What is That Smell?

By Evidence ProfBlogger Share

In 2014, the Maryland General Assembly decriminalized possession of less than 10 grams of marijuana. So, in Maryland, should the smell of marijuana alone provide reasonable suspicion to conduct an investigatory stop? That was the question of first impression addressed by the Court of Special Appeals of Maryland in its opinion today in In re D.D., 2021 WL 1651304 (Md. App. 2021).

In D.D., On November 15, 2019, at 7:42 p.m., Jeffery Walden and Alexandra Moser, members of the Prince George’s County Police Department, responded to a call for service at an apartment complex in Capitol Heights. Officer Walden testified that the call for service involved “males in the basement” who were “playing music and smoking CDS,” i.e., controlled dangerous substances. When the officers arrived at the building, Officer Walden opened the front door. He observed “a group of males walking up the steps” and “smelled a strong odor of marijuana.” Officer Walden told the group, which included appellant and four other males, to “have a seat on the stairs.” He testified that he gave that instruction “because of the nature of the complaint” and because he and Officer Moser were outnumbered. There were two sets of stairs in the building, and four members of the group sat down on the stairs to the left, and appellant sat on the stairs to the right.Officer Walden then asked the group who, if anyone, lived in the building. The response was evasive, with group members “snickering, laughing, very carefree, [and] not cooperative.” No member of the group stated that they lived in the building. Appellant “shrugged his shoulders and didn’t say anything,” and his body language was “evasive.” When specifically asked where he lived, appellant responded “my dick.”

Officer Walden subsequently conducted a pat down of appellant’s waistband and recovered a “9 millimeter handgun.” 

The appellant’s motion to suppress the handgun was denied, but the Court of Special Appeals reversed that ruling today, holding thatBecause possession of less than 10 grams of marijuana is no longer a crime, the suspicion required to support a stop for the crime of possession of marijuana, therefore, is that the person is in possession of more than 10 grams of marijuana. And because the “odor of marijuana alone does not indicate the quantity, if any, of marijuana in someone’s possession,”…it cannot, by itself, provide reasonable suspicion that the person is in possession of a criminal amount of marijuana or otherwise involved in criminal activity.Other courts have reached this same conclusion. See, e.g., State v. Francisco Perez, 239 A.3d 975, 985-86 (N.H. 2020) (After decriminalization of small amounts of marijuana, the odor of marijuana remains a relevant factor in assessing reasonable suspicion, but it does not alone provide reasonable suspicion of criminal activity.); Commonwealth v. Cruz, 945 N.E.2d 899, 908 (Mass. 2011) (After the decriminalization of one ounce or less of marijuana, the odor of marijuana alone does not provide reasonable suspicion of criminal activity.).The odor of marijuana may, with other circumstances, provide reasonable suspicion that a person is involved in criminal activity. Based on the reasoning of Lewis and other cases, however, because an officer cannot tell by the smell of marijuana alone that a person is involved in criminal activity, we hold that the odor of marijuana, by itself, does not provide reasonable suspicion to conduct an investigatory stop. Accordingly, Officer Walden did not have reasonable suspicion of criminality to support the stop, and it was unreasonable under the Fourth Amendment. The circuit court erred in denying the motion to suppress.

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