Maryland Legislature

Published on: April 28, 2022

Marijuana Legalization in Hands of Voters

The legalization of marijuana in Maryland is now officially in the hands of the voters, as the cannabis reform bill became law at the recent close of the 2022 legislative session in Annapolis. Rather than endorse the bill with his signature, the governor simply let it take effect without a veto. The difference is mere from over function, and accumulating the votes is the only major hurdle that remains for state sponsored recreational cannabis. House Bill 837 lays out the basic rules for implementation of the policy, and if the referendum passes in November, lawmakers will be back at it in 2023 to provide the finishing touches. The bill is over 50 pages and packed with financial and data collecting components that we will not dissect in this post. Rather, we’ll focus on the criminal law aspects of the bill that will have a direct impact on law enforcement’s marijuana related contact with citizens.

There are two important dates to mark down when first reading the bill, as none of the provisions will become state law immediately upon passage of the referendum in November. Assuming the voters do what the polls have predicted and vote yay on the law, the earliest date that marijuana will officially become legal is July 1, 2023. But, come January of 2023 it will no longer be a crime to possess more than 10 grams of marijuana. The new threshold amount for criminal charges to kick in will become 2.5 ounces. Possession of marijuana less than 2.5 ounces will temporarily become a civil offense punishable by a fine of up to $250. If the amount is less than 1.5 ounces the fine will be capped at $100. The legislature has also finally considered the various forms of cannabis products in the new law, and that is a good thing for those who are found with products such as concentrates and edibles. Currently a person in possession of a THC vape cartridge or a container of gummies could face charges for possession not marijuana, which is a more serious offense than possession over 10 grams. The new law includes all THC related products and breaks them down into a “civil amount” and a “personal use” amount. A civil amount includes less than 2.5 ounces of flower cannabis, less than 20 grams of concentrates (oil or shatter) and less than 1,250 milligrams of general THC products (edibles). A personal use amount is less than 1.5 ounces of flower, less than 12 grams of concentrates and less than 750 milligrams of THC edibles. Personal and civil use will dictate the amount of fines, and the amount a person is able to share with another. Assuming the referendum passes, the legislature will have to decide whether to use the same personal use or civil use amounts, or different amounts that would be legal for adults to possess.

Another major criminal law component of the bill includes modified penalties for possession with intent to distribute marijuana and manufacturing (growing) cannabis plants. Come 2023 it will no longer be a felony to sell, grow or possess with intent to distribute pot or THC products. The potential punishment will be a misdemeanor with a 3-year maximum jail sentence, though trafficking in marijuana will remain a felony. Manufacturing charges will only apply to adults over the age of 21 growing more than 2 plants, and the 2-plant limit applies to the entire household. It will not be a crime starting in 2023 to grow up to two cannabis plants in a home, as long as certain safety precautions are met. Other provisions of the law include mandatory expungement and the release of those serving jail time for marijuana possession cases and the shortening of the expungement process for possession with intent to distribute marijuana.

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Published on: April 21, 2022

Maryland Legislative Session Adjourns for 2022

By Benjamin Herbst

The 2022 Maryland legislative session has come to a close, and now the Governor must decide the fate of numerous bills that passed the House and Senate. In total there were 140 enacted bills this year, but less than 20 were criminal law related. There will be no groundbreaking criminal laws going into effect this year, though the marijuana referendum will steal headlines for several weeks in the fall, and again when recreational marijuana becomes a reality. Regardless of the lack of headlines, there are still multiple new criminal laws worth discussing. First, lawmakers took measures to beef up the penalty for a violation of a protective order by prohibiting merger for sentencing with the underlying act that caused the violation. This means if a person violates a protective order by trespassing, assault, harassment or other related offense he or she may be sentenced for that act and the protective order violation. The sentences could be consecutive, which means a first-time offender could face an additional 90 days in jail, and a subsequent offender could face an additional year. The law also reaffirms that a police officer shall arrest a person believed to have violated an interim, temporary or final protective order.

