Smith v. State, No. 1738

CourtMaryland Court of Special Appeals
Writing for the CourtOpinion by Battaglia, J.
Docket NumberNo. 1738
Decision Date14 August 2019


No. 1738


September Term, 2017
August 14, 2019

Circuit Court for Anne Arundel County
Case No.: C-02-CR-17-000313


Friedman, Beachley, Battaglia, Lynne, A. (Senior Judge, Specially Assigned), JJ.

Opinion by Battaglia, 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.

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Appellant, Jaquan Lamar Smith, entered a conditional guilty plea to one count of unlawful possession of a regulated firearm in the Circuit Court for Anne Arundel County. He was sentenced to ten years' imprisonment, with all but five years suspended. On appeal, in asking this Court to reverse the judgment of the Circuit Court, Smith presents the following question for our review:

Did the lower court err in denying Mr. Smith's suppression motion?

For the reasons set forth below, we shall answer Smith's question in the negative and shall affirm the judgment of the Circuit Court.


The following facts were elicited at the pre-trial suppression hearing, which was triggered by Smith having filed a motion to suppress a handgun and drugs found during a search of his person, based upon his allegation that there was no legal basis for the search, because, as he averred, the odor of marijuana emanating from a person, as opposed to a car, does not provide sufficient probable cause to search a person. In the alternative, the State argued below that police officers could have arrested Smith on probable cause for failure to obey a lawful order, a contention with which Smith disagreed, arguing that he did obey the police officer's order and his subsequent actions could not constitute the underlying factual predicate of that offense.

At around 2:16 a.m. on the morning of January 22, 2017, Corporal Teare1 of the Anne Arundel County Police Department responded to a call at a home in Glen Burnie,

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Maryland to investigate a "[p]ossible domestic" situation. Upon arrival, Corporal Teare parked at the end of a 150-foot driveway, close to the street, as he "observed a lot of vehicles in the driveway" and "didn't want to pull into it." He also observed "lots of people" outside of the residence, many of whom "appeared to be juveniles." Corporal Teare got out of his vehicle and began walking up the driveway, when "approximately maybe 75 feet or so from the house," he heard "somebody running from behind [him] like towards [him]." Corporal Teare "was definitely startled and scared at first," because he "didn't know why anybody was running up behind" him.

When he turned around, Corporal Teare saw a man eventually identified as Jaquan Smith wearing a blue hoodie and gray jeans; the officer yelled, "[s]top running, show me your hands!" Corporal Teare testified that he used a "loud and authoritative" tone with Smith because he "was not expecting anybody to come running up behind" him "like that, so I was in fear for my life." In response, Smith stopped running, "put his hands up in the air," and said "I've got to go back into the house. I just gotta get something." Corporal Teare responded, "[s]top, just leave. . . . Everybody's going to be leaving. . . . Don't go to the house." When the men were about two feet from each other, Corporal Teare could smell "a strong odor of suspected marijuana emitting from [Smith], from his person[.]" He, however, could not determine whether the odor of marijuana smelled to be either "fresh or raw." Smith, nonetheless, disregarded Corporal Teare's command and began to run in the direction of the house, toward the back yard. Corporal Teare also testified that as Smith ran by him, he observed "a bulge on the right side of his waistband," which appeared to likely be "CDS, like drugs, possible marijuana. Like a sack of marijuana."

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Corporal Teare then approached the right side of the house because he "heard a lot of yelling and screaming . . . from the rear of the residence, like the back yard area." After speaking with some individuals in the backyard, Corporal Teare learned that "Amanda" resided in the home and had hosted a party. As Corporal Teare approached the opened-back door of the house, he could see that there were a lot of people inside and heard "more arguing and yelling" coming from within. Shortly thereafter, Corporal Teare found Amanda, who informed him that she had thrown a party, "but didn't expect there to be this many people and that she was sorry. And that she wanted everybody to leave." Amanda requested that Corporal Teare "make them leave[.]"

