Read on Twitter
Breaking: Maryland courts rule the smell of marijuana is not probable cause, overturning previous finding in Lewis v Maryland.
Ruling filed today.
There were some questions about whether or not this applies to odor from a car also or just a person. There are two previous rulings discussed in the finding. ROBINSON ruled that police could still search cars post-decrim if they smell MJ. PECHECO was mixed...
... distinguishing between car/person. But it did favor the defendant, in that it didn't allow that a smell/sight of a joint indicated a criminal amount. This case refers to a person but also refers to smell. A defense attorney said it applies to both. It may be tested for a car.
Honestly the courts have continued to insist, as in PACHESO (left), that PC to search a car and a person are not the same. BUT the conclusion here (right), which is a case about a person, really does sound broad. Smell alone isn't enough.
So I can see why the defense attorney is confident this will also apply to cars!
Been listening to lawyers talk about this online... So cops can still use "smell of MJ" maybe as probable cause to pull someone over for DUI/DWI but I don't think that gives PC to search the vehicle at least. There are other relevant cases, like this one. https://en.wikipedia.org/wiki/Arizona_v._Gant
So to amend the original point: smell is not PC for warrantless search. It might be for DWI/other. And whether or not this applies to searches of cars will prolly be tested. It seems like the "car exemption" is holding on by a thin strand...
I just keep reading the conclusion here and it says, "The odor or marijuana alone does not indicate the quantity, if any, of marijuana in someone's possession." It doesn't say on one's person.
I'm eager to hear the courts say that that doesn't apply to cars. The previous arguments for the "car exemption" weren't great, but they sure made them.
Happy to chat with more lawyers about this, but prefer talking to lawyers who regard the law as flexible and words as not the same as meanings. I love that kind. I used to teach LSAT, so I have never been of the belief that a law degree is a sign of absolute knowledge, no offense
The more I learn about car exemptions to the 4th amendment, the angrier I get. I can see that the courts will hold onto car exemptions as a matter of principle absent logic or rights, just because they've been around since the 20s. https://en.wikipedia.org/wiki/Motor_vehicle_exception
The rulings here - Robinson, Pecheco, and this one - make a lot more sense in light of the courts holding onto car exemption for the sake of it. No cars didn't exist when the constitution was drafted, so they found a way around "person or home."
Some people live in their cars. And lo and behold, they treat motor homes like cars in a lot of cases, legally. Depressing when you realize a lot of the courts' activity has been about limiting vs upholding our rights. https://en.wikipedia.org/wiki/California_v._Carney
Short answer: Judges may push back, until the next ruling, but a good MD lawyer should be able to at least use this finding to fight searches of your car based on smell of MJ alone. And if your lawyer says "sorry can't, Robinson" perhaps seek another. There are so many.
And searches of your person are definitely 100% out, even if conducted during a traffic stop. And even a DWI stop based on MJ smell alone does not, by itself, give permission to search your car except what is in plain view.
Unless they impound it. PHEW I hate it here.