Another criminal bill passed by the Maryland General Assembly this year includes a provision that will limit the use of the spousal privilege in criminal trials. A person cannot be compelled to testify against his or her spouse for second degree assault and other misdemeanor offenses, but the law currently does not require the marriage to have been in effect before the crime. Apparently there have been cases where a defendant and a victim decided to marry while the criminal case was pending, and then assert the privilege. Somehow lawmakers caught wind that this was an ongoing issue, and decided to take a stand. When this provision becomes law, the prosecution will be required to ask a victim when he or she became married to the defendant. Lawmakers additionally passed a bill authorizing local animal control offices to recover costs of housing and treating animals that are seized as a result of animal cruelty charges or other violations. The law will limit the amount recovered to $15 per day per animal, which will also prohibit animal control from abusing their right to recover costs. Other new criminal laws include a provision where the Department of Public Safety and Correctional Services to notify the Baltimore Police Department within 24 hours of each person released from a pre-trial detention facility. This piece of legislation is another example of the state telling the Baltimore City government that it has been wholly incompetent in keeping the peace. The state and the feds will likely keep intervening with the hope that violence will one day start to decline in Maryland’s largest city.

This year lawmakers made an effort to expand the definition of the crime of stalking to include electronic communication and tracking. It is now a crime to use a phone or other device that can locate another person’s phone without their consent. Electronic communications currently are a means to establish harassment course of conduct and protective order violations, but now these communications can be used to prove stalking. Under Maryland law stalking is a misdemeanor, but carries a harsh 5-year maximum penalty. The Blog will continue to follow the new criminal laws passed this year, and will update as more news comes from the governor’s office. We will also continue to follow the marijuana referendum that is scheduled for November. If you have a criminal law question or have been charged with an crime or traffic violation, contact Maryland criminal defense lawyer Benjamin Herbst anytime for a free consultation. Benjamin specializes in domestic violence charges such as assault, protective order violations, harassment and stalking. He is available 7 days a week at 410-207-2598 for a free consultation and offers flexible payment arrangements for criminal cases. Benjamin is also licensed to practice law in Florida and the federal criminal defense in Baltimore, Greenbelt, Salisbury and the various military bases in Maryland.

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Published on: April 8, 2022

Interlock May Become Mandatory in PBJ Cases

By Benjamin Herbst

In 2016 Maryland lawmakers passed Noah’s Law, which mandated the installation of engine interlock devices for anyone convicted of DUI. The law also significantly increased administrative driver’s license suspensions for those who either refused to take a breathalyzer test or for those who tested over the legal limit of .08. Interlock devices, commonly known as “blow and goes”, require a driver to produce a negative breath alcohol test prior to starting the car, and at random times during the car trip. They have become more technologically advanced over the last several years, and most now include cameras to verify the person giving the breath sample is actually the driver. The technology has its faults though, and we have seen numerous cases of the devices malfunctioning or causing damage to vehicles. Despite some shortcomings, interlock devices have been hailed by lawmakers and lobbyists as highly effective at reducing the number of impaired drivers on the road. There were apparently 3,700 failed interlock tests in 2021 that resulted in the vehicle being disabled, and those in support of the devices have been quick to conclude this number directly translated to 3,700 less drunk drivers on the road. Regardless of the exact numbers, the devices for the most part do what they are intended to do, and as a result have become a massive business for manufacturers and installers.

While Noah’s law was considered groundbreaking at the time, and resulted in many states following suit with their own interlock requirements, there are what some consider shortcomings in the law. Currently judges are only required to order a defendant to install interlock upon a conviction for DUI. This means than defendants who receive probation before judgment or PBJ are not required by law to install interlock. Over the years judges in Maryland have become stricter when it comes to granting PBJ in DUI cases, and it is no longer a forgone conclusion for first-timers. On the other hand, first-time offenders who have done all the right things leading up to court (completing alcohol education etc.) and show remorse have a good chance of leaving court with a PBJ. According to reports nearly half of the 14,000 Maryland drunk driving defendants received PBJ in 2021, and the percentage of first-time offenders receiving PBJ would likely be much higher than 50%. In addition to the PBJ loophole, defendants convicted of DWI, which carries lower maximum jail time, fines and points, can currently avoid installing interlock in their cars. Strengthening Noah’s law would likely result in all DUI and DWI defendants who enter guilty pleas being required to install interlock.

