Barrett v. State
| Decision Date | 29 November 2017 |
| Docket Number | No. 530 Sept. Term 2016,530 Sept. Term 2016 |
| Parties | Anthony BARRETT v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
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.
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
On appeal, appellant presents two questions for this Court's review, which we have reordered and rephrased slightly, as follows:
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 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
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 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:
At the conclusion of the trial, the circuit court convicted appellant of the weapons charges. This appeal followed.
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 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 States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Accord Riley v. California , –––U.S. ––––, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (2014). Thus, a warrantless search of a person is "reasonable only if it falls within a recognized exception." Missouri v. McNeely , 569 U.S. 141, 148, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013). The Court of Appeals has listed several exceptions to the warrant requirement, including: (1) hot pursuit; (2) the plain view doctrine; (3) the Carroll doctrine; (4) stop and frisk; (5) consent; (6) exigent circumstances; and (7) search incident to arrest. Grant, 449 Md. at 16, n.3, 141 A.3d 138 (2016).
In denying the motion to suppress here, the circuit court appeared to rely on this Court's decision in Bowling . In that case, this Court upheld a warrantless search pursuant to the automobile exception, sometimes referred to as "the Carroll doctrine," Carroll v. United States , 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which allows the police to conduct a warrantless search of a vehicle based on probable cause to believe that the vehicle contains contraband or evidence of a crime. 227 Md. App. at 472–73, 134 A.3d 388.6 We noted that the Maryland appellate courts consistently have held that the odor of marijuana emanating from a vehicle provides probable cause for the police to conduct a warrantless Carroll doctrine search of a vehicle. Id. at 469, 134 A.3d 388. In Bowling , 227 Md. App....
To continue reading
Request your trial
-
In re D.D.
...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 nece......
- Stisser v. SP Bancorp, Inc.
-
Goodwin v. State
...(quoting Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ). Accord Barrett v. State, 234 Md. App. 653, 661–63, 174A.3d. 441, 2017 WL 5900113 at *3 (2017). The exception relied upon here is reasonable suspicion to conduct a protective frisk.In Terry v. Ohio , 3......
-
Lewis v. State
...historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to" probable cause.'" Barrett v. State, 234 Md. App. 653, 666 (2017), cert. denied, 457 Md. 401 (2018). The Maryland appellate courts consistently have held that the odor of marijuana provides p......