THE ODOR OF MARIJUANA ALONE CREATES SUFFICIENT REASONABLE SUSPICION FOR LAW ENFORCEMENT OFFICERS TO DETAIN INDIVIDUALS FOR A BRIEF INVESTIGATIVE STOP.

The Court of Appeals of Maryland held that the odor of marijuana alone created reasonable suspicion of criminal activity to justify an investigative stop.  In re D.D., 479 Md. 206, 240, 277 A.3d 949, 969 (2022).  If based on the totality of the circumstances, an officer then develops an additional reasonable suspicion that a defendant is armed and dangerous, the officer is justified in conducting a weapons pat-down. Id. at 249, 277 A.3d at 974.

On November 15, 2019, two Prince George’s County police officers responded to a call for service to investigate a complaint of “loud music and the smell of marijuana” coming from the basement of an apartment building.  Upon arrival, officers entered the apartment building and encountered a group of five juvenile males walking up the stairs from the basement.  The officers “smelled a strong odor of marijuana” coming from the group.  One of the officers stopped the group and instructed them to “have a seat” on the stairs.

Once the officers detained the young men, they questioned the group about where they lived and why they were inside the apartment building.  The group refused to identify themselves or answer the officers’ inquiries.  Officers observed an individual in the group, later identified as D.D., wearing baggy clothing, turning away from officers, keeping his hands out of the officers’ sight, and positioning himself apart from the rest of the group near an exit.  In response to these observations, officers conducted a weapons pat-down on the five detained juveniles.  Officers first conducted a weapons pat-down on “J,” one of the young men with D.D., and recovered a handgun from his waistband.  After placing “J” under arrest, officers continued to conduct weapons pat-downs on the remaining members of the group.  When officers conducted a weapons pat-down on D.D. they recovered a nine-millimeter handgun from his waistband.  Officers subsequently arrested D.D. 

The State filed a delinquency petition in the Circuit Court for Prince George’s County, charging D.D. with possession of a regulated handgun by a person under the age of 21.  Counsel for D.D. moved to suppress the handgun.  The circuit court denied the motion to suppress, and at trial, the juvenile court found D.D. involved in all counts.

On appeal, the Court of Special Appeals of Maryland reversed the denial of the suppression motion, holding that the odor of marijuana alone did not create reasonable suspicion of criminal activity.  The Court of Special Appeals of Maryland did not address any legal issues beyond D.D.’s initial detention.  The State filed a petition asking the court to review whether the scent of marijuana created reasonable suspicion of criminal activity.  D.D. filed a conditional cross-petition asking that if the court granted the State’s petition, the court review whether police had reasonable suspicion that D.D. was armed and dangerous.  The Court of Appeals of Maryland granted both petitions.

The court began its analysis with the Fourth Amendment, which protects people from unreasonable searches and seizures.  In re D.D., 479 Md. at 223, 277 A.3d at 959 (citing Grant v. State, 449 Md. 1, 141 A.3d 138 (2016)).  In most instances, probable cause is needed to seize an individual.  Id. (citing Crosby v. State, 408 Md. 490, 505, 970 A.2d 894 (2009)).  However, a law enforcement officer may conduct a brief investigative stop if the officer has reasonable suspicion that criminal activity is ongoing or imminent.  Id. (citing In re David S., 367 Md. 523, 533, 789 A.2d 607 (2002)). 

In 2014, the Maryland General Assembly partially decriminalized possession of marijuana.  In re D.D., 479 Md. at 224, 277 A.3d at 959.  Presently, “the use or possession of less than 10 grams of marijuana” is a civil infraction punishable only by a fine.  Id. at 225, 277 A.3d at 959-60 (citing Md. Code Ann., Crim. Law (“CR”) § 5-601(c)(2)(ii)).  The use or possession of more than 10 grams of marijuana is a misdemeanor criminal offense.  Id. at 225, 277 A.3d at 960 (citing CR 5-602(c)(2)).  After decriminalization, the Court of Special Appeals of Maryland and the Court of Appeals of Maryland grappled with defining if and when the odor of marijuana created a sufficient level of suspicion for warrantless searches and seizures.  Id.

In reaching its conclusion, the court relied on several prior decisions regarding what police could do when they detect the odor of marijuana.  In re D.D., 479 Md. at 225-30, 277 A.3d at 960-63.  In the instant case, the court was tasked with filling in a gap left by previous case law.  See id. at 235-36, 277 A.3d at 966.  The court, in its analysis, pointed to the different levels of suspicion needed for search and arrest as opposed to a brief investigative stop.  See id.  An investigative stop requires reasonable suspicion that criminal activity is imminent or occurring.  Id. at 230, 277 A.3d at 963 (citing Crosby, 408 Md. at 505-06, 970 A.2d at 902-03).  Reasonable suspicion may be satisfied by a set of facts that is lesser than probable cause but greater than mere suspicion.  Id. (citing Sizer v. State, 456 Md. 350, 364, 174 A.3d 326 (2017)).  The court emphasized that marijuana was still contraband and held that the odor of marijuana alone created reasonable suspicion of criminal activity sufficient to justify an investigative stop.  See id. at 240-41, 277 A.3d at 969. 

