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Md. high court will consider constitutionality of pat-downs at traffic stops

Does strong marijuana odor provide 'reasonable suspicion'?

ANNAPOLIS – Maryland’s top court will consider whether police officers, upon smelling a strong odor of marijuana in a vehicle during a traffic stop, may frisk all the passengers in the car.

The case, an appeal of John Norman Jr.’s drug-possession conviction, calls on the Court of Appeals to decide if the smell of marijuana gives police reasonable suspicion that the passengers in the car are armed and threaten the officers’ safety.

The Supreme Court and the Court of Appeals have held that reasonable suspicion is required before a pat-down for weapons can be conducted under the federal Constitution’s Fourth Amendment prohibition on unreasonable searches. Such pat-downs are known as Terry stops for the Supreme Court’s 1968 Terry v. Ohio decision, which found them constitutional.

Attorney Allison P. Brasseaux, in successfully urging the Court of Appeals to hear Norman’s appeal, said police officers need clarification of reasonable suspicion in light of Maryland’s decriminalization of marijuana in a quantity under 10 grams.

Norman’s case “presents an issue that undoubtedly occurs with regularity in traffic stops across the state,” wrote Brasseaux, an assistant Maryland public defender. “It (the court’s decision) will accordingly provide guidance to officers, as well as to the bench and bar, on when Terry frisks are permissible when the presence of drugs, particularly marijuana, is suspected during a lawful traffic stop.”

Norman was a passenger in a 1996 Nissan that a Maryland state trooper pulled over for a broken tail light in Somerset County in March 2015.

Upon smelling what he called the “strong odor of raw marijuana,” trooper Jon Dancho asked the driver, Norman and another passenger to get out of the vehicle so he could search it. Dancho then patted down the three people for weapons.

At Norman’s pants leg, the trooper felt an object, which fell to the ground.  That object contained marijuana.

A Somerset County Circuit Court judge upheld Dancho’s search of Norman, saying the trooper had reasonable suspicion that he was armed based on the common link between the drug trade and weapons. Norman was then found guilty in August 2015 based on an agreed upon set of facts and sentenced to nine months in the Dorchester County Detention Center.

‘Inherent dangers’

In a 2-1 vote, the intermediate Court of Special Appeals upheld Norman’s conviction last August. Judge Douglas R.M. Nazarian, pictured, wrote the opinion. He was joined by Judge Alexander Wright Jr.

In a 2-1 vote, the intermediate Court of Special Appeals upheld Norman’s conviction last August. Judge Douglas R.M. Nazarian, pictured, wrote the opinion. He was joined by Judge Alexander Wright Jr.

In a 2-1 vote, the intermediate Court of Special Appeals upheld Norman’s conviction last August in an unreported decision, which applies only to his case.

The majority opinion, written by Judge Douglas R.M. Nazarian and joined by Judge Alexander Wright Jr., said Dancho had reasonable suspicion to frisk Norman based on “the inherent dangers involved in traffic stops, at which officers may encounter drug activity unexpectedly and without the opportunity to defend themselves, and the close correlation between the presence of drugs and the presence of weapons.”

But dissenting Judge Cathy Hollenberg Serrette decried what she called the majority’s “blanket exception” to the Fourth Amendment whenever drugs are found, even marijuana.

“The majority applied a categorical exception – any indication of drugs during a traffic stop, no matter how slight, whether or not decriminalized, justifies a frisk for weapons,” wrote Serrette, a Prince George’s County Circuit judge who was sitting on the Court of Special Appeals by special assignment.

Brasseaux, Norman’s attorney, seized on the dissent in successfully asking the high court to hear the appeal.

“The instant case … squarely presents this court with the opportunity to decide for the first time whether the suspected presence of marijuana during a lawful traffic stop is sufficient in and of itself to permit an officer to pat-down a passenger,” Brasseaux wrote. “In reaching this issue, this case also presents this court with the chance to discuss what impact the perceived connection between guns and drugs has on the reasonable suspicion analysis, particularly where the drug in question is marijuana.”

‘Totality of facts’

Aside from the smell of marijuana, Dancho offered no testimony to justify a reasonable suspicion Norman was armed, Brasseaux added. The trooper did not say Norman made furtive movements; displayed nervousness, anxiety or anger; refused to comply with commands; had bulging pockets indicating weapon possession; or had a reputation for violence, Brasseaux wrote.

Assistant Maryland Attorney General Daniel J. Jawor unsuccessfully argued the top court should not hear the case because the totality of the circumstances gave the trooper reasonable suspicion to search him for weapons.

These circumstances included the strong odor of raw marijuana, indicating the presence of an unlawful amount; a significant number of passengers to watch; and a traffic stop conducted in the dark, Jawor wrote.

“Far from relying on any abstract notion that the slightest hint of drugs always justifies a frisk, the Court of Special Appeals simply relied on the totality of the forgoing facts and recognized the decisive inference that can be draw from the ‘strong’ scent of marijuana absent ameliorating factors that either explain the origination of the scent or otherwise limit suspicion to one occupant of a car,” Jawor wrote.

The court is scheduled to hear arguments in February and issue its decision by Aug. 31 in the case, Joseph Norman Jr. v. State of Maryland, No. 56, September Term 2016.

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