In Re CALVIN S

MEREDITH, J. This case arises out of a warrantless search of a minor, Calvin S., by officers of the Salisbury Police Department after the officers observed the 17-year old smoking a cigarette. 1 Upon searching Calvin’s person to see if he had any additional tobacco in his possession, the officers found a plastic bag containing five rocks of crack cocaine, and charged Calvin with narcotics violations. The Circuit Court for Wicomico County, sitting as a juvenile court, denied Calvin’s motion to suppress the cocaine, concluding that the search did not violate the ⁵²² Fourth Amendment because the police were looking for contraband. Subsequently, the circuit court entered a delinquency judgment against Calvin. The sole question presented in this case is whether probable cause to believe an individual is committing a civil offense provides a constitutionally valid basis for a warrantless search of the individual’s person.

We answer that question in the negative. Accordingly, we shall reverse the judgment of the Circuit Court for Wicomico County. Facts and Procedural History On October 10, 2004, at approximately 1:45 a.m., officers King and Underwood of the Salisbury Police Department observed a young man, Calvin S., riding his bicycle on the wrong side of the road, without a headlight, in violation of traffic regulations for bicycles. As the officers approached Calvin to inform him of the traffic violations, they noticed that he was smoking a cigarette and appeared to be under 18 years of age.

In the course of a brief discussion with the officers, Calvin admitted that he was 17 years old. After confirming that Calvin was underage for lawful possession of cigarettes, the officers jointly frisked and searched Calvin for the purpose of discovering and confiscating any additional tobacco products Calvin might have had on his person. Officer King described the basis for the search as follows: [Defense Counsel]: So at the time that you saw, or you stopped Calvin, saw the cigarette, you wrote no citation? [Officer King]: No. [Defense Counsel]: And at that point you decided to search [Calvin] to see if he had more tobacco on his person? [Officer King]: Yes, sir. [Defense Counsel]: Okay. Was that the sole reason for your search of him? [Officer King]: Yes, sir. [Defense Counsel]: Okay.

So, you didn’t suspect him of having any weapons of any kind or being a danger to you? ⁵²³ [Officer King]: No. Officer Underwood testified similarly: [Defense Counsel]: Okay. And do you also agree with Officer King that the reason he was pulled over was he was going the wrong way down a street on a bicycle? [Officer Underwood]: Yes, Sir. [Defense Counsel]: And did you see Calvin S. smoking? [Officer Underwood]: Yes, I did. [Defense Counsel]: Did you ask Calvin if he had any other tobacco on his person? [Officer Underwood]: Not that I recall. [Defense Counsel]: Did you or Officer King ask him to volunteer any tobacco that he had on his person? [Officer Underwood]: Not that I recall. [Defense Counsel]: So at that point a search was initiated to see if he had more tobacco? [Officer Underwood]: Yes, sir. [Defense Counsel]: And would you agree with Officer King that Calvin S. was not handcuffed— [Officer Underwood]: That’s correct. [Defense Counsel]: — when the search took place? [Officer Underwood]: That’s correct. [Defense Counsel]: And would you also agree that you felt, you didn’t feel that you were in danger of Calvin at that time? [Officer Underwood]: No, I did not. [Defense Counsel]: And there was no citation written for the bicycle violation? [Officer Underwood]: No, sir. He was verbally advised of the traffic laws by Officer King. Upon searching Calvin’s front pants pocket, one of the officers found a small plastic bag containing five small rocks suspected to be crack cocaine.

On December 3, 2004, the State filed a juvenile delinquency petition, charging Calvin with possession of cocaine, possession ⁵²⁴ of cocaine with intent to distribute, possession of drug paraphernalia, and possession of a tobacco product by a person under the age of 18. On January 11, 2005, an adjudicatory hearing was held before the Master. The Master concluded that the State had proven all four counts in the juvenile petition beyond a reasonable doubt, and recommended to the circuit court that Calvin be found delinquent, subjected to electronic monitoring, and placed in a special program for juvenile delinquents. Calvin filed exceptions to the Master’s recommendations, and the circuit court held a de novo adjudicatory hearing on March 18, 2005.

At the hearing, Calvin made an oral motion to suppress the cocaine on the ground that the observed civil violation — specifically, underage possession of tobacco products — did not give the police officers probable cause to conduct a warrantless search of Calvin’s person. Consequently, Calvin argued, the search of his person was unreasonable under the Fourth Amendment and the court should suppress the crack cocaine as the fruit of an unconstitutional search. The circuit court held the motion to suppress sub cuña. On March 22, 2005, the court entered an order and memorandum of opinion concluding that the search was constitutional and denying the motion to suppress.

The court found Calvin guilty of the four counts alleged in the juvenile petition, and entered a finding that Calvin was a delinquent child. On April 1, 2005, the circuit court held a disposition hearing. At the conclusion of the hearing, the circuit court placed Calvin on conditional release with electronic monitoring, pending a placement in a juvenile facility. On April 29, 2005, Calvin filed a notice of appeal.

