New MD Law Will Prevent Police From Stopping/Searching Cars Due to Marijuana Odor

Starting July 1, law enforcement officers in Maryland can no longer use the odor of marijuana as the only reason to stop and search a vehicle.

Bill HB1071, which was recently passed and will become law on July 1st (Gov. Wes Moore is letting it become law, but will not be signing it) prohibits specified types of cannabis-related evidence to be used as the sole basis to establish reasonable suspicion or probable cause for the possession of contraband or other criminal activity and specifies that certain types of cannabis-related evidence may be factors in the totality of the circumstances leading to investigation, arrest, or a search in relation to a person driving, operating, or controlling a motor vehicle or vessel while impaired by drugs. Evidence discovered or obtained in violation of the bill, including evidence discovered or obtained by consent, is not admissible in a trial, hearing, or other proceeding.

The bill also has critics with Montgomery County State’s Attorney John McCarthy stating the following to NBC4, “I think that this bill, which doesn’t allow the police to search vehicles based on the odor of marijuana, I think will invariably leave more guns on our streets, in many instances in the hands of children or individuals under the age of 21, who are prohibited from having handguns.”

Earlier this year S.B. 516, Cannabis Reform, renamed the Alcohol and Tobacco Commission to be the Alcohol, Tobacco, and Cannabis Commission, after Maryland voters approved the possession of a personal amount of the drug by individuals age 21 and above in a referendum last November. It establishes the Maryland Cannabis Administration as an independent unit of state government. In addition, this legislation establishes a regulatory and licensing system for adult-use cannabis; imposing a 9% tax on the sale and use tax of adult-use cannabis; requiring the Administration, on or before July 1, 2023, to convert medical cannabis licenses to licenses to operate a medical and adult-use cannabis business.

Analysis per the HB1071 Bill: Maryland traffic stop data since 2018 indicates that Black or African American drivers consistently constitute at least 60% of all vehicle traffic stops in the State despite comprising only 29% of the State’s population. They are also over four times as likely to be subject to a warrantless vehicle search than white drivers. Data from other jurisdictions also suggests that Blacks or African Americans are disproportionately subjected to warrantless investigative stops in those jurisdictions. A significant portion of these investigative stops and vehicle searches involve the odor of cannabis, and to the extent the bill’s provisions reduce these stops and searches based solely on the odor of cannabis, Black or African American individuals will be significantly impacted by reduced exposure to law enforcement activity.

This bill will restrict Maryland law enforcement agencies from using the smell of burnt or unburnt cannabis, the possession or suspicion of possession of cannabis, or the presence of money in proximity of cannabis alone, to establish reasonable suspicion or probable cause of further criminal activity in order to justify the (1) stop, arrest, or search of an individual; or (2) search of a vehicle. These types of evidence, however, can be used as part of the totality of circumstances to justify reasonable suspicion or probable cause that an impaired person may be operating a motor vehicle or vessel.
Currently the possession of under 10 grams of cannabis is considered a civil offense, as is the use of cannabis in a public space. The possession of any greater amount than 10 grams, possession with intent to distribute, and driving under the influence are considered criminal offenses. Under existing law, Maryland courts have held that law enforcement officers may conduct a brief investigative stop of a person based on the smell of cannabis if there is a reasonable suspicion of criminal activity. However, they may not use the smell of cannabis, without more, as probable cause to arrest and/or search an individual without a warrant. In addition, after a vehicle traffic stop, the smell of cannabis is sufficient probable cause to search a vehicle, but not the vehicle’s occupants.