Hard cases make bad law.[1] In re: D.D.[2]—a Maryland policing case involving the odor of marijuana—could be an example of that, at least according to the concurrence. The question before Maryland’s highest court was whether marijuana odor alone could create reasonable suspicion for an investigatory stop.[3] Looking at the facts of the case, the four-judge majority said yes.[4] The concurring judge, on the other hand, thought that the facts did not justify such a sweeping ruling.[5] The majority, in her view, could have held that the investigatory stop was constitutional without reaching the broader question, because there was more than the marijuana odor that made the officers suspicious.[6] The second question was somewhat less contentious. Five judges agreed that the totality of the circumstances supplied the officers with a sufficient reason to frisk the suspect for weapons.[7] Two judges dissented from both holdings.[8]

Facts

In Maryland, it is a civil violation to possess less than ten grams of marijuana.[9] Possessing more than ten grams of marijuana is a criminal misdemeanor.[10] Medical marijuana is also permitted, provided the possession is for specific types of usages.[11]

On the evening of November 15, 2019, Prince George County Police Department received a complaint of “loud music and smell of marijuana” coming from the basement of an apartment building in Capitol Heights, Maryland.[12] Two officers responded on the scene and, upon opening the front door, saw a group of five young men walking up the stairs from the basement and “smelled a strong order of marijuana” coming from them.[13]

The men, some of them juveniles (including D.D.), initially complied with the officers by heeding their order to sit down on the stairs. Their cooperation seemed to stop there, however, as they would not answer any of the officers’ questions, choosing instead to use foul language, “snicker[],” and “laugh[].”[14]

Based on this behavior, the smell of marijuana, the two-to-five officer-to-suspect ratio, and the men’s overall appearance (including but not limited to their clothes), the officers concluded that they could frisk the men for weapons.[15] D.D. was patted down second, after one of the officers found a handgun (possibly a BB gun) on the first man.[16] This pat-down turned up a loaded nine-millimeter handgun, which D.D. kept inside his waistband.[17]

Procedural History

Three days later, D.D. was charged with underage possession of a regulated firearm and two other firearms-related offenses.[18] D.D. moved to suppress the handgun as resulting from an unconstitutional search and seizure.[19] The circuit court, sitting as the juvenile court, denied the motion, holding that there was “reasonable articulable suspicion that [D.D.] was engaged in criminal activity.”[20] The Court of Special Appeals reversed. It held that the officers lacked reasonable suspicion for the initial detention of the five men, since the odor of marijuana, by itself, cannot “provide a reasonable suspicion that the person is in possession of a criminal amount of marijuana or otherwise involved in criminal activity.”[21] It left open, however, whether D.D.’s subsequent frisk violated the Fourth Amendment.[22] 

The Ruling

There were two questions before the Court of Appeals of Maryland. First, whether the odor of marijuana alone provides reasonable suspicion to support an investigatory detention—in this case, the officers ordering the men to sit down after smelling marijuana around them.[23] Second, whether the odor of marijuana along with other circumstances, such as the discovery of a weapon on another member of the group, the group’s evasive behavior, and the group’s relative size, provide officers with reasonable suspicion to conduct a frisk on a member of the group—in this case, the officers patting down D.D. for weapons.[24] Judge Jonathan Biran, writing for the court’s four-judge majority, answered both questions in the affirmative.[25]

1.     Marijuana odor alone can provide reasonable suspicion to support an investigatory detention.

A brief investigatory stop, said the court, does not need probable cause, so long as the officer has a reasonable suspicion that “criminal activity is afoot.”[26] True, in Lewis v. State, the court did hold that the arrest and search of a person, based solely on the odor of marijuana emanating from him, was unreasonable.[27] But this holding does not extend to investigatory detentions since they require a less stringent standard: reasonable suspicion rather than probable cause.[28]

The two principles, in the court’s view, are consistent with each other. After all, “probable cause to conduct a lawful arrest requires that the arrestee committed a felony.”[29] Since possession of less than ten grams of marijuana is a civil offense and there is no way, by the odor alone, to indicate the amount of marijuana in someone’s possession, the odor alone is insufficient to provide probable cause for the arrest and the search incident to arrest.[30]

