Lewis v. State

Rasherd Lewis v. State of Maryland, No. 44, September Term, 2019 CRIMINAL PROCEDURE — ODOR OF MARIJUANA — PROBABLE CAUSE — SEARCH INCIDENT TO LAWFUL ARREST EXCEPTION — DECRIMINALIZATION OF LESS THAN TEN GRAMS OF MARIJUANA — The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. For a warrantless arrest to be reasonable, there must be probable cause to believe that the arrestee committed a felony or was committing a felony or misdemeanor in the presence of a law enforcement officer. Possession of less than ten grams of marijuana is neither a felony nor a misdemeanor, but rather a civil offense. In order to lawfully arrest someone for possession of marijuana, the law enforcement officer must have probable cause to believe the arrestee possesses a criminal amount of marijuana, i.e., ten grams or more.

A law enforcement officer cannot determine by the odor of marijuana alone the quantity of marijuana, if any, someone possesses. Therefore, the mere odor of marijuana does not create probable cause to believe an arrestee possesses a criminal amount of that substance. Circuit Court for Baltimore City Case No. 417048006 Argued: January 9, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 44 September Term, 2019 RASHERD LEWIS v. STATE OF MARYLAND Barbera, C.J., McDonald Watts Hotten Getty Booth Biran, JJ. Opinion by Barbera, C.J. Filed: July 27, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-07-27 14:09-04:00 Suzanne C. Johnson, Clerk In 2014, the General Assembly decriminalized the possession of less than ten grams of marijuana, making such possession a civil offense. Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2014 Supp.), § 5-601(c)(2).

Since then, this Court has issued three opinions in three cases addressing the Fourth Amendment implications of such decriminalization: Robinson v. State, 451 Md. 94 (2017), Norman v. State, 452 Md. 373 , cert. denied, 138 S. Ct. 174 (2017), and Pacheco v. State, 465 Md. 311 (2019). All three cases involved police officers’ actions in response to their knowledge or suspicion of either the presence or odor of marijuana. The outcome of each, however, was dictated by the underlying facts and consideration of the pertinent exception(s) to the Fourth Amendment’s warrant requirement. See Robinson, 451 Md. at 125–35 (automobile exception); Norman, 452 Md. at 411–13 (stop and frisk exception); Pacheco, 465 Md. at 321–23 (search incident to arrest and automobile exceptions).

We here consider, and for the reasons that follow hold, that the odor of marijuana, without more, does not provide law enforcement officers with the requisite probable cause to arrest and perform a warrantless search of that person incident to the arrest. I. Facts and Procedural History Rasherd Lewis, Petitioner, was convicted in the Circuit Court for Baltimore City of wearing, carrying, or transporting a handgun upon the court’s finding him guilty of that charge based on an agreed statement of facts. That proceeding followed a hearing on Petitioner’s motion to suppress a handgun, marijuana, cash, and plastic baggies that the police seized during a search of him at a convenience store in downtown Baltimore City on February 1, 2017. The Suppression Hearing Baltimore City Police Officer David Burch, Jr., was the sole witness to testify at the suppression hearing, after being accepted as an expert in the identification and packaging of marijuana.

The court, having credited the testimony of Officer Burch, denied Petitioner’s motion to suppress the items seized during the search. We summarize Officer Burch’s testimony, viewed in the light most favorable to the prevailing party, here, the State. On February 1, 2017, Officer Burch received a tip about a potentially armed individual in the 400 block of West Saratoga Street in Baltimore City. The tipster was not a confidential informant but someone whom Officer Burch described as having provided reliable information to him for “a little less than a month” before the incident at issue in the present case.

Officer Burch conveyed the tip and a description of the individual to CitiWatch, which monitors Baltimore City’s surveillance cameras. The CitiWatch Operator reported back that an individual matching the description given by Officer Burch—later identified as Petitioner—was observed on a surveillance camera entering the Bag Mart, a convenience store located at 401 West Saratoga Street. Officer Burch was familiar with that store, as it was in a “high crime area” and known to him as an “open air drug market” where marijuana was often distributed both inside and in front of the store. He previously made controlled dangerous substance and handgun arrests at the location. 2 Officer Burch and five other officers responded to the Bag Mart.

The store is small. As he and the other officers were entering, Officer Burch saw that the store was “fairly crowded” and smelled of the odor of marijuana. Officer Burch spotted Petitioner move from a position near the cash register and follow others who were heading toward the exit. Petitioner had a red bag strapped across his chest, was walking normally, and appeared to be calm.

As Petitioner passed “literally right in front of” Officer Burch, the officer smelled “the odor of marijuana emitting from [Petitioner’s] person.” By that time, the officers had asked the other patrons to exit the store, leaving only the store’s owner, Petitioner, and the six police officers. Officer Burch testified that he reached out and “stopped” Petitioner based on “the odor of marijuana and the information [he] received to further investigate.”1 Officer Burch described the stop. While standing “face to face” with Petitioner, he used his right hand to grab Petitioner’s right hand and his left hand to grab Petitioner’s left shoulder. The other five officers surrounded Petitioner, with Officer Curtis situated directly behind Petitioner.

