Barrett v. State, 530 Sept. Term 2016

CourtCourt of Special Appeals of Maryland
Writing for the CourtGraeff, J.
Citation234 Md.App. 653,174 A.3d 441
Parties Anthony BARRETT v. STATE of Maryland
Docket NumberNo. 530 Sept. Term 2016,530 Sept. Term 2016
Decision Date29 November 2017

234 Md.App. 653
174 A.3d 441

STATE of Maryland

No. 530 Sept. Term 2016

Court of Special Appeals of Maryland.

November 29, 2017

Argued by Michael R. Braudes (Paul B. DeWolfe, Public Defender on the brief), Baltimore, MD, for Appellant.

Argued by Todd W. Hesel (Brian E. Frosh, Attorney General on the brief), Baltimore, MD, for Appellee.

Panel: Graeff, Reed, Friedman, JJ.

Graeff, J.

174 A.3d 444
234 Md.App. 657

Following a bench trial in the Circuit Court for Baltimore City, Anthony Barrett, appellant, was convicted of the following crimes: possession of a firearm by a prohibited person; wearing, carrying, or transporting a handgun on the person; and wearing, carrying, or transporting a handgun in a vehicle. The court sentenced appellant on the conviction for possession of a firearm to five years of imprisonment, all suspended but time served, and three years of imprisonment for each of the two convictions for wearing, carrying, or transporting a handgun.1

234 Md.App. 658

On appeal, appellant presents two questions for this Court's review, which we have reordered and rephrased slightly, as follows:

1. Did the circuit court err in denying appellant's motion to suppress the evidence obtained as a result of the search of his person?

2. Did the circuit court err in imposing separate sentences for each of the two convictions of wearing, carrying, or transporting a handgun?

For the reasons set forth below, we shall vacate the sentence for wearing, carrying, or transporting a handgun in a vehicle and otherwise affirm the judgments of the circuit court.


On November 24, 2014, Detectives Brian Salmon and Jason Leventhall, members of the Baltimore City Police Department, were on patrol in a marked SUV. Detective Salmon had encountered the odor of burnt marijuana hundreds of times, and he was accepted at the suppression hearing as an expert in the "sale, packaging and recognition" of marijuana.2

Detective Salmon saw a Honda Accord with an approximately foot-long crack in the front windshield. He had stopped the same vehicle the previous month for the same violation (cracked windshield), and he gave the driver of the vehicle at that time, appellant, a verbal warning and told him to get the windshield fixed. When the officers passed the vehicle on November 24, they "immediately smelled the strong odor of marijuana."

The detectives initiated a traffic stop of the vehicle, which was occupied by three people. As the detectives exited their vehicle and approached the driver's side of the stopped vehicle, Detective Salmon detected a "strong odor" of "burnt marijuana" emanating from the vehicle. Detective Leventhall

234 Md.App. 659

approached the passenger side of the vehicle and asked appellant, who was sitting in the front passenger seat, if there was any marijuana in the car. Appellant "freely stated that they were smoking marijuana," and he handed Detective Leventhall "a brown hand-rolled cigar containing green plant material."3

174 A.3d 445

The officers asked the driver and appellant to exit the vehicle. When Detective Salmon walked over to appellant, he could smell "the strong odor of marijuana coming from [appellant] and inside the car," but he was unable to discern from the odor the quantity of suspected marijuana.

Detective Salmon then searched appellant. He recovered a loaded 9–millimeter handgun from appellant's pants.4 At that time, appellant was placed under arrest. As Sergeant John Landsman transported appellant to the police station, appellant offered "to make a deal for getting an AK–47 in exchange for being released." At the station, appellant gave a recorded statement, in which he admitted that he "got caught with a handgun."

At the conclusion of all the evidence, which included evidence that the gun seized was operable and met the definition of a firearm under Maryland law, the court heard argument on the defense motion to suppress. The State argued that, based on the odor of marijuana and appellant's actions in handing the officer "a blunt of some sort," Detective Salmon had the right to search, to pat-down appellant, who possibly had additional contraband on his person or in the vehicle. Defense counsel argued that appellant's "admittance of [a] civil offense" of possession of less than ten grams of marijuana "does

234 Md.App. 660

not give rise to [ ] probable cause of criminal activity," and therefore, "the search should be denied and ... the statement should be suppressed."5

The court ultimately denied the motion to suppress. It characterized defense counsel's argument to be that, because possession of less than ten grams of marijuana was a civil offense, and the police did not have information that a greater quantity of marijuana was involved, the police did not have probable cause to search the car. The court disagreed with that argument, noting that, pursuant to Bowling v. State , 227 Md. App. 460, 134 A.3d 388, cert. denied , 448 Md. 724, 141 A.3d 135 (2016), the smell of marijuana gave the detectives probable cause to search the vehicle. The court stated:

The issue becomes whether it's reasonable for the officer to believe that there may be additional marijuana in the car or on the person in the car. That's the analysis under [ Bowling ]. And the [ Bowling ] Court says that it is reasonable. So when Officer Salmon decided to pat down Mr. Barrett to see if he had any additional marijuana on him, as the [ Bowling ] Court found with the vehicle, this Court finds that was reasonable. When he patted him down, however, he found—he felt a sharp object and he recovered that object from his person. That object turned out to be a handgun.

The Court finds nothing—no—the Court does not find any violation of the Fourth Amendment under the facts of this case. The Court finds the testimony of the officers to be credible. So as to the suppression of the handgun, the Court denies your motion.
174 A.3d 446

At the conclusion of the trial, the circuit court convicted appellant of the weapons charges. This appeal followed.

234 Md.App. 661



Appellant contends that the circuit court erred in denying his motion to suppress the handgun recovered from his person and his subsequent statement. He argues that "[t]he police had no justification for a warrantless search of [his] person," and the court erred in relying on this Court's decision in Bowling because that case addressed a warrantless search of a vehicle, whereas this case involved the search of a person. Appellant further argues that there was no independent justification for the search, asserting that it was not a search incident to arrest for two reasons: (1) "he had not been arrested"; and (2) this was a "citation offense for which he could not be arrested" because the officer could not ascertain the quantity of marijuana involved.

In reviewing the grant or denial of a motion to suppress, we consider the evidence in the light most favorable to the party who prevails on the motion, and we accept the suppression court's factual findings unless they are clearly erroneous. Bowling , 227 Md. App. at 466–67, 134 A.3d 388. Accord Norman v. State , 452 Md. 373, 386, 156 A.3d 940, cert. denied , ––– U.S. ––––, 138 S.Ct. 174, 199 L.Ed.2d 42 (2017). In determining the ultimate legal conclusion regarding whether a constitutional right has been violated, however, "we make an independent, de novo , constitutional appraisal by applying the law to facts presented in a particular case." Johnson v. State , 232 Md. App. 241, 256, 157 A.3d 338 (quoting Williams v. State , 372 Md. 386, 401, 813 A.2d 231 (2002), cert. granted , 454 Md. 678, 165 A.3d 473 (2017).

Our analysis begins with the Fourth Amendment to the Constitution of the United States, which protects against "unreasonable searches and seizures." U.S. CONST. amend. IV. This constitutional mandate is "applicable to the states, through the Fourteenth Amendment." Grant v. State , 449 Md. 1, 16, 141 A.3d 138 (2016). Whether a police action is reasonable "is judged by balancing its intrusion on the individual's

234 Md.App. 662

Fourth Amendment interests against its promotion of legitimate governmental interests." Delaware v. Prouse , 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Accord Sellman v. State , 449 Md. 526, 540, 144 A.3d 771 (2016).

The general rule is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United...

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