In re: D.D. ( 2022 )

In re: D.D., No. 27, September Term, 2021. Opinion by Biran, J.
FOURTH AMENDMENT – SEARCHES AND SEIZURES – INVESTIGATORY
DETENTIONS – REASONABLE SUSPICION BASED ON THE ODOR OF
MARIJUANA – D.D., a juvenile, and his four companions were detained by police
officers after the officers smelled the odor of marijuana coming from the group. While
frisking D.D. for weapons, one of the officers discovered a loaded gun in D.D.’s waistband.
After being charged with firearms offenses, D.D. moved to suppress the gun. The Court of
Appeals held that the odor of marijuana gives rise to reasonable suspicion that criminal
activity may be afoot, and thus provides the basis for a brief investigatory detention.
Possession of 10 grams or more of marijuana remains a criminal offense in Maryland, and
the odor of marijuana, therefore, remains evidence of a crime. Although that odor, without
more, does not provide probable cause to arrest a person for a criminal possession of
marijuana, it does meet the less stringent standard of reasonable suspicion necessary to
justify an investigatory stop. This distinction makes sense, given the differing level of
intrusion associated with an arrest compared to an investigative detention. Thus, the Court
held that the initial detention of D.D., based solely on the odor of marijuana, did not violate
the Fourth Amendment.
FOURTH AMENDMENT – SEARCHES AND SEIZURES – PAT-DOWN FOR
WEAPONS – REASONABLE SUSPICION THAT THE SUSPECT IS ARMED AND
DANGEROUS – The Court of Appeals held that the officer who frisked D.D. had
reasonable suspicion that D.D. was armed and dangerous, based on the totality of the
circumstances. The factors supporting reasonable suspicion included the evasive behavior
and body language of D.D. and his companions, the discovery of what was claimed to be
a BB gun on one of the other young men in the group, D.D.’s baggy clothing, the officers’
smelling the odor of marijuana, their concern that the group was trespassing, and the fact
that the officers were outnumbered five to two.
Circuit Court for Prince George’s County
Case No. JA-19-0409
Argued: January 6, 2022
IN THE COURT OF APPEALS
OF MARYLAND
No. 27
September Term, 2021
IN RE: D.D.
*Getty, C.J.
*McDonald
Watts
Hotten
Booth
Biran
Raker, Irma S.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Biran, J.
Watts, J., concurs.
Hotten and Raker, JJ., dissent.
Filed: June 21, 2022
*Getty, C.J., and McDonald, J., now Senior Judges,
participated in the hearing and conference of this
Pursuant to the Maryland Uniform Electronic Legal Materials case while active members of this Court; after being
Act (§§ 10-1601 et seq. of the State Government Article) this recalled pursuant to Maryland Constitution, Article
document is authentic.
IV, Section 3A, they also participated in the decision
2023-01-17 10:48-05:00 and adoption of this opinion.
Gregory Hilton, Clerk
In 2014, the Maryland General Assembly decriminalized possession of less than
10 grams of marijuana. However, the Legislature did not legalize marijuana possession.
Rather, possession of less than 10 grams of marijuana currently is a civil offense punishable
by fines and other remedies, and possession of more than 10 grams of marijuana remains
a criminal offense.
In the aftermath of this partial decriminalization, this Court has issued several
opinions concerning warrantless searches and seizures based on the odor of marijuana. The
most recent of these cases, Lewis v. State, 470 Md. 1 (2020), involved a search incident to
an arrest, where the probable cause for the arrest was based solely on the fact that officers
smelled marijuana on the defendant. We held that the odor of marijuana on a person,
without more, does not provide probable cause to believe that the person is in possession
of a criminal amount of the drug. Therefore, the officers lacked probable cause to arrest the
defendant, and the evidence found in the search incident to that arrest had to be suppressed.
In this case, we consider whether to extend the holding in Lewis to an investigatory
detention, which requires a showing of reasonable suspicion to believe that criminal
activity may be afoot – a standard that is significantly less stringent than probable cause.
That is, we must decide whether the odor of marijuana, by itself, provides reasonable
suspicion to support an investigatory detention.
On November 15, 2019, two police officers stopped a group of five young men as
the group was getting ready to leave an apartment building in Capitol Heights, Maryland.
D.D., the Respondent/Cross-Petitioner before us, was one of the five members of the group.
He was 15 years old at the time. The officers had been called to the building based on a
complaint involving the odor of marijuana. The officers smelled a strong odor of marijuana
coming from the group of young men and directed them to sit down, thus seizing them for
purposes of the Fourth Amendment. The young men would not tell the officers where they
lived, and D.D., in particular, exhibited behavior that one of the officers believed was
“evasive,” suggesting to the officer that D.D. might be armed. The officers subsequently
began patting down the members of the group for weapons. One of the officers found a
suspected handgun (possibly a BB gun) in the waistband of one of D.D.’s companions. The
other officer then frisked D.D. and found a loaded gun in D.D.’s waistband. A delinquency
petition subsequently was filed in the Circuit Court for Prince George’s County charging
D.D. with firearms offenses.
D.D. moved to suppress the gun, arguing that his initial detention and subsequent
frisk both violated the Fourth Amendment. The circuit court, sitting as the juvenile court,
denied D.D.’s suppression motion and found him involved as to the charged offenses. D.D.
appealed the juvenile court’s denial of his suppression motion.
The Court of Special Appeals reversed, holding that the odor of marijuana, without
more, does not provide reasonable suspicion of possession of a criminal amount of
marijuana. Thus, the intermediate appellate court held that the investigatory detention of
D.D., which was based solely on the odor of marijuana, violated the Fourth Amendment.
Having ruled that the gun should have been suppressed due to the invalid detention, the
Court of Special Appeals did not decide whether the frisk also was impermissible.
We hold that the odor of marijuana provides reasonable suspicion of criminal
activity sufficient to conduct a brief investigatory detention. Thus, the officers’ initial stop
2
of D.D. did not violate the Fourth Amendment. We also conclude that the discovery of a
weapon on one of D.D.’s companions, combined with the group’s evasive behavior and
other circumstances, provided the officers with reasonable suspicion that D.D. was armed
and dangerous. Thus, the pat-down that led to the discovery of the gun on D.D. also was
reasonable. Accordingly, we will reverse the judgment of the Court of Special Appeals and
hold that the juvenile court properly denied D.D.’s suppression motion.
I
Background
A. The Investigatory Detention and Pat-Down of D.D.
On November 15, 2019, shortly after 7:30 p.m., Sergeant Jeff Walden and Officer
Alexandra Moser of the Prince George’s County Police Department (the “Department”)
responded to a call for service to investigate a group of males in an apartment building
located at 6626 Ronald Road in Capitol Heights, Maryland. The call was based on a
complaint of “loud music and the smell of marijuana” coming from the basement of the
building.
After opening the front door of the apartment building, the officers saw a group of
five young men walking up the stairs from the basement. The officers “smelled a strong
odor of marijuana” coming from the group. Sergeant Walden – a 21-year veteran of the
Department – stopped the group and directed them to “have a seat” on the stairs. The young
men were wearing baggy clothes, and D.D. was wearing a “big puffy jacket.” There were
two sets of stairs leading away from the landing where the officers were located when they
entered the building and stopped the group. The stairs to the left of the officers led up to
3
the next level of the building. The stairs to the right led down to the basement.1 After
Sergeant Walden told the young men to sit down, four of the members of the group sat
down on the ascending staircase. The young man later identified as D.D. 2 was the only
member of the group who sat down on the descending staircase.
According to Sergeant Walden, he and Officer Moser began their discussion with
the young men by asking, “[W]ho lives here?” The officers received no response. None of
the members of the group “could provide any identification of where they lived.” When
Sergeant Walden specifically asked D.D. where he lived, D.D. “shrugged his shoulders and
didn’t say anything.” When Officer Moser asked D.D. the same question, D.D. replied “my
dick.” The other members of the group were “snickering, laughing, very carefree, [and] not
cooperative.” Sergeant Walden noticed that D.D. kept turning away from him and “seemed
to be evasive,” which, based on Sergeant Walden’s “training and knowledge,” is “a sign
that you could be carrying a weapon.” Sergeant Walden also was concerned because he
could not “really see [D.D.’s] hands.” According to Sergeant Walden, D.D. “would speak
to me, but I can’t see his whole body language, I can’t see what he’s doing.”
Because of the “odor of marijuana,” the group’s “evasive body language,” and the
fact that there were “five of them in baggy clothes” in a place “where they could run out
the door,” Sergeant Walden was concerned that one of the group members might be in
possession of a weapon and “wanted to feel safe that there was nobody that was armed at
1
Although it is not explicit in the record, we infer that it was this set of stairs that
the young men were ascending as the officers entered the building.
2
In this opinion, we refer to D.D. and other juveniles by their initials.
4
the time.” The officers told the group members that they would each be frisked. At that
point, the officers were investigating the young men for the crimes of trespassing and
possession of controlled dangerous substances.
Officer Moser first conducted a pat-down of one of D.D.’s companions. As she did
so, Officer Moser felt what she believed to be a handgun inside the waistband of the
subject’s pants. Officer Moser then placed the young man in handcuffs. At that point,
Sergeant Walden moved to assist Officer Moser and stood in front of the door because
“through [his] training and knowledge and understanding” he “knew as soon as she put
him in handcuffs that she had recovered a weapon.” After she placed the young man in
handcuffs, Officer Moser conducted a more thorough pat-down and removed the suspected
handgun from the subject’s waistband.
After securing the group member with the suspected handgun and placing him to
the side, Sergeant Walden turned his attention to D.D. Sergeant Walden “had [D.D.] stand
up, place his hands on top of his head and … step against the wall.” Sergeant Walden then
“started a pat-down … and as soon as [he] went to the waistband, which is the first place
that [he] went, [he] could feel the butt of a handgun in his waistband.” Sergeant Walden
then placed D.D. in handcuffs “so he wouldn’t be able to reach for it or fight or anything.”
From D.D.’s waistband, Sergeant Walden retrieved a loaded nine millimeter handgun.
When asked to explain “how officers are trained to respond when they’re
outnumbered,” Sergeant Walden responded:
At first you’re in a terrible disadvantage. We were taught in the academy, it’s
basic, you’d want to also go with back-up and you shouldn’t handle any call
by yourself.
5
But there are times where you’re put in that position to where there are
several people coming at you, so you have to get the advantage. And one of
the first concerns is a weapon that they could use against you.
And my first concern was one of them having a weapon. And there was five
of them and they were right by a door where they could run out the door, plus
the odor … of marijuana, that there was illegal drug activity there, the fact
that nobody could provide any identification that they live inside that
building.
So the first thing we want to do is secure them and make sure that they don’t
have any weapons on them. Once we found the weapon on them, then they
were secured and handcuffed.
B. The Juvenile Court’s Ruling
On November 18, 2019, a delinquency petition was filed in the Circuit Court for
Prince George’s County charging D.D. with possession of a regulated firearm by a person
under the age of 21 and two other firearms-related offenses. On December 13, 2019, D.D.,
through counsel, filed a motion to suppress the handgun recovered from his waistband. The
circuit court, sitting as the juvenile court, held a hearing on D.D.’s motion on December
17, 2019. The State called one witness, Sergeant Walden, who testified to the facts set forth
above.
D.D. called one witness, D.A., another juvenile who was in the group of five. D.A.
testified that, after he and the others encountered the officers as they walked up the stairs
from the basement, the officers immediately told them to sit down. According to D.A., the
“first thing they asked was does anybody have dope, where’s the dope.” The group
responded that they had no drugs. The male officer then asked them if there was anything
they wanted to tell him about. The group said that there was not, but D.A. told the officer
6
that he had a “funnel” on him, which was “not a drug.”3 After that, according to D.A., the
officers “were like okay, we’re going to search everybody.” D.A. acknowledged that he
and the others had been smoking marijuana in the basement prior to their encounter with
the officers. D.A. also stated that none of the five young men lived in the building and
confirmed that, after the female officer frisked one of the other young men, “J.”, she
removed a weapon from J.’s waistband. According to D.A., after the female officer felt the
weapon, J. “called out” that he had a BB gun. D.A. confirmed that the female officer
discovered the alleged BB gun on J. before the male officer began frisking D.D.
After hearing argument from counsel for D.D. and the State, the juvenile court
denied D.D.’s suppression motion:
The Court finds there’s … reasonable articulable suspicion that the
Respondent was engaged in criminal activity, a lot of facts as they were
outlined in the testimony, it was … 7:00 in November…. It was … cold. That
there was a strong odor of marijuana. The Court credits the testimony of the
officer regarding the response from some of the males in response to his
questions, that the young man was evasive. The Court also credits the
officer’s testimony … that he asked where he lived and the, they responded,
replied, you know, at my dick. So the Court finds there’s a reasonable
articulable suspicion for criminal activity. The Court is going to deny the
motion to suppress.
(Paragraph breaks omitted.)
On January 7, 2020, the juvenile court found that D.D. was involved as to all counts
charged in the delinquency petition. After holding a disposition hearing on February 7,
3
D.A. did not provide any further explanation about what a “funnel” is. In its brief,
the State tells us that “it appears [D.A.] was referring to a tobacco leaf product used for
rolling cigarettes.”
7
2020, the juvenile court ordered D.D. placed on probation/protective supervision with
probation to be terminated on November 30, 2020.
C. Appeal
The Court of Special Appeals reversed the juvenile court’s denial of D.D.’s
suppression motion. In re D.D., 250 Md. App. 284 (2021). Although the Court of Special
Appeals acknowledged that this Court’s opinion in Lewis “addressed probable cause, a
higher standard than reasonable suspicion,” it observed that reasonable suspicion “still is
tied to suspicion of criminal conduct.” Id. at 300-01. The intermediate appellate court
concluded that “because the ‘odor of marijuana alone does not indicate the quantity, if any,
of marijuana in someone’s possession,’ Lewis, 470 Md. at 27, 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.” Id. at 301. Because the officers detained D.D. and
his companions based solely on the odor of marijuana, the Court of Special Appeals held
that the officers lacked reasonable suspicion for the stop. Id. Accordingly, the Court
concluded that the seizure was unreasonable under the Fourth Amendment and that the
juvenile court erred in denying D.D.’s suppression motion. Id. Having concluded that
suppression of the gun was required due to the unconstitutionality of the initial detention,
the Court of Special Appeals did not decide whether the subsequent frisk of D.D.
independently violated the Fourth Amendment.
