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Maryland Rules Odor of Marijuana is Enough To Justify Police Stop

A.J. Herrington

By A.J. Herrington

June 30, 2022

A woman tourist walks down the street against a background of two policemen

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Maryland’s highest court ruled last week that the

is enough to justify an investigatory stop by police, despite the fact that possession of small amounts of cannabis has been decriminalized in the state. In a divided ruling, the Maryland Court of Appeals held that police were justified in briefly stopping the defendant in the case to investigate a citizen’s report of men smoking cannabis in the area.

In a 4-3 decision, the court ruled that the odor of marijuana gives police officers reasonable suspicion that a person may possess 10 grams or more of cannabis, which is still illegal under state law. Police must end the brief investigatory stop, however, if they do not quickly obtain information that gives them probable cause to believe the person possesses more than 10 grams of marijuana or that another crime has been committed.

The Court of Appeals issued the ruling in the case of a juvenile defendant only identified as D.D., who was charged with a firearms offense after police found a handgun in the teen’s waistband during a search of the individual. Police had been called to the area to investigate a report of several male individuals smoking marijuana and frisked D.D. after officers said they

marijuana on him.

A juvenile court ruled that the search was legal, but Maryland’s Intermediate Court of Appeals ruled it was unconstitutional, saying the odor of marijuana was not enough to justify the stop because possession of less than 10 grams of cannabis is only a civil offense. 

Odor of Marijuana Alone Not Enough for an Arrest

The majority opinion noted that the decision is not inconsistent with the high court’s ruling in a 2020 case, Lewis v. Maryland, that the smell of marijuana alone was not enough to justify an arrest. 

“The odor of marijuana, without more, does not provide law enforcement officers with the requisite probable cause to arrest and perform a warrantless search of that person incident to the arrest,”

in the 2020 unanimous ruling written by Chief Judge Mary Ellen Barbera.

The high court found that in D.D.’s case, police were justified in stopping him because they detected the odor of marijuana in relation to the report of men smoking marijuana. 

“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,”

for the 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.’”

In a dissenting opinion, Judge Michele D. Hotten wrote that the smell of marijuana alone is not enough to give an officer reasonable suspicion that the person possesses more than 10 grams of marijuana. 

“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.”

Judge Shirley M. Watts agreed that the smell of marijuana alone was not enough to arouse reasonable suspicion, but found that police were justified in D.D.’s case because they were responding to a report that several men were smoking marijuana and could therefore reasonably suspect that an amount greater than 10 grams was involved.

“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.

Last week’s ruling by the Court of Appeals reinstates the juvenile court’s ruling.

A.J. Herrington

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A.J. Herrington

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