In re: D.D., No. 27, September Term, 2021. Opinion by Biran, J.

FOURTH AMENDMENT – SEARCHES AND SEIZURES – INVESTIGATORY 

DETENTIONS – REASONABLE SUSPICION BASED ON THE ODOR OF 

MARIJUANA – D.D., a juvenile, and his four companions were detained by police 

officers after the officers smelled the odor of marijuana coming from the group. While 

frisking D.D. for weapons, one of the officers discovered a loaded gun in D.D.’s waistband. 

After being charged with firearms offenses, D.D. moved to suppress the gun. The Court of 

Appeals held that the odor of marijuana gives rise to reasonable suspicion that criminal 

activity may be afoot, and thus provides the basis for a brief investigatory detention.

Possession of 10 grams or more of marijuana remains a criminal offense in Maryland, and 

the odor of marijuana, therefore, remains evidence of a crime. Although that odor, without 

more, does not provide probable cause to arrest a person for a criminal possession of 

marijuana, it does meet the less stringent standard of reasonable suspicion necessary to 

justify an investigatory stop. This distinction makes sense, given the differing level of 

intrusion associated with an arrest compared to an investigative detention. Thus, the Court 

held that the initial detention of D.D., based solely on the odor of marijuana, did not violate 

the Fourth Amendment.

FOURTH AMENDMENT – SEARCHES AND SEIZURES – PAT-DOWN FOR 

WEAPONS – REASONABLE SUSPICION THAT THE SUSPECT IS ARMED AND 

DANGEROUS – The Court of Appeals held that the officer who frisked D.D. had 

reasonable suspicion that D.D. was armed and dangerous, based on the totality of the 

circumstances. The factors supporting reasonable suspicion included the evasive behavior 

and body language of D.D. and his companions, the discovery of what was claimed to be 

a BB gun on one of the other young men in the group, D.D.’s baggy clothing, the officers’ 

smelling the odor of marijuana, their concern that the group was trespassing, and the fact 

that the officers were outnumbered five to two.
IN THE COURT OF APPEALS

OF MARYLAND

No. 27

September Term, 2021

IN RE: D.D.

*Getty, C.J.

*McDonald

Watts

Hotten

Booth

Biran

Raker, Irma S.

(Senior Judge, Specially Assigned),

JJ.

Opinion by Biran, J.

Watts, J., concurs.

Hotten and Raker, JJ., dissent.

Filed: June 21, 2022

*Getty, C.J., and McDonald, J., now Senior Judges, 

participated in the hearing and conference of this 

case while active members of this Court; after being 

recalled pursuant to Maryland Constitution, Article

IV, Section 3A, they also participated in the decision 

and adoption of this opinion.

Circuit Court for Prince George’s County

Case No. JA-19-0409

Argued: January 6, 2022
In 2014, the Maryland General Assembly decriminalized possession of less than 

10 grams of marijuana. However, the Legislature did not legalize marijuana possession. 

Rather, possession of less than 10 grams of marijuana currently is a civil offense punishable 

by fines and other remedies, and possession of more than 10 grams of marijuana remains 

a criminal offense. 

In the aftermath of this partial decriminalization, this Court has issued several 

opinions concerning warrantless searches and seizures based on the odor of marijuana. The 

most recent of these cases, Lewis v. State, 470 Md. 1 (2020), involved a search incident to 

an arrest, where the probable cause for the arrest was based solely on the fact that officers

smelled marijuana on the defendant. We held that the odor of marijuana on a person, 

without more, does not provide probable cause to believe that the person is in possession 

of a criminal amount of the drug. Therefore, the officers lacked probable cause to arrest the 

defendant, and the evidence found in the search incident to that arrest had to be suppressed.

In this case, we consider whether to extend the holding in Lewis to an investigatory 

detention, which requires a showing of reasonable suspicion to believe that criminal 

activity may be afoot – a standard that is significantly less stringent than probable cause. 

That is, we must decide whether the odor of marijuana, by itself, provides reasonable 

suspicion to support an investigatory detention. 

On November 15, 2019, two police officers stopped a group of five young men as 

the group was getting ready to leave an apartment building in Capitol Heights, Maryland. 

D.D., the Respondent/Cross-Petitioner before us, was one of the five members of the group. 

He was 15 years old at the time. The officers had been called to the building based on a 
2

complaint involving the odor of marijuana. The officers smelled a strong odor of marijuana 

coming from the group of young men and directed them to sit down, thus seizing them for 

purposes of the Fourth Amendment. The young men would not tell the officers where they 

lived, and D.D., in particular, exhibited behavior that one of the officers believed was 

“evasive,” suggesting to the officer that D.D. might be armed. The officers subsequently 

began patting down the members of the group for weapons. One of the officers found a

suspected handgun (possibly a BB gun) in the waistband of one of D.D.’s companions. The 

other officer then frisked D.D. and found a loaded gun in D.D.’s waistband. A delinquency 

petition subsequently was filed in the Circuit Court for Prince George’s County charging 

D.D. with firearms offenses.

D.D. moved to suppress the gun, arguing that his initial detention and subsequent 

frisk both violated the Fourth Amendment. The circuit court, sitting as the juvenile court, 

denied D.D.’s suppression motion and found him involved as to the charged offenses. D.D. 

appealed the juvenile court’s denial of his suppression motion.

The Court of Special Appeals reversed, holding that the odor of marijuana, without 

more, does not provide reasonable suspicion of possession of a criminal amount of 

marijuana. Thus, the intermediate appellate court held that the investigatory detention of 

D.D., which was based solely on the odor of marijuana, violated the Fourth Amendment. 

Having ruled that the gun should have been suppressed due to the invalid detention, the 

Court of Special Appeals did not decide whether the frisk also was impermissible.

We hold that the odor of marijuana provides reasonable suspicion of criminal 

activity sufficient to conduct a brief investigatory detention. Thus, the officers’ initial stop 
3

of D.D. did not violate the Fourth Amendment. We also conclude that the discovery of a 

weapon on one of D.D.’s companions, combined with the group’s evasive behavior and 

other circumstances, provided the officers with reasonable suspicion that D.D. was armed 

and dangerous. Thus, the pat-down that led to the discovery of the gun on D.D. also was 

reasonable. Accordingly, we will reverse the judgment of the Court of Special Appeals and 

hold that the juvenile court properly denied D.D.’s suppression motion.

I

Background

A. The Investigatory Detention and Pat-Down of D.D.

On November 15, 2019, shortly after 7:30 p.m., Sergeant Jeff Walden and Officer 

Alexandra Moser of the Prince George’s County Police Department (the “Department”) 

responded to a call for service to investigate a group of males in an apartment building 

located at 6626 Ronald Road in Capitol Heights, Maryland. The call was based on a 

complaint of “loud music and the smell of marijuana” coming from the basement of the 

building.

After opening the front door of the apartment building, the officers saw a group of 

five young men walking up the stairs from the basement. The officers “smelled a strong 

odor of marijuana” coming from the group. Sergeant Walden – a 21-year veteran of the 

Department – stopped the group and directed them to “have a seat” on the stairs. The young 

men were wearing baggy clothes, and D.D. was wearing a “big puffy jacket.” There were 

two sets of stairs leading away from the landing where the officers were located when they 

entered the building and stopped the group. The stairs to the left of the officers led up to 
4

the next level of the building. The stairs to the right led down to the basement.1 After 

Sergeant Walden told the young men to sit down, four of the members of the group sat 

down on the ascending staircase. The young man later identified as D.D.2 was the only 

member of the group who sat down on the descending staircase.

According to Sergeant Walden, he and Officer Moser began their discussion with 

the young men by asking, “[W]ho lives here?” The officers received no response. None of 

the members of the group “could provide any identification of where they lived.” When 

Sergeant Walden specifically asked D.D. where he lived, D.D. “shrugged his shoulders and 

didn’t say anything.” When Officer Moser asked D.D. the same question, D.D. replied “my 

dick.” The other members of the group were “snickering, laughing, very carefree, [and] not 

cooperative.” Sergeant Walden noticed that D.D. kept turning away from him and “seemed 

to be evasive,” which, based on Sergeant Walden’s “training and knowledge,” is “a sign 

that you could be carrying a weapon.” Sergeant Walden also was concerned because he 

could not “really see [D.D.’s] hands.” According to Sergeant Walden, D.D. “would speak 

to me, but I can’t see his whole body language, I can’t see what he’s doing.”

Because of the “odor of marijuana,” the group’s “evasive body language,” and the 

fact that there were “five of them in baggy clothes” in a place “where they could run out 

the door,” Sergeant Walden was concerned that one of the group members might be in 

possession of a weapon and “wanted to feel safe that there was nobody that was armed at 

1 Although it is not explicit in the record, we infer that it was this set of stairs that 

the young men were ascending as the officers entered the building.

2

In this opinion, we refer to D.D. and other juveniles by their initials.
5

the time.” The officers told the group members that they would each be frisked. At that 

point, the officers were investigating the young men for the crimes of trespassing and 

possession of controlled dangerous substances.

Officer Moser first conducted a pat-down of one of D.D.’s companions. As she did 

so, Officer Moser felt what she believed to be a handgun inside the waistband of the 

subject’s pants. Officer Moser then placed the young man in handcuffs. At that point, 

Sergeant Walden moved to assist Officer Moser and stood in front of the door because 

“through [his] training and knowledge and understanding” he “knew as soon as she put 

him in handcuffs that she had recovered a weapon.” After she placed the young man in 

handcuffs, Officer Moser conducted a more thorough pat-down and removed the suspected 

handgun from the subject’s waistband.

After securing the group member with the suspected handgun and placing him to 

the side, Sergeant Walden turned his attention to D.D. Sergeant Walden “had [D.D.] stand 

up, place his hands on top of his head and ... step against the wall.” Sergeant Walden then 

“started a pat-down ... and as soon as [he] went to the waistband, which is the first place 

that [he] went, [he] could feel the butt of a handgun in his waistband.” Sergeant Walden 

then placed D.D. in handcuffs “so he wouldn’t be able to reach for it or fight or anything.”

From D.D.’s waistband, Sergeant Walden retrieved a loaded nine millimeter handgun.

When asked to explain “how officers are trained to respond when they’re 

outnumbered,” Sergeant Walden responded:

At first you’re in a terrible disadvantage. We were taught in the academy, it’s 

basic, you’d want to also go with back-up and you shouldn’t handle any call 

by yourself.
6

But there are times where you’re put in that position to where there are 

several people coming at you, so you have to get the advantage. And one of 

the first concerns is a weapon that they could use against you.

And my first concern was one of them having a weapon. And there was five 

of them and they were right by a door where they could run out the door, plus 

the odor ... of marijuana, that there was illegal drug activity there, the fact 

that nobody could provide any identification that they live inside that 

building.

So the first thing we want to do is secure them and make sure that they don’t 

have any weapons on them. Once we found the weapon on them, then they 

were secured and handcuffed.

B. The Juvenile Court’s Ruling

On November 18, 2019, a delinquency petition was filed in the Circuit Court for 

Prince George’s County charging D.D. with possession of a regulated firearm by a person 

under the age of 21 and two other firearms-related offenses. On December 13, 2019, D.D., 

through counsel, filed a motion to suppress the handgun recovered from his waistband. The 

circuit court, sitting as the juvenile court, held a hearing on D.D.’s motion on December 

17, 2019. The State called one witness, Sergeant Walden, who testified to the facts set forth 

above.

D.D. called one witness, D.A., another juvenile who was in the group of five. D.A. 

testified that, after he and the others encountered the officers as they walked up the stairs 

from the basement, the officers immediately told them to sit down. According to D.A., the 

“first thing they asked was does anybody have dope, where’s the dope.” The group 

responded that they had no drugs. The male officer then asked them if there was anything 

they wanted to tell him about. The group said that there was not, but D.A. told the officer 
7

that he had a “funnel” on him, which was “not a drug.”3 After that, according to D.A., the 

officers “were like okay, we’re going to search everybody.” D.A. acknowledged that he 

and the others had been smoking marijuana in the basement prior to their encounter with 

the officers. D.A. also stated that none of the five young men lived in the building and 

confirmed that, after the female officer frisked one of the other young men, “J.”, she 

removed a weapon from J.’s waistband. According to D.A., after the female officer felt the 

weapon, J. “called out” that he had a BB gun. D.A. confirmed that the female officer 

discovered the alleged BB gun on J. before the male officer began frisking D.D.

After hearing argument from counsel for D.D. and the State, the juvenile court

denied D.D.’s suppression motion:

The Court finds there’s ... reasonable articulable suspicion that the 

Respondent was engaged in criminal activity, a lot of facts as they were 

outlined in the testimony, it was ... 7:00 in November.... It was ... cold. That 

there was a strong odor of marijuana. The Court credits the testimony of the 

officer regarding the response from some of the males in response to his 

questions, that the young man was evasive. The Court also credits the 

officer’s testimony ... that he asked where he lived and the, they responded, 

replied, you know, at my dick. So the Court finds there’s a reasonable 

articulable suspicion for criminal activity. The Court is going to deny the 

motion to suppress.

(Paragraph breaks omitted.)

On January 7, 2020, the juvenile court found that D.D. was involved as to all counts

charged in the delinquency petition. After holding a disposition hearing on February 7, 

3 D.A. did not provide any further explanation about what a “funnel” is. In its brief, 

the State tells us that “it appears [D.A.] was referring to a tobacco leaf product used for 

rolling cigarettes.”
8

2020, the juvenile court ordered D.D. placed on probation/protective supervision with 

probation to be terminated on November 30, 2020.

C. Appeal

The Court of Special Appeals reversed the juvenile court’s denial of D.D.’s 

suppression motion. In re D.D., 250 Md. App. 284 (2021). Although the Court of Special 

Appeals acknowledged that this Court’s opinion in Lewis “addressed probable cause, a 

higher standard than reasonable suspicion,” it observed that reasonable suspicion “still is 

tied to suspicion of criminal conduct.” Id. at 300-01. The intermediate appellate court 

concluded that “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.” Id. at 301. Because the officers detained D.D. and 

his companions based solely on the odor of marijuana, the Court of Special Appeals held 

that the officers lacked reasonable suspicion for the stop. Id. Accordingly, the Court 

concluded that the seizure was unreasonable under the Fourth Amendment and that the 

juvenile court erred in denying D.D.’s suppression motion. Id. Having concluded that 

suppression of the gun was required due to the unconstitutionality of the initial detention, 

the Court of Special Appeals did not decide whether the subsequent frisk of D.D. 

independently violated the Fourth Amendment.

The State filed a petition for certiorari in this Court, seeking review of the following

question: “Does the scent of marijuana provide reasonable suspicion to conduct an 

investigatory stop to determine if someone possesses a criminal amount of marijuana or 
9

could be cited for civil violations of marijuana laws?” D.D. subsequently filed a conditional 

cross-petition presenting the question: “Assuming, arguendo, that the stop was 

constitutional, was the frisk unlawful because the police lacked reasonable suspicion to 

believe that D.D. was armed and dangerous?” We granted both petitions. In re D.D., 475

Md. 701 (2021).

