Commentary: Time to end police stops, searches prompted by marijuana odor

“Can they do that?” Public defenders across Maryland frequently hear this question when meeting with clients whose cases began because an officer smelled weed.

The typical case is this: An officer sees a Black driver, decides to initiate a stop, follows the driver and then determines the driver has committed a minor traffic infraction. This type of blatantly pretextual stop is still (for now) perfectly legal.

The officer will come up to the driver’s side of the vehicle and claim to notice the smell of marijuana. That allegation alone — whether true or not — is a blank check for officers to demand the driver get out of the vehicle and to initiate a search of the vehicle.

“Can they do that?” The answer is: “Absolutely.”

Under current Maryland case law, if an officer claims to smell the odor of marijuana, that constitutes reasonable suspicion to conduct a stop of a person, or group of people, and probable cause to search a vehicle. This is counterintuitive at best. After all, possession of less than 10 grams of marijuana has been decriminalized since 2014, and this past fall, Maryland voters overwhelmingly supported a constitutional amendment to allow recreational marijuana use.

But as long as cannabis-related crimes exist, the justifications articulated by the Supreme Court of Maryland remain — that the odor of marijuana provides evidence of a crime or contraband, so a stop or search based on odor alone is reasonable.

This begs the question: If on July 1, when recreational cannabis is legal, “Can they do that?” The answer, for now, is probably yes. Possession of more than the personal use amount of cannabis can be a civil violation or misdemeanor, and crimes such as possession with intent to distribute cannabis will remain on the books.

This should scare all Marylanders who hope to legally purchase and consume weed starting this summer. The promise of legalization rings hollow if you can walk into a dispensary and legally purchase cannabis, but an officer can stop you while driving home and search every inch of your car based on that odor alone. While the General Assembly has spent weeks intricately creating the cannabis marketplace, and extensive news coverage details those negotiations, the consequences of legalized weed and continued law enforcement based on its odor has not been treated with the same care or attention.

Legislation introduced by Del. Charlotte Crutchfield and Sen. Jill Carter, HB1071/SB0051, would solve this problem, by precluding officers from relying on the odor of cannabis alone to support a stop or search. This bill makes clear that the odor of cannabis can be a relevant consideration among the totality of the circumstances when an officer is deciding if they have legal cause to conduct a stop or search. But relying on that odor alone to infringe upon a person’s rights — an odor that is legal, that can linger, and that can arise from just being with someone using cannabis — is no more reasonable than walking down the street and demanding that a person open their bag because they look suspicious.

That type of arbitrary overreach by law enforcement, that is often disproportionately deployed against Black and Brown folks, makes us all less free, and we must resist it.

Marylanders are reasonably concerned about how officers will enforce laws against driving while impaired by cannabis without being able to rely on odor alone. But like cigarette smoke, the odor of cannabis can linger in clothes or in a vehicle for days, whether a person was smoking it or in a room where someone else was smoking it.

That odor doesn’t mean the person is impaired by cannabis at that moment. Swerving, weaving in and out of lanes, failing to stop at stop signs, an inability to speak coherently to an officer — those are indications that a person is too inebriated to drive, regardless of the substance. Officers will still be able to rely on those factors, in conjunction with the odor of cannabis, to decide whether they should investigate further the possibility of driving while impaired. But odor of weed alone says nothing about whether a person is too high to drive.

On July 1, every Marylander over 21 should be able to go to a dispensary, purchase weed, and drive home, without worrying that a traffic stop over something as minor as a broken taillight will escalate to a full vehicle search because of the odor of a legal product.

“Can they do that?” The answer must become a resounding “No.”

Michele D. Hall is an assistant Maryland public defender.

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