Wilson v. State

KENNEY, J. During a traffic stop, a Maryland State Trooper recovered six and one-half pounds of marijuana from a suitcase in the trunk of a rental vehicle that appellant, Mario Wilson, was driving. Following a bench trial in the Circuit Court for Worcester County, appellant was found guilty of possession of marijuana with intent to distribute. He was sentenced to two years’ imprisonment. Prior to trial, appellant moved to suppress evidence of the marijuana recovered from the trunk of his vehicle.

The denial of that motion is the subject of this appeal. Appellant presents one question, which we have rewritten as follows: 1 Does the odor of burnt marijuana emanating from the passenger compartment of a vehicle, by itself, establish ⁴³⁸ probable cause to search the vehicle’s trunk under the automobile exception to the warrant requirement of the Fourth Amendment? For the following reasons, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY On October 27, 2004, Maryland State Police Trooper Larry Fortino was operating radar in an unmarked patrol vehicle on U.S. 13 in Worcester County.

Radar indicated that a gray Chevy Impala with Virginia tags was traveling southbound at 62 miles per hour in a 55 mile per hour zone. A traffic stop was initiated. When the vehicle pulled off onto the shoulder of the highway, appellant was driving the vehicle. Another person was in the passenger seat.

Trooper Fortino approached the vehicle and asked appellant for his driver’s license and registration. Appellant produced a Virginia driver’s license and a rental agreement for the vehicle. He became argumentative, claiming that he frequently traveled U.S. 13 and had never before been stopped. While Trooper Fortino conversed with appellant, he smelled “an odor of burnt marijuana emanating from the vehicle.” He informed appellant that the odor had been detected and asked him to exit the vehicle.

Appellant denied having marijuana in the car. By this time, a deputy with the Worcester County Sheriffs Office arrived at the scene. The deputy remained with appellant while Trooper Fortino walked around to the passenger side of the vehicle and asked the passenger to exit the car. The deputy searched the vehicle’s interior, including the glove compartment and ashtray, in addition to the air filter and hubcaps.

No evidence of a crime was discovered during the search. Appellant’s car key was used to open the trunk of the vehicle. Inside, six and one-half pounds of marijuana were recovered from a black suitcase. The record indicates that either the deputy or Trooper Fortino had requested the ⁴³⁹ assistance of a drug-detecting dog, which did not arrive until after the contraband had been recovered.

On December 8, 2004, appellant was charged with possession of marijuana with intent to distribute. Appellant filed a motion to suppress the marijuana recovered from the vehicle. Following a hearing, the motion was denied. On July 12, 2005, the case proceeded on an agreed statement of facts that included the following: A full search of the vehicle was conducted.

Two large packages were located in a black suitcase in the trunk. The packages contained a large amount of suspected marijuana. The evidence was submitted for analysis to the Maryland State Police crime lab, who tested it, and determined that it was in fact marijuana. It was approximately six and a half pounds of marijuana.

STANDARD OF REVIEW “In considering a denial of a motion to suppress, we are limited to the record of the suppression hearing.” Whiting v. State, 160 Md.App. 285, 300 , 863 A.2d 1017 (2004). Where, as here, the circuit court does not make factual findings on the record, the appellate court will accept that version of the evidence most favorable to the prevailing party. It will fully credit the prevailing party’s witnesses and discredit the losing party’s witnesses. It will give maximum weight to the prevailing party’s evidence and little or no weight to the losing party’s evidence.

It will resolve ambiguities and draw inferences in favor of the prevailing party and against the losing party. Morris v. State, 153 Md.App. 480, 490 , 837 A.2d 248 (2003). As a question of law, we review, de novo, whether appellant’s motion to suppress was properly denied. In re David S., 367 Md. 523, 529 , 789 A.2d 607 (2002). ⁴⁴⁰ DISCUSSION The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment ordinarily requires that a warrant be secured prior to conducting a search. Maryland v. Dyson, 527 U.S. 465, 466 , 119 S.Ct. 2013 , 144 L.Ed.2d 442 (1999). An exception to the warrant requirement is the “automobile exception,” known as the “Carroll Doctrine.” State v. Harding, 166 Md.App. 230, 241 , 887 A.2d 1108 (2005). “If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment ... permits police to search the vehicle without more.” Dyson, 527 U.S. at 467 , 119 S.Ct. 2013 (quoting Pennsylvania v. Labron, 518 U.S. 938, 940 , 116 S.Ct. 2485 , 135 L.Ed.2d 1031 (1996)). In Daniels v. State, 172 Md.App. 75, 89 , 913 A.2d 617 (2006), we explained probable cause as follows: [PJrobable cause is a flexible, common-sense standard.

