Supreme Court interested in state's appeal of marijuana-frisk

State AG argues the smell of marijuana gives police a reasonable concern for their safety

By Steve Lash
BridgeTower Media Newswires
BALTIMORE — The U.S. Supreme Court is showing interest in Maryland’s appeal of a high-court decision that the pungent smell of raw, unsmoked marijuana emanating from a car during a traffic stop does not in itself enable police officers to frisk a passenger for weapons.

Last week, the justices asked the Maryland public defender’s office to respond to the state’s request that they review the Court of Appeals’ March decision in Joseph Norman Jr. v. Maryland. The justices’ call for a response — after the office waived its
right to respond — indicates that the high court is strongly considering the state’s petition for review.

In its March ruling, the Court of Appeals said police officers – to conduct a constitutional frisk – must have “reasonable articulable suspicion” based on the “totality of the circumstances” that the passenger is armed and dangerous, and not just that he or she is in a car that reeks of marijuana.

In the state’s petition for Supreme Court review, Maryland Attorney General Brian E. Frosh argued that the smell of marijuana gives police a reasonable concern for their safety that justifies a pat-down of passenger without violating their constitutional Fourth Amendment right against unreasonable searches.

“By withholding authority to frisk the occupants of a car that an officer already has probable cause to search, and by retreating from the widely recognized association of drugs and guns particularly in the circumstances of drug trafficking or transport on the nation’s roads, the decision below makes constitutionally unreasonable the educated instincts that keep traffic officers alive,” Frosh wrote. “This should not be.”

The Supreme Court has given the Maryland public defender’s office until Aug. 31 to respond to the state’s petition.

“We’re going to be preparing a response in the weeks to come and we’ll be filing it with the court,” Brian Saccenti, who heads the office’s appellate division, said Friday.

The high court’s action was previously reported on the “Maryland Appellate Blog.”

The state’s petition is co-signed by Assistant Attorneys General Daniel J. Jawor and Carrie J. Williams, the lawyer of record before the Supreme Court.

The justices are scheduled to vote Sept. 25 on whether to hear the state’s appeal in Maryland v. Joseph Norman Jr., No. 16-1547. That date, however, will likely be extended in light of the court’s request for the public defender’s response.

Unreasonable search

In its controversial decision, the Court of Appeals rejected the state’s argument that the smell indicates drug trafficking – an often violent undertaking whose participants can always be presumed to be armed and dangerous. The state also argued that in all such cases a limited pat-down of the passengers for the presence of weapons is justified to protect the officer’s safety.

But the Court of Appeals noted that Maryland law does not regard the possession of less than 10 grams of marijuana to be a criminal act. Rather, such possession is a civil offense punishable by a $100 fine.

“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,” Judge Shirley M. Watts wrote for the majority. “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 the circumstances must indicate that the occupant in question is armed and dangerous. 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.”

In its decision, the court overturned Joseph Norman Jr.’s conviction and nine-month prison sentence of possessing 70 grams of marijuana. A police officer had found the drugs while patting Norman down after ordering him and two other passengers out of a car that smelled of raw marijuana and had been stopped for having a broken taillight March 22, 2015, on U.S. Route 13 in Somerset County.

The Somerset County Circuit Court and the intermediate Court of Special Appeals upheld the officer’s pat-down of Norman and the admission of the drugs found on him.

But the Court of Appeals said the drugs should not have been admitted into evidence because the officer’s frisk had violated Norman’s Fourth Amendment right against unreasonable searches. The officer had no basis for suspecting Norman of being armed beyond having smelled marijuana, the court said.

Missing from the officer’s pretrial testimony was any mention that Norman made furtive movements, was wearing baggy pants, had a violent criminal record, was being uncooperative or exhibited any other behavior to indicate he might be armed, Watts wrote in an opinion joined in total by Judge Michele D. Hotten and in large part by Chief Judge Mary Ellen Barbera and Judge Sally D. Adkins.

‘Crumbled’ inference

In a concurring opinion, Adkins objected to Watts’ reference to decisions from federal and other state courts justifying frisks following the officers’ smell of marijuana. Reference to those cases “muddies the waters” from the court’s central holding that the smell of marijuana alone does not justify a search, Adkins wrote.

The inference that the smell of marijuana gives rise to a suspicion of drug dealing and weapons possession “crumbles under the weight of the Fourth Amendment,” Adkins added in the concurring opinion Barbera joined.

“It is not reasonable for a police officer to believe that a passenger in a vehicle that smells of marijuana is selling drugs,” Adkins wrote. “Indeed, the officer cannot assume that the occupants are engaged in criminal activity at all – in Maryland, the possession of less than 10 grams of marijuana is no longer a criminal offense.”

Added Adkins: “To conduct a … frisk, police officers must have evidence pointing to weapons, not only marijuana.”

In dissent, Judge Joseph M. Getty said the court should have deferred to the circuit court’s conclusion that the officer’s pat-down was based on his reasonable articulable suspicion that Norman might have been armed.

“The circuit court is most likely to be familiar with the area where the stop took place, the dangers that law enforcement officers regularly face in that area, and the overall threat to officer safety in that particular community,” Getty wrote. “I believe that Judge Watts’ opinion – which requires police officers, in order to justify a pat down for weapons, to point to additional circumstances beyond probable cause that drugs are present in a vehicle with multiple occupants – will subject police officers to take unnecessary risks in the performance of their duties.”

Judge Robert N. McDonald joined Getty’s dissent.

Judge Clayton Greene Jr. joined in the court’s judgment only.