Grant v. State

HOTTEN, J. In this case, we granted certiorari to consider whether the Circuit Court for Frederick County erred in denying Petitioner, Terrance Jamal Grant’s motion to suppress, where it was “not clear” whether the officer detected the odor of marijuana before or after inserting his head into the passenger side window of the vehicle. We also consider whether, in affirming the judgment of the circuit court, the Court of Special Appeals applied the appropriate standard of review to the circuit court’s factual findings and legal conclusions. For the reasons that follow, we shall reverse. FACTUAL AND PROCEDURAL BACKGROUND At approximately 6:03 p.m. on May 23, 2013, Deputy First Class Chad Atkins (“Deputy Atkins”) of the Frederick County Sheriffs Office, was patrolling Worthington Boulevard in an ⁸ unmarked police vehicle when he observed a speeding vehicle being driven by Petitioner.

As a result, Deputy Atkins, a certified radar and laser operator, activated his radar equipment and determined that the vehicle was traveling at a speed of 50 miles per hour in a 35 mile per hour zone. Deputy Atkins subsequently stopped Petitioner for the traffic violation. Deputy Atkins approached the passenger side of Petitioner’s vehicle, subsequent to Petitioner rolling down the window. Petitioner was the sole occupant.

During the suppression hearing, Deputy Atkins testified that upon initial contact with Petitioner, he detected the odor of marijuana emanating from the vehicle. He further testified that he could not recall whether his head crossed the window’s threshold while speaking with Petitioner. Deputy Atkins was familiar with the smell of marijuana, having received over one hundred hours of police training in controlled dangerous substances — including the identification of marijuana — and completing approximately one hundred drug-related arrests. Deputy Atkins also testified that the weather was windy and the odor of marijuana “quickly dissipated.” Approximately two to three minutes after Deputy Atkins initiated the stop, he returned to his vehicle and requested a nearby K-9 dog unit.

Corporal Eyler 1 arrived approximately fifteen minutes later. Thereafter, Deputy Atkins returned to Petitioner’s vehicle, and requested that he step out. While Deputy Atkins and Petitioner stood behind Petitioner’s vehicle, Corporal Eyler began the K-9 dog scan. While Corporal Eyler conducted the scan, Deputy Atkins informed Petitioner that he detected the odor of marijuana emanating from his vehicle.

Petitioner admitted- that there was pipe and a small amount of marijuana in the center console. Shortly thereafter, Corporal Eyler informed Deputy Atkins of a positive alert from Petitioner’s vehicle. A search of the vehicle by Deputy Atkins revealed a film canister ⁹ containing 1.6 grams of marijuana, as well as a smoking device containing burnt marijuana residue in the center console. Petitioner was placed under arrest and later released with a criminal citation.

Petitioner subsequently moved to suppress the evidence seized from his vehicle, asserting that Deputy Atkins conducted an unconstitutional search when he inserted his head into the passenger window and detected the odor of marijuana. Suppression Hearing Petitioner’s suppression hearing was held before the circuit court on January 6, 2014. Deputy Atkins testified on behalf of the State regarding his initial contact with Petitioner. On cross-examination, defense counsel sought clarification regarding the moment Deputy Atkins detected the odor of marijuana.

The cross-examination proceeded, in relevant part, as follows: [DEFENSE COUNSEL]: So when you stopped him, you got out of your car, did you smell marijuana? [DEPUTY ATKINS]: Yes, on the initial contact. [DEFENSE COUNSEL]: I said when you got out of your car did you smell marijuana? [DEPUTY ATKINS]: You mean before I went up to his car? [DEFENSE COUNSEL]: Yeah. Before, before you went up to his car did you smell marijuana? [DEPUTY ATKINS]: No. [DEFENSE COUNSEL]: Okay. Did you perform a sniff of his car? [DEPUTY ATKINS]: Did, what do you mean by sniff? [DEFENSE COUNSEL]: Like a dog. I’m saying did you specifically examine his car for, for the smell of marijuana? [DEPUTY ATKINS]: You mean did I walk around the car and just sniff at, at his car? [DEFENSE COUNSEL]: I understand the answer may be no. ¹⁰ [DEPUTY ATKINS]: No. [DEFENSE COUNSEL]: Okay.