II

Standard of Review

In reviewing a trial court’s ruling concerning the admissibility of evidence allegedly 

seized in violation of the Fourth Amendment, we accept the trial court’s findings of fact 

unless they are clearly erroneous. Grant v. State, 449 Md. 1, 31 (2016). We independently 

appraise the ultimate question of constitutionality by applying the relevant law to the facts 

de novo. See id. 

Where “there is any competent evidence to support the factual findings below, those 

findings cannot be held to be clearly erroneous.” Givens v. State, 459 Md. 694, 705 (2018) 

(internal quotation marks and citation omitted). We review “the trial court’s findings of 

fact, the evidence, and the inferences that may be drawn therefrom in the light most 

favorable to the party who prevails on the issue that the defendant raises in the motion to 

suppress.” Robinson v. State, 451 Md. 94, 108 (2017) (citation omitted).
10

III

Discussion

The Fourth Amendment provides: 

The right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures, shall not be violated, and 

no Warrants shall issue, but upon probable cause, supported by Oath or 

affirmation, and particularly describing the place to be searched, and the 

persons or things to be seized.

U.S. Const. amend. IV.

Under the Fourth Amendment, “subject only to a few specifically established and 

well-delineated exceptions, a warrantless search or seizure that infringes upon the protected 

interests of an individual is presumptively unreasonable.” Grant, 449 Md. at 16-17 

(footnote omitted). “The default rule requires that a seizure of a person by a law 

enforcement officer must be supported by probable cause, and, absent a showing of 

probable cause, the seizure violates the Fourth Amendment.” Crosby v. State, 408 Md. 490, 

505 (2009) (citation omitted). However, “a law enforcement officer may conduct a brief 

investigative ‘stop’ of an individual if the officer has a reasonable suspicion that criminal 

activity is afoot.” Id. at 505-06 (quoting Terry v. Ohio, 392 U.S. 1, 17 (1968)). In addition, 

a police officer may conduct “a reasonable search for weapons for the protection of the 

police officer, where [the officer] has reason to believe that [the officer] is dealing with an 

armed and dangerous individual, regardless of whether he [or she] has probable cause to 

arrest the individual for a crime.” In re David S., 367 Md. 523, 533 (2002) (quoting Terry, 

392 U.S. at 27).
11

A. Reasonable Suspicion and the Odor of Marijuana

D.D. argues that this Court’s opinion in Lewis v. State is dispositive of the first issue 

presented by this case. D.D.’s position is that “[b]ecause the odor of marijuana alone is not 

indicative of criminal activity and an officer must have evidence of a crime in order to 

conduct an investigatory stop, it necessarily follows that the odor of marijuana alone does 

not provide reasonable suspicion to conduct a Terry stop.” 

The State argues that the Court of Special Appeals erred when it held that the odor 

of marijuana “cannot, by itself, provide reasonable suspicion that the person is in 

possession of a criminal amount of marijuana or otherwise involved in criminal activity.” 

D.D., 250 Md. App. at 301. The State emphasizes that the standard for reasonable suspicion 

is less demanding than that for probable cause. Thus, according to the State, the Court of 

Special Appeals’ decision in this case improperly “elevates the standard for reasonable 

suspicion, requiring police at the nascent stage of an investigation to have certainty that 

criminal activity is afoot before being able to conduct an investigatory stop meant to 

confirm or dispel that suspicion.” We agree with the State.

1. The Odor of Marijuana and Probable Cause

Prior to the General Assembly’s partial decriminalization of marijuana possession

in 2014, possession of any amount of marijuana generally was illegal.

4 As a result, before 

2014, the odor of marijuana gave law enforcement officers probable cause to search a 

vehicle, see, e.g., Wilson v. State, 174 Md. App. 434, 441-42 (2007), and the odor of 

4 Maryland adopted a medical marijuana program in 2013. See H.B. 1101, 2013 

Leg., 433rd Sess. (Md. 2013).
12

marijuana particularized to a person provided probable cause for an arrest. See McGurk v. 

State, 201 Md. App. 23, 52 (2011) (citation omitted).

Currently, the use or possession of less than 10 grams of marijuana is a “civil 

offense” punishable by a fine not exceeding $100 for a first offense, increasing to a fine of 

$250 for a second offense, and $500 for a third or subsequent offense. Md. Code Ann., 

Crim. Law (CR) § 5-601(c)(2)(ii) (2002, 2021 Repl. Vol.). Smoking marijuana in a public 

place is a civil offense punishable by a fine not exceeding $500. Id. § 5-601(c)(4). The “use 

or possession” of 10 grams or more of marijuana remains a criminal offense, specifically a 

misdemeanor punishable by imprisonment not exceeding six months or a fine not 

exceeding $1,000, or both. Id. § 5-601(c)(2).5

The partial decriminalization of marijuana changed the legal landscape 

significantly, leading to a series of decisions by the Court of Special Appeals and this Court 

that considered whether and how the odor of marijuana continuesto provide probable cause 

to conduct warrantless searches and seizures in Maryland.

The first of these cases was Bowling v. State, 227 Md. App. 460 (2016). Bowling 

involved a traffic stop that subsequently resulted in a K-9 alert indicating that the vehicle 

contained a controlled dangerous substance. Id. at 462-65. As such, the case dealt with the 

automobile exception to the warrant requirement, also known as the “Carroll doctrine,” 

which allows an officer to “search an automobile, without a warrant, if he or she has 

5 The General Assembly has provided exceptions to this enforcement regime for 

those who have obtained marijuana “directly or by prescription or order from an authorized 

provider acting in the course of professional practice.” CR § 5-601(a)(1).
13

probable cause to believe it contains evidence of a crime or contraband goods.” Id. at 468 

(citing Carroll v. United States, 267 U.S. 132 (1925); Wyoming v. Houghton, 526 U.S. 295, 

300 (1999)). The Court of Special Appeals noted that “Maryland appellate courts 

consistently have held that the detection of the odor of marijuana by a trained drug dog 

establishes probable cause to conduct a warrantless Carroll doctrine search of a vehicle,” 

before going on to consider “whether the recent Maryland law, which decriminalized the 

possession of less than 10 grams of marijuana and made it a civil offense, changes this 

analysis.” Id. at 469 (citations omitted).

The Court of Special Appeals held that the partial decriminalization did “not change 

the established precedent that a drug dog’s alert to the odor of marijuana, without more, 

provides the police with probable cause to authorize a search of a vehicle pursuant to the 

Carroll doctrine.” Id. at 476. Important to the intermediate appellate court’s holding was 

the fact that “although the Maryland General Assembly made possession of less than 

10 grams of marijuana a civil, as opposed to a criminal, offense, it is still illegal to possess 

any quantity of marijuana, and marijuana retains its status as contraband.” Id. 

Robinson v. State, 451 Md. 94 (2017), also concerned the automobile exception to 

the warrant requirement, but involved the smell of marijuana by an officer, not a drug dog. 

In Robinson, this Court analyzed the “Fourth Amendment jurisprudence of the Supreme 

Court, Bowling, and authority from other jurisdictions that have addressed the 

decriminalization – or, in one instance, the legalization – of marijuana,” and held that “a 

law enforcement officer has probable cause to search a vehicle where the law enforcement 

officer detects an odor of marijuana emanating from the vehicle.” Id. at 125. Similar to 
14

Bowling, our holding in Robinson was based largely on the idea that “[d]ecriminalization 

is not the same as legalization” and that “[d]espite the decriminalization of possession of 

less than ten grams of marijuana, possession of marijuana in any amount remains illegal in 

Maryland.” Id. (emphasis in original). We further explained:

[A]t oral argument and in its brief, the State argued that, separate from the 

odor of marijuana providing probable cause to believe that a vehicle contains 

contraband, the odor of marijuana provides probable cause to believe that a 

vehicle contains evidence of a crime. Put simply, we agree. Despite the 

decriminalization of possession of less than ten grams of marijuana, the odor 

of marijuana remains evidence of a crime. The odor of marijuana emanating 

from a vehicle may be just as indicative of crimes such as the possession of 

more than ten grams of marijuana, possession of marijuana with the intent to 

distribute, or the operation of a vehicle under the influence of a controlled 

dangerous substance, as it is of possession of less than ten grams of 

marijuana.... [I]t is unreasonable to expect law enforcement officers to 

determine, based on odor alone, the difference between 9.99 grams or less of 

marijuana and 10 grams of marijuana. In short, possession of ten grams or 

more of marijuana, crimes involving the distribution of marijuana, and 

driving under the influence of a controlled dangerous substance have not 

been decriminalized in Maryland, and, thus, the odor of marijuana emanating 

from a vehicle provides probable cause to believe that the vehicle contains 

evidence of a crime, and a law enforcement officer may search the vehicle 

under such circumstances.

Id. at 133-34.

Just a few months later, in Norman v. State, 452 Md. 373 (2017), we considered 

whether the odor of marijuana emanating from a vehicle with multiple passengers alone 

could serve as “reasonable articulable suspicion that the vehicle’s occupants are armed and 

dangerous and subject to frisk.” Id. at 412. We answered that question in the negative, 

reasoning 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 
15

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 circumstances must indicate that the occupant in 

question is armed and dangerous.

Id. at 411-12. Thus, while the smell of marijuana can justify a quick pat-down of a vehicle’s 

occupants if combined with some other pertinent circumstance(s), the odor, in and of itself, 

is insufficient to give rise to reasonable suspicion that a specific individual within the 

vehicle is armed and dangerous. Id. at 412. The Court stated that Robinson was not 

“determinative of the issue at hand,” id. at 409, as “[n]o frisks or searches of persons were 

at issue in Robinson, and nowhere in Robinson did this Court imply, one way or the other, 

whether a frisk of a person would be permissible based on an odor of marijuana alone 

emanating from a vehicle.” Id. at 411.

Next, in Pacheco v. State, 465 Md. 311 (2019), we considered whether the smell of 

marijuana in a car, combined with the observation of a “fresh burnt” joint that could not 

possibly have contained more than 10 grams of marijuana, provided probable cause 

sufficient both to search the car and to arrest, and thereby search, the occupant of the car.

Although we indicated that “the police lawfully searched Mr. Pacheco’s car for contraband 

or evidence of the three crimes identified in Robinson,” we observed that it “does not 

follow” from the existence of probable cause to search the car that the police “likewise had 

the right to search [Pacheco’s] person.” Id. at 330. We explained that “[t]he same facts and 

circumstances that justify a search of an automobile do not necessarily justify an arrest and 
16

search incident thereto. This is based on the heightened expectation of privacy one enjoys 

in his or her person as compared to the diminished expectation of privacy one has in an 

automobile. The arrest and search of Mr. Pacheco was unreasonable because nothing in the 

record suggests that possession of a joint and the odor of burnt marijuana gave the police 

probable cause to believe he was in possession of a criminal amount of that substance.” Id.

at 333-34. Although we noted that, “[i]n a different case, additional facts or testimony 

beyond what we have here may well have compelled a different result,” we concluded that 

the State had not met its burden to prove that the warrantless arrest and search of the 

occupant was reasonable. Id. at 333.

Finally, in Lewis v. State, we held that the odor of marijuana on a person, without 

more, does not provide probable cause to arrest the person (and to conduct a search of the 

person incident to the arrest). In Lewis, the State based its argument on the fact that, unlike 

Pacheco, where the police saw a singular marijuana joint in the car that was suggestive of 

a non-criminal offense, the police in Lewis only had the odor of marijuana to go on in 

deciding whether to arrest the suspect:

[W]hile the scent of marijuana left unexplained provides probable cause to 

believe that a criminal amount may be present, see Robinson, that scent plus 

the sighting of a non-criminal amount should diminish suspicion. And 

without some other factual basis to conclude that, where there is some 

marijuana, there may be more, the inference of criminal possession in 

Pacheco simply receded into the constitutionally unreasonable.

Pacheco is, therefore, best understood as a case-specific application of the 

totality-of-the-evidence test, and the facts here are different than in Pacheco. 

This case does not feature a fact, akin to the less-than-10-gram-cigarette, that 

explained the source of the marijuana emanating from Lewis’s person in a 
17

way that should have diminished Officer Burch’s probable cause arising 

from the scent alone.

Brief of Respondent, Lewis v. State, 2019 WL 8014537, at *47-*48 (Dec. 10, 2019).

We rejected the State’s attempt to distinguish Pacheco, and held that the search of 

Lewis incident to his arrest, based solely on the odor of marijuana emanating from his 

person, was unreasonable. Lewis, 470 Md. at 27. “Under Pacheco, that information fell 

short of supplying the requisite probable cause to conduct that search.” Id. (citing Pacheco, 

465 Md. at 333-34). We further explained: 

Probable cause to conduct a lawful arrest requires that the arrestee committed 

a felony or was committing a felony or misdemeanor in a law enforcement 

officer’s presence. Possession of less than ten grams of marijuana is a civil 

offense, not a felony or a misdemeanor, therefore law enforcement officers 

need probable cause to believe the arrestee is in possession of a criminal 

amount of marijuana to conduct a lawful arrest. The odor of marijuana alone 

does not indicate the quantity, if any, of marijuana in someone’s possession.

Id. Thus, we held that for the arrest and search of a person “to be supported by probable 

cause, the police must possess information indicating possession of a criminal amount of 

marijuana.” Id. Because there was no indication in the record suggesting that Lewis 

possessed a criminal amount of marijuana, we held that his arrest and search incident to 

arrest violated the Fourth Amendment. Id.

2. A Less Stringent Standard: Reasonable Suspicion Versus Probable Cause as 

Applied to the Odor of Marijuana following Decriminalization

Lewis does not necessarily control this case because the initial seizure at issue here 

(unlike in Lewis) is not an arrest requiring probable cause, but rather is an investigatory 

detention requiring reasonable suspicion. While investigatory detentions are seizures 

within the meaning of the Fourth Amendment, “the limited nature of a brief investigative 
18

stop does not demand a standard as stringent as probable cause.” Crosby, 408 Md. at 506

(citation omitted). Rather, to conduct a brief investigatory detention, an officer must have 

only reasonable, articulable suspicion that criminal activity may be afoot. Id. at 505-06.

“Reasonable suspicion exists somewhere between unparticularized suspicions and 

probable cause.” Sizer v. State, 456 Md. 350, 364 (2017) (citation omitted); see also Stokes

v. State, 362 Md. 407, 415 (2001) (“[M]ere hunches are insufficient to justify an 

investigatory stop; for such an intrusion, an officer must have reasonable articulable 

suspicion.”) (internal quotation marks and citations omitted). “While there is no litmus test 

to define the reasonable suspicion standard,” law enforcement officers must have “a 

particularized and objective basis for suspecting the particular person stopped of criminal 

activity.” Id. (internal quotation marks and citations omitted); see also Heien v. North 

Carolina, 574 U.S. 54, 60 (2014) (reasonable suspicion means “a particularized and 

objective basis for suspecting the particular person stopped of breaking the law”) (internal 

quotation marks and citation omitted). We have explained that “the level of suspicion 

necessary to constitute reasonable, articulable suspicion is considerably less than proof of 

wrongdoing by a preponderance of the evidence and obviously less demanding than that 

for probable cause.” Graham v. State, 325 Md. 398, 408 (1992) (internal quotation marks 

and citations omitted).

