Cutchember v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Woodward, J.
• Citation: Cutchember v. State, 265 Md.App. 690, 336 A.3d 762 (Md. App. 2025)
• Docket Number: 1474
• Decision Date: 02 June 2025
• Parties: Lance CUTCHEMBER v. STATE of Maryland

336 A.3d 762

265 Md.App. 690

Lance CUTCHEMBER

v.STATE of Maryland

No. 1474, Sept. Term, 2023

Appellate Court of Maryland.

June 2, 2025

Circuit Court for St. Mary’s County, Case No.: C-18-CR-23-000138, Joseph M. Stanalonis, Judge.

Argued by George Harper, Baltimore, MD, for Appellant.

Argued by Madeleine Mietus, Asst. Atty. Gen. (Anthony G. Brown, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.

Argued before: Graeff, Albright, Patrick L. Woodward (Senior Judge, Specially Assigned), JJ.

Woodward, J.

On January 6, 2023, Deputy Joseph Senatore of the St. Mary’s County Sheriffs Office conducted a traffic stop of a vehicle driven by Lance Cutchember, appellant. Upon detecting an odor of cannabis ¹ coming from appellant’s vehicle, Deputy Senatore searched the vehicle, recovered cannabis and N.N-Dimethylpentylone (“MDMA”), a Schedule I Controlled Dangerous Substance, and arrested appellant. Effective July 1, 2023, the Maryland General Assembly enacted a new section of the Criminal Procedure Article, Section 1-211, which provides, among other things, that (1) a law enforcement officer may not search a motor vehicle based solely on “the odor of burnt or unburnt cannabis,” and (2) evidence discovered or obtained “in violation” of this section is not admissible in a trial, a hearing, or any other proceeding. Md. Code Ann., Crim. Pro. (“CP”) § 1-211(a) & (c).

On August 23, 2023, the Circuit Court for St. Mary’s County held a hearing on appellant’s motion to suppress the controlled dangerous substances seized by Deputy Senatore on January 6, 2023, and denied the motion. On September 28, 2023, appellant entered a conditional plea of guilty to possession of MDMA, and was sentenced to one year of incarceration, with all but ninety days suspended, and three years of probation.

Upon appeal, appellant presents two questions for our review:

1. Should the Circuit Court for St. Mary’s County have granted [a]ppellant’s motion to suppress?

2. Is Criminal Procedure Article, 1-211(c), Md Ann. Code retroactive?

During the briefing period in the instant appeal, this Court answered appellant’s second question in the negative in Kelly v. State, 262 Md. App. 295, 318 A.3d 64 (2024). In Kelly, we held that CP § 1-211 was “intended to apply prospectively from its effective date of July 1, 2023.” Id. at 311, 318 A.3d 64. However, in Kelly, the search, suppression hearing, conviction, and sentencing all occurred before the statute’s effective date of July 1, 2023. Therefore, this Court asked the parties to submit supplemental briefing on the following question:

In a case where the search occurred prior to July 1, 2023, but the trial or hearing at which the evidence was sought to be admitted or excluded occurred after July 1, 2023, which event should the Court view as establishing the operative date in determining whether CP § 1-211 applies?

For the reasons set forth herein, this Court holds that the operative date for determining the applicability of CP § 1-211 is the date of the search.

BACKGROUND

On January 6, 2023, Deputy Senatore stopped a vehicle driven by appellant for failing to come to a complete stop at a flashing red light. During the traffic stop, Deputy Senatore recognized the odor of cannabis coming from appellant’s vehicle. Based only on the odor of cannabis, Deputy Senatore searched the vehicle and recovered cannabis, MDMA, and a digital scale with MDMA residue. Appellant was arrested and charged with possession of MDMA and possession of a digital scale with MDMA residue used to prepare MDMA. On April 4, 2023, appellant filed a motion to suppress the illegal drugs and drug paraphernalia seized during the search.

The motion to suppress hearing took place on August 23, 2023. At the hearing, appellant argued that the evidence should be suppressed based on the newly enacted CP § 1-211. Section 1-211 states, in its entirety:

Initiation of a stop or search

(a) A law enforcement officer may not initiate a stop or a search of a person, a motor vehicle, or a vessel based solely on one or more of the following:

(1) the odor of burnt or unburnt cannabis;

(2) the possession or suspicion of possession of cannabis that does not exceed the personal use amount, as defined under § 5-601 of the Criminal Law Article; or

(3) the presence of cash or currency in proximity to cannabis without other indicia of an intent to distribute.

Areas that may be searched

(b) If a law enforcement officer is investigating a person solely for driving or attempting to drive a motor vehicle or vessel while impaired by or under the influence of cannabis in violation of § 21-902 of the Transportation Article or § 8-738 of the Natural Resources Article, the law enforcement officer may not conduct a search of an area of a motor vehicle or vessel that is not:

(1) readily accessible to the driver or operator of the motor vehicle or vessel; or

(2) reasonably likely to contain evidence relevant to the condition of the driver or operator of the motor vehicle or vessel.

