Much Ado About Something: Freedom from Targeted Searches and Seizures Based on the Alleged Odor of Cannabis
By Michele D. Hall,[*]
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…
Judges Don’t See it the Same on Speed, Stopping, and Suspicion
Of counsel, McAllister, DeTar, Showalter & Walker
Reasonable suspicion under the Fourth Amendment is a treadmill issue for appellate courts, and the constant churn of opinions usually involves judges’ different attempts to articulate what exactly is, and what should be, suspicious about human behavior. Those questions are far from easy. Every judge — every person, really — may have different thresholds about when something becomes reasonably suspicious.
The task often involves adding up a bunch of small details about a police encounter, each of which may be only a little bit suspicious, and determining whether they cross that varying threshold. A good case in point is the recent Snyder v. State, App. Ct. of Md., Sept. Term 2021, No. 1127 (Feb. 3, 2023), which suggests that strategy by the State may not always be effective. There, the State sought to satisfy the Fourth Amendment by throwing a bunch of suspicion spaghetti against the wall. Peeling it off one by one, the Appellate Court majority found it wasn’t enough — but there was one sticky noodle that triggered a dissent.Read More…
Free to leave? Maryland courts should rethink how they determine whether a car’s occupants are seized under the Fourth Amendment
By Sam Cowin and Eleanor Erney
Suppose you’re sitting in a parked car, waiting for a friend on the street outside her house, when a uniformed police officer suddenly parks behind you, approaches your car on foot, and starts to question you. If you’re like us, your heart would be in your stomach before the police officer even reached your car, and you certainly wouldn’t think that driving away from the scene in the middle of the questioning was an option. The empirical evidence suggests we are not alone: In a 2009 survey, for example, most people (regardless of gender, age, or race) responded that they would not feel free to leave if they were approached and questioned by a police officer on the street. Tellingly, a number of survey respondents who knew they had a right to leave a police encounter nevertheless reported that they would not feel free to exercise that right.
Yet in determining whether the police seized a person in her parked car (therefore entitling that person to Fourth Amendment protection), the Maryland courts continue to operate in a fictional world in which people ordinarily feel free to drive away when a uniformed police officer unexpectedly approaches and questions them. Read More…