September 2025 Maryland Certiorari Grants, Batch 2: The Smell of Retroactivity

This morning saw a surprise second batch of certiorari grants from the Supreme Court of Maryland. Both cases address the retroactivity of the 2023 statute that prohibits “law enforcement officer[s from] initiat[ing] a stop or a search of a person, a motor vehicle, or a vessel based solely on . . . the odor of burnt or unburnt cannabis.” Md. Code, Criminal Procedure § 1-211(a)(1).

In the second of the two cases, Judge Friedman authored a concurring opinion expressing his belief that Appellate Court’s reported opinions, giving the statute prospective-only operation, were wrongly decided. He also noted that other pending appeals raised the same issues.

Lance Cutchember v. State of Maryland – Case No. 39, September Term, 2025 (Reported ACM Opinion by Judge Woodward)
Issue – Criminal Procedure – Does § 1-211(c) of the Criminal Procedure Article apply retroactively? (This issue is similar to those found in No. 40, September Term, 2025).

Phillip Antoine Hicks v. State of Maryland – Case No. 40, September Term, 2025 (Unreported Per Curiam ACM Opinion; Concurrence by Judge Friedman)
Issues – Criminal Procedure – 1) When the General Assembly determined that the smell of cannabis alone would not constitute a basis for a stop or search, did it clearly demonstrate its intent that the enabling statute, Md. Code Ann., Criminal Procedure (“Crim. Proc.”) § 1-211, apply prospectively and not retrospectively when it used the phrase, “Evidence discovered or obtained in violation of this section…is not admissible in a trial, a hearing, or any other proceeding in § 1-211(c)? 2) If the General Assembly’s intent regarding prospective or retrospective application of Crim. Proc. § 1-211 is ambiguous, should the statute be applied in cases where the stop or search occurred before the effective date of the statute, but the suppression hearing occurred after the effective date, because the statute is procedural and not substantive, because the statute is remedial, and/or because Waker v. State, 431 Md. 1 (2013) requires retrospective application?