Much Ado About Something: Freedom from Targeted Searches and Seizures Based on the Alleged Odor of Cannabis

By Michele D. Hall,[*]
Guest Contributor

In the last moments of the General Assembly’s 2023 legislative session, the House passed HB1071, which prohibits police from stopping or searching a person or vehicle based solely on (1) the odor of cannabis, (2) possession or suspicion of possession of cannabis, or (3) currency in proximity to cannabis without other indicia of distribution. HB1071 fundamentally changes the status quo. Currently, police routinely rely on the alleged odor of cannabis to search vehicles. The bill was a priority of the Legislative Black Caucus because marijuana laws are disproportionately enforced in communities of color.

Despite this fundamental change, Monday’s post “The Smell and the Fury: HB1071 and the Future of the Smell of Marijuana as Probable Cause” suggests that HB1071 is not significant because its substantive outcome was inevitable. The author argues that once marijuana is legal on July 1, “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 HB1071, it is likely that vehicle searches based solely on the smell of marijuana are a thing of the past.”

It is not lost upon me that the quote from which the author draws the article’s title is: “It is a tale told by an idiot, full of sound and fury, signifying nothing,” from William Shakespeare’s Macbeth. For the author the noise around the change brought by HB1071is nothing more than sound and fury, which ultimately signifies nothing because the Supreme Court of Maryland would have reached this same result eventually.

This premise is both legally and practically faulty. Legally, it was not a foregone conclusion that legalization would solve the problem of police stops and searches based on the alleged odor of cannabis alone. The majority’s holding in In re D.D., 479 Md. 206, 235 (2022)—that the odor of marijuana alone can support a Terry stop—rests on the premise that “[t]here can be no real dispute that the odor of marijuana still provides evidence of a crime,” such as possession with intent to distribute marijuana or possession of marijuana over the legal amounts, and therefore a stop based on odor alone is reasonable. Those crimes will remain on the books post-legalization, and therefore the foundational logic of D.D. would remain intact. And these aren’t tinfoil hat rantings: the Attorney General’s office issued an opinion in December 2022 explaining how legalization of cannabis would not fundamentally change the foundations of D.D., concluding, “it is our opinion that, although not entirely clear, the Court of Appeals is more likely to hold that the odor of cannabis emanating from a vehicle will still justify a police officer’s search of that vehicle after July 1, 2023.”

The author’s premise also ignores the human toll of continued stops and searches based on the odor of cannabis until the Court decides the issue. Even if the Court would ultimately conclude that odor of cannabis alone no longer supports a stop or search post-legalization, until that opinion would have been issued, two to three years from now, the status quo would continue: police would conduct stops and vehicle searches based on the odor of cannabis, prosecutors would argue that evidence recovered as a fruit of such stops and searches should be admissible in court, trial court judges would allow such evidence in at trial, and the State would argue to uphold the ensuing convictions on appeal.

At every hearing on this bill, police and elected prosecutors testified that being able to conduct vehicle searches based on the odor of cannabis was an essential law enforcement tool, made clear that they intended to continue to use it post-legalization, and implored the General Assembly not to change it. Unsurprisingly, Black communities suffer the most harm from searches of vehicles based on probable cause. And though Maryland has no specific data on how often the cannabis odor is used as the justification to search a vehicle, reporting in other states like California and Illinois demonstrate that Black drivers most often suffer the indignity of these types of intrusions and no contraband is recovered. Poignantly, on the day of the Senate hearing on HB1071, Prince George’s County settled an excessive force lawsuit with the family of Demonte Ward Blake for $7.5 million, who was paralyzed during a traffic stop that escalated because of the alleged odor of cannabis.

I don’t believe that anyone really comes from a wholly neutral perspective, because we all have our own life experiences that shape our views on the world. And when it comes to HB1071, I have many dogs in the fight. I represented D.D. from the juvenile court through the Supreme Court of Maryland, meaning I lived with every aspect of that case and the young person’s life it impacted for over three years. I worked closely with HB1071’s sponsors, testified at all the bill hearings, met with lawmakers, published op-eds, and spoke at press conferences. I’m a Black woman, and have my own experiences with racial profiling, as do my friends and family. I was motivated to fight for HB1071 for the same reasons that the bill was a priority of the Legislative Black Caucus: it is a trap to legalize marijuana but have its odor still be the basis for a stop or search, and Black people would remain disproportionately at risk of police violence flowing from the inevitable confusion over the disconnect between the case law and cannabis’s legalization.

Far from “sound and fury signifying nothing,” HB1071’s significance is its immediate protection of people, especially people of color, from police interactions based on the alleged odor of a substance that will be legal. Regardless of how the Court may have resolved the issue in the future, that immediate substantive change is significant and should be acknowledged as such.

[*] Michele D. Hall is an Assistant Public Defender in the Appellate Division of the Maryland Office of the Public Defender. The opinions expressed in the article are the author’s own and do not constitute a statement from the Maryland Office of the Public Defender.