In the immortal words of Ricky Ricardo, “Ai Yi Yi!”
On March 27, 2017, the Maryland Court of Appeals handed down an opinion that has wide-scale implications regarding what law enforcement officers may do upon stopping a vehicle and detecting the odor of marijuana (or other drugs for that matter) coming from the vehicle. The case in question is Norman v. State, No. 56, September term, 2016, a case arising out of Somerset County. According to its official website, “Somerset County is located amidst the splendors of Maryland’s Eastern Shore, an area between the Chesapeake Bay and the Atlantic, renowned for its natural charm. This gracious, less frenetic part of the world, combines tradition and simplicity of life with the beauty of the untouched countryside. History is ever present and every sunset is a celebration.” While that may all be true, the Norman case certainly isn’t a Somerset sunset!
The Facts: Joseph Norman was a front seat passenger in a vehicle stopped on southbound U.S. Route 13 in bucolic Princess Anne. The basis for the stop was an inoperable right taillight. There was another passenger in the rear seat. Upon approaching the driver, the trooper detected a strong odor of fresh marijuana wafting from the passenger compartment. As a search of the vehicle was in order and the trooper was outnumbered three to one, back-up units were called and arrived in short order. All three occupants were asked to exit the vehicle so that the police could conduct a search.
Prior to conducting the vehicle search, the original trooper patted down the vehicle’s occupants to look for weapons. Upon patting down Norman, the trooper felt what appeared to be a plastic- or cellophane- covered bag of drugs in his pants pocket. Upon shaking Norman’s pocket, a bag of marijuana fell to the ground. No weapons or other drugs were found. After frisking all three of the occupants, the vehicle was searched and a grinder with traces of marijuana was found, as well as an additional small stash of marijuana that was located in the dashboard’s center compartment, above the gear shifter. Norman was placed under arrest and a search incident thereto revealed another baggie of ganja. Norman admitted that all the items located in the vehicle – as well as on his person – were for his personal use.
The circuit court determined that the trooper conducted a valid frisk of Norman (as opposed to a search of his person) and that he had reasonable articulable suspicion that Norman was armed and dangerous, reasoning that guns are often associated with drug activity and that under the totality of the circumstances, a pat down for weapons was reasonable. Somerset County State’s Attorney Dan Powell successfully argued the suppression hearing. Norman then proceeded by a not guilty statement of facts and was convicted of possession of marijuana, reserving his right to appeal. Upon being sentenced to nine months of imprisonment (!), Norman noted a timely appeal. In an unreported opinion, the Court of Special Appeals affirmed the circuit court’s judgment, concluding that the probable cause to search the vehicle in turn provided the reasonable articulable suspicion that all the occupants of the vehicle were engaged in a joint enterprise and together were in possession of the drugs and that the totality of the circumstances justified the trooper having legitimate concerns for his safety. In other words, it was a valid Terry pat down.
Like a bad penny, Norman refused to go away and petitioned the Court of Appeals for cert, raising the question of whether the smell of marijuana coming from a vehicle provides a law enforcement officer with reasonable suspicion that all passengers are armed and dangerous, thereby permitting a Terry frisk of the passengers.
In general, Norman argued that no extenuating circumstances existed to lead to a reasonable belief that he was armed and dangerous and he cited the lack of the following indicators of possible drug dealing/gun possession that would raise such a suspicion:
- No evidence of nervousness, agitation or furtive movements;
- He complied with all instructions;
- His hands were visible at all times;
- No bulges in his clothing or pockets;
- No evidence of any prior convictions, much less for crimes of violence;
- The trooper didn’t have any knowledge that Norman carried a weapon or had been involved in violent activity;
- There were no exceptional circumstances to indicate he might be a drug dealer, such as air fresheners, inconsistent responses, providing false names or failing to produce identification.
The State countered that Maryland’s appellate courts have previously noted a connection between drugs and guns and asserted that it was reasonable to infer that the vehicle’s occupants were engaged in a common enterprise with one another, such as drug dealing, thereby justifying the Terry pat down.
The Court of Appeals clarified that a police officer has reasonable articulable suspicion that a person may be armed and dangerous where – under the totality of the circumstances, and based on reasonable inferences drawn on the officer’s training, knowledge and experience – a reasonably prudent officer would have felt that he or she was in danger. Those individual circumstances – though innocent in isolation – may become suspicious when considered with other circumstances and that an officer may make inferences that might elude an untrained person. That being said, the Court pointed out that even though RAS is a lesser standard than probable cause, it still must be greater than an inchoate and unparticularized suspicion or hunch. In the words of the great band Boston, it must be “more than a feeling.”
The Court then went on to explain the difference between a frisk and a search of a person. A search, the Court wrote, has the broad purpose of discovering incriminating evidence, while a frisk has the limited purpose of discovering weapons and the officer may not exceed the limited scope of the pat down for weapons to search for contraband.
