Lewis v. State

Panel: Graeff, Nazarian, Arthur, JJ. Graeff, J. ⁶⁶⁵ On July 24, 2017, Rasherd Lewis, appellant, pleaded not guilty, pursuant to an agreed statement of facts, to the charge of wearing, carrying, or transporting a handgun. The Circuit Court for Baltimore City found him guilty and imposed a ⁶⁶⁶ sentence of three years' imprisonment, all but 90 days suspended, to be followed by three years of supervised probation. On appeal, appellant contends that the circuit court erred in denying his motion to suppress the handgun recovered from his person. 1 For the reasons set forth below, we disagree, and therefore, we shall affirm the judgment of the circuit court. ⁷⁷⁴ FACTUAL AND PROCEDURAL BACKGROUND On February 1, 2017, Officer David Burch, Jr., an officer with the Baltimore City Police Department, received a tip that a black male, "with a certain clothing description" and a red bag, was in possession of a handgun in the area of Eutaw Street and Saratoga Street in Baltimore City.

Officer Burch testified that the tip was "from a source of information," who was not a confidential informant, but rather, someone that Officer Burch had come into contact with who provided him information and "didn't want any monetary ... gains out of it." Officer Burch testified that he had received information from this source for "a little less than a month," and the information had been reliable. 2 ⁶⁶⁷ After Officer Burch received the tip, he notified City Watch, individuals monitoring cameras in Baltimore City, that "there was a potentially armed individual in the 400 block of W. Saratoga," and he advised the operator of the description provided. City Watch subsequently identified an individual matching the description provided inside Bag Mart, located at 401 W. Saratoga Street. City Watch advised Officer Burch of this location. Officer Burch was familiar with Bag Mart because the police received "numerous calls in reference to that store," and a lot of individuals sold drugs there.

Moreover, the area surrounding the 400 block of W. Saratoga was known to Officer Burch as an "open air drug market" and "a high crime area." Officer Burch was qualified as an expert in the identification and packaging of marijuana, and he testified that there was "no other odor like the odor of marijuana." He further testified that there was no difference in the odor of marijuana based upon the amount present. When City Watch notified Officer Burch of appellant's location at Bag Mart, he and five other officers responded. Officer Burch explained that, when approaching someone who could be armed, the police "go in there, strength in numbers." Bag Mart was a small store. When the officers arrived, it was crowded inside.

Officer Burch smelled an odor of marijuana when he entered the store. He saw appellant with a red bag, located near the register. Appellant had some money in his hand and was moving towards the exit as if he had just made a purchase. Other customers, located in front of appellant, were in the process of exiting the store when the officers arrived.

Officer Burch approached appellant. When he was "literally right in front of" appellant, Officer Burch "smelled an odor of marijuana emitting from [appellant's] person." Officer Burch stated that the odor "could have been from his breath when I was speaking with him or on his person." Officer Burch then stopped appellant, based on "the odor of marijuana and the information that [he] received," searched appellant, and found ⁶⁶⁸ a handgun in the red bag, which he described as a satchel. 3 Officer Burch admitted that he did "place [his] hands on [appellant] to [ ] detain him, to stop him." Officer Burch told appellant to put his hands up and guided appellant's hands up with his own. At that time, Officer Curtis ⁷⁷⁵ was standing behind appellant. 4 Officer Burch testified that, when he told appellant to put his hands up, appellant subsequently brought his hands down, which was "an indicator" for the police, so "for everyone's safety," they put appellant in handcuffs. While Officer Curtis was handcuffing appellant, Officer Burch searched appellant.

In addition to finding a firearm in the red bag, Officer Burch recovered a zip lock baggie containing less than 10 grams of marijuana from appellant's jacket, as well as miscellaneous packaging material, believed to be for packaging marijuana. In response to appellant's motion to suppress the items seized during the search, the State argued that Officer Burch testified to two grounds to stop and search appellant: (1) the tip that a person matching appellant's description had a handgun; and (2) the odor of marijuana. With respect to the odor of marijuana, the State explained that Officer Burch testified that he smelled it "on [appellant's] breath, on his person," and the odor of marijuana provided Officer Burch "the basis to permit a search." Defense counsel first addressed the initial stop, asserting that there was no "reasonable, articulable suspicion for the initial stop and seizure of [appellant's] person." She contended: [I]t was clear from Officer Burch's testimony that the reason that he went to the store, that his purpose of going to the store was to stop [appellant] based solely on the ⁶⁶⁹ information that he received from a tip from the source who he described not as an informant, but as some individual he has had contact with, but did not give further information as to exactly the nature of the contact or any benefit that individual might have been receiving. Defense counsel argued that an anonymous tip providing a physical description of a person, without more, was insufficient to provide reasonable suspicion of wrongdoing.

