A sharply divided Maryland high court ruled this week that police officers may briefly stop and question a person who smells of marijuana though possession of less than 10 grams of the drug is not a crime in the state.
In its 4-3 decision, the Court of Appeals said the drug’s aroma provides police with “reasonable suspicion” that the person may have 10 grams or more, thus permitting the officers to conduct a brief “investigatory” stop.
Officers must end the stop if they do not quickly obtain information that gives them probable cause to believe the person has at least 10 grams or has committed another criminal offense, the high court said.
The court distinguished its divided holding from its unanimous 2020 decision in Lewis v. Maryland that the U.S. Constitution’s Fourth Amendment bars police from arresting and searching someone who merely smells of the drug, saying the odor alone does not give officers “probable cause” to believe the person possesses an illegal amount.
“The public interest in investigating and prosecuting criminal offenses, balanced against an individual’s freedom of movement and reasonable expectation of privacy in their person, leads us to conclude that the odor of marijuana by itself justifies a brief investigatory detention, but (as we held in Lewis) not an arrest,” Judge Jonathan Biran wrote for the slim majority.
“Given the important governmental interest in detecting, preventing, and prosecuting crime, the Fourth Amendment allows a brief seizure, based on reasonable suspicion, to attempt to determine if criminal activity is afoot,” Biran added, citing the U.S. Supreme Court’s 1972 decision in Adams v. Williams. “An officer who lacks probable cause to arrest is not required ‘to simply shrug his shoulders and allow a crime to occur or a criminal to escape.’”
Under Maryland law, possession of less than 10 grams of marijuana is a civil offense punishable by a $100 fine unless the drug is being used for legal medicinal purposes.
The Court of Appeals rendered its decision as Marylanders prepare to vote this November on a constitutional amendment to legalize recreational marijuana use for people 21 and older beginning in July 2023.
In its ruling, the high court reinstated the Prince George’s County Circuit Court’s finding that a 15-year-old identified as D.D. was involved in a firearm offense. A county police officer found the handgun in D.D.’s waistband while frisking him after the investigatory stop for marijuana led to the officer’s reasonable suspicion that the teenager was armed.
The intermediate Court of Special Appeals had overturned the juvenile court’s finding of involvement, saying the officer’s investigatory stop based on the smell of marijuana was unconstitutional, rendering the subsequent discovery of the gun invalid.
But the high court, having held the investigatory stop constitutional, said the officer had reasonable suspicion that D.D. was armed based on his evasive behavior, body language and baggy clothing. The pat-down of D.D. was valid to ensure the safety of the officer and a colleague while they were outnumbered five to two by the teenager and his associates in the Capitol Heights apartment building in November 2019, the court said.
D.D.’s appellate attorney, Michele D. Hall, did not immediately return a message Friday seeking comment on the Court of Appeals decision and any plans to seek review by the U.S. Supreme Court based on the Fourth Amendment.
Hall is an assistant Maryland public defender.
The Maryland Attorney General’s Office declined to comment on the high court’s ruling.
Biran was joined in the opinion by Judge Brynja M. Booth and retired Judges Joseph M. Getty and Robert N. McDonald, who were sitting by special assignment.
In dissent, Judge Michele D. Hotten said marijuana’s mere aroma cannot arouse reasonable suspicion that the person possesses at least 10 grams of the drug and is therefore committing a crime.
“The smell of odor on a person, alone, makes it impossible for law enforcement to determine whether the person has engaged in a wholly innocent activity, a civil offense, or a crime,” Hotten wrote. “While reasonable suspicion is a relatively low barrier, law enforcement may not rely on a hunch that a person may possess 10 grams of (marijuana) odor in a non-medicinal capacity to form a basis of reasonable suspicion.”
Hotten was joined in dissent by Judge Irma S. Raker, a retired jurist sitting by special assignment.
Judge Shirley M. Watts agreed that the smell of marijuana alone is insufficient to arouse reasonable suspicion of criminality. But she said the officer in this case was justified in stopping D.D. because police were responding to a call that a males were smoking a controlled dangerous substance in the basement of an apartment complex, which would indicate an amount of marijuana of at least 10 grams.
“Just as the odor of marijuana alone does not give rise to probable cause to arrest and search a person incident to arrest, I would hold that the odor of marijuana alone is not enough to give rise to reasonable articulable suspicion to stop a person,” Watts wrote. “Moreover, holding that the odor of marijuana alone gives rise to reasonable articulable suspicion supporting an investigatory stop could potentially result in unnecessary and unwarranted police activity that may have a disparate effect in the community.”
But “where a law enforcement officer encounters the odor of marijuana, along with information about other circumstances, such as multiple people being responsible for the odor and the odor existing over a period of time, the officer could reasonably suspect that criminal activity – possession of at least 10 grams of marijuana – may have been afoot and may briefly detain the individual or individuals,” Watts added.
The Court of Appeals issued its decision in In Re: D.D., No. 27, September Term 2021.