Maryland bill would end vehicle searches based on cannabis odor

Rusty Carr took to the podium in the Senate Judicial Proceedings Committee hearing room Thursday holding two glass jars.

“Ladies and gentleman, I hold in front of you: hemp,” the Mount Airy resident said. “It’s also called cannabis, but this is legal and it’s not impairing. I invite you to smell it.”

Carr was testifying in favor of a bill to stop warrantless vehicle searches by police that are based solely on the odor of cannabis.

No lawmakers took Carr up on his offer. But the smell from his jars was similar to that from a jar of medical marijuana he carried in his bag. And that was his point.

Marylanders overwhelmingly voted in November to legalize recreational cannabis. Since then, state lawmakers have been scratching their heads about how to regulate the nascent industry in a way that is equitable to communities that have been most impacted by the war on drugs.

Democratic Sen. Jill P. Carter of Baltimore is sponsoring the bill that would prohibit police from conducting probable cause searches based on the odor, possession or suspected possession of cannabis during traffic stops.

“When it comes to the issue of legalizing marijuana, this issue is one of the most important issues that we’re going to have to grapple with,” Carter said. “How we choose to move on this issue is really speaking about who we are as a state, how we respect the Constitution, how we respect and want to see better outcomes for Marylanders than what we’ve had up until now.”

The legislation would allow an officer to investigate whether a driver is under the influence of cannabis. But odor only can be used as the basis for a search if the area being searched is immediately accessible to the driver or is “reasonably likely” to have evidence linked to the driver’s impairment.

Carter said during the hearing that she plans to offer an amendment to the bill to clarify it would not prohibit police from performing vehicle searches if the driver consents.

Carr, who is white, said he would like to see the bill amended to bar officers from searching a driver’s immediate area. He said that would “still allow the racial enforcement of pretextual stops” and said the smells of his hemp and cannabis were indistinguishable.

Michele Hall, a public defender from Prince George’s County, also spoke in favor of the legislation.

“Without this bill, the odor of marijuana will continue to be a pretextual basis for stops and searches and, quite frankly, without this bill, walking, driving and existing while smelling like weed while Black will become the new ‘driving while Black,’” said Hall, referring to the greater rate at which police pull over Black drivers.

Hall pointed to the death last month of Tyre Nichols in Memphis, Tennessee, after police stopped and beat him.

“The question we need to ask is, ‘When should police have the authority to forcibly stop, search and detain someone and use escalating force against them?’” Hall said.

[ There is a rapidly expanding, virtually unregulated competitor to medical cannabis in Maryland. It’s called Delta-8. ]

Lawmakers and advocates testifying in favor of the bill asked questions about the difference between searches and arrests for driving under the influence of alcohol versus cannabis.

Roberto Martinez, an attorney from Montgomery County, testified he has represented drivers in both alcohol- and drug-related cases. He told the committee that he has “never tried an impaired driver case solely on the odor of marijuana.”

“Officers look for driving pattern traffic violations as signs of impairment: speeding; straddling lanes; turning too fast; turning too slow,” Martinez said.

Then, he explained, officers will observe drivers, looking for signs of impairment, such as slurred speech, bloodshot or watery eyes, slow reaction times and poor coordination.

“This bill does not diminish that practice,” Martinez said.

[ Black Baltimore has largely been left out of Maryland’s marijuana industry. Here’s how some are pushing to fix that. ]

But opponents of the bill pointed to the fact that there are roadside tools, like devices that test blood alcohol levels, to determine whether someone is too drunk to drive. There is no such thing for cannabis.

“It’s been passed. It’s gonna be, ‘Recreational use is legal,’” said Sen. William Folden, a Republican from Frederick County. “But we’re putting the cart before the horse. We’re not allowing the proper things in place to be able to properly monitor and keep the road safe and ... this [the bill] would take away another tool.”

Baltimore County State’s Attorney Scott Shellenberger, a Democrat, said the courts should be left to determine whether odor is a probable cause “because we’re talking about the Constitution,” particularly the Fourth Amendment, which protects people from unreasonable searches and seizures.

“Have we ever developed Fourth Amendment rules of arrest and search and probable cause around a legal substance before?” Shellenberger asked, rhetorically. “Oh, that’s right. Alcohol.”

“I suggest that we allow the courts to do the same thing with marijuana, once it becomes legal,” he said.