The interlock bills being debated in Annapolis deal with requirements imposed by a judge in court, but the court case is only half the equation in a drunk driving case. A Maryland driver who is charged with DUI or DWI and refuses to take a breathalyzer test must currently must install interlock in order to avoid a mandatory license suspension of 270 days. Defendants who take the test and blow over .15 must also install interlock or face a 6-month suspension. These requirements are imposed administratively by the MVA, and can only be amended at a hearing in limited circumstances. A Maryland driver who refuses the breath test or blows over .15 may be able to secure a work vehicle exception to the interlock requirement by requesting a hearing in front of an Administrative Law Judge or ALJ. An ALJ can also grant a work-only restricted license in cases where the defendant blew under .15, but cannot grant a restricted license in a refusal case. These time frames are for first time offenders, and repeat offenders could face as much as a two-year suspension in refusal cases.

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Published on: March 29, 2022

Two Marijuana Legalization Bills Pass House

By Benjamin Herbst

The Maryland House of Delegates has done its part to assure that Maryland will legalize the recreational use of marijuana in the near future, and now the matter is in the hands of the Senate. Back in December we posted about House Bill 1 that was pre-filed before the 2022 legislative session began in Annapolis. The bill was designed to get the ball rolling and establish that legalizing marijuana would ultimately be up to Maryland voters in the November general election, and it passed easily in the House. The next step was to hammer out the specific regulations regarding recreational cannabis use, and this bill, House Bill 837 also passed easily. Last week both of these bills were up for discussion in the Senate, and it appears there will be no major roadblocks to coming up with a mutually agreeable policy.

House Bill 837 lays a detailed foundation for what Maryland citizens can expect if recreational cannabis passes in November. Senate Bill 833 attempts to carve out the same regulations, but it differs slightly in terms of lawful amounts and potential punishments for violations. The bill that ultimately passes the General Assembly will probably be a conglomerate of both bills, so at this point we’ll just point out the general rules that citizens can expect when pot becomes legal in 2023. The House and Senate both agree that the lawful amount of marijuana a person can possess in public should be more than 10 grams. The House is currently proposing a personal use limit of 1.5 ounces or 2 plants, while the Senate is proposing 2 ounces or up to 4 plants. It seems that anyone 21 or older will be able to possess at least 1.5 ounces without fear of being issued a civil citation for unlawful possession of marijuana. The House also included a separate threshold for the “civil use amount” but his seems unnecessary and confusing. Both the House and Senate seem to agree that smoking pot in public should be a civil offense punishable by a fine. Those who are in violation would be issued a civil violation citation by a police officer, which is similar to a traffic citation. The person receiving the citation could pay the fine, request community service in lieu of the fine or request a trial date to contest the citation (or ask for probation before judgement). Defendants who are charged with civil marijuana violations must respond to the citation in some manner, or risk having their case become part of the public record.

The House and Senate also addressed the cultivation of marijuana and potential violations for exceeding the permitted amounts in their respective bills. The House seemed to bring the hammer when it comes to growing pot, as its proposal makes it a misdemeanor punishable by up to 3 years in jail for growing more than 2 plants. The Senate bill maintains that growing more than 4 plants would be illegal, but only trigger a civil violation. It is important to understand that the eventual recreational cannabis law would still prohibit distribution or possession with intent to distribute. There has been no indication that this offense would be reduced to a misdemeanor, though at some point in the future this could be something lawmakers consider. The Maryland sentencing guidelines are already changing this summer independent of cannabis legislation, and the recommended sentences for most drug cases are thankfully decreasing. It would be nice if we could affirmatively say that no street level marijuana transactions could result in a jail sentence, but it seems we’re just not there yet. On the other hand, the House and Senate seem to agree that those with prior marijuana related cases should not be at risk of damaging background checks. When the law goes into effect next year it will almost certainly include provisions for the automatic expungement of older cannabis cases.

