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Maryland will soon have a new law that prohibits law enforcement from conducting traffic stops or searching a person based solely on the smell of cannabis.
The bill, passed in the 2023 General Assembly session, will go into effect on July 1 without the signature of Maryland Governor Wes Moore.
H.B. 1071 was one of the most debated measures during the session and faced opposition from police, sheriffs and prosecutors.
While supporters of the bill argue that it is necessary to protect Marylanders from illegal searches and unjust criminalization amid legalization of the drug, law enforcement officials argued that making stops based on the odor of cannabis did not violate motorists’ constitutional rights.
“Using odor of cannabis alone as grounds to briefly detain a person or to search a vehicle will not violate the Fourth Amendment and would be reasonable,” the Maryland Chiefs of Police Association and Maryland Sheriffs’ Association wrote in a testimony to lawmakers.
In addition to preventing stops and searches based on odor alone (and as long as there is no evidence to suggest that a person has more than 1.5 ounces or intends to distribute the drug), the bill also prohibits officers from searching areas in a vehicle unrelated to impairment during traffic stops for suspecting driving under the influence.
Furthermore, any evidence obtained improperly will not be admissible in court.
The maximum civil fine for smoking pot in public will also be reduced from $250 to $50 under the new law.
Governor Moore did not sign the bill but allowed it to become law without his signature. He did not state his reasons for declining.
The Legislative Black Caucus of Maryland argued that the bill is critical to the safety of Black Marylanders, pointing to the disproportionate targeting of Black drivers in traffic stops and the higher likelihood of warrantless searches based on probable cause.
The bill also clears up past confusion in the state’s courts regarding traffic stops and cannabis odor.
Previously, the Supreme Court of Maryland ruled that odor alone was not indicative of an illegal amount of the drug and did not meet the standards for probable cause.
However, in a later ruling, the court held that the odor provides a reasonable suspicion of criminal activity sufficient to conduct a brief investigatory detention. The new law clarifies that the smell of cannabis alone is not enough to justify a warrantless search or a stop.
The passage of this bill in Maryland reflects a growing trend in other states to limit the use of the smell of cannabis as a basis for law enforcement actions.
Virginia enacted a similar law in 2020, and other states like Missouri and Illinois have proposed similar reforms. The rationale behind these reforms is that once possession of small amounts of cannabis becomes legal, the smell of cannabis can no longer serve as evidence of a crime.
This applies to the state of Maryland, as it passed a measure that would allow adults 21 or older to legally possess up to 1.5 pounds of marijuana last November.
Despite the relaxing of rules regarding cannabis and police searches, law enforcement officials noted that not all cannabis-related activity will be legal.
For example, The Maryland Chiefs of Police Association and the Maryland Sheriffs’ Association noted thatpossession by those younger than 21 years of age, are driving under the influence or are engaging in unlicensed distribution can still be charged with a crime.
However, police will now require further grounds that a crime has been committed beyond merely the smell of cannabis in order to search a vehicle.
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