Grant v. State

• Citation: 141 A.3d 138,449 Md. 1
• Decision Date: 12 July 2016
• Docket Number: No. 65, Sept. Term, 2015.,65, Sept. Term, 2015.
• Parties: Terrance Jamal GRANT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

449 Md. 1

141 A.3d 138

Terrance Jamal GRANT

v.STATE of Maryland.

No. 65, Sept. Term, 2015.

Court of Appeals of Maryland.

July 12, 2016.

Katherine P. Rasin, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner.

Gary E. O'Connor, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before BARBERA, C.J., BATTAGLIA^* , GREENE, ADKINS, McDONALD, WATTS, HOTTEN, JJ.

HOTTEN, J.

In this case, we granted certiorari to consider whether the Circuit Court for Frederick County erred in denying Petitioner, Terrance Jamal Grant's motion to suppress, where it was “not clear” whether the officer detected the odor of marijuana before or after inserting his head into the passenger side window of the vehicle. We also consider whether, in affirming the judgment of the circuit court, the Court of Special Appeals applied the appropriate standard of review to the circuit court's factual findings and legal conclusions. For the reasons that follow, we shall reverse.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 6:03 p.m. on May 23, 2013, Deputy First Class Chad Atkins (“Deputy Atkins”) of the Frederick County Sheriff's Office, was patrolling Worthington Boulevard in an unmarked police vehicle when he observed a speeding vehicle being driven by Petitioner. As a result, Deputy Atkins, a certified radar and laser operator, activated his radar equipment and determined that the vehicle was traveling at a speed of 50 miles per hour in a 35 mile per hour zone. Deputy Atkins subsequently stopped Petitioner for the traffic violation.

Deputy Atkins approached the passenger side of Petitioner's vehicle, subsequent to Petitioner rolling down the window. Petitioner was the sole occupant. During the suppression hearing, Deputy Atkins testified that upon initial contact with Petitioner, he detected the odor of marijuana emanating from the vehicle. He further testified that he could not recall whether his head crossed the window's threshold while speaking with Petitioner. Deputy Atkins was familiar with the smell of marijuana, having received over one hundred hours of police training in controlled dangerous substances—including the identification of marijuana—and completing approximately one hundred drug-related arrests. Deputy Atkins also testified that the weather was windy and the odor of marijuana “quickly dissipated.” Approximately two to three minutes after Deputy Atkins initiated the stop, he returned to his vehicle and requested a nearby K–9 dog unit. Corporal Eyler¹ arrived approximately fifteen minutes later. Thereafter, Deputy Atkins returned to Petitioner's vehicle, and requested that he step out. While Deputy Atkins and Petitioner stood behind Petitioner's vehicle, Corporal Eyler began the K–9 dog scan.

While Corporal Eyler conducted the scan, Deputy Atkins informed Petitioner that he detected the odor of marijuana emanating from his vehicle. Petitioner admitted that there was pipe and a small amount of marijuana in the center console. Shortly thereafter, Corporal Eyler informed Deputy Atkins of a positive alert from Petitioner's vehicle. A search of the vehicle by Deputy Atkins revealed a film canister containing 1.6 grams of marijuana, as well as a smoking device containing burnt marijuana residue in the center console. Petitioner was placed under arrest and later released with a criminal citation. Petitioner subsequently moved to suppress the evidence seized from his vehicle, asserting that Deputy Atkins conducted an unconstitutional search when he inserted his head into the passenger window and detected the odor of marijuana.

Suppression Hearing

Petitioner's suppression hearing was held before the circuit court on January 6, 2014. Deputy Atkins testified on behalf of the State regarding his initial contact with Petitioner. On cross-examination, defense counsel sought clarification regarding the moment Deputy Atkins detected the odor of marijuana. The cross-examination proceeded, in relevant part, as follows:

[DEFENSE COUNSEL]: So when you stopped him, you got out of your car, did you smell marijuana?

[DEPUTY ATKINS]: Yes, on the initial contact.

[DEFENSE COUNSEL]: I said when you got out of your car did you smell marijuana?

[DEPUTY ATKINS]: You mean before I went up to his car?