The State filed a petition for certiorari in this Court, seeking review of the following
question: “Does the scent of marijuana provide reasonable suspicion to conduct an
investigatory stop to determine if someone possesses a criminal amount of marijuana or
8
could be cited for civil violations of marijuana laws?” D.D. subsequently filed a conditional
cross-petition presenting the question: “Assuming, arguendo, that the stop was
constitutional, was the frisk unlawful because the police lacked reasonable suspicion to
believe that D.D. was armed and dangerous?” We granted both petitions. In re D.D., 475
Md. 701 (2021).
II
Standard of Review
In reviewing a trial court’s ruling concerning the admissibility of evidence allegedly
seized in violation of the Fourth Amendment, we accept the trial court’s findings of fact
unless they are clearly erroneous. Grant v. State, 449 Md. 1, 31 (2016). We independently
appraise the ultimate question of constitutionality by applying the relevant law to the facts
de novo. See id.Where “there is any competent evidence to support the factual findings below, those
findings cannot be held to be clearly erroneous.” Givens v. State, 459 Md. 694, 705 (2018)
(internal quotation marks and citation omitted). We review “the trial court’s findings of
fact, the evidence, and the inferences that may be drawn therefrom in the light most
favorable to the party who prevails on the issue that the defendant raises in the motion to
suppress.” Robinson v. State, 451 Md. 94, 108 (2017) (citation omitted).
9
III
Discussion
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.
U.S. Const. amend. IV.
Under the Fourth Amendment, “subject only to a few specifically established and
well-delineated exceptions, a warrantless search or seizure that infringes upon the protected
interests of an individual is presumptively unreasonable.” Grant, 449 Md. at 16-17(footnote omitted). “The default rule requires that a seizure of a person by a law
enforcement officer must be supported by probable cause, and, absent a showing of
probable cause, the seizure violates the Fourth Amendment.” Crosby v. State, 408 Md. 490,
505 (2009) (citation omitted). However, “a law enforcement officer may conduct a brief
investigative ‘stop’ of an individual if the officer has a reasonable suspicion that criminal
activity is afoot.” Id. at 505-06 (quoting Terry v. Ohio, 392 U.S. 1, 17 (1968)). In addition,
a police officer may conduct “a reasonable search for weapons for the protection of the
police officer, where [the officer] has reason to believe that [the officer] is dealing with an
armed and dangerous individual, regardless of whether he [or she] has probable cause to
arrest the individual for a crime.” In re David S., 367 Md. 523, 533 (2002) (quoting Terry,
392 U.S. at 27).
10
A. Reasonable Suspicion and the Odor of Marijuana
D.D. argues that this Court’s opinion in Lewis v. State is dispositive of the first issue
presented by this case. D.D.’s position is that “[b]ecause the odor of marijuana alone is not
indicative of criminal activity and an officer must have evidence of a crime in order to
conduct an investigatory stop, it necessarily follows that the odor of marijuana alone does
not provide reasonable suspicion to conduct a Terry stop.”
The State argues that the Court of Special Appeals erred when it held that the odor
of marijuana “cannot, by itself, provide reasonable suspicion that the person is in
possession of a criminal amount of marijuana or otherwise involved in criminal activity.”
D.D., 250 Md. App. at 301. The State emphasizes that the standard for reasonable suspicion
is less demanding than that for probable cause. Thus, according to the State, the Court of
Special Appeals’ decision in this case improperly “elevates the standard for reasonable
suspicion, requiring police at the nascent stage of an investigation to have certainty that
criminal activity is afoot before being able to conduct an investigatory stop meant to
confirm or dispel that suspicion.” We agree with the State.
1. The Odor of Marijuana and Probable Cause
Prior to the General Assembly’s partial decriminalization of marijuana possession
in 2014, possession of any amount of marijuana generally was illegal.4 As a result, before
2014, the odor of marijuana gave law enforcement officers probable cause to search a
vehicle, see, e.g., Wilson v. State, 174 Md. App. 434, 441-42 (2007), and the odor of
4
Maryland adopted a medical marijuana program in 2013. See H.B. 1101, 2013
Leg., 433rd Sess. (Md. 2013).
11
marijuana particularized to a person provided probable cause for an arrest. See McGurk v.
State, 201 Md. App. 23, 52 (2011) (citation omitted).
Currently, the use or possession of less than 10 grams of marijuana is a “civil
offense” punishable by a fine not exceeding $100 for a first offense, increasing to a fine of
$250 for a second offense, and $500 for a third or subsequent offense. Md. Code Ann.,
Crim. Law (CR) § 5-601(c)(2)(ii) (2002, 2021 Repl. Vol.). Smoking marijuana in a public
place is a civil offense punishable by a fine not exceeding $500. Id. § 5-601(c)(4). The “use
or possession” of 10 grams or more of marijuana remains a criminal offense, specifically a
misdemeanor punishable by imprisonment not exceeding six months or a fine not
exceeding $1,000, or both. Id. § 5-601(c)(2).5
The partial decriminalization of marijuana changed the legal landscape
significantly, leading to a series of decisions by the Court of Special Appeals and this Court
that considered whether and how the odor of marijuana continues to provide probable cause
to conduct warrantless searches and seizures in Maryland.
The first of these cases was Bowling v. State, 227 Md. App. 460 (2016). Bowling
involved a traffic stop that subsequently resulted in a K-9 alert indicating that the vehicle
contained a controlled dangerous substance. Id. at 462-65. As such, the case dealt with the
automobile exception to the warrant requirement, also known as the “Carroll doctrine,”
which allows an officer to “search an automobile, without a warrant, if he or she has
5
The General Assembly has provided exceptions to this enforcement regime for
those who have obtained marijuana “directly or by prescription or order from an authorized
provider acting in the course of professional practice.” CR § 5-601(a)(1).
12
probable cause to believe it contains evidence of a crime or contraband goods.” Id. at 468
(citing Carroll v. United States, 267 U.S. 132 (1925); Wyoming v. Houghton, 526 U.S. 295,
300 (1999)). The Court of Special Appeals noted that “Maryland appellate courts
consistently have held that the detection of the odor of marijuana by a trained drug dog
establishes probable cause to conduct a warrantless Carroll doctrine search of a vehicle,”
before going on to consider “whether the recent Maryland law, which decriminalized the
possession of less than 10 grams of marijuana and made it a civil offense, changes this
analysis.” Id. at 469 (citations omitted).
The Court of Special Appeals held that the partial decriminalization did “not change
the established precedent that a drug dog’s alert to the odor of marijuana, without more,
provides the police with probable cause to authorize a search of a vehicle pursuant to the
Carroll doctrine.” Id. at 476. Important to the intermediate appellate court’s holding was
the fact that “although the Maryland General Assembly made possession of less than
10 grams of marijuana a civil, as opposed to a criminal, offense, it is still illegal to possess
any quantity of marijuana, and marijuana retains its status as contraband.” Id.
Robinson v. State, 451 Md. 94 (2017), also concerned the automobile exception to
the warrant requirement, but involved the smell of marijuana by an officer, not a drug dog.
In Robinson, this Court analyzed the “Fourth Amendment jurisprudence of the Supreme
Court, Bowling, and authority from other jurisdictions that have addressed the
decriminalization – or, in one instance, the legalization – of marijuana,” and held that “a
law enforcement officer has probable cause to search a vehicle where the law enforcement
officer detects an odor of marijuana emanating from the vehicle.” Id. at 125. Similar to
13
Bowling, our holding in Robinson was based largely on the idea that “[d]ecriminalization
is not the same as legalization” and that “[d]espite the decriminalization of possession of
less than ten grams of marijuana, possession of marijuana in any amount remains illegal in
Maryland.” Id. (emphasis in original). We further explained:
[A]t oral argument and in its brief, the State argued that, separate from the
odor of marijuana providing probable cause to believe that a vehicle contains
contraband, the odor of marijuana provides probable cause to believe that a
vehicle contains evidence of a crime. Put simply, we agree. Despite the
decriminalization of possession of less than ten grams of marijuana, the odor
of marijuana remains evidence of a crime. The odor of marijuana emanating
from a vehicle may be just as indicative of crimes such as the possession of
more than ten grams of marijuana, possession of marijuana with the intent to
distribute, or the operation of a vehicle under the influence of a controlled
dangerous substance, as it is of possession of less than ten grams of
marijuana…. [I]t is unreasonable to expect law enforcement officers to
determine, based on odor alone, the difference between 9.99 grams or less of
marijuana and 10 grams of marijuana. In short, possession of ten grams or
more of marijuana, crimes involving the distribution of marijuana, and
driving under the influence of a controlled dangerous substance have not
been decriminalized in Maryland, and, thus, the odor of marijuana emanating
from a vehicle provides probable cause to believe that the vehicle contains
evidence of a crime, and a law enforcement officer may search the vehicle
under such circumstances.
Id. at 133-34.
Just a few months later, in Norman v. State, 452 Md. 373 (2017), we considered
whether the odor of marijuana emanating from a vehicle with multiple passengers alone
could serve as “reasonable articulable suspicion that the vehicle’s occupants are armed and
dangerous and subject to frisk.” Id. at 412. We answered that question in the negative,
reasoning that
for a law enforcement officer to frisk, i.e., pat down, an individual, there must
be reasonable articulable suspicion that the individual is armed and
dangerous, even where a law enforcement officer detects the odor of
14
marijuana emanating from a vehicle. We hold that, where an odor of
marijuana emanates from a vehicle with multiple occupants, a law
enforcement officer may frisk an occupant of the vehicle if an additional
circumstance or circumstances give rise to reasonable articulable suspicion
that the occupant is armed and dangerous. Stated otherwise, for a law
enforcement officer to have reasonable articulable suspicion to frisk one of
multiple occupants of a vehicle from which an odor of marijuana is
emanating, the totality of circumstances must indicate that the occupant in
question is armed and dangerous.
Id. at 411-12. Thus, while the smell of marijuana can justify a quick pat-down of a vehicle’s
occupants if combined with some other pertinent circumstance(s), the odor, in and of itself,
is insufficient to give rise to reasonable suspicion that a specific individual within the
vehicle is armed and dangerous. Id. at 412. The Court stated that Robinson was not
“determinative of the issue at hand,” id. at 409, as “[n]o frisks or searches of persons were
at issue in Robinson, and nowhere in Robinson did this Court imply, one way or the other,
whether a frisk of a person would be permissible based on an odor of marijuana alone
emanating from a vehicle.” Id. at 411.
Next, in Pacheco v. State, 465 Md. 311 (2019), we considered whether the smell of
marijuana in a car, combined with the observation of a “fresh burnt” joint that could not
possibly have contained more than 10 grams of marijuana, provided probable cause
sufficient both to search the car and to arrest, and thereby search, the occupant of the car.
Although we indicated that “the police lawfully searched Mr. Pacheco’s car for contraband
or evidence of the three crimes identified in Robinson,” we observed that it “does not
follow” from the existence of probable cause to search the car that the police “likewise had
the right to search [Pacheco’s] person.” Id. at 330. We explained that “[t]he same facts and
circumstances that justify a search of an automobile do not necessarily justify an arrest and
15
search incident thereto. This is based on the heightened expectation of privacy one enjoys
in his or her person as compared to the diminished expectation of privacy one has in an
automobile. The arrest and search of Mr. Pacheco was unreasonable because nothing in the
record suggests that possession of a joint and the odor of burnt marijuana gave the police
probable cause to believe he was in possession of a criminal amount of that substance.” Id.
at 333-34. Although we noted that, “[i]n a different case, additional facts or testimony
beyond what we have here may well have compelled a different result,” we concluded that
the State had not met its burden to prove that the warrantless arrest and search of the
occupant was reasonable. Id. at 333.
Finally, in Lewis v. State, we held that the odor of marijuana on a person, without
more, does not provide probable cause to arrest the person (and to conduct a search of the
person incident to the arrest). In Lewis, the State based its argument on the fact that, unlike
Pacheco, where the police saw a singular marijuana joint in the car that was suggestive of
a non-criminal offense, the police in Lewis only had the odor of marijuana to go on in
deciding whether to arrest the suspect:
[W]hile the scent of marijuana left unexplained provides probable cause to
believe that a criminal amount may be present, see Robinson, that scent plus
the sighting of a non-criminal amount should diminish suspicion. And
without some other factual basis to conclude that, where there is some
marijuana, there may be more, the inference of criminal possession in
Pacheco simply receded into the constitutionally unreasonable.
Pacheco is, therefore, best understood as a case-specific application of the
totality-of-the-evidence test, and the facts here are different than in Pacheco.
This case does not feature a fact, akin to the less-than-10-gram-cigarette, that
explained the source of the marijuana emanating from Lewis’s person in a
16
way that should have diminished Officer Burch’s probable cause arising
from the scent alone.
Brief of Respondent, Lewis v. State, 2019 WL 8014537, at *47-*48 (Dec. 10, 2019).
We rejected the State’s attempt to distinguish Pacheco, and held that the search of
Lewis incident to his arrest, based solely on the odor of marijuana emanating from his
person, was unreasonable. Lewis, 470 Md. at 27. “Under Pacheco, that information fell
short of supplying the requisite probable cause to conduct that search.” Id. (citing Pacheco,
465 Md. at 333-34). We further explained:
Probable cause to conduct a lawful arrest requires that the arrestee committed
a felony or was committing a felony or misdemeanor in a law enforcement
officer’s presence. Possession of less than ten grams of marijuana is a civil
offense, not a felony or a misdemeanor, therefore law enforcement officers
need probable cause to believe the arrestee is in possession of a criminal
amount of marijuana to conduct a lawful arrest. The odor of marijuana alone
does not indicate the quantity, if any, of marijuana in someone’s possession.
Id. Thus, we held that for the arrest and search of a person “to be supported by probable
cause, the police must possess information indicating possession of a criminal amount of
marijuana.” Id. Because there was no indication in the record suggesting that Lewis
possessed a criminal amount of marijuana, we held that his arrest and search incident to
arrest violated the Fourth Amendment. Id.
2. A Less Stringent Standard: Reasonable Suspicion Versus Probable Cause as
Applied to the Odor of Marijuana following Decriminalization
Lewis does not necessarily control this case because the initial seizure at issue here
(unlike in Lewis) is not an arrest requiring probable cause, but rather is an investigatory
detention requiring reasonable suspicion. While investigatory detentions are seizures
within the meaning of the Fourth Amendment, “the limited nature of a brief investigative
17
stop does not demand a standard as stringent as probable cause.” Crosby, 408 Md. at 506(citation omitted). Rather, to conduct a brief investigatory detention, an officer must have
only reasonable, articulable suspicion that criminal activity may be afoot. Id. at 505-06.
