MD: Smell of mj isn’t RS

With recreational marijuana in Maryland, the smell of marijuana alone is not reasonable suspicion. In re D.D., 2021 Md. App. LEXIS 353 (Apr. 28, 2021):

As the State notes, Lewis addressed probable cause, a higher standard than reasonable suspicion. The analysis set forth in Lewis, however, leads to the conclusion that the odor of marijuana, by itself, does not provide reasonable suspicion to support an investigatory stop. Although reasonable suspicion is a lower standard than probable cause, it still is tied to suspicion of criminal conduct. See Navarette, 572 U.S. at 396 (A brief seizure is permitted “when a law enforcement officer has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.'”) (quoting Cortez, 449 U.S. at 417-18). Because possession of less than 10 grams of marijuana is no longer a crime, the suspicion required to support a stop for the crime of possession of marijuana, therefore, is that the person is in possession of more than 10 grams of marijuana. And because the “odor of marijuana alone does not indicate the quantity, if any, of marijuana in someone’s possession,” Lewis, 470 Md. at 27, it cannot, by itself, provide reasonable suspicion that the person is in possession of a criminal amount of marijuana or otherwise involved in criminal activity.

Other courts have reached this same conclusion. See, e.g., State v. Francisco Perez, 239 A.3d 975, 985-86 (N.H. 2020) (After decriminalization of small amounts of marijuana, the odor of marijuana remains a relevant factor in assessing reasonable suspicion, but it does not alone provide reasonable suspicion of criminal activity.); Commonwealth v. Cruz, 945 N.E.2d 899, 908 (Mass. 2011) (After the decriminalization of one ounce or less of marijuana, the odor of marijuana alone does not provide reasonable suspicion of criminal activity.).

The odor of marijuana may, with other circumstances, provide reasonable suspicion that a person is involved in criminal activity. Based on the reasoning of Lewis and other cases, however, because an officer cannot tell by the smell of marijuana alone that a person is involved in criminal activity, we hold that the odor of marijuana, by itself, does not provide reasonable suspicion to conduct an investigatory stop. Accordingly, Officer Walden did not have reasonable suspicion of criminality to support the stop, and it was unreasonable under the Fourth Amendment. The circuit court erred in denying the motion to suppress.