[DEFENSE COUNSEL]: Yeah. Before, before you went up to his car did you smell marijuana?

[DEPUTY ATKINS]: No.

[DEFENSE COUNSEL]: Okay. Did you perform a sniff of his car?

[DEPUTY ATKINS]: Did, what do you mean by sniff?

[DEFENSE COUNSEL]: Like a dog. I'm saying did you specifically examine his car for, for the smell of marijuana?

[DEPUTY ATKINS]: You mean did I walk around the car and just sniff at, at his car?

[DEFENSE COUNSEL]: I understand the answer may be no.

[DEPUTY ATKINS]: No.

[DEFENSE COUNSEL]: 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?

[DEPUTY ATKINS]: If you call it leaning, it's when he rolled down his window and I made con—when I was speaking with him.

[DEFENSE COUNSEL]: Okay. Do you recall how you, how you positioned yourself when you were speaking with him?

[DEPUTY ATKINS]: 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—

[DEFENSE COUNSEL]: Okay. Do you recall if your head entered the window or not?

[DEPUTY ATKINS]: I don't know if my head entered through the window [pane] or not. I wouldn't of, you know, it, I, I don't know. Honestly.

[DEFENSE COUNSEL]: Okay. You wouldn't be surprised to find out that it did.

[DEPUTY ATKINS]: If I had crossed where the window glass was? No—

[DEFENSE COUNSEL]: Where the, where the pane—

[DEPUTY ATKINS]: —because sometimes—

[DEFENSE COUNSEL]: —would have been—

[STATE'S ATTORNEY]: 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.

[DEFENSE COUNSEL]: Thank you.

[DEPUTY ATKINS]: No, I, the, wouldn't, I wouldn't be surprised.

* * *

Following the parties' agreement regarding the admissibility and authenticity of the DVD traffic stop video, it was played in court. Although the point at which Deputy Atkins detected the odor of marijuana was not clear from the video, the court acknowledged that Deputy Atkins' head appeared to cross the window pane into the interior of Petitioner's vehicle.

Defense counsel subsequently moved to suppress the 1.6 grams of marijuana contained in a film canister in the center console of Petitioner's vehicle, arguing that an illegal search occurred in violation of the Fourth Amendment when Deputy Atkins inserted his head into the passenger window. Defense counsel further argued that the prolonged detention while awaiting arrival of the K–9 unit also violated the Fourth Amendment. The State countered that the traffic stop escalated to a narcotics investigation the moment Deputy Atkins detected the odor of marijuana, providing, “at a minimum,” reasonable articulable suspicion to justify Petitioner's detention.

After considering the evidence and arguments of counsel, the court rendered the following ruling:²

As this was a warrantless search the burden of course is on the State to show that the stop was reasonable and justified under the [F]ourth [A]mendment because of course as a general rule the [F]ourth [A]mendment prohibits searches and seizures without a warrant except in a certain specific number of [ ] exceptions....

In this case the [c]ourt finds the following facts. 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 [Petitioner] that was, appeared to be, to him to be exceeding the posted speed. Deputy Atkins 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. [Petitioner] 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 [Petitioner'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 [Deputy Atkins'] head would have broken the [pane] 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.

Based on those factors what Deputy Atkins chose to do at that time was to not conclude that there was probable cause to conduct [ ] a search of [Petitioner's] vehicle. Although case law clearly indicates that the test, that the police officer's, trained police officer's smelling of an odor of marijuana can perform the basis of probable cause to do a warrantless search and of course one of the exceptions permitted in the [F]ourth [A]mendment is if the officer has probable cause to search or arrest for an offense committed in his presence, which of course probable cause of a strong odor of marijuana would be evidence, probable cause that [Petitioner] was in possession of marijuana.

But [Deputy Atkins] was not, it wasn't a strong odor so he was not convinced. But it did create an articulable suspicion which was reasonable under the circumstances to detain [Petitioner] for further investigation until a K–9 unit could arrive. That further detention was approximately 15 minutes. I think that was [Deputy Atkins'] testimony on the stand and in reviewing the time frames on the, um, on the video that was very close. I think

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