probable cause to arrest, an officer must connect the suspect to the marijuana through investigation and/or observation.

Marijuana – Arrest – “If an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana.”

From the Case: “Here, there was probable cause to believe that Lewis was, or had been, in possession of marijuana. In so concluding, we do not suggest that a general odor of marijuana in a certain location provides probable cause to arrest a person in the area. Indeed, the general odor of marijuana that the officers smelled when they initially entered the store would not provide probable cause to arrest appellant because it could not initially be tied to Lewis alone.”

Searches – A warrantless search is illegal unless it falls into one of the exceptions to the search warrant requirement.

Note: Some of these SSW exceptions are:
– Search incident to arrest
– Exigent circumstances (hot pursuit, etc)
– Community caretaking (inventory searches, etc)
– Consent search
– Frisk for weapons
– Probable cause search of a Vehicle (“Carroll” search)

Search Incident to Arrest – When a suspect is arrested, police may search:
– The person of the suspect being arrested
– The area in the suspect’s immediate control

Search Incident to Arrest – A search incident to arrest may include “any container within an arrestee’s immediate control at the time of arrest”

Search Incident to Arrest – A search incident to arrest may be conducted as long as it is “essentially contemporaneous with the arrest.”

Practice Note: While courts may be forgiving of a search made before a formal arrest is made, this risks evidence being excluded if a judge finds that the search was too far removed from the arrest. Best practice would be to make the arrest and then search the suspect unless circumstances make this impractical. If you end up searching first, be sure that your report clearly indicates that the suspect was already going to be arrested before the search was performed.

From the Case: “Here, where Officer Burch smelled the odor of marijuana emanating from appellant’s person and localized to appellant, he had probable cause to arrest appellant and search him incident to that arrest.” Thus, the gun found in the backpack was legally obtained and properly admitted against Lewis at trial.