A common question for criminal defense lawyers and their clients in Maryland is: Can the Police Search You if They Smell Marijuana in a Car?
This question was recently decided in Joseph Norman, Jr., vs. State of Maryland by the Maryland Court of Appeals.
What did the Court Say
The Court held:
“….Where odor of marijuana emanates from vehicle with multiple occupants, law enforcement officer may frisk, i.e., pat down, occupant of vehicle if additional circumstance or circumstances give rise to reasonable articulable suspicion that occupant is armed and dangerous….. Stated otherwise, for law enforcement officer to have reasonable articulable suspicion to frisk one of multiple occupants of vehicle from which odor of marijuana is emanating, totality of circumstances must indicate that occupant in question is armed and dangerous. Odor of marijuana alone emanating from vehicle with multiple occupants does not give rise to reasonable articulable suspicion that vehicle’s occupants are armed and dangerous and subject to frisk.”
Facts of the Case
From the testimony of the State Trooper, he indicated that on March 22, 2015 he stopped a vehcile in Somerset County Maryland for an inoperable right taillight. In Maryland, any violation of the Maryland Traffic laws or Transportation Article can be a basis for a traffic stop. The only requirement the police need is “reasonable articulable suspicion” that a crime has been committed or is being committed. The rear brake light, which is required to function, would be a violation of the Maryland traffic laws.
Once the Trooper stops the vehicle and upon approach to the vehicle and making contact with the driver, not Norman, the Trooper detected the odor of marijuana. In Maryland, although marijuana has been “decriminalized” for small amounts, the odor still creates probable cause to search a vehicle. See Robinson v. State where it was held by the Court of Appeals,
“….that law enforcement officer has probable cause to search vehicle where law enforcement officer detects odor of marijuana emanating from vehicle, as marijuana in any amount remains contraband, notwithstanding decriminalization of possession of less than ten grams of marijuana; and odor of marijuana gives rise to probable cause to believe that vehicle contains contraband or evidence of crime. There was probable cause to search vehicles in question, based on law enforcement officers having detected odor of marijuana coming from vehicles that Petitioners had been driving or in possession of.”
The Trooper in the Norman case smelled the odor of marijuana and asked the three occupants to exit the vehicle. Norman was not the driver but merely a front seat passenger in the vehicle. Before searching the vehicle the Trooper frisked the occupants of the vehicle, which is a pat down of the exterior of each individual. The officer does not lift up any clothing or reach into pockets or other areas of the individual during a pat down.
When the Trooper frisked Mr. Norman, the Trooper testified he felt what seemed like, “large quantities of some foreign objects in his pants.” Saying that it felt like what seemed like plastic or cellophane-covered individually packaged bags of drugs in Norman’s pant pocket. They continued to feel the pant pocket of Norman and then shook the pant pocket with led to a bag a marijuana dropping to the ground. The passengers were arrested and further drugs were found on Norman and some illegal substances found in the vehicle.
The Court Stated in their ruling:
“To be sure, upon detecting an odor of marijuana emanating from a vehicle with multiple occupants, a law enforcement officer may ask all of the vehicle’s occupants to exit the vehicle; call for backup if necessary; detain the vehicle’s occupants for a reasonable period of time to accomplish the search of the vehicle; and search the vehicle for contraband and/or evidence of a crime. However, Terry has never been construed to authorize a routine frisk of every person in a vehicle without reasonable articulable suspicion that the person is armed and dangerous. See Sellman, 449 Md. at 545, 144 A.3d at 782. Where, in addition to the odor of marijuana, another circumstance or other circumstances are present giving rise to reasonable articulable suspicion that an occupant is armed and dangerous, a law enforcement officer may frisk an occupant of a vehicle with multiple occupants prior to searching the vehicle.”
The Court went on the say:
“Applying our holding to this case’s facts, we conclude that the Trooper Dancho lacked reasonable articulable suspicion to frisk Norman. Trooper Dancho initiated a traffic stop of a vehicle with an inoperable taillight. The vehicle had three occupants: Robinson (the driver), Norman (who was the in the front passenger seat), and Braham (who was in the backseat). Trooper Dancho detected a strong odor of fresh marijuana emanating from the vehicle. Trooper Dancho ordered Robinson, Norman, and Braham to exit the vehicle. Trooper Dancho first frisked Robinson, the driver, and did not find any weapons or drugs. Trooper Dancho then frisked Norman, and found a bag of marijuana. Finally, Trooper Dancho frisked Braham, and did not find any weapons or drugs. After frisking all three of the vehicle’s occupants, Trooper Dancho searched the vehicle, and found a grinder with traces of marijuana, as well as a small amount of marijuana in the dashboard’s center compartment, above the gear shift. Trooper Dancho arrested and searched Norman, and found a second bag of marijuana. Contrary to the myriad of cases discussed above, Trooper Dancho’s testimony is devoid of a description of any circumstance that, prior to the frisk, gave rise to reasonable articulable suspicion that Norman was armed and dangerous; prior to the frisk, all that Trooper Dancho knew was that he detected an odor of marijuana emanating from the vehicle. For example, Trooper Dancho did not testify that
- Norman made furtive movements,
- moved around inside the vehicle, or otherwise behaved suspiciously;
- that Norman attempted to flee;
- that there were any bulges in Norman’s pockets;
- that Norman’s clothing was baggy, large, or otherwise easily able to conceal a weapon;
- that Norman’s hands were not visible;
- that Norman appeared nervous;
- that Norman provided a fake name or false identification;
- that Norman said something that was either false or inconsistent with something that another one of the vehicle’s occupants had said;
- that Norman was hostile, argumentative, or otherwise uncooperative;
- that Norman failed to comply with Trooper Dancho’s instructions;
- that Norman had a criminal record or was known to be violent or carry a gun; or
- even that the traffic stop took place in a high-crime area and/or an area that was known for drug activity or gun violence.
To the contrary, Trooper Dancho testified that he “patted down Norman for weapons for safety as [Norman] was standing as [he was] searching the vehicle.”
Again, we do not endorse a blanket ability to conduct frisks incident to the search of a vehicle. Of course, the circumstances that it was nighttime at the time of the traffic stop, and that there were three people in the vehicle, are circumstances that are to be considered in assessing whether a law enforcement officer has reasonable articulable suspicion to conduct a frisk. In this case, before conducting the frisk, Trooper Dancho called for backup, and two more troopers arrived; thus, at the point that Norman was frisked, the vehicle’s occupants no longer outnumbered the law enforcement officers. More importantly, Trooper Dancho did not testify that these factors caused him to believe that Norman was armed and dangerous. Simply put, at the time of the frisk, there were insufficient circumstances giving rise to reasonable articulable suspicion that Norman was armed and dangerous to justify the frisk.”
Attorney Randolph Rice is a Maryland criminal defense lawyer. He is a former Assistant State’s Attorney for Baltimore County. Mr. Rice is ranked by Super Lawyers, Avvo 10 out of 10 Superb Lawyer and Lead Counsel. Contact his office if you’ve been charged with a drug crime in Maryland at 410.288.2900.