Ban on police searches based on cannabis smell is not retroactive, MD Supreme Court rules

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A Maryland law banning police searches based on the smell of cannabis does not apply retroactively, the Maryland Supreme Court ruled Tuesday.

The court unanimously ruled that the 2023 law, which took effect the same day that recreational possession and use of cannabis became legal for adults in Maryland, only applies to police stops after the law’s effective date of July 1, 2023. It does not apply to cases that were pending when it took effect.

“The plain language of (the law) does not permit application to police searches that occurred before the law existed,” Justice Peter Killough wrote.

The law superseded Maryland Supreme Court decisions from 2017 and 2022, which ruled that the smell of cannabis alone gave law enforcement reasonable suspicion to make a stop and probable cause to search.

The appellants in the consolidated case were Lance Cutchember and Phillip Antoine Hicks, who were arrested in January 2023 after officers allegedly smelled cannabis and searched their cars. Both were later convicted of drug offenses in St. Mary’s and Worcester counties, respectively.

They argued that the law should apply retroactively because it was “remedial” — intended to address an injustice — and “procedural,” affecting how cases are adjudicated in court. They filed motions to suppress the evidence officers found through searches prompted by the smell, and the law was in effect by the time of the suppression hearings.

The Maryland Supreme Court ruled that the two circuit courts and the Maryland Appellate Court were right to deny those motions to suppress.

Evidence found “in violation of” the statute is inadmissible in court, Killough wrote. But because the statute was not effective when the searches took place, officers didn’t violate it.

Cutchember’s attorney, George Harper, of Baltimore, declined to comment. The Maryland Office of the Public Defender, which represented Hicks, also declined.

Killough wrote that he could find no evidence that the law was meant to apply retroactively.

He noted that a similar law in New York did not require a “violation” and therefore did apply retroactively.

“The New York trigger is adjudicatory — it limits what a judge may consider during a hearing,” he wrote. “Maryland’s trigger, however, is conduct-based — it limits what an officer may do on the street.”

The bill’s racial equity impact statement said the smell of cannabis is often the basis for pretextual stops, which disproportionately affect Black Marylanders. Killough wrote that the note reflected the General Assembly’s understanding that the law would only apply to police encounters after the effective date.

“Because no such duty or right — and thus no ‘violation’ thereof — could have existed prior to July 1, 2023, the remedial purpose of the statute is logically limited to its prospective application,” he wrote.

“To hold otherwise would be to create a statutory violation where the General Assembly did not, exceeding our judicial role.”

“Marylanders have the right to be free from unlawful searches — including, since July 2023 when cannabis was legalized for personal use, searches based solely on the smell of cannabis,” said Kelsey Hartman, a spokesperson for the state attorney general’s office. “This decision upholds that value by applying the law fairly and as the legislature intended.”

This story has been updated with a statement from the OAG.