In re D.D.
| Decision Date | 28 April 2021 |
| Docket Number | No. 2616, Sept. Term, 2019,2616, Sept. Term, 2019 |
| Citation | 250 A.3d 284,250 Md.App. 284 |
| Parties | IN RE: D.D. |
| Court | Court of Special Appeals of Maryland |
Argued by: Michele Denise Hall (Katherine P. Rasin, Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.
Argued by: Daniel J. Jawor (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD, for Appellee.
Panel: Graeff, Kehoe, Zic, JJ.
D.D., appellant, was charged in the Circuit Court for Prince George's County with three counts: possession of a regulated firearm by a person under 21 years of age; wear, carry, and transport a handgun upon his person; and wear, carry, and transport a loaded handgun upon his person.1 Appellant filed a motion to suppress the handgun the police recovered from his person, asserting that the police lacked reasonable articulable suspicion to stop and frisk him. The circuit court, sitting as a juvenile court, denied appellant's motion. On January 7, 2020, the court found appellant involved on all counts, and it placed appellant on probation for nine months.
Appellant argues on appeal that the circuit court erred in denying his motion to suppress, asserting that the police lacked the requisite reasonable suspicion to stop or frisk him. The argument regarding the stop raises an issue of first impression, i.e., whether the odor of marijuana provides reasonable suspicion to authorize a police officer to conduct an investigatory stop. We hold 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. Accordingly, we shall reverse the judgment of the circuit court.
On November 15, 2019, at 7:42 p.m., Jeffery Walden and Alexandra Moser, members of the Prince George's County Police Department, responded to a call for service at an apartment complex in Capitol Heights. Officer Walden testified that the call for service involved "males in the basement" who were "playing music and smoking CDS," i.e., controlled dangerous substances. When the officers arrived at the building, Officer Walden opened the front door. He observed "a group of males walking up the steps" and "smelled a strong odor of marijuana." Officer Walden told the group, which included appellant and four other males, to "have a seat on the stairs." He testified that he gave that instruction "because of the nature of the complaint" and because he and Officer Moser were outnumbered. There were two sets of stairs in the building, and four members of the group sat down on the stairs to the left, and appellant sat on the stairs to the right.
Officer Walden then asked the group who, if anyone, lived in the building. The response was evasive, with group members "snickering, laughing, very carefree, [and] not cooperative." No member of the group stated that they lived in the building. Appellant "shrugged his shoulders and didn't say anything," and his body language was "evasive." When specifically asked where he lived, appellant responded "my dick."
Officer Walden testified that he was in fear that one of the individuals was armed. This fear was based on "evasive body language" and that there were "five of them in baggy clothes." He stated that, "for our safety to be able to continue with the investigation, that I wanted to feel safe that there was nobody that was armed at the time." When asked what crime Officer Walden was investigating, he stated: "Trespassing and the possession of CDS."
Officer Moser conducted a frisk of one of the other individuals, and she recovered in the person's waistband a weapon, which later was determined to be a BB gun. That person was placed in handcuffs, and Officer Walden then ordered appellant to "place his hands on top of his head" and "step against the wall." Officer Walden conducted a pat down of appellant's waistband and felt the butt of a handgun. Officer Walden then placed appellant in handcuffs and recovered a "9 millimeter handgun" with "a magazine inside it and with rounds ... inside the magazine." Officer Walden could not recall what he did with the handgun after recovering it from appellant's waistband.
The State then asked Officer Walden how officers are "trained to respond when they're outnumbered." Officer Walden testified as follows:
On cross-examination, Officer Walden agreed that more than 30 minutes had elapsed between the call for service at 7:10 p.m. and the officers’ arrival at the building at 7:42 p.m., and the officers did not enter the building until 7:50 p.m. Officer Walden also indicated that he could not distinguish between the smell of hemp and the smell of marijuana, stating that he believed marijuana and hemp were the same.