"[S]econd and independent of that," counsel argued, there was "not a [ ] justification for a search of [appellant's] person and ... there [was] immediately a full blown search of his person." She argued that there was not a Terry frisk, 5 but rather, there was a "full blown search" and "no lawful arrest that precede[d] this [ ] stop. So there [was] no lawful exception to the warrant requirement." Counsel argued that a person could not "lawfully be arrested for possession of less than ten grams of marijuana." Defense counsel argued that the body-camera video showed that the police immediately grabbed appellant by the shoulder, and he was "already stopped and seized and [Officer Burch] already [began] this search," so the police could not "retroactively justify something based on [ ] something [the police] detects later," and he "can't search a person based on something that is an odor in the [ ] room." Counsel concluded by saying that the smell of marijuana does not justify a search of a person, and even if there was reasonable suspicion for the initial detention, the police could not "just immediately ... begin to rummage [a] person's clothing, the pockets and bag." In rendering its decision, the court noted that the tip led the officers to the store: In this case, the police officer's suspicions that [appellant] was carrying a red handbag with a gun arose not from his ⁷⁷⁶ own individual observation ..., but solely from a person whose information the officer had indicated that he had relied upon for the past month. In the case of being no ⁶⁷⁰ demonstration of the tipster's basis of knowledge, although the officer testified that his information had been reliable in the past. Um, now there are situations in which a tip, [ ] suitably corroborated[,] makes sufficient indicia of reliability to provide a reasonable suspicion to make an investigatory stop.

Standing alone, the Court does not find that the tip itself justifies the Terry stop per Alabama v. White , 496 U.S. 325 [ 110 S.Ct. 2412 , 110 L.Ed.2d 301 (1990) ]. The court continued to discuss the case law, noting that reasonable suspicion "requires that a tip be reliable in its assertion of illegality ..., not just in a tendency to identify the determined person." (quoting Florida v. J.L. , 529 U.S. 266 , 120 S.Ct. 1375 , 146 L.Ed.2d 254 (2000) ). After finding that the tip did not justify the stop, the court stated that its "analysis does not end there." The court stated: The officer in this case testified that not only did he detect the odor of marijuana in the store, but that he detected the odor of marijuana coming from [appellant's] person specifically and the odor of marijuana emanating from [appellant] may be just as indicative of possession of more than ten grams or less than ten grams as indicated in Robinson v. State , 451 Md. 94 [ 152 A.3d 661 (2017) ]. Marijuana in any amount is still a Schedule 1 substance and making less than ten grams decriminalized, it is still subject to seizure and forfeiture.

Robinson also further states that it's unreasonable to expect a police officer based on odor to determine the weight of any substance.... [F]ollowing the reasoning ... of Robinson , it would appear that the odor of marijuana emanating from a person provides probable cause to believe that that person contains evidence of a crime, a police officer may search that person under such circumstances. Finally, noting that it must consider "the totality of these circumstances" and "the facts known to the police officers at the time of the encounter," the court stated: ⁶⁷¹ The Court does not believe that the tip alone justifies the officer's immediate stop and frisk of [appellant] even though he may have had some indicia [of] reliability with regard to the information that it acted upon. However, the issue of the smell of marijuana, the Court finds allows the fluidity of the concept of probable cause.... That is, no bright line or rigid [rules] or mechanical or mathematically certain rules detecting the odor of marijuana is what the officer indicates that he knew prior to the search as immediate as it may have been.

It establishes probable cause to search as the police officers have probable cause that [appellant] may have had contraband, that is marijuana. That probable cause le[ ]d to the finding of the gun. The motion to suppress is denied. DISCUSSION Appellant contends that the circuit court erred in denying his motion to suppress, for two reasons.

First, he asserts that, although the court correctly determined that the police did not have reasonable suspicion to seize him based on the tip received, and only had reasonable suspicion to seize him upon detecting the odor of marijuana, the court erred in failing to conclude that appellant was unlawfully seized. Specifically, appellant asserts that the court "failed to conclude what the record unequivocally demonstrates: that Officer Curtis (and then Officer Burch) immediately seized Appellant before Officer ⁷⁷⁷ Burch detected an odor of marijuana on Appellant." Second, appellant contends that, even if he was not immediately seized, the court "erred in its 'totality' analysis." In that regard, he argues that the court erred in finding that the police had probable cause to support the search of his person because: (1) the court improperly considered evidence of the tip; and (2) the odor of marijuana did not give the police "grounds to immediately search or arrest" him. The State contends that "the circuit court correctly denied [appellant's] motion to suppress a handgun that police recovered from his person incident to arrest." Although it addresses ⁶⁷² the specific claims raised by appellant, it asserts that "[t]he essential question in this case ... comes down to whether the circuit court was correct that the police possessed probable cause to arrest and search [appellant] at the moment the police seized him because the officers detected the scent of marijuana." The State agrees that appellant was seized when the police placed their hands on him, but it argues that, whether the encounter "was an investigatory detention or an arrest, or whether it evolved from one to another and when, are largely academic questions because ... the officers' conduct was maximally authorized by probable cause from the start of the encounter based on the scent of marijuana." In reviewing a ruling on a suppression motion, we apply the following standard of review: We review a denial of a motion to suppress evidence seized pursuant to a warrantless search based on the record 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.

