Ford v. State

• Decision Date: 15 September 1977
• Docket Number: No. 1306,1306
• Parties: William Harold FORD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 373

37 Md.App. 373

377 A.2d 577

William Harold FORD v. STATE of Maryland.

No. 1306.

Court of Special Appeals of Maryland.

Sept. 15, 1977.

Luther C. West, Assigned Public Defender, Baltimore, for appellant.

Francis B. Burch, Atty. Gen., Leroy Handwerger, Asst. Atty. Gen., Charles E. Wehland, State's Atty. for Howard County and Ronald L. Spahn, Deputy State's Atty. for Howard County, for appellee.

Submitted to GILBERT, C. J., and MENCHINE and MELVIN, JJ.

MENCHINE, Judge.

William Harold Ford was convicted by a jury in the Circuit Court for Howard County of possession of marihuana with intent to distribute. He was sentenced to conditional imprisonment under Article 27, §§ 641A and 645K. He now appeals, asking:

1. Whether the smell of marihuana alone furnishes probable cause for the arrest of the driver of the car in question and the subsequent search of the vehicle?

2. Whether the evidence is sufficient to show actual or constructive possession of the contraband in question by the appellant?

We answer both questions in the affirmative.

Probable Cause

Appellant moved to suppress the use at trial of marihuana and drug paraphernalia found in a Volkswagen. Appellant maintains that there was no probable cause to arrest the operator of the vehicle so that the subsequent search of the vehicle and seizure of the evidence was illegal. After a hearing conducted out of the presence of the jury, the trial court held that there was probable cause for the arrest and that the subsequent search was not unreasonable.

On the night of December 29, 1973, at approximately 2:15 a. m., Officer James L. Fitzgerald of the Howard County Police Department, was operating his marked police cruiser in the area of Ellicott City. He observed a yellow, two-door, 1973 Volkswagen which appeared to be exceeding the posted speed limit. Officer Fitzgerald followed the Volkswagen for a short time. Determining that the vehicle was speeding, Officer Fitzgerald signaled to the car to pull over to the curb. Fitzgerald left the police vehicle and approached the Volkswagen from behind.

We think that the following brief but graphic excerpt from Fitzgerald's testimony suffices to set the stage for our discussion of probable cause for the arrest and search:

"As I approached the vehicle, the operator, driver of the vehicle, exited from the vehicle, just as I came abreast of the driver's side.

Q Who was the driver?

A The driver of the vehicle was later identified as Grant Cole Smith, a white male.

Just as I approached the vehicle, I was abreast of the vehicle, the door opened and a subject exited from the vehicle and shut the door. At that time

THE COURT: Which who exited?

A That was the Grant Cole Smith.

THE COURT: I see.

A At that time, as he closed the door, I was standing right next to the vehicle, and I was looking at him. At that time I was about to ask the subject for his operator's license and the vehicle registration, of the vehicle he was operating. As he closed the door, a smell struck me, which I had known from my past experience to be the odor of marijuana. I

BY MR. SPAHN:

Q Where was that smell coming from?

A Pardon me, sir?

Q Where was the smell coming from?

MR. KANE: Just to preserve the record, Your Honor, I'll object.

A I believe at that time the smell was coming from the clothes of the subject, and also from the interior of the vehicle which he was operating, the yellow Volkswagen."

Officer Fitzgerald placed the driver under arrest. He then advised the driver that he had the right to remain silent; a right to have a lawyer present during any questioning; that as a juvenile he would be allowed to have his parents or guardian present; that if he desired to have a lawyer or his parents or guardian present no questioning would begin until their arrival.

In that setting the driver, at the officer's request, reached into the car and pulled out a brown paper bag containing marihuana. As he did so, the officer's flashlight disclosed that "he picked the bag up from the passenger's side, laying on the hump, which would be where the stick shift is . . . more on the passenger's side than it would be on the operator's side." The officer, after examining the contents of the bag, and identifying it as marihuana, ordered the appellant, who was the passenger, out of the car and placed him under arrest.

Fitzgerald had served in the United States Air Force for four years before becoming a police officer, during which time he received instruction on the use, effects, and detection of marihuana. He also attended the Anne Arundel County Police Academy for twenty weeks and received training as to the detection of marihuana.

A police officer has authority to make a warrantless arrest when the officer has probable cause to believe that a misdemeanor is being committed in his presence. Robinson v. State, 229 Md. 503, 507, 184 A.2d 814, 816 (1962); Maryland Code Article 27, § 594B(a).