The probable cause standard does not require an officer “to rule out a suspect’s 

innocent explanation for suspicious facts.” District of Columbia v. Wesby, 138 S. Ct. 577, 

588 (2018). The same is true, of course, for the reasonable suspicion standard. See, e.g., 

United States v. Arvizu, 534 U.S. 266, 277 (2002). But, as discussed above, the two 
19

standards are not equivalent. Reasonable suspicion is a less stringent standard than 

probable cause. That is true “not only in the sense that reasonable suspicion can be 

established with information that is different in quantity or content than that required to 

establish probable cause, but also in the sense that reasonable suspicion can arise from 

information that is less reliable than that required to show probable cause.” Alabama v. 

White, 496 U.S. 325, 330 (1990). 

Put simply, a particular circumstance or set of circumstances may satisfy the

reasonable suspicion standard but fall short of probable cause. That is precisely the case 

with respect to the odor of marijuana. Contrary to D.D.’s argument, decriminalization has 

not rendered the odor of marijuana free of all criminal suspicion. Rather, “the odor of 

marijuana remains evidence of a crime,” Robinson, 451 Md. at 133, because the use or 

possession of 10 grams or more of marijuana remains a criminal offense in Maryland. In 

other words, partial decriminalization has reduced the level of certainty associated with the 

odor of marijuana on a person from probable cause that the person has committed a crime 

to reasonable suspicion that the person has committed a crime or is in the process of 

committing a crime.

6

6 During the 2022 Legislative Session, the General Assembly passed House Bills 1 

and 837. House Bill 1 proposes an amendment to the Maryland Constitution legalizing the 

use and possession of cannabis for individuals in Maryland who are at least 21 years old. 

The proposed amendment will be on the ballot as part of the 2022 general election. If 

Maryland voters ratify the constitutional amendment, the voting results will be sent to the 

Governor and, upon his proclamation, the amendment will take immediate effect. 

However, the amendment is contingent on the requirement that the General Assembly pass 

legislation regarding the use, distribution, possession, regulation, and taxation of cannabis. 

Dep’t Legis. Servs., Fiscal and Policy Note, House Bill 837, at 2 (2022 Session), available 

at https://perma.cc/3R3S-9XMH. House Bill 837, among other things, addresses the use of 
20

It follows that a brief investigatory detention based solely on the odor of marijuana 

is reasonable, whereas an arrest (and a search incident to such arrest) is unreasonable if

based solely on the odor of marijuana. The different outcomes make sense, given the 

differing levels of intrusiveness of the two Fourth Amendment events. An arrest is the 

“most intrusive encounter” that a police officer has with a citizen. Swift v. State, 393 Md. 

139, 150 (2006); see also State v. Wells, 859 N.W.2d 316, 326 (Neb. 2015) (observing that 

an arrest “involves a highly intrusive or lengthy search or detention”). “[G]enerally, a 

display of force by a police officer, such as putting a person in handcuffs, is considered an 

arrest.” Longshore v. State, 399 Md. 486, 502 (2007). An investigatory detention to 

determine whether criminal activity is afoot “is less intrusive than a formal custodial 

arrest[.]” Swift, 393 Md. at 150. It “is limited in duration and purpose and can only last as 

long as it takes a police officer to confirm or to dispel his suspicions.” Id. 

cannabis. Under House Bill 837, persons who are 21 years old or older would be able

legally to possess up to 1.5 ounces of usable cannabis (defined in the legislation as the 

“personal use amount”). The use or possession of more than 1.5 ounces but not more than 

2.5 ounces of usable cannabis (defined as the “civil use amount”) would be a civil offense 

punishable by a fine and other remedies. The use or possession of more than 2.5 ounces of 

usable cannabis (like 10 or more grams under current law) would be a misdemeanor 

punishable by up to six months of imprisonment, a fine of $1,000, or both. If the 

constitutional amendment is ratified, additional legislation will be needed to address the 

remaining outstanding issues. See Madeleine O’Neill, Still on Different Paths: Md. House, 

Senate disconnected on path to legal cannabis in advance of referendum, The Daily Record 

at 1 (June 6, 2022), available at https://perma.cc/F3VJ-CYVK.

We express no opinion concerning the potential impact of the adoption of the 

proposed constitutional amendment and the provisions of House Bill 837 on this Court’s 

Fourth Amendment jurisprudence. 
21

As to an investigatory detention based on the odor of marijuana, if the officer does 

not quickly obtain additional information that provides probable cause to believe that the 

person has committed a violation of CR § 5-601(c)(2) or another criminal offense, the 

officer must allow the person to go on their way. The public interest in investigating and 

prosecuting criminal offenses, balanced against an individual’s freedom of movement and

reasonable expectation of privacy in their person, leads us to conclude that the odor of 

marijuana by itself justifies a brief investigatory detention, but (as we held in Lewis) not 

an arrest. See United States v. Sharpe, 470 U.S. 675, 685 (1985) (observing that “the brevity 

of the invasion of the individual’s Fourth Amendment interests is an important factor in 

determining whether the seizure is so minimally intrusive as to be justifiable on reasonable 

suspicion”) (internal quotation marks and citation omitted). Thus, if a police officer stops 

a person based on the smell of marijuana, the officer must “diligently pursue[] a means of 

investigation that [is] likely to confirm or dispel their suspicions quickly[.]” Id. at 686

(citations omitted). There is no particular amount of time that is per se reasonable or 

unreasonable. Whether an investigative detention that begins as reasonable based on the 

odor of marijuana becomes unreasonable because of its length will depend on the particular 

circumstances of each case. However, we emphasize that such detentions must be brief, 

especially in light of the reality that many individuals who choose to possess marijuana do 

so under the criminal threshold of 10 grams.

The Court of Special Appeals reversed the juvenile court’s suppression ruling 

because it believed Lewis required that outcome. Although the intermediate appellate court

acknowledged that “Lewis addressed probable cause, a higher standard than reasonable 
22

suspicion,” D.D., 250 Md. App. at 300, it reasoned that Lewis’s holding rendered D.D.’s 

investigatory detention unconstitutional “because an officer cannot tell by the smell of 

marijuana alone that a person is involved in criminal activity.” Id. at 301.

However, Lewis must be read in conjunction with the cases that came before it, 

including Robinson. In Robinson, we acknowledged that the odor of marijuana does not 

reveal the quantity of marijuana held by a given individual. Yet, we recognized that such

uncertainty does not render the odor of marijuana irrelevant to a criminal investigation. To 

the contrary, we stated that, “[d]espite the decriminalization of possession of less than ten 

grams of marijuana, the odor of marijuana remains evidence of a crime.” Robinson, 451 

Md. at 133.

Notably, in Pacheco and Lewis, we did not call this language in Robinson into 

question. Indeed, in Pacheco, we reaffirmed the holding of Robinson, explaining that “the 

police lawfully searched Mr. Pacheco’s car for contraband or evidence of the three crimes 

identified in Robinson[.]” Pacheco, 465 Md. at 330 (emphasis added). However, we drew 

a distinction between the showing necessary to establish probable cause to justify an arrest 

and the showing necessary to demonstrate probable cause to search an automobile, given 

the different expectations of privacy that apply in those settings. See id. at 333. We further 

elaborated on this distinction in Lewis, citing the “evidence of a crime” language from 

Robinson and stating that “[a]rresting and searching a person, without a warrant and based 

exclusively on the odor of marijuana on that person’s body or breath, is unreasonable and 

does violence to the fundamental privacy expectation in one’s body; the same concerns do 

not attend the search of a vehicle.” Lewis, 470 Md. at 26. 
23

D.D. contends that “cases discuss[ing] how the odor of marijuana provides probable 

cause to search a vehicle ... for reasons this Court explained in Lewis, are not instructive 

here.” We disagree. In order to accept this proposition, we would need to disclaim 

Robinson’s key language quoted above, which we are not prepared to do. There can be no 

real dispute that the odor of marijuana still provides evidence of a crime – as we explained

in Robinson – even if it may not rise to the level of probable cause in every situation. 

D.D. correctly observes that there are many wholly innocent reasons why someone 

might smell of marijuana. However, that does not render the odor of marijuana free of 

reasonable suspicion. As Terry itself demonstrates, wholly innocent conduct may provide 

reasonable suspicion that criminal activity is occurring or is about to occur.

7

In sum, 

although the quantum of evidence that the odor of marijuana provides is insufficient to 

justify an arrest based on the probable cause standard, it meets the reasonable suspicion 

standard necessary to justify a brief investigatory detention. Put another way, under Lewis, 

7

In Terry, a police officer saw what he reasonably believed to be three men planning 

a daytime store robbery. However, each individual action that the officer observed was 

wholly innocent. See Terry, 392 U.S. at 5-7. Two of the men walked up and down a street 

in downtown Cleveland separately several times, repeatedly looking into the same store 

window. Id. at 6. They also spoke with each other and then with the third man. The third 

man then walked away from the two others. Id. The first two men then resumed their 

“measured pacing, peering and conferring.” Id. Later, the two men met up with the third 

man down the street and the group again conversed. Id. Based on the officer’s observations 

of this facially innocent conduct, which indicated to the officer that the men were “casing 

a job, a stick-up,” the officer seized Terry and frisked him. Id. at 6-7. The Supreme Court 

upheld the frisk, concluding that the officer’s suspicion that Terry might be armed and 

dangerous, based on this wholly innocent conduct, was reasonable. See id. at 27-28. The 

suspects’ actions were consistent with planning a daytime robbery, and nothing the officer 

observed lessened that suspicion. Id. at 28.
24

the officers could not have arrested D.D. or any of the members of the group based solely 

on the odor of marijuana, but that does not mean the officers’ suspicion that one or more 

of the group might possess at least 10 grams of the drug – based on odor alone – was 

unreasonable.8

The distinction in the standards applied in these situations exists, in large part, 

because a brief investigatory stop does not raise “the same concerns” as “[a]rresting and 

searching a person, without a warrant.” Lewis, 470 Md at 26. Being stopped for a short 

amount of time so that an officer can ask a few questions does not do the same “violence 

to the fundamental privacy expectation in one’s body” that being placed in handcuffs and 

physically searched does. Id. Indeed, it would be peculiar if the odor of marijuana was 

sufficient to meet the higher standard of probable cause needed to search a vehicle, but 

insufficient to meet the lower standard of reasonable suspicion needed to briefly stop a 

person on the street. This Court did not contemplate such an incongruous result in deciding

Robinson, Pacheco, and Lewis. 

Extending Lewis’s holding to Terry stops also would be problematic because of its 

implications for investigating crimes besides possession of marijuana. In its principal brief, 

the State provides several examples:

For instance, ... it would be impossible for an officer who sees the 

butt of a handgun protruding from a person’s waistband to conduct an 

investigatory stop. Just as the odor of marijuana alone cannot tell an officer 

8 D.D. did not argue in the juvenile court that the stop was improper because the 

officers could not particularize the odor of marijuana to him. He made that argument in the 

Court of Special Appeals, but the Court held that the argument was not preserved and 

declined to consider it. See D.D., 250 Md. App. at 298. D.D. has not renewed that argument 

before us, and therefore we also do not consider it.
25

whether a person possesses a criminal amount of the drug, an officer’s visual 

inspection of a handgun cannot definitively say whether the person may 

legally possess the firearm. See Crim. Law § 4-101(b) (describing individuals 

who may lawfully carry a weapon). If no definitive criminal activity is afoot, 

no investigatory stop would be permitted.

The same logic undermines the rationale for any number of stops. 

Consider, for example, a traffic stop for excessive window tinting, which the 

intermediate appellate court considered in Baez v. State, 238 Md. App. 587 

(2018). There, the court concluded that an officer had reasonable suspicion 

to make an investigatory stop based on the window tint of a vehicle 

potentially being in violation of the law. Id. at 597. Because an officer’s 

visual inspection of a tinted widow cannot definitively tell whether the tint 

exceeds the legal limit, no investigatory stop would be permitted, and 

enforcement of that law would necessarily be stymied. The same holds true 

for many similar traffic violations.

Taken to extremes, this reasoning could apply to nearly any potential 

criminal behavior. People die of natural causes every day. A person standing 

over a dead body, therefore, is probably more likely to have witnessed the 

person have a fatal heart attack as to have killed the person. Because police 

cannot immediately tell whether the witness has committed a criminal act or 

come to the aid of the seemingly stricken, an investigatory stop would be out 

of the question. Only after police determine that the death was a killing could 

they seek to hold the witness. These examples, made possible by the 

reasoning below, turn the constitutional inquiry on its head, mistakenly 

asking whether “particular conduct is ‘innocent’ or ‘guilty,’” instead of 

probing the “the degree of suspicion that attaches to particular types of 

noncriminal acts.” Wesby, 138 S. Ct. at 588.

D.D. attempts to distinguish his case from the State’s examples by asserting that 

“[t]he key facts in all of [the State’s] proposed hypotheticals – butts of handguns, window 

tints, and dead bodies on the ground – include concrete observations made by the officer 

that support further investigation. After Lewis, the odor of marijuana alone does not provide 

that same type of concrete information that allows an officer to reasonably infer that an 

individual is engaged in criminal activity.” 
26

D.D.’s argument is unconvincing. An officer’s detection of the odor of marijuana is 

also a “concrete observation” that supports further investigation. See Bailey v. State, 412 

Md. 349, 379 (2010) (noting marijuana’s “readily identifiable, distinctive odor”); State v. 

Secrist, 589 N.W.2d 387, 391 (Wis. 1999) (referring to the “unmistakable odor of 

marijuana”).

We agree with the State that accepting D.D.’s argument could significantly hamper 

the legitimate investigation of criminal activity in Maryland. As stated above, law 

enforcement officers do not need to rule out innocent explanations for suspicious conduct 

before conducting a Terry stop. Given the important governmental interest in detecting, 

preventing, and prosecuting crime, the Fourth Amendment allows a brief seizure, based on 

reasonable suspicion, to attempt to determine whether criminal activity is afoot. An officer

who lacks probable cause to arrest is not required “to simply shrug his shoulders and allow 

a crime to occur or a criminal to escape.” Adams v. Williams, 407 U.S. 143, 145 (1972)

(citation omitted). When a police officer smells marijuana on someone, it is certainly the 

case that the person may possess less than 10 grams of marijuana or they may possess no

marijuana at all. But it also is possible that the person is presently in possession of 10 or 

more grams of marijuana. Under D.D.’s reasoning, police officers would be powerless to 

conduct a brief investigatory detention to try to determine which category the person is in. 

That is not what the Fourth Amendment requires. To the contrary, the odor of marijuana 
27

permits an officer to briefly detain an individual to investigate whether that person has 

committed a criminal offense.9

Our conclusion differentiating between reasonable suspicion and probable cause 

with respect to the odor of marijuana is consistent with the rationales of cases from several 

other jurisdictions concerning the odor of marijuana in a post-decriminalization context. 

