State v. Harding

MEREDITH, J. In this case, the State appeals from an order granting a motion to suppress evidence discovered during a search of the appellee’s vehicle. The motions court suppressed evidence of marijuana and a handgun found in the modified air bag compartment of appellee’s vehicle. We shall reverse the decision of the Circuit Court for Prince George’s County, and remand the case for further proceedings. ²³³ Background When State Trooper J.D. Cameron stopped Donovan Anthony Harding, appellee, for speeding on Interstate 95 in Prince George’s County, the police officer immediately smelled a strong odor of burnt marijuana emanating from the passenger compartment of Harding’s Toyota Tundra pickup truck. The officer promptly called for backup, and after a second trooper arrived, searched Harding’s vehicle inside and out for the source of the odor.

The search initially turned up a number of pine-tree air fresheners. After searching for approximately eight minutes, having failed to discover the source of the marijuana odor in any of the readily accessible areas of the vehicle, Trooper Cameron began to search for hidden compartments in the vehicle. The officer had learned during the course of his drug-interdiction training that a vehicle’s air bag compartment could be modified and used for hiding contraband. Using a screwdriver, the officer pried up the cover of the passenger-side air bag compartment and discovered that the air bag had been removed.

A hydraulic piston had been attached to the cover. In the air bag compartment were a pistol, a plastic bag that appeared to contain marijuana, and a partially-smoked marijuana joint. Less than ten minutes after the search of the vehicle commenced, when the contraband in the air bag compartment was discovered, Harding was placed under arrest. The police officers had Harding’s truck towed to their barrack, where they continued their thorough search of the vehicle.

As a result of that further search, the officers discovered a large package of additional marijuana hidden in a spare tire that was in the covered bed of the pickup truck. Harding was charged with illegal possession of narcotics and the handgun. Harding moved to suppress the evidence that was discovered in the truck. At the hearing on the motion to suppress, Trooper Cameron was the only witness to testify.

An audio-video recording of the traffic stop and search was also introduced at the suppression hearing. Cameron described his ²³⁴ traffic stop of Harding for speeding (traveling 73 miles per hour when the speed limit on Interstate 95 was 65 miles per hour). Cameron testified that he detected a very strong odor of marijuana as soon as he approached Harding’s pickup truck and spoke to Harding, while Harding was still seated in the driver’s seat. Cameron was of the opinion that the odor of marijuana gave him the authority to conduct “a probable cause search” of Harding’s vehicle.

Cameron noted that he had received training in drug interdiction that included training regarding the alteration and use of air bag compartments for hiding drugs. He explained that he decided to probe Harding’s air bag compartment because the seam did not look quite straight. Cameron also testified that he eventually discovered the air bag compartment in Harding’s vehicle had been fitted with a hydraulic piston and electrical wiring that enabled the cover of the air bag compartment to be remotely opened and closed. The motions judge expressly found Trooper Cameron “to be a credible witness” who had been with the State Police for several years.

The motions judge further credited the officer’s testimony that Harding was initially stopped for driving 73 in a 65 mile per hour zone. The motions judge also accepted as credible Trooper Cameron’s testimony regarding the odor of marijuana. The judge stated: “[W]hen [Trooper Cameron] first approached the defendant’s vehicle [he] smelled an odor of burnt marijuana. His training was such that he was able to detect that.

He used to detect that odor in the past. I accept that testimony as credible.” The motions judge noted that “after 32 minutes,” and after Cameron had made a comment (recorded on the tape) surmising that Harding probably ate the marijuana cigarette, Cameron used a screwdriver to pry open the air bag compartment, where Cameron found marijuana and a gun. After reviewing the facts, the motions judge framed the dispute as a question of whether the police officer had probable cause to open the air bag compartment, noting, “[the prosecutor] has argued that there was probable cause to open ²³⁵ the air bag compartment. [Defense counsel] has argued that there did not exist probable cause to open the air bag compartment.” The court focused upon two cases cited by Harding in support of the suppression motion —Ferris v. State, 355 Md. 356 , 735 A.2d 491 (1999), and Charity v. State, 132 Md.App. 598 , 753 A.2d 556 , cert. denied, 360 Md. 487 , 759 A.2d 231 (2000)—and granted the motion to suppress, stating: I conclude for purposes of this hearing that when Trooper Cameron detected the [odor] of marijuana he had a reasonable articul[able] suspicion that criminal activity was a[ ]foot. And was justified in [conducting a search of the interior of the vehicle.