Standard of Review In reviewing the denial of a motion to suppress evidence, Maryland appellate courts are limited to the record before the circuit court at the suppression hearing. Carter v. State, 367 Md. 447, 457 , 788 A.2d 646 (2002). We consider the evidence presented at the suppression hearing, as well as all inferences reasonably drawn therefrom, in the light most ⁵²⁵ favorable to the State, and “[ojrdinarily, we will defer to the factual findings of the suppression hearing judge.” Myers v. State, 395 Md. 261, 274 , 909 A.2d 1048 (2006). As this Court recently explained: “We extend great deference to the findings of the hearing court with respect to first-level findings of fact and the credibility of witnesses unless it is shown that the court’s findings are clearly erroneous.” Daniels v. State, 172 Md.App. 75, 87 , 913 A.2d 617 (2006) (citing Reynolds v. State, 130 Md.App. 304, 313 , 746 A.2d 422 (1999), cert. denied, 358 Md. 383 , 749 A.2d 173 , cert. denied, 531 U.S. 874 , 121 S.Ct. 178 , 148 L.Ed.2d 122 (2000)).

Although we grant deference to the facts found by the suppression hearing court, we review questions of law de novo. Carter, supra, 367 Md. at 457 , 788 A.2d 646 . Furthermore, “[wjhere, as here, [appellant] raises 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.” Id. Discussion I. The Motion to Suppress The parties do not dispute that the officers observed Calvin smoking a cigarette, in violation of CL § 10-108, which provides: “A minor may not ... use or possess a tobacco product or cigarette rolling paper.” A “minor” is defined by CL § 1-101(g) as “an individual under the age of 18 years.” Violation of CL § 10-108(c)(l) “is a civil offense,” for which “[a] law enforcement officer authorized to make arrests shall issue a citation.... ” CL § 10-108(e).

A minor who violates CL § 10-108 is “subject to the procedures and dispositions provided in Title 3, Subtitle 8A of the Courts Article.” CL § 10-108(d). Maryland Code (1974, 2006 Repl. Vol.), Courts & Judicial Proceedings Article (“CJP”), § 3-8A-10(Z) sets forth the procedure to be followed by the Department of Juvenile Services upon notification that a juvenile has received a citation for possession of tobacco products. Section 3-8A-10(Z) provides: ⁵²⁶ Citation authorized under § 10-108 of the Criminal Law Article — Permissible action. — (1) If the intake officer receives a citation authorized under § 10-108 of the Criminal Law Article, the intake officer may: (i) Refer the child to a smoking cessation clinic, or other suitable presentation of the hazards associated with tobacco use; (ii) Assign the child to a supervised work program for not more than 20 hours for the first violation and not more than 40 hours for a second or subsequent violation; or (iii) Forward the citation to the State’s Attorney.

(2) The intake officer shall forward the citation authorized by § 10-108 of the Criminal Law Article to the State’s Attorney if the child fails to comply with a smoking program referral or a supervised work program assignment described under paragraph (1) of this subsection. If the charge proceeds to a hearing and is sustained, the juvenile court can impose similar penalties pursuant to CJP § 3-8A-19(e)(3)(ii). With respect to the role of police officers in enforcing CL § 10 — 108(c)(1), the statute provides: “A law enforcement officer authorized to make arrests shall issue a citation to a minor if the law enforcement officer has probable cause to believe that the minor is committing or has committed a violation of this section.” 2 CL § 10-108(e). Once Calvin admitted to the officers that he was seventeen years old, the officers clearly had probable cause to believe that Calvin was violating CL § 10-108(c)(l).

The issue before us is whether the commission of a civil violation justifies a warrantless search of the suspect’s person. We conclude that it does not. Calvin contends that the officers’ search of his person for additional cigarettes violated his right under the Fourth ⁵²⁷ Amendment of the United States Constitution to be free from unreasonable searches and seizures. Calvin argues that probable cause to believe that he was committing a civil violation does not provide a constitutional basis for a warrantless search of one’s person, and therefore the hearing court erred in denying his motion to suppress the cocaine.

The Fourth Amendment 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 Supreme Court has explained that, under the protections afforded by the Fourth Amendment, “[w]herever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures.” Katz v. United States, 389 U.S. 347, 374 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). 3 The hearing court in this case concluded that the officers’ search of Calvin fell within the exigent circumstances exception to the warrant requirement, and said, in its memorandum of opinion: The Court finds that there was probable cause for Officers King and Underwood to believe that the Respondent was in possession of contraband, and they therefore had the right to search the Respondent’s person. Given that the police had no authority to arrest or detain the Respondent for a ⁵²⁸ violation of CL § 10-108, there were exigent circumstances to justify a warrantless search of the Respondent. The State argues that the circuit court correctly concluded that cigarettes in the possession of a minor are “contraband” because such possession is prohibited by law, and that the officers were permitted to search Calvin’s person for additional contraband.