See, e.g., People v. Looby, 68 V.I. 683, 697-98 (2018) (“[A]lthough a person in possession 

of an ounce or less of marijuana may now avoid criminal penalization, the presence or 

absence of criminal penalization does not disturb our constitutional frisk and seizure

inquiry. This is because reasonable suspicion – the predicate for a valid stop and frisk –

does not depend on whether the People proved beyond a reasonable doubt that a defendant 

is ‘guilty’; instead, reasonable suspicion is a matter of constitutional and evidentiary 

concern turning on whether an officer reasonably concludes that evidence of contraband or 

of a crime may be present.... [T]he scent of marijuana (which remains contraband subject 

to seizure in this Territory) alone may be sufficient to establish reasonable suspicion or 

even ‘probable cause’ to conduct further investigation into possible criminal acts or 

evidence of contraband.”); In re O.S., 112 N.E.3d 621, 634 (Ill. App. Ct. 2018) (concluding 

“that case law holding that the odor of marijuana is indicative of criminal activity remains 

9 The State also argues that, if an officer smells the odor of marijuana on a person, 

the officer is permitted to briefly detain the person to investigate whether the person is in 

possession of a quantity of marijuana that would subject the person to a civil penalty, i.e.,

less than 10 grams. Because we conclude that the odor of marijuana provides reasonable 

suspicion of a criminal offense, thereby justifying the investigatory detention that occurred 

in this case, we need not address the State’s alternative argument concerning investigation 

and enforcement of the civil penalties under CR § 5-601(c)(2)(ii). 
28

viable notwithstanding the recent decriminalization of the possession of not more than 10 

grams of marijuana” and “find[ing] that the search and seizure of respondent did not run 

afoul of the fourth amendment”; “Given that Illinois prohibits the knowing possession of 

marijuana and prohibits operating a vehicle while impaired and under the influence of 

marijuana, the distinctive odor of marijuana was indicative of criminal activity and 

provided the officers with reasonable suspicion to believe that criminal activity was 

afoot.”); People v. Zuniga, 372 P.3d 1052, 1059 (Colo. 2016) (although state law permits 

possession of an ounce or less of marijuana, because other marijuana-related activities 

remain unlawful, “the odor of marijuana is still suggestive of criminal activity”); State v. 

Senna, 79 A.3d 45, 50-51 (Vt. 2013) (medical marijuana exemption from prosecution for 

marijuana possession “does not undermine the significance of the smell of marijuana as an 

indicator of criminal activity”). 

To be sure, courts in several other states have held or suggested that, given changes 

in their laws regarding marijuana, the odor of the drug alone does not provide reasonable 

suspicion to conduct an investigatory stop. See, e.g., Commonwealth v. Meneide, 52 N.E.3d 

167, 171 n.4 (Mass. App. Ct. 2016) (“The smell of burnt or unburnt marijuana, standing 

alone, no longer provides either reasonable suspicion or probable cause.”); State v. Moore, 

488 P.3d 816, 821 (Or. Ct. App. 2021) (although a “very strong” odor of unburnt marijuana 

may be consistent with criminal activity, because adults may legally possess certain 

quantities of marijuana in Oregon, the odor by itself does not provide reasonable suspicion 

of an unlawful amount of marijuana); People v. Brukner, 25 N.Y.S.3d 559, 572 (N.Y. City 

Ct. 2015) (concluding that “the mere odor of marihuana emanating from a pedestrian, 
29

without more, does not create reasonable suspicion that a crime has occurred”) (emphasis 

deleted); cf. State v. Francisco Perez, 239 A.3d 975, 985 (N.H. 2020) (odor of marijuana 

“may serve as a basis for a reasonable suspicion that activities involving marijuana, that 

are indeed criminal, are underway, when considered among the totality of circumstances”)

(internal quotation marks and citation omitted). However, we find the reasoning of cases 

such as Looby and O.S. more persuasive, as well as more consistent with our body of 

marijuana-related Fourth Amendment jurisprudence.

Here, the juvenile court correctly ruled that the initial seizure of D.D. and his 

companions was permissible under the Fourth Amendment. The court credited Sergeant 

Walden’s testimony that the officers smelled the strong odor of marijuana when they

encountered the group upon entering the building.10 Directing the group to stop and sit on 

the steps while the officers briefly investigated whether their behavior constituted a 

criminal offense was reasonable under the Fourth Amendment. It was a relatively minor 

intrusion on the group’s freedom of movement. If no probable cause of a criminal offense 

had developed, the group would have been free to go on its way in short order. See Illinois 

v. Wardlow, 528 U.S. 119, 126 (2000) (“If the officer does not learn facts rising to the level 

of probable cause, the individual must be allowed to go on his way.”); Trott v. State, 473 

Md. 245, 269 (in case involving seizure of a defendant in his car, explaining that, if the

10 The parties believe that this case concerns the odor of marijuana alone – i.e., 

whether the odor provides reasonable suspicion to conduct a brief investigatory detention. 

The Court of Special Appeals viewed it that way as well. We granted certiorari in this case 

to decide this important question. Having considered the arguments of the parties, we

conclude that we should accept their framing of the issue.
30

officer had not smelled alcohol on the driver’s breath, “the stop would have ended, and [the 

defendant] would have been free to go”), cert. denied, 142 S. Ct. 240 (2021). However, as 

discussed below, a frisk of D.D. for weapons led to the discovery of a loaded firearm in his 

waistband. We now consider the validity of that pat-down under the Fourth Amendment.

B. The Pat-Down of D.D.

D.D. argues that Sergeant Walden lacked reasonable suspicion to believe that he

was armed and dangerous before frisking him. D.D. interprets Sergeant Walden’s 

testimony at the suppression hearing as revealing an unconstitutional policy to always frisk 

the members of a group when officers are outnumbered, whether or not the particular 

circumstances suggest that anyone in the group may be armed and dangerous. In addition, 

D.D. contends that Sergeant Walden unreasonably viewed his behavior and that of his 

companions as “evasive.” Regarding the discovery of the suspected handgun on D.D.’s 

companion, D.D. argues that this Court should not accept the proposition that “if there’s 

one weapon, there could be more.” Further, D.D. asserts that the other factors Sergeant 

Walden relied on in concluding that D.D. might be armed and dangerous – including his

baggy clothing and the officers’ detection of the odor of marijuana – provide no support 

for the pat-down. According to D.D., an apt description of the State’s showing regarding 

the frisk is “zero plus zero plus zero still equals zero.” Thus, in D.D.’s view, the totality of 

the circumstances in this case “does not come close” to satisfying the reasonable suspicion 

standard.

The State contends that its showing at the suppression hearing was not an offering 

of several zeroes that cumulatively added up to zero. Rather, according to the State, 
31

Sergeant Walden’s decision to frisk D.D. was supported by reasonable suspicion that D.D. 

may have been armed and dangerous. Among other factors, the State relies on the discovery 

of the weapon on J. and on Sergeant Walden’s assessment of the behavior of D.D. and his 

companions as evasive. We agree with the State.

A police officer is not permitted to frisk a person just because the officer has 

detained the person to investigate whether criminal activity is afoot. See Simpler v. State, 

318 Md. 311, 319 (1990) (explaining that “a reasonable frisk does not inevitably follow in 

the wake of every reasonable stop”). Rather, during a Terry stop, a police officer may pat

down an individual for weapons if the officer “has reason to believe that [the officer] is

dealing with an armed and dangerous individual.” Sellman v. State, 449 Md. 526, 541 

(2016) (quoting Terry, 392 U.S. at 27). The purpose of this “limited search, known in 

common parlance as a frisk, is not to discover evidence, but rather to protect the police 

officer and bystanders from harm.” Id. at 542 (internal quotation marks and citation 

omitted). 

“A law enforcement officer has reasonable articulable suspicion that a person is 

armed and dangerous where, under the totality of the circumstances, and based on 

reasonable inferences from particularized facts in light of the law enforcement officer’s 

experience, a reasonably prudent law enforcement officer would have felt that he or she 

was in danger.” Norman, 452 Md. at 387. As we said in Sellman, reasonable suspicion 

is a common sense, nontechnical conception that considers factual and 

practical aspects of daily life and how reasonable and prudent people act. 

While the level of required suspicion is less than that required by the probable 

cause standard, reasonable suspicion nevertheless embraces something more 

than an inchoate and unparticularized suspicion or hunch.... [A] court’s 
32

determination of whether a law enforcement officer acted with reasonable 

suspicion must be based on the totality of the circumstances. Thus, the court 

must not parse out each individual circumstance for separate consideration.

In making its assessment, the court should give due deference to the training 

and experience of the law enforcement officer who engaged the stop at issue. 

Such deference allows officers to draw on their own experience and 

specialized training to make inferences from and deductions about the 

cumulative information available to them that might well elude an untrained 

person. To be sure, a factor that, by itself, may be entirely neutral and 

innocent, can, when viewed in combination with other circumstances, raise 

a legitimate suspicion in the mind of an experienced officer.

Sellman, 449 Md. at 543 (quoting Crosby, 408 Md. at 507-08) (cleaned up). The test that 

a reviewing court applies “is objective: the validity of the stop or the frisk is not determined 

by the subjective or articulated reasons of the officer; rather, the validity of the stop or frisk 

is determined by whether the record discloses articulable objective facts to support the stop 

or frisk.” Id. at 542 (internal quotation marks and citation omitted).

Based on the totality of the circumstances in this case, we conclude that the officers 

had reasonable suspicion that D.D. was armed and dangerous. As such, the gun recovered 

from D.D.’s waistband was the fruit of a lawful frisk, and the juvenile court correctly 

declined to suppress it.

Sergeant Walden’s proffered reasons for the pat-down included the “odor of 

marijuana,” the group’s “evasive body language,” and the fact that there were “five of them 

in baggy clothes” in a place “where they could run out the door.” The juvenile court 

credited Sergeant Walden’s testimony “regarding the response from some of the males in 

response to his questions,” and “that the young man was evasive.” In addition, before 

Sergeant Walden frisked D.D., Officer Moser discovered a suspected handgun in J.’s 

waistband that J. said was a BB gun. These circumstances, viewed collectively, would lead 
33

a reasonably prudent law enforcement officer to suspect that D.D. was armed and 

dangerous.

Evasive behavior is a factor that may support a pat-down for weapons. See, e.g., 

Flowers v. State, 195 A.3d 18, 27-28 (Del. 2018) (suspect’s turning his body away from 

advancing officers contributed to reasonable suspicion that he might be armed); United 

States v. Dortch, 868 F.3d 674, 680 (8th Cir. 2017) (suspect responded to the sight of an 

approaching officer by “pressing the front of his body” against a vehicle “as to further 

conceal what, if anything, he had in his coat”); United States v. Diriye, 818 F.3d 767, 769 

(8th Cir. 2016) (subject “appeared to be continuously turning his body to keep his right 

side away from” the officer, which caused the officer to suspect that the subject may have 

a gun); United States v. Patton, 705 F.3d 734, 739 (7th Cir. 2013) (describing a suspect 

who “set himself apart from the other men” by not complying with an officers’ instruction 

and taking a number of steps backward).

Here, D.D. and his companions appeared evasive to Sergeant Walden, a 21-year 

veteran of the Department. None of the members of the group would tell the officers where 

they lived. After Sergeant Walden specifically asked D.D. where he lived, D.D. shrugged 

his shoulders and did not respond. D.D. then responded to the same question from Officer 

Moser by saying “my dick.” The group was snickering, laughing, and being uncooperative. 

In addition, unlike the other four young men in the group, D.D. chose to sit on the staircase 

that led him to have his back to the officers. D.D.’s positioning prevented Sergeant Walden 

from seeing D.D.’s hands. Even when D.D. spoke, he kept his body turned away from the 
34

officers. Sergeant Walden believed that D.D.’s “evasive body language” indicated that he 

might be armed.

As D.D. points out, Sergeant Walden did not direct D.D. to sit on the descending 

staircase. Thus, according to D.D., because he complied with Sergeant Walden’s directive

to sit down, Sergeant Walden should not have been concerned by the fact that D.D.’s back 

was to him and that he could not see D.D.’s hands. But Sergeant Walden was not required 

to rule out every innocent explanation for D.D.’s behavior. Nor is it realistic to expect an 

officer to engage in such fine analysis when deciding whether to pat someone down for 

weapons, given that the safety of police officers and third parties may be at stake. In our 

view, it was reasonable for Sergeant Walden to be concerned that he could not see D.D.’s

hands and what D.D. was doing.

In addition to the evasive behavior and body language that Sergeant Walden 

observed prior to any of the group members being frisked, it is significant that Officer 

Moser discovered a weapon in the waistband of J., the first young man the officers frisked. 
35

Assuming the weapon was a BB gun as J. claimed,11 BB guns can be lethal.

12 Once 

Sergeant Walden knew that another member of the group was armed with some sort of 

gun, his level of suspicion concerning D.D. reasonably increased. 

This is not to say that whenever one member of a group is found to possess a 

weapon, officers necessarily have reasonable suspicion to believe that every other member 

of the group may be armed and dangerous, thereby automatically justifying a pat-down of

all companions present. See United States v. Matías-Maestres, 738 F. Supp. 2d 281, 289

(D.P.R. 2010) (discovery of handgun on driver of car did not justify frisk of passenger, 

where there was no other basis to suspect that the passenger may be armed and dangerous).

However, the possession of a weapon by one member of a group is a highly significant 

factor that, in combination with other circumstances, may well support a pat-down for 

weapons of other members of the group. See El-Amin v. Commonwealth, 607 S.E.2d 115, 

118-19 (Va. 2005) (after a frisk of one member of a group revealed a pellet gun, another 

officer patted down El-Amin and discovered a .38 caliber revolver; although the Virginia 

11 The juvenile court did not make a finding as to whether the weapon removed from 

J.’s waistband was a BB gun or whether the officers had reason to believe the weapon was 

a BB gun before Sergeant Walden frisked D.D. It is well known that BB guns are difficult 

to tell apart from “real” guns. See Megan Raposa, Real or fake guns: Can you tell the 

difference?, Argus Leader (Mar. 4, 2016), available at https://perma.cc/7VB9-VR5K

(according to a Captain in the Minnehaha County Sheriff’s Office, “[e]ven in the best light 

in the best possible conditions, it is virtually impossible to tell the difference between a real 

handgun and a BB gun, toy gun, fake gun, replica gun, anything like that”). Sergeant 

Walden and Officer Moser were not required to verify J.’s claim that the weapon in his 

waistband was a BB gun before frisking D.D.

12 See U.S. Consumer Product Safety Commission, BB Guns Can Kill, CPSC 

Publication 5089, available at https://perma.cc/78BB-8WMH.
36

Supreme Court declined to adopt an “automatic companion” rule, the Court held that the 

“circumstances in this case support the officer’s objectively reasonable apprehension that, 

upon discovery of a weapon on the person of one member of the group, the other members 

of the group might also be armed and dangerous”).