It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132, 162 , 45 S.Ct. 280, 288 , 69 L.Ed. 543 (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such belief be correct or more likely true than false. A “practical, non-technical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176 , 69 S.Ct. 1302, 1311 , 93 L.Ed. 1879 (1949); Riddick v. State, 319 Md. 180, 194-95 , 571 A.2d 1239 (1990). ⁴⁴¹ In a probable cause analysis, we consider the “totality of the circumstances.” Cox v. State, 161 Md.App. 654, 669 , 871 A.2d 647 (2005). We have held that the odor of burnt marijuana, alone, affords probable cause to search the passenger compartment of a vehicle under the “automobile exception.” In Harding, 166 Md.App. at 233 , 887 A.2d 1108 , “a strong odor of burnt marijuana emanating from the passenger compartment” of the defendant’s pickup truck provided probable cause to search the passenger compartment of his vehicle.

A search of the air bag compartment resulted in the recovery of a pistol, a bag of marijuana, and a partially-smoked marijuana cigarette. Id. After the defendant’s arrest, “the officers discovered a large package of additional marijuana hidden in a spare tire that was in the covered bed of the pickup truck.” Id. On review, we stated: 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 vehicle 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 ⁴⁴² 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). Id. at 240, 887 A.2d 1108 . We have stated that “[m]any of the cases applying the Carroll doctrine have found probable cause to search the trunk of a motor vehicle based on evidence apparent to a police officer after a lawful search of the passenger compartment of the vehicle.” Whiting v. State, 125 Md.App. 404, 415 , 725 A.2d 623 (1999) (and cases cited therein). In this case, the search of the passenger compartment of the vehicle produced no additional evidence of the presence of marijuana in the vehicle.

Appellant contends that, under the circumstances, any probable cause to search the passenger compartment of a vehicle based solely on the odor of burnt marijuana would not extend to the vehicle’s trunk. In United States v. Ross, 456 U.S. 798, 824-25 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982), the Supreme Court explained: The scope of a warrantless search of an automobile ... is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.

See also Whiting, 125 Md.App. at 411-12 , 725 A.2d 623 . In California v. Acevedo, 500 U.S. 565, 580 , 111 S.Ct. 1982 , 114 L.Ed.2d 619 (1991), the Supreme Court stated that the ⁴⁴³ “police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” In that case, officers of the Santa Ana Police Department were conducting surveillance of an apartment, which they knew contained marijuana. Id. at 566-67 , 111 S.Ct. 1982 . Acevedo drove to the apartment, entered, “stayed for about ten minutes, and reappeared carrying a brown paper bag that looked full.” Id. at 567 , 111 S.Ct. 1982 .

He placed the bag in the trunk of his vehicle. Id. As he drove out of the parking lot, he was stopped by police. “They opened the trunk and the bag, and found marijuana.” Id. (footnote omitted).

The Supreme Court explained: [T]he police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment. Id. at 580 , 111 S.Ct. 1982 .

In U.S. v. Carter, 300 F.3d 415 , 422 (4th Cir.2002), the United States Court of Appeals for the Fourth Circuit, citing Acevedo , stated that “probable cause must be tailored to specific compartments and containers within an automobile.” In Carter, twenty defendants were named in an indictment stemming from a series of arrests in a housing project in Fayetteville, North Carolina. Id. at 420. Five appellants were joined for trial. Id.

One of the defendants, Jerry McRae, had been pulled over for speeding. Id. The officer who initiated the traffic stop “testified that when he approached the vehicle, he smelled burnt marijuana in the air.” Id. He asked McRae for permission to search the vehicle; McRae refused.

Id. The officer released a drug-sniffing dog from his patrol vehicle and the dog alerted “when walking by the driver’s side door.” Id. Based on the dog’s alert, the officer “searched the entire ⁴⁴⁴ passenger compartment of the vehicle and found a quantity of marijuana on the passenger side of the center console.” Id. An additional search of the locked trunk of McRae’s vehicle resulted in the recovery of a kilogram of cocaine within a locked suitcase that was inside of the trunk.

Id. The court stated that the officer" “clearly had probable cause to search the passenger compartment of McRae’s vehicle without a warrant, based on the burning marijuana he smelled as he approached the car.” Id. at 422. As to whether the officer “also had probable cause to search the locked trunk of the car and the closed suitcase inside the trunk,” the government argued that the “dog’s ‘alerting’ on the driver side of the car gave [the officer] probable cause to search the entire vehicle: including the trunk and the suitcase.” Id. In response to that argument, the court stated that the government “overstates the matter,” but concluded that the search of the trunk and the suitcase was proper because the dog’s alert “was sufficiently close to the trunk to give [the officer] probable cause to believe it contained contraband.” Id.