Now, the question now becomes to what extent was the Trooper justified in searching the interior of the vehicle. And if indeed he was so justified as I concluded based on reasonable articul[able] suspicion how long could that go on. .. . This search continued as I said some 32 minutes. And I may be off a minute or two on the low side.

And before any contraband either the gun and marijuana was found. There is no hard and fast rule as these case[s] point [out] ... as to how long a search shall continue. But, the authority (unintelligible) reference what seems to be a reasonable period of time.... What is troubling in this particular case and this is no reflection upon the integrity of Trooper Cameron, but when he took the screwdriver to pry open the air bag compartment that [sic] the sense it was not flush with an air bag, but contained something other than that.

I have to respectfully disagree with [the prosecutor]. I knew that there was not probable cause to go into that compartment. Reasonable articula[ble] suspicion certainly had terminated on [sic] concluded by the first 30 minutes wherein all the obvious compartments that were not locked had been opened and no contraband had been found. And what is also important here is that Trooper Cameron had stated that he suspected, although he wasn’t certain, that the defendant may indeed ²³⁶ had [sic] swallowed the marijuana cigarette that may have caused permeation odor of burnt marijuana.

This is not something that I relish. But, it’s something I believe the authority dictate [sic]. I conclude that there was not probable cause to go ahead and open the closed air bag compartment on the passenger side. And I must conclude that the motion to suppress evidence is granted.

That means anything else that flowed therefrom[, counsel,] must also be suppressed because that obviously flows from that search. Certainly, it may be appealed. And I may be wrong. Pursuant to Md.Code (1973, 2002 RepLVol.), Courts and Judicial Proceedings Article, § 12-303(c)(3), the State exercised its option to pursue an interlocutory appeal of the circuit court’s decision to suppress this evidence that is critical to the State’s case.

Analysis It is not clear whether the motions judge ultimately based his ruling upon a determination that the search took too long to discover the hidden compartment, or whether the ruling was based upon the assumption that the officer needed particularized probable cause to search the air bag compartment. In either event, we conclude the circuit court was in error. In our view, the initial traffic stop was clearly justified by Harding’s speeding. After making the traffic stop, as soon as the police officer detected a strong odor of marijuana coming from inside the pickup truck, there was probable cause to search the vehicle, including any hidden compartments, for concealed marijuana.

When the officer then discovered contraband hidden in the air bag compartment, there was additional probable cause to take Harding into custody and tow the vehicle to the police station for the continued searching that led to the discovery of the drugs hidden in the spare tire. Harding’s motion to suppress should have been denied. 1 ²³⁷ 1. Standard of Review In reviewing a lower court’s ruling on a motion to suppress, this Court extends “great deference to the fact finding of the suppression court and accepts the facts found by that court unless clearly erroneous.” Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002), cert. denied, 537 U.S. 1194 , 123 S.Ct. 1303 , 154 L.Ed.2d 1029 (2003). We are limited to considering the evidence introduced at the suppression hearing, and the inferences therefrom that are most favorable to the party who prevailed on the motion.

In Re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691 (1997), cert. denied, 522 U.S. 1140 , 118 S.Ct. 1105 , 140 L.Ed.2d 158 (1998). But the ultimate decision on whether the evidence was seized in violation of the law is made independently of the lower court’s decision. Laney v. State, 379 Md. 522, 534 , 842 A.2d 773 (2004) (“We 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.”). The U.S. Supreme Court noted in Ornelas v. U.S., 517 U.S. 690, 697, 699-700 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996), that when an appellate court reviews probable-cause or reasonable-suspicion determinations, the legal conclusions of the motions court are reviewed de novo.