Reasonable suspicion is different. It “exists somewhere between unparticularized suspicions and probable cause.”[31] There must be a “particularized and objective basis for suspecting the particular person stopped of criminal activity,” but it can arise from information “less reliable than that required to show probable cause.”[32]

Because the odor of marijuana remains evidence of a crime—since possession of more than 10 grams is a misdemeanor[33]—this evidence, while not enough for probable cause, is enough to constitute reasonable suspicion.[34] After all, even “wholly innocent conduct may provide reasonable suspicion that criminal activity is occurring or is about to occur.”[35]

The court emphasized, however, that investigative detentions “must be brief, especially in light of the reality that many individuals who choose to possess marijuana do so under the criminal threshold of 10 grams.”[36] As such, if “the officer does not quickly obtain additional information that provides probable cause to believe that the person has committed . . . criminal offense, the officer must allow the person to go on their way.”[37]

In concluding that the odor of marijuana alone can provide reasonable suspicion for an investigative detention, even in the post-decriminalization context, the court split from state courts in New Hampshire, New York, Oregon, and Massachusetts.[38] The courts in Vermont, Colorado, Illinois, and the Virgin Islands, on the other hand, are in alignment with Maryland.[39]

Interestingly, the court noted that had D.D. argued that the stop was improper because the officers could not particularize the odor of marijuana specifically to him, the outcome could have been different. But the lawyers did not raise this with the court, so it did not address the issue.[40]

2.     Totality of circumstances justify a pat-down for weapons where officers smell marijuana, are outnumbered five to two, and previously turned up a BB gun, and where suspects appear evasive and wear baggy clothing that could conceal a weapon.

While a frisk is not allowed simply because there was a reasonable suspicion for an investigatory detention, police can still pat down a person for weapons if there is a reason to believe the individual is armed and dangerous.[41] The test is an objective one: whether a reasonably prudent law enforcement officer, under the totality of the circumstances, and based on reasonable inferences from particularized facts in light of his experience, would have felt that he was in danger.[42]

Here, according to the majority, five factors contributed to the totality of the circumstances sufficient to justify the pat-down. First, officers smelled marijuana on the five men they considered suspects.[43] Second, these men outnumbered the two officers present on the scene.[44] Third, a prior frisk (which is not at issue in this case) turned up a weapon which—even if it were a BB gun—could have reasonably increased the level of suspicion.[45] Fourth, the men appeared to the officers to be evasive, as rather than answer the officers’ questions, they were “snickering, laughing, and being uncooperative.”[46] Finally, the men wore baggy clothing, which could potentially conceal weapons.[47] The court acknowledged that baggy clothing on a cold November day is certainly “less concerning.”[48] Still, it can be counted as one factor in the totality of the circumstances analysis.[49]

D.D. argued that the pat-down was a result of the police department policy to frisk all detainees when officers are outnumbered.[50] The court responded that it “cannot conclude based on this record that the Department had such a policy,” but even if it did, “by the time Sergeant Walden frisked D.D., he had developed reasonable, articulable suspicion that D.D. might be armed and dangerous based on the totality of the circumstances.”[51]

Judge Watts’s Concurrence

Judge Shirley Watts concurred in the judgment that the gun should not be suppressed. But with regard to question one, she would have held that “the odor of marijuana alone is not enough to give rise to reasonable articulable suspicion to conduct” an investigatory detention.[52]

In her opinion, “practical reasons militate against using something as amorphous and fleeting as the odor of marijuana alone as a ground to stop someone.”[53] In addition, such a holding “could potentially result in unnecessary and unwarranted police activity that may have a disparate effect in the community.”[54] Finally, there is a concern that the rule articulated by the majority “will lead to stops occurring based on much less information than what was available to the officer in this case.”[55]

But “the odor of marijuana may, with other circumstances, provide reasonable suspicion that a person is involved in criminal activity.”[56] In Judge Watts’s view, the case here is an example of that. “Sergeant Walden responded to a call specifically stating that multiple people, in the basement of the apartment building, were smoking a controlled dangerous substance.”[57] “Just over thirty minutes after receiving the dispatch call, Sergeant Walden arrived at the building, opened the door, saw a group of people walking up the steps towards him, and smelled a strong odor of marijuana.”[58] “Given that the odor of marijuana suggests either criminal behavior or a civil violation,” and given additional circumstances—namely that (1) there was a call to the police about the smoking of marijuana in the building, which was (2) corroborated by on-the-ground experience, within (3) thirty minutes of receiving the call—“the officer had reasonable articulable suspicion to conduct the investigatory stop.”[59]