Ah, so the point at which you, you allege you smelled marijuana was when you kind of leaned in to get his, get his license and registration? [DEPUTY ATKINS]: If you call it leaning, it’s when he rolled down his window and I made con — when I was speaking with him. [DEFENSE COUNSEL]: Okay. Do you recall how you, how you positioned yourself when you were speaking with him? [DEPUTY ATKINS]: Like I, I, I don’t know how to explain it ‘cause I do it on every single stop that I have. I, you know, put my head, he, they have the, they roll the window down and I have my head by their window. And— [DEFENSE COUNSEL]: Okay.

Do you recall if your head entered the window or not? [DEPUTY ATKINS]: I don’t know if my head entered through the window [pane] or not. I wouldn’t of, you know, it, I, I don’t know. Honestly. [DEFENSE COUNSEL]: Okay. You wouldn’t be surprised to find out that it did. [DEPUTY ATKINS]: If I had crossed where the window glass was?

No— [DEFENSE COUNSEL]: Where the, where the pane— [DEPUTY ATKINS]: —because sometimes— [DEFENSE COUNSEL]: —would have been— [STATE’S ATTORNEY]: Objection, Your Honor. THE COURT: Let, let him answer. One at a time. We have all morning to finish the (unclear — one word).

Go ahead. [DEFENSE COUNSEL]: Thank you. [DEPUTY ATKINS]: No, I, the, wouldn’t, I wouldn’t be surprised. Following the parties’ agreement regarding the admissibility and authenticity of the DVD traffic stop video, it was ¹¹ played in court. Although the point at which Deputy Atkins detected the odor of marijuana was not clear from the video, the court acknowledged that Deputy Atkins’ head appeared to cross the window pane into the interior of Petitioner’s vehicle. Defense counsel subsequently moved to suppress the 1.6 grams of marijuana contained in a film canister in the center console of Petitioner’s vehicle, arguing that an illegal search occurred in violation of the Fourth Amendment when Deputy Atkins inserted his head into the passenger window.

Defense counsel further argued that the prolonged detention while awaiting arrival of the K-9 unit also violated the Fourth Amendment. The State countered that the traffic stop escalated to a narcotics investigation the moment Deputy Atkins detected the odor of marijuana, providing, “at a minimum,” reasonable articulable suspicion to justify Petitioner’s detention. After considering the evidence and arguments of counsel, the court rendered the following ruling: 2 As this was a warrantless search the burden of course is on the State to show that the stop was reasonable and justified under the [FJourth [Ajmendment because of course as a general rule the [Fjourth [Ajmendment prohibits searches and seizures without a warrant except in a certain specific number of [ ] exceptions.... In this case the [cjourt finds the following facts.

On the date in question Deputy Atkins was on routine patrol in Frederick County, Maryland. While on routine patrol he observed a vehicle being driven by a person who we later discovered to be [Petitioner] that was, appeared to be, to him to be exceeding the posted speed. Deputy Atkins was going in the opposite direction on Worthington Boulevard in Urbana and he did a U-turn and pulled the vehicle over. He approached the vehicle on the passenger side of the ¹² vehicle.

The window was rolled down. [Petitioner] was in the driver’s side, he was the only person in the vehicle. Deputy Atkins asked for his of course license and registration and during that process his, from the video his head appeared to have intruded somewhat into the window space, into the interior of [Petitioner’s] car. The testimony of Deputy Atkins was that he didn’t recall whether his head went in the vehicle or not. It was very possible [Deputy Atkins’] head would have broken the [pane] and it was at some point, it was not clear whether it was when his head was inside or when the window was rolled down, lie-smelled what he believed based on his training and experience smelled like marijuana.

