Odor of Marihuana – Rolling While You Roll
The Odor of Marijuana Emanating from a Vehicle
By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
If you’re Snoop Dogg , Tom Petty , or Neil Young , then you know all about the odor of marijuana emanating from a vehicle. If you’re Jay Z , then you think you know your rights when it comes to cops, stops, and automobiles.
But how well do you know the current state of the law when you get the call from your client that he got caught rolling the green while he was rolling down the road?
This year, the Court of Appeals (“COA”) decided two important cases that pertain to the odor of marijuana emanating from a vehicle. The first case that was decided was Robinson v. State, and that case dealt with whether the odor of marijuana emanating from a vehicle was sufficient to establish probable cause to search the vehicle. The second case that was decided was Norman v. State, and that case dealt with whether the odor of marijuana emanating from a vehicle was sufficient to establish reasonable articulable suspicion that a passenger was armed and dangerous in order to support a frisk of the passenger. Robinson and Norman establish bright line rules but “getting into the weeds” of each of these cases will be important to your understanding of the holdings.
In Robinson v. State, 451 Md. 94, 99 (2017), the COA addressed whether, in light of the decriminalization of possession of less than ten grams of marijuana, a law enforcement officer has probable cause to search a vehicle based on an odor of marijuana emanating from the vehicle.
The COA unanimously 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, as marijuana in any amount remains contraband, notwithstanding the decriminalization of possession of less than ten grams of marijuana. The COA simply put it: decriminalization of marijuana is not synonymous with legalization. Possession of marijuana remains unlawful even if it is only a civil offense.
The odor of marijuana alone gives rise to probable cause to believe that the vehicle contains contraband or evidence of a crime. So where does this phrase “contraband or evidence of a crime” come from? This language has evolved over the last century in connection with the “automobile exception” a/k/a the “Carroll Doctrine” which is an exception to the warrant requirement, in which a law enforcement officer may conduct a warrantless search of a vehicle based on probable cause that there is contraband or evidence of a crime present in the vehicle. See Carroll v. U.S., 267 U.S. 132 (1925), California v. Acevedo, 500 U.S. 565, 569 (1991); Florida v. Harris, 568 U.S. 237 (2013).
In Carroll, the Supreme Court held that, with probable cause to believe that a vehicle contains contraband, a law enforcement officer may search a vehicle without a warrant, because vehicles can be quickly moved from one jurisdiction to another, making it impracticable to obtain a warrant.
In 2014, the General Assembly amended the penalty provisions regarding marijuana and made possession of less than 10 grams of marijuana a civil offense punishable by a fine only.
The Court of Special Appeals (“COSA”) decided Bowling, 227 Md.App. 460, 476 (2016) and concluded that the decriminalization of possession of less than ten grams of marijuana did not alter the status of marijuana as contraband in Maryland, and that a narcotics dog’s alert provides probable cause to search a vehicle pursuant to the Carroll doctrine. The COSA explained that marijuana in any amount remains contraband, i.e., goods that are unlawful to possess, and a search is permitted when there is probable cause to believe that the car contains evidence of a crime or contraband.
The Robinson Court likewise concluded 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. Decriminalization is not the same as legalization. Possession of marijuana in any amount remains illegal in Maryland. There still is a fine associated with the offense, and a potential requirement of participation in a drug education program. When the General Assembly reclassified possession of less than ten grams of marijuana from a “misdemeanor” to “a civil offense” the General Assembly added that the decriminalization “may not be construed to affect the laws relating to…seizure and forfeiture.”
The Supreme Court in applying Carroll has made it applicable to scenarios where there is the belief that “contraband or evidence of a crime is present.” Florida v. Harris, 568 U.S. 237 (2013); Wyoming v. Houghton, 526 U.S. 295, 304 (1999); Texas v. Brown, 460 U.S. 730, 742 (1983).
Therefore, in Maryland, even if the driver of a vehicle cannot be arrested for possession of less than 10 grams of marijuana, the vehicle itself can still be searched if there is probable cause to believe that marijuana, in any amount, is present.
Shortly after Robinson was decided, the COA decided Norman v. State, –A.3d–, 2017 WL 1131907, in which the COA addressed whether a law enforcement officer who detects an odor of marijuana emanating from a vehicle with multiple occupants has reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous, and thus may frisk – i.e., pat down – the vehicle’s occupants for weapons.
The Court of Appeals held that the police trooper lacked reasonable articulable suspicion to frisk Norman, following the traffic stop of a vehicle in which Norman was a passenger, even though the trooper detected a strong odor of marijuana emanated from the vehicle.