The Court of Appeals opinion went to great lengths to distinguish the facts in Norman with other appellate cases involving similar (but different) sets of facts, ultimately reaching its holding:
Upon careful consideration of relevant case law, including cases from this Court, the Court of Special Appeals, and courts from other jurisdictions, we reaffirm the basic principle that, for a law enforcement officer to frisk, i.e. pat down, an individual, there must be reasonable articulable suspicion that the individual is armed and dangerous, even where a law enforcement officer detects the odor of marijuana emanating from a vehicle. We hold that, where an odor of marijuana emanates from a vehicle with multiple occupants, a law enforcement officer may frisk an occupant of the vehicle if an additional circumstance or circumstances give rise to reasonable articulable suspicion that the occupant is armed and dangerous. Stated otherwise, for a law enforcement officer to have reasonable articulable suspicion to frisk one of multiple occupants of a vehicle from which an odor of marijuana is emanating, the totality of the circumstances must indicate that the occupant is armed and dangerous. An odor of marijuana alone emanating from a vehicle with multiple occupants does not give rise to reasonable articulable suspicion that the vehicle’s occupants are armed and dangerous and subject to frisk. Slip Opinion, p. 39.
In reaching its holding, the Court of Appeals distinguished the facts in Norman from a number of cases that remain good law, which we will address later. The Court did point out some circumstances that officers should take into account in order to conduct a Terry frisk of passengers in a Norman-type scenario:
- Were there furtive movements, other movements or otherwise suspicious behavior taking place in the vehicle?
- Did the passenger attempt to flee?
- Any bulges in the suspect’s pockets?
- Was the suspect’s clothing baggy, large, or otherwise easily able to conceal a weapon?
- Were the suspect’s hands visible?
- Did the suspect appear nervous?
- Did the suspect provide a fake name or false identification?
- Did the suspect say something that was either false or inconsistent with something that another of the occupants had said?
- Was the suspect hostile, argumentative, or otherwise uncooperative?
- Did the suspect fail to comply with instructions?
- Did the suspect have a criminal record, history of violence or known to carry a weapon?
- Did the traffic stop take place in a high-crime area and/or an area that was known for drug activity or gun violence?
- Did the suspect wear gang colors or gang-related clothing?
Clearly, some of these are more relevant than others and the more that exist, the easier it is to establish reasonable articulable suspicion to conduct a Terry pat down for weapons, but not to conduct a search of the person. A search of their person requires probable cause.
A walk down memory lane
The following are just some of the seminal Supreme Court and Maryland appellate cases that were either cited, distinguished, or drawn into question by the Norman opinion. A working knowledge of their facts may be helpful to law enforcement when confronted by situations involving multiple occupants and the odor of marijuana or other drugs:
Carroll v. United States, 267 U.S. 132 (1925) – Police may search a vehicle when there is probable cause to believe that contraband is located in the vehicle;
United States v. Di Re, 332 U.S. 581 (1948) – A person, by his or her mere presence in a suspect vehicle, does not lose immunities from a search of his person to which he would otherwise be entitled.
Wyoming v. Houghton, 526 U.S. 295 (1999) – If there is probable cause to search the vehicle, the officer is entitled to search the passenger’s belongings (purse) found in the vehicle, if they are capable of concealing the object of the search.
State v. Funkhouser, 140 Md. App. 696 (2001) – When a dog alerts to narcotics in a vehicle, that is ipso facto probable cause to justify a warrantless search of the vehicle.
State v. Wallace, 372 Md. 137 (2002) – The defendant was the passenger in a car. When the K-9 alerted, the police searched the driver and vehicle, but also searched the passenger. The Court of Appeals held that the law enforcement officer lacked probable cause to conduct a warrantless search of a passenger where a K-9 had alerted to the presence of drugs in the vehicle, absent additional circumstances that would link the passenger to the drugs. In other words, there must be probable cause specific to that particular passenger. The Court of Appeals stated that “the constitutionally proper course of action would have been to have the dog sniff the passengers, then if he alerted, search only those passengers to which the dog alerted…If the officers simply had the dog sniff each of the passengers of the car prior to searching them, then probable cause might have existed to search any of the passengers who positively re-alerted the K-9 to contraband.” Note: If you are going to do this, just make sure that the dog will give a passive alert, and not jump on or bite the suspect. That might be frowned upon.
Having a K-9 sniff an individual was also mentioned and tacitly authorized in Stokeling v. State, 189 Md. App. 653 (2008).
Brendlin v. California, 551 U.S. 249 (2007) – When a police officer makes a traffic stop, it is well settled that the driver of the vehicle is seized within the meaning of the Fourth Amendment. A passenger is seized as well and may challenge the constitutionality of the stop.
