In a press conference on January 29, 2019, Baltimore’s State’s Attorney, Marilyn Mosby said that she would no loner prosecute marijuana possession, regardless of quantity or prior criminal record. This decision is in sync with the majority of the state—and nation’s—shift in the view of how the justice system treats the legality and decriminalization of marijuana. Even if Mosby’s decision was made with good intentions, it raises more legal questions than answers. As a prosecutor, Mosby was elected to help enforce the laws as a member of the State’s executive branch. Instead, Mosby has attempted to take on the role of a legislator in efforts to create policy. She further stated that she would “introduce legislation that would vacate convictions.” The Maryland General Assembly is currently in session, so we’ll wait on that.
There is no doubt that this unilateral, overstepping decision by Marilyn Mosby has created a very confusing and gray area in the criminal justice system. To make waters even murkier, Interim Police Commission, Gary Tuggle, adamantly disagrees with Mosby’s decision. (Cue the power struggle). In her press statement, Mosby said she is “calling on my partners in law enforcement to join my office in this effort.” With Tuggle’s objections, it’s important to be aware of the following:
- Police can still use the smell of marijuana as probable cause to search your vehicle.
Police officers historically use the alleged smell of marijuana as probable cause to get in a vehicle and with the BCPD not on board with Mosby, it’s a safe bet that they will continue to do so. (Remember that once they are inside your car, whatever they find is free game). Police Officers can also use the smell of marijuana to get you out of the vehicle and perform a search on your person. As discussed in the next point, this can still lead to your arrest.
- Possession of marijuana over 10 grams is still a crime in the State of Maryland and you will still get arrested for it.
Possession of marijuana under 10 grams is a civil offense, meaning that only a fine can be imposed. Anything over 10 grams allows for criminal prosecution and potential jail time. Mosby’s policy only aims to change the process after you have already been arrested. Police still have the power (if it is supported by probable cause) to make an arrest. Prosecutors have the discretion whether to proceed with criminal charges. So, what’s the big deal if you get arrested? You probably won’t be charged, right? Maybe. . . but, you will still spend some time down at booking while waiting to go before a commissioner, which in some cases could be up to 24 to 36 hours.
- Possession is not the same as intent to distribute: If you have more than 10g, you could be opening the jail cell doors.
What if you have 11g of marijuana with a few small baggies? Or, let’s say you’re not a plastic person and have a few hundred dollars and 15g of marijuana found on you. What about aggravating facts, like transporting a firearm in your vehicle coupled with the presence of marijuana? Mosby said that the amount will not be taken into consideration, but that doesn’t mean you can’t be hit with a possession with the intent to distribute if there is any indication, no matter how small, that the marijuana is not just for personal use. Be aware, police officers can and will recommend possession with intent to distribute charges, especially if they know that simple possession charges won’t stand.
- Juvenile’s smoking or possessing Marijuana is still considered a delinquent offense.
Mosby’s statement did not address juveniles caught possessing and/or smoking marijuana, which all together raises a multitude of questions without answers. Possessing marijuana as a juvenile is considered a delinquent offense if the quantity is 10g or above. Anything under that is considered a status offense. With Mosby’s new mindset, will a juvenile possessing 11g now be considered a status offender instead of a delinquent? Or will any amount of possession be ignored on Mosby’s end? The best guess is at a minimum, if the police are still going to enforce adult criminal conduct, they won’t ignore the juveniles caught possessing or smoking marijuana.
- Violation of Probation?
If you’re on parole or probation, Mosby’s vow to not enforce marijuana possession doesn’t necessarily mean that you can puff, puff, pass all the day long if you’re on parole or probation. Your agent and the judge whom you are on probation to get the final say. It remains unclear if Mosby’s office won’t enforce possession, if they will be willing to go forward at probation violation hearings and how that will impact the office’s relationship with the judiciary branch, but make no mistake – you don’t want to be the test case of a judge’s wrath! Steer clear of drugs while on probation if at all possible.
BOTTOM LINE: Smoke’em if you got em? Only if you want to be on thin legal ice.
Under the law of the State of Maryland, possession over 10g of marijuana is still a crime whether or not Mosby decides to recognize it. Even with the created confusion over the topic, one thing is clear: the police in Baltimore City have vowed to execute the enforcement of marijuana laws to the extent that they are able. If you find yourself charged with possession of marijuana in any quantity, possession with the intent to distribute, or any other Maryland Criminal law, you need the best legal protection you can have. Contact ENLawyers.