For many years, Maryland law allowed for a law enforcement officer to search a vehicle at a traffic stop on the grounds that the officer smelled the odor of marijuana, since marijuana was considered an illegal substance, and therefore contraband, in the State of Maryland. When the Legislature decriminalized possession of less than ten grams of marijuana, the odor of marijuana was still considered probable cause to search a car because marijuana itself was still considered contraband or evidence of a crime.
However, this all changed with the 2022 midterm elections. A state constitutional amendment was on the ballot and it passed with 67% of Maryland voters approving of the Amendment. The Amendment resulted in the legalization of marijuana for adults 21 years of age or older beginning in July 2023 and directing the Maryland State Legislature to pass laws for the use, distribution, regulation, and taxation of marijuana. As a result, in Maryland, as of July 1, 2023, police may not search your car based solely on the odor of marijuana since under State law, marijuana is no longer considered contraband.
As required by the Amendment, the Maryland General Assembly revised the marijuana laws in the 2023 Legislative session. Under the Cannabis Reform Act of 2023, the Maryland General Assembly added Criminal Procedure § 1-211, which states:
“A law enforcement officer may not initiate a stop or search of a person, a motor vehicle, or the driver or passenger of a motor vehicle based solely on the odor of cannabis.”
Odor alone is not probable cause to search your vehicle. This is because the possession of cannabis (within legal limits) is no longer criminal in Maryland for adults 21 and over. However, the police can still search a car during a traffic stop if they have additional probable cause, such as:
- Visible contraband (e.g., weapons, open containers)
- Impaired driving behavior (e.g., DUI)
- Statements or admissions
In addition, if you are under 21 years of age, or possess more than the legal amount (1.5 oz for personal use), the situation may change and odor could contribute to probable cause when combined with other factors.
Also, driving while impaired by cannabis, much like driving while impaired by alcohol, is still illegal and can give police the right to arrest and then search your vehicle.
Due to the constitutional amendment and subsequent legislation, the search of a vehicle in Maryland based on the odor of marijuana alone does not constitute probable cause. However, the odor of marijuana and other factors can still change that:
Odor + underage person or open container: Possibly — Depends on total circumstances
Odor + signs of impairment or DUI: Yes — Contributes to probable cause
Odor + visible contraband: Yes — Search likely lawful
Motorists are stopped routinely every day by police for traffic violations. While the purpose of the traffic stop is to cite the driver and end the encounter, the suspicion of unrelated criminal behavior can give an officer cause to extend the stop and conduct further investigation. It is important to keep this in mind when you get behind the wheel so that a traffic stop does not escalate into something further.
