Robinson, Williams & Spriggs v. State

Watts, J. In 2014, Maryland joined a number of other jurisdictions that have decriminalized, but not legalized, possession of small amounts of marijuana—that is, under the law of these jurisdictions, possession of a small amount of marijuana remains ⁹⁷ illegal, but is punishable by a fine, not by incarceration. 1 Before October 1, 2014, under Maryland law, possession of less than ten granas of marijuana was a misdemeanor that carried a maximum penalty of ninety days of incarceration and a fine of $500. See 2014 Md. Laws. 1119 (Vol. II, Ch. 158, S.B. 364); Md. Code Ann., Crim. Law (2002, 2012 Repl.

Vol., 2013 Supp.) § 5-601(c)(2)(ii). As of October 1, 2014, under Maryland law, possession of less than ten grams of marijuana became “a civil offense” 2 that is punishable by participation in a drug education program, an assessment for substance abuse disorder, possible substance abuse treatment, and a fine, the amount of which depends on whether the violation is a first, ⁹⁸ second, or subsequent violation of the statute. See 2014 Md. Laws. 1119, 1124 (Vol. II, Ch. 158, S.B, 364); Md. Code Ann., Crim.

Law (2002, 2012 Repl. Vol., 2014 Supp.) § 5-601(c)(2). Here, Jermaul Rondell Robinson (“Robinson”), Dexter Williams (“Williams”), and Vernon Harvey Spriggs, III (“Spriggs”) (together, “Petitioners”) contend that, due to the decriminalization of possession of less than ten grams of marijuana, a law enforcement officer no longer has probable cause to search a vehicle where the law enforcement officer detects an odor of marijuana emanating from the vehicle. In separate cases, each Petitioner moved to suppress evidence that had been found in a vehicle that he had been driving or had possession of.

In each case, at a hearing on the motion to suppress, a law enforcement officer testified that either a strong odor or an overwhelming odor of fresh marijuana was emanating from the car that the Petitioner had been using. In each case, the circuit court denied the motion to suppress, and each Petitioner was convicted of possession of at least ten grams of marijuana under the amended statute. Petitioners appealed, and, in each case, the Court of Special Appeals affirmed the circuit court’s judgment in an unreported opinion. Petitioners separately filed petitions for writs of certiorari, which this Court granted.

We heard one oral argument as to Petitioners’ cases on the same day, and this opinion serves to consolidate the cases. Petitioners raise an important matter of first impression: whether, in light of the decriminalization of possession of less than ten grams of marijuana, a law enforcement officer has probable cause to search a vehicle upon detecting an odor of marijuana emanating from the vehicle. In a reported opinion in an earlier case—Bowling v. State, 227 Md.App. 460, 476 , 134 A.3d 388, 398 , cert, denied, 448 Md. 724 , 141 A.3d 135 (2016)—the Court of Special Appeals held that the decriminalization of possession of less than ten grams of marijuana did not undermine the principle that the alert of a narcotics dog, that is certified to detect marijuana along with other controlled dangerous substances, constitutes probable cause to search a vehicle. In each of Petitioners’ cases, the Court of ⁹⁹ Special Appeals applied Bowling and concluded that a law enforcement officer’s detection of a strong odor of marijuana coming from a vehicle that the defendant possessed provides probable cause to search the vehicle, despite the decriminalization of possession of less than ten grams of marijuana, because marijuana in any amount remains contraband—ie., goods that are illegal, but not necessarily criminal, to possess.

In addition to the holding of the Court of Special Appeals in Bowling, courts in Maine, Oregon, California, Minnesota and Colorado have reached similar conclusions, namely, that where an officer detects the odor of marijuana coming from a vehicle, the warrantless search of the vehicle is permitted, even though these jurisdictions had decriminalized—and, in at least one instance, legalized—the possession of a small quantity of marijuana. See State v. Barclay, 398 A.2d 794 (Me. 1979); State v, Smalley, 233 Or.App. 263 , 225 P.3d 844 (2010); People v. Waxler, 224 Cal.App.4th 712 , 168 Cal.Rptr.3d 822 (2014), as modified on denial of reh’g (Apr. 3, 2014), review denied (June 11, 2014); State v. Ortega, 749 N.W.2d 851 (Minn. Ct. App. 2008), aff'd, 770 N.W.2d 145 (Minn. 2009); People v, Zuniga, 372 P.3d 1052 (Colo. 2016). Upon careful consideration, in agreement with the conclusions of the Court of Special Appeals and the appellate courts of other jurisdictions, we hold that a law enforcement officer has probable cause to search a vehicle where the law enforcement officer detects an odor of marijuana emanating from the vehicle, as marijuana in any amount remains contraband, notwithstanding the decriminalization of possession of less than ten grams of marijuana; and the odor of marijuana gives rise to probable cause to believe that the vehicle contains contraband or evidence of a crime.

