Maryland Court: Cops Can Stop, Question Someone Who Smells of Pot

Officers in Maryland may stop and question an individual who smells of cannabis, a court ruled last week.

In a divided ruling, the state’s Court of Appeals said “the drug’s aroma provides police with ‘reasonable suspicion’ that the person may have 10 grams or more, thus permitting the officers to conduct a brief ‘investigatory’ stop,” the Daily Record reported.

But the ruling does not give law enforcement carte blanche in those circumstances. According to the outlet, those officers “must end the stop if they do not quickly obtain information that gives them probable cause to believe the person has at least 10 grams or has committed another criminal offense.”

And the Daily Record noted that, despite the ruling, “possession of less than 10 grams of the drug is not a crime in the state.”

The ruling stems from a case involving a 15-year-old who was found to have a handgun in his possession. Officers found the weapon on the juvenile’s waist after conducting a frisk that was prompted by the odor of cannabis.

Last year, the Maryland Court of Special Appeals––an intermediate appellate court––took up the case and ruled that the smell of weed does not justify a cop to conduct a search, citing the decriminalization of possessing 10 grams or less of cannabis in Maryland.

“Because possession of less than 10 grams of marijuana is no longer a crime, the suspicion required to support a stop for the crime of possession of marijuana, therefore, is that the person is in possession of more than 10 grams of marijuana,” Judge Kathryn Grill Graeff wrote in her opinion, as quoted by local news outlet WTOP. “And because the ‘odor of marijuana alone does not indicate the quantity, if any, of marijuana in someone’s possession,’ [citing a previous case], 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.”

But last week’s ruling from the state’s Court of Appeals undoes that opinion.

In a 4-3 decision, the majority “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,” according to the Daily Record.

“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 if criminal activity is afoot,” Judge Jonathan Biran wrote in the majority opinion, as quoted by the Daily Record. “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.’”

Judge Michele D. Hotten, writing for the minority, said that 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 10 grams of (marijuana) odor in a non-medicinal capacity to form a basis of reasonable suspicion,” Hotten wrote in the dissenting opinion, according to the Daily Record.

Another judge in the majority addressed the particulars of the stop involving the 15-year-old, saying that the “officer in this case was justified in stopping [the juvenile] because police were responding to a call that a males [sic] were smoking a controlled dangerous substance in the basement of an apartment complex, which would indicate an amount of marijuana of at least 10 grams,” according to the Daily Record.

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