“Reasonable suspicion exists somewhere between unparticularized suspicions and
probable cause.” Sizer v. State, 456 Md. 350, 364 (2017) (citation omitted); see also Stokes
v. State, 362 Md. 407, 415 (2001) (“[M]ere hunches are insufficient to justify an
investigatory stop; for such an intrusion, an officer must have reasonable articulable
suspicion.”) (internal quotation marks and citations omitted). “While there is no litmus test
to define the reasonable suspicion standard,” law enforcement officers must have “a
particularized and objective basis for suspecting the particular person stopped of criminal
activity.” Id. (internal quotation marks and citations omitted); see also Heien v. North
Carolina, 574 U.S. 54, 60 (2014) (reasonable suspicion means “a particularized and
objective basis for suspecting the particular person stopped of breaking the law”) (internal
quotation marks and citation omitted). We have explained that “the level of suspicion
necessary to constitute reasonable, articulable suspicion is considerably less than proof of
wrongdoing by a preponderance of the evidence and obviously less demanding than that
for probable cause.” Graham v. State, 325 Md. 398, 408 (1992) (internal quotation marks
and citations omitted).
The probable cause standard does not require an officer “to rule out a suspect’s
innocent explanation for suspicious facts.” District of Columbia v. Wesby, 138 S. Ct. 577,
588 (2018). The same is true, of course, for the reasonable suspicion standard. See, e.g.,
United States v. Arvizu, 534 U.S. 266, 277 (2002). But, as discussed above, the two
18
standards are not equivalent. Reasonable suspicion is a less stringent standard than
probable cause. That is true “not only in the sense that reasonable suspicion can be
established with information that is different in quantity or content than that required to
establish probable cause, but also in the sense that reasonable suspicion can arise from
information that is less reliable than that required to show probable cause.” Alabama v.
White, 496 U.S. 325, 330 (1990).
Put simply, a particular circumstance or set of circumstances may satisfy the
reasonable suspicion standard but fall short of probable cause. That is precisely the case
with respect to the odor of marijuana. Contrary to D.D.’s argument, decriminalization has
not rendered the odor of marijuana free of all criminal suspicion. Rather, “the odor of
marijuana remains evidence of a crime,” Robinson, 451 Md. at 133, because the use or
possession of 10 grams or more of marijuana remains a criminal offense in Maryland. In
other words, partial decriminalization has reduced the level of certainty associated with the
odor of marijuana on a person from probable cause that the person has committed a crime
to reasonable suspicion that the person has committed a crime or is in the process of
committing a crime.6
6
During the 2022 Legislative Session, the General Assembly passed House Bills 1
and 837. House Bill 1 proposes an amendment to the Maryland Constitution legalizing the
use and possession of cannabis for individuals in Maryland who are at least 21 years old.
The proposed amendment will be on the ballot as part of the 2022 general election. If
Maryland voters ratify the constitutional amendment, the voting results will be sent to the
Governor and, upon his proclamation, the amendment will take immediate effect.
However, the amendment is contingent on the requirement that the General Assembly pass
legislation regarding the use, distribution, possession, regulation, and taxation of cannabis.
Dep’t Legis. Servs., Fiscal and Policy Note, House Bill 837, at 2 (2022 Session), available
at https://perma.cc/3R3S-9XMH. House Bill 837, among other things, addresses the use of
19
It follows that a brief investigatory detention based solely on the odor of marijuana
is reasonable, whereas an arrest (and a search incident to such arrest) is unreasonable if
based solely on the odor of marijuana. The different outcomes make sense, given the
differing levels of intrusiveness of the two Fourth Amendment events. An arrest is the
“most intrusive encounter” that a police officer has with a citizen. Swift v. State, 393 Md.
139, 150 (2006); see also State v. Wells, 859 N.W.2d 316, 326 (Neb. 2015) (observing that
an arrest “involves a highly intrusive or lengthy search or detention”). “[G]enerally, a
display of force by a police officer, such as putting a person in handcuffs, is considered an
arrest.” Longshore v. State, 399 Md. 486, 502 (2007). An investigatory detention to
determine whether criminal activity is afoot “is less intrusive than a formal custodial
arrest[.]” Swift, 393 Md. at 150. It “is limited in duration and purpose and can only last as
long as it takes a police officer to confirm or to dispel his suspicions.” Id.cannabis. Under House Bill 837, persons who are 21 years old or older would be able
legally to possess up to 1.5 ounces of usable cannabis (defined in the legislation as the
“personal use amount”). The use or possession of more than 1.5 ounces but not more than
2.5 ounces of usable cannabis (defined as the “civil use amount”) would be a civil offense
punishable by a fine and other remedies. The use or possession of more than 2.5 ounces of
usable cannabis (like 10 or more grams under current law) would be a misdemeanor
punishable by up to six months of imprisonment, a fine of $1,000, or both. If the
constitutional amendment is ratified, additional legislation will be needed to address the
remaining outstanding issues. See Madeleine O’Neill, Still on Different Paths: Md. House,
Senate disconnected on path to legal cannabis in advance of referendum, The Daily Record
at 1 (June 6, 2022), available at https://perma.cc/F3VJ-CYVK.
We express no opinion concerning the potential impact of the adoption of the
proposed constitutional amendment and the provisions of House Bill 837 on this Court’s
Fourth Amendment jurisprudence.
20
As to an investigatory detention based on the odor of marijuana, if the officer does
not quickly obtain additional information that provides probable cause to believe that the
person has committed a violation of CR § 5-601(c)(2) or another criminal offense, the
officer must allow the person to go on their way. 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. See United States v. Sharpe, 470 U.S. 675, 685 (1985) (observing that “the brevity
of the invasion of the individual’s Fourth Amendment interests is an important factor in
determining whether the seizure is so minimally intrusive as to be justifiable on reasonable
suspicion”) (internal quotation marks and citation omitted). Thus, if a police officer stops
a person based on the smell of marijuana, the officer must “diligently pursue[] a means of
investigation that [is] likely to confirm or dispel their suspicions quickly[.]” Id. at 686(citations omitted). There is no particular amount of time that is per se reasonable or
unreasonable. Whether an investigative detention that begins as reasonable based on the
odor of marijuana becomes unreasonable because of its length will depend on the particular
circumstances of each case. However, we emphasize that such detentions must be brief,
especially in light of the reality that many individuals who choose to possess marijuana do
so under the criminal threshold of 10 grams.
The Court of Special Appeals reversed the juvenile court’s suppression ruling
because it believed Lewis required that outcome. Although the intermediate appellate court
acknowledged that “Lewis addressed probable cause, a higher standard than reasonable
21
suspicion,” D.D., 250 Md. App. at 300, it reasoned that Lewis’s holding rendered D.D.’s
investigatory detention unconstitutional “because an officer cannot tell by the smell of
marijuana alone that a person is involved in criminal activity.” Id. at 301.
However, Lewis must be read in conjunction with the cases that came before it,
including Robinson. In Robinson, we acknowledged that the odor of marijuana does not
reveal the quantity of marijuana held by a given individual. Yet, we recognized that such
uncertainty does not render the odor of marijuana irrelevant to a criminal investigation. To
the contrary, we stated that, “[d]espite the decriminalization of possession of less than ten
grams of marijuana, the odor of marijuana remains evidence of a crime.” Robinson, 451
Md. at 133.
Notably, in Pacheco and Lewis, we did not call this language in Robinson into
question. Indeed, in Pacheco, we reaffirmed the holding of Robinson, explaining that “the
police lawfully searched Mr. Pacheco’s car for contraband or evidence of the three crimes
identified in Robinson[.]” Pacheco, 465 Md. at 330 (emphasis added). However, we drew
a distinction between the showing necessary to establish probable cause to justify an arrest
and the showing necessary to demonstrate probable cause to search an automobile, given
the different expectations of privacy that apply in those settings. See id. at 333. We further
elaborated on this distinction in Lewis, citing the “evidence of a crime” language from
Robinson and stating that “[a]rresting and searching a person, without a warrant and based
exclusively on the odor of marijuana on that person’s body or breath, is unreasonable and
does violence to the fundamental privacy expectation in one’s body; the same concerns do
not attend the search of a vehicle.” Lewis, 470 Md. at 26.
22
D.D. contends that “cases discuss[ing] how the odor of marijuana provides probable
cause to search a vehicle ... for reasons this Court explained in Lewis, are not instructive
here.” We disagree. In order to accept this proposition, we would need to disclaim
Robinson’s key language quoted above, which we are not prepared to do. There can be no
real dispute that the odor of marijuana still provides evidence of a crime – as we explained
in Robinson – even if it may not rise to the level of probable cause in every situation.
D.D. correctly observes that there are many wholly innocent reasons why someone
might smell of marijuana. However, that does not render the odor of marijuana free of
reasonable suspicion. As Terry itself demonstrates, wholly innocent conduct may provide
reasonable suspicion that criminal activity is occurring or is about to occur.7 In sum,
although the quantum of evidence that the odor of marijuana provides is insufficient to
justify an arrest based on the probable cause standard, it meets the reasonable suspicion
standard necessary to justify a brief investigatory detention. Put another way, under Lewis,
7
In Terry, a police officer saw what he reasonably believed to be three men planning
a daytime store robbery. However, each individual action that the officer observed was
wholly innocent. See Terry, 392 U.S. at 5-7. Two of the men walked up and down a street
in downtown Cleveland separately several times, repeatedly looking into the same store
window. Id. at 6. They also spoke with each other and then with the third man. The third
man then walked away from the two others. Id. The first two men then resumed their
“measured pacing, peering and conferring.” Id. Later, the two men met up with the third
man down the street and the group again conversed. Id. Based on the officer’s observations
of this facially innocent conduct, which indicated to the officer that the men were “casing
a job, a stick-up,” the officer seized Terry and frisked him. Id. at 6-7. The Supreme Court
upheld the frisk, concluding that the officer’s suspicion that Terry might be armed and
dangerous, based on this wholly innocent conduct, was reasonable. See id. at 27-28. The
suspects’ actions were consistent with planning a daytime robbery, and nothing the officer
observed lessened that suspicion. Id. at 28.
23
the officers could not have arrested D.D. or any of the members of the group based solely
on the odor of marijuana, but that does not mean the officers’ suspicion that one or more
of the group might possess at least 10 grams of the drug – based on odor alone – was
unreasonable.8
The distinction in the standards applied in these situations exists, in large part,
because a brief investigatory stop does not raise “the same concerns” as “[a]rresting and
searching a person, without a warrant.” Lewis, 470 Md at 26. Being stopped for a short
amount of time so that an officer can ask a few questions does not do the same “violence
to the fundamental privacy expectation in one’s body” that being placed in handcuffs and
physically searched does. Id. Indeed, it would be peculiar if the odor of marijuana was
sufficient to meet the higher standard of probable cause needed to search a vehicle, but
insufficient to meet the lower standard of reasonable suspicion needed to briefly stop a
person on the street. This Court did not contemplate such an incongruous result in deciding
Robinson, Pacheco, and Lewis.
Extending Lewis’s holding to Terry stops also would be problematic because of its
implications for investigating crimes besides possession of marijuana. In its principal brief,
the State provides several examples:
For instance, … it would be impossible for an officer who sees the
butt of a handgun protruding from a person’s waistband to conduct an
investigatory stop. Just as the odor of marijuana alone cannot tell an officer
8
D.D. did not argue in the juvenile court that the stop was improper because the
officers could not particularize the odor of marijuana to him. He made that argument in the
Court of Special Appeals, but the Court held that the argument was not preserved and
declined to consider it. See D.D., 250 Md. App. at 298. D.D. has not renewed that argument
before us, and therefore we also do not consider it.
24
whether a person possesses a criminal amount of the drug, an officer’s visual
inspection of a handgun cannot definitively say whether the person may
legally possess the firearm. See Crim. Law § 4-101(b) (describing individuals
who may lawfully carry a weapon). If no definitive criminal activity is afoot,
no investigatory stop would be permitted.
The same logic undermines the rationale for any number of stops.
Consider, for example, a traffic stop for excessive window tinting, which the
intermediate appellate court considered in Baez v. State, 238 Md. App. 587(2018). There, the court concluded that an officer had reasonable suspicion
to make an investigatory stop based on the window tint of a vehicle
potentially being in violation of the law. Id. at 597. Because an officer’s
visual inspection of a tinted widow cannot definitively tell whether the tint
exceeds the legal limit, no investigatory stop would be permitted, and
enforcement of that law would necessarily be stymied. The same holds true
for many similar traffic violations.
Taken to extremes, this reasoning could apply to nearly any potential
criminal behavior. People die of natural causes every day. A person standing
over a dead body, therefore, is probably more likely to have witnessed the
person have a fatal heart attack as to have killed the person. Because police
cannot immediately tell whether the witness has committed a criminal act or
come to the aid of the seemingly stricken, an investigatory stop would be out
of the question. Only after police determine that the death was a killing could
they seek to hold the witness. These examples, made possible by the
reasoning below, turn the constitutional inquiry on its head, mistakenly
asking whether “particular conduct is ‘innocent’ or ‘guilty,’” instead of
probing the “the degree of suspicion that attaches to particular types of
noncriminal acts.” Wesby, 138 S. Ct. at 588.
D.D. attempts to distinguish his case from the State’s examples by asserting that
“[t]he key facts in all of [the State’s] proposed hypotheticals – butts of handguns, window
tints, and dead bodies on the ground – include concrete observations made by the officer
that support further investigation. After Lewis, the odor of marijuana alone does not provide
that same type of concrete information that allows an officer to reasonably infer that an
individual is engaged in criminal activity.”
25
D.D.’s argument is unconvincing. An officer’s detection of the odor of marijuana is
also a “concrete observation” that supports further investigation. See Bailey v. State, 412
Md. 349, 379 (2010) (noting marijuana’s “readily identifiable, distinctive odor”); State v.
Secrist, 589 N.W.2d 387, 391 (Wis. 1999) (referring to the “unmistakable odor of
marijuana”).
We agree with the State that accepting D.D.’s argument could significantly hamper
the legitimate investigation of criminal activity in Maryland. As stated above, law
enforcement officers do not need to rule out innocent explanations for suspicious conduct
before conducting a Terry stop. 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 whether criminal activity is afoot. 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.” Adams v. Williams, 407 U.S. 143, 145 (1972)
(citation omitted). When a police officer smells marijuana on someone, it is certainly the
case that the person may possess less than 10 grams of marijuana or they may possess no
marijuana at all. But it also is possible that the person is presently in possession of 10 or
more grams of marijuana. Under D.D.’s reasoning, police officers would be powerless to
conduct a brief investigatory detention to try to determine which category the person is in.