Simply put, decriminalization is not synonymous with legalization, and possession of marijuana remains unlawful. BACKGROUND No. 37: Robinson v. State On October 19, 2014, in the District Court of Maryland, sitting in Baltimore City, the State, Respondent, charged ¹⁰⁰ Robinson with possession of oxycodone, possession of at least ten grams of marijuana, and possession of drug paraphernalia. The case was transferred to the Circuit Court for Baltimore City. In the circuit court, Robinson filed “Omnibus Pre-Trial Defense Motions,” which included, among other things, a motion to suppress all evidence that law enforcement had allegedly illegally seized from Robinson’s vehicle.

On March 16, 2015, the circuit court conducted a hearing on the motion to suppress. The only witness at the hearing was Officer Steven A. Vinias of the Baltimore Police Department. As a witness for the State, Officer Vinias testified that he was familiar with the odor of marijuana, and was able to distinguish the odor of fresh marijuana from the odor of burnt marijuana. On October 18, 2014, Officer Vinias was driving in the 3100 block of Oakfield Avenue in Baltimore.

Sergeant Luis Ruiz was a passenger in the law enforcement vehicle. Officer Vinias saw Robinson leaning against a Nissan Maxima, which was the only vehicle on that side of Oakfield Avenue. Officer Vinias noticed an overwhelming smell of fresh marijuana. Officer Vinias stopped, and he and Sergeant Ruiz exited and approached Robinson, who was within arm’s length of the Nissan at the time.

Robinson made a movement toward his waistband, and Sergeant Ruiz detained Robinson. Once Robinson was detained, Officer Vinias could tell that the smell of marijuana was coming from the Nissan. In response to questions by Officer Vinias, Robinson said that he had been driving the Nissan, and that there was marijuana in the Nissan. Officer Vinias searched the Nissan and seized sixteen small bags of marijuana and one oxycodone pill.

At the time of the seizure, Officer Vinias estimated that the marijuana weighed more than ten grams. On cross-examination, Officer Vinias stated that the strength of the odor of marijuana and the amount of marijuana are not always synonymous. After Officer Vinias’s testimony, the circuit court heard argument from the parties. Robinson’s counsel contended that a law enforcement officer lacks probable cause to search a vehicle for marijuana unless the law enforcement officer has reasonable suspicion that the vehicle contains more than ten ¹⁰¹ grams of marijuana.

The State argued that nothing had changed as a result of the amendment to the marijuana statute with respect to a law enforcement officer’s ability to search a vehicle based on the odor of marijuana. After hearing the parties’ arguments, the circuit court denied the motion to suppress without making any findings of fact. The parties agreed that Robinson would be tried on an agreed statement of facts only as to the charge of possession of at least ten grams of marijuana. Robinson’s counsel engaged in a waiver colloquy with Robinson, who waived the right to a trial.

The prosecutor read a statement of facts, to which Robinson’s counsel agreed. The circuit court found Robinson guilty of possession of at least ten grams of marijuana and sentenced him to time served. The docket entries reflect that the other two charges, possession of oxycodone and possession of drug paraphernalia, were closed. On March 26, 2015, Robinson noted an appeal.

In an unreported opinion dated April 29, 2016, the Court of Special Appeals affirmed the circuit court’s judgment, holding that, despite the decriminalization of possession of less than ten grams of marijuana, marijuana remains contraband, and its odor provides probable cause to search a vehicle. On June 14, 2016, Robinson petitioned for a writ of certiorar n, raising the following two issues: 1. When an officer detects an “overwhelming smell” of “fresh marijuana” coming from a car, does he have probable cause to search the car in light of the fact that possession of a less than ten grams of marijuana is now a “civil offense” punishable only by a fine? 2. Did the trial court err when it denied [] Robinson’s motion to suppress?

On August 19, 2016, this Court granted the petition. See Robinson v. State, 449 Md. 410 , 144 A.3d 705 (2016). No. 39: Williams v. State On April 8, 2015, in the District Court of Maryland, sitting in Baltimore City, the State charged Williams with possession ¹⁰² of marijuana and possession of drug paraphernalia. The case was transferred to the Circuit Court for Baltimore City.

In the circuit court, Williams filed “Omnibus Pre-Trial Defense Motions,” which included, among other things, a motion to suppress all evidence that law enforcement had allegedly illegally seized from Williams’s vehicle. On June 25, 2015, the circuit court conducted a hearing on the motion to suppress. The only witness at the hearing was Detective Tristan Ferguson of the Baltimore Police Department. As a witness for the State, Detective Ferguson testified that he was familiar with the odor of marijuana, and was able to distinguish the odor of fresh marijuana from the odor of burnt marijuana.