In Norman, Trooper Dancho initiated a traffic stop of a vehicle in which Norman was the front seat passenger. Trooper Dancho detected a strong odor of fresh marijuana emanating from the vehicle. Trooper Dancho ordered the vehicle’s three occupants to exit the vehicle so that he could search the vehicle for marijuana (pursuant to Robinson).
*Before searching the vehicle, Trooper Dancho frisked Norman and uncovered marijuana.
The State argued that the odor of marijuana emanating from a vehicle gives rise to a reasonable inference that all of the vehicle’s occupants are engaged in the common enterprise of drug dealing, which is often associated with guns. The State relied on Bost v. State, 406 Md. 341, 360 (2008), in which the COA citing U.S. v. Sakyi, 160 F.3d 164, 169 (4th Cir. 1998) said “Guns often accompany drugs, and many courts have found an ‘indisputable nexus between drugs and guns.'” Likewise, the CSA has also stated that “guns are widely known to be used in narcotics trafficking.” Dashiell v. State, 374 Md. 85, 101-02 (2003).
Norman contended that the odor of marijuana emanating from a vehicle, without more, does not give rise to reasonable articulable suspicion to believe that the vehicle’s occupants are armed and dangerous.
The Norman Court reaffirmed its holding in Robinson, that the odor of marijuana alone gives rise to probable cause to search a vehicle because the odor of marijuana indicates that the vehicle contains contraband or evidence of a crime.
However, the Norman Court held 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.
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.
The COA found that Robinson was not determinative of the issue at hand. Robinson explained that marijuana in any amount is contraband and therefore the odor of marijuana constitutes probable cause to search a vehicle for contraband. Also, no frisks or searches of persons were at issue in Robinson.
Nowhere in Robinson did the COA mention guns, much less address the circumstances under which a law enforcement officer may reasonably infer that a vehicle’s occupant possesses a gun or is dangerous.
The Norman Court found State v. Wallace, 372 Md. 137, 141 (2002), instructive. There the COA found that a narcotics dog’s alert to a vehicle in which the defendant was a backseat passenger did not establish probable cause to search the defendant, as there was no circumstance that would justify a search that were “specific to” the defendant. The narcotics dog did not sniff and alert to the defendant’s person, as opposed to the vehicle. The K-9 sniff of the car was insufficient to establish probable cause for a search of a non-owner, non-driver for possession.
Wallace demonstrates that, in determining whether a law enforcement officer may intrude on the sanctity of a defendant’s person based on the belief that the defendant possessed drugs in a vehicle with multiple occupants, a court must focus on the circumstances, or the lack of circumstances, that involve the defendant.
In Norman, there were multiple occupants of the car and there were no circumstances that led to the conclusion that Norman was armed and dangerous.
Wallace and Norman deal with a search/frisk of person at a point in time when the vehicle had not been searched yet and no contraband had yet been found. In Wallace and Norman, the precise location of the contraband within the vehicle was not known.
By contrast in Maryland v. Pringle, 540 U.S. 366, 368-69 (2003), the precise location of the incriminating evidence (cash and cocaine) had been established as being within the defendant’s reach. The drugs were in the backseat’s armrest so it was entirely reasonable to infer that any or all three of the occupants had knowledge of, and exercised dominion and control over the cocaine.
In Pringle, the Supreme Court was not confronted with the question of whether it may be concluded that a vehicle’s occupants are involved in drug dealing based solely on a narcotics dog’s alert, or whether evidence that a vehicle’s occupants are involved in drug dealing leads to the conclusion that the vehicle’s occupants are armed and dangerous. Thus, Pringle has not undermined Wallace and Wallace remains good law.
In contrast to Pringle, there was not any evidence establishing the location of marijuana in the vehicle, i.e., the source of the odor of marijuana, or that Norman had dominion and control over any marijuana in the vehicle.
The Norman Court did not find that Stokeling v. State, 189 Md. App. 653, 667 (2009), stood for the proposition that marijuana alone emanating from a vehicle with multiple occupants provides reasonable articulable suspicion to frisk each of the vehicle’s occupants. Rather, there were additional facts in Stokeling such as the defendant was shaking and breathing rapidly, appeared very nervous, continued to shake and act nervous after exiting the vehicle, and the defendant said he was shaking because he was cold even though it was a hot summer night.
