Maryland Court: Cannabis Odor Can Be Basis for Traffic Stop Despite Decriminalization

The Maryland Court of Appeals ruled last week that the odor of cannabis is enough to prompt a brief “investigatory” stop despite the decriminalization of the possession of up to 10 grams, The Daily Record reports. In the 4-3 decision, the court ruled that cannabis odor gives police a “reasonable suspicion” that the person may be carrying more than the legal limit. 

The court ruling does require the stop to end if officers do not find evidence the individual is in possession of more than 10 grams.  

In 2020, the court ruled unanimously that the U.S. Constitution’s Fourth Amendment bars police from searching or arresting individuals based on cannabis odor, finding that the smell alone does not constitute probable cause if cannabis is decriminalized or legalized.  

In the majority opinion, Judge Jonathan Biran agreed that cannabis odor still should not constitute an arrest but “the odor of marijuana by itself justifies a brief investigatory detention.” 

“Given the important governmental interest in detecting, preventing, and prosecuting crime, the Fourth Amendment allows a brief seizure, based on reasonable suspicion, to attempt to determine if criminal activity is afoot. An officer who lacks probable cause to arrest is not required ‘to simply shrug his shoulders and allow a crime to occur or a criminal to escape.’” — Biran in the opinion 

In the dissent, Judge Michele D. Hotten said cannabis odor alone “makes it impossible for law enforcement to determine whether the person has engaged in a wholly innocent activity, a civil offense, or a crime.” 

“While reasonable suspicion is a relatively low barrier,” Hotten wrote, “law enforcement may not rely on a hunch that a person may possess 10 grams of (marijuana) odor in a non-medicinal capacity to form a basis of reasonable suspicion.” 

Also writing in the dissent, Judge Irma S. Raker, a retired jurist sitting by special assignment, said allowing cannabis odor to be the basis for a stop “could potentially result in unnecessary and unwarranted police activity that may have a disparate effect in the community.” 

Under state law, possession of fewer than 10 grams is a civil offense, punishable by a $100 fine unless the offender is in possession of legally obtained medical cannabis. Marylanders are set to vote on a constitutional amendment to legalize cannabis for adult use this November.