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.
Read More…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.
Read More…Adnan Syed’s Convictions Reinstated for the Victims’ Right to Attend in Person
The Serial continues. On March 28, 2023, the Appellate Court of Maryland reinstated Adnan Syed’s convictions and sentence to life in prison plus 30 years, because it found that the trial court violated the victim’s right to notice of, and his right to attend, the hearing on the State’s motion to vacate, in violation of Criminal Procedure § 8-301.1(d) (Lee v. State, et al, No. 1291, September Term 2022, Opinion by Hon. Kathryn Graeff).
The Appellate Court found that, although the victim’s representative, Young Lee, did attend the vacatur hearing virtually, and had no right to be heard, he had the right to receive notice sufficient to allow him to attend in person. The Court further found that the subsequent entry of a nolle prosequi did not render this appeal moot because it was a nullity.
The Lee decision is the first time that the ACM expands the Court’s control over a nolle prosequi entered by the State in favor of a victim’s rights, and to the defendant’s detriment. The dissent (Hon. Stuart Berger), disagrees with the majority in two ways. First, Judge Berger would have held that the appeal was moot, and second, that the victim’s rights to notice and to be present were not violated.
Read More…Is Evidence of Innocence Exculpatory Enough?
The Maryland Supreme Court’s last opinion of 2022, Carver v. State, 482 Md. 469 (2022) (Hotten, J.) (Gould, J., dissenting), analyzed the cumulative impact of newly discovered evidence and held that the newly discovered evidence did not “speak to” petitioner’s innocence, and therefore, did not require granting a writ of actual innocence. However, Justice Gould’s pointed dissent illustrates the existing controversy over the application of the standard for how much newly discovered evidence is enough to warrant a new trial. Both the Majority and the Dissent agreed on the standard to apply. Still, in practical terms, does a petitioner have to show that the State’s evidence of guilt is insufficient? That is precisely how Justice Gould reads the Majority’s application of the standard, which effectively raises the bar for petitioners and turns the “substantial possibility of a different outcome” test into the functional equivalent of a preponderance of the evidence standard.
Read More…Inferring Knowledge From Presumed Knowledge
“Knowledge” might seem to be a pretty basic concept: A person either knows something or doesn’t know something. But, of course, there are precious few truly basic concepts in the law, and even a question as to what a person knows can get tricky once all the presumptions and inferences start getting worked into it. One of these — the so-called “deliberate indifference” doctrine — split the judges in the recent Appellate Court case of Woodall v. State, but the case also shed light on a premise I hadn’t previously been aware of: that presumed knowledge of the law can also support a finding that a defendant was willfully ignorant about its consequences.
Read More…
Maryland Appellate Blog 