That barrier likely is resulting in some motorists driving away from traffic stops — unchecked — while possibly impaired by cannabis and while possibly concealing unregistered guns and hard drugs like heroin, methamphetamine and such, police officials reported.
“We’re not allowed to search a vehicle anymore, just based on the odor of marijuana. We have to have more probable cause than just the smell of marijuana,” summarized Capt. Michael Holmes, a Cecil County Sheriff’s Office spokesman.
And that is one of the major qualms that law enforcement officers have with language in House Bill 556, which led to Maryland voters approving a referendum to legalize recreational marijuana for adults in November. The law went into effect on July 1.
“They’ve stripped away law enforcement’s ability to investigate,” Lt. Ronald Odom of the Elkton Police Department opined, referring to state legislators. “If I smell alcohol, I can proceed on probable cause. If I smell marijuana, I cannot. They’re putting people at risk is what they’re doing.”
Under the new law, people who are 21 and older can legally possess up to 1.5 ounces of cannabis or up to 12 grams of concentrated cannabis or cannabis products containing up to 750 milligrams of delta-9-THC. It also allows an adult to possess up to two cannabis plants. All of that possession is legal, but only if it was purchased from a licensed cannabis dispensary.
But it is still illegal to operate a vehicle while under the influence of alcohol and to consume cannabis while driving. It also is illegal to use cannabis in public.
The sticky wicket is this: because the odor of marijuana — by itself — is no longer sufficient probable cause, officers cannot test a driver to see if he or she is under the influence or impaired by the drug. Nor do they have grounds to conduct a probable-cause search of the vehicle or a person, based solely on the smell of marijuana.
Although some marijuana is pungent enough to be detected, even without having been burnt, the odor of burning marijuana is typically a telltale sign of recent consumption.
Taking a where-there-is-smoke-there-is-fire viewpoint, Odom opined that, although cannabis is legal now, officers still should be allowed to investigate further predicated only on the odor of marijuana coming from inside a vehicle because, he believes, it is a good indication that the driver could be under the influence.
“I don’t care if people want to smoke marijuana in their house, now that it is legal. But I don’t want them smoking it in public, which they’re not allowed to do anyway. And I certainly don’t want them smoking marijuana right before they drive or while they’re driving,” Odom emphasized.
He continued, “But as the law reads now, if I smell marijuana coming from a car — and that’s all I got (probable cause) — I cannot do anything about it. The odor of marijuana used to be a piece of the probable cause.”
Holmes agrees with Odom that the new law precludes officers from determining a driver’s sobriety if, for example, he or she stops a motorist for an expired license plate or a malfunctioning headlight, brake light or some other vehicular equipment or administrative reason and then smells marijuana coming from inside the automobile.
He is quick to note, however, that traffic stops resulting in drunken driving arrests typically are marked by officers citing other types of probable cause, in addition to the smell of alcohol. It is likely that the same would apply to arrests for driving under the influence of marijuana.
Holmes believes that, while the smell of marijuana inside a vehicle alone is no longer enough probable cause to investigate further, there is a likelihood that law enforcement officers would observe at least one traffic violation if a motorist were impaired and that, in concert with the odor of cannabis, there would be sufficient probable cause to test.
“You would go by how they were driving. Did they keep swaying over the centerline or onto the shoulder? Were they driving erratically? Were they speeding? Were they driving too slow?” Holmes said, listing some things that would give the mere smell or alcohol or marijuana greater import within the realm of probable cause. “It’s really the totality.”
Rising Sun Police Department Chief Chip Peterson agreed that it would be much easier to rid impaired drivers from the roads if the odor of marijuana was enough to allow officers to conduct sobriety tests on motorists.
But he reminded that officers are trained at detecting signs of impairment, beyond erratic driving, and that even one of those signs would provide probable cause to investigate further.
“Signs of impairment are still signs of impairment,” said Peterson, who has served in law enforcement for 38 years, including 22 years with Maryland State Police and the past 14 years as the RSPD chief.
The list of signs of impairment based solely from observing a seated person include eyes that are glassy, bloodshot and, or, dilated; slurred and, or, slow speech, slow movement and confusion.
Under the new law, after probable cause is established, officers can make a cannabis DUI arrest if they observe impairment using the same standard roadside field sobriety test methods use to determine alcohol influence.
