Grant v. State

• Court: Maryland Court of Appeals
• Writing for the Court: Opinion by Kehoe, J.
• Decision Date: 24 July 2015
• Docket Number: No. 2742,2742
• Citation: Grant v. State, No. 2742 (Md. App. Jul 24, 2015)
• Parties: TERRANCE JAMAL GRANT v. STATE OF MARYLAND

TERRANCE JAMAL GRANT v. STATE OF MARYLAND

No. 2742

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2013

July 24, 2015

UNREPORTED

Graeff, Kehoe, Alpert, Paul E. (Retired, Specially Assigned), JJ.

Opinion by Kehoe, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Following denial of his motion to suppress, appellant, Terrance Jamal Grant, was convicted in the Circuit Court for Frederick County, Maryland, via a not guilty plea on an agreed statement of facts, to possession of marijuana. He was sentenced to thirty days, all suspended, to be followed by one year unsupervised probation. Appellant presents the following question for our review:

Did the court err in denying appellant's motion to suppress where the officer conducted a warrantless search of a car during a traffic stop by sticking his head through the window?

For the following reasons, we shall affirm.

BACKGROUND

At approximately 6:03 p.m. on May 23, 2013, Deputy First Class Chad Atkins, of the Frederick County Sheriff's Office, was on patrol on Worthington Boulevard in an unmarked police vehicle when he observed a Saab being driven by appellant. Because the vehicle appeared to be speeding, Deputy Atkins, a certified radar and laser operator, activated his radar and determined that the Saab was traveling at a speed of 50 miles per hour in a 35 mile per hour zone. Deputy Atkins activated his emergency equipment and stopped appellant's vehicle for the traffic violation.

With traffic passing by the driver's side door, Deputy Atkins approached the passenger side of appellant's vehicle. Upon Deputy Atkins' initial contact with appellant, the officer could smell the odor of marijuana emanating from the vehicle. Deputy Atkins was familiar with the smell of marijuana from over 100 hours of police training and having made 100 drug-related arrests.

Testifying that the weather was "becoming windy" and that the smell of marijuana "quickly dissipated," Deputy Atkins decided to call a K-9 unit that he knew was nearby. He returned to his vehicle to begin the paperwork for the traffic stop and, at the same time, called for Corporal Eyler to respond with his K-9 partner. Atkins estimated he called for the K-9 at about two to three minutes after he initiated the stop, and Corporal Eyler arrived approximately 15 minutes later. Deputy Atkins conceded that, at this point during the stop, he was now engaged in a drug investigation.

Corporal Eyler arrived on the scene at around the same time Deputy Atkins completed his paperwork for the traffic violation and had run wanted and license checks. Deputy Atkins then exited his vehicle, approached appellant's vehicle, and asked appellant to step out of the Saab. Appellant and Deputy Atkins then stood behind the Saab, in front of Atkins' police vehicle, and Corporal Eyler began the scan of the Saab with his K-9 partner. Appellant was "calm and cooperative," was not placed in handcuffs, and Deputy Atkins had not displayed his weapon at any time during this encounter.

While Corporal Eyler was conducting the scan, Deputy Atkins told appellant that he smelled an odor of marijuana coming from the Saab. Appellant then told Deputy Atkins that there was, in fact, a pipe and a small amount of marijuana in the center console of his vehicle. Less than a minute later, Corporal Eyler completed his scan and informed Deputy Atkins that his K-9 partner alerted on the odor of narcotics comingfrom appellant's vehicle. Deputy Atkins then searched appellant's vehicle and found a film canister containing suspected marijuana, as well as a smoking device containing burnt marijuana residue in the center console. Appellant was then placed under arrest. However, appellant ultimately left the scene on his own after Deputy Atkins simply issued him a criminal citation.

On cross-examination, defense counsel attempted to clarify when, precisely, Deputy Atkins first smelled the odor of marijuana. After testifying again that he smelled the marijuana on "initial contact," the following ensued on further cross-examination:

Q. Okay. Ah, so the point at which you, you allege you smelled marijuana was when you kind of leaned in to get his, get his license and registration?