Officers Burch and Curtis were wearing department-issued body worn cameras. Footage from each of the cameras was entered into evidence at the suppression hearing. Officer Burch testified that he turned on his camera when he came into direct contact with Petitioner. Officer Burch acknowledged, however, that for about thirty seconds the camera 1 As we shall see, the suppression court found that the tip did not supply sufficient reliability to support a lawful Terry stop of Petitioner. 3 was “buffering.” As best we can discern from the record, during that time, Officer Burch directed Petitioner to raise his hands and Petitioner complied.

When Petitioner began to lower his hands, Officer Curtis, at Officer Burch’s direction, grabbed one then presumably the other of Petitioner’s arms and handcuffed Petitioner. Officer Curtis’s camera recorded Officer Burch advising Petitioner to calm down as Officer Curtis handcuffed him. Once Petitioner was handcuffed, Officer Burch undertook a full search of Petitioner. He first searched the red bag and found a handgun inside.

Then, as he searched Petitioner’s pockets and waistband, Petitioner advised that he was carrying a small amount of marijuana. Officer Burch found that quantity of marijuana in a sealed, one-inch plastic baggie in one of Petitioner’s pockets.2 Petitioner, through counsel, advanced two theories to support his motion to suppress the fruits of the search. He argued first that, pursuant to Terry v. Ohio, 392 U.S. 1 (1968), the police did not possess the requisite reasonable suspicion to “stop” Petitioner at the outset of the encounter.3 Independent of that argument, Petitioner contended that the full search of Petitioner and the bag he carried was unlawful because at the time the search was undertaken, the police lacked probable cause to believe he had committed a felony or was committing a felony or misdemeanor in their presence. 2 The search also disclosed a number of empty plastic baggies and $367. 3 Law enforcement officers may conduct “an investigatory stop or detention” when the officers have “reasonable suspicion that a person has committed or is about to commit a crime[,]” commonly known as a “Terry stop.” Bailey v. State, 412 Md. 349, 363 (2010) (quoting Swift v. State, 393 Md. 139 , 149–51 (2006)). 4 Specific to the probable cause argument, Petitioner argued that the search incident to arrest exception—the justification propounded by the State—did not justify a full-scale search because no probable cause existed to arrest him. Petitioner noted that someone in possession of less than ten grams of marijuana may be issued a civil citation but cannot be arrested, therefore no lawful arrest occurred.

The State responded that the odor of marijuana provided Officer Burch with probable cause to arrest and search Petitioner because marijuana in any amount is contraband, and although possession of less than ten grams of marijuana was decriminalized, “it was never the legislature’s intention to reclassify marijuana as not being contraband.” The suppression court determined that the tip that caused Officer Burch and his five fellow officers to respond to the Bag Mart lacked sufficient reliability to justify the initial stop of Petitioner. In making that determination, the court quoted Florida v. J.L., 529 U.S. 266, 272 (2000), which states that reasonable suspicion “requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” Given the lack of sufficient indicia of reliability, the court granted Petitioner’s motion to suppress evidence of the tip. The suppression court credited Officer Burch’s testimony that he smelled the odor of marijuana on Petitioner’s breath and body as soon as he and Petitioner were “face to face.” Based on that finding, the court ruled that the odor of marijuana gave police probable cause to arrest Petitioner and, incident to such arrest, conduct a full search of his person. In making that ruling, the court relied on Robinson v. State, 451 Md. 94 (2017), which we 5 noted at the outset of this opinion involved the automobile exception, not the search incident to arrest exception, to the Fourth Amendment’s warrant requirement.

Extrapolating upon the reasoning of Robinson, the suppression court concluded: “[I]t would appear that the odor of marijuana emanating from a person provides probable cause to believe that that person contains evidence of a crime[; consequently,] a police officer may search that person under such circumstances.” Based on that ruling, the court denied the defense’s motion to suppress the handgun found during the search of Petitioner.4 Subsequent Procedural History Petitioner pleaded not guilty on an agreed statement of facts to the charge of wearing, carrying, or transporting a handgun. After the State’s presentation of the agreed- upon facts, the circuit court found Petitioner guilty of the handgun charge and sentenced him to three years’ incarceration with all but ninety days suspended and three years’ supervised probation. The Appeal On appeal to the Court of Special Appeals, the three-judge panel, in a fractured opinion, affirmed the decision of the circuit court. Lewis v. State, 237 Md. App. 661 (2018).

Petitioner advanced two theories supporting the claim that he was unlawfully seized and subjected to a search incident to arrest. Only one of those contentions was raised and argued at the suppression hearing and therefore was properly before the Court of 4 The court did not suppress the non-criminal amount of marijuana found during the search of Petitioner. 6 Special Appeals and is properly before us now. The other argument, raised for the first time on appeal, was waived by omission at the suppression hearing. A Contention Unpreserved for Appellate Review Petitioner’s first of two contentions on appeal to the Court of Special Appeals was that the police officers had no lawful basis to seize him at the outset of the encounter in the Bag Mart; consequently, the handgun found during the search following that unlawful seizure should have been suppressed as fruit of the poisonous tree.