“Can they stand up straight? Can they walk in a straight line? If they are having trouble with some or all of the various tests, those are indicators of being under the influence or impairment,” Holmes outlined, before remarking, “Marijuana might be legal now, but it is still illegal to drive under the influence of it.”
Drug recognition experts (DREs) can conduct more accurate tests on a person suspected of operating a vehicle while under the influence of marijuana and other narcotics, Holmes said, noting that DREs have received a great deal of special training. A big focus of the testing is on the suspect’s eye movements.
At this time, CCSO doesn’t have any deputies who are DREs. Like most police departments in this county, deputies dispatch a DRE from an allied law enforcement agency in the region when trying to determine if a suspect is under the influence of marijuana, according to Holmes.
“What they do is a little more complex than a standard field sobriety test,” Holmes said of DREs, adding, “They go through a fairly lengthy process.”
Officers can use breathalyzers, which gauge a suspect’s blood-alcohol content (BAC) to scientifically determine that driver’s level of intoxication — but only if that person consents to the test. (Non-consent results in an automatic driver’s license suspension.) In Maryland, a driver with a BAC of .08 or greater is considered to be under the influence.
Breathalyzers cannot detect marijuana in a suspect’s body, however, let alone how much marijuana is present. That makes it difficult for an officer to report a suspect’s marijuana intoxication in precise terms.
“We know that .08 or greater is under the influence of alcohol, but how do measure the level of marijuana in someone’s system?” Odom commented. “I believe lawmakers put the cart before the horse when they made this law. They made marijuana legal, just like alcohol, but they didn’t set any legal limits for operating a vehicle (after consuming marijuana), like they did for alcohol.”
Peterson made similar comments when addressing the issues of discerning a suspect’s marijuana impairment and then measuring it, remarking, “We have no levels of intoxication to compare it to.”
He conceded that an officer can secure an arrest based on a driver’s unsatisfactory field-sobriety-test performance.
Peterson then opined that — without scientific evidence and only with field sobriety test results — it would be much more difficult securing a conviction, however. That’s because it could be argued that how well or how poorly a person performs field sobriety tests is subjective, according to Peterson, who remarked, “A defense lawyer can spin that any way he wants.” A defense lawyer could maintain for examples, that his or her client was suffering from an injury that affected balance at the time of the test or that weather conditions made the terrain slippery.
Because the new law prohibits officers from investigating further based solely on the odor of marijuana and because it doesn’t set any legal limits for operating a vehicle after consuming cannabis, Peterson commented, “The lawmakers handed us a bag of tricks and the motoring public and pedestrians have been put in harm’s way.”
Cecil Whig archives and local court records indicate that probable-cause searches predicated on the odor of marijuana in Cecil County yielded illegal hard drugs, illegally possessed guns and other types of evidence over the years, before the legalization of recreational marijuana in Maryland.
On June 21, less than two weeks before the legalization of recreational cannabis Harford County Sheriff Jeff Gahler publicly denounced the section of the enabling law that prohibits police from searching a vehicle or a person based solely on the odor of marijuana.
Gahler did so in video that lasts three minutes and 42 seconds while seated in front of seven displayed, illegally-possessed handguns that, according to him, HCSO deputies seized during traffic stop searches in 2022. A dozen more such handguns confiscated by HCSO deputies were inside evidence boxes on both sides of the sheriff, bringing that total to 19.
“The odor of marijuana was present and was the probable cause that removed these weapons from the hands of criminals and many more,” Gahler explains in the footage, noting that one of them is an unregistered P380 handgun that deputies confiscated from a driver after he had remained asleep behind the wheel through two cycles of a traffic light in the summer of 2022.
Gahler opines that the law that now prohibits police from conducting searches and continuing investigations based solely on the odor of marijuana will “negatively impact law enforcement’s ability to reduce violent crime here and in Maryland.”
In the video, Gahler reports that after Virginia passed a similar law banning police in that state from conducting searches based solely on the odor of marijuana, the number of gun seizures by officers in Hampton and Newport News dropped “20 to 25 percent” from 2021, which was the year that the legislation was passed, and 2022 — the year the law went into effect.
Gahler stressed that the the confiscation of illegally possessed firearms prevent them from possibly being used in violent crimes.
At the end of the public-statement video, Gahler comments, “It is mind-boggling to understand the goals of our Maryland legislature, as we watch them pass law . . . to make it easier for criminals to escape arrest. I just don’t get it.”