According to Detective Ferguson, the greater the amount of fresh marijuana, the stronger the odor and the greater the radius in which the marijuana can be smelled. On April 8, 2015, Detective Ferguson was driving in the 4500 block of Fairview Avenue in Baltimore. Detective Ferguson saw Williams in the driver’s seat of a vehicle that was stopped in front of a stop sign. Detective Ferguson exited the law enforcement vehicle and approached Williams.

Once he was within four feet of Williams’s vehicle, Detective Ferguson smelled a strong odor of fresh marijuana emanating from Williams’s vehicle. Detective Ferguson asked Williams whether he smoked marijuana, and Williams replied affirmatively. Detective Ferguson asked Williams to exit his vehicle. Detective Ferguson searched Williams’s vehicle and seized a backpack that contained a canister, which contained a scale and 170 grams of packaged marijuana.

On cross-examination, Detective Ferguson acknowledged that even a small amount of the most powerful grade of marijuana, known as “loud,” would have a potent odor. Following Detective Ferguson’s testimony, the circuit court heard argument from the parties. Williams’s counsel contended that probable cause to believe that a person is engaged in conduct that constitutes a civil violation of the law—e.g., possession of less than ten grams of marijuana—does not provide a basis for a warrantless search. The State argued that the General Assembly had specifically indicated that ¹⁰³ decriminalization of possession of less than ten grams of marijuana would not affect law enforcement officers’ authority to seize marijuana.

After hearing the parties’ arguments, the circuit court denied the motion to suppress. On June 25, 2015, after the circuit court denied the motion to suppress, Williams pled guilty to possession of at least ten grams of marijuana. The prosecutor read a statement of facts, to which Williams’s counsel agreed. The circuit court found Williams guilty of possession of at least ten grams of marijuana and postponed sentencing.

On July 2, 2015, Williams filed a “Motion for New Trial,” requesting a new trial and that he be permitted to enter a conditional guilty plea, and thus preserve the right to appeal the denial of the motion to suppress. Docket entries reflect that, on July 21, 2015, a verdict of guilty was entered as to the charge for possession of at least ten grams of marijuana; the charge for possession of drug paraphernalia was closed; and the circuit court sentenced Williams to twenty days of incarceration. On August 5, 2015, Williams noted an appeal. In an unreported opinion dated May 18, 2016, the Court of Special Appeals affirmed the circuit court’s judgment, holding that the odor of marijuana alone provides probable cause to search a vehicle.

On June 27, 2016, Williams petitioned for a writ of certiora-ri, raising the following two issues: 1. When an officer smells “the odor of marijuana strongly emanating from the interior” of a car and when the driver and sole occupant admits that he has an unspecified amount of marijuana in the car, does the officer have probable cause to search the car in light of the fact that possession of a less than ten grams of marijuana is now a “civil offense” punishable only by a fine? 2. Did the trial court err when it denied [] Williams’[s] motion to suppress? On September 2, 2016, this Court granted the petition.

See Williams v. State, 450 Md. 104 , 146 A.3d 464 (Sept. 2, 2016). ¹⁰⁴ No. 46: Spriggs v. State On December 11, 2014, in the Circuit Court for Dorchester County, the State charged Spriggs with possession of cocaine with the intent to distribute, possession of marijuana with the intent to distribute, possession of cocaine, possession of marijuana, and two counts of possession of drug paraphernalia. In the circuit court, Spriggs filed an “Omnibus Motion for Appropriate Relief Under Rule 4-252,” which included, among other things, a motion to suppress all evidence that law enforcement had allegedly illegally seized. On April 20, 2015, the circuit court conducted a hearing on the motion to suppress. Two witnesses testified at the hearing.

As a witness for the State, Corporal Jeffrey Smith of the Cambridge Police Department testified that he was familiar with the odor of fresh marijuana. According to Corporal Smith, the greater the amount of marijuana, the stronger the odor. On October 18, 2014, Corporal Smith was driving down Elm Street in Cambridge with the windows down and detected a strong odor of fresh marijuana. Corporal Smith saw Spriggs in a vehicle in a parking lot in front of an abandoned building.

Corporal Smith observed that the front passenger-side door was open, and Spriggs was sitting in the passenger’s seat with his feet outside the vehicle. The odor of marijuana weakened as Corporal Smith drove further down Elm Street. Corporal Smith made a U-turn, parked the law enforcement vehicle, exited, and approached Spriggs. While Corporal Smith approached, Spriggs exited his vehicle and began walking toward the back of his vehicle.

Meanwhile, Corporal Robert Ball drove down Elm Street, parked his law enforcement vehicle, exited, and reached Spriggs before Corporal Smith did. While Corporal Ball was speaking with Spriggs, Corporal Smith walked away from Spriggs’s vehicle, and noticed that the odor of marijuana weakened. Corporal Smith walked back toward Spriggs’s vehicle; at that point, Corporal Smith believed that he could tell that the odor of marijuana was coming from the general area of Spriggs’s vehicle. At that time, Spriggs was holding keys in his left hand; and, other than Corporals Smith and Ball, no one was in Spriggs’s general area. ¹⁰⁵ As a witness for the State, Corporal Ball testified that the greater the amount of marijuana, the stronger the odor.

