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The mere odor of marijuana emanating from a person, without more, does not provide the police with probable cause to support an arrest and a full-scale search of the arrestee incident to the arrest.
Baltimore City Police Officer David Burch, Jr. received a tip about a potentially armed individual in the 400 block of West Saratoga Street in Baltimore City. Officer Burch conveyed the tip and a description of the individual to CitiWatch, which was monitoring Baltimore City's surveillance cameras. The CitiWatch Operator reported back that an individual matching the description given by Officer Burch—later identified as Petitioner—was observed on a surveillance camera entering a convenience store. Officer Burch and five other officers responded to the convenience store. As petitioner passed in front of Officer Burch, the officer smelled the odor of marijuana. Officer Burch then stopped the petitioner and undertook a full search of the latter. The officer first searched the red bag and found a handgun inside. Then, as he searched petitioner’s pockets and waistband, petitioner advised that he was carrying a small amount of marijuana. Officer Burch found that quantity of marijuana in a sealed, one-inch plastic baggie in one of petitioner's pockets. Petitioner, through counsel, advanced two theories to support his motion to suppress the fruits of the search. He argued that, pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the police did not possess the requisite reasonable suspicion to "stop" petitioner at the outset of the encounter. Petitioner further argued that the search incident to arrest exception—the justification propounded by the State—did not justify a full-scale search because no probable cause existed to arrest him. The court denied the defense’s motion to suppress the handgun found during the search of petitioner, holding that the odor of marijuana emanating from a person provided probable cause for a police officer to search a person under such circumstances.
Did the mere odor of marijuana provide law enforcement officers with the requisite probable cause, pursuant to U.S. Const. amend. IV, to arrest and perform a warrantless search of defendant incident to the arrest?
The court held that the mere odor of marijuana emanating from defendant, without an indication of the amount of marijuana, did not provide the police with probable cause to support an arrest and a full-scale search of defendant incident to the arrest. Therefore, defendant was entitled to suppression of the handgun and other items seized during the search because the officer, at the time when he undertook the search of defendant that produced the seized items, did not have probable cause to believe that defendant had committed a felony or was committing a felony or misdemeanor.