Criminal Defense Lawyer Blog
When recreational marijuana use became legal this past summer police officers were stripped of a major law enforcement tool. Probable cause vehicle searches based solely on the smell of cannabis has over the years resulted in hundreds if not thousands of arrests in Maryland for crimes ranging from drug trafficking to transporting a firearm. Many of these searches were suspect, as officers frequently performed them without ever locating actual marijuana. In cases where police seized other contraband such as guns, narcotics or stolen property from a vehicle an arrest was made, and the defendant prosecuted. The fact that the entire case began based off an error in judgment by a cop, or worse, a flat out lie rarely became a consequential issue. When arguing a motion to suppress evidence in an automobile search a judge must only be convinced that the officer acted on a probable cause belief that he or she would locate evidence of a crime. Probable cause is a much lower standard than proof beyond a reasonable doubt, which is the standard to determine guilt or innocence. Simply put, the deck was stacked against a defendant who was trying to fight an unlawful vehicle search based on alleged odor of marijuana.
The tide drastically changed when marijuana use by adults became legal. Currently if an officer smells marijuana during a traffic stop, there is no reasonable means to conclude that a crime is being committed based on the smell of pot alone, as possession of marijuana under the civil amount of 1.5 ounces is perfectly legal for someone 21 or older. Rather than face the prospect of hundreds of searches being overturned, lawmakers in Annapolis intervened and declared that officers would no longer be allowed to initiate warrantless vehicle searches based on the odor of cannabis. More than six months has passed since this law went into effect, and it still doesn’t sit right with many lawmakers. Back in November the Joint Republican Caucus stated it would attempt to overturn the law that now bars police from searching a vehicle based on the smell of weed. The law was passed during the final hours of the 2023 legislative session and resulted in a host of republican lawmakers walking off the House floor in protest. These politicians now argue that the search law prevents police from enforcing impaired driving laws, though this is a bit of a stretch. Their argument is that police officers who smell the odor of marijuana emanating from a moving vehicle would not be able to stop said vehicle and initiate an investigation. What this argument ignores is the fact that officers can still follow the vehicle and wait to observe signs of actual impairment or simply a traffic infraction. Additionally, police in Maryland are still able to conduct a traffic stop if they observe vehicle occupants actively smoking marijuana. Under Maryland law it is illegal to consume marijuana and alcohol inside a vehicle on a state roadway. A police officer who observes active marijuana smoking inside a vehicle would have reasonable suspicion to initiate a traffic stop, and then may develop probable cause to detain a driver for a DUI investigation.
While impaired driving concerns are potentially real, as states where marijuana use is legal have reported a slight uptick in injury auto accidents and traffic fatalities, the bigger issue with the no-search law may be the effect on overall crime prevention. Marijuana based vehicle searches have resulted in the seizure of hundreds of handguns over the years, and many of these firearms were taken from disqualified individuals. As firearm crimes and the number of illegal guns on Maryland streets continue to rise police are looking for more ways to get guns off the street, not less. The pervasiveness of ghost guns and the large number of juvenile gun crimes has also put the pressure on lawmakers and police to produce results. We will of course follow any measures to repeal the vehicle search law and may post a follow up article once any bills hit the floor in Annapolis. If you have been charged or are being investigated call Maryland gun and weapon crime lawyer Benjamin Herbst anytime at 410-207-2598 for a free consultation. Benjamin specializes in Maryland juvenile gun charges and adult charges for illegal possession of a firearm, minor in possession and violations of the wear, transport and handgun carry law. He has successfully represented dozens of out-of-state defendants from places like Virginia, Georgia and North Carolina where the gun laws are far more relaxed. He also defends clients charged with all other crimes in state and federal court, including possession of marijuana over civil, CDS narcotics violations, theft, robbery and traffic charges.
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Md. lawmakers may revisit issue of drivers smelling of marijuana, thedailyrecord.com.