Following Marylanders’ vote to legalize recreational marijuana, which takes effect on July 1, 2023, the Maryland General Assembly is now grappling with the effect legalization will have on the criminal justice system.[1] Recently introduced Senate Bill 51 (“the Bill”) would eliminate the ability of law enforcement officers to stop individuals and drivers solely on the basis of marijuana odor.[2] Instead, officers must suspect intoxication or possess some other valid reason to initiate the stop.[3] The Bill would also prohibit marijuana possession and large sums of money near marijuana from being a valid basis for reasonable suspicion and a stop.[4] The Bill was introduced partly due to the struggle of Maryland courts in determining whether odor alone justifies a traffic stop.[5]

In 2021, the Appellate Court of Maryland,[6] held that mere marijuana odor emanating from one’s person does not create sufficient reasonable suspicion to justify a stop of a person.[7] The Supreme Court of Maryland[8] then reversed the ruling, holding marijuana odor is a valid justification for an investigatory stop.[9] While marijuana smell justifies a stop, the stop may only be continued if the officer ascertains that the driver is in possession of over 10 grams.[10] Marijuana odor may create reasonable suspicion, but it does not rise to the level of probable cause.[11] Probable cause permits the warrantless search or arrest of an individual where the facts would support the belief that evidence of a crime or contraband is present while reasonable suspicion merely allows the officer to conduct a brief investigatory detention.[12]

The legality of vehicle stops and searches are scrutinized differently than stops of a person as courts have delineated an automobile exception to the Fourth Amendment.[13] Under the automobile exception, officers may search a car without a warrant if they have probable cause of a crime being committed due to the mobile nature of automobiles.[14] Marijuana odor emanating from one’s vehicle by itself does in fact create probable cause.[15] Senate Bill 51 would eliminate marijuana odor from creating both reasonable suspicion and probable cause in the case of one’s person and automobiles.[16]

Supporters of the Bill argue that it will provide protection for minority drivers against racial profiling, as marijuana odor would no longer provide officers a basis for more intrusive investigations and would provide clear guidance to Maryland courts in the wake of legalization.[17] Those skeptical of the Bill worry that law enforcement would be stripped of the ability to use marijuana odor as justification for investigations into more serious crimes and apprehend criminals wanted for other crimes.[18] Skeptics also worry that road safety would be jeopardized if odor alone does not provide law enforcement officers the ability to make a stop.[19] As the landscape of marijuana law in Maryland is rapidly changing in preparation for legalization this summer, supporters hope that the Bill does not go up in smoke.  

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Brandon Ewing is a third-year day student at the University of Baltimore School of Law and a Second-Year Staff Editor for Law Forum. Brandon graduated from Salisbury University in 2019, majoring in psychology and conflict analysis and dispute resolution. Currently, he is a student-attorney in the Bronfein Family Law Clinic. After graduation, he plans to focus on family law.

Read more: Marijuana Odor May No Longer Make Cars Rolling Probable Cause

[1] William J. Ford, After Conflicting Court Rulings, Senate Committee Considering Whether Police Can Stop Motorists for Cannabis Scent, MarylandMatters (Feb. 3, 2023), https://www.marylandmatters.org/2023/02/03/after-conflicting-court-rulings-senate-committee-considering-whether-police-can-stop-motorists-for-cannabis-scent/.

[2] S. 51, 2023 Leg., 445th Sess. (Md. 2023).

[3] Id.

[4] Id.

[5] Id.

[6] At the time this case was heard, the court was named the Court of Special Appeals of Maryland.

[7] See In re D.D., 250 Md. App. 284, 250 A.3d 284 (2021).

[8] At the time this case was heard, the court was named the Court of Appeals of Maryland.

[9] See In re D.D., 479 Md. 206, 277 A.3d 949 (2022).

[10] Ford, supra note 1.

[11] In re D.D., 479 Md. at 215, 277 A.3d at 954 (citing Lewis v. State, 470 Md. 1, 233 A.3d 86 (2020)

[12] Robinson v. State, 451 Md. 94, 109, 152 A.3d 661, 670 (2017); In re D.D., 479 Md. at 249-50, 277 A.3d at 974.

[13] In re D.D., 250 Md. at 299, 284 A.3d at 293.

[14] Id.

[15] Id. at 225-26, 479 A.3d at 960-61 (citing Robinson, 451 Md. 94, 152 A.3d 661).

[16] See Ford, supra note 1.

[17] Id.  

[18] Id.

[19] Id.