Starting July 1, thanks to a ballot initiative that Maryland voters overwhelmingly approved last November, state law will allow adults 21 and older to publicly possess up to 1.5 ounces of marijuana. Anticipating that development, Maryland lawmakers last month passed HB 1071, which will prohibit police, also starting July 1, from treating the smell of cannabis as cause enough to stop or search pedestrians or cars.
Virginia enacted a similar law in 2020, and lawmakers in other states, including Missouri and Illinois, have proposed the same basic reform. The reasoning behind this is simple: once it is legal to possess small amounts of cannabis, an odor indicating the presence of that substance is no longer evidence of a crime. Therefore, it cannot, by itself, provide reasonable suspicion for an arrest or probable cause for a search. However, the Maryland bill, which the Democratic-controlled legislature passed by a vote of 101-36 in the House and a vote of 27-20 in the Senate, recently became law without Gov. Wes Moore, suggesting that he had reservations about it.
Moore, a Democrat who took office this year, served on the board of Chicago-based cannabis company Green Thumb Industries until March 2022 and, unsurprisingly, supported legalization when he ran for governor. He declines to explain his reasons for refusing to sign HB 1071, which in addition to the search and seizure provisions reduces the maximum civil penalty for smoking marijuana in public from $250 to $50. But the legislative debate over the bill is a window into the dangerous police practice of using marijuana possession as a pretext to investigate other crimes and an excuse to seize property.
Under HB 1071, “a law enforcement officer may not initiate an arrest or search of a person, motor vehicle, or vessel based solely” on “the smell of burned or unburned cannabis,” suspicious possession of quantities for personal use, or “the presence of cash or currency in the vicinity of the cannabis without further indication of intent to distribute.” In the latter situation, of course, the police would seize the cash along with the cannabis, using it to boost their budgets under civil forfeiture laws, which helps explain why cops are so keen to follow their noses.
If an officer is investigating someone suspected of driving under the influence of marijuana, HB 1071 says, they can search only parts of the car that are “readily accessible” to the driver or “reasonably likely to contain evidence” of that crime. Any evidence obtained in violation of the new rules “is not admissible in a trial, a hearing or any other proceeding.” In particular, that includes “evidence discovered or obtained with consent,” which is little more than a legal fiction when people are mugged by armed agents of the state with the power to informally punish uncooperative drivers.
Under prior Maryland law, possessing 10 grams or less of marijuana was a civil offense punishable by a $100 fine. However, in 2017, the Maryland Court of Appeals (now the Maryland Supreme Court) held that “a law enforcement officer has probable cause to search a vehicle” when he “detects an odor of marijuana emanating from the vehicle, as Marijuana in any quantity continues to be contraband, notwithstanding the decriminalization of possession of less than ten grams.”
However, three years later, the court ruled that “the mere smell of marijuana alone is not indicative of the amount of marijuana that may be in a person’s possession and does not provide a law enforcement officer with probable cause.” necessary to arrest a person and to conduct a warrantless search of that person in connection with the arrest.” In 2022, on the contrary, the court said “the smell of marijuana” does provide “reasonable suspicion of criminal activity sufficient to warrant a brief investigative detention”, overturning a lower court’s ruling to the contrary.
HB 1071 clarifies this confusing situation in light of legalization: it says that the smell of marijuana is not enough, by itself, to justify a search without a warrant either one stop. Although the logic of that reform seems clear, opponents of the bill argued that such a categorical rule goes too far. Cops wanted to continue to stop and search people for marijuana even after they were legally allowed to possess it.
The Maryland Police Chiefs Association and the Maryland Sheriffs Association noted that some marijuana-related conduct will remain illegal in Maryland, including possession by persons under the age of 21, possession of more than 1.5 ounces, possession of driving under the influence and distribution without a license. From the smell of marijuana still could be evidence of a crime, they said, “using the smell of cannabis solely as a reason to briefly stop a person or to search a vehicle would not violate the Fourth Amendment and would be reasonable.”
