Madeleine O'Neill//April 12, 2023
//April 12, 2023
The smell of marijuana will no longer be enough to justify a police stop or search under a bill that Maryland lawmakers passed with just minutes to spare on the last day of their legislative session this week.
The bill, which still needs a signature from Gov. Wes Moore to become law, would go into effect on July 1, the same day that recreational cannabis is set to become legal in Maryland.
House Bill 1071 would remove the odor of marijuana alone as a source of reasonable suspicion or probable cause for police officers — though the smell could still be used as one factor if an officer suspects that a driver is impaired.
It also prohibits stops and searches based solely on possession of the personal use amount of 1.5 ounces of cannabis or on the presence of cash near cannabis without other signs of an intent to distribute the drug.
The bill’s proponents say it will take away a tool that police wield to conduct invasive searches that are predominantly used against people of color.
“This proposed bill would eliminate opportunities for officers to abuse the discretion afforded to them in these situations and reduce opportunities for racial profiling on the road,” said the bill’s sponsor, Del. Charlotte Crutchfield, D-Montgomery County, at a bill hearing last month.
“Marylanders should not fear police interactions because of the lingering odor of a now-legal substance,” Crutchfield said.
The bill was among the last to pass out of the House of Delegates before the midnight deadline on Sine Die, the last day of the legislative session in Maryland.
It precipitated a heated exchange on the House floor as Speaker Adrienne Jones pushed to finish votes over the objection of Republican delegates who tried to explain their votes, a move that also would have taken up time that could have been used to address other bills.
One of those opponents was Minority Leader Jason C. Buckel, R-Allegany County, who said passing the bill would remove opportunities for police officers to find evidence of more serious crimes. The smell of marijuana can justify searches that turn up guns and other contraband, Buckel said.
“Those things become grounds to put real criminals in jail and what we’re going to do by passing this bill is allow them to get out of that,” Buckel said.
If the bill becomes law, defense attorneys will be able to argue that if a stop or search was based solely on the smell of marijuana, the evidence gleaned should be excluded in court. Lawmakers specified that the “exclusionary rule” applies, giving direct guidance on how courts should interpret the law.
The odor of marijuana “traditionally was a powerful tool for law enforcement,” said John Bandler, a lecturer and policing expert at the John Jay College of Criminal Justice.
The bill will create a new hurdle for police and prosecutors as they pursue cases that involve the smell of marijuana, he said, “turning the dial” on how police can carry out stops and searches.
“Lots of people disagree on where that dial should be, but everybody should understand that it does move that dial,” Bandler said.
Opponents of the bill raised concerns about officers’ ability to police impaired drivers. During hearings on the bill, Crutchfield said the legislation would still allow officers to use the smell of marijuana as a factor while investigating whether a driver is under the influence.
For example, if a police officer pulls over a driver for driving erratically and then smells the odor of marijuana after initiating a traffic stop, the officer could take the smell into consideration when deciding whether to conduct a field sobriety test.
But the smell alone will not be enough to justify a search of a vehicle if a police officer pulls over a driver for having expired registration, according to examples cited at the bill hearing.
The bill’s supporters argued that officers often use the smell of marijuana — or the claim that they smelled marijuana, which is impossible to prove later — as a “blank check” to search vehicles.
“We need this to stop the abuse, primarily of Black and brown people, on the highways of America,” said William H. “Billy” Murphy Jr., a well-known criminal defense attorney who testified in favor of the bill last month.
“This is a tool that is as invasive as possible,” Murphy said. “We’ve got to stop it.”
Dennis Kenney, a professor and policing expert at the John Jay College of Criminal Justice, said the bill may have a “positive impact on police interactions by reducing them.”
“A small percent of the public in any given year has face-to-face interactions with the police, and a substantial portion of those are the result of traffic stops, so the question of whether or not the stop is seen as legitimate matters,” Kenney said.
Even so, police officers will still be able to engage in pretextual traffic stops based on traffic violations or other minor infractions, he said.
Still, supporters of the bill are hopeful that it will reduce unnecessary interactions with law enforcement.
“Now, Black and Brown Marylanders can feel more assured that they won’t be wrongfully stopped and searched based on the alleged smell of a substance they’ve been told is legal in Maryland,” said Yanet Amanuel, the public policy director for the ACLU of Maryland.
“We are hopeful that Governor Moore will sign it into law and finally stop one tool that the police use to racially profile and endanger the lives of Black and Brown people,” she said.
Carter Elliott, a spokesman for Moore, said that “in the coming days, the governor will conduct a thorough and deliberate review of the bills passed through the General Assembly and will act with Marylanders’ best interests at the top of mind.”t