187 A.3d 771
Md. Ct. Spec. App.2018Background
- On Feb. 1, 2017, officers acting on a tip (source described as reliable but not confidential informant) and City Watch surveillance located Rasherd Lewis in a crowded convenience store holding a red bag. Officers knew the area as a high-crime, open-air drug market.
- Officer Burch testified he smelled marijuana in the store and, when standing "literally right in front of" Lewis, smelled marijuana emanating from Lewis’s person or breath.
- Officers seized and handcuffed Lewis, then searched him. They found a handgun in the red bag and <10 grams of marijuana plus packaging material in his jacket.
- Lewis moved to suppress the gun and drugs, arguing the initial seizure and search were unlawful: the tip alone did not justify a Terry stop, and the officers seized/started searching him before detecting any marijuana odor; possession <10g is decriminalized so odor alone cannot support arrest.
- The circuit court denied the suppression motion, crediting the officer’s localization of marijuana odor to Lewis and holding that the odor, when localized to a person, provides probable cause to arrest and search incident to arrest.
- On appeal the Court of Special Appeals affirmed: it held that the odor of marijuana localized to an individual supplies probable cause to arrest that individual for marijuana possession and permits a search incident to that arrest. Two concurring/dissenting opinions warned against extending Robinson to permit arrests based solely on an odor.
Issues
| Issue | Plaintiff's Argument (Lewis) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether Lewis was unlawfully seized before the officer detected the odor of marijuana | Curtis grabbed Lewis first; that seizure lacked reasonable suspicion and evidence should be suppressed | Any timing dispute not preserved below; court credited officer testimony and seizure was supported once odor localized | Not reached on merits (issue not preserved) |
| Whether the smell of marijuana localized to a person supplies probable cause to arrest that person | Odor on breath/person cannot alone justify a full arrest/search, especially after decriminalization of <10g; officers began searching before lawful basis | Odor of marijuana emanating from a person provides probable cause to arrest for possession; search incident to that arrest lawful | Held: odor localized to a person provides probable cause to arrest and to search incident to arrest; suppression denial affirmed |
| Whether the tip and other circumstances may be used in the totality analysis | Tip was insufficient alone and State withheld tip-source discovery; court should not rely on tip | Tip led officers to the store but court properly based probable cause on localized odor; tip corroboration not essential to the holding | Court relied on odor localization as the operative basis for probable cause; tip not outcome-determinative |
| Whether decriminalization of small amounts of marijuana undermines odor-based probable cause | Decriminalization makes odor weak evidence of a crime and risks unjustified intrusions | Robinson and precedent sustain that odor remains evidence of crime and officers cannot reliably distinguish quantities by smell | Court held decriminalization does not defeat probable cause when odor is localized to a person |
Key Cases Cited
- Barrett v. State, 234 Md. App. 653 (Md. Ct. Spec. App. 2017) (odour of marijuana on person + admissions/acts can support probable cause to arrest and search)
- Robinson v. State, 451 Md. 94 (Md. 2017) (odor of marijuana remains evidence of a crime and provides probable cause to search vehicles despite decriminalization of small amounts)
- Humphries v. United States, 372 F.3d 653 (4th Cir. 2004) (odor of marijuana sufficiently localized to a person can supply probable cause to arrest that person)
- Pringle v. United States, 540 U.S. 366 (U.S. 2003) (probable cause for arrest judged by facts known to officer viewed objectively)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (standards for investigative stops and frisk; reasonable, articulable suspicion requirement)
- Norman v. State, 452 Md. 373 (Md. 2017) (post-Robinson decision limiting the use of vehicle-odor-based probable cause to justify frisks of vehicle occupants; highlights need for individualized suspicion)