Kelly v. State

Appellate Court of Maryland · 2024 · Criminal Law

Criminal LawStatutory RetroactivitySearch and SeizureCannabisretroactivityprospective applicationstatutory interpretationcannabis odor

Facts

Police stopped Kelly for speeding in 2021 and smelled both burning and unburned cannabis coming from his vehicle. Based solely on that odor, the officer searched the vehicle and found cannabis and drug paraphernalia, and a later search of Kelly's person revealed cocaine and Oxycodone. Kelly moved to suppress, but the motion was denied, and he later entered a conditional guilty plea and was sentenced before July 1, 2023. While his appeal was pending, CP § 1-211 took effect, barring vehicle searches based solely on cannabis odor and excluding evidence obtained in violation of that section.

Issue

Does CP § 1-211 apply to a defendant whose vehicle was searched, and who was convicted and sentenced, before the statute's effective date, when the case is still pending on direct appeal? More specifically, does the statute's exclusionary remedy apply retroactively to a pre-effective-date search based solely on the odor of cannabis?

Rule

A statute is presumed to apply prospectively. Although procedural-only statutes, remedial statutes that do not impair vested rights, and statutes affecting matters still in litigation may sometimes be applied to pending cases, those exceptions cannot be used when the General Assembly has expressed a contrary intent. CP § 1-211's text ties inadmissibility to evidence obtained "in violation of this section," so its exclusionary remedy applies only to searches that could violate the statute after its effective date.

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In May 2023, officers in Annapolis stopped Devin Moore for a broken taillight and searched his car based solely on the odor of burnt cannabis. They found heroin, and Devin was convicted in December 2023 after the new statute had already taken effect; on appeal, he argues the evidence must be excluded under the statute.

How should the appellate court rule?

Explanation. The majority held that statutes are presumed prospective and that this statute's text shows contrary intent to retroactivity. Its remedy covers evidence obtained "in violation of this section," which requires an existing statutory right at the time of the search. Because the search occurred before the effective date, there could be no violation of the section, even though conviction occurred later.