Goodwin v. State , 235 Md. App. 263 , 274, 175 A.3d 911 (2017) (quoting Bowling v. State , 227 Md. App. 460 , 466-67, 134 A.3d 388 (2016) ), cert. denied, 457 Md. 671 , 181 A.3d 210 (2018). Accord Robinson v. State , 451 Md. 94 , 108, 152 A.3d 661 (2017). The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. See ⁶⁷³ Jones v. State , 407 Md. 33 , 51, 962 A.2d 393 (2008). 6 Whether a search or seizure is unreasonable under the Fourth Amendment " 'depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' " Sellman v. State , 449 Md. 526 , 540, 144 A.3d 771 (2016) (quoting Pennsylvania v. Mimms , 434 U.S. 106 , 109, 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) ).

Accord Robinson , 451 Md. at 108 , 152 A.3d 661 . A Fourth Amendment seizure occurs when, " 'taking into account all of the ⁷⁷⁸ circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.' " Swift v. State , 393 Md. 139 , 152-53, 899 A.2d 867 (2006) (quoting Florida v. Bostick , 501 U.S. 429 , 437, 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991) ). A warrantless seizure generally is unreasonable unless supported by probable cause or reasonable suspicion of criminal activity. Terry v. Ohio , 392 U.S. 1 , 21, 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) ; Lee v. State , 311 Md. 642 , 652, 537 A.2d 235 (1988).

For example, an investigatory detention, commonly known as a Terry stop, will not violate the Fourth Amendment "as long as the officer has a reasonable, articulable suspicion of criminal activity." Swift , 393 Md. at 150 , 899 A.2d 867 . An arrest, likewise, will not violate the Fourth Amendment if an officer has "probable cause to believe that a person has committed or is committing a crime." Id. With respect to a warrantless search, the general rule is that " 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to ⁶⁷⁴ a few specifically established and well-delineated exceptions.' " Goodwin , 235 Md. App. at 278 , 175 A.3d 911 (quoting Arizona v. Gant , 556 U.S. 332 , 338, 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009) ). Accord State v. Johnson , 458 Md. 519 , 533-34, 183 A.3d 119 (2018).

One such exception is a search incident to arrest. Grant v. State , 449 Md. 1 , 16 n. 3, 141 A.3d 138 (2016) ; Barrett v. State , 234 Md. App. 653 , 662, 174 A.3d 441 (2017), cert. denied , 457 Md. 401 , 178 A.3d 1243 (2018). This Court has explained the search incident to arrest exception, as follows: [A] police officer with probable cause to believe that a suspect has or is committing a crime may arrest the suspect without a warrant. See Brinegar v. United States, 338 U.S. 160 , 176, 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949)....

Once lawfully arrested, police may search "the person of the arrestee" as well as "the area within the control of the arrestee" to remove any weapons or evidence that could be concealed or destroyed. United States v. Robinson , 414 U.S. 218 , 224, 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973). Barrett , 234 Md. App. at 664 , 174 A.3d 441 (quoting Conboy v. State , 155 Md. App. 353 , 364, 843 A.2d 216 (2004) ). Accordingly, "[a]ny container within an arrestee's immediate control at the time of arrest is subject to a contemporaneous search incident to that arrest." Ricks v. State , 322 Md. 183 , 194, 586 A.2d 740 (1991).

With this background in mind, we turn to the parties' contentions. I. Officer Curtis' Initial Seizure of Appellant Relying on the body-camera footage introduced into evidence, appellant contends, and the State agrees, that appellant "was seized within the meaning of the Fourth Amendment" when Officer Curtis grabbed his arm. Appellant argues, however, again relying on the body-camera footage, that Officer Curtis grabbed his arm prior to the time that Officer Burch detected the odor of marijuana emanating from him. He asserts, therefore, that Officer Curtis did not have a lawful ⁶⁷⁵ basis to seize him, and the evidence subsequently found should have been suppressed.

A review of the body-camera footage does not reflect where Officer Burch was when Officer Curtis initially touched appellant's arm. It does reflect, however, that within one second or less, Officer Burch was in front of appellant telling him to put ⁷⁷⁹ his hands up. 7 Although appellant hinges his argument on appeal on this sequence of events during a fast moving situation, he never raised this argument below or suggested that the timing of Officer Curtis' actions had any bearing at all on the suppression issue. And the circuit court did not address the significance or timing of Officer Curtis' action in grabbing appellant because the issue was not raised at the suppression hearing. Under these circumstances, the issue is not preserved for this Court's review.

