Wilson v. State

• Decision Date: 02 May 2007
• Docket Number: No. 2185, Sept. Term, 2005.,2185, Sept. Term, 2005.
• Citation: 921 A.2d 881,174 Md. App. 434
• Parties: Mario McLorren WILSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

921 A.2d 881

174 Md. App. 434

Mario McLorren WILSON v. STATE of Maryland.

No. 2185, Sept. Term, 2005.

Court of Special Appeals of Maryland.

May 2, 2007.

David P. Kennedy (Nancy S. Forster, Public Defender, on brief), Baltimore, for appellant.

Carrie J. Williams (Douglas F. Gansler, on brief), Baltimore, for appellee.

Panel HOLLANDER, KENNEY^* and LAWRENCE F. RODOWSKY, (Retired, specially assigned), JJ.

KENNEY, J.

During a traffic stop, a Maryland State Trooper recovered six and one-half pounds of marijuana from a suitcase in the trunk of a rental vehicle that appellant, Mario Wilson, was driving. Following a bench trial in the Circuit Court for Worcester County, appellant was found guilty of possession of marijuana with intent to distribute. He was sentenced to two years' imprisonment.

Prior to trial, appellant moved to suppress evidence of the marijuana recovered from the trunk of his vehicle. The denial of that motion is the subject of this appeal. Appellant presents one question, which we have rewritten as follows:¹

Does the odor of burnt marijuana emanating from the passenger compartment of a vehicle, by itself, establish probable cause to search the vehicle's trunk under the automobile exception to the warrant requirement of the Fourth Amendment?

For the following reasons, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL HISTORY

On October 27, 2004, Maryland State Police Trooper Larry Fortino was operating radar in an unmarked patrol vehicle on U.S. 13 in Worcester County. Radar indicated that a gray Chevy Impala with Virginia tags was traveling southbound at 62 miles per hour in a 55 mile per hour zone. A traffic stop was initiated. When the vehicle pulled off onto the shoulder of the highway, appellant was driving the vehicle. Another person was in the passenger seat.

Trooper Fortino approached the vehicle and asked appellant for his driver's license and registration. Appellant produced a Virginia driver's license and a rental agreement for the vehicle. He became argumentative, claiming that he frequently traveled U.S. 13 and had never before been stopped.

While Trooper Fortino conversed with appellant, he smelled "an odor of burnt marijuana emanating from the vehicle." He informed appellant that the odor had been detected and asked him to exit the vehicle. Appellant denied having marijuana in the car. By this time, a deputy with the Worcester County Sheriff's Office arrived at the scene. The deputy remained with appellant while Trooper Fortino walked around to the passenger side of the vehicle and asked the passenger to exit the car.

The deputy searched the vehicle's interior, including the glove compartment and ashtray, in addition to the air filter and hubcaps. No evidence of a crime was discovered during the search. Appellant's car key was used to open the trunk of the vehicle. Inside, six and one-half pounds of marijuana were recovered from a black suitcase. The record indicates that either the deputy or Trooper Fortino had requested the assistance of a drug-detecting dog, which did not arrive until after the contraband had been recovered.

On December 8, 2004, appellant was charged with possession of marijuana with intent to distribute. Appellant filed a motion to suppress the marijuana recovered from the vehicle. Following a hearing, the motion was denied. On July 12, 2005, the case proceeded on an agreed statement of facts that included the following:

A full search of the vehicle was conducted. Two large packages were located in a black suitcase in the trunk. The packages contained a large amount of suspected marijuana.

* * *

The evidence was submitted for analysis to the Maryland State Police crime lab, who tested it, and determined that it was in fact marijuana. It was approximately six and a half pounds of marijuana.

STANDARD OF REVIEW

"In considering a denial of a motion to suppress, we are limited to the record of the suppression hearing." Whiting v. State, 160 Md.App. 285, 300, 863 A.2d 1017 (2004). Where, as here, the circuit court does not make factual findings on the record,

the appellate court will accept that version of the evidence most favorable to the prevailing party. It will fully credit the prevailing party's witnesses and discredit the losing party's witnesses. It will give maximum weight to the prevailing party's evidence and little or no weight to the losing party's evidence. It will resolve ambiguities and draw inferences in favor of the prevailing party and against the losing party.

