State v. Harding, 637, September Term, 2005.

CourtCourt of Special Appeals of Maryland
Citation166 Md. App. 230,887 A.2d 1108
Docket NumberNo. 637, September Term, 2005.,637, September Term, 2005.
PartiesSTATE of Maryland v. Donovan Anthony HARDING.
Decision Date07 December 2005

Mary Ann Ince (Kathryn Grill Graeff, J. Joseph Curran, Jr., Atty. Gen., on brief), for appellant.

Stephen B. Mercer (Rene Sandler, on brief), Rockville, for appellee.



In this case, the State appeals from an order granting a motion to suppress evidence discovered during a search of the appellee's vehicle. The motions court suppressed evidence of marijuana and a handgun found in the modified air bag compartment of appellee's vehicle. We shall reverse the decision of the Circuit Court for Prince George's County, and remand the case for further proceedings.


When State Trooper J.D. Cameron stopped Donovan Anthony Harding, appellee, for speeding on Interstate 95 in Prince George's County, the police officer immediately smelled a strong odor of burnt marijuana emanating from the passenger compartment of Harding's Toyota Tundra pickup truck. The officer promptly called for backup, and after a second trooper arrived, searched Harding's vehicle inside and out for the source of the odor. The search initially turned up a number of pine-tree air fresheners.

After searching for approximately eight minutes, having failed to discover the source of the marijuana odor in any of the readily accessible areas of the vehicle, Trooper Cameron began to search for hidden compartments in the vehicle. The officer had learned during the course of his drug-interdiction training that a vehicle's air bag compartment could be modified and used for hiding contraband. Using a screwdriver, the officer pried up the cover of the passenger-side air bag compartment and discovered that the air bag had been removed. A hydraulic piston had been attached to the cover. In the air bag compartment were a pistol, a plastic bag that appeared to contain marijuana, and a partially-smoked marijuana joint.

Less than ten minutes after the search of the vehicle commenced, when the contraband in the air bag compartment was discovered, Harding was placed under arrest. The police officers had Harding's truck towed to their barrack, where they continued their thorough search of the vehicle. As a result of that further search, the officers discovered a large package of additional marijuana hidden in a spare tire that was in the covered bed of the pickup truck. Harding was charged with illegal possession of narcotics and the handgun.

Harding moved to suppress the evidence that was discovered in the truck. At the hearing on the motion to suppress, Trooper Cameron was the only witness to testify. An audio-video recording of the traffic stop and search was also introduced at the suppression hearing. Cameron described his traffic stop of Harding for speeding (traveling 73 miles per hour when the speed limit on Interstate 95 was 65 miles per hour). Cameron testified that he detected a very strong odor of marijuana as soon as he approached Harding's pickup truck and spoke to Harding, while Harding was still seated in the driver's seat. Cameron was of the opinion that the odor of marijuana gave him the authority to conduct "a probable cause search" of Harding's vehicle. Cameron noted that he had received training in drug interdiction that included training regarding the alteration and use of air bag compartments for hiding drugs. He explained that he decided to probe Harding's air bag compartment because the seam did not look quite straight. Cameron also testified that he eventually discovered the air bag compartment in Harding's vehicle had been fitted with a hydraulic piston and electrical wiring that enabled the cover of the air bag compartment to be remotely opened and closed.

The motions judge expressly found Trooper Cameron "to be a credible witness" who had been with the State Police for several years. The motions judge further credited the officer's testimony that Harding was initially stopped for driving 73 in a 65 mile per hour zone. The motions judge also accepted as credible Trooper Cameron's testimony regarding the odor of marijuana. The judge stated: "[W]hen [Trooper Cameron] first approached the defendant's vehicle [he] smelled an odor of burnt marijuana. His training was such that he was able to detect that. He used to detect that odor in the past. I accept that testimony as credible."

The motions judge noted that "after 32 minutes," and after Cameron had made a comment (recorded on the tape) surmising that Harding probably ate the marijuana cigarette, Cameron used a screwdriver to pry open the air bag compartment, where Cameron found marijuana and a gun.