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Published on: March 22, 2022

State Lawmakers Pushing Juvenile Justice Reform

By Benjamin Herbst

This past week in Annapolis a sweeping juvenile justice reform bill passed in the Maryland Senate, and now the bill heads to the House for debate. The 23-page bill proposes numerous modifications to the existing juvenile justice system, but perhaps the most noteworthy is the section that would eliminate most prosecutions of juveniles under the age of 13. Juvenile criminal courts currently have jurisdiction over children as young as 7, but the new measure would end criminal prosecution of children under 13 unless they are charged with crimes of violence such as first-degree assault, robbery, felony sex offenses, arson and attempted murder. In these situations, the minimum age for criminal prosecution in a Maryland juvenile court would become ten. This measure would free up resources for juvenile offenders who are facing more serious charges, and who may benefit from a wider range of services provided by the department.

Another major change proposed in the juvenile justice bill would give more authority for intake officers to resolve cases before they are sent to court. Currently juvenile services intake officers must forward all felony cases to the State’s Attorney’s Office. The State then has 30 days to decide whether to file a juvenile delinquency petition in the appropriate circuit court. In contrast, a juvenile intake officer may resolve a misdemeanor by closing the case with a warning or offering informal supervision. Misdemeanor cases would still be able to be filed in the circuit court if the State or the victim objects to the intake officer’s decision. This is a long overdue modification, as it is a major waste of resources to set juvenile cases for intake hearings if there is no chance the case can be resolved. Intake hearings for felony cases are currently futile, as the officer’s hands are tied. Rather than keep a blanket provision that strips the intake officers of power to do their job, the legislature is moving toward trusting the officers to make a decision on a case-by-case basis. There are limitations on this proposal however, as intake officers would still have to forward all felony crimes of violence to the State, as well as cases where the allegation is causing or attempting to cause death or physical injury to another. The physical injury terminology may have to be revised to reflect serious bodily injury though, as physical injury is a rather general term.

The bill also adds a provision that allows the State and the defense to hold delinquency proceedings in abeyance in favor of a term of informal adjustment. If the State and defense agree, the child may have the ability to complete certain conditions and then be awarded with a dismissal of the delinquency petition. This type of diversionary track has traditionally been accomplished by way of a STET, but establishing an official system to avoid adjudications going on a juvenile’s record is a welcomed tool. Other new provisions include reducing the time between detention hearings for all juveniles held to every 14 days instead of every 25 days, and barring juveniles from being sent to out-of-home placements if the most serious charge is a misdemeanor or on a technical violation of probation. Firearm offenses would be the exception to this provision, and may still result in placement out of the home.

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Published on: March 17, 2022

Ghost Gun Bills Advance in Annapolis

By Benjamin Herbst

There was significant movement last week in highly publicized state measures to curb the circulation of unserialized firearms commonly known as ghost guns. Both the House and Senate preliminarily approved legislation that would eventually ban the sale and ownership of the untraceable firearms in Maryland. These untraceable guns have been a major point of contention for police and law makers alike, and have undoubtedly contributed to an increased number of gun crimes over the past couple of years. The gun components are often made of polymer or other materials that are easy to fashion yet strong enough to withstand the explosion of a cartridge being fired, and are relatively cheap. Basically, anyone with internet access and a Venmo account could order the components to make a working firearm in a matter of hours. Therefore, it’s no surprise that a state like Maryland that already has some of the toughest gun laws in the country is making serious moves to eliminate untraceable firearms.

Ghost guns are generally defined as firearms that lack an identifiable serial number and are manufactured privately or in the home. The parts are typically purchased in kits or created at home using 3D printers, thought the kits are more common these days. Federal law does not prohibit private individuals from manufacturing their own firearms for personal use, but does place firm restrictions on the manufacture of firearms for sale or distribution. Gun parts manufacturers that sell these kits are able to skirt federal restrictions by only selling parts that are considered unfinished. The difference between a finished and unfinished gun receiver (the part that joins the firing components) is a fine line in which the manufacturers are fully versed. They intentionally sell receivers that are less than 80% finished and require some basic machining, for which they provide the drill bits and instructions. Obtaining ammunition is still a task that presents a challenge for those prohibited from possessing firearms, but ammo is cheap and small, and thus easy to purchase or obtain unofficially.