Judge Hotten’s dissent, joined by Judge Raker

Judge Michelle Hotten dissented from the holdings on both questions, joined by Judge Irma Raker. First, Judge Hotten wrote that there was no reasonable suspicion for the investigatory stop. After all, “[p]ossession of less than ten grams of marijuana is generally no longer a crime in Maryland.”[60] Moreover, “Maryland also permits possession of medical marijuana for certain medical necessities or usages.”[61] As a result, “[t]he smell or 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.”[62]

Second, according to Judge Hotten, the frisk of D.D. was not supported by reasonable suspicion that D.D. was armed and dangerous.[63] At the heart of Judge Hotten’s dissent is the idea that judges should not rubber-stamp conduct simply because of an officer’s belief that he could engage in it.[64] Instead, when “an officer seeks to justify a Fourth Amendment intrusion . . . [he] must offer some explanation” so the courts have the ability to review his actions.[65] In this case, according to Judge Hotten, Officer Walden’s admission that he always searches for weapons when he is outnumbered “did not provide him with particularized suspicion that [D.D.] was armed and dangerous.”[66] In addition, it is not enough to state that a suspect engaged in an evasive behavior without describing how this behavior could be indicative of the suspect being armed.[67] And neither is it enough that the suspect was wearing a puffy jacket in November, or that the officers were responding to a call about a minor, non-violent misdemeanor, or that D.D.’s companion had a BB gun.[68] 

Overall, Judge Hotten concluded, none of the factors discussed by the majority “amount to reasonable suspicion that [D.D.] was armed or dangerous under the totality of the circumstances.”[69]

Conclusion

In the end, four out of seven judges created a new rule in Maryland that marijuana odor alone can provide reasonable suspicion to support an investigatory detention. This rule could be short-lived, however, in light of the upcoming referendum on a proposed amendment to the Maryland Constitution that would legalize “the use and possession of cannabis for individuals in Maryland who are at least 21 years old.”[70] Five out of seven judges also agreed that the totality of circumstances in this case justified the officers’ pat-down for weapons.



[1] Hodgens v. Hodgens, 4 CI Fin. 323, 378 (1837).
[2] 2022 WL 2207895 (Md. 2022).
[3] Id. at *4.
[4] Id. at *5.
[5] Id. at *18.
[6] Id.
[7] Id. at *14.
[8] Id. at *23.
[9] Id. at *1.
[10] Id.
[11] Id. at *6, 26.
[12] Id. at *2.
[13] Id.
[14] Id.
[15] Id. at *2–3.
[16] Id. at *3.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at *4.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id. at *2.
[26] Id. at *5.
[27] Id. at *8.
[28] Id. at *8–9.
[29] Id. at *8 (quoting Lewis v. State, 233 A.3d 86 (Md. 2020)).
[30] Id.
[31] Id. at *9 (quoting Sizer v. State, 174 A.3d 326 (Md. 2017)).
[32] Id. (quoting Alabama v. White, 496 U.S. 325 (1990)).
[33] Id. at *6.
[34] Id. at *9.
[35] Id. at *11.
[36] Id. at *10.
[37] Id.
[38] Id. at *13.
[39] Id.
[40] Id. at *11 n.8.
[41] Id. at *14.
[42] Id.
[43] Id. at *15.
[44] Id.
[45] Id. at *16.
[46] Id. at *15.
[47] Id. at *16.
[48] Id.
[49] Id.
[50] Id. at *17.
[51] Id. at *18.
[52] Id.
[53] Id. at *20.
[54] Id. n.2
[55] Id. at *20.
[56] Id.
[57] Id. at *21.
[58] Id. at *22.
[59] Id.
[60] Id. at *26.
[61] Id.
[62] Id.
[63] Id.
[64] Id. at *29.
[65] Id.
[66] Id.
[67] Id.
[68] Id. at *29–31.
[69] Id. at *31.
[70] Id. at *9 n.6.

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