That is not what the Fourth Amendment requires. To the contrary, the odor of marijuana
26
permits an officer to briefly detain an individual to investigate whether that person has
committed a criminal offense.9
Our conclusion differentiating between reasonable suspicion and probable cause
with respect to the odor of marijuana is consistent with the rationales of cases from several
other jurisdictions concerning the odor of marijuana in a post-decriminalization context.
See, e.g., People v. Looby, 68 V.I. 683, 697-98 (2018) (“[A]lthough a person in possession
of an ounce or less of marijuana may now avoid criminal penalization, the presence or
absence of criminal penalization does not disturb our constitutional frisk and seizure
inquiry. This is because reasonable suspicion – the predicate for a valid stop and frisk –
does not depend on whether the People proved beyond a reasonable doubt that a defendant
is ‘guilty’; instead, reasonable suspicion is a matter of constitutional and evidentiary
concern turning on whether an officer reasonably concludes that evidence of contraband or
of a crime may be present…. [T]he scent of marijuana (which remains contraband subject
to seizure in this Territory) alone may be sufficient to establish reasonable suspicion or
even ‘probable cause’ to conduct further investigation into possible criminal acts or
evidence of contraband.”); In re O.S., 112 N.E.3d 621, 634 (Ill. App. Ct. 2018) (concluding
“that case law holding that the odor of marijuana is indicative of criminal activity remains
9
The State also argues that, if an officer smells the odor of marijuana on a person,
the officer is permitted to briefly detain the person to investigate whether the person is in
possession of a quantity of marijuana that would subject the person to a civil penalty, i.e.,
less than 10 grams. Because we conclude that the odor of marijuana provides reasonable
suspicion of a criminal offense, thereby justifying the investigatory detention that occurred
in this case, we need not address the State’s alternative argument concerning investigation
and enforcement of the civil penalties under CR § 5-601(c)(2)(ii).
27
viable notwithstanding the recent decriminalization of the possession of not more than 10
grams of marijuana” and “find[ing] that the search and seizure of respondent did not run
afoul of the fourth amendment”; “Given that Illinois prohibits the knowing possession of
marijuana and prohibits operating a vehicle while impaired and under the influence of
marijuana, the distinctive odor of marijuana was indicative of criminal activity and
provided the officers with reasonable suspicion to believe that criminal activity was
afoot.”); People v. Zuniga, 372 P.3d 1052, 1059 (Colo. 2016) (although state law permits
possession of an ounce or less of marijuana, because other marijuana-related activities
remain unlawful, “the odor of marijuana is still suggestive of criminal activity”); State v.
Senna, 79 A.3d 45, 50-51 (Vt. 2013) (medical marijuana exemption from prosecution for
marijuana possession “does not undermine the significance of the smell of marijuana as an
indicator of criminal activity”).
To be sure, courts in several other states have held or suggested that, given changes
in their laws regarding marijuana, the odor of the drug alone does not provide reasonable
suspicion to conduct an investigatory stop. See, e.g., Commonwealth v. Meneide, 52 N.E.3d
167, 171 n.4 (Mass. App. Ct. 2016) (“The smell of burnt or unburnt marijuana, standing
alone, no longer provides either reasonable suspicion or probable cause.”); State v. Moore,
488 P.3d 816, 821 (Or. Ct. App. 2021) (although a “very strong” odor of unburnt marijuana
may be consistent with criminal activity, because adults may legally possess certain
quantities of marijuana in Oregon, the odor by itself does not provide reasonable suspicion
of an unlawful amount of marijuana); People v. Brukner, 25 N.Y.S.3d 559, 572 (N.Y. City
Ct. 2015) (concluding that “the mere odor of marihuana emanating from a pedestrian,
28
without more, does not create reasonable suspicion that a crime has occurred”) (emphasis
deleted); cf. State v. Francisco Perez, 239 A.3d 975, 985 (N.H. 2020) (odor of marijuana
“may serve as a basis for a reasonable suspicion that activities involving marijuana, that
are indeed criminal, are underway, when considered among the totality of circumstances”)
(internal quotation marks and citation omitted). However, we find the reasoning of cases
such as Looby and O.S. more persuasive, as well as more consistent with our body of
marijuana-related Fourth Amendment jurisprudence.
Here, the juvenile court correctly ruled that the initial seizure of D.D. and his
companions was permissible under the Fourth Amendment. The court credited Sergeant
Walden’s testimony that the officers smelled the strong odor of marijuana when they
encountered the group upon entering the building.10 Directing the group to stop and sit on
the steps while the officers briefly investigated whether their behavior constituted a
criminal offense was reasonable under the Fourth Amendment. It was a relatively minor
intrusion on the group’s freedom of movement. If no probable cause of a criminal offense
had developed, the group would have been free to go on its way in short order. See Illinois
v. Wardlow, 528 U.S. 119, 126 (2000) (“If the officer does not learn facts rising to the level
of probable cause, the individual must be allowed to go on his way.”); Trott v. State, 473
Md. 245, 269 (in case involving seizure of a defendant in his car, explaining that, if the
10
The parties believe that this case concerns the odor of marijuana alone – i.e.,
whether the odor provides reasonable suspicion to conduct a brief investigatory detention.
The Court of Special Appeals viewed it that way as well. We granted certiorari in this case
to decide this important question. Having considered the arguments of the parties, we
conclude that we should accept their framing of the issue.
29
officer had not smelled alcohol on the driver’s breath, “the stop would have ended, and [the
defendant] would have been free to go”), cert. denied, 142 S. Ct. 240 (2021). However, as
discussed below, a frisk of D.D. for weapons led to the discovery of a loaded firearm in his
waistband. We now consider the validity of that pat-down under the Fourth Amendment.
B. The Pat-Down of D.D.
D.D. argues that Sergeant Walden lacked reasonable suspicion to believe that he
was armed and dangerous before frisking him. D.D. interprets Sergeant Walden’s
testimony at the suppression hearing as revealing an unconstitutional policy to always frisk
the members of a group when officers are outnumbered, whether or not the particular
circumstances suggest that anyone in the group may be armed and dangerous. In addition,
D.D. contends that Sergeant Walden unreasonably viewed his behavior and that of his
companions as “evasive.” Regarding the discovery of the suspected handgun on D.D.’s
companion, D.D. argues that this Court should not accept the proposition that “if there’s
one weapon, there could be more.” Further, D.D. asserts that the other factors Sergeant
Walden relied on in concluding that D.D. might be armed and dangerous – including his
baggy clothing and the officers’ detection of the odor of marijuana – provide no support
for the pat-down. According to D.D., an apt description of the State’s showing regarding
the frisk is “zero plus zero plus zero still equals zero.” Thus, in D.D.’s view, the totality of
the circumstances in this case “does not come close” to satisfying the reasonable suspicion
standard.
The State contends that its showing at the suppression hearing was not an offering
of several zeroes that cumulatively added up to zero. Rather, according to the State,
30
Sergeant Walden’s decision to frisk D.D. was supported by reasonable suspicion that D.D.
may have been armed and dangerous. Among other factors, the State relies on the discovery
of the weapon on J. and on Sergeant Walden’s assessment of the behavior of D.D. and his
companions as evasive. We agree with the State.
A police officer is not permitted to frisk a person just because the officer has
detained the person to investigate whether criminal activity is afoot. See Simpler v. State,
318 Md. 311, 319 (1990) (explaining that “a reasonable frisk does not inevitably follow in
the wake of every reasonable stop”). Rather, during a Terry stop, a police officer may pat
down an individual for weapons if the officer “has reason to believe that [the officer] is
dealing with an armed and dangerous individual.” Sellman v. State, 449 Md. 526, 541
(2016) (quoting Terry, 392 U.S. at 27). The purpose of this “limited search, known in
common parlance as a frisk, is not to discover evidence, but rather to protect the police
officer and bystanders from harm.” Id. at 542 (internal quotation marks and citation
omitted).
“A law enforcement officer has reasonable articulable suspicion that a person is
armed and dangerous where, under the totality of the circumstances, and based on
reasonable inferences from particularized facts in light of the law enforcement officer’s
experience, a reasonably prudent law enforcement officer would have felt that he or she
was in danger.” Norman, 452 Md. at 387. As we said in Sellman, reasonable suspicion
is a common sense, nontechnical conception that considers factual and
practical aspects of daily life and how reasonable and prudent people act.
While the level of required suspicion is less than that required by the probable
cause standard, reasonable suspicion nevertheless embraces something more
than an inchoate and unparticularized suspicion or hunch…. [A] court’s
31
determination of whether a law enforcement officer acted with reasonable
suspicion must be based on the totality of the circumstances. Thus, the court
must not parse out each individual circumstance for separate consideration.
In making its assessment, the court should give due deference to the training
and experience of the law enforcement officer who engaged the stop at issue.
Such deference allows officers to draw on their own experience and
specialized training to make inferences from and deductions about the
cumulative information available to them that might well elude an untrained
person. To be sure, a factor that, by itself, may be entirely neutral and
innocent, can, when viewed in combination with other circumstances, raise
a legitimate suspicion in the mind of an experienced officer.
Sellman, 449 Md. at 543 (quoting Crosby, 408 Md. at 507-08) (cleaned up). The test that
a reviewing court applies “is objective: the validity of the stop or the frisk is not determined
by the subjective or articulated reasons of the officer; rather, the validity of the stop or frisk
is determined by whether the record discloses articulable objective facts to support the stop
or frisk.” Id. at 542 (internal quotation marks and citation omitted).
Based on the totality of the circumstances in this case, we conclude that the officers
had reasonable suspicion that D.D. was armed and dangerous. As such, the gun recovered
from D.D.’s waistband was the fruit of a lawful frisk, and the juvenile court correctly
declined to suppress it.
Sergeant Walden’s proffered reasons for the pat-down included the “odor of
marijuana,” the group’s “evasive body language,” and the fact that there were “five of them
in baggy clothes” in a place “where they could run out the door.” The juvenile court
credited Sergeant Walden’s testimony “regarding the response from some of the males in
response to his questions,” and “that the young man was evasive.” In addition, before
Sergeant Walden frisked D.D., Officer Moser discovered a suspected handgun in J.’s
waistband that J. said was a BB gun. These circumstances, viewed collectively, would lead
32
a reasonably prudent law enforcement officer to suspect that D.D. was armed and
dangerous.
Evasive behavior is a factor that may support a pat-down for weapons. See, e.g.,
Flowers v. State, 195 A.3d 18, 27-28 (Del. 2018) (suspect’s turning his body away from
advancing officers contributed to reasonable suspicion that he might be armed); United
States v. Dortch, 868 F.3d 674, 680 (8th Cir. 2017) (suspect responded to the sight of an
approaching officer by “pressing the front of his body” against a vehicle “as to further
conceal what, if anything, he had in his coat”); United States v. Diriye, 818 F.3d 767, 769
(8th Cir. 2016) (subject “appeared to be continuously turning his body to keep his right
side away from” the officer, which caused the officer to suspect that the subject may have
a gun); United States v. Patton, 705 F.3d 734, 739 (7th Cir. 2013) (describing a suspect
who “set himself apart from the other men” by not complying with an officers’ instruction
and taking a number of steps backward).
Here, D.D. and his companions appeared evasive to Sergeant Walden, a 21-year
veteran of the Department. None of the members of the group would tell the officers where
they lived. After Sergeant Walden specifically asked D.D. where he lived, D.D. shrugged
his shoulders and did not respond. D.D. then responded to the same question from Officer
Moser by saying “my dick.” The group was snickering, laughing, and being uncooperative.
In addition, unlike the other four young men in the group, D.D. chose to sit on the staircase
that led him to have his back to the officers. D.D.’s positioning prevented Sergeant Walden
from seeing D.D.’s hands. Even when D.D. spoke, he kept his body turned away from the
33
officers. Sergeant Walden believed that D.D.’s “evasive body language” indicated that he
might be armed.
As D.D. points out, Sergeant Walden did not direct D.D. to sit on the descending
staircase. Thus, according to D.D., because he complied with Sergeant Walden’s directive
to sit down, Sergeant Walden should not have been concerned by the fact that D.D.’s back
was to him and that he could not see D.D.’s hands. But Sergeant Walden was not required
to rule out every innocent explanation for D.D.’s behavior. Nor is it realistic to expect an
officer to engage in such fine analysis when deciding whether to pat someone down for
weapons, given that the safety of police officers and third parties may be at stake. In our
view, it was reasonable for Sergeant Walden to be concerned that he could not see D.D.’s
hands and what D.D. was doing.
In addition to the evasive behavior and body language that Sergeant Walden
observed prior to any of the group members being frisked, it is significant that Officer
Moser discovered a weapon in the waistband of J., the first young man the officers frisked.
34
Assuming the weapon was a BB gun as J. claimed,11 BB guns can be lethal.12 Once
Sergeant Walden knew that another member of the group was armed with some sort of
gun, his level of suspicion concerning D.D. reasonably increased.
This is not to say that whenever one member of a group is found to possess a
weapon, officers necessarily have reasonable suspicion to believe that every other member
of the group may be armed and dangerous, thereby automatically justifying a pat-down of
all companions present. See United States v. Matías-Maestres, 738 F. Supp. 2d 281, 289
(D.P.R. 2010) (discovery of handgun on driver of car did not justify frisk of passenger,
where there was no other basis to suspect that the passenger may be armed and dangerous).
However, the possession of a weapon by one member of a group is a highly significant
factor that, in combination with other circumstances, may well support a pat-down for
weapons of other members of the group. See El-Amin v. Commonwealth, 607 S.E.2d 115,
118-19 (Va. 2005) (after a frisk of one member of a group revealed a pellet gun, another
officer patted down El-Amin and discovered a .38 caliber revolver; although the Virginia
11
The juvenile court did not make a finding as to whether the weapon removed from
J.’s waistband was a BB gun or whether the officers had reason to believe the weapon was
a BB gun before Sergeant Walden frisked D.D. It is well known that BB guns are difficult
to tell apart from “real” guns. See Megan Raposa, Real or fake guns: Can you tell the
difference?, Argus Leader (Mar. 4, 2016), available at https://perma.cc/7VB9-VR5K
(according to a Captain in the Minnehaha County Sheriff’s Office, “[e]ven in the best light
in the best possible conditions, it is virtually impossible to tell the difference between a real
handgun and a BB gun, toy gun, fake gun, replica gun, anything like that”). Sergeant
Walden and Officer Moser were not required to verify J.’s claim that the weapon in his
waistband was a BB gun before frisking D.D.