After a bit of back and forth over the last couple of months it seems the General Assembly has settled on a timeframe for implementing the ghost gun ban, and also prospective punishments for those who violate. First, the prohibition will not become law until March 1, 2023 at the earliest. Second, the punishments for violating the ghost gun laws have been slightly reduced to a maximum of two years in jail for possession and a maximum five years in jail for sale or distribution. Both of these offenses would be misdemeanors, thought a defendant may still be charged with additional applicable felonies such as possession of a firearm by a convicted felon and possession of a firearm in a drug trafficking crime. There may also be a provision in the law that requires the State to prove an element of knowledge. In other words, it may be a defense if the person charged did not reasonably know the firearm was a ghost gun. Under potential ghost gun laws, the State Police would be tasked with establishing databases for ghost guns and tracking serial numbers to make sure there are no duplicates.

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Published on: December 26, 2021

Maryland Lawmaker Introduces Marijuana Legalization Bill

By Benjamin Herbst

The 2022 Maryland legislative session is still a few weeks away from commencing, but there is already a proposed bill on the books. House Bill 1 was pre-filed last week by a state delegate from Baltimore City, who is also the chairman of the state’s cannabis workgroup that was formed over the summer. The text of the bill was made available to the public on December 22 but will not officially be introduced in Annapolis until January 12, 2022. The bill basically directs the General Assembly to create law governing the legal use of cannabis for all adults over age over 21 as long as it passes in the next general election. This means voters will ultimately decide whether marijuana becomes legal in November of 2022. The question on the ballot will be short and sweet, and read “Do you favor the legalization of adult-use cannabis in the State of Maryland”. As regular readers are aware, cannabis legalization has consistently been supported by the majority of Maryland residents according to scientific polling. The most recent polling conducted by Goucher College in Towson has support for legalization over 60 percent, which is well beyond the possible margin of error. If the voters act as Goucher predicts it looks like we’ll have recreational marijuana for sale in Maryland as early as July of 2023.

In order for this pre-filed bill to make it to become law and end up on the ballot in November it would have to be approved by at least three fifths of the total members of the House and Senate. In reality there will likely be at least four fifths or 80 plus percent of lawmakers supporting the proposed referendum when it’s all said and done. The legislature will then get busy creating rules for use, distribution, possession, regulation and taxation of cannabis within the state. Two of the main issues regarding cannabis legalization (at least in the eyes of lawmakers) are determining where the tax revenue will go and addressing the impacts to law enforcement and the rest of the criminal justice system. Some lawmakers have expressed concerns over the possibility of increased cases of impaired driving, and the inability of police to determine impairment, though law enforcement officers are already trained to recognize impairment from other substances besides alcohol. Additionally, the standardized roadside exercises created by the NHTSA are not only designed for alcohol use.

The real drastic change for law enforcement after marijuana is legalized will be with probable cause determination to search upon stopping a vehicle. Police will no longer be able to search a vehicle based on the smell of cannabis once it’s legalized for recreational use. While possession of small amounts of pot are no longer criminal, it is still considered contraband for those of us without medical marijuana cards. Contraband means illegal regardless of whether there are criminal or civil punishments. There will be exceptions to his rule of course, as drivers (and potentially passengers) under the age of 21 would likely still be subject to automobile searches by police. Possession of marijuana by an individual under 21 will probably a similar civil infraction to possession of alcohol by a minor, but both are still illegal and require a court appearance.

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Published on: October 29, 2021

Marylanders Still Support Marijuana Legalization

By Benjamin Herbst

A recent poll conducted by Goucher College over the past several weeks found that 60% of Maryland residents favor the legalization of marijuana for recreational use. This is the second marijuana legalization poll conducted this year by the private college located just outside of downtown Towson. Back in March the college’s pollsters revealed that 67% of state residents supported legalization. While support has seemingly dipped slightly, when factoring in the margins of error the numbers are likely similar enough to tell the same story; in Maryland and in the United States as a whole legalization is preferred 2 to 1 over the continued criminalization of marijuana.

