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Perhaps a prerequisite for taking the bench should be having firsthand experience smelling the tremendous difference between smoked/burnt marijuana and raw/unburnt marijuana, even if that means updating the laws to make this possible through the smelling and smoking experience. Until that time, too many judges are going to place too much unjustified reliance on police that they smelled unburnt marijuana — even in minute quantities — as a probable cause basis to conduct a search.

We continue seeing appellate opinions that barely — if at all — acknowledge the substantial difference between the smell of burnt and unburnt marijuana, and the greater inability to detect unburnt marijuana the smaller the quantity, the farther it is from one’s nose, and the more that other odors interfere. For instance, on October 13, without addressing the burnt-unburnt marijuana smell issue, a 4-3 Maryland Court of Appeals majority ruled that a search incident to arrest of Antonio Belote based on smelling unburnt marijuana was no good because there was no arrest. Belote v. Maryland, ___ Md. ___ (Oct. 13, 2009).

As Belote said:

In Bouldin, 276 Md. at 515-16, 350 A.2d at 133, we articulated the prerequisites for a custodial arrest in Maryland: “It is generally recognized that an arrest is the taking, seizing, or detaining of the person of another (1) by touching or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested. It is said that four elements must ordinarily coalesce to constitute a legal arrest: (1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested.

“We have defined an arrest in general terms as the detention of a known or suspected offender for the purpose of prosecuting him for a crime. Our cases make clear, as McChan states, that in ordinary circumstances ‘there is a detention only when there is a touching by the arrestor or when the arrestee is told that he is under arrest and submits [but] [w]here there is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there must always be an intent on the part of one to arrest the other and an intent on the part of such other to submit.’ Ordinarily, therefore, there can be no arrest where there is no restraint or where the person sought to be arrested is not conscious of any restraint. At least one court has concluded that an unconscious person cannot be subjected to a valid arrest. But, as indicated in Fisher, Laws of Arrest, chapter IV, at 52 (1967), it is only where there is no actual manual seizure of the arrested person that his intention or understanding assumes controlling importance.” (Citations and italics omitted).

Any marijuana smell on Belote was of raw marijuana, which is eminently less stinky than smoked marijuana. Unless I misread Belote, the majority did not even address whether the marijuana was burnt/smoked or unburnt/raw (but certainly dried, because few people smoke undried marijuana). Early in his dissent, Judge Murphy clarified that Belote’s marijuana was unburnt.

Each time appellate opinions fail to distinguish the eminently stronger stink of burnt marijuana from unburnt marijuana, the more police will feel emboldened to search first, find marijuana, and then manufacture a raw marijuana smell that never existed before the seizure of marijuana. More on this serious burnt-unburnt marijuana caselaw flaw is here. Jon Katz.