CRIMINAL LAW UPDATE By Susan Zellweger
You might need more than just the Odor of criminal activity? Marijuana… The Court in D.D. explained that there are two types of seizures: an arrest and an investigatory stop. The Fourth Amendment to the United States Under State of Maryland v. Pringle, 540 U.S. 366 Constitution guarantees “the right of the people to be (2003), the police may conduct a warrantless arrest if secure in their persons, houses, papers and effects, the officer(s) have reason to believe that a felony has against unreasonable searches and seizures,” and been committed or a felony or misdemeanor has provides that “no warrant shall issue, but upon been committed in their presence. Terry v. Ohio, 392 probable cause, supported by oath or affirmation, and U.S. 1 (1968) allows an officer to conduct an particularly describing the place to be searched, and investigatory stop when the officer has “reasonable the persons or things to be seized.” United States suspicion, supported by articulable facts, that activity may be afoot.” Constitution, amend IV. criminal The Maryland Declaration of Rights, Article 26 states In D.D., police responded to an apartment complex in that “all warrants, without oath or affirmation, to Prince George’s County, after receiving a call search suspected places, or to seize any person or about some individuals smoking CDS and playing property, are grievous and oppressive.” A warrantless loud music in an apartment complex. When the police search is presumptively unreasonable. “Whether a arrived at the location in question, they describe particular warrantless action on the part of the police seeing five males dressed in baggy clothes, walking is reasonable under the Fourth Amendment depends up the steps from the basement level of the apartment on a balance between the public interest and the building, and smelling a heavy odor of marijuana as individual’s right to personal security free from the males walked past. The males were evasive about arbitrary interference by law officers.” Pennsylvania who lived in the building when asked, and were v. Mimms, 434 U.S. 106 (1977). ordered to sit on the building steps. When D.D. was the officer recovered a gun. In 2014, the Maryland General Assembly frisked, decriminalized the possession of less than ten grams. The Court determined that the “odor of marijuana It is now a civil offense under Maryland Criminal alone does not indicate the quantity, if any, of Law section 5-601©(2) to possess less than ten grams marijuana in someone’s possession.” Therefore, odor of marijuana. . of marijuana alone cannot provide police with the ___________________________________________ required reasonable suspicion to stop a suspect. In D.D., the Court referenced Lewis v. State of Maryland (470 Md. 1 (2020). In this case, after Many thanks to Nancy Forster for presenting The receiving a tip that Mr. Lewis was armed with a Latest Fourth Amendment Cases to the Baltimore handgun, the police tracked him down in a store County Bar Association on Thursday, May 20, 2021. located in “high During her class, Ms. Forster discussed three cases crime area” in Baltimore City. An officer testified that address the odor of marijuana and whether it that he stopped Mr. Lewis in the store, based on “the alone gives police probable cause to search a car odor of marijuana and the information [he] received (Robinson), probable cause to arrest a suspect to further investigate.” Mr. Lewis was arrested and (Lewis), and reasonable articulable suspicion to stop a searched incident thereto. A gun and a small amount suspect (In Re: D.D.). of marijuana were recovered. The relevant In In Re D.D., 2021 WL 1651304 (CSA, April 28, exception to the warrant requirement at play in Lewis 2021), the Court of Special Appeals of Maryland is the search incident to arrest exception. (Chimel addressed the question… does the odor of marijuana, v. California, 395 U.S. 752 (1969).) by itself, provide police reasonable suspicion of The Court of Appeals held in Lewis that the police THE ADVOCATE
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