Bailey v. State

• Decision Date: 14 January 2010
• Docket Number: No. 10, September Term, 2009.,10, September Term, 2009.
• Parties: Robert BAILEY v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

987 A.2d 72

412 Md. 349

Robert BAILEY v. STATE of Maryland.

No. 10, September Term, 2009.

Court of Appeals of Maryland.

January 14, 2010.

Piedad Gomez, Asst. Public Defender (Nancy S. Forster, Public Defender, Baltimore, MD), on brief, for Petitioner.

Carrie J. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

GREENE, Judge.

In this case, we are asked to determine whether the search and seizure of the petitioner, Robert Bailey, violated the Fourth Amendment to the United States Constitution and the Maryland Declaration of Rights. To reach a decision, we must consider whether the odor of ether, a lawful substance that is allegedly associated with contraband, constitutes probable cause to support an arrest when the arrestee, who is standing in a high crime drug area, has the odor of ether emanating from his person, and fails to respond to police questions. We shall hold that the totality of the circumstances do not provide a concrete reason to associate the odor of ether with criminal activity or contraband, and, accordingly, the officer did not have probable cause to arrest the petitioner.

I.

On the night of August 16, 2006, Officer Rodney Lewis of the Prince George's County Police Department was patrolling the 6800 block of Hawthorne Street in Landover, Maryland. The area was known for drug activity, though there were no specific complaints on the night in question. At approximately 11:35 P.M., while patrolling on foot, Officer Lewis spotted the petitioner, Robert Bailey, standing alone on the side of 6890 Hawthorne Street. Officer Lewis testified about the encounter at the suppression hearing:

... I observed the defendant standing on the side of a home, ... just standing in the shadows, at which time I yelled out to him, "Excuse me, sir, do you live there?" I didn't get any acknowledgment from the individual, at which time I assumed that he probably didn't hear me. I repeated the same thing, "Excuse me, sir, do you live there," which again I received no acknowledgment from the suspect, at which time myself, along with another officer, walked over to the individual. At that time, I just happened to step out of the shallow [sic] area on the sidewalk where I could visibly see his hands. And from the area at which he was standing at the time, I could smell a strong odor of ether ...

When Officer Lewis smelled the odor of ether, he was within a few feet of the petitioner, close enough to "reach out and touch him." The odor was emanating "[f]rom [the petitioner's] body odor." The odor of ether, according to Officer Lewis's testimony, is associated with phencyclidine, more commonly known as PCP.¹ Officer Lewis acknowledged on cross-examination that it is not illegal to possess ether and that ether is a solvent that is used in several household products. Upon smelling the odor of ether, Officer Lewis "reached over and grabbed both of [the petitioner's] hands and ... had him place them over top of his head." Officer Lewis then conducted a search of the petitioner, which uncovered a glass vial, approximately three to four inches in length and one inch in diameter, half-full of liquid,² in the petitioner's right front pants pocket. Field tests confirmed that the liquid contained PCP, and the petitioner was subsequently taken into custody and charged with possession of a controlled dangerous substance.

People under the influence of PCP, according to Officer Lewis's testimony, "possess various strengths, sometimes they could be incoherent in reference to trying to understand if someone is saying something to them, and very glossy [sic] eyes...."³ Officer Lewis did not explain what he meant by "glossy" eyes or elaborate any further. In addition to observing the odor of ether, Officer Lewis noted that the petitioner had "glossy eyes" and that the petitioner failed to respond to the inquiries about whether he lived in the house. Officer Lewis did not, however, indicate whether he observed the petitioner's glossy eyes before or after he initially seized the petitioner.

The petitioner moved to suppress the physical evidence recovered from the search, asserting that the glass vial was the fruit of an illegal search and seizure under the Fourth Amendment, as well as the Maryland Declaration of Rights. Following a suppression hearing at which Officer Lewis was the sole witness, the trial court found that Officer Lewis had reasonable articulable suspicion to stop and question the petitioner based on the smell of ether, the petitioner's failure to respond to Officer Lewis's questions,⁴ and the petitioner's presence in a "high crime drug area with a number of complaints from citizens." The suppression court also determined that Officer Lewis conducted a valid pat-down of the petitioner for "officer safety" and that, based on the totality of the circumstances, the search and seizure were valid.