A. If you call it leaning, it's when he rolled down his window and I made con- when I was speaking with him.

Q. Okay. Do you recall how you, how you positioned yourself when you were speaking with him?

A. Like I, I, I don't know how to explain it 'cause I do it on every single stop that I have. I, you know, put my head, he, they have the, they roll the window down and I have my head by their window. And -

Q. Okay. Do you recall if your head entered the window or not?

A. I don't know if my head entered through the window plane or not. I wouldn't of, you know, it, I, I don't know. Honestly.

Q. Okay. You wouldn't be surprised to find out that it did.

A. If I had crossed where the window glass was? No -Q. Where the, where the pane -

A. - because sometimes -

Q. - would have been -

[PROSECUTOR]: Objection, Your Honor.

THE COURT: Let, let him answer. One at a time. We have all morning to finish the (unclear - one word). Go ahead.

BY [DEFENSE COUNSEL]:

Q. Thank you.

A. No, I, the, wouldn't, I wouldn't be surprised.

After watching a DVD of the stop, appellant contended that there was an illegal search when Deputy Atkins first approached the Saab and placed his head inside the vehicle's window. Appellant further argued the stop was unduly prolonged to await the arrival of the drug detection dog and that this violated the Fourth Amendment. The State responded that this traffic stop soon became a narcotics investigation after Deputy Atkins initially smelled the odor of marijuana and that the odor provided "at a minimum," reasonable articulable suspicion to justify appellant's detention.

After a brief recess, the court denied the motion to suppress finding, in pertinent part, as follows:

On the date in question Deputy Atkins was on routine patrol in Frederick County, Maryland. While on routine patrol he observed a vehicle being driven by a person who we later discovered to be the Defendant, Mr. Grant, that was, appeared to be, to him to be exceeding the posted speed. DeputyAtkins was going in the opposite direction on Worthington Boulevard in Urbana and he did a U-turn and pulled the vehicle over. He approached the vehicle on the passenger side of the vehicle. The window was rolled down. The Defendant was in the driver's side, he was the only person in the vehicle. Deputy Atkins asked for his of course license and registration and during that process his, from the video his head appeared to have intruded somewhat into the window space, into the interior of the Defendant's car. The testimony of Deputy Atkins was that he didn't recall whether his head went in the vehicle or not. It was very possible (unclear) head would have broken the plane and it was at some point, it was not clear whether it was when his head was inside or when the window was rolled down, he smelled what he believed based on his training and experience smelled like marijuana. But he also testified that it dissipated rather quickly.

The court continued that, although there then existed probable cause to search the vehicle based on the smell of marijuana, Deputy Atkins decided not to do so because the odor dissipated. Nevertheless, the court ruled that "it did create an articulable suspicion which was reasonable under the circumstances to detain the Defendant for further investigation until a K-9 unit could arrive." The court found that the K-9 arrived within 20 minutes of the initial stop and that this period of detention was reasonable considering all the circumstances, including the odor of marijuana emanating from appellant's vehicle. The court also ruled that appellant's statements were admissible because appellant was not in custody at the time he volunteered that there was marijuana in the center console of the vehicle.

DISCUSSION

On appeal, appellant does not contest the lawfulness of the initial stop or its duration, but instead, contends that the court erred in denying his motion to suppress because Deputy Atkins conducted a warrantless search of his vehicle by placing his head through the passenger side window and then smelling marijuana. The State responds that, given that the motions court found that it was unclear when Deputy Atkins' head was inside the vehicle's window, that under principles of appellate fact-finding review, we should conclude that the officer smelled the marijuana before he placed his head in the window and that there was no warrantless search. The appellant, in turn, replies, that the motion court's finding that it was unclear when Atkins' head entered the vehicle, in relation to when he smelled marijuana, means that the State failed to meet its burden to show that this was not an illegal search.

The Court of Appeals has described the standard of review to be applied in motions to suppress:

When we review a trial court's grant or denial 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. We defer to the trial court's fact-finding at the suppression hearing, unless the trial court's findings were clearly erroneous. Nevertheless, we review the ultimate question of constitutionality de novo and must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.

Corbin v. State, 428 Md. 488, 497-98 (2012) (citation and internal quotation omitted).

The Court of Appeals has also explained what should be considered in evaluating a traffic stop under the Fourth Amendment...