Closer examination of the data from Goucher reveals that like most issues in the county, support for the legalization of marijuana is divided along party lines. While two thirds of Democrats favor legalization, only 40% of republicans are in favor of it. Those who identified as conservatives were split down the middle, which is not surprising considering the potential tax revenue that the state would generate. Additionally, many conservatives likely do not believe the government should be wasting money and resources enforcing marijuana laws when there are far more pressing issues in Maryland. The poll also reported that 85% of self-described progressives support legalization, which is surprising. It’s hard to imagine that even 15% of progressives believe the police should still be arresting citizens for possession of pot.

Legalizing marijuana for recreational use will generate millions of dollars in tax revenue for the state, while providing a safe environment to purchase regulated cannabis products. It will not lead to increased criminal activity in the area of the dispensaries, and will not appreciably contribute to an increase in DUI cases or the illegal use of pot among teenagers. These potential red flags have not shown up in states that already have established recreational cannabis policies. The fact remains that legalization is a major talking point before it goes into effect, but once it becomes law people for the most part stop talking about it. For the next year cannabis legalization will continue to show up in the headlines, but now according to multiple Goucher polls it appears an end is in sight. The referendum that is scheduled for next November will almost certainly pass, and the conversation can then shift to other issues that really are more pressing. However, within the criminal justice system the conversation will continue for several years.

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Published on: August 3, 2021

Maryland Moving Toward Marijuana Legalization

By Benjamin Herbst

This past week the Maryland House Speaker indicated that lawmakers will pass legislation to put marijuana legalization on the ballot in 2022. We have known for quite some time that legalization is coming, but this unequivocal statement from a top state lawmaker all but makes it official that Maryland voters will decide whether marijuana becomes legal in November of 2022. The Speaker announced the formation of a workgroup consisting of ten other state lawmakers, who will hammer out various legalization issues such as taxation, expansion of drug treatment programs and of course the licensing and regulatory aspects of cannabis production and sales. The group will also tackle criminal law issues such as initiating the dismissal of all open marijuana cases and expanding expungement to include past marijuana convictions. Lawmakers must also consider the impact of legalization on the state’s traffic laws and a police officer’s authorization to perform an automobile search based on the suspected presence of marijuana. It may not be a crime to possess small amounts of cannabis, but that doesn’t mean it’s legal. The suspected presence of contraband such as marijuana currently gives police the legal authority to search a vehicle, though this would undoubtedly change the minute pot becomes legal.

Anyone serving jail time for marijuana related crimes would also stand to benefit from legalization, though it is unclear how this would affect those serving time for marijuana distribution or possession with intent to distribute. Possession with intent to distribute marijuana a common offense, and it is still classified as a felony in Maryland regardless of the amount at issue. Many police officers will wrongly arrest a suspect for possession with intent to distribute based on nothing more than packaging and the presence of money or a scale. Lawmakers must find a way to address possession with intent to distribute assuming cannabis will be a legal substance within the next 15 months. As regular readers are aware, misdemeanor marijuana possession cases that end with the imposition of a jail sentence are becoming more infrequent. In addition, many possession cases end up being dismissed due to the difficulty in satisfying the chemical testing requirements in Maryland. The presence of THC alone is not sufficient to establish that a substance is in fact cannabis. Hemp is a legal substance in Maryland, and has officially been codified as having an acceptable THC level of .3 percent or less. Therefore, the presence of THC alone is not enough to distinguish between legal hemp and illegal cannabis. State prosecutors have essentially been forced to outsource their cannabis testing to private labs, sometimes in other states, or decline to prosecute. The MSP lab has not regularly been testing the THC percentages of suspected cannabis for quite some time.