D.A., one of the five individuals detained on November 15, 2019, testified on appellant's behalf.3 He and his friends "were just chilling, listening to music and stuff" in the building's laundry room, and when they were ready to leave, one of the group members "spotted a police officer." The group waited several minutes to leave the laundry room, but while they were coming up the stairs, they encountered Officers Moser and Walden. The officers immediately told them to sit down and asked: "[W]here's the dope?"
The individuals told the officers that there were no drugs, and the officers then told them that they were all going to be searched. Officer Moser searched "Juan," one of the group members, who informed Officer Moser that he had a BB gun on his person. Officer Moser put the BB gun in her pocket, handcuffed Juan, and "sat him down."
Officer Walden then searched appellant "at least twice." The first time he was patting him down, and the second time he "started excessively searching him" and "going like more into like his pants and stuff." Officer Walden found a weapon and handcuffed appellant.
On cross-examination, D.A. testified that the group had been in the laundry room for more than 30 minutes. He admitted that they did not live in the building, and they had been smoking marijuana, but he did not believe they had a strong odor of marijuana on them.
In closing, appellant's counsel argued that the handgun recovered from appellant's waistband should be suppressed because the police did not have reasonable articulable suspicion to support the initial stop. Counsel asserted that the police lacked reasonable suspicion "that a crime was afoot," stating that the officers had "no idea" whether the group of people they saw were "involved in anything related to that particular call" more than 30 minutes earlier.
Counsel further noted that, although Officer Walden testified that he smelled marijuana, he admitted that he could not differentiate the smell of marijuana from the smell of hemp, which was legal.4 Counsel analogized this case to Bailey v. State , 412 Md. 349, 359–60, 382, 987 A.2d 72 (2010), where the Court of Appeals held that the smell of ether, a lawful substance associated with PCP, did not provide probable cause for an arrest. Counsel argued that something that "has a mix of lawful and unlawful purposes" cannot give probable cause for an arrest, and because the scent of marijuana could indicate hemp, the stop was not supported by reasonable articulable suspicion.
Counsel then turned to the frisk of appellant, arguing that the frisk was not supported by reasonable suspicion that appellant was armed and dangerous. Counsel stated that Officer Walden's testimony suggested that it was a blanket policy to frisk all detained individuals and check for weapons when the number of detained individuals outnumbered the number of officers on the scene.
The State argued that the officers had reasonable suspicion that two misdemeanors, i.e., trespass and "a marijuana issue," were being committed. No one was answering the questions regarding where the individuals lived, the officers smelled marijuana and were outnumbered, and "[o]fficer safety kicks in." The prosecutor argued that both the stop and the frisk were reasonable under the circumstances.
Appellant's counsel argued that possession of marijuana was not the type of crime that gave the officers reasonable suspicion that appellant was armed and dangerous. Rather, the frisk was conducted purely because the group outnumbered the officers, which was an insufficient basis for a frisk.
The court denied the motion to suppress, finding that the police had reasonable articulable suspicion that appellant was engaged in criminal activity. The court noted that it was 7:00 p.m. in November, it was cold, and "there was a strong odor of marijuana." It continued:
"Our...
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In re D.D.
...30, 2020. C. AppealThe Court of Special Appeals reversed the juvenile court's denial of D.D.’s suppression motion. In re D.D. , 250 Md. App. 284, 250 A.3d 284 (2021). Although the Court of Special Appeals acknowledged that this Court's opinion in Lewis "addressed probable cause, a higher st......
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In re D.D.
...a higher standard than reasonable suspicion," it observed that reasonable suspicion "still is tied to suspicion of criminal conduct." Id. at 300-01. intermediate appellate court concluded that "because the 'odor of marijuana alone does not indicate the quantity, if any, of marijuana in some......
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Holden v. State
...Dictionary 1373 (9th ed. 2009)). This Court, in In re D.D., recently examined the effect of modifying a suppression argument on appeal. 250 Md.App. 284, 297, rev'd on other grounds, Md., No. 27, September Term 2021 (filed June 21, 2022). There, the appellant argued at a suppression hearing ......