Maryland Supreme Court: Cannabis odor

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Criminal; retroactivity

BOTTOM LINE: Where the Maryland General Assembly enacted legislation mandating that a law enforcement officer may not initiate a stop or search based solely on the odor of cannabis, the statute did not apply retroactively to searches conducted before the law went into effect.

CASE: Cutchember v. State, No. 39, Sept. Term, 2025; Hicks v. State, No. 40, Sept. Term, 2025 (filed March 3, 2026) (Justices Fader, Watts, Booth, Biran, Gould, Eaves, KILLOUGH).

FACTS: Effective July 1, 2023, the General Assembly mandated that a law enforcement officer may not initiate a stop or search of a person or vehicle based solely on the odor of cannabis. In separate instances, Lance Cutchember and Phillip Hicks were stopped and searched based on that odor in January 2023—six months before the statute took effect. Their suppression motions were subsequently denied in hearings held after the statute’s effective date.

In this consolidated appeal, the court must decide whether the exclusionary remedy provided in Md. Code Ann., Criminal Procedure, or CP, § 1-211(c) applies to searches conducted before the law went into effect. In both cases, the Appellate Court of Maryland affirmed the circuit courts’ decisions denying petitioners’ respective motions to suppress.

LAW: In the absence of an express statement of intent, a statute may be applied to pending cases if it is purely “procedural” or “remedial” in nature. A procedural statute “simply prescribes the methods of enforcement” of existing rights, whereas a substantive statute “creates rights, duties and obligations[.]”

 A remedial statute is one that provides a new remedy or improves an existing one for the “enforcement of rights and the redress of injuries.” However, these exceptions are narrow: a remedial or procedural change will not be applied retroactively “if it would impair vested rights, deny due process, or violate the prohibition against ex post facto laws.”

Of course, if the statute’s language indicates a purely prospective application and that purely prospective application is “clearly consistent with the statute’s apparent purpose,” then the court must apply the statute as written. That would mean there is no longer just a presumption of prospective application but confirmation as to the statute’s purely prospective application.

The state argues that CP § 1-211 applies prospectively only because, by its plain language, the statute applies solely to searches conducted on or after its July 1, 2023, effective date. Furthermore, the state contends that the statute created a new substantive right rather than a mere remedial procedure. Because both petitioners’ searches occurred before the effective date, the state argues that they are not entitled to the statutory remedy of suppression provided by CP § 1-211(c).

The court agrees. Criminal Procedure § 1-211(a) creates a substantive right that supersedes this court’s holding in Robinson v. State, 451 Md. 94 (2017), which allowed searches based on the odor of cannabis alone. Because this right did not exist in January 2023—at the time the police searched Cutchember’s and Hicks’ vehicles based on the smell of marijuana alone—law enforcement did not “violate” the statute.

Criminal Procedure § 1-211(c) makes clear that only “[e]vidence discovered or obtained in violation of this section” is inadmissible. Because a violation of subsection (a) was legally impossible before July 1, 2023, the exclusionary remedy in subsection (c) is unavailable to these petitioners. Since the plain language of CP § 1-211 is unambiguous, it is unnecessary to engage in further retroactivity analysis.

Hicks argues that CP § 1-211 is merely procedural as it gave “full effect” to existing rights against unreasonable searches and the right to possess a personal use amount of cannabis. The court is unpersuaded. Prior to the statute’s effective date, Marylanders did not have a specific right to be free from cannabis-odor searches, regardless of the amount possessed. CP § 1-211(a) thus gave Marylanders a new substantive right to be free of searches and seizures based on the odor of cannabis alone.

Judgments of the Appellate Court of Maryland affirmed.