Admissibility of evidence

(c) Evidence discovered or obtained in violation of this section, including evidence discovered or obtained with consent, is not admissible in a trial, a hearing, or any other proceeding.

The statute was effective on July 1, 2023, after the search of appellant’s vehicle in January 2023, but before the suppression hearing in August 2023. Appellant argued that the statute should be applied retroactively because it was a procedural change to the law. The trial court disagreed and denied the motion. The court determined that CP § 1-211 was not retroactive and that at the time of the stop, January 6, 2023, the odor of cannabis gave the deputy probable cause to search appellant’s vehicle. On September 28, 2023, appellant entered a conditional guilty plea to possession of MDMA, pursuant to Maryland Rule 4-242(d)(2). This timely appeal followed.

STANDARD OF REVIEW

[1] We review de novo questions of statutory interpretation. Kelly, 262 Md. App. at 302, 318 A.3d 64. When interpreting a statute we begin with the language of the statute. Seal v. State, 447 Md. 64, 70, 133 A.3d 1162 (2016). “If the language is clear and unambiguous on its face, that is the end of our inquiry. If, however, the language is ambiguous, we move on to examine case law, the structure of the statute, statutory purpose, and legislative history to aid us in ascertaining the intent of the General Assembly.” Seal, 447 Md. at 70, 133 A.3d 1162 (citation omitted).

DISCUSSION

I. The Kelly Case

In Kelly this Court provided a detailed overview of the history of cannabis law and its decriminalization in Maryland:

In 2014, the Maryland General Assembly enacted a law making the possession of less than ten grams of cannabis a civil offense. Lewis v. State, 470 Md. 1, 9 (2020). Despite that change, the Supreme Court of Maryland consistently held that the odor of cannabis remained evidence of a crime and permitted a warrantless search of a vehicle. E.g., In re D.D., 479 Md. 206 (2022); Pacheco v. State, 465 Md. 311 (2019); Robinson v. State, 451 Md. 94 (2017). In 2022, Maryland voters approved of a constitutional amendment that permitted, as of July 1, 2023, the use and possession of cannabis by an individual in the State who is at least twenty-one years old. Md. Const., art. XX, § 1 (effective December 14, 2022). That same year, the General Assembly overhauled Maryland’s cannabis laws in light of the new constitutional amendment. 2022 Md. Laws, ch. 26. Under the new laws, the use and possession of a certain quantity of cannabis (the “personal use amount”) would be legal for individuals who were at least twenty-one years old. Id. Possession of more than the personal use amount but less than a certain quantity (the “civil use amount”) would be a civil offense and result in a fine. Id. Possession of more than the civil use amount was a crime punishable by imprisonment and/or a fine. Id. Those changes were to take effect on July 1, 2023. Id.

The following year, during the 2023 legislative session, the General Assembly enacted CP § 1-211, which, as noted, also became effective July 1, 2023. Acts of 2023, ch. 802, § 2. That law states, in pertinent part, that “[a] law enforcement officer may not initiate a stop or a search of a person, a motor vehicle, or a vessel based solely on the odor of burnt or unburnt cannabis[.]” CP § l-211(a)(l).[] The law states further that “[e]vidence discovered or obtained in violation of this section, including evidence discovered or obtained with consent, is not admissible in a trial, a hearing, or any other proceeding.” CP § 1211(c).

Kelly, 262 Md. App. at 304-05, 318 A.3d 64 (emphasis added) (cleaned up).

The facts in Kelly centered on a traffic stop conducted by the police in 2021. Id. at 300, 318 A.3d 64. During the stop, the police recognized the odor of cannabis coming from Mr. Kelly’s car. Id. at 299, 318 A.3d 64. The police conducted a search of the car based solely on the smell of cannabis and found evidence of narcotics and drug distribution. Id. Mr. Kelly entered a conditional guilty plea and appealed. Id. While his appeal was still pending, CP § 1-211 became effective. Id. The issue facing us was whether CP § 1-211 applied retroactively to cases pending on appeal where the search, suppression hearing, conviction, and sentencing had occurred prior to the statute’s effective date.

This Court first undertook a comprehensive explanation of the principles of retroactivity:

“Retrospective statutes are those acts which operate on transactions which have occurred or rights and obligations which existed before passage of the act.” United Ins. Co. of Am. v. Md. Ins. Admin., 450 Md. 1, 27 (2016). “The question whether a statute operates retrospectively, or prospectively only, ordinarily is one of legislative intent.” State v. Smith, 443 Md. 572, 588 (2015). “In determining this intent, [s]tatutes are presumed to operate prospectively; consequently, absent manifest legislative intent to the contrary, statutes may

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