Morris v. State, 153 Md.App. 480, 490, 837 A.2d 248 (2003). As a question of law, we review, de novo, whether appellant's motion to suppress was properly denied. In re David S., 367 Md. 523, 529, 789 A.2d 607 (2002).

DISCUSSION

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment ordinarily requires that a warrant be secured prior to conducting a search. Maryland v. Dyson, 527 U.S. 465, 466, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999). An exception to the warrant requirement is the "automobile exception," known as the "Carroll Doctrine." State v. Harding, 166 Md.App. 230, 241, 887 A.2d 1108 (2005). "If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the vehicle without more." Dyson, 527 U.S. at 467, 119 S.Ct. 2013 (quoting Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996)).

In Daniels v. State, 172 Md.App. 75, 89, 913 A.2d 617 (2006), we explained probable cause as follows:

[P]robable cause is a flexible, commonsense standard. It merely requires that the facts available to the officer would "warrant a man of reasonable caution in the belief," Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such belief be correct or more likely true than false. A "practical, non-technical" probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); Riddick v. State, 319 Md. 180, 194-95, 571 A.2d 1239 (1990).

In a probable cause analysis, we consider the "totality of the circumstances." Cox v. State, 161 Md.App. 654, 669, 871 A.2d 647 (2005).

We have held that the odor of burnt marijuana, alone, affords probable cause to search the passenger compartment of a vehicle under the "automobile exception." In Harding, 166 Md.App. at 233, 887 A.2d 1108, "a strong odor of burnt marijuana emanating from the passenger compartment" of the defendant's pickup truck provided probable cause to search the passenger compartment of his vehicle. A search of the air bag compartment resulted in the recovery of a pistol, a bag of marijuana, and a partially-smoked marijuana cigarette. Id. After the defendant's arrest, "the officers discovered a large package of additional marijuana hidden in a spare tire that was in the covered bed of the pickup truck." Id.

On review, we stated:

Any question as to whether the odor of marijuana alone can provide a police officer probable cause to search a vehicle was dispelled by the Supreme Court in United States v. Johns, 469 U.S. 478, 482, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985), where Justice O'Connor wrote for the Court: "After the officers came closer and detected the distinct odor of marijuana, they had probable cause to believe that the vehicle contained contraband." To similar effect, see Ford v. State, 37 Md.App. 373, 379, 377 A.2d 577 ("knowledge gained from the sense of smell alone may be of such character as to give rise to probable cause for a belief that a crime is being committed in the presence of the officer"), cert. denied, 281 Md. 737 (1977). See also United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (smell of mash whiskey); Seldon v. State, 151 Md.App. 204, 232, 824 A.2d 999 (odor of cocaine, if believed, would have established probable cause), cert. denied, 377 Md. 114, 832 A.2d 206 (2003); Mullaney v. State, 5 Md.App. 248, 257, 246 A.2d 291 (1968) ("That the smell of distinctive odors can constitute evidence of crime and of probable cause is well settled."), cert. denied, 252 Md. 732 (1969); Andrea L. Ben-Yosef, Annotation, Validity of Warrantless Search of Motor Vehicle Based on Odor of Marijuana-State Cases, 114 A.L.R.5th 173, 189 (2003) ("The majority of courts have found that the odor of marijuana alone supplies the probable cause for a warrantless search."); Andrea L. Ben-Yosef, Annotation, Validity of Warrantless Search of Motor Vehicle Based on Odor of Marijuana-Federal Cases, 188 A.L.R. Fed. 487, 497 (2003) (same).

Id. at 240, 887 A.2d 1108.

We have stated that "[m]any of the cases applying the Carroll doctrine have found probable cause to search the trunk of a motor vehicle based on evidence apparent to a police officer after a lawful search of the passenger compartment of the vehicle." Whiting v. State, 125 Md. App. 404, 415, 725 A.2d 623 (1999) (and cases cited therein). In this case, the search of the passenger compartment of the vehicle produced no additional evidence of the presence of marijuana in the vehicle. Appellant contends that, under the circumstances, any probable cause to search the passenger compartment of a vehicle based solely on the odor of burnt marijuana would not extend to the vehicle's trunk.

In United States v. Ross, 456 U.S. 798, 824-25, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Supreme Court explained:

The scope of a...