In addition, D.D. wore baggy clothing, including a puffy jacket, that could conceal 

a weapon. To be sure, it is less concerning when someone wears a puffy coat on a cold 

night in November (as was the case here) than on a summer evening. See United States v. 

Key, 621 F. App’x 321, 323 (6th Cir. 2015) (suspect’s “unseasonably heavy attire” was a 

factor that, combined with other circumstances, justified a frisk). However, we cannot say 

that Sergeant Walden was unreasonable in ascribing any significance to D.D.’s baggy 

clothing. See Davis v. State, 133 Md. App. 260, 268 n.5 (2000) (although recognizing that 

many people wear “baggy clothing” “for comfort or to make a fashion statement,” stating 

that “[t]he wearing of baggy clothing may properly be considered in conjunction with other 

factors in formulating reasonable suspicion by a reasonable and cautious police officer 

guided by experience and training”); see also State v. Khingratsaiphon, 572 S.E.2d 456, 

460 (S.C. 2002) (among other circumstances justifying a frisk for weapons was the fact 

that “Petitioner and the two other men were dressed in baggy clothing (which could easily 

conceal a weapon)”).

Further, Sergeant Walden was permitted to consider the odor of marijuana that he 

smelled coming from the young men, as well as his concern that they were trespassing, as 

additional factors bearing on whether D.D. was armed and dangerous. See Sellman, 449 

Md. at 560-61 (minor crimes, such as possession of marijuana, “do not, in and of 
37

themselves, justify a Terry frisk without additional circumstances that establish reasonable 

suspicion that a suspect is armed and dangerous”) (emphasis in original). Indeed, in 

Norman this Court acknowledged the “indisputable nexus between drugs and guns” and 

reasoned that “[w]here, in addition to the odor of marijuana, another circumstance or other 

circumstances are present giving rise to reasonable articulable suspicion that an 

[individual] is armed and dangerous, a law enforcement officer may frisk” the individual, 

even following decriminalization. Norman, 452 Md. at 423, 425.

Finally, Sergeant Walden could consider the fact that he and Officer Moser were 

outnumbered five to two. See United States v. Braxton, 456 F. App’x 242, 247 (4th Cir. 

2011) (noting as a factor justifying a frisk that the officers were outnumbered by the 

passengers in the vehicle that the officers had stopped, and observing that “[p]roper 

adherence to the standards of Terry does not require us to gamble with the lives of police 

officers who exercise reasonable judgment in fulfilling their duty in the trying situation 

presented by a roadside car stop”); People v. Colyar, 996 N.E.2d 575, 585 (Ill. 2013) 

(noting that officers were outnumbered three to two as one of several factors that made it 

reasonable for the officers to believe that they were in danger); United States v. Reyes, 349 

F.3d 219, 225 (5th Cir. 2003) (that officer was outnumbered by suspects two to one and 

that the stop occurred at a public bus station, were factors that supported officer’s 

“reasonable belief that his safety and that of others was in danger”).

D.D. interprets Sergeant Walden’s testimony as stating that the Department’s policy 

is to conduct pat-downs for weapons whenever officers are outnumbered during a Terry 
38

stop. Although we certainly would be concerned if that were the policy of the Department,13

we do not read Sergeant Walden’s testimony as D.D. does. Sergeant Walden did not testify 

that he frisked D.D. because he always frisks every detainee per departmental policy. 

Rather, in response to a question about “how officers are trained to respond when they’re 

outnumbered,” Sergeant Walden stated that officers are taught to request backup and that 

“you shouldn’t handle any call by yourself.” He then explained that “there are times where 

you’re put in that position to where there are several people coming at you, so you have to 

get the advantage. And one of the first concerns is a weapon that they could use against 

you.” (Emphasis added.) Thus, Sergeant Walden did not link his concern about a weapon 

to every situation in which officers are outnumbered, but rather to those instances “where 

there are several people coming at you.” 

Regarding this case, Sergeant Walden made clear that he decided to frisk D.D. not 

solely because the officers were outnumbered. Rather, his “first concern” was that one of

the members of the group might have a weapon. Although Sergeant Walden then 

referenced the five-to-two ratio, in the next breath he stated that the young men “were right 

by a door where they could run out the door, plus the odor ... of marijuana, that there was 

13 In Sellman, this Court described police department policies authorizing the 

blanket, indiscriminate frisking of all individuals present during a police-citizen encounter 

as “pernicious institutionalized procedure[s]” that are “unlawful” and “counter to Terry

and its progeny.” Sellman, 449 Md. at 557. We emphasized that “[w]hile there undoubtedly 

is some risk to the police in every confrontation, Terry has never been thought to authorize 

a protective frisk on the occasion of every authorized stop.” Id. at 558 (internal quotation 

marks and citation omitted); see also United States v. Hughes, 517 F.3d 1013, 1019 (8th 

Cir. 2008) (“Being outnumbered does not justify a frisk where the initial Terry stop is not 

justified.”).
39

illegal drug activity there, the fact that nobody could provide any identification that they 

live inside that building.” Sergeant Walden then went on to say, “[s]o the first thing we 

want to do is secure them and make sure that they don’t have any weapons on them.” A 

fair reading of that statement is that, after Sergeant Walden developed concern that one or 

more of the young men might be armed based on all the factors he had just listed, he and 

Officer Moser decided to check the group for weapons before continuing their 

investigation. Viewing the evidence in the light most favorable to the State, as we must, 

we agree with the State that “[t]his was not the testimony of an officer who merely did the 

math, concluded there were more people than officers, and applied a departmental policy 

regardless of the situation.”

In any event, even if there was a policy to pat down all detainees when officers are 

outnumbered – and, again, we cannot conclude based on this record that the Department 

had such a policy – by the time Sergeant Walden frisked D.D., he had developed 

reasonable, articulable suspicion that D.D. might be armed and dangerous based on the 

totality of the circumstances discussed above.

The pat-down of D.D. for weapons was reasonable under the Fourth Amendment. 

Accordingly, the juvenile court correctly declined to suppress the gun that Sergeant Walden 

discovered as a result of the frisk.

IV

Conclusion

Even following partial decriminalization, the odor of marijuana on a person 

provides reasonable suspicion to conduct a brief investigatory detention to attempt to 
40

determine whether the person has committed a criminal offense. In this case, the officers 

detected the odor of marijuana when they encountered the group of young men of which 

D.D. was a part. The initial stop of D.D. was reasonable under the Fourth Amendment. The 

subsequent pat-down of D.D. for weapons also was lawful because, under the totality of 

the circumstances, the officers had reasonable suspicion that D.D. was armed and 

dangerous. Accordingly, the juvenile court correctly declined to suppress the gun that the 

officers discovered as a result of the frisk. The Court of Special Appeals erred in 

overturning the juvenile court’s suppression ruling. We therefore reverse the judgment of 

the Court of Special Appeals and remand the case to that Court with the instruction to 

affirm the judgment of the juvenile court.

JUDGMENT OF THE COURT OF 

SPECIAL APPEALS REVERSED AND 

CASE REMANDED WITH INSTRUCTION; 

COSTS IN THE COURT OF SPECIAL 

APPEALS AND THIS COURT TO BE PAID 

BY RESPONDENT.
IN THE COURT OF APPEALS

OF MARYLAND

No. 27

September Term, 2021

______________________________________

IN RE: D.D.

______________________________________

*Getty, C.J.

*McDonald

Watts

Hotten

Booth

Biran

Raker, Irma S. (Senior Judge, 

Specially Assigned),

JJ.

______________________________________

Concurring Opinion by Watts, J.

______________________________________

Filed: June 21, 2022

*Getty, C.J., and McDonald, J., now Senior 

Judges, participated in the hearing and 

conference of this case while active members of 

this Court. After being recalled pursuant to Md. 

Const., Art. IV, § 3A, they also participated in 

the decision and adoption of this opinion.

Circuit Court for Prince George’s County

Case No. JA-19-0409

Argued: January 6, 2022
Respectfully, I concur. I would hold that the odor of marijuana alone is not enough 

to give rise to reasonable articulable suspicion to conduct an investigatory Terry stop,1 but 

would conclude that, in this case, there was more than just the odor of marijuana that gave 

rise to reasonable articulable suspicion to justify the stop. Like the Majority, I would 

reverse the judgment of the Court of Special Appeals. See Maj. Slip Op. at 3. But, I would 

conclude that the totality of the circumstances in this case involved more than the odor of 

marijuana. 

It is now well-established in Maryland that the odor of marijuana, standing alone, 

does not provide probable cause for a law enforcement officer to arrest and conduct a 

warrantless search of a person incident to the arrest. See Lewis v. State, 470 Md. 1, 10, 

233 A.3d 86, 91 (2020). The odor of marijuana emanating from a vehicle, however, 

supplies probable cause for a law enforcement officer to conduct a search of the vehicle, 

“as marijuana in any amount remains contraband, notwithstanding the decriminalization of 

possession of less than ten grams of marijuana; and the odor of marijuana gives rise to 

probable cause to believe that the vehicle contains contraband or evidence of a crime.” 

Robinson v. State, 451 Md. 94, 137, 152 A.3d 661, 687 (2017). 

As to vehicles, in Robinson, id. at 128, 131, 152 A.3d at 681, 683, in holding “that 

a warrantless search of a vehicle is permissible upon detection of the odor of marijuana 

emanating from the vehicle[,]” we concluded “that marijuana remains contraband, despite 

1

“Law enforcement officers may conduct an investigatory stop or detention when 

the officers have reasonable suspicion that a person has committed or is about to a commit 

a crime, commonly known as a Terry stop[,]” Lewis v. State, 470 Md. 1, 12 n.3, 233 A.3d 

86, 92 n.3 (2020) (cleaned up), derived from Terry v. Ohio, 392 U.S. 1 (1968).
- 2 -

the decriminalization of possession of small amounts of marijuana, and that, as such, the 

odor of marijuana constitutes probable cause for the search of a vehicle.” We explained 

that, under the Fourth Amendment, “probable cause to search exists where a person of 

reasonable caution would believe that contraband or evidence of a crime is present[,]” and 

that “‘contraband’ means goods that are illegal to possess, regardless of whether possession 

of the goods is a crime.” Id. at 128, 252 A.3d at 681-82 (cleaned up). 

The definition of “contraband” was informed by the conclusion of the Supreme 

Court in Carroll v. United States, 267 U.S. 132, 158-59 (1925) “that a law enforcement 

officer can search a vehicle based on probable cause to believe that the vehicle’s contents 

are contraband, even if the law enforcement officer cannot arrest the driver.” Robinson, 

451 Md. at 128, 252 A.3d at 682. With respect to the automobile exception to the warrant 

requirement, in Carroll, 267 U.S. at 153, the Supreme Court held that, if there is probable 

cause to believe that a vehicle contains contraband, then a law enforcement officer may 

search the vehicle without a warrant given that a vehicle can be quickly moved from one 

jurisdiction to another, thereby making obtainment of a warrant impractical. In light of the 

Carroll doctrine and the mobility of vehicles, among other reasons, a law enforcement 

officer has probable cause to search a vehicle where the officer detects an odor of marijuana 

emanating from the vehicle.

A search of an individual is different. In Pacheco v. State, 465 Md. 311, 330, 214 

A.3d 505, 516 (2019), although we concluded that law enforcement officers had probable 

cause to search the defendant’s vehicle based on an odor of marijuana and the presence of 

a joint in the center console of the vehicle, we concluded that the officers did not likewise 
- 3 -

have the right to search the defendant’s person. We explained that the facts of the case did 

not meet the standard for probable cause to arrest and search the defendant incident to arrest 

because the officers did not possess, prior to the search, probable cause to believe that the 

defendant was committing a felony or misdemeanor in their presence. See id. at 330-32, 

214 A.3d at 516-17. Stated otherwise, we determined that the record did not support a 

conclusion that the officers had probable cause to arrest the defendant “based on the belief 

that he was committing, had committed, or was about to commit a crime in their presence.” 

Id. at 333, 214 A.3d at 517. We concluded that, although circumstances may justify the 

search of a vehicle, the same circumstances “do not necessarily justify an arrest and search 

incident thereto.” Id. at 333, 214 A.3d at 518. This is due to “the heightened expectation 

of privacy one enjoys in his or her person as compared to the diminished expectation of 

privacy one has in an automobile.” Id. at 333, 214 A.3d at 518.

Later, in Lewis, 470 Md. at 10, 233 A.3d at 91, we unequivocally held that the odor 

of marijuana alone does not provide a law enforcement officer with probable cause to arrest 

an individual and then conduct a warrantless search of the individual incident to the arrest. 

In other words, “more than the odor of marijuana is required for probable cause to arrest a 

person and conduct a search incident thereto.” Id. at 17, 233 A.3d at 95. Relying on 

Pacheco, we determined that law enforcement “officers must have probable cause to 

believe a person possesses a criminal amount of marijuana in order to arrest that person 

and conduct a search incident thereto.” Lewis, 470 Md. at 23, 233 A.3d at 99. We stated 

that, although marijuana in any amount is considered contraband under Robinson, an 

officer may conduct a search incident to arrest “only upon the occurrence of a felony or 
- 4 -

attempt of a felony or misdemeanor; a civil infraction is neither a felony nor misdemeanor. 

The odor of marijuana alone is not indicative of the quantity (if any) of marijuana in 

someone’s possession[.]” Lewis, 470 Md. at 23, 233 A.3d at 99. We concluded that “[t]he 

Fourth Amendment’s protection against unreasonable searches and seizures prohibits law 

enforcement officers from arresting and searching a person without a warrant based solely 

upon the odor of marijuana on or about that person.” Id. at 27, 233 A.3d at 101.

Just as the odor of marijuana alone does not give rise to probable cause to arrest and 

search a person incident to arrest, I would hold that the odor of marijuana alone is not 

enough to give rise to reasonable articulable suspicion to stop a person. Indeed, practical 

reasons militate against using something as amorphous and fleeting as the odor of 

marijuana alone as a ground to stop someone.2 I completely agree with the holding of the 

Court of Special Appeals—“that the odor of marijuana, by itself, does not provide 

reasonable suspicion of criminal activity, and therefore, a stop based on this circumstance 

alone is unreasonable under the Fourth Amendment.” In re D.D., 250 Md. App. 284, 288, 

250 A.3d 284, 286-87 (2021). I also agree, though, with the Court of Special Appeals’s 

conclusion that “[t]he odor of marijuana may, with other circumstances, provide reasonable 

suspicion that a person is involved in criminal activity.” Id. at 301, 250 A.3d at 295.