12
See U.S. Consumer Product Safety Commission, BB Guns Can Kill, CPSC
Publication 5089, available at https://perma.cc/78BB-8WMH.
35
Supreme Court declined to adopt an “automatic companion” rule, the Court held that the
“circumstances in this case support the officer’s objectively reasonable apprehension that,
upon discovery of a weapon on the person of one member of the group, the other members
of the group might also be armed and dangerous”).
In addition, D.D. wore baggy clothing, including a puffy jacket, that could conceal
a weapon. To be sure, it is less concerning when someone wears a puffy coat on a cold
night in November (as was the case here) than on a summer evening. See United States v.
Key, 621 F. App’x 321, 323 (6th Cir. 2015) (suspect’s “unseasonably heavy attire” was a
factor that, combined with other circumstances, justified a frisk). However, we cannot say
that Sergeant Walden was unreasonable in ascribing any significance to D.D.’s baggy
clothing. See Davis v. State, 133 Md. App. 260, 268 n.5 (2000) (although recognizing that
many people wear “baggy clothing” “for comfort or to make a fashion statement,” stating
that “[t]he wearing of baggy clothing may properly be considered in conjunction with other
factors in formulating reasonable suspicion by a reasonable and cautious police officer
guided by experience and training”); see also State v. Khingratsaiphon, 572 S.E.2d 456,
460 (S.C. 2002) (among other circumstances justifying a frisk for weapons was the fact
that “Petitioner and the two other men were dressed in baggy clothing (which could easily
conceal a weapon)”).
Further, Sergeant Walden was permitted to consider the odor of marijuana that he
smelled coming from the young men, as well as his concern that they were trespassing, as
additional factors bearing on whether D.D. was armed and dangerous. See Sellman, 449
Md. at 560-61 (minor crimes, such as possession of marijuana, “do not, in and of
36
themselves, justify a Terry frisk without additional circumstances that establish reasonable
suspicion that a suspect is armed and dangerous”) (emphasis in original). Indeed, in
Norman this Court acknowledged the “indisputable nexus between drugs and guns” and
reasoned that “[w]here, in addition to the odor of marijuana, another circumstance or other
circumstances are present giving rise to reasonable articulable suspicion that an
[individual] is armed and dangerous, a law enforcement officer may frisk” the individual,
even following decriminalization. Norman, 452 Md. at 423, 425.
Finally, Sergeant Walden could consider the fact that he and Officer Moser were
outnumbered five to two. See United States v. Braxton, 456 F. App’x 242, 247 (4th Cir.
2011) (noting as a factor justifying a frisk that the officers were outnumbered by the
passengers in the vehicle that the officers had stopped, and observing that “[p]roper
adherence to the standards of Terry does not require us to gamble with the lives of police
officers who exercise reasonable judgment in fulfilling their duty in the trying situation
presented by a roadside car stop”); People v. Colyar, 996 N.E.2d 575, 585 (Ill. 2013)
(noting that officers were outnumbered three to two as one of several factors that made it
reasonable for the officers to believe that they were in danger); United States v. Reyes, 349
F.3d 219, 225 (5th Cir. 2003) (that officer was outnumbered by suspects two to one and
that the stop occurred at a public bus station, were factors that supported officer’s
“reasonable belief that his safety and that of others was in danger”).
D.D. interprets Sergeant Walden’s testimony as stating that the Department’s policy
is to conduct pat-downs for weapons whenever officers are outnumbered during a Terry
37
stop. Although we certainly would be concerned if that were the policy of the Department,13
we do not read Sergeant Walden’s testimony as D.D. does. Sergeant Walden did not testify
that he frisked D.D. because he always frisks every detainee per departmental policy.
Rather, in response to a question about “how officers are trained to respond when they’re
outnumbered,” Sergeant Walden stated that officers are taught to request backup and that
“you shouldn’t handle any call by yourself.” He then explained that “there are times where
you’re put in that position to where there are several people coming at you, so you have to
get the advantage. And one of the first concerns is a weapon that they could use against
you.” (Emphasis added.) Thus, Sergeant Walden did not link his concern about a weapon
to every situation in which officers are outnumbered, but rather to those instances “where
there are several people coming at you.”
Regarding this case, Sergeant Walden made clear that he decided to frisk D.D. not
solely because the officers were outnumbered. Rather, his “first concern” was that one of
the members of the group might have a weapon. Although Sergeant Walden then
referenced the five-to-two ratio, in the next breath he stated that the young men “were right
by a door where they could run out the door, plus the odor … of marijuana, that there was
13
In Sellman, this Court described police department policies authorizing the
blanket, indiscriminate frisking of all individuals present during a police-citizen encounter
as “pernicious institutionalized procedure[s]” that are “unlawful” and “counter to Terry
and its progeny.” Sellman, 449 Md. at 557. We emphasized that “[w]hile there undoubtedly
is some risk to the police in every confrontation, Terry has never been thought to authorize
a protective frisk on the occasion of every authorized stop.” Id. at 558 (internal quotation
marks and citation omitted); see also United States v. Hughes, 517 F.3d 1013, 1019 (8th
Cir. 2008) (“Being outnumbered does not justify a frisk where the initial Terry stop is not
justified.”).
38
illegal drug activity there, the fact that nobody could provide any identification that they
live inside that building.” Sergeant Walden then went on to say, “[s]o the first thing we
want to do is secure them and make sure that they don’t have any weapons on them.” A
fair reading of that statement is that, after Sergeant Walden developed concern that one or
more of the young men might be armed based on all the factors he had just listed, he and
Officer Moser decided to check the group for weapons before continuing their
investigation. Viewing the evidence in the light most favorable to the State, as we must,
we agree with the State that “[t]his was not the testimony of an officer who merely did the
math, concluded there were more people than officers, and applied a departmental policy
regardless of the situation.”
In any event, even if there was a policy to pat down all detainees when officers are
outnumbered – and, again, we cannot conclude based on this record that the Department
had such a policy – by the time Sergeant Walden frisked D.D., he had developed
reasonable, articulable suspicion that D.D. might be armed and dangerous based on the
totality of the circumstances discussed above.
The pat-down of D.D. for weapons was reasonable under the Fourth Amendment.
Accordingly, the juvenile court correctly declined to suppress the gun that Sergeant Walden
discovered as a result of the frisk.
IV
Conclusion
Even following partial decriminalization, the odor of marijuana on a person
provides reasonable suspicion to conduct a brief investigatory detention to attempt to
39
determine whether the person has committed a criminal offense. In this case, the officers
detected the odor of marijuana when they encountered the group of young men of which
D.D. was a part. The initial stop of D.D. was reasonable under the Fourth Amendment. The
subsequent pat-down of D.D. for weapons also was lawful because, under the totality of
the circumstances, the officers had reasonable suspicion that D.D. was armed and
dangerous. Accordingly, the juvenile court correctly declined to suppress the gun that the
officers discovered as a result of the frisk. The Court of Special Appeals erred in
overturning the juvenile court’s suppression ruling. We therefore reverse the judgment of
the Court of Special Appeals and remand the case to that Court with the instruction to
affirm the judgment of the juvenile court.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED AND
CASE REMANDED WITH INSTRUCTION;
COSTS IN THE COURT OF SPECIAL
APPEALS AND THIS COURT TO BE PAID
BY RESPONDENT.
40
Circuit Court for Prince George’s County
Case No. JA-19-0409
Argued: January 6, 2022
IN THE COURT OF APPEALS
OF MARYLAND
No. 27
September Term, 2021
______________________________________
IN RE: D.D.
______________________________________
*Getty, C.J.
*McDonald
Watts
Hotten
Booth
Biran
Raker, Irma S. (Senior Judge,
Specially Assigned),
JJ.
______________________________________
Concurring Opinion by Watts, J.
______________________________________
Filed: June 21, 2022
*Getty, C.J., and McDonald, J., now Senior
Judges, participated in the hearing and
conference of this case while active members of
this Court. After being recalled pursuant to Md.
Const., Art. IV, § 3A, they also participated in
the decision and adoption of this opinion.
Respectfully, I concur. I would hold that the odor of marijuana alone is not enough
to give rise to reasonable articulable suspicion to conduct an investigatory Terry stop,1 but
would conclude that, in this case, there was more than just the odor of marijuana that gave
rise to reasonable articulable suspicion to justify the stop. Like the Majority, I would
reverse the judgment of the Court of Special Appeals. See Maj. Op. at 3. But, I would
conclude that the totality of the circumstances in this case involved more than the odor of
marijuana.
It is now well-established in Maryland that the odor of marijuana, standing alone,
does not provide probable cause for a law enforcement officer to arrest and conduct a
warrantless search of a person incident to the arrest. See Lewis v. State, 470 Md. 1, 10,
233 A.3d 86, 91 (2020). The odor of marijuana emanating from a vehicle, however,
supplies probable cause for a law enforcement officer to conduct a search of the vehicle,
“as marijuana in any amount remains contraband, notwithstanding the decriminalization of
possession of less than ten grams of marijuana; and the odor of marijuana gives rise to
probable cause to believe that the vehicle contains contraband or evidence of a crime.”
Robinson v. State, 451 Md. 94, 137, 152 A.3d 661, 687 (2017).
As to vehicles, in Robinson, id. at 128, 131, 152 A.3d at 681, 683, in holding “that
a warrantless search of a vehicle is permissible upon detection of the odor of marijuana
emanating from the vehicle[,]” we concluded “that marijuana remains contraband, despite
1
“Law enforcement officers may conduct an investigatory stop or detention when
the officers have reasonable suspicion that a person has committed or is about to a commit
a crime, commonly known as a Terry stop[,]” Lewis v. State, 470 Md. 1, 12 n.3, 233 A.3d
86, 92 n.3 (2020) (cleaned up), derived from Terry v. Ohio, 392 U.S. 1 (1968).
the decriminalization of possession of small amounts of marijuana, and that, as such, the
odor of marijuana constitutes probable cause for the search of a vehicle.” We explained
that, under the Fourth Amendment, “probable cause to search exists where a person of
reasonable caution would believe that contraband or evidence of a crime is present[,]” and
that “‘contraband’ means goods that are illegal to possess, regardless of whether possession
of the goods is a crime.” Id. at 128, 252 A.3d at 681-82 (cleaned up).
The definition of “contraband” was informed by the conclusion of the Supreme
Court in Carroll v. United States, 267 U.S. 132, 158-59 (1925) “that a law enforcement
officer can search a vehicle based on probable cause to believe that the vehicle’s contents
are contraband, even if the law enforcement officer cannot arrest the driver.” Robinson,
451 Md. at 128, 252 A.3d at 682. With respect to the automobile exception to the warrant
requirement, in Carroll, 267 U.S. at 153, the Supreme Court held that, if there is probable
cause to believe that a vehicle contains contraband, then a law enforcement officer may
search the vehicle without a warrant given that a vehicle can be quickly moved from one
jurisdiction to another, thereby making obtainment of a warrant impractical. In light of the
Carroll doctrine and the mobility of vehicles, among other reasons, a law enforcement
officer has probable cause to search a vehicle where the officer detects an odor of marijuana
emanating from the vehicle.
A search of an individual is different. In Pacheco v. State, 465 Md. 311, 330, 214
A.3d 505, 516 (2019), although we concluded that law enforcement officers had probable
cause to search the defendant’s vehicle based on an odor of marijuana and the presence of
a joint in the center console of the vehicle, we concluded that the officers did not likewise
-2-
have the right to search the defendant’s person. We explained that the facts of the case did
not meet the standard for probable cause to arrest and search the defendant incident to arrest
because the officers did not possess, prior to the search, probable cause to believe that the
defendant was committing a felony or misdemeanor in their presence. See id. at 330-32,
214 A.3d at 516-17. Stated otherwise, we determined that the record did not support a
conclusion that the officers had probable cause to arrest the defendant “based on the belief
that he was committing, had committed, or was about to commit a crime in their presence.”
Id. at 333, 214 A.3d at 517. We concluded that, although circumstances may justify the
search of a vehicle, the same circumstances “do not necessarily justify an arrest and search
incident thereto.” Id. at 333, 214 A.3d at 518. This is due to “the heightened expectation
of privacy one enjoys in his or her person as compared to the diminished expectation of
privacy one has in an automobile.” Id. at 333, 214 A.3d at 518.
Later, in Lewis, 470 Md. at 10, 233 A.3d at 91, we unequivocally held that the odor
of marijuana alone does not provide a law enforcement officer with probable cause to arrest
an individual and then conduct a warrantless search of the individual incident to the arrest.
In other words, “more than the odor of marijuana is required for probable cause to arrest a
person and conduct a search incident thereto.” Id. at 17, 233 A.3d at 95. Relying on
Pacheco, we determined that law enforcement “officers must have probable cause to
believe a person possesses a criminal amount of marijuana in order to arrest that person
and conduct a search incident thereto.” Lewis, 470 Md. at 23, 233 A.3d at 99. We stated
that, although marijuana in any amount is considered contraband under Robinson, an
officer may conduct a search incident to arrest “only upon the occurrence of a felony or
-3-
attempt of a felony or misdemeanor; a civil infraction is neither a felony nor misdemeanor.
The odor of marijuana alone is not indicative of the quantity (if any) of marijuana in
someone’s possession[.]” Lewis, 470 Md. at 23, 233 A.3d at 99. We concluded that “[t]he
Fourth Amendment’s protection against unreasonable searches and seizures prohibits law
enforcement officers from arresting and searching a person without a warrant based solely
upon the odor of marijuana on or about that person.” Id. at 27, 233 A.3d at 101.
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. Indeed, practical
reasons militate against using something as amorphous and fleeting as the odor of
marijuana alone as a ground to stop someone.2 I completely agree with the holding of the
Court of Special Appeals—“that the odor of marijuana, by itself, does not provide
reasonable suspicion of criminal activity, and therefore, a stop based on this circumstance
alone is unreasonable under the Fourth Amendment.” In re D.D., 250 Md. App. 284, 288,
250 A.3d 284, 286-87 (2021). I also agree, though, with the Court of Special Appeals’s
conclusion that “[t]he odor of marijuana may, with other circumstances, provide reasonable
suspicion that a person is involved in criminal activity.” Id. at 301, 250 A.3d at 295.
That said, I disagree with the determination that this case involved only the odor of
marijuana and that, “[a]ccordingly, Officer Walden did not have reasonable suspicion of
2
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.