See Maryland Rule 8-131(a) ("Ordinarily, the appellate court will not decide any other issues unless it plainly appears by the record to have been raised in or decided by the trial court."); Ray v. State , 435 Md. 1 , 19, 76 A.3d 1143 (2013) (where a defendant advances one theory of suppression pursuant to Maryland Rule 4-252, but fails to argue an additional theory that it later asserts on appeal, the defendant has "waived the right to have that claim litigated on direct appeal."). 8 Accordingly, we will not address this contention.

II

Search Incident to Arrest Appellant next contends that the police did not have probable cause "to conduct a full-blown warrantless search of Appellant's ⁶⁷⁶ person based solely upon the odor of marijuana on Appellant's breath ." 9 The State argues that the circuit court properly determined that the detection of the odor of marijuana emanating from appellant's person provided probable cause to arrest and search appellant. When analyzing whether probable cause existed to effectuate a warrantless arrest, " 'we examine the events leading up to the arrest, and then decide "whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to" probable cause.' " Barrett , 234 Md. App. at 666 , 174 A.3d 441 (quoting Maryland v. Pringle , 540 U.S. 366 , 371, 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003) ). In Barrett , we explained the standard for probable cause as follows: Probable cause to arrest "exists where the facts and circumstances within the knowledge of the officer at the time of the arrest, or of which the officer has reasonably trustworthy information, are sufficient to warrant a prudent person in believing that the suspect had committed or was committing a criminal offense." Moulden v. State , 212 Md. App. 331 , 344, 69 A.3d 36 (2013) (quoting Haley v. State , 398 Md. 106 , 133, 919 A.2d 1200 (2007) ). 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." Pringle , 540 U.S. at 370 , 124 S.Ct. 795 (quotation marks ⁷⁸⁰ and citations omitted).

It is "not reducible to precise definition or quantification." Robinson, 451 Md. at 110 , 152 A.3d 661 (quoting Florida v. Harris , 568 U.S. 237 , 133 S.Ct. 1050 , 1055, 185 L.Ed.2d 61 (2013) ). Rather, "[p]robable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or ⁶⁷⁷ even usefully, reduced to a neat set of legal rules." Pringle , 540 U.S. at 370 -71 , 124 S.Ct. 795 (quoting Illinois v. Gates , 462 U.S. 213 , 232, 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) ). "A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion." Moulden , 212 Md. App. at 344 , 69 A.3d 36 (quoting Haley , 398 Md. at 133 , 919 A.2d 1200 ). Id.

"Probable cause, we must remember, is not a 'high bar.' " Johnson , 458 Md. at 543 , 183 A.3d 119 (quoting District of Columbia v. Wesby , --- U.S. ----, 138 S.Ct. 577 , 586, 199 L.Ed.2d 453 (2018) ). The Maryland appellate courts consistently have held that the odor of marijuana provides probable cause to believe that marijuana is present. See, e.g. , Robinson , 451 Md. at 133 , 152 A.3d 661 ("the odor of marijuana remains evidence of a crime."); Bowling , 227 Md. App. at 469 , 134 A.3d 388 (a K-9 alert to the odor of marijuana establishes probable cause to conduct a warrantless search of a vehicle); Wilson v. State , 174 Md. App. 434 , 454, 921 A.2d 881 ("The odor of marijuana emanating from a vehicle provides probable cause to believe that additional marijuana is present elsewhere in the vehicle."), cert. denied , 400 Md. 649 , 929 A.2d 891 (2007), cert. denied , 552 U.S. 1191 , 128 S.Ct. 1228 , 170 L.Ed.2d 78 (2008) ; State v. Harding , 166 Md. App. 230 , 240, 887 A.2d 1108 (2005) ("odor of marijuana alone can provide a police officer probable cause to search a vehicle"), cert. denied , 393 Md. 161 , 900 A.2d 206 (2006) ; Ford v. State , 37 Md. App. 373 , 379-80, 377 A.2d 577 ("knowledge gained from the sense of smell alone" may provide probable cause to believe a "crime is being committed in the presence of the officer"), cert. denied , 281 Md. 737 (1977). Cf.

Bailey v. State , 412 Md. 349 , 375-76, 987 A.2d 72 (2010) (distinguishing marijuana, which is contraband and has a distinctive identifying odor, from ether). To be sure, many of the cases address the odor of marijuana in the context of the smell emanating from a vehicle and probable cause to conduct a vehicle search, and this case ⁶⁷⁸ involves the smell of marijuana emanating from a person and probable cause to arrest. Although the underlying inquiry in these two contexts is different, the level of evidence required to constitute probable cause is the same in both contexts. As the United States Court of Appeals for the Fourth Circuit stated in United States v. Humphries , 372 F.3d 653 , 659 (4th Cir. 2004) : It is true that the inquiries about whether the facts justify a search are different from whether they justify a seizure.

