On March 17, 2021, the Eleventh Circuit Court of Appeals decided the United States v. Roberts[i], in which the court examined whether the odor of marijuana can provide police with reasonable suspicion to detain a group of five men when the officers could not tell from which person the odor was emanating. The facts of Roberts, taken directly from the case, are as follows:
On July 11, 2018, at approximately 7:00 p.m., four detectives in the Fort Pierce Police Department assigned to the Crime Suppression Unit—Cunzo, Incorvaia, Cena, and Davis—arrived at Parkland Court, a public housing complex, for what they called a “park and walk.” The detectives exited their vehicle and walked toward a small group of men with the intent of striking up a conversation. As the detectives approached, they noticed a strong smell of marijuana emanating from the group of four to five individuals.
Detectives Incorvaia and Cena approached Roberts, who was standing next to the trunk of a parked car, while Detectives Cunzo and Davis spoke with other members of the group. Either Incorvaia or Cena asked Roberts if he had any contraband on him, to which Roberts replied “no.” Roberts then voluntarily turned out his pants pockets to show the detectives that they were empty.
At this point, Detective Incorvaia noticed the outline of a hard object in Roberts’s pocket, which was weighing down his nylon windbreaker. Believing that the object was a gun, Detective Incorvaia reached out and touched the outside of Roberts’s jacket pocket. Doing so confirmed Incorvaia’s suspicion. Detective Incorvaia then notified his fellow officers of the presence of a firearm by yelling “gun.”
Roberts immediately attempted to flee but was tackled by the detectives. It took all four of them to restrain Roberts, who continued to resist arrest even after being placed in a patrol vehicle. Detective Cunzo ultimately secured the loaded gun, which fell out of Roberts’s pocket in the struggle.[ii]
Roberts was subsequently indicted under federal law for possession of a firearm by a convicted felon. He filed a motion to suppress the gun and argued the officers’ lacked reasonable suspicion to detain him because the odor of marijuana was not particularized to him, but rather to the group of men he was with, in general. The district court denied the motion to suppress. Roberts pleaded guilty with the right to appeal the denial of the motion to suppress.
Roberts appealed the denial of his motion to suppress to the Eleventh Circuit Court of Appeals.
The court of appeals first examined precedent that is relevant to Robert’s case. The court stated
Under Terry, law enforcement officers may seize an individual for a brief, investigatory stop if they have a reasonable suspicion that the individual was involved, or is about to involved in, criminal activity. United States v. Acosta, 363 F.3d 1141, 1144-45 (11th Cir. 2004)…
Whether reasonable suspicion exists is based on the totality of the circumstances. See United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989). But the smell of marijuana alone can provide reasonable suspicion for an investigatory stop. White, 593 F.3d at 1203. What’s more, we have held that the odor of marijuana can establish the existence of probable cause. See United States v. Lueck, 678 F.2d 895, 903 (11th Cir. 1982) (“At the point marijuana was smelled by [the officer], probable cause to believe a crime had been committed . . . arose“); United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (en banc) (“There is no doubt that the agent’s suspicions rose to the level of probable cause when, as the door stood open, he detected what he knew from his law enforcement experience to be the odor of marijuana.”).[iii]
On appeal, Roberts did not dispute that the odor of marijuana can provide reasonable suspicion. Rather, Roberts argued that the officers lacked reasonable suspicion to detain him because the odor of marijuana was emanating from the group as a whole and not him specifically, thus it could have been coming from anyone.
Roberts cited the Supreme Court case, Ybarra v. Illinois[iv], in which officers had a search warrant to search a bar based on probable cause the bartender was selling drugs at the bar. When officers executed the search warrant, they also searched the patrons of the bar, to include Ybarra. The case ultimately went to the Supreme Court which held that the search warrant for the bar did not authorize the police to search individual bar patrons unless they had reasonable suspicion that they were armed and dangerous.[v] Roberts argued that Ybarra also prevented the police from detaining him when he was with a group of five people from which the odor of marijuana emanated.
The Eleventh Circuit acknowledged that a person’s mere proximity to others that are suspected of criminal activity does not, without more, give rise to probable cause to search a person. However, the court distinguished Ybarra from Roberts’ case because Ybarra was merely a patron at a location where someone else, particularly the bartender, was suspected of criminal activity. However, Roberts and the group of men he was with were all suspected of criminal activity, specifically possession of marijuana.
The court then explained
[T]he District Court found that there were only four to five people in Roberts’s immediate area, a factual finding that is borne out by video evidence. Perhaps Roberts’s claim—that the detectives did not have a sufficiently particularized suspicion that he was engaged in criminal activity—would have merit if Roberts had been standing in a larger group. But it strains credulity to say that the detectives, who smelled marijuana coming from a group of only four or five individuals, could not briefly detain those individuals simply because they could not point to any particular person with certainty and say the smell emanated from them. Consequently, the detectives’ suspicion was sufficiently particularized, and Roberts’s detention was proper under Terry.[vi]
Thus, the court held that officers may, consistent with Terry and the Fourth Amendment, detain of group of 4-5 people to investigate, when officers detect the odor of marijuana emanating from the group as a whole.
The court also noted that Roberts failed to properly appeal the frisk so he forfeited that argument in this appeal.
Therefore, the court of appeals affirmed the denial of the motion to suppress.
[i] No. 19-14632 (11th Cir. Decided March 17, 2021 Non-Argument)
[ii] Id. at 1-3
[iii] Id. at 6-7 (emphasis added)
[iv] 444 U.S. 85 (1979)
[v] Roberts at 8
[vi] Id. at 9 (emphasis added)