In re: D.D.

In re D.D., No. 2616, September Term, 2019, Opinion by Graeff, J. FOURTH AMENDMENT – SEARCHES AND SEIZURES – INVESTIGATORY DETENTIONS – REASONABLE SUSPICION 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. Circuit Court for Prince George’s County Case No. JA-19-0409 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2616 September Term, 2019 ______________________________________ IN RE: D.D. ______________________________________ Graeff, Kehoe, Zic, JJ. ______________________________________ Opinion by Graeff, J. ______________________________________ Filed: April 28, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-04-28 09:13-04:00 Suzanne C. Johnson, Clerk 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. 1 At the time of appellant’s arrest, he was 15 years old.

Because he is a juvenile, we will refer to him by his initials. FACTUAL AND PROCEDURAL BACKGROUND2 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 2 Because the sole issue on appeal involves the motion to suppress, we will address the facts only as they pertain to that issue. 2 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: 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 CDS, 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. 3 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. 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 3 Because he is a juvenile, we refer to D.A. by his initials throughout this opinion. 4 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 (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 4 Counsel stated that “hemp is a subset of marijuana and . . . is legalized.” He relied on legislation, effective June 1, 2019, that (1) established a framework for the legal commercial production of hemp, the plant Cannabis sativa L. with a THC concentration not exceeding 0.3%, Md. Code Ann., Agriculture §§ 14 -101–309 (2019 Supp.); and (2) provided that marijuana, which includes “all parts of any plant of the genus Cannabis,” does not include hemp as defined in the Agriculture Article, Md. Code Ann., Criminal Law Article, § 5-101(r)(2)(vi) (2019 Supp.). 5 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: 6 The Court credits the testimony of the officer regarding the response from some of the males in response to his questions, that the young man was evasive. The Court also credits the officer’s testimony given the particularized -- or the testimony was that he asked where he lived and the, they responded, replied, you know, at my dick.

So the Court finds there’s a reasonable articulable suspicion for criminal activity. The Court is going to deny the motion to suppress. STANDARD OF REVIEW “Our review of a circuit court’s denial of a motion to suppress evidence is ‘limited to the record developed at the suppression hearing.’” Pacheco v. State, 465 Md. 311, 319 (2019) (quoting Moats v. State, 455 Md. 682, 694 (2017)). “We assess the record ‘in the light most favorable to the party who prevails on the issue that the defendant raises in the motion to suppress.’” Id. (quoting Norman v. State, 452 Md. 373, 386 , cert. denied, 138 S. Ct. 174 (2017)).

We review the circuit court’s factual findings under the clearly erroneous standard, and we review legal questions de novo, making an “independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case.” Id. (quoting Grant v. State, 449 Md. 1, 15 (2016)). DISCUSSION Appellant contends that the circuit court erred in denying his motion to suppress the gun on his person for two reasons. First, he argues that the initial encounter was an unreasonable investigatory stop under the Fourth Amendment.

Second, he asserts that, even if the initial stop was lawful, the frisk that revealed the handgun was unlawful because 7 Officer Walden lacked reasonable suspicion to believe that appellant was armed and dangerous. The State contends that several of appellant’s arguments were not raised at the suppression hearing, and therefore, they are waived and not properly before this Court. In any event, the State contends that appellant’s arguments are without merit because: (1) the smell of marijuana provided reasonable suspicion to stop appellant; and (2) the police had reasonable suspicion to frisk appellant. The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures.

Robinson v. State, 451 Md. 94, 108 (2017). Appellant’s first contention is that he was subjected to an unreasonable seizure. In assessing this contention, we begin by discussing two types of encounters that are recognized as seizures in Maryland: an arrest and an investigatory stop. The police are authorized to conduct a warrantless arrest if an officer has probable cause to believe that a felony has been committed or a felony or misdemeanor is being committed in the officer’s presence.

Maryland v. Pringle, 540 U.S. 366 , 369–70 (2003). An investigatory stop, on the other hand, is authorized when “the officer has reasonable suspicion, supported by articulable facts, that criminal activity ‘may be afoot.’” In re David S., 367 Md. 523, 532 (2002) (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)). Accord Swift v. State, 393 Md. 139, 150 (2006) (“A police officer may engage in an investigatory detention without violating the Fourth Amendment as long as the officer has a reasonable, articulable suspicion of criminal activity.”); Nathan v. State, 370 Md. 648, 660 (2002) (“[A] police officer who has reasonable suspicion that a particular person has committed, is committing, or is about to 8 commit a crime may detain that person briefly in order to investigate the circumstances that provoked suspicion.”), cert. denied, 537 U.S. 1194 (2003). Here, the parties agree that, at the point when the police told appellant to sit down, he was seized.

See Swift, 393 Md. at 150 (A seizure occurs when, “by means of physical force or show of authority a reasonable person would have believed that he was not free to leave or is compelled to respond to questions.”). They also agree that the seizure was an investigatory stop, which requires reasonable suspicion as opposed to probable cause. The question here is whether the police had reasonable suspicion to support the stop. In assessing whether a police officer had reasonable suspicion, we look at “the totality of the circumstances” to determine whether the officer has “a particularized and objective basis for suspecting the particular person stopped of