In the search context, the question is whether the totality of circumstances is sufficient to warrant a reasonable person to believe that contraband or evidence of a crime will be found in a particular place. Ornelas [ v. United States ] , 517 U.S. [690] at 696, 116 S.Ct. 1657 [ 134 L.Ed.2d 911 (1996) ] ; Illinois v. Gates, 462 U.S. 213 , 238, 103 S.Ct. 2317 , 76 L.Ed. 2d 527 (1983). Whereas in the arrest context, the question is whether the totality of the circumstances indicate to a reasonable person that a "suspect has committed, is committing, or is about to commit" a crime. [ Michigan v. ] DeFillippo, 443 U.S. [31] at 37, 99 S.Ct. 2627 [ 61 L.Ed.2d 343 (1979) ]. But in both cases, the quantum ⁷⁸¹ of facts required for the officer to search or to seize is "probable cause," and the quantum of evidence needed to constitute probable cause for a search or a seizure is the same. 2 Wayne R. LaFave, Search & Seizure § 3.1(b) (3d ed.1996).

Accord State v. Wallace , 372 Md. 137 , 147 n. 3, 812 A.2d 291 (2002) ("It does not take more probable cause to support a warrantless arrest than it does to support a warrantless ... search.") (quoting State v. Funkhouser , 140 Md. App. 696 , 721, 782 A.2d 387 (2001) ), cert. denied , 540 U.S. 1140 , 124 S.Ct. 1036 , 157 L.Ed.2d 951 (2004). Because the underlying inquiry is different in the two contexts, the smell of marijuana can provide probable cause in one context and not the other. Although the smell of marijuana emanating from a vehicle provides probable cause to believe that contraband or evidence of a crime will be in the vehicle, authorizing a search of the vehicle, Robinson , 451 Md. at 125 , 152 A.3d 661 ; ⁶⁷⁹ Bowling , 227 Md.App. at 476 , 134 A.3d 388 , it may, or may not, provide probable cause to believe that a particular occupant of the vehicle is committing or has committed a crime, thereby authorizing an arrest of that occupant. See, e.g. , Wallace , 372 Md. at 155 -56 , 812 A.2d 291 (narcotics dog's alert to vehicle does not, without additional circumstances linking drugs to passenger, provide probable cause to arrest passenger); Barrett , 234 Md. App. at 667 , 174 A.3d 441 (probable cause to arrest passenger where odor of marijuana emanating from vehicle linked to passenger by smell emanating from passenger's person and passenger's admission to smoking marijuana and handing the officer a cigar); Ford , 37 Md. App. at 375 , 379-80 , 377 A.2d 577 (arrest of driver based on smell of marijuana emanating from his person and interior of car was supported by probable cause); State v. Mitchell , 167 Wis.2d 672 , 482 N.W.2d 364 , 368-69 (1992) (probable cause to arrest where officer smelled marijuana and observed smoke in the vehicle).

Cf. Pringle , 540 U.S. at 372 , 124 S.Ct. 795 (probable cause to arrest all occupants of vehicle where the facts permitted an inference that all of the occupants had knowledge of, and exercised control over, drugs found in vehicle). In determining whether the smell of marijuana gives probable cause to arrest a person, whether the person is in a vehicle or standing in a public place, the key inquiry is whether the circumstances sufficiently link that person to the suspected criminal activity. "[I]f an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana." Humphries , 372 F.3d at 659 .

In Humphries , police officers on patrol in a high crime area exited their patrol car and approached a group of persons "hanging outside." Id. at 655 . They "smelled a strong odor of marijuana." Id. Humphries turned and quickly walked away. Id.

One officer followed Humphries, and when he "got to within 5 to 10 feet of Humphries, he smelled 'the same strong odor of marijuana ... coming off of [Humphries'] person' as that which he had smelled upon exiting the patrol car." Id. ⁶⁸⁰ The officer instructed Humphries to stop several times, but Humphries continued to walk away. Id. at 655-56 . The officer arrested Humphries, and he "smelled the odor of marijuana on Humphries' breath." Id. at 656 . In holding that the officer had probable cause to believe that Humphries had committed, was committing, or was about to commit a crime, the court noted that it had "repeatedly held that the odor of marijuana alone can provide ⁷⁸² probable cause to believe that marijuana is present in a particular place." Id. at 658 .