The court next discussed whether there was reasonable suspicion that D.D. was armed and dangerous before officers frisked him.  In re D.D., 479 Md. at 241-42, 277 A.3d at 969-70.  To conduct a weapons pat-down, officers must make articulable observations that, under the totality of the circumstances, a reasonable officer would believe an individual is armed and dangerous.  Id. at 242-43, 277 A.3d at 970 (citing Norman v. State, 452 Md. 373, 387, 156 A.3d 940, 948 (2017)).  These facts must be particularized and not mere hunches.  Id. at 243, 277 A.3d at 970 (citing Sellman v. State, 449 Md. 526, 543, 144 A.3d 771, 781 (2016)).  The court pointed to the arresting officer’s testimony about D.D.’s evasiveness, the handgun recovered off another individual in the group, officers being outnumbered five to two, D.D.’s baggy clothing, and how D.D. positioned himself away from the rest of the group near an exit.  Id. at 244-49, 277 A.3d at 971-74.  The court held that, based on the totality of the circumstances, officers had reasonable suspicion that D.D was armed and dangerous and the weapons pat-down of D.D. was reasonable under the Fourth Amendment.  Id. at 249, 277 A.3d at 974.

In a concurring opinion, Judge Watts argued that while the majority came to the correct conclusion, it did so for the wrong reason.  In re D.D., 479 Md. at 250, 277 A.3d at 975.  Judge Watts argued that the odor of marijuana alone was not reasonable suspicion of criminal activity.  Id. at 258, 277 A.3d at 979-80 (citing Crosby, 408 Md. at 507-08, 970 A.2d at 904).  Rather, the odor of marijuana coupled with additional facts such as the exact address given, the number of people in the group, and the duration of time the group was in the building amounted to reasonable suspicion of criminal activity.  Id.

In the dissenting opinion, Judge Hotten argued that neither the initial stop of D.D. nor the frisk of D.D. was supported by reasonable suspicion.  In re D.D., 479 Md. at 259, 277 A.3d at 980.  The dissent argued that the odor of marijuana is a factor in determining criminal activity, but that factor alone does not create reasonable suspicion.  Id. at 266, 277 A.3d at 984 (citing Crosby, 408 Md. at 507, 970 A.2d at 904).  The dissent also argued that the officers lacked reasonable suspicion to frisk D.D.  Id. at 269, 277 A.3d at 986.  Judge Hotten also argued that it was department protocol to frisk individuals when outnumbered.  Id. at 268, A.3d at 985 (citing Thornton v. State, 465 Md. 122, 143, 214 A.3d 34, 46 (2019)). A blanket policy of frisking individuals simply because police are outnumbered would be a violation of the Fourth Amendment.  Id. at 268, A.3d at 986. 

The holding in In re D.D. marks a further clarification regarding how the odor of marijuana intersects with Fourth Amendment searches and seizures.  In November of 2022, Maryland voters overwhelmingly approved a referendum to legalize marijuana for adult use.  Although the General Assembly will need to craft regulations on the distribution and taxation of marijuana, those regulations will likely include limitations on the amount of marijuana that can be possessed.  Under the reasoning of In re D.D., even after legalization, the odor of marijuana may continue to be reasonable suspicion of criminal activity that justifies an investigative stop.  It is possible, however, that Judge Watts’ concurring opinion may become the new standard: the odor of marijuana must be coupled with additional articulable facts to give rise to reasonable suspicion of a criminal activity.  Regardless, the odor of marijuana remains an investigative tool that law enforcement may use to further the important governmental interest of investigating and prosecuting crimes.  To do so effectively, police departments and law practitioners throughout Maryland must familiarize themselves with the legal complexity the odor of marijuana presents and remain abreast of this ever-changing legal landscape.  Failure to do so will result in lost cases and bad arrests.

Donald Waldron is a second-year day student at the University of Baltimore School of Law and a Staff Editor for Law Forum.  Donald received a Master of Arts degree in criminal justice from New Mexico State University and a Bachelor of Arts in criminal justice from SUNY Plattsburgh.  In the past, Donald worked as a Major Crimes Detective with Baltimore City Police Department and as a Border Patrol Agent with the Department of Homeland Security.  Currently, Donald is working as a legal intern with Homeland Security Investigations division of the Department of Homeland Security and as a law clerk at Saller, Lord, Ernstberger & Insley.