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New law bars police searches based upon marijuana smell

On Behalf of | Apr 25, 2023 | Criminal Defense, Drug Charges

Maryland has joined other states in reducing the criminal penalties for marijuana and allowing its recreational use. The legislature, at the very end of its session in April, also  passed a bill that would likely reduce prosecutions for drug charges by prohibiting police from stopping vehicles and conducting searches because they smelled marijuana.

Odor no longer probable cause

If signed by the governor, the bill would take effect on July 1. This is the same date that recreational cannabis becomes legal in Maryland.

This measure will prohibit reasonable suspicion or probable cause for a search or stop based only upon the smell marijuana. Police, for example, cannot rely on the odor of marijuana to conduct a search if they stop a driver with an expired registration.

However, the smell of marijuana may be used if the police suspect that a motorist is impaired. For example, police could rely on a marijuana odor if they pull over a motorist who was driving erratically.

Also, police are prohibited from conducting stops and searches based only on an individual’s possession of 1.5 ounces of cannabis for their personal use. Police may not conduct searches if there is cash near the cannabis when there is nothing else showing an intent to distribute the cannabis.

Heated debate

Opponents of the bill argued that it would eliminate opportunities for police to discover evidence of more serious crimes. The odor of marijuana has justified searches that uncover weapons and other unlawful items. These may now be excluded as evidence under this bill.

They also argued that it would restrict the ability to deal with impaired drivers. But during hearings on the bill, its sponsor said that the smell of marijuana may be a factor for investigating impaired driving.

The bill’s supporters said it would remove a method to conduct unjustifiably invasive searches that were often used against minorities and as racial profiling.