In re D.D.

• Decision Date: 21 June 2022
• Docket Number: 27-2021
• Parties: IN RE: D.D.
• Court: Maryland Court of Appeals

IN RE: D.D.

No. 27-2021

Court of Appeals of Maryland

June 21, 2022

Argued: January 6, 2022

Circuit Court for Prince George's County Case No. JA-19-0409

^[*] Getty, C.J. ^[*] McDonald Watts Hotten Booth Biran Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

OPINION

In 2014, the Maryland General Assembly decriminalized possession of less than 10 grams of marijuana. However, the Legislature did not legalize marijuana possession. Rather, possession of less than 10 grams of marijuana currently is a civil offense punishable by fines and other remedies, and possession of more than 10 grams of marijuana remains a criminal offense.

In the aftermath of this partial decriminalization, this Court has issued several opinions concerning warrantless searches and seizures based on the odor of marijuana. The most recent of these cases, Lewis v. State, 470 Md. 1 (2020), involved a search incident to an arrest, where the probable cause for the arrest was based solely on the fact that officers smelled marijuana on the defendant. We held that the odor of marijuana on a person, without more, does not provide probable cause to believe that the person is in possession of a criminal amount of the drug. Therefore, the officers lacked probable cause to arrest the defendant, and the evidence found in the search incident to that arrest had to be suppressed.

In this case, we consider whether to extend the holding in Lewis to an investigatory detention, which requires a showing of reasonable suspicion to believe that criminal activity may be afoot - a standard that is significantly less stringent than probable cause. That is, we must decide whether the odor of marijuana, by itself, provides reasonable suspicion to support an investigatory detention.

On November 15, 2019, two police officers stopped a group of five young men as the group was getting ready to leave an apartment building in Capitol Heights, Maryland. D.D., the Respondent/Cross-Petitioner before us, was one of the five members of the group. He was 15 years old at the time. The officers had been called to the building based on a complaint involving the odor of marijuana. The officers smelled a strong odor of marijuana coming from the group of young men and directed them to sit down, thus seizing them for purposes of the Fourth Amendment. The young men would not tell the officers where they lived, and D.D., in particular, exhibited behavior that one of the officers believed was "evasive," suggesting to the officer that D.D. might be armed. The officers subsequently began patting down the members of the group for weapons. One of the officers found a suspected handgun (possibly a BB gun) in the waistband of one of D.D.'s companions. The other officer then frisked D.D. and found a loaded gun in D.D.'s waistband. A delinquency petition subsequently was filed in the Circuit Court for Prince George's County charging D.D. with firearms offenses.

D.D. moved to suppress the gun, arguing that his initial detention and subsequent frisk both violated the Fourth Amendment. The circuit court, sitting as the juvenile court, denied D.D.'s suppression motion and found him involved as to the charged offenses. D.D. appealed the juvenile court's denial of his suppression motion.

The Court of Special Appeals reversed, holding that the odor of marijuana, without more, does not provide reasonable suspicion of possession of a criminal amount of marijuana. Thus, the intermediate appellate court held that the investigatory detention of D.D., which was based solely on the odor of marijuana, violated the Fourth Amendment. Having ruled that the gun should have been suppressed due to the invalid detention, the Court of Special Appeals did not decide whether the frisk also was impermissible.

We hold that the odor of marijuana provides reasonable suspicion of criminal activity sufficient to conduct a brief investigatory detention. Thus, the officers' initial stop of D.D. did not violate the Fourth Amendment. We also conclude that the discovery of a weapon on one of D.D.'s companions, combined with the group's evasive behavior and other circumstances, provided the officers with reasonable suspicion that D.D. was armed and dangerous. Thus, the pat-down that led to the discovery of the gun on D.D. also was reasonable. Accordingly, we will reverse the judgment of the Court of Special Appeals and hold that the juvenile court properly denied D.D.'s suppression motion.