Corporal Teare then began to go through different rooms in the home, opening doors, announcing that he was with the Anne Arundel County Police and instructing everyone to leave. In one of the hallways, Corporal Teare came upon a door that was locked, which turned out to be a bathroom that Amanda unlocked with a screwdriver. When she opened the door, Corporal Teare saw four individuals inside, to include Smith, the individual he had previously identified outside in the driveway. The Corporal then told the occupants to leave, but as Smith walked past, Corporal Teare, again, "smelled a very strong odor of suspected marijuana emanating from his person and it was very strong, fresh marijuana from [Smith]." Corporal Teare informed Smith that he could smell "the suspected marijuana on him, and that he was going to be - he wasn't free to go, he was being detained at that point." Corporal Teare grabbed Smith's wrist and moved Smith toward the living room.

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Corporal Teare testified, though, that, at this point, he had a "bit" of difficulty in trying to stop Smith. Smith stated "[n]ah, I just gotta go, I just gotta leave" and "started to tense up and he, you know, wanted to pull away a little bit." Corporal Teare further explained that Smith "locked his arms out and wasn't listening to my commands. Wasn't just letting me turn him around to put him in handcuffs."

Officer Julio Nuñez, also with the Anne Arundel County Police Department, then just entering the house, witnessed Corporal Teare struggling to place Smith in handcuffs. After Corporal Teare got Smith on his stomach on the ground, Officer Nuñez assisted as Smith was "passively resisting . . . . [H]e was just tensing up. Wouldn't bring his arms around his back. He just kept on like locking his arms."

After the officers placed Smith in handcuffs, Officer Nuñez was instructed to search him while Corporal Teare returned to the bathroom to check for any evidence "or anything that they were trying to get rid of or take." Corporal Teare testified that he did not conduct the "search" of Smith because

there was still other people in the house, so for two reasons. I guess it was that, just for officer safety, and [Officer Nuñez] was in the better position where I could keep an eye on everybody, but then also I went right to the bathroom where [Smith] had come out of, because I was afraid that somebody might be trying to either take or destroy other evidence.

Corporal Teare also testified that he placed Smith in handcuffs because he did not "want him to leave. I mean I had to identify him[.]" He further testified on cross-examination that he chose to place Smith in handcuffs because Smith "wasn't listening to me when I originally saw him, when I was walking towards the house, and then now when I told him

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you know, he was going to be detai[n]ed, he started to pull away and he was tensing up and didn't want me to hold onto him."

Officer Nuñez, moreover, testified that, after Smith was handcuffed, he conducted a "pat down" of Smith. Officer Nuñez stated that, "[b]efore I search I typically pat down for weapons before I go on to the search. And in the middle I felt something, like a small bulge, but it was something soft. . . . And then I went towards the right and I felt in his right pocket definitely a hard object that did feel like a gun." The object, Officer Nuñez stated, "was hard, it had a L shape. Training, knowledge and experience I knew it was a gun right away." Officer Nuñez then proceeded to remove the handgun from Smith's waistband, handing it to Corporal Teare. Upon a search of Smith's person, Officer Nuñez found fresh marijuana, a scale and seventy-four empty baggies. Later, at the police station, a bag of cocaine was found on Smith, as well as $258.00.

At the hearing, Smith testified that he was not the individual Corporal Teare stopped outside the house in the driveway and that his first interaction with the police at the party in Glen Burnie was when Corporal Teare opened the bathroom door. He stated that, when he "heard the police coming," he "wanted to wait it out until they left" and remained in the bathroom with three strangers.

Judge Cathleen Vitale of the Circuit Court for Anne Arundel County, after hearing testimony and arguments, orally denied Smith's motion to suppress, explaining:

[T]here is no doubt in the Court's mind - the Court first of all does find the officers who testified in the proceedings to be credible. And I find that the following, that was testimony to be pervasive or persuasive in this case, and that is that Officer Teare indicates that he's called to the scene. At

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the time that he's called to the scene he is going down the driveway, he's going to a home where we now know there was a party going on that appeared to get out of hand. As he is heading towards the house, running past him is a gentleman who he identifies to be the Defendant in this case, Mr. Smith, and he is told to stop, to show me your hands. He says he does that at that time, in a loud authoritative voice. He's about two feet from him and at that time there's no question that Mr. Smith puts his hands up. He may have stopped for a brief moment, but as we know, he didn't stay put. The officer indicates he has a strong odor

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