Scent of Marijuana Alone Does Not Provide Reasonable Suspicion to Seize a Person in Maryland

By Megan E. Coleman

Since Maryland decriminalized possession of less than 10 grams of marijuana in 2014, Maryland’s appellate courts have been tasked with determining how this non-criminal, but non-legal substance, factors into the reasonableness of warrantless searches and seizures where evidence of marijuana is present. 

On April 28, 2021, the Court of Special Appeals of Maryland decided In re: D.D., holding, as a matter of first impression, that the odor of marijuana, by itself, does not provide reasonable suspicion of criminal activity, and therefore, a stop based on this circumstance alone is unreasonable under the Fourth Amendment.

To perform an investigatory stop, an officer must have reasonable suspicion, supported by articulable facts, that criminal activity may be afoot. Because possession of less than 10 grams of marijuana is no longer a crime, the officer must suspect that the person is in possession of more than 10 grams of marijuana, in order for the suspicion to support a stop for the crime of possession of marijuana.

But odor of marijuana alone does not indicate the quantity of marijuana in someone’s possession. Therefore, 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.

The Court of Appeals of Maryland held in Lewis v. State, 470 Md. 1 (2020), that to support probable cause to search or arrest a person, the officer must believe that the suspect is in possession of a criminal amount of marijuana, not just any amount of marijuana.

Though reasonable suspicion is a less-exacting standard, the D.D. Court determined that it still requires a belief that criminal activity is afoot, not just potentially non-criminal activity of possession of less than 10 grams of marijuana.

While the distinction between a criminal versus a non-criminal amount of marijuana is determinative in the stop or search of a person, that distinction literally goes out the window in the context of a search of a vehicle. This is because there is a diminished expectation of privacy in a vehicle. See Pacheco v. State, 46 Md. 311 (2019).

Thus, when a police officer smells the odor of marijuana alone emanating from a vehicle, that gives the police officer probable cause to believe that the vehicle contains contraband or evidence of a crime. See Robinson v. State, 451 Md. 94 (2017). Similarly, a canine’s alert to odor of marijuana, without more, provides probable cause to search a vehicle. Bowling v. State, 227 Md. App. 460, cert. denied, 448 Md. 724 (2016).

When analyzing cases in which scent of marijuana alone was the impetus for the stop or the search, ask yourself first, are we dealing with the search of a person or a vehicle, because that will command whether the amount of marijuana known to the officer is relevant.