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.

Prosecutor’s Use of Bloody, Vomit-Stained Mannequin Proper in Sentencing Phase of Murder Trial

By Evidence ProfBlogger 

Assume that a defendant is convicted of the first degree murder based upon fatally shooting a deputy sheriff. Would it be prosecutorial misconduct for the prosecutor during the sentencing phase of trial to use of life-sized mannequin of the deputy sheriff to demonstrate his injuries? That was the question addressed by the Supreme Court of California in its recent opinion in People v. Steskal, 2021 WL 1684072 (Cal. 2021).

In Steskal, the facts were as stated above, with Maurice Gerald Steskal being convicted of the first degree murder of Orange County Deputy Sheriff Bradley J. Riches. During the sentencing hearing, the prosecutor showed the jury

a life-sized mannequin dressed in Deputy Riches’s bloody uniform. There was vomit on the front shirt pocket and the dried blood blended in with the color of the uniform, which was dark green. Rods placed in the mannequin reflected the location and trajectory of bullet wounds. Ruling that the mannequin was admissible, the trial court observed that it was not going to “shock anybody’s sensibilities.” The prosecutor referred to the mannequin during the pathologist’s testimony to show the location of each wound as he described them. During his closing argument, the prosecutor brought the mannequin out to show the concentration of shots directed to the upper left chest area, highlighting the aggravated nature of the crime. When not in use during the testimony and closing argument, the mannequin was stored outside of the jury’s view and was not placed in the jury room during deliberations.

After being given a death sentence, Steskal appealed, claiming that “there was little probative value to the mannequin, given that the circumstances of the crime were not contested, and that the mannequin was prejudicial because it was ‘startlingly life-like’ and the condition of the uniform was ‘shocking.'” The Supreme Court of California disagreed, concluding thatThis argument is not persuasive; this court has repeatedly held that otherwise relevant evidence is not inadmissible simply because it is graphic or because it depicts uncontested facts….In Thomas, for instance, although the cause and circumstances of death were not in dispute, we upheld the guilt phase introduction of life-sized mannequins representing slain officers, as well as their blood- and tissue-stained clothing….The trial court in this case did not err when it admitted similar evidence in Steskal’s penalty retrial, a juncture in the proceedings when the constraints on its discretion to exclude the evidence were greater than they would have been in the guilt phase….We have long recognized that “[m]annequins may be used as illustrative evidence to assist the jury in understanding the testimony of witnesses or to clarify the circumstances of a crime”…and have “rejected challenges to the prosecution’s use of mannequins to represent victims during the presentation of aggravating evidence”…We have similarly upheld the admission of a victim’s stained clothing to show the circumstances of the crime…as well as the admission of photographs and videotape portraying actual victims in death…We conclude the trial court acted within its discretion in finding that the probative value of the mannequin was not substantially outweighed by the risk of undue prejudice. “Consistent with our holding in People v. Medina (1990) 51 Cal.3d 870, 898–899 [274 Cal.Rptr. 849, 799 P.2d 1282] — a case where the prosecution entered into evidence a mannequin wearing a victim’s bloodstained shirt — we find that ‘[t]he trial court was in a far better position than we to assess the potential prejudice arising from the display of such physical evidence.’ Upon the record before us, we see no basis to upset its decision”…and conclude there was no violation of Steskal’s federal constitutional rights.

Ineffective Assistance in Plea Negations

There is an interesting cert petition before the Supreme Court as noted by the SCOTUS blog:

Anaya v. Lumpkin involves burdens of proof for defendants claiming that they rejected a plea deal based on incorrect advice of counsel. David Anaya was indicted in Texas on charges of murder and aggravated assault with a deadly weapon, for which he claimed self-defense. Anaya rejected a plea offer after his lawyer advised him that, under Texas law, his failure to retreat from the situation “did not matter or make a difference” for his self-defense claim. However, his lawyer was incorrect because Anaya’s status as a felon in possession of a weapon meant that his failure to retreat was relevant. At trial, the government focused on Anaya’s failure to leave the situation even though he was in a car at the time he shot the victim. He received sentences akin to a life sentence. Anaya’s petition before the Supreme Court involves his claim that he received ineffective assistance of counsel in rejecting the plea offer. The U.S. Court of Appeals for the 5th Circuit recognized that Anaya received deficient performance but ruled against Anaya because the government could have withdrawn the plea offer. In his petition, Anaya argues that the 5th Circuit’s ruling conflicts with Supreme Court cases on ineffective assistance leading to rejected plea deals.