The court stated that, although the odor of marijuana would not authorize the police to arrest any person in the vicinity of the smell, "if an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana." Id. at 659 . Thus, in that case, the police did not have probable cause to arrest Humphries when they smelled the odor of marijuana upon exiting the patrol car approximately 20 feet from Humphries, when the odor could not be "tied to Humphries alone." Id. When the officer followed Humphries and smelled the "same strong odor of marijuana" emanating from Humphries' person, however, he was able to localize the source of the odor to Humphries, and he had probable cause to arrest Humphries for possession of marijuana. Id. at 659-60 . 10 Similarly, in United States v. Paige , 870 F.3d 693 , 700-01 (7th Cir. 2017), the United States Court of Appeals for the Seventh Circuit held that the smell of marijuana emanating from Paige's person gave the police probable cause to arrest Paige for marijuana possession.

The court stated that "the odor of marijuana, if sufficiently localized to a specific ⁶⁸¹ person, provides probable cause to arrest that person for the crime of marijuana possession." Id. at 700 . 11 The court also held that the police had probable cause to arrest Paige for operating a vehicle while under the influence of an intoxicant based on the additional factors that Judge Arthur highlights in his concurring opinion, i.e., that Paige's car had been stopped in the drive-through lane of the McDonald's for such a long time that an employee called 911 regarding concern that the person was sick or injured, and that Paige continued to be drowsy when he walked with the officer to the police wagon. Id. at 701 . The discussion regarding probable cause to arrest for marijuana possession, however, focused solely on the smell of marijuana coming from Paige's person. Id. at 700-01 .

Other courts agree that, if the odor of marijuana is sufficiently localized to a specific person, the police have probable cause to arrest that person for the crime of marijuana possession. See United States v. Wright , 844 F.3d 759 , 762-63 (8th Cir. 2016) ("Once the uniformed officer detected an odor of marijuana coming from Wright's person, the officer had probable cause to arrest Wright."), cert. denied , --- U.S. ----, 137 S.Ct. 2279 , 198 L.Ed.2d 710 (2017) ; United States v. Perdoma , 621 F.3d 745 , 749 (8th Cir. 2010) (officer had probable cause to arrest defendant after detecting ⁷⁸³ odor of marijuana emanating from his person), cert. denied , 563 U.S. 992 , 131 S.Ct. 2446 , 179 L.Ed.2d 1216 (2011) ; State v. T.T. , 594 So.2d 839 , 840 (Fla. Dist. Ct. App. 1992) (given the distinctive odor of marijuana, officer had probable cause to believe the defendant was in possession of cannabis "based solely on the very strong smell ⁶⁸² of burned marijuana residue, which [the officer] detected coming from [the defendant] as he walked past [the officer] at the entrance doorway."); Edmond v. State , 951 N.E.2d 585 , 591 (Ind.

Ct. App. 2011) (where officer smelled odor of marijuana in car and on Edmond's breath, he had a basis to believe that Edmond possessed marijuana and probable cause to arrest him.). That the possession of ten grams or less of marijuana has been decriminalized does not change this analysis. 12 Appellant acknowledges, as he must, that the Court of Appeals has stated that, despite the decriminalization of possession of less than ten grams of marijuana, the odor of marijuana "remains evidence of a crime" and provides probable cause to search a vehicle. Robinson , 451 Md. at 133 , 137 , 152 A.3d 661 . In so concluding, the Court noted that the odor of marijuana "may be just as indicative of crimes such as the possession of more than ten grams of marijuana, [or] possession of marijuana with the intent to distribute ... as it is of possession of less than ten grams of marijuana," and it is "unreasonable to expect law enforcement officers to determine, based on odor alone, the difference between 9.99 grams or less of marijuana and 10 grams of marijuana." Id. at 133-34 , 152 A.3d 661 .

Nevertheless, appellant asserts that the change in status of marijuana possession "cannot be ignored in the probable cause ⁶⁸³ analysis" regarding the right to arrest a person in a public place. This Court rejected a similar contention in Barrett , 234 Md. App. at 671 -72 , 174 A.3d 441 . In that case, after determining that the police had probable cause to believe that Barrett was in possession of marijuana, 13 we discussed the analysis in Robinson , 451 Md. at 122 -23 , 152 A.3d 661 , that, "even though possession of a small amount of marijuana had been decriminalized, it still suggested criminal activity." Barrett , 234 Md. App. at 668 -69 , 174 A.3d 441 . We held that "a police officer who has reason to believe that an individual is in possession of marijuana has probable cause to effectuate an arrest, even if the officer is unable to identify whether the amount possessed is ⁷⁸⁴ more than 9.99 grams." Id. at 671 , 174 A.3d 441 .