See Cox v. State, 421 Md. 630, 651 (2011) (“[T]he fruit of the poisonous tree doctrine excludes direct and indirect evidence that is a product of police conduct in violation of the Fourth Amendment.”) (quoting Myers v. State, 395 Md. 261, 291 (2006)). Petitioner advances the same contention in the second question he presents to us. The Court of Special Appeals explained why this contention was not preserved for appellate review: 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 his hands up.

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 7 right to have that claim litigated on direct appeal.”).

Accordingly, we will not address this contention. Lewis, 237 Md. App. at 675 (footnotes omitted). We agree with the Court of Special Appeals that Petitioner failed to preserve his contention that Officer Curtis had no lawful basis to seize Petitioner before Officer Burch smelled marijuana on his person, rendering the handgun found during the subsequent search inadmissible as the poisonous fruit of the unlawful seizure. There is, moreover, no need to exercise our discretion to consider that unpreserved contention, as Petitioner asks us to do,5 because Petitioner ultimately prevails on the first question he presents.

We address that argument below. Probable Cause to Conduct a Full-Scale Search of Petitioner? Petitioner argues that the police officers lacked probable cause to conduct a warrantless search of him based solely on Officer Burch’s having smelled the odor of marijuana emanating from either or both Petitioner’s breath or body. A majority of the Court of Special Appeals’ three-judge panel agreed with the circuit court’s ruling at the 5 The questions as presented by Petitioner are: 1) Did the Court of Special Appeals err in concluding that the odor of marijuana on a person, without more, constitutes probable cause to arrest? 2) When a majority of a Court of Special Appeals panel concludes that its decision “will result in injustice,” should the court exercise its discretion under Maryland Rule 8-131 and address a constitutional question, which the parties fully briefed in the absence of a preservation challenge, about whether incontrovertible body-camera evidence demonstrates the “seizure” of a person without probable cause? 8 suppression hearing that Robinson stands for the proposition that, because marijuana remains contraband, the odor of marijuana provides law enforcement officers with probable cause to arrest a person, and therefore a search incident thereto is reasonable.

Lewis, 237 Md. App. at 683 (holding “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.”); id. at 690 (Arthur, J., concurring) (“Therefore, if ‘the odor of marijuana remains evidence of a crime’ in the context of a vehicle search, as Robinson said . . . , it presumably ‘remains evidence of a crime’ in the context of a warrantless arrest.”). Conversely, the dissenting opinion explained that “Robinson fairly applies the general principle that probable cause can arise from indicia of a crime or contraband, and holds that the odor of marijuana coming out of a car indicates that contraband or criminal activity are present in the car.” Id. at 697 (Nazarian, J., dissenting) (emphasis in original). Because, however, there are plausible innocuous explanations for why someone may smell of marijuana that do not involve a vehicle, the dissent asserted that Robinson cannot be read as “stand[ing] for the proposition that an odor of marijuana emanating from a person indicates that contraband is present or that a crime has been committed.” Id. (emphasis in original).

For the reasons that follow, we agree with Petitioner that Robinson does not control the outcome of this case. Instead, it is Pacheco, decided after the Court of Special Appeals issued its opinion in the case at bar, that dictates the outcome here. We hold that more than the odor of marijuana is required for probable cause to arrest a person and conduct a search 9 incident thereto. We therefore further hold that Petitioner was entitled to suppression of the handgun and other items seized during the search because Officer Burch, at the time he undertook the search of Petitioner that produced the seized items, did not have probable cause to believe that Petitioner had committed a felony or was committing a felony or misdemeanor.

II

Standard of Review When reviewing a circuit court’s denial of a motion to suppress evidence, we interpret the record in the light most favorable to the prevailing party and accept the factual findings unless they are clearly erroneous. Norman, 452 Md. at 386 . We review de novo the “court’s application of the law to its findings of fact.” Id. “When a party raises a constitutional challenge to a search or seizure, this Court renders an ‘independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case.’” Pacheco, 465 Md. at 319 (quoting Grant v. State, 449 Md. 1, 15 (2016)).

III

Discussion The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be 10 searched, and the persons or things to be seized.” U.S. CONST. amend. IV; see also MD. DECL. OF RIGHTS art. 26 (“That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive”).

The touchstone of whether a warrantless search or seizure withstands Fourth Amendment scrutiny is reasonableness. See Maryland v. King, 569 U.S. 435, 447 (2013) (“[T]he ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’”) (citation omitted); Pacheco, 465 Md. at 320 (“It is well settled that the Fourth Amendment . . . prohibits ‘unreasonable’ searches and seizures.”). “What is reasonable depends upon all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985) (citation omitted). “[S]ubject only to a few specifically established and