Judicial Collegiality

Join Berkeley Judicial Institute on May 14 at 9:00 A.M. PT for a discussion of best practices that promote judicial collegiality.
 FREE REGISTRATIONU.S. Sixth Circuit Court of Appeals Judge Bernice Donald and MN district court Judge Kevin Burke (retired) will facilitate the conversation. Just participating is a step toward greater collegiality!Have ideas for other academics Berkeley Judicial Institute should invite to discuss their work?  Let us know, please, by emailing bji@law.berkeley.edu.LEARN MORE ABOUT BJI
UC Berkeley School of Law
224 Law Building
Berkeley, CA 94720

Time To Fix Immigration Courts

Several years ago the American Judges Association passed a resolution calling for reform of how immigration judges are treated. The work they do is important. They are for many people the first face of the American justice system. And yet they are not given the independence they deserve and many times have crushing caseloads. Time to fix our immigration courts, broken for decades. We need to hire more immigration judges, drop hundreds of thousands of low-level cases from the docket and root out Trump hard-liners embedded within the system. THE NEW YORK TIMES

The Importance Of Diversity

Brennan Center Updates State Supreme Court Diversity Report with Demographic and Professional Data
On April 20, the Brennan Center released its second update to its report, State Supreme Court Diversity, with new demographic information about state supreme court justices, and for the first time, information about justices’ professional backgrounds.
There are now 22 states in which there are no justices who publicly identify as a person of color, including 11 states where people of color make up at least 20 percent of the population. There are also 28 states where there are no Black justices, 40 states where there are no Latino justices, 44 states where there are no Asian American justices, and 47 states without a Native American justice.
The researchers also found that over a third (37 percent) of sitting justices are former prosecutors, while only seven percent are former public defenders. In addition, 81 percent of justices across all demographic groups previously worked in private practice, whereas only two percent worked in civil legal aid.

Judicial Collegiality

Join Berkeley Judicial Institute on May 14 at 9:00 A.M. PT for a discussion of best practices that promote judicial collegiality.
 FREE REGISTRATIONU.S. Sixth Circuit Court of Appeals Judge Bernice Donald and MN district court Judge Kevin Burke (retired) will facilitate the conversation. Just participating is a step toward greater collegiality!Have ideas for other academics Berkeley Judicial Institute should invite to discuss their work?  Let us know, please, by emailing bji@law.berkeley.edu.LEARN MORE ABOUT BJI
UC Berkeley School of Law
224 Law Building
Berkeley, CA 94720

The Police Towed The Suspects Car! Can They?

There is no data on how often the police tow a suspect’s car but every trial court judge knows it happens frequently. But the police do not have unbriddled  authority to two as this very recent case illustrates

From Fourth Amendment.com

Defendant’s car on his arrest would have been left on a motel parking lot, and the government didn’t show that this was a reasonable choice. Impoundment was thus unnecessary for community caretaking, and the denial of the motion to suppress is reversed. United States v. Venezia, 2021 U.S. App. LEXIS 13076 (10th Cir. May 3, 2021):

Guided by the Supreme Court’s decisions in these cases, we clarified the precise standard for determining the constitutionality of a police-ordered impoundment on private property in Sanders: “when a vehicle is not impeding traffic or impairing public safety, impoundments are constitutional only if guided by both [1] standardized criteria and [2] a legitimate community-caretaking rationale.” 796 F.3d at 1243.