-4-
criminality to support the stop, and it was unreasonable under the Fourth Amendment.” Id.
at 301, 250 A.3d at 295. The Court of Special Appeals apparently interpreted this case to
be a case raising the issue of whether the odor of marijuana alone can form the basis for
reasonable articulable suspicion for a Terry stop and that interpretation has followed the
case to this Court. I see the case somewhat differently. From my perspective, this case
raises the question of whether the odor of marijuana along with other circumstances was
sufficient to give rise to reasonable articulable suspicion to support the stop. This is not a
case in which there was solely the odor of marijuana and nothing else. Although the parties
framed the issue in this case as involving the question of whether the odor of marijuana
alone could give rise to reasonable articulable suspicion for a Terry stop, the case presented
additional facts. It was everything together that gave rise to reasonable articulable
suspicion for the stop. In my view, concluding that the odor of marijuana alone is
sufficient, even though the case involved more than the odor of marijuana, will lead to
stops occurring based on much less information than what was available to the officer in
this case and under circumstances where it may not have been possible to have had
reasonable suspicion that a person possessed at least ten grams of marijuana.
I would conclude that, under the circumstances of this case, which included
Sergeant Walden detecting the odor of marijuana and additional facts, there was reasonable
articulable suspicion for the stop. In this case, Sergeant Walden responded to a police
dispatch call for service at an apartment complex reporting that there were “males in the
basement playing music and smoking CDS.” At trial, on direct examination, the following
exchange occurred:
-5-
[PROSECUTOR:] Okay. And did you receive a call that day to go to Ronald
Road in Capitol Heights?
[SERGEANT WALDEN:] I did.
[PROSECUTOR:] Okay. And do you recall where, where were you and
where did you respond to?
[SERGEANT WALDEN:] I was on routine patrol and I acknowledged the
radio, so I responded via my police vehicle, along with a back-up officer to
respond to a call for males in the basement playing music and smoking CDS.
[PROSECUTOR:] Okay. When you say CDS, what does that mean?
[SERGEANT WALDEN:] CDS is a controlled dangerous substance.
[PROSECUTOR:] Okay. And was there a specific complaint that you were
responding to in terms of CDS?
[SERGEANT WALDEN:] Loud music and the smell of marijuana.
[PROSECUTOR:] Okay. So upon arriving at [] Ronald Road in Capitol
Heights, what did you do?
[SERGEANT WALDEN]: It’s a split foyer, so I opened the front door and
as soon as I opened the front door I saw a group of males walking up the
steps towards me and I smelled a strong odor of marijuana.
[PROSECUTOR:] Okay. And what do you do next?
[SERGEANT WALDEN:] At that time since there was five subjects and I
had no idea if they lived there or what was going on, and because of the
nature of the complaint, it was myself and just one other officer there, so
there was five of them coming up the stairs. So I stopped them and I had
them have a seat on the stairs and I asked them, I said could you please have
a seat, who lives here.
On cross-examination, the following exchange occurred:
[DEFENSE COUNSEL:] Officer Walden, the initial call for CDS and loud
music came through at 7:10 p.m., correct?
[SERGEANT WALDEN:] I believe so, yes.
-6-
[DEFENSE COUNSEL:] And you responded to [] Ronald Road at 7:42?
[SERGEANT WALDEN:] Correct.
[DEFENSE COUNSEL:] And when you responded, you were with Officer
Moser?
[SERGEANT WALDEN:] Correct, yes.
According to Sergeant Walden, the call came through at approximately 7:10 p.m.
Sergeant Walden responded to the address at 7:42 p.m., approximately thirty minutes later,
with Officer Moser. When Sergeant Walden reached the apartment building and opened
the front door, he saw D.D. and four other people walking up a set of steps and he “smelled
a strong odor of marijuana.” Sergeant Walden had been a certified drug dog trainer for
over seventeen years and recognized the smell of marijuana. Sergeant Walden told D.D.
and his companions to have a seat on the steps and began questioning them.
In my view, the stop occurred when Sergeant Walden told the group to have a seat
on the steps. The responses that Sergeant Walden later received to his questions did not
play a role in the formation of reasonable articulable suspicion for the stop. Rather, all of
the information that Sergeant Walden possessed about the call and his encounter with the
D.D. and his companions formed the basis for reasonable articulable suspicion—namely,
Sergeant Walden responded to a call specifically stating that multiple people, in the
basement of an apartment building, were smoking a controlled dangerous substance. It is
unclear from the record whether the dispatcher advised Sergeant Walden that the call was
for people smoking “CDS” as the Sergeant initially testified or smoking marijuana, but it
matters not. A report of individuals smoking CDS would potentially raise the level of
-7-
reasonable articulable suspicion above suspicion of possession of at least ten grams of
marijuana given that the acronym CDS could have indicated that the individuals were
smoking any type of potential controlled dangerous substance. Even though the State has
not contended, despite the Sergeant’s testimony, that the call was for anything other than
smoking marijuana, this is not a case involving the smell of marijuana alone.
Just over thirty minutes after receiving the dispatch call, Sergeant Walden arrived
at the building, opened the door, saw a group of people walking up the steps toward him,
and smelled the strong odor of marijuana. This corroborated the information in the call—
that people were smoking marijuana, a controlled dangerous substance, in the basement of
the building. It was entirely reasonable for Sergeant Walden to believe that the group
walking up the stairs were the people in the basement who had been reported to be smoking
marijuana in the building and that they had been doing so for a period of time. In addition,
Sergeant Walden smelled a strong odor of marijuana.
These circumstances, in my view, gave rise to a reasonable articulable suspicion
that any one or all of the individuals may have possessed ten grams or more of marijuana.
Ten grams is a small amount of marijuana, and it was reasonable for Sergeant Walden to
believe that this was a group of people who had been smoking marijuana for at least thirty
minutes in the basement of the building before he arrived. Sergeant Walden was not
required to assume that this could have been a different group or that the caller had been
wrong. Under the circumstances, there was reasonable articulable suspicion to believe that
one or all of the people in the group may have possessed at least ten grams of marijuana,
thus justifying the investigatory stop.
-8-
The reasonable articulable suspicion standard is less than the probable cause
standard. An investigatory or Terry stop is authorized where a law enforcement “officer
has reasonable suspicion, supported by articulable facts, that criminal activity may be
afoot.” In re David S., 367 Md. 523, 532, 789 A.2d 607, 612 (2002). By contrast, as we
explained in Pacheco, 465 Md. at 322, 214 A.3d at 511, a law enforcement officer is
authorized to conduct a warrantless search incident to arrest where the officer has “probable
cause to believe that the person subject to arrest has committed a felony or is committing
a felony or misdemeanor in the presence of the police.” (Citations omitted). To conduct
an investigatory stop, an officer does not need to discern a fair probability that criminal
activity may have been afoot, just reasonable suspicion.
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 ten grams of marijuana—may have been afoot and
may briefly detain the individual or individuals. In Maryland, possessing ten grams of
marijuana or more remains criminal activity, whereas possessing less than ten grams is
non-criminal conduct for which a civil citation would be warranted. In other words, the
odor of marijuana does not equate with entirely innocent or non-criminal behavior, given
that possession of marijuana is not legalized or fully decriminalized. Even non-criminal
behavior can form the basis for reasonable articulable suspicion. See, e.g., Crosby v. State,
408 Md. 490, 507-08, 970 A.2d 894, 904 (2009) (This Court stated that a determination as
to whether an “officer acted with reasonable suspicion must be based on the totality of the
-9-
circumstances” and that a circumstance or factor, “by itself, may be entirely neutral and
innocent,” but “can, when viewed in combination with other circumstances, raise a
legitimate suspicion in the mind of an experienced officer.” (Cleaned up)).
Given that the odor of marijuana suggests either criminal behavior or a civil
violation, under the circumstances in this case—a call to the police reporting a group
smoking marijuana in the basement of a building with an exact address given, the officer
responding and seeing a group of people coming up the stairs of the building, that the
officers responded to the location thirty minutes after receiving the call, and that the officer
detected what the officer described as the “strong odor” of marijuana—the officer had
reasonable articulable suspicion to conduct the investigatory stop. Sergeant Walden
testified that there were five people coming from the basement, that he had no idea whether
they lived in the building, and that he smelled a strong odor of marijuana. The officer
would have known that the circumstances that he encountered fully corroborated the
substance of the call and would have had a reasonable basis to believe that the facts
underlying the call had been substantiated.
This is not a case in which an officer walked past a person and alleged a fleeting
whiff of marijuana or even a case in which the officer’s credibility in terms of having
encountered the smell of marijuana under uncorroborated circumstances is at issue. The
officer testified that he smelled marijuana, and there is no doubt that there was a call to the
police department reporting that people were smoking CDS or marijuana approximately
thirty minutes before the officer arrived at the location. When the officer arrived after
receiving the dispatch call, the strong smell of marijuana was still there, along with five
- 10 -
people. The number of people involved, the time that the people had been at the location
between the call initially reporting the smell of marijuana and the officer’s arrival, and the
officer’s detection of the strong odor of marijuana, were factors that gave rise to the
reasonable articulable suspicion that on or more members of the group possessed at least
ten grams of marijuana. Where an officer receives a call for multiple people at a precise
location smoking marijuana, and the officer arrives at the location and multiple people are
at the location and the strong smell of marijuana is present, the officer has reasonable
suspicion for an investigatory stop as the facts give rise to reasonable articulable suspicion
of possession of at least ten grams of marijuana. Unless the possession of marijuana is
legalized or further decriminalized, the odor of marijuana with other circumstances that
suggest possession of at least ten grams of marijuana, under a totality of circumstances
analysis, may give rise to reasonable articulable suspicion to conduct a stop.3
For the above reasons, respectfully, I concur.
3
I would hold that there was reasonable articulable suspicion justifying the stop, and
like the majority opinion, I would conclude that the pat-down or frisk of D.D. was lawful
because, under the totality of the circumstances, “the officers had reasonable suspicion that
D.D. was armed and dangerous.” Maj. Op. at 32.
- 11 -
Circuit Court for Prince George’s County
Case No. JA-19-0409
Argued: January 6, 2022 IN THE COURT OF APPEALS
OF MARYLAND
No. 27
September Term, 2021
__________________________________
IN RE: D.D.
__________________________________
*Getty, C.J.,
*McDonald,
Watts,
Hotten,
Booth,
Biran,
Raker, Irma S.,
(Senior Judge, Specially Assigned)
JJ.
__________________________________
Dissenting Opinion by Hotten, J., which
Raker, J., joins.
__________________________________
Filed: June 21, 2022
*Getty, C.J. and McDonald, J., now Senior
Judges, participated in the hearing and
conference of this case while active
members of this Court; after being recalled
pursuant to Maryland Constitution, Article
IV, Section 3A, they also participated in the
decision and adoption of the majority
opinion.
For the reasons articulated below, I respectfully dissent from both conclusions of
the majority that the investigatory stop of Respondent D.D. was constitutionally justified
and that the frisk of Respondent was supported by reasonable suspicion that Respondent
was armed and dangerous. I would therefore affirm the decision of the Court of Special
Appeals that evidence of the firearm recovered from Respondent should have been
suppressed as the fruit of an unlawful search. See In re D.D., 250 Md. App. 284, 301–02,
250 A.3d 284, 295, cert. granted, 475 Md. 701, 257 A.3d 1162 (2021).
Reasonable Suspicion and the Terry Stop and Frisk
The Fourth Amendment of the United States Constitution and the Maryland
Declaration of Rights prohibit warrantless searches and seizures. U.S. CONST. amend. IV.
(“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.”); MD. CONST. DECL. OF RTS.
art. 26 (“[A]ll warrants, without oath or affirmation, to search suspected places, or to seize
any person or property, are grievous and oppressive; and all general warrants to search
suspected places, or to apprehend suspected persons, without naming or describing the
place, or the person in special, are illegal, and ought not to be granted.”). However, both
the United States Supreme Court and this Court have recognized various exceptions to this
general prohibition. See, e.g., Grant v. State, 449 Md. 1, 16–17, 141 A.3d 138, 146–47
(2016) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)).
One prominent exception to the warrant requirement is known as the “Terry Stop,”
named after the Supreme Court decision Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968),
which permits an officer “with reasonable suspicion, supported by articulable facts, that
criminal activity ‘may be afoot[]’” to “stop and detain a person, briefly, for investigative
purposes.” Longshore v. State, 399 Md. 486, 506, 924 A.2d 1129, 1140 (2007) (citing
Terry, 392 U.S. at 30, 88 S. Ct. at 1884). If, while conducting such a stop, the officer
develops a reasonable suspicion supported by articulable facts “that the person with whom
the officer is dealing is armed and dangerous, the officer may conduct a carefully limited
[frisk] of the outer clothing of such person in an attempt to discover weapons which might
be used to assault the officer.” State v. Smith, 345 Md. 460, 465, 693 A.2d 749, 751 (1997).
Such an action is known as a “Terry frisk.” See Norman v. State, 452 Md. 373, 424, 156
A.3d 940, 970 (2017).
Terry stops and Terry frisks must both be supported by reasonable suspicion. We
have explained that although there is “no standardized test governing what constitutes
reasonable suspicion[,] . . . [i]t has been defined as nothing more than a particularized and
objective basis for suspecting the particular person stopped of criminal activity[.]” Crosby
v. State, 408 Md. 490, 507, 970 A.2d 894, 903 (2009) (internal citations and quotations
omitted). The standard of reasonable suspicion should be treated as a “common sense,
nontechnical conception that considers factual and practical aspects of daily life and how
reasonable and prudent people act[]” but still must be based on more than an “inchoate and
unparticularized suspicion or hunch.” Id., 970 A.2d at 903‒04. Whether reasonable
suspicion exists must be viewed under the “totality of the circumstances” of the case. Holt
2
v. State, 435 Md. 443, 460, 78 A.3d 415, 424 (2013) (quoting United States v. Arvizu, 534
U.S. 266, 273, 122 S. Ct. 744, 750 (2002)).
The reasonable suspicion standards for Terry stops and Terry frisks have different
objects. In the context of a Terry stop, an officer must have reasonable suspicion that the
person stopped is engaged in criminal activity, while in the context of a Terry frisk, the
officer must have reasonable suspicion that the suspect is “armed and dangerous[.]” Smith,
345 Md. at 465, 693 A.2d at 751. We have explained that “[t]he purpose of the Terry frisk,
by diametric contrast [to the purpose of a Terry stop], is not directly crime-related at all but
is exclusively concerned with officer safety, with safeguarding the life and limb of the
officer[.]” Norman, 452 Md. at 424, 156 A.3d at 970 (quoting Ames v. State, 231 Md. App.