Both Virginia and Washington D.C. have officially legalized marijuana for recreational use, and adults can grow their own pot without fear of arrest and prosecution. Recreational marijuana will not be sold in Virginia until 2024, and therefore it is still a crime to sell or possess with intent to sell. The Virginia law become effective on July 1 of this year, and now Maryland finds itself behind the curve in the region as it waits to join 18 other states that have legalized marijuana. The Blog will continue to follow this important issue as we have for the past 8 years since medical cannabis was signed into law. We will post a follow up article as more information comes out of Annapolis, and we fully expect marijuana to once again be the hottest topic in the next legislative session. If you have been arrested or charged with any offense in Maryland or Florida contact criminal defense lawyer Benjamin Herbst for a free consultation anytime at 410-207-2598. Benjamin has extensive experience defending drug cases such as possession with intent to distribute (PWID) and other CDS charges such as delivery and possession of cocaine, heroin and prescription pills. He also specializes in probation violations and juvenile criminal cases for all types of charges including assault and battery, firearm possession and theft. Contact Benjamin today to learn what defenses may be available in your case.

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Published on: May 11, 2021

Smell of Marijuana Not Enough to Justify Frisk

By Benjamin Herbst

Possession of less than 10 grams of marijuana has not been a crime in Maryland for more than 5 years, but the full impact of decriminalization is still a work in progress. When simple possession of marijuana became a civil offense, it did far more than simply end thousands of criminal prosecutions. For decades the odor of marijuana has been a powerful tool for law enforcement officers to initiate investigations of individuals out in public. The smell of marijuana has justified thousands of searches of people, cars and even homes, and the fruits of these searches have resulted in criminal prosecutions for weapons, narcotics, stolen property and other contraband. While State’s Attorneys have not been able to prosecute simple marijuana possession since the fall of 2014, police officers did not simply stop using the smell of pot to justify searches. And frankly, at the time they had no reason to do so, as the law offered no guidance on how to police in the decriminalization age. As is typically the case, the Courts had to fill the gaping holes left by lawmakers, though this took a few years and is still an on-going process.

Separation of powers dictates that the Courts cannot simply step in and establish policy; defendants have to be arrested and their lawyers have to file suppression motions. Then the trial courts have to deny these motions and appellate lawyers have to file briefs and make arguments in Annapolis. The whole process from arrest to an appellate decision that clarifies a law typically takes 2-3 years or more in some cases if the case goes past the intermediate appellate court. With respect to decriminalization of marijuana, the first major ruling came in 2019 when the Court of Appeals held that police are not permitted to search a vehicle occupant based on the odor of marijuana in State v. Pacheco. However, due to the automobile exception and the fact that marijuana is not technically a legal substance (decriminalized does not mean legalized) cops are still permitted for now to search a vehicle based on the smell of marijuana. One year later the State’s highest court again clarified the bounds of decriminalization by ruling in State v. Lewis that police officers do not have probable cause to arrest and then search a person based on the odor of marijuana. The court did not address whether a police officer would have reasonable suspicion to briefly detain and pat down a person for weapons based on the odor of pot because Lewis was placed in handcuffs and effectively arrested. A stop and frisk detention is less intrusive than an arrest, and only requires police be able to identify a specific suspicion of criminal activity.

It took another year after the Lewis case for a stop and frisk based on the smell of marijuana to reach the appeals court, but we now have an answer to that issue as well. As of two weeks ago it is officially impermissible for a police officer to briefly detain and frisk an individual based on the smell of marijuana. The ruling is hardly a surprise, but nonetheless was another hole in the Maryland marijuana policy that needed to be filled. The case involved a juvenile in Prince George’s County who was detained and frisked on the steps of an apartment complex after a call came in to police that individuals were smoking pot and hanging out. The responding officer ordered 4 juveniles to sit on the steps after smelling marijuana, and found a handgun on one of the individuals after conducting a pat-down search. This juvenile was then arrested and charged with illegal possession of firearm by a person under 21 and wear transport carry of a firearm. His motion to suppress was denied and then he was found involved (similar to guilty in an adult case) of the crime and sentenced to probation. As a result of the ruling the case will be vacated and the juvenile will have his record cleared.

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