But he also testified that it dissipated rather quickly. Based on those factors what Deputy Atkins chose to do at that time was to not conclude that there was probable cause to conduct [] a search of [Petitioner’s] vehicle. Although case law clearly indicates that the test, that the police officer’s, trained police officer’s smelling of an odor of marijuana can perform the basis of probable cause to do a warrantless search and of course one of the exceptions permitted in the [F]ourth [A]mendment is if the officer has probable cause to search or arrest for an offense committed in his presence, which of course probable cause of a strong odor of marijuana would be evidence, probable cause that [Petitioner] was in possession of marijuana. But [Deputy Atkins] was not, it wasn’t a strong odor so he was not convinced.

But it did create an articulable suspicion which was reasonable under the circumstances to detain [Petitioner] for further investigation until a K-9 unit could arrive. That further detention was approximately 15 minutes. I think that was [Deputy Atkins’] testimony on the stand and in reviewing the time frames on the, um, on the video that was very close. I think the, actually got back to the car at like four minutes after the, the stop was initiated and I think the dog came at about, and started the search about 20 minutes after the stop. ¹³ So that was close.

So the question is was that a sufficient basis, a sufficient articulable reason to detain [Petitioner] for that period of time and the [c]ourt does find that is a sufficient articulable justification for the further detention of [Petitioner]. This was not one of the cases where it was just because it was some other reason and that they were trying to justify the stop based on it took a long time to get the tickets written or the information back from the Motor Vehicle Administration. That was not the reason offered by the State. But it was because of the odor of marijuana that [Deputy Atkins] smelled.

And quite frankly the [c]ourt, ah, commends [Deputy Atkins] for not arresting [Petitioner], but to make sure that what he, that there was probable cause before he arrested [him]. Or eventually charged him. I believe the testimony was he charged him on a, um, on a citation and, and never did officially put [Petitioner] into handcuffs. Which again, the [c]ourt finds based on all the circumstances is, was certainly appropriate under this circumstance....

(emphasis added). Following the denial of his suppression motion, Petitioner pled not guilty to an agreed statement of facts. The court found Petitioner guilty of possession of marijuana, and subsequently sentenced him to thirty days, all suspended, in addition to one year of probation, a $200 fine, and $145 in court costs. Petitioner noted a timely appeal to the Court of Special Appeals, which affirmed the judgment.

See Terrance Jamal Grant v. State of Maryland, No. 2742 Sept. Term, 2013, 2015 WL 5822270 (Md.Ct.Spec.App. July 24, 2015). Court of Special Appeals’ Ruling On appeal, Petitioner averred that the court’s indication that when Deputy Atkins detected the odor of marijuana was “not clear,” reflected an unambiguous explicit factual finding. Therefore, the State failed to satisfy its “burden to justify the warrantless search and arrest[,]” and the circuit court erred in denying Petitioner’s suppression motion. In contrast, the State argued that the court’s statement was ambiguous and ¹⁴ not an explicit finding, and therefore, based on the supplemental rules of appellate review, the court may resolve ambiguities and draw inferences from the evidence in favor of the prevailing party, here, the State.

The Court of Special Appeals adopted the State’s argument, concluding that: [T]he [circuit] court’s statement reflected the ambiguous nature of the evidence. As we have previously explained, we resolve any ambiguity by looking to the officer’s testimony that he smelled the marijuana upon ‘initial contact.’ This can be interpreted to mean that Deputy Atkins detected the tell-tale odor of marijuana before he placed his head in the vehicle’s window. If this was the case, and we must interpret the evidence in the light most favorable to the State, then there was no warrantless search of [Petitioner’s] vehicle. Although there existed, at that moment, probable cause for Deputy Atkins to arrest [Petitioner] and search the vehicle he did not do so.

Instead, he took the extra precaution of calling for a K-9 [dog unit] to respond to the scene to confirm his reasonable suspicion that criminal activity was afoot. Then he placed [Petitioner] [] under arrest and searched the vehicle. Under the totality of the circumstances, the stop and search were reasonable. Grant, 2015 WL 5822270 , at ⁷.

