A Daily Record article (2017-10-02) reported that the United States Supreme Court declined to review a Maryland Court of Appeals holding that simply smelling unsmoked marijuana in a vehicle does not allow police officers to frisk a passenger for weapons. In Joseph Norman Jr. v. State of Maryland (March 27, 2017), the Court of Appeals found that in order to conduct a weapons frisk, a police officer must have “reasonable articulable suspicion” that a passenger may be armed and dangerous. This suspicion is based on the “totality of the circumstances” and must include more than smelling marijuana in a car. In declining to hear Maryland’s appeal, the Supreme Court essentially upheld the Court of Appeals holding and dismissed the argument of Maryland Attorney General Brian Frosh. From the article:
“By withholding authority to frisk the occupants of a car that an officer already has probable cause to search, and by retreating from the widely recognized association of drugs and guns particularly in the circumstances of drug trafficking or transport on the nation’s roads, the decision below makes constitutionally unreasonable the educated instincts that keep traffic officers alive,” Frosh wrote in Maryland’s petition for review. “This should not be.” …
In a responsive filing, Maryland Public Defender Paul B. DeWolfe countered that the Maryland court’s decision did not merit the justices’ review as it correctly interpreted the Fourth Amendment.
“As an initial matter, the rule proposed by the state is breathtaking in its scope, and adoption of it would permit pat-downs of passengers in a staggering number of situations, including stops in which the police have probable cause to believe the car contains evidence of very minor crimes, such as shoplifting,” DeWolfe wrote in the brief to the justices… .
The article also noted that DeWolfe cited the legalization or de-criminalization of small amounts of marijuana by more than 20 states as further evidence that simply having small amounts of marijuana is not viewed as dangerous behavior.