Corporal Ball testified that, on October 18, 2014, he drove down Elm Street and saw Corporal Smith on foot. Corporal Ball parked his law enforcement vehicle, exited, and approached Spriggs, who was near a parked Honda Civic. The Honda was the only vehicle in the parking lot. As he approached Spriggs, Corporal Ball smelled a strong odor of fresh marijuana.

Corporal Ball asked Spriggs how he was doing and whether he was just hanging out in the area. Spriggs said yes. Corporal Ball testified that Corporal Smith said that he smelled marijuana. Spriggs said that he smelled marijuana too, and that a couple of other people had just left the area.

Corporal Ball testified that no one else was in the area, and that he smelled marijuana coming from Spriggs’s person. Spriggs was asked who owned the Honda, and Spriggs said that his boss did. Corporal Ball testified that Spriggs told him that “he [Spriggs] had the vehicle” and that he had been the only one in the Honda. Corporal Ball searched Spriggs and found a large amount of United States currency, but no marijuana.

Corporal Ball asked Spriggs for the Honda’s key, and Spriggs complied. Corporal Ball searched the Honda. 3 After Corporal Ball’s testimony, the circuit court heard argument from the parties. Spriggs’s counsel contended that the odor of marijuana alone cannot justify a warrantless search. The State contended that, based on prior case law, law enforcement officers have the right to investigate upon detecting the odor of marijuana.

After hearing the parties’ arguments, the circuit court denied the motion to suppress, making findings of fact that were consistent with Corporal Smith’s testimony and Corporal Ball’s testimony. On April 29, 2015, Spriggs elected a bench trial, at which Corporal Smith and Corporal Ball testified as witnesses for the State. As witness for the State, Detective Edward Howard ¹⁰⁶ of the Cambridge Police Department testified that, when he was part of the Narcotics Division, he delivered the bags of suspected drugs taken from the Honda to a crime lab in Berlin. As a witness for the State, Detective Jamie McDaniel testified that the seized items were $3,056 in United States currency, 143 grams of cocaine, and 142 grams of marijuana.

The circuit court found Spriggs guilty of possession of cocaine with the intent to distribute, possession of marijuana with the intent to distribute, possession of cocaine, and possession of marijuana. The circuit court found Spriggs not guilty of both counts of possession of drug paraphernalia. The circuit court sentenced Spriggs to twenty years of imprisonment, with all but three years suspended, for possession of cocaine with the intent to distribute; five consecutive years of imprisonment, with all but one year and one day suspended, for possession of marijuana with the intent to distribute; and five years of supervised probation. The circuit court merged the remaining two convictions for sentencing purposes.

On May 6, 2015, Spriggs noted an appeal. In an unreported opinion dated June 23, 2016, the Court of Special Appeals affirmed the circuit court’s judgment, concluding that the odor of marijuana alone provides probable cause to search a vehicle. On August 3, 2016, Spriggs petitioned for a writ of certiora-ri, raising the following two issues: 1. When an officer detects an “overwhelming strong odor” of “raw marijuana" coming from a car, does he have probable cause to search the car in light of the fact that possession of less than ten grams of marijuana is now a “civil offense” punishable only by a fine? 2.

Did the trial court err when it denied [ ] Spriggs’s motion to suppress? On September 2, 2016, this Court granted the petition. See Spriggs v. State, 450 Md. 102 , 146 A.3d 463 (Sept. 2, 2016). DISCUSSION The Parties’ Contentions Petitioners contend that, because the General Assembly has made possession of less than ten grams of marijuana a civil ¹⁰⁷ offense that is punishable by a fíne, a law enforcement officer may not conduct a warrantless search of a vehicle based only on the odor of marijuana.

Petitioners argue that the odor of marijuana alone does not constitute probable cause that a vehicle contains more than ten grams of marijuana because the odor of marijuana indicates only its presence, not its amount. Petitioners assert that law enforcement officers could not conduct warrantless searches of their vehicles because a search warrant cannot be issued for civil offenses. Petitioners point out that a warrantless search is permissible only where reasonable. Petitioners maintain that Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925) and its progeny do not answer the question of whether it is reasonable for a law enforcement officer to search for items, the possession of which is not criminal.

Petitioners contend that whether a search is reasonable does not depend on the General Assembly’s intent in decriminalizing possession of a small amount of marijuana. Alternatively, Petitioners argue that, if relevant, the General Assembly’s intent was to limit the enforcement of laws related to the possession of marijuana, including laws related to searches. The State responds that the decriminalization of possession of less than ten grams of marijuana does not affect existing ease law that permits a warrantless search of a vehicle based on the odor of marijuana. The State contends that the Carroll doctrine permits the warrantless search of a vehicle based on probable cause to believe that the vehicle contains contraband or evidence of a crime.

