Bowling v. State

GRAEFF, J. On February 20, 2015, Joshua Paul Bowling, appellant, was charged by criminal information in the Circuit Court for Wicomico County with possession of marijuana with the intent to distribute, as well as other drug related offenses and several traffic offenses. 1 Appellant subsequently filed a motion to suppress, which the circuit court denied. On June 17, 2015, appellant entered a conditional plea of guilty on the charge of possession of marijuana with the intent to distribute, and the State entered a nolle prosequi on each of the remaining counts. 2 ⁴⁶² On appeal, appellant raises the following issue for this Court’s review: Did the positive alert of a drug dog that is certified to detect marijuana, along with other controlled dangerous substances, furnish probable cause to search appellant’s motor vehicle, given the decriminalization of small amounts of marijuana and the drug dog’s inability to distinguish between the odor of less than 10 grams of marijuana and 10 or more grams of marijuana? For the reasons set forth below, we answer that question in the affirmative, and accordingly, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On January 2, 2015, at approximately noon, Officer Brian Barr, a member of the Salisbury Police Department, was patrolling in his vehicle in Salisbury, Maryland.

Officer Barr saw appellant driving, and due to prior dealings with appellant, including a stop for driving under the influence (“DUI”), to which appellant had pleaded guilty, Officer Barr believed that appellant’s driver’s license was suspended. 3 Officer Barr decided to follow appellant’s vehicle, and he observed appellant fail to signal during two turns. After appellant made the second illegal turn, Officer Barr activated his lights and initiated a traffic stop. When Officer Barr approached appellant’s vehicle, he noticed that appellant’s hands were shaking, appellant was avoiding eye contact, and he “appeared very nervous.” Appellant ⁴⁶³ provided Officer Barr with a “Maryland ID card” and the vehicle’s registration, and Officer Barr returned to his vehicle to continue the traffic stop. 4 At that point, given appellant’s suspicious behavior, and Officer Barr’s knowledge that appellant had an “extensive history with controlled dangerous substances,” Officer Barr called for a K-9 unit. As Officer Barr was getting into his vehicle, appellant got out of his vehicle.

For safety reasons, Officer Barr told appellant to get back into his vehicle. He .explained: “It’s very dangerous for an officer to have his or her head down doing any paperwork that is needed to be done to continue a traffic stop while a subject that has been stopped is out of the car wandering around.” Officer Barr’s concern was increased in this case because he knew that appellant had a prior “weapons charge.” Appellant responded that he could not get back in his car because he had locked the keys inside and could not open the door. At that point, for safety reasons, Officer Barr called for an additional officer to stand by appellant while Officer Barr completed the traffic stop. Officer Barr waited with appellant until backup arrived.

At 12:20 p.m., Deputy J.C. Richardson, a member of the Wicomico County Sheriffs Office, arrived on the scene with his drug dog, Diablo. Deputy Richardson testified that Diablo was certified and licensed to detect the odors of marijuana, cocaine, heroin, methamphetamines, and MDMA (ecstasy). Diablo’s behavioral signals that alert that he has detected the presence of CDS were the same for all five drugs. The dog’s sense of smell was sensitive enough to pick up minute amounts ⁴⁶⁴ of a substance, and Diablo could not communicate the amount of a substance detected.

Deputy Richardson had Diablo sniff the exterior of appellant’s vehicle. Diablo alerted when passing the rear driver’s side door. After the K-9 alert, another officer arrived to watch appellant, and Officer Barr continued with the traffic stop. He confirmed that appellant’s driver’s license was, in fact, suspended.

He arrested appellant for driving with a suspended license. Because appellant’s vehicle was locked with the keys inside, Officer Barr intended to tow the vehicle to the police station, where he would conduct an inventory search. When the tow truck arrived, however, the tow truck driver stated that it was company policy to open a vehicle and retrieve the keys if they could observe them inside. After the tow truck driver opened appellant’s vehicle, Officer Barr decided to search the vehicle at the scene, as opposed to the police station.

The search revealed 198.2 grams of marijuana, a “smoking device,” a scale, a large sum of cash, and a single OxyContin tablet (5 milligrams) inside a cigarette carton. Prior to the date of trial, appellant filed a motion to suppress the evidence found in his car, raising two grounds. First, he argued that the initial traffic stop was unlawful. This argument was rejected and is not challenged on appeal.