The United States Court of Appeals for the Fifth Circuit explained Ross as follows: The Supreme Court has made a distinction between probable cause to believe that drugs are in a particular section of the car, and probable cause to believe that drugs are generally within the car. In Ross , the Court stated, “probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” United States v. Ross, 456 U.S. 798, 824 , 102 S.Ct. 2157, 2172 , 72 L.Ed.2d 572 (1982). Whereas on the next page, the Court states, “if probable cause justifies a search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Id. Thus, if officers have probable cause to believe that contraband is in only one part of a car, then they are limited to that area.

If, on the other hand, officers have probable cause to believe that contraband is located somewhere in a ⁴⁴⁵ car, but they don’t know exactly where, then they can search the entire vehicle. U.S. v. Seals, 987 F.2d 1102 , 1107 n. 8 (5th Cir.1993). Officers May Search the Trunk Only a few jurisdictions have considered the issue presented in this case. One jurisdiction has opined that the odor of burnt marijuana, alone, establishes probable cause to search the trunk of a vehicle.

Another, in dicta, has indicated that it would so hold. U.S. Court of Appeals for the Fifth Circuit In U.S. v. McSween, 53 F.3d 684, 685 (5th Cir.1995), the driver of a vehicle was stopped by two Texas Department of Public Safety officers for driving in excess of the posted speed limit. One of the officers asked the driver if he could search the car, including the trunk. Id.

The driver consented. Id. The officer “noticed the smell of burnt marihuana” but did not find any evidence in the vehicle during the initial search to confirm his belief. Id.

Under the hood of the vehicle, the officer removed a rag from a hole in the vehicle’s fire wall and found a brown paper bag. Id. Believing that the bag contained marijuana, the officer arrested the driver. Id. at 685-86 .

The car was impounded and additional marijuana, as well as cocaine, were discovered in the hole under the hood of the vehicle. Id. at 686 . On appeal, the driver argued that: (1) his consent to search the car did not extend to areas under the hood of the vehicle and (2) “even if the odor of marihuana gave [the officer] probable cause to search, the search should have been limited to the passenger area, where [the officer] detected the smell.” Id. at 687 . The court disagreed, stating: It is well settled that, in a case such as this, the detection of the odor of marihuana justifies “a search of the entire vehicle.” [U.S. v.] Reed, 882 F.2d [147,] 149 [ (5th Cir. 1989) ].

As the Supreme Court stated in Ross , “If probable ⁴⁴⁶ cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” 456 U.S. at 825 , 102 S.Ct. at 2173 . See also United States v. Johns, 469 U.S. 478, 482 , 105 S.Ct. 881, 884 , 83 L.Ed.2d 890 (1985). The Court further observed that, if there is probable cause to suspect that the vehicle contains contraband, then the search may extend not only to closed containers, but also to a “car’s trunk or glove compartment.” Ross, 456 U.S. at 823 , 102 S.Ct. at 2172 . The same reasoning applies to the area under the hood, where drugs may also be concealed.

Id. at 687. Iowa In State v. Longo, 608 N.W.2d 471, 473 (Iowa 2000), the Supreme Court of Iowa did not directly address the issue as factors in addition to the odor of burnt marijuana supported the court’s conclusion that probable cause existed to search the trunk of a vehicle. It did state, however, “We have substantial doubts as to the validity of [the defendant’s] theory that the smell of burnt marijuana only gives rise to a lawful search of the passenger portion of the vehicle and not the trunk.” Officers May Not Search the Trunk Four jurisdictions have held that the odor of burnt marijuana, alone, does not establish probable cause to search the trunk of a vehicle. Appellant urges that we follow their lead.

U.S. Court of Appeals for the Tenth Circuit The Tenth Circuit has held, in at least five cases, that the odor of burnt marijuana (or burnt methamphetamine), alone, does not provide a sufficient basis to search the trunk of a vehicle. See U.S. v. Bradford, 423 F.3d 1149, 1160 (10th Cir.2005); U.S. v. Wald, 216 F.3d 1222, 1226 (10th Cir.2000); U.S. v. Downs, 151 F.3d 1301, 1302 (10th Cir.1998); U.S. v. ⁴⁴⁷ Parker, 72 F.3d 1444, 1450 (10th Cir.1995); U.S. v. Nielsen, 9 F.3d 1487, 1491 (10th Cir.1993). Interpreting the Supreme Court’s decision in Ross , the Tenth Circuit stated: [Although the smell of burnt marijuana emanating from a vehicle provides probable cause to search the passenger compartment of that vehicle, if that search fails to uncover corroborating evidence of contraband, probable cause to search the trunk of the vehicle does not exist. This rule is premised on the common-sense proposition that the smell of burnt marijuana is indicative of drug usage, rather than drug trafficking, and because it is unreasonable to believe people