The State asserts that “contraband” and “evidence of a crime” are not synonymous, as “contraband” includes anything that is unlawful to possess, regardless of whether possession is criminal. The State maintains that, despite the decriminalization of possession of less than ten grams of marijuana, marijuana remains contraband, which is subject to seizure, and that the odor of marijuana coming from a vehicle gives rise to probable cause to believe evidence of a ciime may be found in the vehicle. The State points out that courts in other jurisdictions have applied the Carroll doctrine and upheld warrantless searches based on the odor of marijua ¹⁰⁸ na. In sum, the State argues that the odor of marijuana provides probable cause to believe that a vehicle contains contraband or evidence of a crime.

The Standard of Review In Varriale v. State, 444 Md. 400, 410 , 119 A.3d 824, 830 (2015), this Court explained the standard of review for a ruling on a motion to suppress as follows: In reviewing a trial court’s ruling on a motion to suppress, an appellate court reviews for clear error the trial court’s findings of fact, and reviews without deference the trial court’s application of the law to its findings of fact. The appellate court views the trial court’s findings of fact, the evidence, and the inferences that may be drawn therefrom in the light most favorable to the party who prevails on the issue that the defendant raises in the motion to suppress. (Citation omitted). The Fourth Amendment, the Carroll Doctrine, and Contraband The Fourth Amendment to the United States Constitution provides in pertinent part: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” U.S. Const, amend.

IV. 4 The Fourth Amendment does not prohibit all searches—only unreasonable ones. See Sellman v. State, 449 Md. 526, 540 , 144 A.3d 771, 779 (2016). Whether a search is reasonable depends on the public interest versus an individual’s right to be free from arbitrary interference by a law enforcement officer. See id. at 540 , 144 A.3d at 779.

Generally, for a search to be reasonable, a law enforcement officer must obtain a warrant. See Riley v. California, — U.S. -, 134 S.Ct. 2473, 2482 , 189 L.Ed.2d 430 ¹⁰⁹ (2014). One exception to the warrant requirement is the “automobile exception,” under which a law enforcement officer may conduct a warrantless search of a vehicle based on probable cause. See California v. Acevedo, 500 U.S. 565, 569 , 111 S.Ct. 1982 , 114 L.Ed.2d 619 (1991).

The automobile exception originates from the case of Carroll, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 , and has been referred to as “the Carroll doctrine.” See Acevedo, 500 U.S. at 569-70 , 111 S.Ct. 1982 . In Wyoming v. Houghton, 526 U.S. 295, 300 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999), the Supreme Court discussed Carroll as follows: Carroll ... involved the warrantless search of a car that law enforcement officials had probable cause to believe contained contraband—in that case, bootleg liquor. The Court concluded that the Framers would have regarded such a search as reasonable in light of legislation enacted by Congress from 1789 through 1799—as well as subsequent legislation from the founding era and beyond—that empowered customs officials to search any ship or vessel without a warrant if they had probable cause to believe that it contained goods subject to a duty. Thus, the Court held that “contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant” where probable cause exists.

(Citations omitted). Probable cause exists where, based on the available facts, a person of reasonable caution would believe “that contraband or evidence of a crime is present.” Florida v. Harris, 568 U.S. 237 , 133 S.Ct. 1050, 1055 , 185 L.Ed.2d 61 (2013) (emphasis added) (citations omitted). Probable cause does not depend on a preponderance of the evidence, but instead depends on a “fair probability” on which a reasonably prudent person would act. Id.

(citation omitted). Specifically, in Illinois v. Gates, 462 U.S. 213, 231 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), the Supreme Court described the concept of probable cause as follows: ¹¹⁰ [T]he probable cause standard is ... a “practical, nontechnical conception.” “In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on whieh reasonable and prudent [people], not legal technicians, act.” Our observation in United States v. Cortez, 449 U.S. 411, 418 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621 (1981), regarding “particularized suspicion,” is also applicable to the probable cause standard: The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same—and so are law enforcement officers.

Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement. As these comments illustrate, probable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules. (Ellipsis and some citations omitted). And more recently, in Harris, 133 S.Ct. at 1055-56 , the Supreme Court stated: The test for probable cause is not reducible to precise definition or quantification.

Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence have no place in the probable-cause decision. All we have required is the kind of fair probability on which reasonable and prudent people, not legal technicians, act. In evaluating whether the State has met this practical and common-sensical standard, we have consistently looked to the totality of the circumstances. We have rejected rigid rules, bright-line tests, and mechanistic inquiries in favor of a more flexible, all-things-considered approach....

