The Smell and the Fury: HB1071 and the Future of the Smell of Marijuana as Probable Cause
Last Monday was the conclusion of the 2023 General Assembly session and it was even more chaotic than usual. Minutes before midnight, House Republicans were shouting at House Speaker Adrienne Jones and attempting to leave the chamber before the House was adjourned. I will leave it to others to comment on the state of Maryland politics. What interests me is the bill that caused the last-minute ruckus.
House Bill 1071 would enact Criminal Procedure § 1-211, which prohibits a police officer from stopping or searching a person, a car, or a boat based solely on: 1) the smell of burnt or raw marijuana; 2) possession or suspicion of possession of marijuana not exceeding the “personal use” amount; 3) currency near marijuana absent other indicia of an intent to distribute; or a combination of any of these three factors. HB 1071 also provides that an officer investigating a person solely for driving under the influence of marijuana may not search an area of the vehicle that is not readily accessible to the driver or “reasonably likely to contain evidence relevant to the condition of the driver[.]” Finally, HB 1071 contains an exclusionary provision that prohibits evidence “discovered or obtained in violation of this section, including evidence discovered or obtained with consent,” from being admitted at a trial or other proceeding.
In explaining his “no” vote Monday night, Minority Leader Jason Buckel said the bill restricts police officers from doing their jobs because they will no longer be able to search cars based on the smell of marijuana. Those searches, Representative Buckel said, regularly result in the discovery of guns and other contraband and it “makes a mockery” of crime prevention to prohibit them.
I don’t think HB 1071 radically changes the law relating to vehicle searches for the reason that Representative Buckel thinks it does. It is true that in 2017 the Supreme Court of Maryland reaffirmed that the smell of marijuana is probable cause to search a vehicle. Robinson v. State, 451 Md. 94 (2017). That decision, however, was largely premised on the fact that, although possession of a small amount of marijuana was a civil, not a criminal, offense, possession of marijuana in any amount was illegal in Maryland. The Carroll doctrine provides that police can search a vehicle if they have probable cause to believe that the vehicle contains contraband or evidence of a crime. Decriminalization is not legalization, the Court said, and marijuana in any amount remains contraband.
In July of this year, it will become legal to possess “personal use” amounts of marijuana. In my opinion, this change in the law requires the Supreme Court of Maryland to reconsider Robinson, and I think the Court would likely hold that the smell of marijuana, without more, is no longer probable cause to believe that the vehicle contains contraband or evidence of a crime. In other words, with or without HB 1071, it is likely that vehicle searches based solely on the smell of marijuana are a thing of the past.
Likewise, the restrictions on a search conducted during an investigation for driving under the influence of marijuana change virtually nothing. Proposed Criminal Procedure § 1-211(b) allows officers investigating driving under the influence of marijuana to search only those areas of the vehicle readily accessible to the driver or reasonably likely to contain evidence relevant to the driver’s condition. The Supreme Court of the United States held in 2009 that searches of a car incident to arrest are restricted to areas within the arrestee’s immediate control or when it is reasonable to believe that evidence of the offense of the arrest might be found in the vehicle. Arizona v. Gant, 556 U.S. 332 (2009).
In my view, it is the final provision of HB 1071 that represents a sea change in search and seizure law. Proposed Criminal Procedure § 1-211(c) states that “evidence discovered or obtained in violation of this section, including evidence discovered or obtained with consent, is not admissible in a trial, a hearing, or any other proceeding.” Consent is a well-established exception to the Fourth Amendment. Officers routinely request and obtain consent to search a car that they would otherwise be constitutionally prohibited from searching. This bill makes inadmissible evidence recovered from a consent search that exceeds the bounds of § 1-211(b). This is the section of HB 1071 that radically changes the law.
Whether excluding evidence recovered during a consent search is good public policy is beyond the scope of this post. If the General Assembly is going to restrict consent searches, though, I wonder why that restriction should be limited to evidence recovered during investigations of driving under the influence of marijuana. Now that the 2023 session is over, I guess we will have to wait and see if HB 1071 is the first step in a broader restriction of consent searches.
2 responses to “The Smell and the Fury: HB1071 and the Future of the Smell of Marijuana as Probable Cause”
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- April 20, 2023 -
This is an interesting perspective on what opponents of the bill said about the bill’s potential effects on policing. I’d be curious what the bill’s supporters had to say, including why they felt the bill was necessary. Also, does the bill have anything to do with race?