Steve Lash//March 20, 2023
//March 20, 2023
The House of Delegates on Saturday passed legislation that would bar police from detaining individuals simply because they smelled of marijuana.
With the House’s 98-34 vote, attention shifts to the Senate Judicial Proceedings Committee, which is expected to consider the legislation in the next two weeks.
House Bill 1071 states that marijuana’s odor alone gives police neither reasonable suspicion nor probable cause to suspect someone of criminal activity. The smell, however, could still be a factor in an officer’s reasonable suspicion during a traffic stop that a person was driving while impaired by marijuana.
The General Assembly’s consideration of HB 1071 arises amid the coming legalization of possession of up to 12 grams of marijuana. Maryland voters approved the possession of a personal amount of the drug by individuals age 21 and above in a referendum last November.
Under the approved referendum and related law, which take effect July 1, possession of between 12 and 20 grams of marijuana will be punishable by a $250 civil fine. Possession of more than 20 grams will be a criminal misdemeanor punishable by up to six months in prison and a $1,000 fine.
Currently, possession of less than 10 grams of marijuana is a civil offense punishable by a $100 fine unless the drug is being used for legal medicinal purposes.
House consideration of HB 1071 also follows a pre-referendum Maryland Supreme Court decision last year that upheld the authority of police to briefly detain and question people smelling of marijuana without violating their constitutional right against unreasonable search and seizure, though possession of less than 10 grams of the drug is not a crime.
Assistant Maryland Public Defender Michele Hall cited the court’s decision in In Re: D.D. in telling legislators that HB 1071 is needed because marijuana will still be illegal if possessed in large quantities and thus its smell could still enable police to detain and question individuals.
“Legalization alone did not fix this problem,” Hall told the House Judiciary Committee this month.
“As long as odor supports Fourth Amendment intrusion, Marylanders legally engaging in the cannabis market are at risk,” added Hall, who argued in vain for D.D. before the high court.
“Alleging odor of cannabis alone is nothing more than a blank check for police to intrude upon a person’s right to privacy in the hopes of finding something criminal, and the Fourth Amendment requires more.”
HB 1071 has also drawn strong support from the American Civil Liberties Union’s Maryland chapter.
“Marijuana odor stops and searches not only pose serious risk to people’s Fourth Amendment rights, they enable racial profiling and dangerous and unnecessary police interactions,” Yanet Amanuel, the chapter’s public policy director, told the Judiciary Committee this month.
“This is why it is critical that the legislature must step up and ensure that the law and police practices are consistent with the reason you all said you support legalization of marijuana and, most importantly, the law reflects the will of the people,” Amanuel added. “Marylanders should not fear police interactions because of a lingering odor of a now legal substance.”
But William Katcef of the Maryland State’s Attorneys’ Association said the constitutional issues of probable cause and reasonable suspicion should be left to judges to determine, not legislators.
“I don’t think that we should have the General Assembly make the determination as to what constitutes reasonable suspicion or what constitutes probable cause,” Katcef told the Judiciary Committee. “I think the courts should decide.”
The Judiciary Committee sent the bill to the House floor on a 15-6 vote Wednesday.
Del. Charlotte Crutchfield, D-Montgomery, is chief sponsor of HB 1071, which would go into effect July 1. The bill was not cross-filed in the Senate.C