Maryland’s Highest Court Says “No” To Automatic Frisks

Posted in Uncategorized on April 3, 2017

Traditionally in Maryland if an officer pulled a car over and then “detected the odor of marijuana”, it meant they were going to search the vehicles and then frisk all the vehicles occupants. This may not be the case anymore.

The Court of Appeals in Maryland released an opinion on Monday, March 27th (Norman v. State) in which the justices concluded that the smell of marijuana alone was not enough to render an occupant likely to be armed and dangerous, and thus subject to a frisk. Rather, they said, if the officer is going to subject the passengers to a frisk, the totality of the circumstances must lead to the reasonable articulable suspicion that they are armed and dangerous or that the officer is otherwise in danger.

What does that mean for the average person? Well, let’s break it down into two parts. First, the frisk or pat-down. Officers typically engage in these as a way of detecting hidden items on an individual’s person; usually they’re looking for weapons, but they can also use it to “feel for” evidence. Essentially, they can use this to look for and find evidence of a crime – often drugs or drug paraphernalia.

However, they aren’t free to simply pat you down as they like. They can only do so after an arrest, in order to process your entry into a state facility; or if they have reasonable articulable suspicion that the individual could be armed and dangerous.

Let’s move on to the bad news though – the totality of the circumstances leading to reasonable articulable suspicion. What does it mean? Well, roughly put, it’s a summation of the entire situation at hand from the officer’s point of view. It can be very subjective, and is based on the officer’s experience and training. Courts tend to defer to officers on this, and it can be very different from the experience of the person being arrested.

Unfortunately, this means that the officer can often find reasons that fit their training or experience to find someone suspicious. The overall rate of passengers in such a situation would still be frisked likely will remain high, as the officer could simply find a reason that they are dangerous in the “totality of the circumstances”. Especially in cases like these, the passengers might suddenly develop a strong odor of the contraband in question, or be suspected of carrying weapons, because guns are often associated with the drug trade (as the courts have repeatedly concluded), or even display nervous behavior (another genuine cause for suspiciousness to the courts).

In the case at hand, the passengers were frisked simply because they occupied the vehicle in question, which smelled of contraband, and not for any other particular reason. There were no other independent criteria that pointed to them as being likely to be armed or dangerous. In the future, such a frisk would be illegal and any evidence discovered would likely have to be thrown out. That’s called Fruit of the Poisonous Tree, but that’s a separate can of worms for another time.