Maryland: Cannabis Odor Cannot Justify a Vehicle Search, and Consent Does Not Cure It

Maryland put adult cannabis use in its Constitution. Article XX, section 1(a) provides that on or after July 1, 2023, an individual in the State who is at least 21 years old may use and possess cannabis, and section 1(b) directs the General Assembly to legislate the details. Unlike several other states that legalized without touching search law, Maryland wrote a search provision into the Criminal Procedure Article as part of that build-out. Section 1-211(a) lists three things that on their own can never support a stop or a search of a person, a motor vehicle, or a vessel: the odor of burnt or unburnt cannabis, the possession or suspicion of possession of cannabis that does not exceed the personal use amount as defined under Criminal Law section 5-601, and the presence of cash or currency in proximity to cannabis without other indicia of an intent to distribute. The word "solely" matters. The statute removes each of these as a standalone justification; it does not stop an officer from combining one of them with an independent fact.

The amounts that trigger the protection are fixed in Criminal Law section 5-101(u), which defines the "personal use amount" as usable cannabis not exceeding 1.5 ounces, concentrated cannabis not exceeding 12 grams, cannabis products containing delta-9-tetrahydrocannabinol not exceeding 750 milligrams, or two or fewer cannabis plants. Section 5-101(e-2) sets a second band called the "civil use amount" running from more than 1.5 up to 2.5 ounces of usable cannabis, more than 12 up to 20 grams of concentrate, and more than 750 up to 1,250 milligrams of delta-9 products. Criminal Law section 5-601.1(a) directs that an officer shall issue a citation for either band, section 5-601.1(b)(1) makes the violation a civil offense, and section 5-601.1(b)(2) provides that adjudication is not a criminal conviction for any purpose and imposes none of the civil disabilities that follow one. A driver can request a trial within 30 days of the citation under section 5-601.1(f)(1).

Subsection (b) of section 1-211 is a geographic limit that most states do not have. Where an officer is investigating a person solely for driving or attempting to drive while impaired by or under the influence of cannabis in violation of Transportation section 21-902 or Natural Resources section 8-738, the officer may not search any area of the vehicle or vessel that is neither readily accessible to the driver or operator nor reasonably likely to contain evidence relevant to the driver's condition. A trunk, a locked rear compartment, or a sealed container in a cargo area does not meet either test in a pure impairment investigation.

Subsection (c) is what makes the Maryland rule bite harder than a rule that simply removes probable cause. It says evidence discovered or obtained in violation of the section, "including evidence discovered or obtained with consent," is not admissible in a trial, a hearing, or any other proceeding. In most states a driver's consent is an independent basis that cures the absence of probable cause. Under section 1-211(c) it does not: if the encounter that produced the request was itself a stop or search based solely on one of the three listed facts, the consent does not save what the search turned up. That is why the practical advice in Maryland is narrower than elsewhere. You still do not have to consent, and there is no penalty in the Code for refusing, but a driver who does consent has not automatically given away the suppression argument.

Several things about cannabis in a Maryland car remain unlawful and none of them are cured by section 1-211. Transportation section 21-903(c) provides that a driver may not consume an alcoholic beverage, or smoke or consume cannabis, in a passenger area of a motor vehicle on a highway, and section 21-903(b) applies that while the vehicle is driven, stopped, standing, or otherwise located on a highway. Criminal Law section 10-125(b)(3) extends the smoking ban to any occupant. Section 21-903(a)(4)(ii) defines "passenger area" to exclude a locked glove compartment, the trunk, and, in a vehicle with no trunk, the area behind the rearmost upright seat. Maryland has not gone further than that: the Annotated Code contains no odor-proof packaging requirement, and the open container offense in Criminal Law section 10-125(a)(1) is written for an alcoholic beverage only, so unlike Ohio and Illinois there is no statutory command that cannabis ride sealed or in the trunk.

Maryland also makes consent searches a matter of public record in aggregate. Transportation section 25-113(d) requires an officer to report, for each traffic stop, whether a search was conducted, and if so the reason for it, whether the search was consensual or nonconsensual, whether a person was searched, whether property was searched, and whether contraband or other property was seized. Agencies compile the data annually and submit it to the Maryland Statistical Analysis Center by March 1, and section 25-113(f)(2) requires the Center to post a public filterable data display by September 1 each year, filterable by county, municipality, or law enforcement agency, holding every year from 2018 forward. Section 25-113(g)(2)(i) requires each agency's policy to prohibit using race or ethnicity as the sole justification to initiate a traffic stop. One limit is written into the definition: section 25-113(a)(6)(ii) excludes checkpoint and roadblock stops, multi-vehicle accident and emergency stops, radar, laser, or vascar stops, and license plate reader stops from the term "traffic stop," so those encounters are not in the dataset.

Section 1-211 has no criminal or civil penalty attached to the officer. Its entire enforcement mechanism is the exclusionary rule in section 1-211(c), which keeps evidence discovered or obtained in violation of the section, including evidence obtained with consent, out of a trial, a hearing, or any other proceeding. A driver raises it by moving to suppress in the District Court or circuit court where the charge is filed. 1(f)(2). Conduct that stays illegal in the vehicle is charged separately and under two different regimes.

A driver who smokes or consumes cannabis in the passenger area on a highway violates Transportation section 21-903(c), which is part of the Maryland Vehicle Law and so carries the default penalty in Transportation section 27-101: a misdemeanor subject to a fine not exceeding $500 except as otherwise provided. An occupant who smokes cannabis in the passenger area violates Criminal Law section 10-125(b)(3), which sits in a part the Legislature made civil: section 10-126(b) says a violation under that part is a civil offense, is not a criminal conviction for any purpose, and imposes none of the civil disabilities of one, and section 10-125(e) adds that it is neither a moving violation for the purposes of Transportation section 16-402 nor a traffic violation under the Maryland Vehicle Law.

Criminal Law section 10-127 nonetheless requires the State to prove the case to the criminal standard, preserves the defendant's rights to counsel, cross-examination, and appeal, and lets a willful failure to pay be treated as criminal contempt.