An appeals court in Maryland expressed indignation at defense attorneys who said they were confusing decriminalization with legalization when trying to suppress the presentation of evidence in their clients’ cars by police officers who saw or smelled small amounts of marijuana prior to conducting the search.
This confusion is based on the “defense attorney’s … tendency to exaggerate, stubborn, and broad,” a 2014 Maryland law that made possession of less than 10 grams of marijuana a civil offense punishable by a $100 fine rather than an offense punishable by imprisonment, the Special Court of Appeals stated in an opinion 3-0 on Monday.
Defense attorneys continue to insist — despite a Maryland Supreme Court ruling to the contrary — that suspecting a mere civil crime of marijuana does not give officers potential reason to suspect a felony in progress when they see or smell less than 10 grams of the drug, the appeal court said. .
The Special Court of Appeal said these lawyers were unaware that the “crime” – even if it was not a crime – is by definition an unlawful act for which the suspicion could provide potential cause for a search.
The court issued its scathing and often cynical decision upholding a search of a man’s car and his subsequent convictions for illegal possession of ammunition and at least 10 grams of marijuana.
“The bottom line is that, contrary to the interpretation (of the 2014 Act) that we have been formally urged by this Appellant and others, a conviction for a violation of the (Act) Act certainly did not get the good housekeeping seal of approval,” Judge Charles E. Moylan Jr. wrote to the court.
“Possession or use of marijuana in any amount has not become a normal and proper behavior,” added Moylan, a retired judge sitting on a special assignment. “It’s illegal.”
As evidence of illegality, the Special Appeals Court cited the intentional legislative use of the word “crime” in the 2014 law.
“The General Assembly chooses its words carefully and deliberately,” Moylan wrote.
Moylan added: “It is no less than Orwellian Newspeak to conclude that the legislature will take conduct that it considers to be wholly harmless and then characterize such conduct as ‘insult,’ civil or otherwise.” “It’s an oxymoron to say a person can be found ‘guilty’ for being harmless.”
The Intermediate Court of Appeals noted that in 2017, the Maryland Court of Appeals similarly upheld an officer’s search for a vehicle that had been triggered by the smell of marijuana. The Supreme Court stated in Robinson vs. the State That “decriminalization is not synonymous with legalization, and possession of marijuana remains illegal.”
The special appeals court issued its ruling as Maryland residents prepare to vote in November on a constitutional amendment to legalize recreational marijuana use for people 21 and older starting in July 2023.
The controversial search for the car arose after Anne Arundel County investigators discovered Chalon Johnson in a Chevrolet Malibu parked in Lamplighter Ridge in Glen Burnie three years ago.
Johnson, upon seeing the officers, fled the car, according to the court’s opinion.
Officers chased but did not catch Johnson, then drove to his car, which was locked with the darkened windows folded. Detective Philip Clark peered out the window and saw what he later said “look like marijuana crumbs” and discovered the smell of unlit marijuana emanating from the car.
Claiming to have a probable cause, officers searched the car and found a bag containing 52 grams of marijuana, a digital scale and five bullets.
Johnson was later arrested and charged. He sought suppression of marijuana and ammunition as evidence, saying officers lacked a possible reason to search based on the smell and sight of a small amount of marijuana.
Ann Arundel County Circuit Judge Alison L. Asti rejected that argument. Ann Arundel County Circuit Judge Michael Watch found Johnson guilty based on an agreed statement of fact.
Johnson was sentenced to a year in prison, all but 21 days suspended, for illegal possession of ammunition and six months, suspended except for 21 days, for marijuana possession, according to online court records.
The Special Court of Appeals upheld Johnson’s car search and conviction, saying the detective’s sight and smell of marijuana provided probable cause, particularly when combined with Johnson’s rushing out of the car upon seeing police officers in the drug-ridden neighborhood.
“In the Fourth Amendment’s assessment of the reasonableness of a police response, the geography of the confrontation can be of critical importance,” Moylan wrote, referring to the constitutional amendment banning unreasonable searches.
“In terms of exposed vulnerability, the deserted Malibu here, which probably contained an unspecified amount of banned drugs, sat helplessly amid an opportunistic crowd of drug users and drug dealers,” Moylan added. “She was not resting peacefully somewhere in the hinterland of rural Finland. All other things being equal, a difference in geographical settings can make a crucial difference in the level of suspicion and also in the level of vulnerability.”
Johnson’s appeal attorney, Samuel Vader, declined to comment Tuesday on the court’s decision. Vader, Maryland’s assistant public defender, said no decision has yet been made on an appeal to the Maryland Supreme Court.
The Maryland Attorney General’s office did not immediately respond Tuesday to a request for comment.
Judges Christopher B. Kehoe and Andrea M. Leahy Moylan.
The Special Court of Appeal issued its decision in Shallon Joshua Johnson vs Maryland StateIssue 572, September 2021 chapter.