We thereafter, granted certio-rari. STANDARD OF REVIEW The well-established standard of review for motions to suppress is as follows: Our review of a circuit court’s denial of a motion to suppress evidence under the Fourth Amendment, ordinarily, is limited to the information contained in the record of the suppression hearing and not the record of the trial. When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favorable to the State as the prevailing party on the motion. Even so, we review legal questions de novo, and where, as here, a party has ¹⁵ raised a constitutional challenge to a search or seizure, we must make an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case.

We will not disturb the [circuit] court’s factual findings unless they are clearly erroneous. State v. Wallace, 372 Md. 137, 144 , 812 A.2d 291, 295 (2002) (internal citations and citation omitted). DISCUSSION I. The circuit court erred in denying Petitioner’s suppression motion The arguments advanced by the parties are similar to those raised before the Court of Special Appeals, supra, and ultimately require us to decide whether the State satisfied its burden of proving that Deputy Atkins conducted a lawful search. We hold that the circuit court erred in denying Petitioner’s suppression motion where the evidence was unclear regarding the timing of Deputy Atkins’ detection of the odor of marijuana.

In the absence of a finding that Deputy Atkins detected the odor of marijuana before he inserted his head into the passenger window, the State did not satisfy its burden regarding the lawfulness of the search. We explain. A. When Deputy Atkins detected the odor of marijuana was dispositive Resolution of the suppression motion hinged upon a factual determination of when Deputy Atkins detected the odor of marijuana — before or after he inserted his head into the passenger window. This determination was critical to ascertaining whether an unlawful search occurred.

In addressing the constitutionality of Deputy Atkins’ conduct, we first acknowledge that only the events occurring after the traffic stop are relevant to our Fourth Amendment analysis. Because Deputy Atkins had probable cause to stop and temporarily detain Petitioner’s vehicle as a result of a speeding violation, the initial traffic stop was constitutional. See ¹⁶ Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769, 1772 , 135 L.Ed.2d 89 (1996) (acknowledging that an officer may have probable cause to stop and temporarily detain a vehicle after a traffic violation); Byndloss v. State, 391 Md. 462, 480 , 893 A.2d 1119, 1130 (2006) (“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.”). i. The interior of Petitioner’s vehicle was protected by the Fourth Amendment The Fourth Amendment guarantees individuals the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... ” U.S. Const, amend.

IV

This constitutional mandate is also applicable to the states, through the Fourteenth Amendment. Corbin v. State, 428 Md. 488, 499 , 52 A.3d 946, 952 (2012); see also Maryland Declaration of Rights, Art. 26. “The capacity to invoke Fourth Amendment protection requires the individual to establish that he or she maintained ‘a legitimate expectation of privacy’ in the house, papers, or effects searched or seized.” Whiting v. State, 389 Md. 334, 346 , 885 A.2d 785, 792 (2005) (citing Katz v. United States, 389 U.S. 347, 353 , 88 S.Ct. 507, 512 , 19 L.Ed.2d 576 (1967) (citations omitted)). An individual maintains a legitimate expectation of privacy by “demonstrat[ing] an actual (subjective) expectation of privacy in the item or place searched, [and by] proving] that the expectation is one that society is prepared to recognize as reasonable.” Williamson v. State, 413 Md. 521, 534 , 993 A.2d 626, 634 (2010) (citing Katz, 389 U.S. at 361 , 88 S.Ct. at 516 (Harlan, J. concurring)). Accordingly, subject only to a few specifically established and well-delineated exceptions, 3 a warrantless search or ¹⁷ seizure that infringes upon the protected interests of an individual is presumptively unreasonable.

Katz, 389 U.S. at 356-57 , 88 S.Ct. at 514-16 ; Belote v. State, 411 Md. 104, 112 , 981 A.2d 1247, 1252 (2009). The government has the burden of overcoming that presumption. Southern v. State, 371 Md. 93, 105 , 807 A.2d 13, 20 (2002). Although not as substantial as the privacy interest that exists in one’s home, Fourth Amendment protection extends to the interior of a vehicle.