(Citations, ellipsis, brackets, and internal quotation marks omitted). ¹¹¹ As to the automobile exception to the warrant requirement, in Carroll, 267 U.S. at 163 , 45 S.Ct. 280 , the Supreme Court held that, with probable cause to believe that a vehicle contains contraband, a law enforcement officer may search a vehicle without a warrant, because vehicles can be quickly moved from one jurisdiction to another, thus making it impracticable to obtain a warrant. In Carroll, during the Prohibition era, a law enforcement officer stopped a vehicle, searched the vehicle, and found alcohol inside of the vehicle. See Carroll, 267 U.S. at 172 , 45 S.Ct. 280 (McReynolds, J., dissenting). 5 The occupants of the vehicle were found guilty of violating a statute that made it a crime to transport alcohol in violation of the National Prohibition Act. See Carroll, 267 U.S. at 144-45 , 45 S.Ct. 280 .

On appeal, the defendants argued that a law enforcement officer could conduct a warrantless search of a vehicle only if the law enforcement officer could arrest the driver—which the law enforcement officer could do only if he or she either had probable cause to believe that the driver had committed a felony, or had seen the driver commit a misdemeanor. See id. at 156-57 , 45 S.Ct. 280 . The Supreme Court rejected the defendants’ contention, concluding that a law enforcement officer’s ability to search a vehicle does not depend on the law enforcement officer’s right to make an arrest, but instead depends on probable cause to believe that the vehicle’s contents are illegal. See id. at 158-59 , 45 S.Ct. 280 .

Specifically, the Court stated: “The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” Id. Although the Court noted that, under the National Prohibition Act, the driver of a vehicle that contained alcohol was subject to arrest, the Court determined that the nature of the offense for which the driver could be prosecuted did not affect the validity of the search. ¹¹² See id at 159, 45 S.Ct. 280 . In sum, in Carroll, id. at 153,158-59 , 45 S.Ct. 280 , the Supreme Court concluded that, with probable cause to believe that a vehicle contains contraband, a law enforcement officer may search a vehicle without a warrant, and the determination of probable cause does not depend upon the right to make an arrest.

Following Carroll, the Supreme Court has stated that a law enforcement officer has probable cause to search a vehicle when he or she believes that contraband or evidence of a crime may be found in the vehicle. For example, in Harris, 133 S.Ct. at 1053, 1055 , a case involving a drug-detection dog’s alert during a traffic stop, the Supreme Court stated: “A police officer has probable cause to conduct a search when the facts available to him [or her] would warrant a person of reasonable caution in the belief that contraband or evidence of a crime is present.” (Citation, brackets, and internal quotation marks omitted). In Houghton, 526 U.S. at 297, 304 , 119 S.Ct. 1297 , a case involving a search of a passenger’s personal belongings inside of an automobile, the Supreme Court stated: Effective law enforcement would be appreciably impaired without the ability to search a passenger’s personal belongings when there is reason to believe contraband or evidence of criminal wrongdoing is hidden in the car. As in all car-search cases, the ‘ready mobility’ of an automobile creates a risk that the evidence or contraband will be permanently lost while a warrant is obtained.

(Citation omitted). And, in Texas v. Brown, 460 U.S. 730, 733, 742 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983), a case involving a routine driver’s license checkpoint stop, the Supreme Court stated: As the Court frequently has remarked, probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would warrant a [person] of reasonable caution in the belief, that certain items may be contraband or stolen property or useful as evidence of a ¹¹³ crime; it does not demand any showing that such a belief be correct or more likely true than false. (Citation and internal quotation marks omitted).

The Decriminalization of Possession of Less Than Ten Grams of Marijuana Before October 1, 2014, Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2013 Supp.) § 5-601 was effective, and stated in relevant part: (a) Except as otherwise provided in this title, a person may not: (1) possess or administer to another a controlled dangerous substance, unless obtained directly or by prescription or order from an authorized provider acting in the course of professional practice; [[Image here]] (c) (1) Except as provided in paragraphs (2) and (3) of this subsection, a person who violates this section is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 4 years or a fine not exceeding $25,000 or both. (2) (i) A person whose violation of this section involves the use or possession of marijuana is subject to imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both.

(ii) 1. A person convicted of the use or possession of less than 10 grams of marijuana is subject to imprisonment not exceeding 90 days or a fine not exceeding $500 or both. 2014 Md. Laws. 1119, 1124 (Vol. II, Ch. 158, S.B. 364). Thus, before 2014, possession of marijuana in any amount was a crime—albeit one that earned less of a maximum penalty than possession of other drugs.

In 2014, the General Assembly amended Md. Code Ann., Crim. Law (2002, 2012 Repl. Vol., 2013 Supp.) § 5-601(c)(2), the penalty provisions regarding marijuana, to state in pertinent part: ¹¹⁴ (i) Except as provided in subparagraph (ii) of this paragraph, a person whose violation of this section involves the use or possession of marijuana is subject to imprisonment not exceeding 1 year or a fine not exceeding $1,000 or both. (ii) 1.

