A judge for the Appeals Court of Maryland has ruled that the smell of marijuana is not probable cause for a search. It’s a landmark ruling that will have a reverberating impact on the criminal justice system as cannabis decriminalization has gained ground across the nation.
“It's part of a growing legal theme nationwide that near marijuana odor does not equal probable cause. And that's big because odor alone drives a lot of this mass incarceration,” says David Downs, California bureau chief for Leafly. “If you're in a legalization or a medical marijuana or a decriminalization state, it's often the case now that the mere plain smell of marijuana alone is not enough for cops to start ruining your life searching you and finding other stuff.”
In California, the smell of cannabis is not probable cause for a search. Downs says that he has spoken with residents who have seen a real change in how police approach marijuana.
“California police know that weed charges aren't really going anywhere and juries are fed up,” he says. But it’s still possible to be charged. “It's illegal to drive intoxicated on anything in California, and you don't want to be smoking and driving. You want to keep cannabis locked up in the trunk because if they see it in the center console, or they smell burned weed, that can be probable cause to search you on a suspected felony DUI.”
Felony arrests for cannabis have fallen to 1,181 in 2019, according to the California Department of Justice. Misdemeanor charges were down to 3,769. However, racial disparities for marijuana charges are still very apparent. Black residents are four times as likely as whites to be charged in a marijuana case, and Hispanic residents are twice as likely.