Second, appellant argued, as he does on appeal, that Officer Barr lacked the legal authority to conduct a warrantless search of his vehicle, relying on the law passed by the Maryland General Assembly in 2014, which decriminalized possession of less than 10 grams of marijuana. Appellant asserted that, because Diablo could not distinguish between the quantity of marijuana that constituted a criminal offense and the quantity that constituted a civil offense, the dog’s alert did not provide probable cause to believe a crime had occurred, and ⁴⁶⁵ therefore, the warrantless search of the vehicle violated his Fourth Amendment rights. The State argued that, because Diablo could detect heroin, cocaine, methamphetamines, or MDMA, there was a fair probability that Diablo was alerting to the presence of these other drugs, and therefore, the alert provided Officer Barr with probable cause to search appellant’s vehicle pursuant to the Carroll doctrine. 5 The State also argued that marijuana is still considered “contraband,” even though the possession of small amounts of it results only in a civil infraction, and therefore, an officer properly could search for it if he or she had probable cause to believe that it was present in the vehicle. On June 10, 2015, the circuit court denied appellant’s motion.

The court stated: [T]he dog in this case is trained to alert to the presence of marijuana, heroin, cocaine, methamphetamines, and MDMA. Diablo’s alert was not limited to the presence of marijuana, where possession of a specified amount is not a criminal infraction. Based upon the alert in this case, the substance found could have been any number of illegal substances. This fact alone gave the officers sufficient probable cause to search the vehicle.

DISCUSSION Appellant contends that the circuit court “erred by ruling that an alert from a drug dog that can detect and alert to marijuana along with other substances provides probable cause to search a vehicle.” He notes that, in 2014, the Maryland General Assembly decriminalized the possession of less than ten grams of marijuana, and therefore, he argues, at the time of his offense, possession of less than ten grams of marijuana was a civil offense, which did not warrant searches and arrests. Appellant asserts that, because Diablo did not ⁴⁶⁶ have the ability “to distinguish between a criminal quantity of marijuana and a noncriminal quantity,” the alert did not provide probable cause to believe that evidence of a crime was present in the vehicle, as opposed to items associated with a civil infraction. 6 The State contends that the circuit court properly denied appellant’s motion to suppress. It asserts that a K-9 alert to the odor of marijuana, by itself, provides probable cause to believe that the vehicle contains contraband, and therefore, it permits a Carroll doctrine search of a vehicle, notwithstanding the recent decriminalization of possession of less than 10 grams of marijuana. Alternatively, it argues that the totality of the circumstances, including the K-9 alert, Officer Barr’s knowledge of appellant’s prior “weapons charge” and “extensive history of controlled dangerous substances,” and appellant’s nervousness during the traffic stop, provided the requisite probable cause to search appellant’s vehicle.

We have explained the applicable standard of review in addressing a ruling on a suppression motion as follows: We review a denial of a motion to suppress evidence seized pursuant to a warrantless search based on the record ⁴⁶⁷ of the suppression hearing, not the subsequent trial. State v. Nieves, 383 Md. 573, 581 , 861 A.2d 62 (2004). We consider the evidence in the light most favorable to the prevailing party, here, the State. Gorman v. State, 168 Md.App. 412, 421 , 897 A.2d 242 (2006) (Quotation omitted).

We also “accept the suppression court’s first-level factual findings unless clearly erroneous, and give due regard to the court’s opportunity to assess the credibility of witnesses.” Id. “We exercise plenary review of the suppression court’s conclusions of law,” and “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.” Id. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” State v. Alexander, 124 Md.App. 258, 265 , 721 A.2d 275 (1998) (Emphasis added in Alexander) (quoting New Jersey v. T.L.O., 469 U.S. 325, 337 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985)). On that issue, “the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo.” Ferris v. State, 355 Md. 356, 385 , 735 A.2d 491 (1999) (quoting Ornelas v. United States, 517 U.S. 690, 691 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996)). Taylor v. State, 224 Md.App. 476, 486-87 , 121 A.3d 167 , cert. granted, 445 Md. 487 , 128 A.3d 51 (2015). With that standard of review in mind, we address whether the search here violated appellant’s Fourth Amendment rights.

The Fourth Amendment to the United States Constitution protects against “unreasonable searches and seizures.” U.S. Const, amend.

