Lewis v. State, No. 1115

CourtCourt of Special Appeals of Maryland
Writing for the CourtOpinion by Graeff, J.
PartiesRASHERD LEWIS v. STATE OF MARYLAND
Decision Date28 June 2018
Docket NumberNo. 1115

RASHERD LEWIS
v.
STATE OF MARYLAND

No. 1115

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017
June 28, 2018


SEARCH INCIDENT TO ARREST; PROBABLE CAUSE; ODOR OF MARIJUANA

When analyzing whether probable cause existed to effectuate a warrantless arrest, "'we examine the events leading up to the arrest, and then decide "whether these 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 probable cause to believe that marijuana is present, and therefore, the smell of marijuana emanating from a vehicle provides probable cause to believe that contraband or evidence of a crime will be in the vehicle authorizing a search of the vehicle. In determining whether the smell of marijuana gives probable cause to arrest a person, however, whether the person is in a vehicle or standing in a public place, the key inquiry is whether the circumstances sufficiently link that person to the suspected criminal activity. The odor of marijuana, if localized to a particular person, provides probable cause to arrest that person for the crime of possession of marijuana.

Here, the arresting officer smelled the odor of marijuana emanating from appellant's person. Although the possession of ten grams or less of marijuana has been decriminalized, the odor of marijuana remains evidence of a crime. Because the officer was able to localize the odor of marijuana to appellant, the officer had probable cause to arrest appellant and search him incident to that arrest.

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Circuit Court for Baltimore City
Case No. 417048006

REPORTED

Graeff, Nazarian, Arthur, JJ.

Opinion by Graeff, J.
Concurring Opinion by Arthur, J.
Dissenting Opinion by Nazarian, J.

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On July 24, 2017, Rasherd Lewis, appellant, pleaded not guilty, pursuant to an agreed statement of facts, to the charge of wearing, carrying, or transporting a handgun. The Circuit Court for Baltimore City found him guilty and imposed a sentence of three years' imprisonment, all but 90 days suspended, to be followed by three years of supervised probation.

On appeal, appellant contends that the circuit court erred in denying his motion to suppress the handgun recovered from his person.1 For the reasons set forth below, we disagree, and therefore, we shall affirm the judgment of the circuit court.

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FACTUAL AND PROCEDURAL BACKGROUND

On February 1, 2017, Officer David Burch, Jr., an officer with the Baltimore City Police Department, received a tip that a black male, "with a certain clothing description" and a red bag, was in possession of a handgun in the area of Eutaw Street and Saratoga Street in Baltimore City. Officer Burch testified that the tip was "from a source of information," who was not a confidential informant, but rather, someone that Officer Burch had come into contact with who provided him information and "didn't want any monetary . . . gains out of it." Officer Burch testified that he had received information from this source for "a little less than a month," and the information had been reliable.2

After Officer Burch received the tip, he notified City Watch, individuals monitoring cameras in Baltimore City, that "there was a potentially armed individual in the 400 block of W. Saratoga," and he advised the operator of the description provided. City Watch subsequently identified an individual matching the description provided inside Bag Mart, located at 401 W. Saratoga Street. City Watch advised Officer Burch of this location.

Officer Burch was familiar with Bag Mart because the police received "numerous calls in reference to that store," and a lot of individuals sold drugs there. Moreover, the area surrounding the 400 block of W. Saratoga was known to Officer Burch as an "open air drug market" and "a high crime area." Officer Burch was qualified as an expert in the identification and packaging of marijuana, and he testified that there was "no other odor

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like the odor of marijuana." He further testified that there was no difference in the odor of marijuana based upon the amount present.

When City Watch notified Officer Burch of appellant's location at Bag Mart, he and five other officers responded. Officer Burch explained that, when approaching someone who could be armed, the police "go in there, strength in numbers."

Bag Mart was a small store. When the officers arrived, it was crowded inside. Officer Burch smelled an odor of marijuana when he entered the store. He saw appellant with a red bag, located near the register. Appellant had some money in his hand and was moving towards the exit as if he had just made a purchase. Other customers, located in front of appellant, were in the process of exiting the store when the officers arrived.

