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DeWolfe urges justices to let marijuana-frisk decision stand

Court of Appeals found Fourth Amendment violation

‘There are few practical protections to safeguard against the government’s exploitation of DNA technology,’ Maryland Public Defender Paul B. DeWolfe wrote in asking the Supreme Court to take up a Massachusetts case similar to one they declined to hear from Maryland earlier this year. (File photo)

Maryland Public Defender Paul B. DeWolfe. (File photo)

The Maryland public defender’s office has urged the U.S. Supreme Court to reject the state’s request that it review a Maryland high-court decision that the pungent smell of raw, unsmoked marijuana emanating from a car during a traffic stop does not in itself enable police officers to frisk a passenger for weapons.

In papers filed with the justices last week, Public Defender Paul B. DeWolfe said the Maryland Court of Appeals’ decision does not merit their review as it correctly interpreted the constitution’s prohibition on unreasonable searches.

DeWolfe’s brief was in response to Maryland Attorney General Brian E. Frosh’s request for Supreme Court review, in which he argued that the smell of marijuana gives police a reasonable concern for their safety that justifies a pat-down of passengers without violating their constitutional Fourth Amendment rights.

DeWolfe also submitted the response at the justices’ request after his office had waived its right to respond. The high court’s call for the office’s response indicated the justices are strongly considering the state’s petition for review.

The justices are scheduled to vote Sept. 25 on whether to hear the state’s appeal in Maryland v. Joseph Norman Jr., No. 16-1547.

In its March ruling, the Court of Appeals said police officers – to conduct a constitutional frisk – must have “reasonable articulable suspicion” based on the “totality of the circumstances” that the passenger is armed and dangerous, and not just that he or she is in a car that reeks of marijuana.

The Maryland court rejected the state’s argument — renewed in its appeal to the justices — that the smell indicates drug trafficking, an often-violent undertaking whose participants can always be presumed to be armed and dangerous.

‘Breathtaking in scope’

In its request for Supreme Court review, the state added that in all such cases, when police have probable cause to search a vehicle, a limited pat-down of the passengers for the presence of weapons is justified to protect the officers’ safety.

DeWolfe responded that the state’s position contravenes the Fourth Amendment.

“As an initial matter, the rule proposed by the state is breathtaking in its scope, and adoption of it would permit pat downs of passengers in a staggering number of situations, including stops in which the police have probable cause to believe the car contains evidence of very minor crimes, such as shoplifting,” DeWolfe wrote in the brief to the justices co-signed by Assistant Public Defenders Allison P. Brasseaux and Brian M. Saccenti, who is counsel of record in the case.

DeWolfe added that the state’s concern about marijuana-related violence is belied by the more than 20 states which have either legalized possession of small amounts of the drug or punish first-time marijuana possession with at most a fine. In Maryland, possession of less than 10 grams of marijuana is merely a civil offense punishable by a $100 fine, the public defender wrote.

“Presumably, the legislatures in those (more than 20) states took the actions they did because they did not believe that individuals who possess small amounts of marijuana are dangerous,” DeWolfe added in the Supreme Court brief. “Assuming the court believes there is any merit to the argument that the suspected possession in a car of heroin, or cocaine, or methamphetamine, or any other illegal drug that is treated consistently across the country, gives rise to reasonable suspicion to believe that passengers in the car are armed and dangerous, the argument has absolutely no merit when the drug at issue is marijuana; thus, review by the court is not warranted on that ground either.”

In its controversial decision, the Court of Appeals overturned Joseph Norman Jr.’s conviction and nine-month prison sentence for 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.

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, prompting the state’s appeal to the justices.

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