IV

Subject to certain exceptions, “ ‘[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, ... reasonableness generally requires the obtaining of a judicial warrant.’ ” Riley v. California, — U.S. -, 134 S.Ct. 2473, 2482 , 189 L.Ed.2d 430 (2014) (quoting Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 , 115 S.Ct. 2386 , 132 L.Ed.2d 564 (1995)). One exception to the warrant requirement is the “automobile exception” ⁴⁶⁸ or “Carroll doctrine,” named after Carroll v. United States, 267 U.S. 182 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), in which the United States Supreme Court held that an officer may search an automobile, without a warrant, if he or she has probable cause to believe it contains evidence of a crime or contraband goods. Wyoming v. Houghton, 526 U.S. 295, 300 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999). The issue presented in this case is whether the police had sufficient probable cause to search appellant’s car pursuant to the Carroll doctrine.

In other words, was there a “fair probability that contraband or evidence of a crime [would] be found in” the car. Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983). Before addressing the specific facts here, we note that the probable cause standard is a “ ‘practical, nontechnical conception’ that deals with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’” Maryland v. Pringle, 540 U.S. 366, 370 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003) (quoting Gates, 462 U.S. at 231 , 103 S.Ct. 2317 ). As the United States ' Supreme Court has explained: The test for probable cause is not reducible to precise definition or quantification.

Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence ... have no place in the [probable-cause] decision.... All we have required is the kind of fair probability on which reasonable and prudent [people,] not legal technicians, act.... In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances.... We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach----Probable cause, we emphasized, is a fluid concept — turning on the assessment of probabilities in particular factual contexts— not readily, or even usefully, reduced to a neat set of legal rules. ⁴⁶⁹ Florida v. Harris, — U.S.-, 133 S.Ct. 1050, 1055-56 , 185 L.Ed.2d 61 (2013) (quotations omitted).

With respect to the odor of marijuana, the Maryland appellate courts consistently have held that the detection of the odor of marijuana by a trained drug dog establishes probable cause to conduct a warrantless Carroll doctrine search of a vehicle. Wilkes v. State, 364 Md. 554, 586-87 , 774 A.2d 420 (2001); Pyon v. State, 222 Md.App. 412, 439 , 112 A.3d 1130 (2015). The question presented here is whether the recent Maryland law, which decriminalized the possession of less than 10 grams of marijuana and made it a civil offense, changes this analysis. In addressing this issue, it is important to make clear the scope of the new law.

Maryland Code (2015 Supp.) § 5-601 of the Criminal Law Article (“CR”) states, in pertinent part, as follows: (a) In general. — Except as otherwise provided in this title, a person may not: (1) possess or administer to another a controlled dangerous substance, unless obtained directly or by prescription or order from an authorized provider acting in the course of professional practice;[ 7 ] (c) Penalty; mitigating factors; substance abuse programs. — (1) Except as provided in paragraphs (2) and (3) of this subsection, a person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 4 years or a fíne not exceeding $25,000 or both. (2)(i) Except as provided in subparagraph (ii) of this paragraph, a person whose violation of this section involves the use or possession of marijuana is subject to ⁴⁷⁰ imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both. (ii) 1. A first violation of this section involving the use or possession of less than 10 grams of marijuana is a civil offense punishable by a fine not exceeding $100. 2.

A second violation of this section involving the use or possession of less than 10 grams of marijuana is a civil offense punishable by a fine not exceeding $250. 3. A third or subsequent violation of this section involving the use or possession of less than 10 grams of marijuana is a civil offense punishable by a fine not exceeding $500. This statutory language makes clear that, although the legislation enacted in 2014 decriminalized the possession of less than 10 grams of marijuana, it remains a civil offense, and therefore, it still is illegal. “[DJecriminalization is not synonymous with legalization.” Com. v. Cruz, 459 Mass. 459 , 945 N.E.2d 899, 911 (2011). Thus, cases such as State v. Crocker, 97 P.3d 93 (Alaska Ct.App.2004), upon which appellant relies, are inapposite.

In Crocker , the Court of Appeals of Alaska held that the “strong odor of growing marijuana” did not constitute probable cause to support a search warrant for Crocker’s house because, in Alaska, it is legal to possess less than four ounces of marijuana for personal use in the home. Id. at 95, 97 . The court held that the warrant application needed to establish probable cause that the possession of marijuana was illegal.