MD law preventing police stop and search based on pot odor doesn’t apply retroactively, court rules

A 2023 Maryland law that prevents police from stopping or searching vehicles based solely on the odor of cannabis does not apply retroactively, the Maryland Appellate Court held.

In a reported opinion written by Senior Judge Robert Zarnoch that was filed last month, the Maryland Appellate Court determined that the 2023 legislation did not apply in the case of a Baltimore man arrested and charged in 2021 with various narcotics-related offenses after police detected the odor of cannabis coming from the man’s vehicle during a traffic stop.

After police conducted a warrantless search of Zuri Kelly’s vehicle and found evidence of drug possession and distribution, Kelly pled guilty in February 2023 to one count of possession with intent to distribute cocaine. The Baltimore County Circuit Court previously sentenced him to a total of 12 years imprisonment with all but two years suspended.

The appellate court, relying in part on cases in other jurisdictions because the Maryland Supreme Court has not weighed whether the law should be applied retroactively, found state legislators “clearly indicated” that the defendant’s right to avail themselves of a search of their vehicle “did not exist before the statute became effective.”

“Although cannabis reform in Maryland began in earnest in 2014 when the General Assembly decriminalized the possession of less than ten grams of cannabis … our courts have consistently reaffirmed, as recently as 2022, the general rule that the odor of cannabis is evidence of a crime and therefore justifies the warrantless search of an automobile,” Zarnoch wrote.

Kelly argued that under the 2023 law, the evidence obtained during the search of his vehicle must be suppressed because the search was based solely on the odor of cannabis, according to the opinion.

Although the law did not become effective until after he had been convicted and sentenced, Kelly argued the court should apply the current law rather than the law that existed prior to his conviction.

Nevertheless, the Maryland Appellate Court determined that no case law suggests that Maryland’s changes to cannabis laws “would necessarily have resulted in our abrogating the general rule permitting a search of a vehicle based on the odor of cannabis.”

A spokesperson for the Maryland Office of the Attorney General declined to comment.

The appeals court also reasoned that because a certain remedy provided by the 2023 legislation “was made contingent upon a violation of the right created by the statute, the General Assembly sent a clear message that the statute … was a substantive change to existing rights.” Therefore, the court added, the statute cannot and should not be applied retroactively.

In reaching its decision, the Maryland Appellate Court also relied upon the high court’s April 2024 ruling as to whether the Juvenile Justice Reform Act can be applied retroactively. The Maryland Supreme Court held the Act, which prohibits charging children younger than 13 as adults for certain nonviolent acts, applies to cases pending when the law took effect.

A spokesperson for the Maryland Office of the Public Defender, whose office represented Kelly, did not respond to a request for comment on Tuesday.