An odor of marijuana is not normally sufficient cause for police to conduct a search, but it can be if police determine that the occupants of a car are minors and thus prohibited from possessing cannabis, according to a new court ruling.
A three-judge panel of the Appellate Court of Maryland on Thursday upheld the convictions of two teens who were pulled over in separate stops in Worcester County in 2023 and 2024, rejecting the teens' arguments that the subsequent searches were illegal because they relied on officers smelling cannabis. Maryland law prohibits a search based solely on an odor of cannabis.
But the appeals court agreed with police the odor of cannabis is probable cause for a search if the officers determined that a vehicle's are under age 21.
"Here, the searches were not prohibited … because they were not based solely on the odor of cannabis," Judge Kathryn Graeff wrote for the court. "Instead, they were based on the odor of cannabis, plus the knowledge that the occupants of the vehicle were under 21 years of age.
"Because it is unlawful for a person to possess cannabis if the person is not at least 21 years of age … the statute did not prohibit the search and require that the evidence seized be excluded," she wrote.
The ruling upheld the convictions of the teens, both of whom were found guilty of underage possession of a firearm, and one of whom was found guilty of underage possession of cannabis after the searches.
Graeff wrote that prior to Thursday's ruling, there is no reported opinion by the Appellate or Supreme Court of Maryland that addresses whether knowledge of subjects' age allows for the use of cannabis odor as probable cause.
The ruling could be appealed to the Supreme Court of Maryland, but attorneys for the teens did not immediately respond to requests for comment on the ruling or their next steps Friday. The Maryland Attorney General's Office declined to comment.
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According to the opinion, Ocean City Police officers pulled over a car with four occupants, including defendant Jaylen Ahnarie Sudler, around 3 a.m. on July 21, 2023, citing an inoperable tag light on the vehicle for the stop.
One officer said he smelled cannabis through the open front window. When police asked the four in the car how old they were, all said they were under 21. The officers then searched the vehicle and found the firearm that later led to Sudler's conviction for possession.
On March 24, 2024, an Ocean City Police officer stopped a vehicle about 12:45 a.m. for a broken headlight. That vehicle had three occupants, including defendant Tizonn Roemello James Trotter.
The officer said he smelled cannabis, learned the occupants were under the age of 21 and then searched the vehicle. After searching the car, a small baggie of cannabis, "likely within the personal use amount allowed" for someone 21 or over, and a gun were found under the front passenger seat, where Trotter sat.
The opinion noted that the court only identified the age of the driver, and ordered the other passengers out of the car to search it before identifying them, but the defendant and court's arguments proceeded on the assumption that the police knew the occupants were under 21 before conducting their search.
The appellants also argued that the General Assembly's intent behind the law banning searches solely on a smell of cannabis "was to protect Black and Brown Marylanders from a stark and longstanding form of racial profiling," regardless of age. They added that the intent "to protect the most vulnerable group of people, minority youth, is unequivocal."
That law was the Cannabis Reform Act, which went into effect in July 2023 and legalized recreational use of cannabis for people 21 and older. It also established the provision stating the odor of cannabis or suspicion of possessing an amount legal for personal use does not provide probable cause alone.
Graeff conceded that preventing racial profiling was undoubtedly a "significant factor" behind the law. "Nevertheless, [the statute] did not limit all searches involving the odor of cannabis. Rather, it limited the ability to search only when it was based solely on the odor of cannabis," the opinion read.
The defendants also pointed to the fact that lawmakers were presented with an amendment to the Cannabis Reform Act that would have allowed a search based on cannabis odor if the driver was under age 21, but they rejected that amendment.
But the state argued there are a number of other reasons that amendment could have failed, such as because it was proposed late on the final day of the 2023 legislative session or that it might have caused the bill to fail altogether. It's possible, the court argued, that legislators thought the existing language provided for the possibility to conduct a search if vehicle occupants are underage.
"Legislators could have concluded, as this Court holds here, that the plain language of the statute, as written, already permitted the police to search a vehicle based on the odor of cannabis if there is the additional fact that the occupants of the vehicle are under the age of 21 years old," Graeff wrote.
Lower courts were correct to allow the evidence from the searches to be admitted at trial, she wrote.