662, 673, 153 A.3d 899, 905 (2017)).
The Fourth Amendment Relevance of the Scent of Marijuana after
Decriminalization in Maryland
In 2014, the Maryland legislature decriminalized possession of less than ten grams
of marijuana, making it a civil offense punishable by a fine instead of a crime. Md. Code
Ann., Criminal Law (“Crim. Law”) § 5-601(c)(2)(ii); see also Lewis, 470 Md. 1, 9, 233
A.3d 86, 91 (2020). Possession of more than ten grams of marijuana remains a crime. See
Crim. Law § 5-601(c)(2)(i). In Robinson v. State, the first post-2014 Maryland case to
discuss the relevance of the scent of marijuana under the Fourth Amendment, we held that
law enforcement officers have probable cause to conduct a warrantless vehicle search
based solely on the odor of marijuana, even in light of the legislature’s decriminalization
scheme. 451 Md. 94, 137, 152 A.3d 661, 687 (2017). We reasoned that “marijuana in any
3
amount remains contraband,” and thus “the odor of marijuana gives rise to probable cause
to believe that the vehicle contains contraband or evidence of a crime.” Id., 152 A.3d at
687 (referencing the “automobile exception” from Carroll v. United States, 267 U.S. 132,
45 S. Ct. 280 (1925), which permits warrantless searches of automobiles where an officer
has probable cause to suspect the vehicle contains contraband or evidence of a crime).
In Norman, issued the same year as Robinson, we clarified that although the odor of
marijuana can provide probable cause to conduct a search of a vehicle, it does not provide
reasonable suspicion to conduct a frisk of the occupants in that vehicle. Norman, 452 Md.
at 379, 156 A.3d at 943. We specifically stated that “[a]n odor of marijuana alone
emanating from a vehicle with multiple occupants does not give rise to reasonable
articulable suspicion that the vehicle’s occupants are armed and dangerous and subject to
frisk.” Id., 156 A.3d at 944. Similarly, in Pacheco v. State, we dealt with a case in which
police approached an individual in a parked car and observed a strong odor of marijuana
and a marijuana cigarette in the car. 465 Md. 311, 317–18, 214 A.3d 505, 508–09 (2019).
The police immediately told the individual to exit the vehicle, searched him, discovered
cocaine in his left front pocket, and subsequently searched his vehicle. Id. at 318, 214 A.3d
505 509. We held that although the police’s search of the vehicle was warranted based on
Robinson, the arrest and subsequent search of Pacheco’s person was not permissible under
the Fourth Amendment. Id. at 330, 214 A.3d at 516. We reasoned that there is a diminished
expectation of privacy in one’s vehicle, but that there is “‘unique, significantly heightened’
constitutional protections afforded a person to be secure in his or her body[.]” Id. at 326,
214 A.3d at 513.
4
Most recently in Lewis v. State, 470 Md. 1, 233 A.3d 86 (2020), we addressed the
significance of the odor of marijuana outside of the vehicle context. In that case, we
rejected the argument that the odor of marijuana emanating from an individual in a grocery
store gave police probable cause to arrest and search the individual. Id. at 27, 233 A.3d at
101. We explained that when considering the propriety of an arrest and search incident to
that arrest, we consider the “likelihood of the guilt of the arrestee and whether probable
cause existed to believe that a felony was committed or a felony or misdemeanor was being
committed in the presence of law enforcement.” Id. at 22, 233 A.3d at 98. As such, the
odor of marijuana alone did not give the officers in Lewis probable cause to arrest and
search the petitioner because marijuana under ten grams is neither a felony nor
misdemeanor, but a civil offense, and “[t]he odor of marijuana alone is not indicative of
the quantity (if any) of marijuana in someone’s possession[.]” Id. at 23, 233 A.3d at 99.
Application to the Stop and Frisk of Respondent
The parties before us present two issues. The first is whether, as a matter of first
impression, the odor of marijuana alone provided reasonable suspicion to conduct a Terry
investigatory stop of Respondent. The second is whether the totality of the circumstances
provided Officer Jeff Walden with reasonable suspicion Respondent was armed and
dangerous so that it was permissible for him to conduct a Terry frisk of Respondent. As
explained below, I would answer both questions in the negative.
5
A. The smell of marijuana alone did not provide reasonable suspicion to conduct
an investigatory stop of Respondent
The Court of Special Appeals below relied heavily on Lewis in finding that the
officer’s investigatory stop of Respondent was not supported by reasonable suspicion.
Lewis dealt with the higher standard of probable cause necessary for an arrest and search
incident to the arrest. We have recognized, in line with United States Supreme Court
precedent, that:
Reasonable suspicion is a less demanding standard than probable cause not
only in the sense that reasonable suspicion can be established with
information that is different in quantity or content than that required to
establish probable cause, but also in the sense that reasonable suspicion can
arise from information that is less reliable than that required to show probable
cause[.]
Cartnail v. State, 359 Md. 272, 287, 753 A.2d 519, 527 (2000) (quoting Alabama v. White,
496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)). Probable cause requires the existence
of “facts and circumstances within the knowledge of the officer at the time of the arrest, or
of which the officer has reasonably trustworthy information, [that] are sufficient to warrant
a prudent person in believing that the suspect had committed or was committing a criminal
offense.’” Barrett v. State, 234 Md. App. 653, 666, 174 A.3d 441, 449 (2017) (quoting
Moulden v. State, 212 Md. App. 331, 344, 69 A.3d 36, 44 (2013)). In contrast, reasonable
suspicion necessary for a Terry investigatory stop, need only arise from “a particularized
and objective basis for suspecting the particular person stopped of criminal activity.” Holt,
435 Md. at 459, 78 A.3d at 424. This lesser standard is justified by the fact that a Terry
6
stop is less intrusive than a formal custodial arrest.1 See Wilson v. State, 409 Md. 415,
439–40, 975 A.2d 877, 891–92 (2009) (holding that an assessment of the reasonableness
of an officer’s actions is dependent on the level of the intrusion, and that a Terry stop is
less intrusive than a formal custodial arrest).
In 2014, Maryland joined other jurisdictions that have decriminalized the possession
of marijuana. As the majority observed, several of these jurisdictions have concluded that
the smell of marijuana, alone, does not provide reasonable suspicion to conduct an
investigatory stop. See Maj. op. at 28. In State v. Moore, the Court of Appeals of Oregon
explained that its “historic treatment of all marijuana odors as equal for purposes of
reasonable suspicion was grounded in ‘the legal status of marijuana as contraband in any
amount,’ a premise that no longer applies, requiring us to adjust our analysis accordingly
going forward.” 311 Or. App. 13, 19, 488 P.3d 816, 819 (2021) (citations omitted)
(emphasis in original). The court further explained:
As the legal status of cannabis in Oregon has changed, so too does the role
that the odor of marijuana plays in the reasonable suspicion calculus. [A]
strong odor can signal the presence of marijuana, but not necessarily the
1
To distinguish between an investigatory Terry stop and a custodial arrest, courts
will consider: “the length of the detention, the investigative activities that occur during the
detention, and the question of whether the suspect is removed from the place of the stop to
another location[]” under a totality of the circumstances. Chase v. State, 224 Md. App.
631, 643–44, 121 A.3d 257, 264 (2015).
7
presence in a quantity that is illegal. . . . For that reason, odor adds only that
much to the calculus—that some amount of marijuana may be present.
Id., 488 P.3d at 819–20 (marks and citation omitted) (some emphasis added and some
emphasis in original).
Similar to how the decriminalized status of marijuana minimized the importance of
odor in the reasonable suspicion calculus in Oregon, the decriminalized status of marijuana
in Maryland should accordingly minimize the importance of the odor in the reasonable
suspicion calculus in our constitutional jurisprudence. Possession of less than ten grams
of marijuana is generally no longer a crime in Maryland. Crim. Law § 5-601(c)(2)(ii).
Maryland also permits possession of medical marijuana for certain medical necessities or
usages. Crim. Law § 5-601(c)(3). 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.
While reasonable suspicion is a relatively low barrier, law enforcement may not rely
on a hunch that a person may possess ten grams of odor in a non-medicinal capacity to
form a basis of reasonable suspicion. See Crosby 408 Md. at 507, 970 A.2d at 904. In the
case at bar, law enforcement smelled the odor of marijuana emanating from Respondent
and his companions, but there was no articulable basis for why any of the individuals were
carrying more than ten grams of marijuana. I would have concluded that the odor of
marijuana, alone, did not provide reasonable suspicion to stop Respondent.
8
B. The totality of the circumstances did not justify the frisk of Respondent
Assuming arguendo that the Terry stop of Respondent was lawful, I also depart
from the majority in my conclusion as to the constitutionality of the frisk of Respondent.
“Although a reasonable ‘stop’ is a necessary predecessor to a reasonable ‘frisk,’ a
reasonable ‘frisk’ does not inevitably follow in the wake of every reasonable ‘stop.’”
Simpler v. State, 318 Md. 311, 319, 568 A.2d 22, 25–26 (1990) (quoting Gibbs v. State, 18
Md. App. 230, 238–39, 306 A.2d 587, 592 (1973)). The State does not argue that the odor
of marijuana alone provided reasonable suspicion that Respondent might have been armed
and dangerous, nor can it. See Norman, 452 Md. at 379, 156 A.3d at 944 (“An odor of
marijuana alone emanating from a vehicle with multiple occupants does not give rise to
reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous and
subject to frisk.”). Rather, the State argues that the totality of the circumstances
surrounding the officers’ encounter with Respondent justified the frisk
i. Officer Walden’s primary basis for frisking Respondent was that the officers
were outnumbered by Respondent and his companions
Maryland courts have held that “[o]ne of the key requirements of reasonable
suspicion, for either a stop or a frisk, is not only that it be present but that it be actually
articulated.” Graham v. State, 146 Md. App. 327, 359, 807 A.2d 75, 93 (2002) (emphasis
added). Specifically, in the context of a frisk, we have explained that it is a
threshold requirement that the frisking officer articulate his specific reasons
for believing that the suspect was armed and dangerous. It is not enough that
objective circumstances be present that might have permitted some other
officer in some other case to conclude that the suspect was armed and
dangerous. It is required that the frisking officer himself expressly articulate
the specific reasons he had for believing that the frisk was necessary.
9
Norman, 452 Md. at 424, 156 A.3d at 970 (emphasis added) (quoting Ames, 231 Md. App.
at 674, 153 A.3d at 906); see also Graham, 146 Md. App. at 359–60, 807 A.2d at 93 (“For
a good frisk, it is not enough that in the abstract facts have been developed that might,
objectively, permit some officer somewhere to conclude that the suspect or stopee was
armed and dangerous. It is required that the frisking officer actually articulate the factors
that lead to his reasonable suspicion that a frisk was necessary for his own protection.”).
We also require that such an articulated basis to justify a Terry frisk be particularized
to the individual circumstances at hand and cannot be a matter of a routine or a blanket
policy. We have rejected authorizing frisks as a matter of routine policy where an officer
lacks particularized reasonable suspicion that a suspect is armed and dangerous. In
Simpler, we recognized that, “[w]hile there undoubtedly is some risk to the police in every
confrontation, Terry has never been thought to authorize a protective frisk on the occasion
of every authorized stop.” 318 Md. at 321, 568 A.2d at 26. In that case, this Court rejected
the constitutionality of an officer’s frisk of individuals discovered drinking beer in the
woods, where he claimed his frisk was done as “a matter of routine caution.” Id. at 322,
568 A.2d at 27. Recently in Sellman v. State, we reaffirmed the holding in Simpler and
rejected an officer’s justification for a frisk of a suspect where the officer stated it was
routine policy to frisk a suspect when they conducted a search of the suspect’s automobile.
449 Md. 526, 537–38, 144 A.3d 771, 778 (2016).
In this case, the primary reason articulated by Officer Walden for searching
Respondent and his companions was that they outnumbered the officers five to two, and it
10
was protocol to frisk for weapons when officers are outnumbered by suspects. He
explained that in situations where officers are outnumbered:
At first[,] you’re in a terrible disadvantage. We were taught in the academy,
it’s basic, you’d want to also go with back-up and you shouldn’t handle any
call by yourself.
But there are times where you’re put in that position to where there are
several people coming at you, so you have to get the advantage. And one of
the first concerns is a weapon that they could use against you.
And my first concern was one of them having a weapon. And there was five
of them and they were right by a door where they could run out the door, plus
the odor of CDS, the odor of marijuana, that there was illegal drug activity
there, the fact that nobody could provide any identification that they live
inside that building.
So[,] the first thing we want to do is secure them and make sure they don’t
have any weapons on them. Once we found the weapon on them, then they
were secured and handcuffed.
Officer Walden later reiterated that the first thing he does whenever he is outnumbered by
suspects is search for weapons.
A blanket policy of always checking for weapons in circumstances where the
officers are outnumbered by suspects is decidedly not a permissible basis for a Terry frisk
under Simpler and Sellman. A Terry frisk must be supported by a particularized basis for
suspecting that an individual is armed and dangerous. See Thornton v. State, 465 Md. 122,
143, 214 A.3d 34, 46 (2019) (holding that, when considering the constitutionality of a Terry
frisk, “[t]he court must decide whether, under the circumstances, a reasonably prudent law
enforcement officer would have felt that he [or she] was in danger, based on reasonable
inferences from particularized facts in light of the officer’s experience[]”) (cleaned up)
(emphasis added). Officer Walden’s practice of always searching for weapons in cases
11
where he is outnumbered did not provide him with particularized suspicion that
Respondent was armed and dangerous. I would hold that using this blanket policy as the
primary basis for frisking Respondent renders the frisk unconstitutional under our Fourth
Amendment standards.
ii. Officer Walden did not have reasonable suspicion under the totality of the
circumstances that Respondent was armed and dangerous
Neither did the totality of the circumstances surrounding Officer Walden’s
encounter with Respondent reasonably justify a belief Respondent was armed and
dangerous. When determining whether reasonable suspicion exists, “[t]he test is ‘the
totality of the circumstances,’ viewed through the eyes of a reasonable, prudent, police
officer.” Sellman, 449 Md. at 542, 144 A.3d at 781 (2016) (quoting Bost v. State, 406 Md.
341, 356, 958 A.2d 356, 365 (2008)). As this Court recently stated in Thornton,
[t]o articulate reasonable suspicion, an officer must explain how the observed
conduct, when viewed in the context of all the other circumstances known to
the officer, was indicative of criminal activity. [I]t is impossible for a
combination of wholly innocent factors to combine into a suspicious
conglomeration unless there are concrete reasons for such an interpretation.