That said, I disagree with the determination that this case involved only the odor of 

marijuana and that, “[a]ccordingly, Officer Walden did not have reasonable suspicion of 

2Moreover, holding that the odor of marijuana alone gives rise to reasonable 

articulable suspicion supporting an investigatory stop could potentially result in 

unnecessary and unwarranted police activity that may have a disparate effect in the 

community.
- 5 -

criminality to support the stop, and it was unreasonable under the Fourth Amendment.” Id.

at 301, 250 A.3d at 295. The Court of Special Appeals apparently interpreted this case to 

be a case raising the issue of whether the odor of marijuana alone can form the basis for 

reasonable articulable suspicion for a Terry stop and that interpretation has followed the 

case to this Court. I see the case somewhat differently. From my perspective, this case 

raises the question of whether the odor of marijuana along with other circumstances was

sufficient to give rise to reasonable articulable suspicion to support the stop. This is not a 

case in which there was solely the odor of marijuana and nothing else. Although the parties 

framed the issue in this case as involving the question of whether the odor of marijuana 

alone could give rise to reasonable articulable suspicion for a Terry stop, the case presented 

additional facts. It was everything together that gave rise to reasonable articulable 

suspicion for the stop. In my view, concluding that the odor of marijuana alone is 

sufficient, even though the case involved more than the odor of marijuana, will lead to 

stops occurring based on much less information than what was available to the officer in 

this case and under circumstances where it may not have been possible to have had

reasonable suspicion that a person possessed at least ten grams of marijuana.

I would conclude that, under the circumstances of this case, which included 

Sergeant Walden detecting the odor of marijuana and additional facts, there was reasonable 

articulable suspicion for the stop. In this case, Sergeant Walden responded to a police 

dispatch call for service at an apartment complex reporting that there were “males in the 

basement playing music and smoking CDS.” At trial, on direct examination, the following 

exchange occurred:
- 6 -

[PROSECUTOR:] Okay. And did you receive a call that day to go to Ronald 

Road in Capitol Heights?

[SERGEANT WALDEN:] I did. 

[PROSECUTOR:] Okay. And do you recall where, where were you and 

where did you respond to? 

[SERGEANT WALDEN:] I was on routine patrol and I acknowledged the 

radio, so I responded via my police vehicle, along with a back-up officer to 

respond to a call for males in the basement playing music and smoking CDS.

[PROSECUTOR:] Okay. When you say CDS, what does that mean? 

[SERGEANT WALDEN:] CDS is a controlled dangerous substance. 

[PROSECUTOR:] Okay. And was there a specific complaint that you were 

responding to in terms of CDS?

[SERGEANT WALDEN:] Loud music and the smell of marijuana.

[PROSECUTOR:] Okay. So upon arriving at [] Ronald Road in Capitol 

Heights, what did you do?

[SERGEANT WALDEN]: It’s a split foyer, so I opened the front door and 

as soon as I opened the front door I saw a group of males walking up the 

steps towards me and I smelled a strong odor of marijuana.

[PROSECUTOR:] Okay. And what do you do next? 

[SERGEANT WALDEN:] At that time since there was five subjects and I 

had no idea if they lived there or what was going on, and because of the 

nature of the complaint, it was myself and just one other officer there, so

there was five of them coming up the stairs. So I stopped them and I had 

them have a seat on the stairs and I asked them, I said could you please have 

a seat, who lives here.

On cross-examination, the following exchange occurred:

[DEFENSE COUNSEL:] Officer Walden, the initial call for CDS and loud 

music came through at 7:10 p.m., correct? 

[SERGEANT WALDEN:] I believe so, yes.
- 7 -

[DEFENSE COUNSEL:] And you responded to [] Ronald Road at 7:42? 

[SERGEANT WALDEN:] Correct. 

[DEFENSE COUNSEL:] And when you responded, you were with Officer 

Moser?

[SERGEANT WALDEN:] Correct, yes.

According to Sergeant Walden, the call came through at approximately 7:10 p.m. 

Sergeant Walden responded to the address at 7:42 p.m., approximately thirty minutes later, 

with Officer Moser. When Sergeant Walden reached the apartment building and opened 

the front door, he saw D.D. and four other people walking up a set of steps and he “smelled 

a strong odor of marijuana.” Sergeant Walden had been a certified drug dog trainer for 

over seventeen years and recognized the smell of marijuana. Sergeant Walden told D.D. 

and his companions to have a seat on the steps and began questioning them.

In my view, the stop occurred when Sergeant Walden told the group to have a seat 

on the steps. The responses that Sergeant Walden later received to his questions did not 

play a role in the formation of reasonable articulable suspicion for the stop. Rather, all of 

the information that Sergeant Walden possessed about the call and his encounter with the 

D.D. and his companions formed the basis for reasonable articulable suspicion—namely, 

Sergeant Walden responded to a call specifically stating that multiple people, in the 

basement of an apartment building, were smoking a controlled dangerous substance. It is 

unclear from the record whether the dispatcher advised Sergeant Walden that the call was 

for people smoking “CDS” as the Sergeant initially testified or smoking marijuana, but it 

matters not. A report of individuals smoking CDS would potentially raise the level of 
- 8 -

reasonable articulable suspicion above suspicion of possession of at least ten grams of 

marijuana given that the acronym CDS could have indicated that the individuals were 

smoking any type of potential controlled dangerous substance. Even though the State has 

not contended, despite the Sergeant’s testimony, that the call was for anything other than 

smoking marijuana, this is not a case involving the smell of marijuana alone.

Just over thirty minutes after receiving the dispatch call, Sergeant Walden arrived 

at the building, opened the door, saw a group of people walking up the steps toward him, 

and smelled the strong odor of marijuana. This corroborated the information in the call—

that people were smoking marijuana, a controlled dangerous substance, in the basement of 

the building. It was entirely reasonable for Sergeant Walden to believe that the group 

walking up the stairs were the people in the basement who had been reported to be smoking 

marijuana in the building and that they had been doing so for a period of time. In addition, 

Sergeant Walden smelled a strong odor of marijuana.

These circumstances, in my view, gave rise to a reasonable articulable suspicion 

that any one or all of the individuals may have possessed ten grams or more of marijuana. 

Ten grams is a small amount of marijuana, and it was reasonable for Sergeant Walden to 

believe that this was a group of people who had been smoking marijuana for at least thirty

minutes in the basement of the building before he arrived. Sergeant Walden was not 

required to assume that this could have been a different group or that the caller had been 

wrong. Under the circumstances, there was reasonable articulable suspicion to believe that 

one or all of the people in the group may have possessed at least ten grams of marijuana, 

thus justifying the investigatory stop. 
- 9 -

The reasonable articulable suspicion standard is less than the probable cause 

standard. An investigatory or Terry stop is authorized where a law enforcement “officer 

has reasonable suspicion, supported by articulable facts, that criminal activity may be 

afoot.” In re David S., 367 Md. 523, 532, 789 A.2d 607, 612 (2002). By contrast, as we 

explained in Pacheco, 465 Md. at 322, 214 A.3d at 511, a law enforcement officer is 

authorized to conduct a warrantless search incident to arrest where the officer has “probable 

cause to believe that the person subject to arrest has committed a felony or is committing 

a felony or misdemeanor in the presence of the police.” (Citations omitted). To conduct 

an investigatory stop, an officer does not need to discern a fair probability that criminal 

activity may have been afoot, just reasonable suspicion. 

Where a law enforcement officer encounters the odor of marijuana, along with 

information about other circumstances, such as multiple people being responsible for the 

odor and the odor existing over a period of time, the officer could reasonably suspect that 

criminal activity—possession of at least ten grams of marijuana—may have been afoot and 

may briefly detain the individual or individuals. In Maryland, possessing ten grams of 

marijuana or more remains criminal activity, whereas possessing less than ten grams is 

non-criminal conduct for which a civil citation would be warranted. In other words, the 

odor of marijuana does not equate with entirely innocent or non-criminal behavior, given 

that possession of marijuana is not legalized or fully decriminalized. Even non-criminal 

behavior can form the basis for reasonable articulable suspicion. See, e.g., Crosby v. State, 

408 Md. 490, 507-08, 970 A.2d 894, 904 (2009) (This Court stated that a determination as 

to whether an “officer acted with reasonable suspicion must be based on the totality of the 
- 10 -

circumstances” and that a circumstance or factor, “by itself, may be entirely neutral and 

innocent,” but “can, when viewed in combination with other circumstances, raise a 

legitimate suspicion in the mind of an experienced officer.” (Cleaned up)). 

Given that the odor of marijuana suggests either criminal behavior or a civil 

violation, under the circumstances in this case—a call to the police reporting a group 

smoking marijuana in the basement of a building with an exact address given, the officer 

responding and seeing a group of people coming up the stairs of the building, that the

officers responded to the location thirty minutes after receiving the call, and that the officer 

detected what the officer described as the “strong odor” of marijuana—the officer had

reasonable articulable suspicion to conduct the investigatory stop. Sergeant Walden

testified that there were five people coming from the basement, that he had no idea whether 

they lived in the building, and that he smelled a strong odor of marijuana. The officer

would have known that the circumstances that he encountered fully corroborated the 

substance of the call and would have had a reasonable basis to believe that the facts 

underlying the call had been substantiated. 

This is not a case in which an officer walked past a person and alleged a fleeting 

whiff of marijuana or even a case in which the officer’s credibility in terms of having 

encountered the smell of marijuana under uncorroborated circumstances is at issue. The 

officer testified that he smelled marijuana, and there is no doubt that there was a call to the 

police department reporting that people were smoking CDS or marijuana approximately

thirty minutes before the officer arrived at the location. When the officer arrived after 

receiving the dispatch call, the strong smell of marijuana was still there, along with five
- 11 -

people. The number of people involved, the time that the people had been at the location 

between the call initially reporting the smell of marijuana and the officer’s arrival, and the 

officer’s detection of the strong odor of marijuana, were factors that gave rise to the 

reasonable articulable suspicion that on or more members of the group possessed at least 

ten grams of marijuana. Where an officer receives a call for multiple people at a precise 

location smoking marijuana, and the officer arrives at the location and multiple people are 

at the location and the strong smell of marijuana is present, the officer has reasonable 

suspicion for an investigatory stop as the facts give rise to reasonable articulable suspicion 

of possession of at least ten grams of marijuana. Unless the possession of marijuana is

legalized or further decriminalized, the odor of marijuana with other circumstances that 

suggest possession of at least ten grams of marijuana, under a totality of circumstances 

analysis, may give rise to reasonable articulable suspicion to conduct a stop.

3

For the above reasons, respectfully, I concur.

3

I would hold that there was reasonable articulable suspicion justifying the stop, and 

like the majority opinion, I would conclude that the pat-down or frisk of D.D. was lawful 

because, under the totality of the circumstances, “the officers had reasonable suspicion that 

D.D. was armed and dangerous.” Maj. Slip Op. at 32.
Circuit Court for Prince George’s County

Case No. JA-19-0409

Argued: January 6, 2022

IN THE COURT OF APPEALS

OF MARYLAND

No. 27

September Term, 2021

__________________________________

IN RE: D.D.

__________________________________

*Getty, C.J.,

*McDonald,

Watts,

Hotten,

Booth,

Biran,

Raker, Irma S.,

(Senior Judge, Specially Assigned)

JJ.

__________________________________

Dissenting Opinion by Hotten, J., which 

Raker, J., joins.

__________________________________

Filed: June 21, 2022

*Getty, C.J. and McDonald, J., now Senior 

Judges, participated in the hearing and 

conference of this case while active 

members of this Court; after being recalled 

pursuant to Maryland Constitution, Article 

IV, Section 3A, they also participated in the 

decision and adoption of the majority 

opinion.
For the reasons articulated below, I respectfully dissent from both conclusions of 

the majority that the investigatory stop of Respondent D.D. was constitutionally justified 

and that the frisk of Respondent was supported by reasonable suspicion that Respondent 

was armed and dangerous. I would therefore affirm the decision of the Court of Special 

Appeals that evidence of the firearm recovered from Respondent should have been 

suppressed as the fruit of an unlawful search. See In re D.D., 250 Md. App. 284, 301–02, 

250 A.3d 284, 295, cert. granted, 475 Md. 701, 257 A.3d 1162 (2021).

Reasonable Suspicion and the Terry Stop and Frisk

The Fourth Amendment of the United States Constitution and the Maryland 

Declaration of Rights prohibit warrantless searches and seizures. U.S. CONST. amend. IV. 

(“The right of the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but 

upon probable cause, supported by Oath or affirmation, and particularly describing the 

place to be searched, and the persons or things to be seized.”); MD. CONST. DECL. OF RTS. 

art. 26 (“[A]ll warrants, without oath or affirmation, to search suspected places, or to seize 

any person or property, are grievous and oppressive; and all general warrants to search 

suspected places, or to apprehend suspected persons, without naming or describing the 

place, or the person in special, are illegal, and ought not to be granted.”). However, both 

the United States Supreme Court and this Court have recognized various exceptions to this 

general prohibition. See, e.g., Grant v. State, 449 Md. 1, 16–17, 141 A.3d 138, 146–47

(2016) (citing Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514 (1967)). 
2

One prominent exception to the warrant requirement is known as the “Terry Stop,” 

named after the Supreme Court decision Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), 

which permits an officer “with reasonable suspicion, supported by articulable facts, that 

criminal activity ‘may be afoot[]’” to “stop and detain a person, briefly, for investigative 

purposes.” Longshore v. State, 399 Md. 486, 506, 924 A.2d 1129, 1140 (2007) (citing 

Terry, 392 U.S. at 30, 88 S. Ct. at 1884). If, while conducting such a stop, the officer 

develops a reasonable suspicion supported by articulable facts “that the person with whom 

the officer is dealing is armed and dangerous, the officer may conduct a carefully limited 

[frisk] of the outer clothing of such person in an attempt to discover weapons which might 

be used to assault the officer.” State v. Smith, 345 Md. 460, 465, 693 A.2d 749, 751 (1997). 

Such an action is known as a “Terry frisk.” See Norman v. State, 452 Md. 373, 424, 156 

A.3d 940, 970 (2017). 

Terry stops and Terry frisks must both be supported by reasonable suspicion. We 

have explained that although there is “no standardized test governing what constitutes 

reasonable suspicion[,] . . . [i]t has been defined as nothing more than a particularized and 

objective basis for suspecting the particular person stopped of criminal activity[.]” Crosby 

v. State, 408 Md. 490, 507, 970 A.2d 894, 903 (2009) (internal citations and quotations 

omitted). The standard of reasonable suspicion should be treated as a “common sense, 

nontechnical conception that considers factual and practical aspects of daily life and how 

reasonable and prudent people act[]” but still must be based on more than an “inchoate and 

unparticularized suspicion or hunch.” Id., 970 A.2d at 903‒04. Whether reasonable 

suspicion exists must be viewed under the “totality of the circumstances” of the case. Holt 
3

v. State, 435 Md. 443, 460, 78 A.3d 415, 424 (2013) (quoting United States v. Arvizu, 534 

U.S. 266, 273, 122 S. Ct. 744, 750 (2002)). 