The Norman Court declined to follow the Fourth Circuit’s lead in Sakyi, 160 F.3d at 169, that created a presumption of reasonable articulable suspicion to frisk an occupant of a vehicle with multiple occupants based on an odor of marijuana alone.
The Norman Court cited cases where other factors were present in addition to the odor of marijuana, which may have contributed to the finding that the defendant was armed and dangerous, i.e.,
- Driving with a revoked or suspended license
- The location of the marijuana known to be in proximity to a specific occupant
- The fact that the defendant was larger than the law enforcement officer and was wearing baggy clothing capable of concealing a weapon
- Whether the defendant was the driver
- Whether the officer testified that he believed that “guns go hand in hand with drugs”
- Whether the stop occurred late at night in a high-crime area
The Norman Court declined to follow the approach of considering whether there are any circumstances that lessen a law enforcement officer’s concerns about safety; and instead, the appropriate analysis is whether any circumstances exist that indicate that a defendant is armed and dangerous.
The Norman Court said that Bost and Dashiell and the connection between guns and drugs does not affect the holding in Norman. In Dashiell, there was a search of a suspected drug dealer’s house pursuant to a search warrant where officers stated in the application that the suspect had been seen with a handgun at the residence. Thus, weapons and guns were known to be used in drug trafficking in that case based on witness reports. Similarly, in Bost, the defendant was fleeing from law enforcement in a high-crime, drug-trafficking area, the flight was unprovoked, and the defendant was seen clutching what was believed to be a concealed weapon as he fled.
The Norman Court said that upon detecting an odor of marijuana emanating from a vehicle with multiple occupants, an officer may ask all of the occupants to exit the vehicle, call for backup, detain the vehicle’s occupants for a reasonable period of time to accomplish the search of the vehicle, and search the vehicle for contraband and/or evidence of a crime. But Terry has never been construed to authorize a routine frisk of every person in a vehicle without reasonable articulable suspicion that the person is armed and dangerous.
In Norman, Trooper Dancho did not testify that Norman had made furtive movements, moved around inside the vehicle, or otherwise behaved suspiciously, that Norman attempted to flee, that there were any bulges in Norman’s pockets, that Norman’s clothing was baggy, large, or easily able to conceal a weapon, that Norman’s hands were not visible, that Normal appeared nervous, that Norman provided a fake name or false identification, that Norman said something that was either false or inconsistent with something that another one of the vehicle’s occupants had said, that Norman was hostile, argumentative, or otherwise uncooperative, that Norman failed to comply with Trooper Dancho’s instructions, that Norman had a criminal record or was known to be violent or carry a gun, or even that the traffic stop took place in a high-crime area and/or an area that was known for drug activity or gun violence.
The Norman Court recognized that it was nighttime at the time of the traffic stop, and that there were multiple people in the vehicle, but before conducting the frisk, Trooper Dancho called for backup and two more troopers arrived. At the time Norman was frisked, the occupants no longer outnumbered law enforcement. More importantly, Trooper Dancho did not testify that these factors caused him to believe that Norman was armed and dangerous.
Thus, the circuit court erred in denying the motion to suppress.
From these cases certain practice pointers become clear. First, if you are the prosecutor you need to extract from the police officer whom conducted a weapons frisk all the facts and circumstances that the police officer relied upon in deciding that a weapons frisk was necessary and justifiable. If the odor of marijuana is all that the police officer had, then Norman tells us that any evidence derived from that frisk is the product of an unlawful search.
For defense counsel, remember there are times when it is wise to “SHUT UP.” If the prosecutor has failed to elicit testimony as to anything other than the odor of marijuana before the frisk of your client that may have led to the discovery of contraband or other incriminating evidence, your unnecessary cross-examination may do nothing more than add the necessary and critical evidence to supplement the record and provide the necessary justification for a weapons frisk.
Police: Well, do you mind if I look around the car a little bit?
Jay Z: Well, my glove compartment is locked. So is the trunk in the back. And I know my rights, so you gon’ need a warrant for that.
Police: Aren’t you sharp as a tack? You some type of lawyer or something? Somebody important or something?
Jay Z: Well, I ain’t passed the bar, but I know a little bit. Enough that you won’t illegally search my s***.
Police: Well, we’ll see how smart you are when the K9 come.
Chamillionaire, Ridin’: (“They see me rollin’, they hatin’, patrolling they tryin’ to catch me ridin’ dirty, tryin’ to catch me ridin’ dirty, tryin’ to catch me ridin’ dirty, tryin’ to catch me ridin’ dirty, tryin’ to catch me ridin’ dirty.”)