Here, there was probable cause to believe that appellant was, or had been, in possession of marijuana. In so concluding, we do not suggest that a general odor of marijuana in a certain location provides probable cause to arrest a person in the area. Indeed, the general odor of marijuana that the officers smelled when they initially entered the store would not provide probable cause to arrest appellant because it "could not initially be tied to" appellant alone. Humphries , 372 F.3d at 659 .

Officer Burch testified, however, testimony that the circuit court credited, that he detected the odor of marijuana emanating from appellant's person as he "stood face-to-face" with appellant, and based on this odor, he stopped and searched appellant. We hold, consistent with authority in other jurisdictions, that the odor of marijuana, if localized to a particular person, provides probable cause to arrest that person for the crime of possession of marijuana. Here, where Officer Burch smelled the odor of marijuana emanating from appellant's person and ⁶⁸⁴ localized to appellant, he had probable cause to arrest appellant and search him incident to that arrest. See Barrett , 234 Md. App. at 672 , 174 A.3d 441 (search incident to arrest exception applies as long as search is "essentially contemporaneous with the arrest") (quoting Wilson v. State , 150 Md. App. 658 , 673, 822 A.2d 1247 (2003) ); Conboy , 155 Md. App. at 367 , 843 A.2d 216 . 14 Accordingly, the circuit court properly denied the motion to suppress the evidence recovered during the lawful search incident to arrest.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT. Concurring Opinion by Arthur, J. Dissenting Opinion by Nazarian, J. Concurring Opinion by Arthur, J. I agree with Judge Graeff that the appellant, Rasherd Lewis, did not preserve his contention that Officer Curtis seized him before Officer Burch claims to have detected the odor of marijuana on his person or his breath (it is not entirely clear which). I am, however, extremely troubled by the conclusion that the officers had probable cause to arrest Lewis and to conduct a search incident to arrest solely because one of ⁶⁸⁵ them claimed to smell marijuana on his person or his breath when they were "right in front of him" and were about to seize him anyway on the basis of a tip that, everyone agrees, was insufficient to justify any intrusion on their part.

If I were writing on a blank slate, I would reverse the conviction. I join Judge Graeff's opinion only because I believe that ⁷⁸⁵ I am constrained to do so by the implications of the Court of Appeals' decision in Robinson v. State , 451 Md. 94 , 152 A.3d 661 (2017), which held that, despite the decriminalization of simple possession of less than 10 grams of marijuana, the odor of marijuana is "evidence of a crime" ( id. at 133 , 152 A.3d 661 ) that provides probable cause to search a vehicle. Id. at 130, 137 , 152 A.3d 661 . In the bygone era of complete marijuana prohibition, when judges still spelled "marijuana" with an "h," this Court held that a police officer had probable cause to arrest the driver of an automobile because the smell of marijuana was coming from both the interior of the car and from his clothes.

Ford v. State , 37 Md. App. 373 , 379-80, 377 A.2d 577 (1977). But neither before nor since the partial decriminalization of marijuana in 2014 has any Maryland court actually gone so far as to hold that the mere odor of marijuana on someone's person or breath can itself provide probable cause for an arrest and a search incident to arrest. In Barrett v. State , 234 Md. App. 653 , 174 A.3d 441 (2017), cert. denied , 457 Md. 401 , 178 A.3d 1243 (2018), which is cited at several places in Judge Graeff's opinion, this Court held that police officers had probable cause to arrest the passenger of an automobile when they "not only smelled marijuana in the vehicle, they smelled it on [the passenger], and he admitted to smoking marijuana and handed the officer a cigar." Id. at 667-68, 174 A.3d 441 . In upholding the arrest and the search incident to it, however, we expressly cautioned that that case "d[id] not involve the mere odor of marijuana." Id. at 667 , 174 A.3d 441 (emphasis added).

Barrett does not compel us to affirm the conviction in this case. ⁶⁸⁶ Virtually none of the cases from other jurisdictions support the proposition that a law enforcement officer has probable cause to arrest and search a person solely because he has the odor of marijuana on his person or breath. In United States v. Humphries , 372 F.3d 653 , 659 (4th Cir. 2004), which is discussed at length in Judge Graeff's opinion, an officer smelled the "strong odor of marijuana ... coming off [Humphries's] person" from a distance of five to ten feet away after Humphries had "quickly walked away" from him. (Ellipsis in original.) As the officer pursued Humphries up to "the door of [a] residence that he entered to evade the officer" ( id. ), "the odor of marijuana followed Humphries down the street[.]" Id. The officer seized Humphries, patted him down, and found a gun, some Percocet tablets, and some crack cocaine.

