Maryland’s Court of Special Appeals released a decision last month ruling that the smell of cannabis by itself does not provide reasonable suspicion of criminal activity, making it illegal for police officers to use the smell of cannabis as a legal cause to stop and search an individual.
This ruling ties six-year-old loose ends in Maryland cannabis case law, which, until now, have not discussed whether police officers can use cannabis odor to stop and search an individual since possession of less than 10 grams of cannabis was decriminalized in 2014 and Maryland has a medicinal cannabis program.
Last summer, the Court of Special Appeals ruled on a separate case (Lewis v. State of Maryland), stating cannabis odor alone does not constitute probable cause to arrest an individual because odor cannot determine whether someone has an illegal quantity (more than 10 grams) of cannabis on their person, if any at all.
In this case however, the Court of Special Appeals was tasked with deciding whether the odor of cannabis, by itself, provides reasonable suspicion of criminal activity—which is the standard of evidence police must meet to perform an “investigatory stop.”
An investigatory stop—or a Terry stop (and often known understood as stop-and-frisk)—is one where police can search an individual without a warrant, given the “reasonable suspicion, supported by articulable facts, that criminal activity may be afoot.”
This case began when police officers Jeffrey Walden and Alexandra Moser responded to a service call at an apartment complex in Capitol Heights, later testifying that the call was about boys in the laundry room of the complex smoking a controlled substance and playing loud music.
The appellant is a 15-year-old boy (who will not be named) who was accompanied by a group of other teenagers. Walden and Moser arrived at the apartment complex 30 minutes after the call was made, and encountered a group of boys (including the appellant) in the stairway of the apartment building.
One of the five individuals who testified on the appellant’s behalf stated he and his friends were “chilling, listening to music” in the laundry room and when they left, they encountered the two police officers. One of the individuals present testified that the police officers immediately told the group to sit down, and asked “where’s the dope?”
Michele Hall, the Maryland Defense Attorney who represented the appellant in this case, argued the odor of cannabis alone did not provide reasonable suspicion of criminal activity to justify a stop and frisk search of the appellant.
Hall was a public defender in Prince George’s County juvenile court when she was assigned to this case. She was reassigned to the Court of Special Appeals in January, which she said provided her the unique opportunity to follow this case from trial to appeal.
“When I first got the case, it was pretty clear to me this was a case of officers coming into a low income community and using the smell of weed to search and frisk all of these kids,” Hall told The Outlaw Report.
The officers testified they then searched the boys to determine if they were armed, which they said is standard practice if officers are outnumbered. Officer Walden confiscated a handgun from the appellant and cited the smell of cannabis as reasonable suspicion to perform the search when he recovered the gun.
Hall made a motion to suppress the handgun as evidence in the appellant’s trial because it was confiscated during an illegal stop, using the ruling in Lewis to argue that cannabis odor is not enough to indicate whether an individual is in the midst of criminal activity and therefore should not permit an officer to stop and frisk.
The motion to suppress the handgun was denied by the Circuit Court of Prince George’s County, which is the decision being appealed in this case.
On April 28, the Court of Special Appeals ruled in favor of the appellant, agreeing that the smell of cannabis alone does not provide reasonable suspicion of criminal activity and therefore does not meet the requirements for police to perform an investigatory stop. Therefore, the handgun police found when searching the appellant was confiscated during an illegal search, violating the appellant’s Fourth Amendment right protecting them from unreasonable search and seizure.
The court reiterated its stance in Lewis, noting that because possession of less than 10 grams of cannabis is decriminalized in Maryland, the presence of it’s odor alone cannot determine whether an individual is in possession of an illegal quantity.
This means that in Maryland, case law now prohibits police officers from using cannabis odor alone to stop, search or arrest an individual because it does not provide reasonable suspicion or probable cause that an individual is involved in any criminal activity.
Hall said the use of cannabis odor to justify police interactions is disparately applied to low-income communities and communities of color. The legislators who supported Maryland’s 2014 decriminalization bill cited racist enforcement of cannabis law as one of the primary reasons to decriminalize possession of less than 10 grams.
Hall expressed frustration that it took until 2021 to determine cannabis odor cannot justify a police stop considering decriminalization of personal-use amounts was enacted more than six years ago.
“To continue to justify and allow police to invest time and start these citizen interactions based on the smell of weed really undercuts the legislative intent of this entire enterprise that we’re working on,” Hall said.
She emphasized that cannabis odor alone still permits an officer to search a vehicle, which will not be prohibited until stated by the legislature explicitly or ruled on by the Court of Appeals. And, despite case law, police can still use cannabis odor to justify their actions, which will not be corrected until court, long after the defendant has already been entangled with the criminal justice system.
“There are long term lasting impacts from being pulled into the system,” Hall said. And then Hall quoted something her husband (who is also a public defender) said: “Even though you have these rights and have these protections, oftentimes that doesn’t get vindicated until you come to court maybe two, four, six months later.”