The reasonable suspicion standards for Terry stops and Terry frisks have different 

objects. In the context of a Terry stop, an officer must have reasonable suspicion that the 

person stopped is engaged in criminal activity, while in the context of a Terry frisk, the 

officer must have reasonable suspicion that the suspect is “armed and dangerous[.]” Smith, 

345 Md. at 465, 693 A.2d at 751. We have explained that “[t]he purpose of the Terry frisk, 

by diametric contrast [to the purpose of a Terry stop], is not directly crime-related at all but 

is exclusively concerned with officer safety, with safeguarding the life and limb of the 

officer[.]” Norman, 452 Md. at 424, 156 A.3d at 970 (quoting Ames v. State, 231 Md. App. 

662, 673, 153 A.3d 899, 905 (2017)). 

The Fourth Amendment Relevance of the Scent of Marijuana after

Decriminalization in Maryland

In 2014, the Maryland legislature decriminalized possession of less than ten grams 

of marijuana, making it a civil offense punishable by a fine instead of a crime. Md. Code 

Ann., Criminal Law (“Crim. Law”) § 5-601(c)(2)(ii); see also Lewis, 470 Md. 1, 9, 233 

A.3d 86, 91 (2020). Possession of more than ten grams of marijuana remains a crime. See 

Crim. Law § 5-601(c)(2)(i). In Robinson v. State, the first post-2014 Maryland case to 

discuss the relevance of the scent of marijuana under the Fourth Amendment, we held that 

law enforcement officers have probable cause to conduct a warrantless vehicle search 

based solely on the odor of marijuana, even in light of the legislature’s decriminalization 

scheme. 451 Md. 94, 137, 152 A.3d 661, 687 (2017). We reasoned that “marijuana in any 
4

amount remains contraband,” and thus “the odor of marijuana gives rise to probable cause 

to believe that the vehicle contains contraband or evidence of a crime.” Id., 152 A.3d at

687 (referencing the “automobile exception” from Carroll v. United States, 267 U.S. 132, 

45 S. Ct. 280 (1925), which permits warrantless searches of automobiles where an officer 

has probable cause to suspect the vehicle contains contraband or evidence of a crime). 

In Norman, issued the same year as Robinson, we clarified that although the odor of 

marijuana can provide probable cause to conduct a search of a vehicle, it does not provide 

reasonable suspicion to conduct a frisk of the occupants in that vehicle. Norman, 452 Md. 

at 379, 156 A.3d at 943. We specifically stated that “[a]n 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.” Id., 156 A.3d at 944. Similarly, in Pacheco v. State, we dealt with a case in which 

police approached an individual in a parked car and observed a strong odor of marijuana 

and a marijuana cigarette in the car. 465 Md. 311, 317–18, 214 A.3d 505, 508–09 (2019). 

The police immediately told the individual to exit the vehicle, searched him, discovered 

cocaine in his left front pocket, and subsequently searched his vehicle. Id. at 318, 214 A.3d 

505 509. We held that although the police’s search of the vehicle was warranted based on 

Robinson, the arrest and subsequent search of Pacheco’s person was not permissible under 

the Fourth Amendment. Id. at 330, 214 A.3d at 516. We reasoned that there is a diminished 

expectation of privacy in one’s vehicle, but that there is “‘unique, significantly heightened’ 

constitutional protections afforded a person to be secure in his or her body[.]” Id. at 326, 

214 A.3d at 513. 
5

Most recently in Lewis v. State, 470 Md. 1, 233 A.3d 86 (2020), we addressed the 

significance of the odor of marijuana outside of the vehicle context. In that case, we

rejected the argument that the odor of marijuana emanating from an individual in a grocery 

store gave police probable cause to arrest and search the individual. Id. at 27, 233 A.3d at

101. We explained that when considering the propriety of an arrest and search incident to 

that arrest, we consider the “likelihood of the guilt of the arrestee and whether probable 

cause existed to believe that a felony was committed or a felony or misdemeanor was being 

committed in the presence of law enforcement.” Id. at 22, 233 A.3d at 98. As such, the 

odor of marijuana alone did not give the officers in Lewis probable cause to arrest and 

search the petitioner because marijuana under ten grams is neither a felony nor 

misdemeanor, but a civil offense, and “[t]he odor of marijuana alone is not indicative of 

the quantity (if any) of marijuana in someone’s possession[.]” Id. at 23, 233 A.3d at 99.

Application to the Stop and Frisk of Respondent

The parties before us present two issues. The first is whether, as a matter of first 

impression, the odor of marijuana alone provided reasonable suspicion to conduct a Terry

investigatory stop of Respondent. The second is whether the totality of the circumstances 

provided Officer Jeff Walden with reasonable suspicion Respondent was armed and 

dangerous so that it was permissible for him to conduct a Terry frisk of Respondent. As 

explained below, I would answer both questions in the negative. 
6

A. The smell of marijuana alone did not provide reasonable suspicion to conduct 

an investigatory stop of Respondent

The Court of Special Appeals below relied heavily on Lewis in finding that the 

officer’s investigatory stop of Respondent was not supported by reasonable suspicion. 

Lewis dealt with the higher standard of probable cause necessary for an arrest and search 

incident to the arrest. We have recognized, in line with United States Supreme Court 

precedent, that:

Reasonable suspicion is a less demanding standard than probable cause not 

only in the sense that reasonable suspicion can be established with 

information that is different in quantity or content than that required to 

establish probable cause, but also in the sense that reasonable suspicion can 

arise from information that is less reliable than that required to show probable 

cause[.]

Cartnail v. State, 359 Md. 272, 287, 753 A.2d 519, 527 (2000) (quoting Alabama v. White, 

496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990)). Probable cause requires the existence 

of “facts and circumstances within the knowledge of the officer at the time of the arrest, or 

of which the officer has reasonably trustworthy information, [that] are sufficient to warrant 

a prudent person in believing that the suspect had committed or was committing a criminal 

offense.’” Barrett v. State, 234 Md. App. 653, 666, 174 A.3d 441, 449 (2017) (quoting 

Moulden v. State, 212 Md. App. 331, 344, 69 A.3d 36, 44 (2013)). In contrast, reasonable 

suspicion necessary for a Terry investigatory stop, need only arise from “a particularized 

and objective basis for suspecting the particular person stopped of criminal activity.” Holt, 

435 Md. at 459, 78 A.3d at 424. This lesser standard is justified by the fact that a Terry 
7

stop is less intrusive than a formal custodial arrest.

1

 See Wilson v. State, 409 Md. 415, 

439–40, 975 A.2d 877, 891–92 (2009) (holding that an assessment of the reasonableness 

of an officer’s actions is dependent on the level of the intrusion, and that a Terry stop is 

less intrusive than a formal custodial arrest).

In 2014, Maryland joined other jurisdictions that have decriminalized the possession 

of marijuana. As the majority observed, several of these jurisdictions have concluded that 

the smell of marijuana, alone, does not provide reasonable suspicion to conduct an 

investigatory stop. See Maj. slip op. at 28. In State v. Moore, the Court of Appeals of 

Oregon explained that its “historic treatment of all marijuana odors as equal for purposes 

of reasonable suspicion was grounded in ‘the legal status of marijuana as contraband in 

any amount,’ a premise that no longer applies, requiring us to adjust our analysis 

accordingly going forward.” 311 Or. App. 13, 19, 488 P.3d 816, 819 (2021) (citations 

omitted) (emphasis in original). The court further explained:

As the legal status of cannabis in Oregon has changed, so too does the role 

that the odor of marijuana plays in the reasonable suspicion calculus. [A] 

strong odor can signal the presence of marijuana, but not necessarily the 

1 To distinguish between an investigatory Terry stop and a custodial arrest, courts 

will consider: “the length of the detention, the investigative activities that occur during the 

detention, and the question of whether the suspect is removed from the place of the stop to 

another location[]” under a totality of the circumstances. Chase v. State, 224 Md. App. 

631, 643–44, 121 A.3d 257, 264 (2015). 
8

presence in a quantity that is illegal. . . . For that reason, odor adds only that 

much to the calculus—that some amount of marijuana may be present.

Id., 488 P.3d at 819–20 (marks and citation omitted) (some emphasis added and some 

emphasis in original).

Similar to how the decriminalized status of marijuana minimized the importance of 

odor in the reasonable suspicion calculus in Oregon, the decriminalized status of marijuana 

in Maryland should accordingly minimize the importance of the odor in the reasonable 

suspicion calculus in our constitutional jurisprudence. Possession of less than ten grams 

of marijuana is generally no longer a crime in Maryland. Crim. Law § 5-601(c)(2)(ii). 

Maryland also permits possession of medical marijuana for certain medical necessities or 

usages. Crim. Law § 5-601(c)(3). The smell of odor on a person, alone, makes it 

impossible for law enforcement to determine whether the person has engaged in a wholly 

innocent activity, a civil offense, or a crime. 

While reasonable suspicion is a relatively low barrier, law enforcement may not rely 

on a hunch that a person may possess ten grams of odor in a non-medicinal capacity to 

form a basis of reasonable suspicion. See Crosby 408 Md. at 507, 970 A.2d at 904. In the 

case at bar, law enforcement smelled the odor of marijuana emanating from Respondent 

and his companions, but there was no articulable basis for why any of the individuals were 

carrying more than ten grams of marijuana. I would have concluded that the odor of 

marijuana, alone, did not provide reasonable suspicion to stop Respondent.
9

B. The totality of the circumstances did not justify the frisk of Respondent 

Assuming arguendo that the Terry stop of Respondent was lawful, I also depart 

from the majority in my conclusion as to the constitutionality of the frisk of Respondent. 

“Although a reasonable ‘stop’ is a necessary predecessor to a reasonable ‘frisk,’ a 

reasonable ‘frisk’ does not inevitably follow in the wake of every reasonable ‘stop.’” 

Simpler v. State, 318 Md. 311, 319, 568 A.2d 22, 25–26 (1990) (quoting Gibbs v. State, 18 

Md. App. 230, 238–39, 306 A.2d 587, 592 (1973)). The State does not argue that the odor 

of marijuana alone provided reasonable suspicion that Respondent might have been armed 

and dangerous, nor can it. See Norman, 452 Md. at 379, 156 A.3d at 944 (“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.”). Rather, the State argues that the totality of the circumstances 

surrounding the officers’ encounter with Respondent justified the frisk 

i. Officer Walden’s primary basis for frisking Respondent was that the officers

were outnumbered by Respondent and his companions

Maryland courts have held that “[o]ne of the key requirements of reasonable 

suspicion, for either a stop or a frisk, is not only that it be present but that it be actually 

articulated.” Graham v. State, 146 Md. App. 327, 359, 807 A.2d 75, 93 (2002) (emphasis 

added). Specifically, in the context of a frisk, we have explained that it is a

threshold requirement that the frisking officer articulate his specific reasons 

for believing that the suspect was armed and dangerous. It is not enough that 

objective circumstances be present that might have permitted some other 

officer in some other case to conclude that the suspect was armed and 

dangerous. It is required that the frisking officer himself expressly articulate 

the specific reasons he had for believing that the frisk was necessary.
10

Norman, 452 Md. at 424, 156 A.3d at 970 (emphasis added) (quoting Ames, 231 Md. App. 

at 674, 153 A.3d at 906); see also Graham, 146 Md. App. at 359–60, 807 A.2d at 93 (“For 

a good frisk, it is not enough that in the abstract facts have been developed that might, 

objectively, permit some officer somewhere to conclude that the suspect or stopee was 

armed and dangerous. It is required that the frisking officer actually articulate the factors 

that lead to his reasonable suspicion that a frisk was necessary for his own protection.”). 

We also require that such an articulated basis to justify a Terry frisk be particularized 

to the individual circumstances at hand and cannot be a matter of a routine or a blanket 

policy. We have rejected authorizing frisks as a matter of routine policy where an officer 

lacks particularized reasonable suspicion that a suspect is armed and dangerous. In

Simpler, we recognized that, “[w]hile there undoubtedly is some risk to the police in every 

confrontation, Terry has never been thought to authorize a protective frisk on the occasion 

of every authorized stop.” 318 Md. at 321, 568 A.2d at 26. In that case, this Court rejected 

the constitutionality of an officer’s frisk of individuals discovered drinking beer in the 

woods, where he claimed his frisk was done as “a matter of routine caution.” Id. at 322, 

568 A.2d at 27. Recently in Sellman v. State, we reaffirmed the holding in Simpler and 

rejected an officer’s justification for a frisk of a suspect where the officer stated it was 

routine policy to frisk a suspect when they conducted a search of the suspect’s automobile. 

449 Md. 526, 537–38, 144 A.3d 771, 778 (2016). 

In this case, the primary reason articulated by Officer Walden for searching 

Respondent and his companions was that they outnumbered the officers five to two, and it 
11

was protocol to frisk for weapons when officers are outnumbered by suspects. He 

explained that in situations where officers are outnumbered:

At first[,] you’re in a terrible disadvantage. We were taught in the academy, 

it’s basic, you’d want to also go with back-up and you shouldn’t handle any 

call by yourself. 

But there are times where you’re put in that position to where there are 

several people coming at you, so you have to get the advantage. And one of 

the first concerns is a weapon that they could use against you. 

And my first concern was one of them having a weapon. And there was five 

of them and they were right by a door where they could run out the door, plus 

the odor of CDS, the odor of marijuana, that there was illegal drug activity 

there, the fact that nobody could provide any identification that they live 

inside that building. 

So[,] the first thing we want to do is secure them and make sure they don’t 

have any weapons on them. Once we found the weapon on them, then they 

were secured and handcuffed. 

Officer Walden later reiterated that the first thing he does whenever he is outnumbered by 

suspects is search for weapons. 

A blanket policy of always checking for weapons in circumstances where the 

officers are outnumbered by suspects is decidedly not a permissible basis for a Terry frisk

under Simpler and Sellman. A Terry frisk must be supported by a particularized basis for 

suspecting that an individual is armed and dangerous. See Thornton v. State, 465 Md. 122, 

143, 214 A.3d 34, 46 (2019) (holding that, when considering the constitutionality of a Terry 

frisk, “[t]he court must decide whether, under the circumstances, a reasonably prudent law 

enforcement officer would have felt that he [or she] was in danger, based on reasonable 

inferences from particularized facts in light of the officer’s experience[]”) (cleaned up)

(emphasis added). Officer Walden’s practice of always searching for weapons in cases 
12

where he is outnumbered did not provide him with particularized suspicion that 

Respondent was armed and dangerous. I would hold that using this blanket policy as the 

primary basis for frisking Respondent renders the frisk unconstitutional under our Fourth 

Amendment standards. 

ii. Officer Walden did not have reasonable suspicion under the totality of the 

circumstances that Respondent was armed and dangerous 

Neither did the totality of the circumstances surrounding Officer Walden’s 

encounter with Respondent reasonably justify a belief Respondent was armed and 

dangerous. When determining whether reasonable suspicion exists, “[t]he test is ‘the 

totality of the circumstances,’ viewed through the eyes of a reasonable, prudent, police 

officer.” Sellman, 449 Md. at 542, 144 A.3d at 781 (2016) (quoting Bost v. State, 406 Md. 

