Maryland Democrats Push Back Against GOP Bill To Let Police To Search Vehicles Over Marijuana Odor

A Maryland House of Delegates committee considered a Republican-led bill on Tuesday that would reinstate the ability of law enforcement to stop and search vehicles over the smell of marijuana. Democrats pushed back strongly against the proposal, however, noting the state’s history of police disproportionately stopping people of color.

The panel did not take action on the measure, HB 320, which supporters first unveiled in November. Members instead spent more than half an hour debating the issue and taking testimony from law enforcement and civil rights advocates.

As cannabis legalization that took effect last year, Maryland changed a number of policies around law enforcement and traffic stops. One adjustment enacted under separate legislation removed the ability for police to use the smell of burnt or unburnt marijuana to be used as the sole grounds to stop and search a person’s car.

Proponents of undoing that policy with the new bill described the existing law as a “blanket get-out-of-jail-free card” at the House Judiciary Committee hearing

“What we’re trying to get at is impaired driving,” said Del. Jesse Pippy (R), the lead sponsor of the bill. “Everyone on this committee knows that it is still illegal in Maryland to drive under the influence, whether that’s alcohol, drugs or other impairing items.”

The measure would also allow evidence gathered in such traffic stops to be admissible in court. Law enforcement said at the hearing that people who smell like marijuana could be associated with illegal firearms and illicit drugs like fentanyl.

“In my experience as a prosecutor, the odor of cannabis in the vehicle can lead to the discovery of firearms and other controlled dangerous substances such as fentanyl,” said Anne Arundel County Assistant State’s Attorney Marot Williamson. “Passing HB 320 would return this important investigative tool to law enforcement and would aid law enforcement and getting these otherwise undetected and deadly items off of our streets.”

Scott Shellenberger, state’s attorney for Baltimore County, put it more bluntly.

“The simple fact is that unfortunately, people who have a bit of drugs—or a number of drugs—in their car also have guns,” Shellenberger said. “I think HB 320 is a common sense approach and I would urge a favorable report.”

But Del. Frank Conaway (D) at one point questioned the motivation of the bill, noting that even the measure’s fiscal note acknowledges that Maryland has a history of disproportionately enforcing drug laws on Black residents.

“In previous years, we found that there seemed to be one group of people were treated differently than another group of people,” Conaway said. “So we’re very unclear as to what your motives are as to why you want to initiate this again.”

Del. N. Scott Phillips (D) said he worries the bill would “leave too much judgment to the officer.”

Others were skeptical of the need for the bill, noting that police can still stop drivers for swerving or driving erratically. And searches may be justified if an officer sees clear evidence of a violation—such as smoking a joint in a car, which remains illegal.

“Usually it is the initial observance of the erratic driving, the speeding, something that gets you to the stop,” said Del. Charlotte Crutchfield (D), the lead sponsor of last year’s HB 1071, which set the current law. “I want this to be clear: You can stop an impaired driver, OK?”

Among Republicans on the panel, Del. Christopher Eric Bouchet noted that one of the problems is that there’s no clear way to test drivers for cannabis impairment or even recent use.

“If we pull people over for the smell of cannabis, how do we determine that they’re under the influence and prosecute them?” he asked.

Supporters said drug recognition experts and some visible signs of impairment can help build a strong case, but they acknowledged that there’s no approved test that can definitively determine impairment.

Del. Lauren Arikan (R) said that she regularly smells marijuana while driving through a tunnel on her way into the statehouse.

“You could see somebody smoking a joint—it could be a hand-rolled cigarette, you don’t have probable cause,” she said, calling the situation “totally absurd.”

“Every time I’m in the flippin’ tunnel, it reeks of pot,” Arikan continued. “I’m getting stuck in traffic with these whack jobs who are smoking in the frickin’ tunnel. So this is an actual problem. And I don’t want you guys to wait until somebody’s swerving out of the lane. I want a cop in the tunnel with with me to go, ‘Who’s hotboxing the freaking tunnel?’”

Other commenters who testified during the hearing spoke against the measure.

“This bill will return us to the decades old, arbitrary policing practices subjected Black people disproportionately to racial profiling,” said Tia Holmes, who spoke on behalf of the Maryland Office of the Public Defender, which opposes the bill.

NaShona Kess, executive director of the Maryland NAACP, said the proposal “means that law enforcement will have the authority to just say they believe they smell something.”

“Can you imagine such a system, where someone could just stop you because you look suspicious?” Kess asked. “Of course, we’ve been in that system before, and it hasn’t worked. It will not work. It cannot continue to be something that we live in our community.”

Yanet Amanuel, public policy director for ACLU of Maryland, said police claims that current law impedes their investigations of impaired driving are “simply not true.”

“The law makes it explicit that the odor of marijuana can be considered as part of the totality of circumstances to support the officer’s observations of suspected impairment,” Amanuel said. “The odor of marijuana simply cannot be the sole basis of a stop to investigate driving under the influence, and the reason why is that the odor of marijuana alone does not indicate that someone is an impaired driver.”

“Furthermore, police and state’s attorneys do not have any real data to support their claims,” she contended. “We know this because we’ve actually filed a public information request for their alleged data on gun seizures obtained through odor searches, and their officers have reported they did not track this data.”

Also testifying in opposition was Flannery Gallagher, a legal fellow at the University of Baltimore School of Law’s Center for Criminal Justice Reform.

“House Bill 320 would result in a return to high-discretion, low-suspicion, warrantless stops that are ripe for abuse and racial profiling. The General Assembly got it right last year when it passed House Bill 1071,” Gallagher said. “What this body knew then remains true. A national study analyzing over 100 million vehicle stops found that Black drivers are disproportionately stopped and searched by law enforcement compared to white drivers, despite evidence that white drivers are more likely to be found with contraband.”

Maryland lawmakers this session are also considering legislation that would protect workers from being penalized for off-duty marijuana use and require employers to demonstrate that an individual was impaired while on the clock in order to fire them or take other adverse action.

House committees also recently took up up a pair of bills that would create task forces to study psychedelics legalization and broader drug decriminalization.

Last week the Senate passed a bill meant to protect gun rights for medical marijuana patients under state law, next sending it to the House of Delegates. If enacted, the measure would protect the rights of registered medical cannabis patients to buy, own and carry firearms under Maryland law, even though they are still restricted from doing so under federal statute.

The issue of cannabis odor as probable cause is one that lawmakers in several states have sought to address in recent years, although not always in the same way. In 2020, for example, a Virginia bill to stop police from searching people or seizing property based solely on the smell of marijuana became law. Legislators in Illinois and Mississippi have pursued similar reform.

Courts have also weighed in on the matter in various states. In Minnesota, for example, the state Supreme Court ruled in September that the odor of marijuana, on its own, does not establish probable cause for police officers to search a car. The New Jersey Supreme Court issued a similar ruling in June.

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