Police agencies in Frederick County aren’t sweating a Maryland Court of Appeals decision this week that changes what police need to prove to search a person for drugs.
The court decision came out of Rasherd Lewis v. State of Maryland and forbids police officers from arresting or searching an individual based solely on the odor of marijuana in particular. The decision, handed down earlier this week by Chief Judge Mary Ellen Barbera, was a slight expansion of other, similar restrictions to search rights handed down in recent years, meaning most agencies saw the change coming and already fit training into their agencies to discontinue such searches, said Lt. Kirk Henneberry, the commander of the Frederick Police Department Criminal Investigations Division.
“Ever since [Michael] Pacheco vs. State, we haven’t been arresting solely on the odor of marijuana,” Henneberry said, citing a previous court ruling that forbid officers from conducting searches of individuals based only on the odor of marijuana and the observation of less than 10 grams of the substance, the possession of which is no longer a crime in the state.
A key difference in the Pacheco case and that of Lewis was that Pacheco was sitting in a car when an officer approached and saw a joint in plain view. While individuals have a relatively high expectation of privacy of their own person — meaning police must have more probable cause to search a random resident out for a walk — courts have ruled that there is a lower expectation of privacy while a person is inside a vehicle.
Despite this difference, both the Frederick Police Department and the Frederick County Sheriff’s Office took steps to adjust their training in anticipation of a ruling like the one handed down this week.
“We created a little training module for officers … which basically stated that, if all they had was the odor of marijuana, absent the sight of any specific quantity of marijuana, that was no longer grounds for a search,” Henneberry said. “From our perspective in FPD it’s just something that we’ve got to make sure our officers are well-trained in.”
Lt. Jason Deater, of the sheriff’s office, said the change brought on by the ruling, while important to train up on, would likely play a rather small role in how law enforcement officers operate moving forward.
“Being an 18-year career police officer, I can only think of one case, it was at a high school basketball game and I walked by these two students who absolutely reeked of marijuana, and that was the only time I can think of when I walked up on someone, smelled the odor of marijuana and took action,” Deater said, explaining that usually officers and deputies come upon the odor of marijuana during a traffic stop or some other circumstance where the rules are different.
At the very least, an officer or deputy who thinks they smell marijuana coming from someone can always approach the person and start a conversation, as long as they don’t detain the individual, Deater said.
Deater emphasized the amount of coordination that happens between prosecutors and law enforcement agencies to stay current with changes in the law and case rulings.
“As the laws change we have to do a lot of homework to keep up. We don’t ever want to be the reason for [new] case law,” Deater said with a laugh.