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Md. top court weighs passenger pat-downs amid marijuana odor

Do the traffic-stop frisks violate the Fourth Amendment?

ANNAPOLIS – A strong smell of raw, unsmoked marijuana emanating from a car during a traffic stop enables police officers to frisk the passengers for weapons without violating their constitutional right against unreasonable searches, an attorney for the state told Maryland’s top court Friday.

But a public defender countered the Fourth Amendment prevents police officers from conducting a pat-down based on a mere “hunch” that the passenger might be armed due to a perceived association between drugs and guns.

The legal battle at the Court of Appeals came just two weeks after the judges ruled that the mere odor of marijuana from a car in Maryland gives police probable cause to search the vehicle, even though the possession of less than 10 grams of the drug is a civil offense – not a crime – under state law.

Left unresolved by the court’s ruling in Jermaul Robinson et al. v. State of Maryland was whether the odor provides officers “reasonable suspicion” to believe the car’s passengers might be armed and thus could be ordered out of the vehicle and frisked.

In support of the police, Assistant Maryland Attorney General Daniel J. Jawor argued that a raw-marijuana odor indicates the passengers’ potential involvement not only in drug possession but trafficking – an often violent undertaking whose participants can be presumed to be armed and dangerous.

As a result, officers can ensure their safety by ordering the passengers out of the car and conducting “a limited pat down of the outer clothing” for the presence of weapons, Jawor said.

But Assistant Maryland Public Defender Allison P. Brasseaux said marijuana possession – as shown by the state’s decriminalization of small amounts – is a non-violent offense no longer associated with weapons. Thus, police generally have no reasonable suspicion that a passenger in a car smelling of marijuana would be armed, she added.

Brasseaux was pressing the appeal of Joseph Norman Jr., who was convicted of possessing 70 grams of marijuana. A police officer had found the drugs while patting Norman down for weapons after ordering him out of a car that smelled of raw marijuana and had been stopped for having a broken taillight March 22, 2015, on U.S. Route 13 in Somerset County.

Brasseaux argued that the officer’s search of Norman was unconstitutional, meaning the drugs should not have been introduced into evidence. That argument failed in Somerset County Circuit Court and then in the intermediate Court of Special Appeals last August, prompting Norman to seek review by the high court.

Norman was found guilty of marijuana possession and sentenced to nine months in prison.

‘Sanctity of a person’

Court of Appeals judges peppered the attorneys with questions regarding the link between drug crimes and violence and how strong the marijuana odor must be to produce a reasonable suspicion that a passenger might be armed.

Judge Shirley M. Watts, for example, pressed Brasseaux on the widespread belief that “drugs and guns go together.”

Judge Sally D. Adkins, meanwhile, voiced concern that police officers could elude the Fourth Amendment’s prohibition on unreasonable searches by saying they smelled a strong stench of marijuana from the car.

“Have you ever heard a case when an officer said there was a slight scent of marijuana?” Adkins said to Jawor.

Brasseaux responded that pat-downs encroach on the “sanctity of a person” and thus can be performed only when the officer has a reasonable suspicion that the individual was armed. A passenger in a car does not arouse such suspicion, as Maryland law regards marijuana to be “less dangerous than other drugs” that are associated with trafficking and violence, she said.

“The touchstone of the Fourth Amendment is reasonableness,” Brasseaux added.

But Jawor called it reasonable for officers investigating potential drug trafficking to frisk for weapons on individuals they believe involved in the often violent activity.

Police can examine the “totality of the circumstances,” including the strong smell of raw marijuana, and reasonably suspect that a vehicle passenger is armed based on the “rational inference” that drug trafficking is linked to gun violence, Jawor said.

The Court of Appeals is expected to render by Aug. 31 its decision in the case, Joseph Norman Jr. v. State of Maryland, No. 56 September Term 2016.


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