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Md. top court: Marijuana odor alone does not justify frisk

The Court of Appeals ‘has yet to weigh in on the issue of whether the detection by an officer of the smell of marijuana coming from a car continues to provide police with probable cause to search the car in light of the recent amendments’ to Maryland Criminal Law, lawyers for three men convicted of possession successfully argued in their petition to the state’s top court. (Thinkstock)

(Thinkstock)

ANNAPOLIS – The pungent smell of marijuana emanating from a car with multiple occupants during a traffic stop does not in itself enable police officers to frisk a passenger for weapons, a divided Maryland high court ruled Monday.

To conduct a constitutional frisk, the officers must have “reasonable articulable suspicion” based on the “totality of the circumstances” that the passenger is armed and dangerous — and not that he or she is merely in a car that reeks of marijuana, the Court of Appeals held in its four-member majority opinion.

The high court rejected the state’s argument that a strong odor of raw, unsmoked marijuana indicates drug trafficking – an often violent undertaking whose participants can always be presumed to be armed and dangerous. In all such cases, a limited pat-down of the passengers for the presence of weapons is justified to protect the officer’s safety, the state argued.

Not so, said the court, noting that Maryland does not regard the possession of less than 10 grams of marijuana to be a criminal act. Rather, such possession is a civil offense punishable by a $100 fine.

“We hold that, where an odor of marijuana emanates from a vehicle with multiple occupants, a law enforcement officer may frisk an occupant of the vehicle if an additional circumstance or circumstances give rise to reasonable articulable suspicion that the occupant is armed and dangerous,” Judge Shirley M. Watts wrote for the majority. “Stated otherwise, for a law enforcement officer to have reasonable articulable suspicion to frisk one of multiple occupants of a vehicle from which an odor of marijuana is emanating, the totality of the circumstances must indicate that the occupant in question is armed and dangerous. An odor of marijuana alone emanating from a vehicle with multiple occupants does not give rise to reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous and subject to frisk.”

The Maryland attorney general’s office said in a statement Tuesday that it is “still evaluating the Court of Appeals’ lengthy majority opinion, including whether it adequately responds to our concern, also raised in the dissenting opinion, that our traffic officers not be needlessly forced into the danger posed by guns when validly searching a car containing drugs.” The office added it has “not yet determined” whether a petition for U.S. Supreme Court review “would be appropriate.”

The Court of Appeals’ decision constraining a police officer’s authority to frisk a car passenger follows its January ruling in Jermaul Robinson et al. v. Maryland that the smell of marijuana gives officers probable cause to search a vehicle. The court said the two decisions are not inconsistent.

“[W]e simply do not adopt the view that the odor of marijuana alone emanating from a vehicle gives rise to the inference that a passenger in the vehicle is potentially armed and dangerous,” Watts wrote. “A leap cannot be made from probable cause to search a vehicle to reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous based solely on the odor of marijuana coming from the vehicle.”

In its decision, the court overturned Joseph Norman Jr.’s conviction and nine-month prison sentence of possessing 70 grams of marijuana. A police officer had found the drugs while patting Norman down after ordering him and two other passengers 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.

The Somerset County Circuit Court and the intermediate Court of Special Appeals upheld the officer’s pat-down of Norman and the admission of the drugs found on him.

Fourth Amendment rights

But the Court of Appeals said the drugs should not have been admitted into evidence because the officer’s frisk had violated Norman’s Fourth Amendment right against unreasonable searches. The officer had no basis for suspecting Norman of being armed beyond having smelled marijuana, the court said.

Missing from the officer’s pretrial testimony was any mention that Norman made furtive movements, was wearing baggy pants, had a violent criminal record, was being uncooperative or exhibited any other behavior to indicate he might be armed, Watts wrote in an opinion joined in total by Judge Michele D. Hotten and in large part by Chief Judge Mary Ellen Barbera and Judge Sally D. Adkins.

In a concurring opinion, Adkins objected to Watts’ reference to decisions from federal and other state courts justifying frisks following the officers’ smell of marijuana. Reference to those cases “muddies the waters” from the court’s central holding that the smell of marijuana alone does not justify a search, Adkins wrote.

The inference that the smell of marijuana gives rise to a suspicion of drug dealing and weapons possession “crumbles under the weight of the Fourth Amendment,” Adkins added in the concurring opinion Barbera joined.

“It is not reasonable for a police officer to believe that a passenger in a vehicle that smells of marijuana is selling drugs,” Adkins wrote. “Indeed, the officer cannot assume that the occupants are engaged in criminal activity at all – in Maryland, the possession of less than 10 grams of marijuana is no longer a criminal offense.”

Added Adkins: “To conduct a … frisk, police officers must have evidence pointing to weapons, not only marijuana.”

‘Unnecessary risk’

In dissent, Judge Joseph M. Getty said the court should have deferred to the circuit court’s conclusion that the officer’s pat-down was based on his reasonable articulable suspicion that Norman might have been armed.

“The circuit court is most likely to be familiar with the area where the stop took place, the dangers that law enforcement officers regularly face in that area, and the overall threat to officer safety in that particular community,” Getty wrote. “I believe that Judge Watts’ opinion – which requires police officers, in order to justify a pat down for weapons, to point to additional circumstances beyond probable cause that drugs are present in a vehicle with multiple occupants – will subject police officers to take unnecessary risks in the performance of their duties.”

Judge Robert N. McDonald joined Getty’s dissent.

Judge Clayton Greene Jr. joined in the court’s judgment only.

Assistant Maryland Public Defender Allison P. Brasseaux, Norman’s appellate counsel, did not return telephone messages Tuesday seeking comment on the court’s ruling.

The Court of Appeals issued its decision in Joseph Norman Jr. v. State of Maryland, No. 56 September Term 2016.


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