I Background

A. The Investigatory Detention and Pat-Down of D.D.

On November 15, 2019, shortly after 7:30 p.m., Sergeant Jeff Walden and Officer Alexandra Moser of the Prince George's County Police Department (the "Department") responded to a call for service to investigate a group of males in an apartment building located at 6626 Ronald Road in Capitol Heights, Maryland. The call was based on a complaint of "loud music and the smell of marijuana" coming from the basement of the building.

After opening the front door of the apartment building, the officers saw a group of five young men walking up the stairs from the basement. The officers "smelled a strong odor of marijuana" coming from the group. Sergeant Walden - a 21-year veteran of the Department - stopped the group and directed them to "have a seat" on the stairs. The young men were wearing baggy clothes, and D.D. was wearing a "big puffy jacket." There were two sets of stairs leading away from the landing where the officers were located when they entered the building and stopped the group. The stairs to the left of the officers led up to the next level of the building. The stairs to the right led down to the basement.^[1] After Sergeant Walden told the young men to sit down, four of the members of the group sat down on the ascending staircase. The young man later identified as D.D.^[2] was the only member of the group who sat down on the descending staircase.

According to Sergeant Walden, he and Officer Moser began their discussion with the young men by asking, "[W]ho lives here?" The officers received no response. None of the members of the group "could provide any identification of where they lived." When Sergeant Walden specifically asked D.D. where he lived, D.D. "shrugged his shoulders and didn't say anything." When Officer Moser asked D.D. the same question, D.D. replied "my dick." The other members of the group were "snickering, laughing, very carefree, [and] not cooperative." Sergeant Walden noticed that D.D. kept turning away from him and "seemed to be evasive," which, based on Sergeant Walden's "training and knowledge," is "a sign that you could be carrying a weapon." Sergeant Walden also was concerned because he could not "really see [D.D.'s] hands." According to Sergeant Walden, D.D. "would speak to me, but I can't see his whole body language, I can't see what he's doing."

Because of the "odor of marijuana," the group's "evasive body language," and the fact that there were "five of them in baggy clothes" in a place "where they could run out the door," Sergeant Walden was concerned that one of the group members might be in possession of a weapon and "wanted to feel safe that there was nobody that was armed at the time." The officers told the group members that they would each be frisked. At that point, the officers were investigating the young men for the crimes of trespassing and possession of controlled dangerous substances.

Officer Moser first conducted a pat-down of one of D.D.'s companions. As she did so, Officer Moser felt what she believed to be a handgun inside the waistband of the subject's pants. Officer Moser then placed the young man in handcuffs. At that point, Sergeant Walden moved to assist Officer Moser and stood in front of the door because "through [his] training and knowledge and understanding" he "knew as soon as she put him in handcuffs that she had recovered a weapon." After she placed the young man in handcuffs, Officer Moser conducted a more thorough pat-down and removed the suspected handgun from the subject's waistband.

After securing the group member with the suspected handgun and placing him to the side, Sergeant Walden turned his attention to D.D. Sergeant Walden "had [D.D.] stand up, place his hands on top of his head and ... step against the wall." Sergeant Walden then "started a pat-down . „ and as soon as [he] went to the waistband, which is the first place that [he] went, [he] could feel the butt of a handgun in his waistband." Sergeant Walden then placed D.D. in handcuffs "so he wouldn't be able to reach for it or fight or anything." From D.D.'s waistband, Sergeant Walden retrieved a loaded nine millimeter handgun.

When asked to explain "how officers are trained to respond when they're outnumbered," Sergeant Walden responded:

At first you're in a terrible disadvantage. We were taught in the academy, it's basic, you'd want to also go with back-up and you shouldn't handle any call by yourself.

But there are times where you're put in that position to where there are several people coming at you, so you have to get the advantage. And one of the first concerns is a weapon that they could use against you.

And my first concern was one of them having a weapon. And there was five of them and they were right by a door where they could run out the door, plus the odor ... of marijuana, that there was illegal drug activity there, the fact that nobody could provide any identification that they live inside that building.

So the first thing we want to do is secure them and make sure that they don't have any weapons on them. Once we found the weapon on them, then they were secured and handcuffed.

B. The Juvenile Court's Ruling

On November 18, 2019, a delinquency petition was filed in the Circuit Court for Prince George's County...