After reviewing the facts, the motions judge framed the dispute as a question of whether the police officer had probable cause to open the air bag compartment, noting, "[the prosecutor] has argued that there was probable cause to open the air bag compartment. [Defense counsel] has argued that there did not exist probable cause to open the air bag compartment." The court focused upon two cases cited by Harding in support of the suppression motionFerris v. State, 355 Md. 356, 735 A.2d 491 (1999), and Charity v. State, 132 Md.App. 598, 753 A.2d 556, cert. denied, 360 Md. 487, 759 A.2d 231 (2000)—and granted the motion to suppress, stating:

I conclude for purposes of this hearing that when Trooper Cameron detected the [odor] of marijuana he had a reasonable articul[able] suspicion that criminal activity was a[]foot. And was justified in [co]nducting a search of the interior of the vehicle.

Now, the question now becomes to what extent was the Trooper justified in searching the interior of the vehicle. And if indeed he was so justified as I concluded based on reasonable articul[able] suspicion how long could that go on.

* * *

. . . This search continued as I said some 32 minutes. And I may be off a minute or two on the low side. And before any contraband either the gun and marijuana was found. There is no hard and fast rule as these case[s] point [out] . . . as to how long a search shall continue. But, the authority (unintelligible) reference what seems to be a reasonable period of time. . . .

What is troubling in this particular case and this is no reflection upon the integrity of Trooper Cameron, but when he took the screwdriver to pry open the air bag compartment that [sic] the sense it was not flush with an air bag, but contained something other than that. I have to respectfully disagree with [the prosecutor]. I knew that there was not probable cause to go into that compartment. Reasonable articula[ble] suspicion certainly had terminated on [sic] concluded by the first 30 minutes wherein all the obvious compartments that were not locked had been opened and no contraband had been found. And what is also important here is that Trooper Cameron had stated that he suspected, although he wasn't certain, that the defendant may indeed had [sic] swallowed the marijuana cigarette that may have caused permeation odor of burnt marijuana.

This is not something that I relish. But, it's something I believe the authority dictate [sic]. I conclude that there was not probable cause to go ahead and open the closed air bag compartment on the passenger side. And I must conclude that the motion to suppress evidence is granted. That means anything else that flowed therefrom[, counsel,] must also be suppressed because that obviously flows from that search.

Certainly, it may be appealed. And I may be wrong.

Pursuant to Md.Code (1973, 2002 Repl.Vol.), Courts and Judicial Proceedings Article, § 12-303(c)(3), the State exercised its option to pursue an interlocutory appeal of the circuit court's decision to suppress this evidence that is critical to the State's case.


It is not clear whether the motions judge ultimately based his ruling upon a determination that the search took too long to discover the hidden compartment, or whether the ruling was based upon the assumption that the officer needed particularized probable cause to search the air bag compartment. In either event, we conclude the circuit court was in error.

In our view, the initial traffic stop was clearly justified by Harding's speeding. After making the traffic stop, as soon as the police officer detected a strong odor of marijuana coming from inside the pickup truck, there was probable cause to search the vehicle, including any hidden compartments, for concealed marijuana. When the officer then discovered contraband hidden in the air bag compartment, there was additional probable cause to take Harding into custody and tow the vehicle to the police station for the continued searching that led to the discovery of the drugs hidden in the spare tire. Harding's motion to suppress should have been denied.1

1. Standard of Review

In reviewing a lower court's ruling on a motion to suppress, this Court extends "great deference to the fact finding of the suppression court and accepts the facts found by that court unless clearly erroneous." Nathan v. State, 370 Md. 648, 659, 805 A.2d 1086 (2002), cert. denied, 537 U.S. 1194, 123 S.Ct. 1303, 154 L.Ed.2d 1029 (2003). We are limited to considering the evidence introduced at the suppression hearing, and the inferences therefrom that are most favorable to the party who prevailed on the motion. In Re Tariq A-R-Y, 347 Md. 484, 488, 701 A.2d 691 (1997), cert. denied, 522 U.S. 1140, 118 S.Ct. 1105, 140 L.Ed.2d 158 (1998). But the ultimate decision on whether the evidence was seized in violation of the law is made independently of the lower court's decision. Laney v. State, 379 Md. 522, 534, 842 A.2d 773 (2004) ("We make our own constitutional appraisal as to whether an action taken was proper, by reviewing the law and applying it to the facts of the case."). The U.S. Supreme Court noted in Ornelas v. U.S., 517 U.S. 690, 697, 699-700, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), that...

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