Officer Burch approached appellant. When he was "literally right in front of" appellant, Officer Burch "smelled an odor of marijuana emitting from [appellant's] person." Officer Burch stated that the odor "could have been from his breath when I was speaking with him or on his person." Officer Burch then stopped appellant, based on "the odor of marijuana and the information that [he] received," searched appellant, and found a handgun in the red bag, which he described as a satchel.3 Officer Burch admitted that he did "place [his] hands on [appellant] to [] detain him, to stop him."

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Officer Burch told appellant to put his hands up and guided appellant's hands up with his own. At that time, Officer Curtis was standing behind appellant.4 Officer Burch testified that, when he told appellant to put his hands up, appellant subsequently brought his hands down, which was "an indicator" for the police, so "for everyone's safety," they put appellant in handcuffs.

While Officer Curtis was handcuffing appellant, Officer Burch searched appellant. In addition to finding a firearm in the red bag, Officer Burch recovered a zip lock baggie containing less than 10 grams of marijuana from appellant's jacket, as well as miscellaneous packaging material, believed to be for packaging marijuana.

In response to appellant's motion to suppress the items seized during the search, the State argued that Officer Burch testified to two grounds to stop and search appellant: (1) the tip that a person matching appellant's description had a handgun; and (2) the odor of marijuana. With respect to the odor of marijuana, the State explained that Officer Burch testified that he smelled it "on [appellant's] breath, on his person," and the odor of marijuana provided Officer Burch "the basis to permit a search."

Defense counsel first addressed the initial stop, asserting that there was no "reasonable, articulable suspicion for the initial stop and seizure of [appellant's] person." She contended:

[I]t was clear from Officer Burch's testimony that the reason that he went to the store, that his purpose of going to the store was to stop [appellant] based solely on the information that he received from a tip from the source who he described not as an informant, but as some individual he has had contact with,

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but did not give further information as to exactly the nature of the contact or any benefit that individual might have been receiving.

Defense counsel argued that an anonymous tip providing a physical description of a person, without more, was insufficient to provide reasonable suspicion of wrongdoing.

"[S]econd and independent of that," counsel argued, there was "not a [] justification for a search of [appellant's] person and . . . there [was] immediately a full blown search of his person." She argued that there was not a Terry frisk,5 but rather, there was a "full blown search" and "no lawful arrest that precede[d] this [] stop. So there [was] no lawful exception to the warrant requirement." Counsel argued that a person could not "lawfully be arrested for possession of less than ten grams of marijuana."

Defense counsel argued that the body-camera video showed that the police immediately grabbed appellant by the shoulder, and he was "already stopped and seized and [Officer Burch] already [began] this search," so the police could not "retroactively justify something based on [] something [the police] detects later," and he "can't search a person based on something that is an odor in the [] room." Counsel concluded by saying that the smell of marijuana does not justify a search of a person, and even if there was reasonable suspicion for the initial detention, the police could not "just immediately . . . begin to rummage [a] person's clothing, the pockets and bag."

In rendering its decision, the court noted that the tip led the officers to the store:

In this case, the police officer's suspicions that [appellant] was carrying a red handbag with a gun arose not from his own individual observation . . ., but solely from a person whose information the officer had indicated that he had relied upon for the past month. In the case of being no

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demonstration of the tipster's basis of knowledge, although the officer testified that his information had been reliable in the past.

Um, now there are situations in which a tip, [] suitably corroborated[,] makes sufficient indicia of reliability to provide a reasonable suspicion to make an investigatory stop. Standing alone, the Court does not find that the tip itself justifies the Terry stop per Alabama v. White, 496 U.S. 325.

The court continued to discuss the case law, noting that reasonable suspicion "requires that a tip be reliable in its assertion of illegality . . ., not just in a tendency to identify the determined person." (quoting Florida v. J.L., 529 U.S. 266 (2000)).

After finding that the tip did not justify the stop, the court stated that its "analysis does not end there." The court stated:

The officer in this case testified that not only did he detect the odor of marijuana in the
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