Close Brush With Insanity: Maryland’s Pot Law Impedes Police Efforts to Stop Drug-Impaired Driving
By: Abby Carr / Paul J. Larkin / August 08, 2023
“They call it dope for a reason,” anti-drug campaigns used to say.
These public service campaigns were referring to the people who use drugs, but a marijuana law recently passed by the Maryland General Assembly shows that the slogan could apply to some legislators too.
That’s harsh, but accurate. Why? Under a statute that took effect July 1, police officers in Maryland no longer may rely merely on the distinctive odor of cannabis to search a lawfully stopped individual or motor vehicle for the presence of the drug that gave rise to the odor.
Maryland lawmakers hastily pushed through HB 1071, now Criminal Procedure Article §1-211, in the waning moments of the Free State’s legislative session when legislators are more interested in leaving than thinking about the bills up for votes. Proponents of this ill-conceived legislation argued that it would eradicate instances of racial profiling on the roads, but detractors warned of an impending surge in criminal activity.
Cannabis odor has been a lawful basis for making a probable-cause search of a car in Maryland and other states where use of marijuana is a crime. When officers smelled the unmistakable scent of marijuana, they used that fact to establish probable cause to search a person, stop a car, or the like, preventing countless handgun-related homicides and deaths related to impaired driving.
Aside from the evident, commonsense conclusion officers have drawn, the Supreme Court and the 4th U.S. Circuit Court of Appeals have recognized that the odor produced by contraband or its manufacturing process—such as the operation of a still to make alcoholic beverages—can establish probable cause that a crime has been committed.
In simple terms, police officers in Maryland no longer are able to stop someone on the street or pull over a car just because they smell marijuana. But the new law doesn’t place the odor of cannabis out of bounds altogether; the smell by itself just can’t serve as the basis for stopping a person or a vehicle.
Once an officer observes other evidence or suspicious conduct or, in the case of a motor vehicle, a legitimate traffic violation, a stop is justified. If the officer has sufficient additional evidence of a crime or other illegality—such as a car’s swaying side to side—the officer might have probable cause to arrest the driver for impaired driving.
To be sure, at that time the officer may search only those areas of a motor vehicle that are “readily accessible to the driver.” This means the officer cannot search the trunk, for example. But the front seat area, including what’s underneath, the console, and glove compartment, is still fair game, as well as whatever a driver could reach in the back seat.
Plus, the officer may call for a tow truck to take the vehicle to an impoundment lot, where, if local procedures require or allow it, police may do an inventory search of the entire car.
Naturally, the American Civil Liberties Union released a statement on the new Maryland law, saying: “For decades, police have been granted the authority to conduct searches based on something that cannot be categorically proven: a claim based solely on their sense of smell. These claims by police have been routinely used to infringe on individuals’ privacy rights and justify racial profiling.”
Although it is true that relying solely on the sense of smell may have limitations and some potential for error, even adults who aren’t trained police officers know what burning marijuana smells like. (If you think the odor of burnt cannabis isn’t unmistakable, you must have been born yesterday.) Moreover, the ACLU’s statement implies a generalization, asserting that police officers’ claims based on their sense of smell routinely have been used to target black individuals and trample on their privacy rights unlawfully.
Making such sweeping generalizations without providing sufficient evidence, such as peer-reviewed studies, is disappointing. But it’s not surprising, considering the source.
Notice also what the ACLU statement avoids: the increased public safety risk of taking yet another tool out of police’s tool bag to catch criminals.
Marijuana odor as probable cause has aided in the discovery of many other types of crimes, not simply the recovery of cannabis. According to the State’s Attorney’s Office in Montgomery County, Maryland, a large percentage of illegal handguns are seized from vehicles that were searched based on the odor of cannabis. In Montgomery County alone, 80% of those firearms are coming off the street because an officer smells marijuana during a traffic stop.
More handguns on the street will lead to increased crime and homicides—which disproportionately will affect black residents of lower-income areas, the same people the ACLU claims this new law protects.
Beyond Maryland’s borders, driving under the influence of marijuana poses a significant threat to public safety across the entire country. Other states that have legalized recreational or medical marijuana have witnessed an increase in incidents related to impaired driving. With the growing accessibility of marijuana, more individuals may be prone to use it before getting behind the wheel, leading to a surge in preventable accidents and fatalities.
Driving under the influence of cannabis has similar effects as drunk driving. One can look at recent data and trends regarding legalization of marijuana in Colorado to shed light on the potential risks of this Maryland law. Colorado found that since lawmakers legalized recreational marijuana in 2013, traffic deaths where drivers tested positive for marijuana increased 138%, while all Colorado traffic deaths increased 29%. Moreover, traffic deaths involving drivers who tested positive for marijuana more than doubled, from 55 in 2013 to 131 in 2020.
Since marijuana was legalized, the percentage of all Colorado traffic deaths involving drivers who tested positive for marijuana increased from 11% in 2013 to 20% in 2020.
These harrowing statistics are just the beginning. What could prompt such a blatant dismissal of public safety? One word: money.
The market for cannabis in Maryland is expected to exceed $11 billion in sales following its legalization July 1. A recent survey conducted among thousands of Maryland residents revealed that the average marijuana consumption in the state surpasses the national average: Nationally, the typical person consumes around 20.2 grams of marijuana per month; Marylanders consume an average of 25.4 grams. The survey also found that cannabis consumers in Maryland are willing to travel between 11 and 20 minutes to obtain their desired products, and are willing to pay approximately $14 per gram of marijuana. This translates to an estimated monthly expenditure of $357 per Maryland user.
Let’s be clear: Maryland’s new law could lead to an increase in crimes involving firearms and a rise in drug-impaired driving offenses. With a staggering 10,000 fatalities across the nation in 2020 alone as a result of alcohol-impaired driving, one only can imagine how many death certificates will be signed in Maryland as a result of rampant driving under the influence of marijuana.
That’s a high price to pay to satisfy the ACLU.
COMMENTARY BY
Abby Carr is a member of the Young Leaders Program at The Heritage Foundation.
Paul J. Larkin directs The Heritage Foundation’s project to counter abuse of the criminal law, particularly at the federal level, as senior legal research fellow in the Center for Legal and Judicial Studies. Read his research.
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