See New York v. Class, 475 U.S. 106, 108, 114-15 , 106 S.Ct. 960, 966 , 89 L.Ed.2d 81 (1986) (“While the interior of an automobile is not subject to the same expectations of privacy that exist with respect to one’s home, a car’s interior as a whole is nonetheless subject to Fourth Amendment protection from unreasonable intrusions by the police.”); Arizona v. Gant, 556 U.S. 332, 345 , 129 S.Ct. 1710, 1720 , 173 L.Ed.2d 485 (2009) (acknowledging that although the privacy interest in one’s vehicle is less substantial than in one’s home, the former interest is nevertheless important and deserving of constitutional protection.). See, e.g., United States v. Jones , — U.S. -, -, 132 S.Ct. 945, 952 , 181 L.Ed.2d 911 (2012) (acknowledging “that an officer’s momentary reaching into the interior of a vehicle did constitute a search.”). Courts generally hold that an officer’s physical intrusion into the interior of a vehicle through an open window or door constitutes a search under the Fourth Amendment. See United States v. Ryles, 988 F.2d 13, 15 (5th Cir.1993) (officer’s action in inserting his head into the interior of a van through an open window constituted a Fourth Amendment search, albeit a reasonable one, due to a series of suspicious conduct by the defendant.); accord, e.g., State v. Epperson, 237 Kan. ¹⁸ 707, 703 P.2d 761, 764, 768-69 (1985); Commonwealth v. Podgurski, 386 Mass. 385 , 436 N.E.2d 150, 152-53 (1982), cert. denied, 459 U.S. 1222 , 103 S.Ct. 1167 , 75 L.Ed.2d 464 (1983); People v. Aquino, 119 A.D.2d 464 , 500 N.Y.S.2d 677, 678-79 (1st 1986); State v. Hendricks, 151 Or.App. 271 , 948 P.2d 740, 743 (1997); State v. Larson, 88 Wash.App. 849 , 946 P.2d 1212, 1213 (1997).

Additionally, under the plain view doctrine, 4 an officer’s detection of odors by virtue of a physical intrusion into a vehicle’s interior, is also considered a “search.” In Wayne R. LaFave, Search and Seizure: A Treatise On The Fourth Amendment, § 2.5(c) (5th ed. 2015), Lafave opines: Sometimes the police detect the contents of a vehicle by the sense of smell.... ‘This olfactory impression ... comes under the plain view doctrine which applies to all sensory impressions gained by an officer who is legally present in the position from which he gains them.’ In United States v. Martinez-Miramontes, [ 494 F.2d 808 (9th Cir.1974) ], where a customs agent approached a parked car and, by sniffing around a crevice where the trunk closed, detected the odor of marijuana, the court concluded that this degree of scrutiny was not objectionable: ‘We find no distinction of substance between leaning down and turning the head to look inside a motor vehicle to see articles which then come within the ‘plain view’ doctrine ... and leaning down and sniffing to detect the odor of marijuana.’ But if the officer leans into an open window to detect the odor, then there has been a search. (internal footnotes omitted). See also Cruz v. State, 168 Md.App. 149, 167-68 , 895 A.2d 1076, 1086-87 (2006) (noting that a K-9 dog’s handler who intentionally directs or instructs ¹⁹ the K-9 to scan a vehicle’s interior constitutes a search in violation of the Fourth Amendment); accord, e.g., United States v. Watson, 783 F.Supp. 258, 265 (E.D.Va.1992); United States v. Winningham, 140 F.3d 1328, 1331 (10th Cir.1998); State v. Freel, 29 Kan.App.2d 852 , 32 P.3d 1219, 1225 (2001). Thus, an officer must establish probable cause, or provide another constitutional justification, before conducting the warrantless search of a vehicle.

See Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925) (holding that officers may conduct a warrantless search of a vehicle provided that they first establish probable cause to suspect the presence of illegality therein); Byndloss, 391 Md. at 481-82 , 893 A.2d at 1130-32 (noting that where officers have probable cause to believe that a vehicle contains contraband, the search is not subject to the Fourth Amendment warrant requirement). ii. Probable cause was required before Deputy Atkins inserted his head into Petitioner’s vehicle Applying these general principles of Fourth Amendment jurisprudence to the case at bar, we hold that Deputy Atkins conducted a search •within the meaning of the Fourth Amendment when he inserted his head into the constitutionally-protected area of Petitioner’s vehicle, without the benefit of a warrant or other justification. 5 Class, 475 U.S. at 108, 114-15 , 106 S.Ct. at 966 . However, this conclusion does not end our analysis. The Fourth Amendment also requires that “searches and seizures be reasonable.” United States v. Montoya de Hernandez, 473 U.S. 531, 537 , 105 S.Ct. 3304, 3308 , 87 L.Ed.2d 381 (1985). “What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” Id.

(citation omitted). ²⁰ Therefore, “[t]he permissibility of a particular law enforcement practice is judged by ‘balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.’ ” Id. (citations omitted); Wilson v. State, 409 Md. 415, 427 , 975 A.2d 877, 884 (2009) (“In assessing whether a search or seizure was reasonable, [t]he touchstone of our analysis under the Fourth Amendment is always the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.”) (internal quotations and citations omitted). There is a split of authority regarding whether an officer’s physical intrusion into a vehicle’s interior, in the absence of probable cause or the existence of a warrant, constitutes an unreasonable “search” that is violative of the Fourth Amendment. On one hand, courts have held that this intentional act is unreasonable, in the absence of probable cause, reasonable suspicion, or other justification.

In United States v. Montes-Ramos, 347 Fed.Appx. 383, 385, 389-90 (10th Cir.2009), the Tenth Circuit held that although the officer’s initial stop of the appellant’s vehicle was constitutional, the officer conducted an unlawful search when he placed his head into the front passenger-side door by approximately two inches, at which point he smelled marijuana, to further investigate his “hunch” that the appellant was transporting drugs. Similarly, in Davis v. State, 68 Ark. App. 346 , 8 S.W.3d 36, 38-39 (1999), an Arkansas appellate court held that despite the legality of the initial stop, the officer subsequently conducted an unlawful search. The court explained that the officer “had no suspicion, reasonable or otherwise, that appellant’s vehicle contained contraband until after he ‘stuck [his] head’ into appellant’s truck and smelled marijuana.” Id.

In Podgurski, 436 N.E.2d at 151-53 , the Supreme Judicial Court of Massachusetts similarly held that an officer’s conduct constituted an unlawful search. While responding to a tip of “suspicious activity” occurring in a stationary cargo van, the officer approached the van and placed his head into the windowless, rear interior of the van. Id. at 151. The court held that the officer’s observation of illegal activity did not occur until he ²¹ “stuck his head inside” the rear window, reasoning that “[p]ri- or to entering the van, the officer made no attempt to question or communicate with the defendants in any way,” and that the record did not “disclose that he was warranted in taking reasonable precautions for his safety.” Id. at 152-53.

An Oregon appellate court in Hendricks, 948 P.2d 740 , reached a similar conclusion. While facilitating a traffic stop for a speeding violation, the state trooper inserted his head into the driver-side window of the defendant’s truck. Id. at 741. The court observed that it was “undisputed that [the state trooper] did not suspect [the] defendant of engaging in criminal conduct” prior to his physical intrusion.

Id. at 743. In reversing the denial of the defendant’s motion to suppress, the court held that the state trooper “was allowed to observe and smell what he otherwise would not have been able to observe or smell from a lawful vantage point[,]” which constituted a search in violation of the Fourth Amendment. Id. Conversely, other courts have focused on the totality of the circumstances surrounding an officer’s physical intrusion into a vehicle’s interior, and held that this intentional act was reasonable.

In United States v. Pierre, 958 F.2d 1304, 1307 (5th Cir.1992), the Fifth Circuit held that a border patrol agent’s act of “duck[ing] [his] head in [the window] to get a