MARYLAND IS THE 21ST STATE TO LEGALIZE RECREATIONAL MARIJUANA:
In November of 2022, Maryland residents voted to become the 21st state to legalize recreational marijuana. The new law goes into effect on July 1, 2023, almost 10 years after Maryland legalized medical marijuana.
NEW LAW IN EFFECT AS OF JULY 1, 2023:
Under the new law, people 21 or older may lawfully use and possess up to 1.5 ounces of cannabis flower, 12 grams of concentrated cannabis, two cannabis plants, or a total amount of cannabis products that does not exceed 750 mg of THC. Any amount of cannabis within these limits is known as the “personal use amount” under the new law.
It remains unlawful for individuals under 21 to use or possess cannabis.
PENALTIES FOR VIOLATION OF THE LAW:
It remains unlawful to possess cannabis in amounts beyond the “personal use” limits above, and violation of the law will subject a person to civil or criminal penalties depending upon the amount in question and the age of the individual charged.
“Civil Use” possession is defined as follows:
· More than 1.5 ounces, but less than 2.5 ounces
· More than 12 grams of concentrated cannabis, but less than 20 grams of concentrated cannabis
· Cannabis products containing more than 750 mg, but less than 1250 mg strength of delta-9-THC
· Possession within the “civil use” limits is a civil penalty of up to a $250 fine.
Criminal possession is defined as follows:
· More than 2.5 ounces of cannabis
· More than 20 grams of concentrated cannabis
· Cannabis products with more than 1250 mg strength of delta-9-THC
· Criminal possession is subject to a penalty of 6 months in jail and/or a fine of up to $1,000.
Under 21 years old:
· A court may order a person under 21 who unlawfully possesses cannabis or cannabis-infused products to pay a fine, attend drug education classes, and may be referred for more intense treatment for substance use disorder.
· Criminal penalties apply for individuals under 21 who possess more than 2.5 ounces of marijuana just as adults over 21.
Growing cannabis at home:
· A person at least 21 years old may cultivate two cannabis plants in their home, out of public view.
· Only two plants may be grown within one household, regardless of how many people live there.
· People under 21 may not lawfully grow cannabis plants.
IT REMAINS UNLAWFUL TO DISTRIBUTE MARIJUANA OR POSSESS MARIJUANA WITH THE INTENT TO DISTRIBUTE:
The General Assembly is working to establish the regulatory framework for dispensaries to sell marijuana, but it will remain illegal for someone who is not authorized and licensed by the State to distribute marijuana for monetary gain or to possess marijuana with the intent to distribute for pecuniary gain.
However, the new law presumes that someone in possession of the personal use and civil use amounts of marijuana (up to 2.5 ounces) without something more to indicate an intent to dispense or distribute does not violate the law.
“ADULT SHARING”:
The new law defines and allows for “adult sharing” of cannabis. “Adult sharing” means transferring cannabis between persons who are 21 years of age or older without remuneration.
“Adult sharing” does NOT include circumstances where:
· Cannabis is given away at the same time with another reciprocal transaction between the same parties
· A gift of cannabis is offered or advertised in conjunction with an offer for the sale of goods or services; or
· A gift of cannabis is contingent on a separate reciprocal transaction for goods or services
CAN OFFICERS SEARCH BASED ON THE SMELL OF MARIJUANA?
A review of cases from the Supreme Court of Maryland after the partial decriminalization of marijuana in 2014 but prior to the new law taking effect on July 1, 2023:
As with many legal questions, the answer is that IT DEPENDS. Any time there is a change in the law, there are inevitably questions that arise about how law enforcement will respond to the change. Courts will no doubt grapple with how to apply the new changes in the law to the competing interests of law enforcement and a person’s expectation of privacy. The following cases were decided after Maryland partially decriminalized marijuana in 2014, but prior to the new changes that will take effect July 1, 2023. You can expect to see more information on our blog as the courts address these issues.
In Bowling v. State, 227 Md. App. 460, 134 A.3d 388 (2016), the Supreme Court of Maryland held that Maryland’s partial decriminalization of marijuana did “not change the established precedent that a drug dog’s alert to the odor of marijuana, without more, provides the police with probable cause to authorize a search of a vehicle.”
Robinson v. State, 451 Md. 94, 152 A.3d 661 (2017) also dealt with the automobile exception to the warrant requirement, but the difference between Robinson and Bowling was that it was an officer who smelled marijuana, not a drug dog. The court again held that an officer has probable cause to search a vehicle upon the odor of marijuana, but the holding was based in large part upon the idea that “[d]ecriminalization is not the same as legalization” and that “[d]espite the decriminalization of possession of less than ten grams of marijuana, possession of marijuana in any amount remains illegal in Maryland.”
In Norman v. State, 452 Md. 373, 156 A.3d 940 (2017), the Court considered whether the odor of marijuana gave officers reasonable articulable suspicion to believe that any of the multiple passengers were armed and dangerous and subject to frisk. The Court reasoned that the odor of marijuana does not indicate that a person is armed and dangerous without something more, and it was a violation of the Fourth Amendment for the officers to frisk each of the passengers.
Pacheco v. State, 465 Md. 311, 214 A.3d 505 (2019) involved the smell of marijuana in a car along with the observation of a “fresh burnt” joint, which necessarily did not contain more than 10 grams of marijuana. The Court held that the odor of marijuana and observation of the joint gave officers probable cause to search Pacheco’s vehicle but did not give officers probable cause to search his person, because a person has a higher expectation of privacy in his or her person than the diminished expectation of privacy one has in a vehicle.
In Lewis v. State, 470 Md. 1, 233 A.3d 86 (2020), the Supreme Court of Maryland held that the odor of marijuana, without more, does not provide probable cause to arrest a person. The Court reasoned:
Probable cause to conduct a lawful arrest requires that the arrestee committed a felony or was committing a felony or misdemeanor in a law enforcement officer’s presence. Possession of less than ten grams of marijuana is a civil offense, not a felony or a misdemeanor, therefore law enforcement officers need probable cause to believe the arrestee is in possession of a criminal amount of marijuana to conduct a lawful arrest. The odor of marijuana alone does not indicate the quantity, if any, of marijuana in someone’s possession. Id. at 27.
Finally, In re D.D., 479 Md. 206, 277 A.3d 949 (2022) dealt with extending the holding in Lewis to an investigatory detention, which requires the less stringent standard of reasonable articulable suspicion versus the probable cause standard that was at issue in Lewis. The Court held that the odor of marijuana gives officers reasonable articulable suspicion to conduct an investigatory detention of a person to determine if a crime is being committed. The Court’s holding rested in large part on the fact that “the use of possession of 10 grams or more of marijuana remains a criminal offense in Maryland.”
STAY TUNED FOR UPDATES:
We can expect to see many changes in the legal landscape of what can be considered probable cause and reasonable articulable suspicion under the new law. Check back with us for updates on these issues. If you or a friend or loved one are arrested for a marijuana incident in Maryland, contact us today for a case evaluation.
