Although drug possession consists of knowledge, dominion and control over the drugs, that does not automatically prevent a person from being arrested, prosecuted and convicted for being in the knowing presence of drugs without having any other involvement with them.

Last Friday, Maryland’s highest court, with two dissenters, proclaimed: “Considering his proximity to the blunt, the fact that it was visible to him from his seat at the table, and the overwhelming smell of the marijuana smoke, a rational fact-finder could infer reasonably that he was engaging in the mutual use and enjoyment of the marijuana, and exercised dominion and control over the marijuana.” Smith v. Maryland, ___ Md. ___ (July 23, 2010).

Smith likens the scenario of the execution of the search warrant in the case to a Cheech and Chong movie. However, the affirmance of Smith’s conviction is a sad state of affairs rather than any belly laugh that results from the best of Cheech and Chong. In Smith, the dissenters got it right, not the majority.