Law enforcement officers cannot simply assert that innocent conduct was
suspicious to him or her.
465 Md. at 147, 214 A.3d at 49 (internal citations and quotations omitted). In this case,
when asked why he suspected that Respondent and his companions may have been armed,
Officer Walden stated:
One [reason] was the evasive body language. Another reason is because I
just felt that because there’s five of them in baggy clothes, they were being
evasive, that for our safety to be able to continue with the investigation, that
I wanted to feel safe that there was nobody that was armed at that time.
12
I begin with addressing Respondent’s allegedly evasive behavior. Officer Walden
described Respondent’s behavior as follows:
Four of the subjects sit to the stairs to the left and [Respondent] stayed on the
top of the stairs to the right. And he was being evasive, because he was like
man, I’m not doing nothing –
* * *
He’s to the right of me and I told him to have a seat on top of the stairs. And
he just kept facing away from me, he was sitting facing away from me. His
body language, he just seemed to be evasive of what he was doing. Through
my training and knowledge, I know that if you’re being evasive in how you
carry your body language, I mean that’s a sign that you could be carrying a
weapon.
* * *
So as I’m standing here, he’s right there and he has a seat and he’s just facing
over here, so body language that I can’t see anything, I can’t really see his
hands. He would speak to me, but I can’t see his whole body language, I
can’t see what he’s doing.
We have explained that we will not “‘rubber stamp’ conduct simply because the
officer believed he had a right to engage in it” and that when an “officer seeks to justify a
Fourth Amendment intrusion based on that conduct, the officer ordinarily must offer some
explanation of why he or she regarded the conduct as suspicious; otherwise, there is no
ability to review the officer’s action.” Ransome v. State, 373 Md. 99, 111, 816 A.2d 901,
908 (2003). “In other words, there must be an ‘articulated logic to which this Court can
defer.’” Crosby, 408 Md. at 509, 970 A.2d at 904 (quoting United States v. Lester, 148
F.Supp.2d 597, 607 (D. Md. 2001). In Ransome, we rejected a claim of reasonable
suspicion that a suspect was armed and dangerous based on an observation that the suspect
13
had a bulge in his pocket, had stopped and looked at the unmarked police car as it
approached, and when questioned by law enforcement, had ceased eye contact and acted
nervously. Ransome, 373 Md. at 105, 816 A.2d at 904–05. We reasoned that the officer
“never explained why he thought that petitioner’s stopping to look at his unmarked car as
it slowed down was suspicious or why petitioner’s later nervousness or loss of eye contact,
as two police officers accosted him on the street, was suspicious.” Id. 109, 816 A.2d at
907.
Similar to the officer in Ransome, Officer Walden offered no explanation as to why
Respondent’s body language of sitting on a different part of the staircase from his
companions and facing away from the officers was indicative that he might have been
armed. Officer Walden simply testified he knew Respondent was being evasive based on
his “training and knowledge,” but failed to describe the training and knowledge or how it
would be indicative that a suspect might be armed. As a result, we have no ability to review
the officer’s actions and can only “rubber stamp” his conclusion that Respondent’s
behavior was indicative of someone who was armed. Without any further explanation from
Officer Walden, we could also conclude Respondent’s body language was simply
indicative of any teenager who was nervous, angry, or upset about being questioned by the
police. Respondent was not the first person in his group searched, which suggests that the
officers did not find Respondent’s behavior particularly concerning. Instead, and
consistent with Officer Walden’s testimony, law enforcement searched the entire group as
a matter of policy.
14
Officer Walden also referenced the fact Respondent was in “baggy clothes” among
his considerations when developing reasonable suspicion that Respondent was armed.
Specifically, he testified Respondent was wearing a “puffy jacket.” The incident in
question occurred in mid-November, when many Marylanders who are outside or about to
walk outside will likely be found wearing puffy jackets to stay warm. Respondent and his
companions similarly wore puffy jackets as they were about to walk outside; therefore this
behavior should not have contributed to the officer’s reasonable suspicious calculus. Cf.
United States v. Drayton, 536 U.S. 194, 207, 122 S. Ct. 2105, 2114 (2002) (noting that it
could have been relevant to a Terry stop and frisk analysis that the suspects were “dressed
in heavy, baggy clothes that were ill-suited for the day’s warm temperatures[.]”) (emphasis
added).
As recognized by the Third Circuit, “[t]here are limits, however, to how far police
training and experience can go towards finding latent criminality in innocent acts.”
Johnson v. Campbell, 332 F.3d 199, 208 (3d Cir. 2003). In this case, the fact Respondent
wore a bulky jacket, just as most people would wear in mid-November, should not be
considered a contributing factor to the officer’s reasonable suspicion that he was armed
and dangerous. See, e.g., State v. Broadus, 111 A.3d 57, 61–62 (N.H. 2015) (finding the
fact that (1) the officer believed “that the defendant lied when she denied drinking alcohol
in the vehicle; (2) she did not maintain eye contact with Locke; and (3) she wore baggy
clothes[]” neither “alone or together, could have supported a reasonable suspicion that the
defendant was armed and presently dangerous[]” and that “nothing about the defendant’s
‘attire alone could tell the officer[ ] anything about [her], except that [s]he liked to wear
15
baggy clothing.’”) (quoting State v. Miglavs, 90 P.3d 607, 613 (Or. 2004)); United States
v. Job, 871 F.3d 852, 861 (9th Cir. 2017) (finding “the facts that Job’s pants appeared to
be ‘full of items’ and he appeared nervous do not support the conclusion that he was
engaged in criminal activity[]” warranting a Terry frisk).
The same is true of the officer’s consideration that “there was five of them” as a part
of his calculation Respondent could have been armed and dangerous. Like wearing a puffy
jacket in November, there is nothing suspicious about travelling with a group of four other
people, especially as young people. There is no reason to believe, nor did Officer Walden
offer any reason to believe, that travelling with such a group might indicate a suspect being
armed. As discussed above, a blanket policy of searching members of a group anytime an
officer is outnumbered is not permissible under Maryland law, and Officer Walden offered
no reason to believe that Respondent travelling in this particular group of five indicated he
was armed and dangerous.
Finally, neither should the fact that the officers were responding to a call reporting
possible trespass and marijuana use add to the reasonable suspicion calculus.2 In Sellman,
we explained:
2
Although the Officer Walden did not mention the nature of the call when directly
responding to the question about why he believed Respondent may have been armed, he
did mention the nature of the call later when discussing the policy about frisking when
outnumbered by suspects. Specifically, he stated:
And my first concern was one of them having a weapon. And there was five
of them and they were right by a door where they could run out the door, plus
(continued . . .)
16
But for other types of crimes, such as trafficking in small quantities of
narcotics, possession of marijuana, illegal possession of liquor, prostitution,
bookmaking, shoplifting and other theft, passing bad checks, underage
drinking, driving under the influence and lesser traffic offenses, minor
assault without weapons, curfew information, or vagrancy, as well as when
the stop is for a legitimate noncriminal reason, or when the officer’s duties
otherwise necessitate his being in close proximity to the individual, there
must be, as Justice Harlan noted in Terry, “other circumstances” present.
Illustrative of the circumstances the courts have deemed sufficient are: the
suspect’s admission he is armed; a characteristic bulge in the suspect’s
clothing; an otherwise inexplicable sudden movement toward a pocket or
other place where a weapon could be concealed; movement under a jacket or
shirt “consistent with the adjustment of a concealed firearm”; an otherwise
inexplicable failure to remove a hand from a pocket; awkward movements
manifesting an apparent effort to conceal something under his jacket;
backing away by the suspect under circumstances suggesting he was moving
back to give himself time and space to draw a weapon; awareness that the
suspect had previously been engaged in serious criminal conduct (but not
more ambiguous “record” information); awareness that the suspect had
previously been armed; awareness of recent erratic and aggressive conduct
by the suspect; discovery of a weapon in the suspect’s possession; discovery
that the suspect is wearing a bullet proof vest as to which he makes evasive
denials; and awareness of circumstances which might prompt the suspect to
take defense action because of a misunderstanding of the officer’s authority
or purpose.
449 Md. at 560–61, 144 A.3d at 792 (some emphasis added) (quoting WAYNE R. LAFAVE,
SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.6(a) 855–62 (5th
ed. 2012)). The investigation potential trespass and marijuana possession by teenagers
surely falls into category of minor, non-violent crimes for which “other circumstances”
(. . . continued)
the odor of CDS, the odor of marijuana, that there was illegal drug activity
there, the fact that nobody could provide any identification that they live
inside that building.
As such, I will still consider this a factor articulated by Officer Walden as one of his
articulated bases for suspecting Respondent was armed and dangerous.
17
must be present in order for a police officer to “infer weapons use.” See id. at 559–61, 144
A.3d at 791–92. While the examples of “other circumstances” listed in Sellman are
certainly not exhaustive, none of the circumstances surrounding the officers’ encounter
with Respondent are analogous to the examples listed. Here, the officers did not say that
Respondent was making furtive or awkward movements manifesting an effort to conceal a
firearm, but just that he was not facing them, and they could not see his hands. Far from
refusing to remove his hands from his jacket when requested, the officers never asked
Respondent to make his hands visible or face them at all. As “other circumstances” were
not present, the officers were not permitted to infer weapons use based on the nature of the
crimes they were investigating.
The State mentions a few other circumstances it believes contributed to the officer’s
reasonable suspicion that Respondent was armed and dangerous, namely: Respondent’s
refusal to answer the officer’s questions, and the fact that the officer recovered a BB gun
from one of Respondent’s companions. Although the officers certainly testified about
these facts, they notably did not mention them as contributing factors to their determination
that Respondent might have been armed. As discussed above, Maryland courts rely on the
frisking officer’s actual “articul[ation] [of] his specific reasons for believing that the
suspect was armed and dangerous[]” and find it insufficient “that objective circumstances
be present that might have permitted some other officer in some other case to conclude that
the suspect was armed and dangerous.” Ames, 231 Md. App. at 674, 153 A.3d at 906.
Rather, it is “required that the frisking officer himself expressly articulate the specific
reasons he had for believing that the frisk was necessary.” Id., 153 A.3d at 906. As such,
18
I would not consider factors that were not articulated by the officers as a part of their
consideration for determining Respondent might have been armed and dangerous.
Even considering such factors, I conclude they still do not amount to reasonable
suspicion that Respondent was armed and dangerous under the totality of the
circumstances. First, pertaining to the fact Respondent refused to answer the officer’s
questions and said “[m]y dick” in response to the officers’ questions about who lived in
the building, Respondent was not obligated to respond to the officer’s questions. See
Collins v. State, 376 Md. 359, 368, 829 A.2d 992, 997 (2003) (explaining an individual
detained and questioned during a Terry stop “is not obligated to respond . . . and, “unless
the detainee’s answers provide the officer with probable cause to arrest him, he must then
be released.”). The officers described the group as “snickering, laughing and very
carefree[;]” they were uncooperative, but not aggressive or agitated. Respondent’s
response may have been indicative of his immaturity or desire to impress his friends, but it
did not reasonably suggest that he was armed or dangerous.
Second, the recovery of the BB gun from one of Respondent’s companions did not
justify Officer Walden’s frisk of Respondent. Recently, in Lockard v. State, the Court of
Special Appeals rejected an officer’s assertion “[i]f there’s one weapon, there could be
more[]” as a justification of the frisk of a suspect after a knife was observed in his pocket.
247 Md. App. 90, 98, 233 A.3d 228, 233 (2020). Additionally, we have stated that “to
allow the reasonable, articulable suspicion standard to be satisfied based upon a person’s
status, rather than an individualized assessment of the circumstances, would undermine the
purpose for requiring officers to justify their reasons for searching a particular individual.”
19
State v. Nieves, 383 Md. 573, 597, 861 A.2d 62, 77 (2004) (emphasis added). As such,
Respondent’s status as a companion to an individual discovered to be carrying a handgun,
is not sufficient to justify the officers’ reasonable suspicion that he might also be armed
and dangerous.3
The State relies on El-Amin v. Commonwealth, 607 S.E.2d 115 (Va. 2005), in which
police investigated a report that a group of young black males was smoking marijuana on
a particular street corner. Id. at 116. When the officers approached, one of the members
of the group began walking away and when the officers requested that he stop and face
them, and the individual instead reached for his waistband. The officers restrained the
individual, who continued to attempt to reach for his waist band, and ultimately recovered
a pellet gun from a search of his person. Id. The officers then conducted a frisk of the
other members of the group, including the defendant who was found to be carrying a
firearm. Id. In that case, the Virginia Court explicitly did not adopt a per se rule approving
of the search of a companion of a person validly frisked4 and found to be in possession of
a weapon. Id. at 118. Rather, it determined the circumstances present in that case,
including, the fact it was late at night and they were in a high-crime area, in addition to the
discovery of the weapon and group activity. Id. at 119.
3
It is also worth questioning whether possession of a BB gun would warrant
characterizing Respondent’s companion as armed and dangerous.
4
In El-Amin, the Court found the search of the defendant’s companion was clearly
justified as the companion did not comply with the officer’s commands to turn around and
face him and began to reach for his waistband. 607 S.E.2d at 116. Although the issue is
not directly before this Court, it is not evident from the record the search of Respondent’s
companion revealing the BB gun was likewise justified.
20
Unlike in El-Amin, there were no additional circumstances in this case that justified
the officers’ search of Respondent. All of the members of Respondent’s group complied
with the officers’ commands that they sit on the stairs. The officers’ encounter with the
group occurred indoors around approximately 7 p.m. and there was not a suggestion they
were in a high crime area. Furthermore, as discussed above, none of the other
circumstances surrounding the encounter, considered individually or together, warranted
reasonable suspicion Respondent might have been armed and dangerous. This Court has
not adopted a per se rule approving a search based on status as a companion of someone
from whom a weapon was recovered, and the recovery of the BB gun from Respondent’s
companion was not sufficient to warrant a frisk of Respondent.
CONCLUSION
Considering the foregoing, I dissent and would affirm the Court of Special Appeals’
holding that the gun recovered from Respondent should have been suppressed as the fruit
of an unlawful search. The totality of the circumstances neither provided a reasonably
articulable basis that Respondent was in unlawful possession of marijuana nor a reasonably
particularized suspicion that Respondent was armed and dangerous.
Judge Raker has authorized me to state that she joins in this opinion.
21