A first violation of this section involving the use or possession of less than 10 grams of marijuana is a civil offense punishable by a fine not exceeding $100. 2. a second violation of this section involving the use or possession of less than 10 grams of marijuana is a civil offense punishable by a fine not exceeding $250. 3. a third or subsequent violation of this section involving the use or possession of less than 10 grams of marijuana is a civil offense punishable by a fine not exceeding $500. 4. A. In addition to a fine, a court shall order a person under the age of 21 years who commits a violation punishable under subsubparagraph 1, 2, or 3 of this subpara-graph to attend a drug education program approved by the Department of Health and Mental Hygiene, refer the person to an assessment for substance abuse disorder, and refer the person to substance abuse treatment, if necessary. B. In addition to a fíne, a court shall order a person at least 21 years old who commits a violation punishable under subsubparagraph 3 of this subparagraph to attend a drug education program approved by the Department of Health and Mental Hygiene, refer the person to an assessment for substance abuse disorder, and refer the person to substance abuse treatment, if necessary. 2014 Md. Laws. 1119 (Vol. II, Ch. 158, S.B. 364). 6 The General Assembly also added Md. Code Ann., Crim.

Law (2002, 2012 Repl. Vol., 2014 Supp.) § 5-601(d), which stated: ¹¹⁵ The provisions of subsection (c)(2)(ii) of this section making the possession of marijuana a civil offense may not be construed to affect the laws relating to: (1) operating a vehicle or vessel while under the influence of or while impaired by a controlled dangerous substance; or (2) seizure and forfeiture. 2014 Md. Laws. 1122 (Vol. II, Ch. 158, S.B. 364). Additionally, the General Assembly created Md. Code Ann., Crim.

Law (2002, 2012 Repl. Vol., 2014 Supp.) § 5-601.1, which stated in pertinent part: (a) A police officer shall issue a citation to a person who the police officer has probable cause to believe has committed a ¹¹⁶ violation of § 5-601 of this part involving the use or possession of less than 10 grams of marijuana. (b) (1) A violation of § 5-601 of this part involving the use or possession of less than 10 grams of marijuana is a civil offense. (2) Adjudication of a violation under § 5-601 of this part involving the use or possession of less than 10 grams of marijuana: (i) is not a criminal conviction for any purpose; and (ii) does not impose any of the civil disabilities that may result from a criminal conviction. 2014 Md. Laws. 1122-23 (Vol.

II, Ch. 158, S.B. 364). Bowling v. State Although this Court has not yet addressed the impact of the decriminalization of possession of less than ten grams of marijuana on an analysis of probable cause, the Court of Special Appeals has done so. In Bowling, 227 Md.App. at 476 , 134 A.3d at 398 , the Court of Special Appeals concluded that the decriminalization of possession of less than ten grams of marijuana did not alter the status of marijuana as contraband in Maryland, and that a narcotics dog’s alert provides probable cause to search a vehicle pursuant to the Carroll doctrine. In Bowling, 227 Md.App. at 462 , 134 A.3d at 390 , a law enforcement officer stopped a vehicle that the defendant was driving.

The law enforcement officer noticed that the defendant appeared nervous, and the officer called for a narcotics dog. See id. at 462-63 , 134 A.3d at 390 . Before the narcotics dog arrived, the defendant exited his vehicle, and was unable to get back in because he had locked his key inside. See id. at 463 , 134 A.3d at 390 .

The narcotics dog arrived, and alerted near the rear driver’s side door. See id. at 463-64 , 134 A.3d at 390-91 . Afterward, a tow truck driver arrived, and opened the defendant’s vehicle. See id. at 464 , 134 A.3d at 391 .

The law enforcement officer, who had been planning to have the defendant’s vehicle towed to the police station, immediately searched the defendant’s vehicle instead of conducting an ¹¹⁷ inventory search at the police station. See id. at 464 , 134 A.3d at 391 . The law enforcement officer found nearly 200 grams of marijuana, an OxyContin tablet, a smoking device, a scale, and a large amount of cash. See id at 464, 134 A.3d at 391 .

The defendant moved to suppress all of the evidence that had been found in his vehicle, contending that the narcotics dog’s alert did not provide probable cause for a warrantless search of the vehicle in light of the General Assembly’s decriminalization of possession of less than ten grams of marijuana, and because the narcotics dog could not distinguish between more than ten grams of marijuana and less than ten grams of marijuana. See id. at 464-65 , 134 A.3d at 391 . The trial court denied the motion to suppress, and the Court of Special Appeals affirmed the trial court’s judgment. See id. at 465, 476 , 134 A.3d at 391, 398 .