Although warrantless searches are presumptively unreasonable, “because the touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.” Brigham City, Utah v. Stuart, - U.S.-, 126 S.Ct. 1943, 1947 , 164 L.Ed.2d 650 (2006). One such exception recognized by the Supreme Court is the “exigent circumstances” exception, which provides that “a warrantless search and seizure does not violate the Fourth Amendment when law enforcement officers are faced with exigent circumstances such that there is a ‘compelling need for official action and no time to secure a warrant.’ ” Wengert v. State, 364 Md. 76, 85 , 771 A.2d 389 (2001) (quoting Michigan v. Tyler, 436 U.S. 499, 509 , 98 S.Ct. 1942 , 56 L.Ed.2d 486 (1978)). “Exigent circumstances” are defined as “ ‘those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search until a warrant could be obtained.’ ” Wengert, 364 Md. at 85 , 771 A.2d 389 (quoting United States v. Robertson, 606 F.2d 853, 859 (9th Cir.1979)). Regardless of the circumstances or the applicability of an exception to the warrant requirement, however, law enforcement officers must have probable cause in order to conduct a valid search. See Longshore v. State, 399 Md. 486, 501 , 924 A.2d 1129 (2007).

When a defendant moves to suppress evidence allegedly obtained in violation of the Fourth Amendment, “[t]he burden is on the State to establish exigent circumstances that overcome the presumptive unreasonableness [of a warrantless search].” Id. In Gorman v. State, 168 Md.App. 412, 422 , 897 A.2d 242 (2006), in the context of a warrantless entry into a ⁵²⁹ suspect’s home, this Court explained the criteria for concluding that exigent circumstances justify a warrantless search. We said: The exception to the warrant requirement for exigent circumstances is narrow, and “[a] heavy burden falls on the government to demonstrate exigent circumstances that overcome the presumptive unreasonableness of warrantless home entries.” Williams v. State, 372 Md. 386, 403 , 813 A.2d 231 (2002). “Exigent circumstances exist when a substantial risk of harm to the law enforcement officials involved, to the law enforcement process itself, or to others would arise if the police were to delay until a warrant could be issued.” Id. at 402 , 813 A.2d 231 . Exigent circumstances include “an emergency that requires immediate response; hot pursuit of a fleeing felon; and imminent destruction or removal of evidence.” Bellamy v. State, 111 Md.App. 529, 534 , 682 A.2d 1185 , cert. denied, 344 Md. 116 , 685 A.2d 451 (1996).

Certain factors must be considered in the determination of whether exigent circumstances are present: “the gravity of the underlying offense, the risk of danger to police and the community, the ready destructibility of the evidence, and the reasonable belief that contraband is about to be removed.” Williams, 372 Md. at 403 , 813 A.2d 231 . Also “[rjelevant to the determination ... is the opportunity of the police to have obtained a warrant.” Dunnuck v. State, 367 Md. 198, 205-06 , 786 A.2d 695 (2001). The determination of exigency is made on a case-by-case basis, considering “the facts as they appeared to the officers at the time[.]” Williams, 372 Md. at 403 , 813 A.2d 231 . Id. at 422 , 897 A.2d 242 (alterations in original).

In Wallace, supra, this Court examined the criteria for a valid warrantless search of an individual, noting that, “[i]f contraband were in plain view on a person, a warrantless search could be conducted.” 142 Md.App. at 684, 791 A.2d 968 ⁵³⁰ (citing Livingston v. State, 317 Md. 408, at 412 , 564 A.2d 414 (1989)). Cf. Cox v. State, 161 Md.App. 654, 660 , 871 A.2d 647 (2005) (police who stopped the operator of a bicycle for traffic violations seized the cyclist after they observed him remove from his pocket a clear plastic bag containing gel caps suspected to be heroin). “Contraband” is not defined within the Maryland Criminal Law Article. Black’s Law Dictionary defines “contraband” as “goods that are unlawful to import, export, or possess.” But the State’s characterization of cigarettes in the possession of a minor as “contraband” strains the limits of statutory interpretation.

CL § 10-108 does not classify tobacco products as “contraband,” and it contains no authorization for seizure. In various other statutes, the Maryland legislature has specifically defined the instances in which certain items, that may under other circumstances be legally used or possessed, shall be considered “contraband.” See Maryland Code (1985, 2001 Repl. Vol.), Tax-Property Article (“TP”), § 12-103(b) (defining “contraband tobacco products” as “possessed or sold in the State in a manner that is not authorized under this title or under Title 16 of the Business Regulation Article; or (2) are transported by vehicle in the State by a person who does not have, in the vehicle, the records required by § 16-219 of the Business Regulation Article for the transportation of cigarettes or other tobacco products”); Maryland Code (1957, 2005 Repl. Vol.), Article 2B, § l-201(a)(5) (“Any vehicle, vessel or aircraft used with