Maryland v. Pringle, 540 U.S. 366 (2003) – Pringle was the front seat passenger munching on his chips when the vehicle he was riding in was stopped for speeding. There was an additional passenger in the rear seat. A consensual search by the driver revealed $763 in cash in the glove box and some cocaine from the back seat armrest. All three occupants were arrested and Pringle ultimately admitted the drugs were his. The Supreme Court held that when narcotics and other indicia of narcotics dealing are present within the vehicle, it is reasonable to infer that any or all three of the occupants had knowledge of, and exercised dominion and control over the drugs and that it was reasonable for the officer to infer a common enterprise among the occupants of that vehicle, thereby providing probable cause for the arrest of the passenger/s.
State v Michael Jackson Ofori, 170 Md. App 211 (2006) – In a thriller of a case, the Court of Special Appeals held that once the K-9 alerted to the probable presence of drugs in the vehicle, the officer had probable cause for a warrantless Carroll-Doctrine search of the vehicle and also had unquestionable probable cause for the warrantless arrest of the driver.
Stokeling v. State, 189 Md. App. 653 (2008) – The Court of Special Appeals recognized a connection between drugs and guns and held that a law enforcement officer had a reasonable articulable suspicion that a defendant was armed and dangerous and thus subject to frisk. After a traffic stop, a K-9 alerted to the presence of drugs in the vehicle and the defendant/passenger and driver appeared nervous. The defendant/passenger was also breathing rapidly and shaking. The Court of Special Appeals held that where a K-9 alerts to the presence of drugs in a vehicle with more than one occupant, there is reasonable articulable suspicion to believe that all of the vehicle’s occupants are engaged in a joint enterprise and jointly possess drugs. Given the nexus between drugs and guns, reasonable articulable suspicion of drug possession gives rise to reasonable articulable suspicion of possession of a firearm. The Stokeling Court leaned heavily on the Supreme Court’s opinion in Pringle.
The Court of Appeals in Norman went to great lengths to distinguish its holding from that of Pringle and Stokeling. The Court stated that both those cases had additional circumstances that allowed the officers in their respective cases to do what they did. In Pringle, the Court determined that the precise location of the incriminating evidence (cash and cocaine) was known and the issue was whether the location of that evidence was sufficient to establish the front seat passenger’s dominion and control. Regarding Stokeling, the Norman Court pointed out that there were multiple factors that contributed to the CoSa’s conclusion that the law enforcement officer had reasonable articulable suspicion to frisk the defendant, not just that the occupants were engaged in a joint enterprise and therefore armed and dangerous. Whenever a higher court resorts to language such as “a careful reading of _____ demonstrates…,” you know something is up.
Robinson v. State, 2017 Westlaw 244093 (Md. Court of Apps.) – Notwithstanding the General Assembly’s de-criminalization of under 10 grams of marijuana, a law enforcement officer has probable cause to search a vehicle where he detects the odor of marijuana emanating from the vehicle, as marijuana in any amount remains contraband.
Sellman v. State, 449 Md. 526 (2016) – Law enforcement officers may not conduct a pat down of the occupants of a vehicle merely because the driver consents to a search of the vehicle. The Court held that a police department policy, under which law enforcement officers could frisk all of a vehicle’s occupants in the process of conducting a consent search of the vehicle was unlawful.
What to do when confronted with a scenario in which the officer detects the odor of drugs coming from a vehicle with multiple occupants.
When confronted with such a situation, the following course of action is recommended:
- Call for back-up…and get a drug sniffing canine on the scene;
- Be alert (and be safe!) to any behavior that may trigger reasonable articulable suspicion to be concerned for officer safety;
- If reasonable articulable suspicion exists for a Terry pat down for weapons, conduct one. It’s better to be safe than sorry;
- If your Terry frisk reveals something that you can articulate is drugs (without manipulation), “plain feel” allows you to confiscate it, which may authorize arrest and search incident thereto;
- Separate the occupants, but note where they were originally located in the vehicle;
- Ask the driver (or owner of the vehicle) for permission to search the vehicle;
- Ask the occupants for their consent to pat them down for weapons;
- Pursuant to the Carroll Doctrine, search the vehicle and any containers located therein that could conceal drugs;
- Note where any evidence was located in relation to where the individual occupants were seated;
- If there is probable cause to believe the occupant was in joint, or constructive possession of any drugs, or if you can articulate why you believe this was a common enterprise of drug dealing, place them under arrest and search them incident to arrest;
- If your department permits it, you are allowed to have a well-behaved K-9 conduct an individual sniff of each passenger. If the dog alerts, they can be searched;
- Document everything and put it all in your report.
As you can see, the Maryland Court of Appeals decision in Norman v. State has further muddied the waters when it comes to vehicle stops and searches. There are so many scenarios, what ifs and add a facts that one need practically be a Fourth Amendment scholar to determine the proper course of action in any given stop. That leaves me out, so…
PLEASE BE CAREFUL AND MAKE SURE TO CONTACT YOUR LOCAL STATE’S ATTORNEYS’ OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THIS SUBJECT MATTER.