The Court of Special Appeals explained that decriminalization is not synonymous with legalization; even though possession of less than ten grams of marijuana is no longer a crime, it is still illegal. See id. at 470 , 134 A.3d at 394 . The Court of Special Appeals examined the plain meaning and legislative history of the statute decriminalizing possession of less than ten grams of marijuana and concluded: “[I]t is clear that the [ ] General Assembly intended that marijuana remain classified as ‘contraband,’ and that the decriminalization of small amounts of marijuana would not affect existing case law allowing officers to search a vehicle based upon a K-9 alert to the smell of marijuana.” Id. at 476 , 134 A.3d at 398 . The Court of Special Appeals also examined case law from the Supreme Court and other jurisdictions and concluded that the automobile exception to the warrant requirement is not limited to where there is probable cause to believe there is evidence of a crime in a vehicle; rather, the Court of Special Appeals determined that “a search is permitted when there is probable cause to believe that the car contains evidence of a crime or contraband.” W. at 472, 134 A.3d at 396 (emphasis in original).

The Court of Special Appeals explained that marijuana in any amount remains contraband—ie., goods that are unlawful to possess. See id at 476, 134 A.3d at 398 . As such, in Bowling, id. at 476 , 134 A.3d ¹¹⁸ at 398, the narcotics dog’s alert provided probable cause to believe that contraband would be discovered in the vehicle irrespective of the decriminalization of possession of less than ten grams of marijuana. 7 Other Jurisdictions’ Case Law Courts in other jurisdictions have addressed whether decriminalization—or, in one instance, legalization—of possession of a small amount of marijuana negates probable cause to search a vehicle based on an odor of marijuana. The view of the majority of other jurisdictions that have addressed the issue—four out of five jurisdictions, to be exact—is that decriminalization has no such effect.

A sixth jurisdiction has determined that legalization of possession of a small amount of marijuana does not foreclose the existence of probable cause to search a vehicle upon detection of an odor of marijuana. In Barclay, 398 A.2d at 798 , the Supreme Judicial Court of Maine held that, despite a statute that made possession of a small amount of marijuana “a civil violation,” marijuana remained contraband, and thus remained subject to seizure. In Barclay, id. at 796 , a law enforcement officer stopped a vehicle that the defendant was driving because the vehicle’s exhaust system appeared to be faulty. While at the driver’s side of the vehicle, the law enforcement officer smelled marijuana smoke.

See id. The law enforcement officer searched the vehicle and found two pipes and several marijuana cigarette butts, which were tested and found to contain marijuana. See id. The defendant moved to suppress the marijuana, contending that ¹¹⁹ the search was illegal because the Fourth Amendment does not permit a search for evidence of a civil violation.

See id. A trial court denied the motion to suppress, and the Supreme Judicial Court of Maine affirmed. See id. at 796, 798 . In Barclay, id. at 797„ the Court concluded that the law enforcement officer “had probable cause to believe that the vehicle in question contained marijuana.

When [the officer] arrived at the driver’s window, he detected the odor of marijuana smoke emanating from the interior of the vehicle. That odor was sufficient to establish probable cause to search.” The Court determined that a law enforcement officer may search for goods whose possession is punishable only by a civil violation, as such goods can be the subject of a search warrant under Maine statutes. See id. at 797-98 . The Court specifically stated that “marijuana, notwithstanding its new status under [a Maine statute], is still contraband and thus subject to seizure.” Id. at 798 .

In Smalley, 225 P.3d at 848 , the Court of Appeals of Oregon determined that, notwithstanding a statute that made possession of less than an ounce of marijuana a civil violation, marijuana in any amount still constituted contraband. In Smal-ley, id. at 845„ a law enforcement officer stopped a vehicle in which the defendant was a passenger. The driver consented to a search of the vehicle, and the law enforcement officer noticed an odor of marijuana coming from a backpack behind the driver’s seat. See id.

The law enforcement officer searched the backpack and discovered marijuana, and the defendant admitted that the backpack belonged to him. See id. The defendant moved to suppress the marijuana, contending that the search violated the Oregon Constitution’s counterpart to the Fourth Amendment. See id.

A trial court granted the motion to suppress, and the Court of Appeals of Oregon reversed. See id. at 845, 848. The Court concluded that the law enforcement officer had probable cause to believe that the backpack contained “at least some amount of contraband” based on the officer’s testimony concerning the ¹²⁰ odor of marijuana emanating from the backpack. See id. at 847.

The defendant contended that a law enforcement officer cannot search for marijuana without probable cause to believe that there is a criminal amount of marijuana. See id. at 848. The Court rejected this contention and concluded that a law enforcement officer may conduct a warrantless search for “contraband or crime evidence” where there is probable cause to believe that such items are in a container in a vehicle. Id. at 848 (citation and emphasis omitted).

The Court explained that the phrase “contraband or crime evidence” indicated that the two