The petitioner proceeded to trial on an Agreed Statement of Facts. The State entered a nol pros as to the first count, possession of a controlled dangerous substance with intent to distribute. Based upon the Agreed Statement of Facts, the Circuit Court for Prince George's County entered verdicts of guilty to the second count, possession of a controlled dangerous substance, and sentenced the petitioner to four years in prison, all but two years suspended, with three years of supervised probation upon release.

The petitioner filed a timely appeal to the Court of Special Appeals. The intermediate appellate court, in an unreported opinion, affirmed the judgment of the trial court. The court determined that Officer Lewis had a reasonable, articulable suspicion to conduct an investigatory stop based on the odor of ether, the petitioner's "glossy" eyes, the petitioner's presence "in the shadows" in a high drug crime area, and the petitioner's failure to respond to Officer Lewis's inquiries. The court also held that

the officer's testimony did not provide a basis for a frisk, [but] it did provide probable cause for arresting [the petitioner] for the possession of illegal drugs and hence searching him. That is to say, although Officer Lewis did not articulate a reasonable suspicion for believing [the petitioner] had weapons in his possession, he did have probable cause to arrest [the petitioner] for the possession of unlawful drugs, and therefore he had the lawful authority to conduct a search incident to that arrest.

The court based its probable cause determination on "the smell of material clearly associated with illegal drugs ... combined with both the appearance and conduct of [the petitioner]," specifically his "glossy" eyes, failure to respond to Officer Lewis's inquiries, and presence in a high drug crime area "standing in the shadows at 11:30 p.m. ... back off the street, well in the shadows."

II.

"When reviewing the disposition of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment ..., we view the evidence adduced at the suppression hearing, and the inferences fairly deducible therefrom, in the light most favorable to the party that prevailed on the motion." Crosby v. State, 408 Md. 490, 504, 970 A.2d 894, 902 (2009); Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129, 1135 (2007). The appellate court defers to the trial court's fact-finding at the suppression hearing, unless the trial court's findings were clearly erroneous. Crosby, 408 Md. at 504-05, 970 A.2d at 902. "Nevertheless, in resolving the ultimate question of whether the detention or attendant search of an individual's person or property violates the Fourth Amendment, we `make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.'" Crosby, 408 Md. at 505, 970 A.2d at 902 (quoting State v. Williams, 401 Md. 676, 678, 934 A.2d 38, 40 (2007)); Longshore, 399 Md. at 499, 924 A.2d at 1136. Thus, this Court considers the evidence adduced at the suppression hearing, construed in the light most favorable to the State as the prevailing party at the suppression hearing.

III.

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." When the police obtain evidence through a search or seizure that violates the Fourth Amendment, "exclusion of evidence obtained in violation of these provisions is an essential part of the Fourth Amendment protections." Swift v. State, 393 Md. 139, 149, 899 A.2d 867, 873 (2006) (citing Mapp v. Ohio, 367 U.S. 643, 655-56, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961); State v. Lee, 374 Md. 275, 297-98, 821 A.2d 922, 934-35 (2003)). The Fourth Amendment, however, is "not implicated in every situation where the police have contact with an individual." Swift, 393 Md. at 149, 899 A.2d at 873 (citing California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991); Scott v. State, 366 Md. 121, 133, 782 A.2d 862, 869 (2001)). This Court analyzed the applicability of the Fourth Amendment to varying levels of police interaction in Swift, 393 Md. at 149-51, 899 A.2d at 873-74:

Many courts have analyzed the applicability of the Fourth Amendment in terms of three tiers of interaction between a citizen and the police. The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime. The second category, the investigatory stop or detention, known commonly as a Terry stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and briefly detain an individual.... The least intrusive police-citizen contact, a consensual encounter,...