The basic contention of appellant is that the odor of marihuana, standing alone, did not provide probable cause for the arrest of Smith. Ergo, he argues, the ensuing search disclosing a substantial quantity of marihuana was unlawful.

Appellant relies heavily upon the following language used in Davids v. State, 208 Md. 377, 383, 118 A.2d 636, 638 (1955):

"Where some evidence of the commission of a misdemeanor reaches an officer through his senses, and it is augmented by other strongly persuasive facts in his possession, all of which is sufficient to convey virtual knowledge to any normal mind that the misdemeanor is then being committed, he may act upon such information as being tantamount to actual knowledge that the misdemeanor is being committed." (Emphasis added.)

This Court adopted the above emphasized language in Ramsey v. State, 5 Md.App. 563, 568, 248 A.2d 659, 662 (1968).

Appellant maintains that Davids and Ramsey, both supra, enunciate a rule of law that sensory data derived through the olfactory nerves never are sufficient, standing alone, to give rise to the conclusion that there is probable cause to believe that a crime is being committed. We reject that idea.

Neither Davids nor Ramsey, both supra, involved the acquisition of knowledge through the sense of smell. Thus, neither case dealt definitively with the question whether information derived through the sense of smell alone might, in proper cases, serve to establish probable cause to believe that a crime was being committed. We believe that knowledge so acquired may establish probable cause.

The rule and cases supporting the rule determining the validity of a warrantless arrest were succinctly summarized for this Court by then Chief Judge Murphy (now Chief Judge of Appeals of Maryland) in Johnson v. State, 8 Md.App. 187, 191, 259 A.2d 97, 99 (1969), wherein it was stated:

"It is, of course, elementary that a warrantless arrest is valid where the arresting police officer has probable cause to believe that a misdemeanor has been or is being committed in his presence and that the arrestee is the misdemeanant. Winebrenner v. State, 6 Md.App. 440, 251 A.2d 610; Robinson v. State, 4 Md.App. 515, 243 A.2d 879; Salmon v. State, 2 Md.App. 513, 235 A.2d 758. In determining whether a misdemeanor has been committed in the officer's presence the term 'presence' denotes that the commission of the misdemeanor is perceptible to the officer's senses, whether they be visual, auditory, or olfactory. Davids v. State, 208 Md. 377, 118 A.2d 636; Ramsey v. State, 5 Md.App. 563, 248 A.2d 659. And in determining whether probable cause exists to justify the arrest, 'only the probability, and not a prima facie showing of criminal activity is the standard of probable cause.'

Spinelli v. United States, 393 U.S. 410, 418, 89 S.Ct. 584, 590, 21 L.Ed.2d 637, 645. More specifically, the rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify a conviction, but more evidence than would arouse a mere suspicion. Edwardsen v. State, 243 Md. 131, 220 A.2d 547; Radcliffe v. State, 6 Md.App. 285, 251 A.2d 11; Cornish v. State, 6 Md.App. 167, 251 A.2d 23; Simms v. State, 4 Md.App. 160, 242 A.2d 185." (Emphasis added.)

In the recent case of United States v. Solis, 536 F.2d 880, 881 (9th Cir. 1976), it was said:

"Generally evidence acquired by unaided human senses from without a protected area is not considered an illegal invasion of privacy, but is usable under doctrines of plain view or open view or the equivalent. Odors so detected may furnish evidence of probable cause of 'most persuasive character,' Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948), 'physical fact(s) indicative of possible crime,' Taylor v. United States, 286 U.S. 1, 6, 52 S.Ct. 466, 76 L.Ed. 951 (1932)."

In Johnson v. United States, 333 U.S. 10, at 13, 68 S.Ct. 367, at 369, 92 L.Ed. 436, at 440, the Supreme Court said:

"If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character." ¹

See also: Waugh v. State, 275 Md. 22, at 30 and footnote 5 at 29, 338 A.2d 268, 272 (1975).

We have no doubt, accordingly, that knowledge gained from the sense of smell alone may be of such character as to give rise to probable cause for a belief that a crime is being committed in the presence of the officer. When such conditions exist a warrantless arrest infringes upon no constitutional right.

We pass then to consideration of the question whether, under the tests set forth in Johnson v. State, supra, there has been a showing that the arresting officer had probable cause to believe that a crime was being committed in his presence. The trial judge...