Accord U.S. v. Arvizu, 534 U.S. 266, 275 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002); Ferris, supra, 355 Md. at 368 , 735 A.2d 491 ; Jones v. State, 111 Md.App. 456, 465-66 , 681 A.2d 1190 , cert. denied, 344 Md. 117 , 685 A.2d 451 (1996). 2. The traffic stop As Judge Raker explained for the Court of Appeals in Ferris, supra, 355 Md. at 369 , 735 A.2d 491 : The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention.... The Supreme Court has made clear that a traffic stop involving a motorist is a detention which ²³⁸ implicates the Fourth Amendment... .It is equally clear, however, that ordinarily such a stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation. Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769, 1772 , 135 L.Ed.2d 89 (1996)....

It is without dispute that the stop of [the defendant] by [the State trooper] for exceeding the posted limit constituted a seizure for Fourth Amendment purposes, but that such a seizure was justified by the probable cause possessed by the trooper in having witnessed [the defendant’s] traffic violation. Similarly, in Harding’s case, the initial traffic stop was justified by the fact that Trooper Cameron personally observed Harding exceeding the posted speed limit. As Judge Moylan explained in Charity, supra, 132 Md.App. at 610 , 753 A.2d 556 , the fact that the traffic infraction was of a relatively minor nature does not lessen the officer’s authority to make the initial stop: “Whren v. United States permits a narcotics officer to seize the opportunity presented by a traffic infraction to make a stop that would not otherwise be permitted. The narcotics officer need not apologize for this.

The ‘Whren stop’ is part of the arsenal [available to law enforcement officers].” Although the Whren stop permits a police officer to stop a vehicle for a traffic infraction, there is a limit upon what constitutes a reasonable detention once the stop is made. As the Court of Appeals stated in Ferris, supra, 355 Md. at 372 , 735 A.2d 491 : “[0]nce the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot.” In Ferris and Charity , because the police officers had no further probable cause to continue the detention of the vehicles beyond the brief period of time required to process and ²³⁹ issue traffic citations for the infractions that led to the stops, the evidence that was eventually discovered, during the unwarranted continued detention, was suppressed. Similar consequences followed from unwarranted detentions in Pryor v. State, 122 Md.App. 671 , 716 A.2d 338 , cert. denied, 352 Md. 312 , 721 A.2d 990 (1998); Whitehead v. State, 116 Md.App. 497 , 698 A.2d 1115 , cert. denied., 348 Md. 207 , 703 A.2d 148 (1997); and Munafo v. State, 105 Md.App. 662 , 660 A.2d 1068 (1995). Notwithstanding the conclusions in those specific cases, however, in Chanty, this Court cautioned: “Even a very lengthy detention may be completely reasonable under certain circumstances.” 132 Md.App. at 617 , 753 A.2d 556 .

And, we emphasized, “We repeat that in processing a traffic infraction the police are not to be monitored with a stop-watch.” Id. See also Wilkes v. State, 364 Md. 554, 576 , 774 A.2d 420 (2001) (“The Supreme Court has expressly rejected imposing rigid time limitations on traffic stops.”). In Harding’s case, however, the duration of the initial traffic stop is not an issue because there was clearly no unreasonable delay before the officer discovered the probable cause to search the vehicle. Upon Trooper Cameron’s initial approach to the vehicle, the officer immediately detected a strong odor of marijuana coming from the interior of Harding’s pickup.