Here, Venezia argues the officers failed to comply with either requirement, rendering the impoundment unconstitutional for two independently sufficient reasons. The government disagrees. Reviewing de novo, we conclude that the impoundment was guided by standardized criteria, thus satisfying the first prong of Sanders. We also conclude, however, that the impoundment was not guided by a legitimate community-caretaking rationale, thus failing the second prong of Sanders.

. . .

6.Weighing the Factors

To summarize: the vehicle at issue was legally parked on private property, did not impede traffic, and did not pose a safety hazard. The private property owner did not object to the vehicle’s presence. None of these facts are in dispute. Rather, the parties dispute whether leaving Venezia’s vehicle in the motel parking lot would have unnecessarily exposed it to risk of theft or vandalism.

As discussed above, the vehicle in this case was not at unnecessary risk of theft or vandalism, and thus the officers lacked a reasonable community-caretaking rationale. The officers could not reasonably conclude that the vehicle would be unattended for a prolonged period of time based on their unsuccessful 9:00 P.M. attempt to call the vehicle’s registered owner. And the vehicle’s presence in the motel parking lot was no different than any other vehicle in the lot. For these two reasons, the officers’ decision to impound the vehicle was not guided by a reasonable community-caretaking rationale as required under the second Sanders prong. The officers could no more impound Venezia’s vehicle than they could impound any other vehicle at the motel, assuming its driver was unavailable and its registered owner could not be reached that night.

It is unnecessary to decide whether the asserted community-caretaking rationale was also “pretextual.” In fact, in this case, the evidence of pretext is scant. Yet, we held in Sanders that an asserted community-caretaking rationale must be both “reasonable” and “non-pretextual.” Id. at 1248. The officers in this case were attempting to rely on their standardized policy when impounding the vehicle. That policy, however, as exercised here, simply did not grant the officers authority to do what the Fourth Amendment forbids—to impound a vehicle absent a reasonable community-caretaking rationale.

Judicial Collegiality

Join Berkeley Judicial Institute for a discussion of best practices that promote judicial collegiality. U.S. Sixth Circuit Court of Appeals Judge Bernice Donald and MN district court Judge Kevin Burke (retired) will facilitate the conversation. Just participating is a step toward greater collegiality!


1.25 hours of CLE credit will be offered for this program.

Here is a direct registration link:


How Should Courts Protect Privacy?

Tim O’Brien has posted New Writs of Assistance: Geofence Warrants and the Fourth Amendment on SSRN. Here is the abstract:Geofence search warrants, also known as reverse location search warrants, are a new, digital version of the general warrants, or “writs of assistance”, that were at the heart of the Fourth Amendment’s inclusion in the Bill of Rights. Fourth Amendment jurisprudence has been consistently challenged for over a century in the face of technology advancements such as the wiretap, computers, the internet, and mobile phones. But the challenge posed by geofence warrants, in which the government can demand that private sector technology providers disclose a list of mobile devices in a defined place at a defined time, may be the Fourth Amendment’s most vexing encounter yet. When combined with protections provided by the Stored Communications Act, enacted in 1986, it positions the courts as a porous last line of defense between government intrusion and expectations of privacy in the mobile device era.
This Article explains why this situation is perilous, and describes the widening gap between existing Fourth Amendment jurisprudence and rapidly advancing technology to obtain, aggregate, and correlate data about citizens, both anonymous and uniquely identifying, to surveil and profile the public, with a focus on geofence warrants as this era’s emblematic investigative tool. This Article will explain why anonymization is a weak safeguard and argue for more stringent requirements to bring judicial domain knowledge in line with that of law enforcement officers, who have greater access to specialized training in digital forensics. Lastly, the Article will discuss needed reforms to current statutory protections that no longer possess the ability to constrain government intrusion into our daily lives. The judiciary and legislatures place checks on one another, but both are quickly being left behind by technology advances, big data, and private sector inclusion in modern law enforcement.