Those law enforcement organizations cited a December 2022 report in which Brian Frosh, then Maryland’s attorney general, said that “the smell of cannabis will likely still allow a police officer to briefly stop the person to investigate whether they have a criminal amount of cannabis”. Frosh also thought that the Maryland Supreme Court would likely conclude that “the odor of cannabis emanating from a vehicle will continue to warrant a search of that vehicle by a police officer” even after low-level possession is legalized.
“We realize that it may seem counterintuitive,” Frosh wrote. But “to conduct a search of a vehicle under the Constitution, an officer needs only probable cause to believe that the vehicle contains evidence of a crime, not that a person in the vehicle has committed or is committing a crime.”
You might think that when an officer pulls over someone, smells marijuana, and proceeds to search the car, they are acting on the assumption that the driver has committed a crime. But according to Frosh, that cop simply thinks he’ll find “evidence of a crime,” not necessarily a crime committed by the driver (or a passenger). If so, who exactly is the suspect?
In either case, probable cause requires “a fair probability that contraband or evidence of a crime will be found at a particular location.” In this context, that probability surely depends on the probability that marijuana in a car exceeds 1.5 ounces. After legalization, what percentage of drivers transporting marijuana can be expected to have more than the law allows? If that percentage is low, it’s hard to see how a search can be justified based on nothing more than the inferred presence of cannabis.
The Colorado Supreme Court rejected that premise in 2019, when it ruled that an “alert” from a drug-sniffing dog trained to detect marijuana and other drugs does not provide probable cause for a search. Courts in other states where cannabis is legal have reached similar conclusions, forcing police to retrain or replace their narco canines. And in 2015, after Massachusetts decriminalized marijuana possession but before it legalized recreational use, the state Supreme Judicial Court ruled that the smell of burning marijuana alone cannot justify a traffic stop.
Rather than wait to see what the Maryland Supreme Court would say on these issues, state legislators made a policy decision that avoids the need for further litigation and adjudication. And by making that decision, they eliminated one of the many excuses police use to harass people who don’t pose a threat to public safety.
This particular excuse can be stretched beyond all credibility. In 2012, for example, the virginia pilot reported that Chesapeake officers “have been stopping cars on the grounds that they smelled marijuana while driving on local roads.” One of those cops explained how that technique supposedly worked: “We drove our squad car with the vents on, blowing air from the outside in, right into our faces.”
In 2011, New Jersey police seized a BMW based on an alleged “strong odor of raw marijuana” and vandalized it over the course of three weeks with the help of drug-sniffing dogs, causing more than $12,000 in damage. They did not find the marijuana they allegedly smelled or any other contraband.
Two years later, after pulling over a car for disputed reasons, an Idaho state trooper opened the trunk with the driver’s not-quite-voluntary consent and, according to the resulting lawsuit, “claimed he could smell the odor of marijuana,” to despite “the strong gusts of wind and rainfall that day”. The subsequent search of the car turned up nothing illegal. The driver’s lawyer said the denver mail his client “does not use marijuana and never has.”
In 2018, the Kansas Supreme Court upheld a warrantless apartment search based on a police officer’s claim that she “smelled a strong odor of raw marijuana emanating from the apartment” while standing outside the front door. What the police eventually discovered was 25 grams (less than an ounce) of marijuana, which was inside a sealed plastic container, inside a locked safe, inside a bedroom closet about 30 feet from where he had been standing. the official. Cops also found “a small amount of marijuana in a partially burned cigar in the living room,” which would have smelled like Burned marijuana, not “raw marijuana.”
That same year, a Louisville, Kentucky SWAT team terrorized an innocent family during an unsuccessful home invasion. The bust was based in part on “a strong smell of fresh marijuana” that a detective claimed to have noticed while he was standing on his front porch.
I could go on, but you get the idea. Cops, aided by their not-so-trustworthy dogs, commonly use the real or imagined scent of marijuana to justify outrageous invasions, including wildfire searches, highway and airport robberies, and highway sexual assaults. The smell of marijuana even figured in the 2016 death of Minnesota motorist Philando Castile, who was shot by a police officer who later said the smell scared him.
It’s bad enough that such things happen in jurisdictions where marijuana is still illegal. It is beyond comprehension that they would continue after a state repeals that ban.
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