Consequently, Trooper Cameron quickly satisfied the requirement set forth in Ferns for continued detention of Harding (i.e., “the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot,” Ferris, supra, 355 Md. at 372 , 735 A.2d 491 ). Indeed, the motions judge acknowledged that when Trooper Cameron smelled the odor of marijuana, the officer had, at a minimum, a reasonable articulable suspicion that criminal activity was afoot. In contrast to the traffic-stop cases cited above in which the courts condemned the continued detention because the police officers used the detention to try to come up with probable cause, in Harding’s case, Trooper Cameron had, at ²⁴⁰ or near the very outset of the encounter, probable cause to believe the pickup contained contraband. 3. Probable Cause That Vehicle Contained Contraband Any question as to whether the odor of marijuana alone can provide a police officer probable cause to search a vehicle was dispelled by the Supreme Court in United States v. Johns, 469 U.S. 478, 482 , 105 S.Ct. 881 , 83 L.Ed.2d 890 (1985), where Justice O’Connor wrote for the Court: “After the officers came closer and detected the distinct odor of marijuana, they had probable cause to believe that the vehicles contained contraband.” To similar effect, see Ford v. State, 37 Md.App. 373, 379 , 377 A.2d 577 (“knowledge gained from the sense of smell alone may be of such character as to give rise to probable cause for a belief that a crime is being committed in the presence of the officer”), cert. denied, 281 Md. 737 (1977).

See also United States v. Ventresca, 380 U.S. 102, 111 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965) (smell of mash whiskey); Seldon v. State, 151 Md.App. 204, 232 , 824 A.2d 999 (odor of cocaine, if believed, would have established probable cause), cert. denied, 377 Md. 114 , 832 A.2d 206 (2003); Mullaney v. State, 5 Md.App. 248, 257 , 246 A.2d 291 (1968) (“That the smell of distinctive odors can constitute evidence of crime and of probable cause is well settled.”), cert. denied, 252 Md. 732 (1969); Andrea L., Ben-Yosef, Annotation, Validity of Warrantless Search of Motor Vehicle Based on Odor of Marijuana —State Cases, 114 A.L.R.5th 173 , 189 (2003) (“The majority of courts have found that the odor of marijuana alone supplies the probable cause for a warrantless search.”); Andrea L. Ben-Yosef, Annotation, Validity of Warrantless Search of Motor Vehicle Based on Odor of Marijuana —Federal Cases, 188 A.L.R. Fed. 487 , 497 (2003)(same). 4. The Carroll Search of the Air Bag Compartment Although the contraband in Harding’s case was marijuana rather than bootleg whiskey, his case is nevertheless similar to the landmark case of Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), in which the ²⁴¹ Supreme Court held that police officers who had probable cause to believe an automobile was carrying illegal liquor could conduct a probing search of the vehicle without seeking a warrant. Because the Carrolls’ liquor was hidden in the upholstered back of a car seat, the officers had to cut into the upholstery to find the contraband. The bootleggers’ motion to suppress the evidence was denied, and that ruling was affirmed by the Supreme Court.

This “automobile exception” to the Fourth Amendment’s warrant requirement remains applicable today for vehicles suspected of transporting concealed contraband. See State v. Wallace, 372 Md. 137, 146 , 812 A.2d 291 (2002) (“Presently known as the ‘Carroll Doctrine,’ the exception allows vehicles to be searched without a warrant provided that the officer has probable cause to believe that a crime-connected item is within the car.”), cert. denied, 540 U.S. 1140 , 124 S.Ct. 1036 , 157 L.Ed.2d 951 (2004); Mobley v. State, 270 Md. 76, 81 , 310 A.2d 803 (1973) (warrantless search of vehicle permitted when officer has reason to believe vehicle contains contraband), cert. denied, 416 U.S. 975 , 94 S.Ct. 2003 , 40 L.Ed.2d 564 (1974). In United States v. Ross, 456 U.S. 798, 799-800 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982), the Supreme Court made plain that a Carroll search could include compartments and containers that might be used for hiding contraband within a vehicle. The Court stated: In Carroll v. United, States, 267 U.S. 132, 45 S.Ct. 280 , 69 L.Ed. 543 , the Court held that a warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband was not unreasonable within the meaning of the Fourth Amendment.

The Court in Carroll did not explicitly address the scope of the search that is permissible. In this case, we consider the extent to which police officers — who have legitimately stopped an automobile and