A Maryland appeals court ruled law enforcement cannot use the smell of cannabis as the sole reason to stop and search people.

The judge determined police officers must have “reasonable suspicion” that a crime is being committed in order to even briefly detain someone for further investigation. And because possession of small amounts of cannabis has been decriminalized in Maryland since 2014, marijuana odor is not a sufficient justification to presume criminal activities.

“Because an officer cannot tell by the smell of marijuana alone that a person is involved in criminal activity, we hold that the odor of marijuana, by itself, does not provide reasonable suspicion to conduct an investigatory stop,” Judge Kathryn Grill Graeff wrote in the court’s opinion.

The latest ruling of Maryland’s second-highest court adds to a growing body of legal opinion in the state that the mere smell of cannabis does not in itself warrant further police action. For David Jaros, a law professor at the University of Baltimore, this means Maryland’s courts are finally realizing the significance of marijuana’s decriminalization.

“We are seeing the system sort of reset itself as it fully takes into account what it means to decriminalize marijuana,” Jaros said.

The smell of cannabis is often used as a pretext by law enforcement to frisk people, and this tends to happen disproportionately to people of color.

“These small excuses are what end up leading to more involvement in police actively investigating and being involved in people’s lives,” Jaros said.

The latest ruling against police searches in Maryland based on the smell of marijuana arose from a case in Prince George’s County. A police officer approach a group of young men outside an apartment complex and noticed “a strong odor of marijuana.”

In his statement to the court, the officer said he was concerned some of the group could be armed so he searched them and recovered a 9mm handgun in the waistband of one of the group members. That member was then arrested and charged but, as a minor, his name has not been made public. The boy argued in court, however, that the officer had no legal reason to stop and search him, meaning the charges against him cannot be sustained.

The defendant’s attorney, Michelle Hall, said this was another example of police overextending their powers and that this aggressive style of policing most often takes place in communities of color.

“So many interactions with law enforcement start with something as innocuous as the smell of marijuana,” Hall said. “This case was really the next piece. The smell of marijuana is not enough to stop an individual on the street.”

It remains unclear whether or not Maryland’s Attorney General’s office, which represented the state, will appeal Judge Graeff’s ruling.

Last year, Maryland’s Court of Appeals, the state’s highest court, ruled law enforcement cannot justify arresting someone purely on the basis of smelling marijuana, while in 2019 the court ruled police cannot make arrests based on the smell of cannabis if the officer cannot see an ‘illegal’ amount of marijuana. Under Maryland’s marijuana laws, possession of up to 10 grams is decriminalized. The state legalized cannabis for medical purposes in 2014 but an attempt to legalize adult-use marijuana this year faltered in the General Assembly.

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