Id. at 656 . On those facts, two judges concluded that the officer had probable cause to believe that Humphries possessed marijuana and, hence, had probable cause to arrest him. Id. at 659-60 . 1 It is a far cry from Humphries to this case. In Humphries the officer could tell from a considerable distance that the suspect was leaving the scent of marijuana in his wake as he "quickly walked away" from the officer in an effort to "evade" an interaction with the police; in this case, by contrast, the suspect had just completed a purchase at a convenience store when the officers suddenly seized him, purportedly because they could detect the scent of ⁷⁸⁶ marijuana on his person or his breath from about a foot away.

Humphries does not go so far as to authorize the arrest in this case. Furthermore, "[o]ther factors strengthen[ed]" the Humphries court's conclusion that the officer had probable cause to arrest the suspect. Id. at 660 . As Humphries "walked away" ⁶⁸⁷ from the officer "at a quick pace," he "ignor[ed] the officer's commands to stop." Id.

"He also ignored the officer's command to stop before he entered a residence." Id. Not only would this "evasive conduct ... suggest culpability to a reasonable officer" ( id. ), but the officers also observed that, "as [they] approached in their marked patrol car, Humphries patted his waist," which one of them "interpreted as a 'security check,' an instinctive check by Humphries to see that his weapon was in place." Id. Because none of those factors are even remotely present in this case, I do not see Humphries as authority to conclude that the officers had probable cause to arrest Lewis solely because he had the odor of marijuana on his person or his breath. I have a similar perspective on United States v. Paige , 870 F.3d 693 (7th Cir. 2017), which Judge Graeff also discusses in her opinion.

In that case, the employee of a fast-food restaurant called 911 because Paige had fallen asleep in his car in the restaurant's drive-through lane. Id. at 697 . When a police officer arrived, "she detected a strong odor of fresh marijuana coming from" Paige. Id. ; see also id. at 700 (upon approaching Paige, the officer " 'could smell this strong skunky smell' " of marijuana " 'coming from off his person' ").

Additionally, Paige appeared to be intoxicated. Id. at 697 . He claimed that he "had just fallen asleep" ( id. ), which "seemed suspicious" to the officer, because he "had been asleep in a drive-through lane for about an hour." Id. Because she suspected that Paige might possess marijuana or a firearm, the officer patted him down and found a gun.

Id. After placing him under arrest, she found marijuana, crack cocaine, drug-packaging materials, and a digital scale in his car. Id. Although the Paige court proceeded as though the officer had probable cause to make an arrest because of the strong odor of fresh marijuana that was emanating from Paige's person ( id. at 700-01 ), the case cannot be fairly read to imply that the finding of probable cause was based on the odor of marijuana alone, in isolation from other factors, such as Paige's unusual behavior, his obvious intoxication, and his implausible explanation for his conduct.

Paige is certainly not ⁶⁸⁸ authority for the proposition that if an officer claims to smell marijuana from perhaps a foot away, he has probable cause, ipso facto , to arrest and search someone who was simply putting away his change after making a purchase in a convenience store. 2 ⁷⁸⁷ To spare the reader an exegesis of each of the several other cases cited by Judge Graeff, suffice it to say that, in my assessment, the only one that goes nearly as far as this case is State v. T.T. , 594 So.2d 839 (Fla. Dist. Ct. App. 1992). In that case, a sheriff searched T.T., a juvenile, because "he smelled a very strong odor of smoked cannabis emanating" from the young man as he walked through a doorway where the sheriff was standing.

Id. at 840 . A trial judge suppressed the small amount of marijuana that was found in the resulting search ( see id. ), but did not explain his rationale. See id. at 841 (Dauksch, J., dissenting). On appeal, in a one-page majority opinion, two of the three judges voted to reverse, asserting, with little analysis or explanation, that the sheriff had probable cause to arrest T.T. The third judge dissented on the ground that the trial judge may not have believed the sheriff ⁶⁸⁹ (who was the sole witness) and that the appellate court could not disturb that finding.

I am unpersuaded by the scanty reasoning in that divided opinion. If cases like Ford , Barrett , Humphries , Paige , and T.T . were the only ones at hand, I would not extend them to approve the arrest and search of someone who was, from all outward appearances at least, a law-abiding citizen, solely because the odor of what appears to have been burnt marijuana was detectable on his breath from about a foot away. 3 I believe, however, that in Robinson the Court of Appeals set out an analytical framework that leaves me no choice but to affirm the conviction in this case. In Robinson , 451 Md. at 99 , 152 A.3d 661 , the Court held that a law enforcement officer has probable cause to search a vehicle if he or she detects the odor of marijuana emanating from it. The Court reasoned that even though Maryland no longer treats the possession of small quantities as a criminal offense, marijuana in any amount "remains contraband." Id.

The Court added that "the odor of marijuana gives rise to probable cause to believe that the vehicle contains contraband or evidence of a crime." Id. In short, despite partial decriminalization, the Court said, "the odor of marijuana remains evidence of a crime." Id. at 133 , 152 A.3d 661 . Furthermore, even