341, 356, 958 A.2d 356, 365 (2008)). As this Court recently stated in Thornton, 

[t]o articulate reasonable suspicion, an officer must explain how the observed 

conduct, when viewed in the context of all the other circumstances known to 

the officer, was indicative of criminal activity. [I]t is impossible for a 

combination of wholly innocent factors to combine into a suspicious 

conglomeration unless there are concrete reasons for such an interpretation. 

Law enforcement officers cannot simply assert that innocent conduct was 

suspicious to him or her.

465 Md. at 147, 214 A.3d at 49 (internal citations and quotations omitted). In this case, 

when asked why he suspected that Respondent and his companions may have been armed, 

Officer Walden stated:

One [reason] was the evasive body language. Another reason is because I 

just felt that because there’s five of them in baggy clothes, they were being 

evasive, that for our safety to be able to continue with the investigation, that 

I wanted to feel safe that there was nobody that was armed at that time.
13

I begin with addressing Respondent’s allegedly evasive behavior. Officer Walden 

described Respondent’s behavior as follows:

Four of the subjects sit to the stairs to the left and [Respondent] stayed on the 

top of the stairs to the right. And he was being evasive, because he was like 

man, I’m not doing nothing –

* * *

He’s to the right of me and I told him to have a seat on top of the stairs. And 

he just kept facing away from me, he was sitting facing away from me. His 

body language, he just seemed to be evasive of what he was doing. Through 

my training and knowledge, I know that if you’re being evasive in how you 

carry your body language, I mean that’s a sign that you could be carrying a 

weapon. 

* * *

So as I’m standing here, he’s right there and he has a seat and he’s just facing 

over here, so body language that I can’t see anything, I can’t really see his 

hands. He would speak to me, but I can’t see his whole body language, I 

can’t see what he’s doing.

We have explained that we will not “‘rubber stamp’ conduct simply because the 

officer believed he had a right to engage in it” and that when an “officer seeks to justify a 

Fourth Amendment intrusion based on that conduct, the officer ordinarily must offer some 

explanation of why he or she regarded the conduct as suspicious; otherwise, there is no 

ability to review the officer’s action.” Ransome v. State, 373 Md. 99, 111, 816 A.2d 901, 

908 (2003). “In other words, there must be an ‘articulated logic to which this Court can 

defer.’” Crosby, 408 Md. at 509, 970 A.2d at 904 (quoting United States v. Lester, 148 

F.Supp.2d 597, 607 (D. Md. 2001). In Ransome, we rejected a claim of reasonable 

suspicion that a suspect was armed and dangerous based on an observation that the suspect 
14

had a bulge in his pocket, had stopped and looked at the unmarked police car as it 

approached, and when questioned by law enforcement, had ceased eye contact and acted

nervously. Ransome, 373 Md. at 105, 816 A.2d at 904–05. We reasoned that the officer 

“never explained why he thought that petitioner’s stopping to look at his unmarked car as 

it slowed down was suspicious or why petitioner’s later nervousness or loss of eye contact, 

as two police officers accosted him on the street, was suspicious.” Id. 109, 816 A.2d at 

907. 

Similar to the officer in Ransome, Officer Walden offered no explanation as to why 

Respondent’s body language of sitting on a different part of the staircase from his 

companions and facing away from the officers was indicative that he might have been 

armed. Officer Walden simply testified he knew Respondent was being evasive based on 

his “training and knowledge,” but failed to describe the training and knowledge or how it 

would be indicative that a suspect might be armed. As a result, we have no ability to review 

the officer’s actions and can only “rubber stamp” his conclusion that Respondent’s 

behavior was indicative of someone who was armed. Without any further explanation from 

Officer Walden, we could also conclude Respondent’s body language was simply 

indicative of any teenager who was nervous, angry, or upset about being questioned by the 

police. Respondent was not the first person in his group searched, which suggests that the 

officers did not find Respondent’s behavior particularly concerning. Instead, and

consistent with Officer Walden’s testimony, law enforcement searched the entire group as 

a matter of policy. 
15

Officer Walden also referenced the fact Respondent was in “baggy clothes” among 

his considerations when developing reasonable suspicion that Respondent was armed. 

Specifically, he testified Respondent was wearing a “puffy jacket.” The incident in 

question occurred in mid-November, when many Marylanders who are outside or about to 

walk outside will likely be found wearing puffy jackets to stay warm. Respondent and his 

companions similarly wore puffy jackets as they were about to walk outside; therefore this 

behavior should not have contributed to the officer’s reasonable suspicious calculus. Cf.

United States v. Drayton, 536 U.S. 194, 207, 122 S. Ct. 2105, 2114 (2002) (noting that it 

could have been relevant to a Terry stop and frisk analysis that the suspects were “dressed 

in heavy, baggy clothes that were ill-suited for the day’s warm temperatures[.]”) (emphasis 

added). 

As recognized by the Third Circuit, “[t]here are limits, however, to how far police 

training and experience can go towards finding latent criminality in innocent acts.” 

Johnson v. Campbell, 332 F.3d 199, 208 (3d Cir. 2003). In this case, the fact Respondent 

wore a bulky jacket, just as most people would wear in mid-November, should not be 

considered a contributing factor to the officer’s reasonable suspicion that he was armed 

and dangerous. See, e.g., State v. Broadus, 111 A.3d 57, 61–62 (N.H. 2015) (finding the 

fact that (1) the officer believed “that the defendant lied when she denied drinking alcohol 

in the vehicle; (2) she did not maintain eye contact with Locke; and (3) she wore baggy 

clothes[]” neither “alone or together, could have supported a reasonable suspicion that the 

defendant was armed and presently dangerous[]” and that “nothing about the defendant’s 

‘attire alone could tell the officer[ ] anything about [her], except that [s]he liked to wear 
16

baggy clothing.’”) (quoting State v. Miglavs, 90 P.3d 607, 613 (Or. 2004)); United States 

v. Job, 871 F.3d 852, 861 (9th Cir. 2017) (finding “the facts that Job’s pants appeared to 

be ‘full of items’ and he appeared nervous do not support the conclusion that he was 

engaged in criminal activity[]” warranting a Terry frisk). 

The same is true of the officer’s consideration that “there was five of them” as a part 

of his calculation Respondent could have been armed and dangerous. Like wearing a puffy 

jacket in November, there is nothing suspicious about travelling with a group of four other 

people, especially as young people. There is no reason to believe, nor did Officer Walden 

offer any reason to believe, that travelling with such a group might indicate a suspect being 

armed. As discussed above, a blanket policy of searching members of a group anytime an 

officer is outnumbered is not permissible under Maryland law, and Officer Walden offered 

no reason to believe that Respondent travelling in this particular group of five indicated he 

was armed and dangerous. 

Finally, neither should the fact that the officers were responding to a call reporting 

possible trespass and marijuana use add to the reasonable suspicion calculus.2 In Sellman,

we explained:

2 Although the Officer Walden did not mention the nature of the call when directly 

responding to the question about why he believed Respondent may have been armed, he 

did mention the nature of the call later when discussing the policy about frisking when 

outnumbered by suspects. Specifically, he stated:

And my first concern was one of them having a weapon. And there was five 

of them and they were right by a door where they could run out the door, plus

 (continued . . .) 
17

But for other types of crimes, such as trafficking in small quantities of 

narcotics, possession of marijuana, illegal possession of liquor, prostitution, 

bookmaking, shoplifting and other theft, passing bad checks, underage 

drinking, driving under the influence and lesser traffic offenses, minor 

assault without weapons, curfew information, or vagrancy, as well as when 

the stop is for a legitimate noncriminal reason, or when the officer’s duties 

otherwise necessitate his being in close proximity to the individual, there 

must be, as Justice Harlan noted in Terry, “other circumstances” present. 

Illustrative of the circumstances the courts have deemed sufficient are: the 

suspect’s admission he is armed; a characteristic bulge in the suspect’s 

clothing; an otherwise inexplicable sudden movement toward a pocket or 

other place where a weapon could be concealed; movement under a jacket or 

shirt “consistent with the adjustment of a concealed firearm”; an otherwise 

inexplicable failure to remove a hand from a pocket; awkward movements 

manifesting an apparent effort to conceal something under his jacket; 

backing away by the suspect under circumstances suggesting he was moving 

back to give himself time and space to draw a weapon; awareness that the 

suspect had previously been engaged in serious criminal conduct (but not 

more ambiguous “record” information); awareness that the suspect had 

previously been armed; awareness of recent erratic and aggressive conduct 

by the suspect; discovery of a weapon in the suspect’s possession; discovery 

that the suspect is wearing a bullet proof vest as to which he makes evasive 

denials; and awareness of circumstances which might prompt the suspect to 

take defense action because of a misunderstanding of the officer’s authority 

or purpose.

449 Md. at 560–61, 144 A.3d at 792 (some emphasis added) (quoting WAYNE R. LAFAVE,

SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.6(a) 855–62 (5th 

ed. 2012)). The investigation potential trespass and marijuana possession by teenagers 

surely falls into category of minor, non-violent crimes for which “other circumstances” 

(. . . continued)

the odor of CDS, the odor of marijuana, that there was illegal drug activity 

there, the fact that nobody could provide any identification that they live 

inside that building.

As such, I will still consider this a factor articulated by Officer Walden as one of his 

articulated bases for suspecting Respondent was armed and dangerous.
18

must be present in order for a police officer to “infer weapons use.” See id. at 559–61, 144 

A.3d at 791–92. While the examples of “other circumstances” listed in Sellman are 

certainly not exhaustive, none of the circumstances surrounding the officers’ encounter 

with Respondent are analogous to the examples listed. Here, the officers did not say that 

Respondent was making furtive or awkward movements manifesting an effort to conceal a 

firearm, but just that he was not facing them, and they could not see his hands. Far from 

refusing to remove his hands from his jacket when requested, the officers never asked 

Respondent to make his hands visible or face them at all. As “other circumstances” were 

not present, the officers were not permitted to infer weapons use based on the nature of the 

crimes they were investigating. 

The State mentions a few other circumstances it believes contributed to the officer’s 

reasonable suspicion that Respondent was armed and dangerous, namely: Respondent’s 

refusal to answer the officer’s questions, and the fact that the officer recovered a BB gun 

from one of Respondent’s companions. Although the officers certainly testified about 

these facts, they notably did not mention them as contributing factors to their determination 

that Respondent might have been armed. As discussed above, Maryland courts rely on the 

frisking officer’s actual “articul[ation] [of] his specific reasons for believing that the 

suspect was armed and dangerous[]” and find it insufficient “that objective circumstances 

be present that might have permitted some other officer in some other case to conclude that 

the suspect was armed and dangerous.” Ames, 231 Md. App. at 674, 153 A.3d at 906. 

Rather, it is “required that the frisking officer himself expressly articulate the specific 

reasons he had for believing that the frisk was necessary.” Id., 153 A.3d at 906. As such, 
19

I would not consider factors that were not articulated by the officers as a part of their 

consideration for determining Respondent might have been armed and dangerous. 

Even considering such factors, I conclude they still do not amount to reasonable 

suspicion that Respondent was armed and dangerous under the totality of the 

circumstances. First, pertaining to the fact Respondent refused to answer the officer’s 

questions and said “[m]y dick” in response to the officers’ questions about who lived in 

the building, Respondent was not obligated to respond to the officer’s questions. See 

Collins v. State, 376 Md. 359, 368, 829 A.2d 992, 997 (2003) (explaining an individual 

detained and questioned during a Terry stop “is not obligated to respond . . . and, “unless 

the detainee’s answers provide the officer with probable cause to arrest him, he must then 

be released.”). The officers described the group as “snickering, laughing and very

carefree[;]” they were uncooperative, but not aggressive or agitated. Respondent’s

response may have been indicative of his immaturity or desire to impress his friends, but it 

did not reasonably suggest that he was armed or dangerous. 

Second, the recovery of the BB gun from one of Respondent’s companions did not 

justify Officer Walden’s frisk of Respondent. Recently, in Lockard v. State, the Court of 

Special Appeals rejected an officer’s assertion “[i]f there’s one weapon, there could be 

more[]” as a justification of the frisk of a suspect after a knife was observed in his pocket. 

247 Md. App. 90, 98, 233 A.3d 228, 233 (2020). Additionally, we have stated that “to 

allow the reasonable, articulable suspicion standard to be satisfied based upon a person’s 

status, rather than an individualized assessment of the circumstances, would undermine the 

purpose for requiring officers to justify their reasons for searching a particular individual.” 
20

State v. Nieves, 383 Md. 573, 597, 861 A.2d 62, 77 (2004) (emphasis added). As such, 

Respondent’s status as a companion to an individual discovered to be carrying a handgun, 

is not sufficient to justify the officers’ reasonable suspicion that he might also be armed 

and dangerous.3

The State relies on El-Amin v. Commonwealth, 607 S.E.2d 115 (Va. 2005), in which

police investigated a report that a group of young black males was smoking marijuana on 

a particular street corner. Id. at 116. When the officers approached, one of the members

of the group began walking away and when the officers requested that he stop and face 

them, and the individual instead reached for his waistband. The officers restrained the 

individual, who continued to attempt to reach for his waist band, and ultimately recovered 

a pellet gun from a search of his person. Id. The officers then conducted a frisk of the 

other members of the group, including the defendant who was found to be carrying a 

firearm. Id. In that case, the Virginia Court explicitly did not adopt a per se rule approving 

of the search of a companion of a person validly frisked4and found to be in possession of 

a weapon. Id. at 118. Rather, it determined the circumstances present in that case, 

including, the fact it was late at night and they were in a high-crime area, in addition to the 

discovery of the weapon and group activity. Id. at 119. 

3

It is also worth questioning whether possession of a BB gun would warrant 

characterizing Respondent’s companion as armed and dangerous.

4

In El-Amin, the Court found the search of the defendant’s companion was clearly 

justified as the companion did not comply with the officer’s commands to turn around and 

face him and began to reach for his waistband. 607 S.E.2d at 116. Although the issue is 

not directly before this Court, it is not evident from the record the search of Respondent’s 

companion revealing the BB gun was likewise justified.
21

Unlike in El-Amin, there were no additional circumstances in this case that justified 

the officers’ search of Respondent. All of the members of Respondent’s group complied 

with the officers’ commands that they sit on the stairs. The officers’ encounter with the 

group occurred indoors around approximately 7 p.m. and there was not a suggestion they 

were in a high crime area. Furthermore, as discussed above, none of the other 

circumstances surrounding the encounter, considered individually or together, warranted 

reasonable suspicion Respondent might have been armed and dangerous. This Court has 

not adopted a per se rule approving a search based on status as a companion of someone

from whom a weapon was recovered, and the recovery of the BB gun from Respondent’s 

companion was not sufficient to warrant a frisk of Respondent. 

CONCLUSION

Considering the foregoing, I dissent and would affirm the Court of Special Appeals’ 

holding that the gun recovered from Respondent should have been suppressed as the fruit 

of an unlawful search. The totality of the circumstances neither provided a reasonably 

articulable basis that Respondent was in unlawful possession of marijuana nor a reasonably 

particularized suspicion that Respondent was armed and dangerous. 

Judge Raker has authorized me to state that she joins in this opinion.