Maryland Lawmakers Pass Bill Barring Weed Odor As Probable Cause For Searches

The Maryland House of Delegates passed a bill on April 10 that bars police from using the odor of cannabis as the basis for the search of a person or automobile. The measure, House Bill 1071, also lowers the civil fine for consuming cannabis in public to $50. 

The bill was approved by the Maryland House by a vote of 101-36 in the closing minutes of the legislative session Monday night after passing in the state Senate with amendments earlier in the day. The legislation now heads to the desk of Democratic Gov. Wes Moore for consideration.

Bill Bans Searches Based on Odor of Weed

Under House Bill 1071, law enforcement officers would be prohibited from using the odor of raw or burnt cannabis as probable cause to search a person or vehicle. Supporters of the legislation maintain that the bill is required to fulfill the intent of Question 4, a ballot referendum to legalize recreational marijuana that passed with nearly two-thirds of the vote in the midterm elections last year. House Bill 1071 also bans searches based on possession of a legal amount of marijuana or the presence of cash in the proximity of cannabis without additional evidence showing an intent to distribute marijuana.

Question 4, which takes effect on July 1, legalizes possession of up to 12 grams of cannabis for personal use. Possession of between 12 and 20 grams will be a civil offense, punishable by a fine of up to $250. Possession of cannabis in quantities greater than 20 grams will be a misdemeanor carrying penalties including up to six months in jail and a fine of up to $1,000.

Because possession of cannabis will still be illegal in amounts greater than 12 grams, legalization advocates say House Bill 1071 is necessary to protect the rights of legal cannabis users. The legislation follows a court decision from the Maryland Supreme Court last year that upheld police authority to briefly detain and search individuals based on the odor of cannabis, despite the state’s legalization of medical marijuana in 2013. Assistant Maryland Public Defender Michele Hall, who unsuccessfully argued the Supreme Court case, told the House Judiciary Committee last month that police will continue to conduct searches based solely on the perceived odor of cannabis.

“Legalization alone did not fix this problem,” Hall told the House Judiciary Committee last month, according to a report from the Maryland Daily Record.

“As long as odor supports Fourth Amendment intrusion, Marylanders legally engaging in the cannabis market are at risk,” added Hall. “Alleging odor of cannabis alone is nothing more than a blank check for police to intrude upon a person’s right to privacy in the hopes of finding something criminal, and the Fourth Amendment requires more.”

The legislation to ban police from using the odor of marijuana as probable cause for a search is also supported by the Maryland chapter of the American Civil Liberties Union.

“Marijuana odor stops and searches not only pose serious risk to people’s Fourth Amendment rights, they enable racial profiling and dangerous and unnecessary police interactions,” Yanet Amanuel, the chapter’s public policy director, told the Judiciary Committee in March.

“This is why it is critical that the legislature must step up and ensure that the law and police practices are consistent with the reason you all said you support legalization of marijuana and, most importantly, the law reflects the will of the people,” Amanuel added. “Marylanders should not fear police interactions because of a lingering odor of a now legal substance.”

Meg Nash, a partner at the cannabis and psychedelics law firm Vicente LLP, said that legislation such as House Bill 1071 is needed to ensure that the legalization of cannabis is enforced equally.

“It’s encouraging to see Maryland tackling the harmful impacts of the war on drugs, not only through adult use legalization, but by revisiting sections of their criminal code,” Nash wrote in an email to High Times on Wednesday. “These types of laws are necessary to protect the rights of individuals in states, like Maryland, that have legalized cannabis for adult use and show the state’s commitment to addressing harms to communities that have been disproportionately impacted by prohibition.”

House Bill 1071 also reduces the fine for public consumption of cannabis from $250 to $50. After receiving final passage in the closing minutes of the current legislative session Monday night, the bill has been sent to the governor’s desk for consideration.