COSA Dissent Watch: Marijuana Odors and Pat-Downs
The case: Norman v. State, Sept. Term 2015, No. 1408 (Aug. 11, 2016)
The questions: Was the odor of marijuana effectively the only justification for a police officer’s alleged belief that a passenger in a vehicle was armed and dangerous? If so, is that belief reasonable for the purposes of the Fourth Amendment?
The facts: A police officer conducted a nighttime stop of a car because it had an inoperable tail light. During the stop, he smelled a “strong” odor of raw marijuana in the passenger compartment of the vehicle. The officer ordered Joseph Norman, a passenger, out of the car and patted him down, during which a bag of marijuana fell out of his pants.
Norman was arrested, and, at his trial on charges of marijuana possession, moved to suppress the evidence. His basis for the motion was that, given that possession of less than 10 grams of marijuana is now a civil rather than criminal offense (though he was found with more than 10 grams), there was no reasonable suspicion that he was armed and dangerous, rendering the pat-down illegal. Ruling that, “weapons, specifically guns are often associated with drug activity the Court is persuaded that under the totality of the circumstances in this case that a patdown for weapons was reasonable,” the trial court denied the motion. Norman was found guilty, and he appealed.
The majority (Nazarian, joined by Wright): The majority began by rejecting “the notion that the possible presence of drugs creates a blanket exception to the Fourth Amendment’s reasonableness requirement.” Distinguishing the cases on no-knock entry warrants cited by Norman, the majority held that the strong odor of raw marijuana could “indicate drug trafficking” and “raised reasonable, articulable suspicion” that the three occupants of the vehicle “were engaged in a joint enterprise and together were in the possession of the drugs.” This suspicion, along with the fact that it was nighttime, created “legitimate concerns” about the officer’s safety. Those concerns, the majority concluded, made the frisk reasonable.
The dissent: (Serrette): Judge Serrette noted that the trial court’s ruling only specifically relied on the link between drugs and guns, and didn’t make any other particularized findings of possible danger. As such, she reasoned, upholding the trial court was actually approving the same “blanket exception” the majority said it rejected. Persuaded by the no-knock entry warrant cases that the majority distinguished, she believed (in a conclusion the majority appeared to share anyway) that the mere presence of marijuana did not create a categorical exception to Fourth Amendment protections, and she would have held that the frisk was unconstitutional.
Notes: The majority didn’t solely base its reasonableness finding on the presence of marijuana; it also considered the number of people in the car and that it was nighttime. Judge Serrette’s criticism largely centers on the trial judge’s lack of findings about whether those factors contributed to a reasonable suspicion that Norman was armed and dangerous. It’s true that the majority doesn’t quote anything specific from the trial judge stating that the time of the stop and number of individuals in the car made the stop more dangerous for the officer (though the judge did generally say that it considered the “totality of the circumstances,” which suggests more than just the presence of marijuana). But Judge Serrette’s gripe seems to overlook the de novo standard of review as to whether there was reasonable suspicion for the search. See In re David S., 367 Md. 523, 529 (2002). No one is really contesting that there were three people in the car and it was nighttime, so the Court was entitled to take these factors into account — along with the presence of marijuana — in reaching its own legal conclusion about the reasonableness of the officer’s alleged suspicion that Norman was armed and dangerous.
But was that legal conclusion correct? Just more than two weeks after the Norman opinion was issued, the Court of Appeals decided Sellman v. State, Sept. Term 2015, No. 84 (Aug. 26, 2016), which found no reasonable suspicion to frisk a passenger in a car that was stopped at night with multiple passengers. That case has different facts than Norman — mainly, the officers conducting the stop in Sellman hadn’t detected the presence of drugs before the frisk — but the holding does contain some stuff relevant to this matter. For one, the Court extensively quoted a Fourth Amendment treatise stating that, when a stop occurs “during the hours of darkness,” a frisk is only constitutional if there is
something more causing the officer to conclude that he is in a potentially dangerous situation such as: that the person has made a sudden and otherwise inexplicable move toward a pocket or other place where a weapon might be concealed; that the person failed to respond to the officer’s directive that he stop his vehicle or that he keep his hands in view or remove his hands from his pocket; that there is a characteristic bulge in the person’s clothing; that the person stopped displayed a ‘boisterous, aggressive’ attitude, that the officer had previously obtained information that this person carried a weapon; that the officer saw a weapon or holster in the person’s car; or that in addition to the minor offense there is some reason also to suspect the individual of much more serious criminal conduct. Also relevant is the fact that the officer is outnumbered.
It seems clear that the presence of marijuana alone isn’t sufficient for the frisk in Norman. As discussed in Sellman, nor is the singular circumstance that it was nighttime. However, take these two details together with “the fact that the officer is outnumbered,” and, Norman says, you’ve got your reasonable suspicion that a passenger in an automobile may be armed and dangerous.
Certiorari prospects: Though the decision was unreported, the case is a viable Court of Appeals matter for a reason other than the disagreement about the validity of the frisk. Norman also argued in his petition that, because possession of less than 10 grams of marijuana is now a civil rather than criminal offense, the odor of raw marijuana did not, by itself, give the officer probable cause to search the automobile. Judge Serrette’s dissent focused on the pat-down and didn’t seem to pick a bone with the majority’s conclusion that, because marijuana is still contraband, its presence in an automobile still gave probable cause for a search.
The Court of Appeals, however, is interested in this question, having granted certiorari this month in Robinson v. State, which asks: “When an officer detects an ‘overwhelming smell’ of ‘fresh marijuana’ coming from a car, does the officer have probable cause to search the car in light of the fact that possession of less than ten grams of marijuana is now a ‘civil offense’ punishable only by a fine?” The correctness of this aspect of Norman, therefore, will be dependent on the outcome of Robinson. It could make sense for the case to be held until Robinson is decided and then remanded appropriately.