By David Daggett

My May, 2014 blog addressed the subjects of the decriminalization of less than 10 grams of marijuana and the legality of searching a vehicle based upon the odor of marijuana, in light of said decriminalization. At that time, there were a handful of cases nationwide addressing the subject, producing a split of authority, none, of course, binding on Maryland courts.

By now, most police and prosecutors are familiar with those decisions, including People v. Waxler, 224 Cal. App. 4th 712 (2014); State v. Smalley, 223 Ore. App. 263 (2010); and State v. Tovar, 256 Ore. App. 1 (2013), which held, notwithstanding decriminalization of certain personal use amounts, that the odor of marijuana emanating from a vehicle established probable cause to search the vehicle for additional amounts. These cases were countered by a pair of Massachusetts cases, Commonwealth v. Cruz, 945 N.E. 2d 899 (2011) and Commonwealth v. Daniel, 985 N.E. 2d 843 (2013), which held that in order to conduct a search of the vehicle pursuant to the odor of marijuana, probable cause must exist to believe that a criminal amount of contraband is present in the vehicle.

Police and prosecutors in Maryland were left guessing as to how our appellate courts would rule on the issue. We no longer have to guess.

Bowling v. State, No. 1121 – September Term 2015

On March 31, 2016, the Court of Special Appeals of Maryland issued the reported opinion of Bowling v. State, which answered, at least temporarily, the question of whether the odor of marijuana emanating from a vehicle established probable cause for the police to search the vehicle, in light of the decriminalization of under 10 grams.

It was January 2, 2015 and Officer Brian Barr of the Salisbury Police Department was working the day shift. It was just about noon. He observed Joshua Paul Bowling operating his motor vehicle, and, having had prior dealings with Mr. Bowling, including a stop that resulted in a DUI arrest, Ofc. Barr believed Bowling’s license to be suspended. Upon following Bowling’s vehicle, Ofc. Barr noted a couple of traffic violations, activated his lights and initiated a traffic stop.

Upon approaching the appellant’s vehicle, Barr noticed that the appellant’s hands were shaking, he appeared to be avoiding eye contact and he seemed “very nervous.” After retrieving Bowling’s license and registration, and armed with the knowledge that Bowling had a prior weapons charge and an extensive CDS history, Barr called for a K-9 unit. At this point, the appellant got out of his vehicle and began walking around. Upon being ordered back into the vehicle, Bowling responded that he was unable to do so as he had locked his keys inside his vehicle and could not open the door. Based upon this turn of events, Ofc. Barr called for back-up.

A short time later, Deputy Richardson of the Wicomico County Sheriff’s Office arrive on the scene with Diablo, his drug dog. (By the way, why is it that no drug or bomb dogs are ever named Fluffy?) Diablo was certified and licensed and trained to detect the odors of marijuana, cocaine, heroin, methamphetamine and MDMA (Ecstasy). Upon making his way around the appellant’s vehicle, Diablo alerted when passing the rear driver’s side door. Diablo was unable to communicate either the substance or the amount detected. It could have been 2 grams of marijuana or it could have been 25 kilos of cocaine. Clearly, Diablo was not Mr. Ed.

It turned out that the appellant’s license was, in fact, suspended and Bowling was arrested for that charge. Ofc. Barr originally intended to have the vehicle towed to the station, where he planned to conduct an inventory search. The tow truck driver indicated that pursuant to company policy he was required to open the vehicle and retrieve the keys. Officer Barr then decided to search the vehicle at the scene. The search revealed 198.2 grams of marijuana, a smoking device, a scale, a single tablet of OxyContin and a large sum of cash.

At trial, Bowling entered a conditional plea of guilty on the charge of possession of marijuana with the intent to distribute. He subsequently argued on appeal that Officer Barr lacked the legal authority to conduct a warrantless search of his vehicle, based on the fact that the Maryland General Assembly in 2014 decriminalized the possession of less than 10 grams of marijuana. Since Diablo could not distinguish between the amount of marijuana that constituted a criminal offense versus that which constituted a civil offense (Bad dog!), Diablo’s alert did not provide probable cause to believe a crime had occurred, and therefore, the warrantless search of the vehicle had violated the appellant’s Fourth Amendment rights.

The State countered with a three-pronged argument: 1) Because Diablo could detect heroin, cocaine, methamphetamines, and MDMA, in addition to marijuana, there was a fair probability that Diablo was alerting to one of those other four drugs; 2) that marijuana in any amount was still contraband and even though the possession of under 10 grams was only a civil offense, the officer could nonetheless search the vehicle if he had probable cause to believe the contraband was in the vehicle; and 3) due to the totality of the circumstances, the appellant’s prior history and behavior at the scene provided the requisite probable cause to search the appellant’s vehicle.

It is the State’s argument second argument that is of significance for purposes of this article.

The issue presented in Bowling v. State was whether the police had sufficient probable cause to search the appellant’s vehicle pursuant to the Carroll doctrine. Carroll v. United States, 267 U.S. 132 (1925). See Blog # 18, August, 2014. In Carroll, the SCOTUS held that an officer may search a vehicle without a warrant if there is probable cause to believe the vehicle contains evidence of a crime or contraband. In Carroll, the contraband in question was liquor, which, during the days of Elliott Ness, Al Capone and the “Roaring Twenties,” was prohibited.

In Bowling, the COSA prefaced its opinion by referencing the cases of Wilkes v. State, 364 Md. 554 (2001) and Pyon v State, 22 Md. App. 412 (2015) which held that the detection of the odor of marijuana by a trained drug dog establishes probable cause to conduct a warrantless Carroll search of a vehicle. These cases were then pitted against the new Maryland law, which de-criminalized the possession of under 10 grams of marijuana, making it a civil offense.

The Court analyzed the statutory language of §5-601 of the Criminal Law Article and determined that while the language made possession of under 10 grams a civil offense, it is still illegal. The Court quoted from Commonwealth v. Cruz, 945 N.E. 2d 899, 911 (Mass. 2011): “Decriminalization is not synonymous with legalization.” In other words, possession of marijuana in any amount remains illegal in Maryland.

The Court in Bowling then addressed the question as to whether – in light of the new decriminalization law – the smell of marijuana provides probable cause to search a vehicle. It analyzed some more recent Massachusetts’s cases (Commonwealth v. Overmyer, 11 N.E. 3d 1054 (2014) and Commonwealth v. Fontaine, 3 N.E. 3d 82 (2014) holding that “the smell of marijuana only points to the presence of some marijuana, not necessarily a criminal amount” (Overmyer) and that “the odor of marijuana, without some additional fact or facts that establish a reasonable basis for the belief that more than one ounce of marijuana is in a person’s possession or in the location from which the odor emanates” does not give police probable cause to search a car. (Fontaine).

The COSA then analyzed opinions from other jurisdictions that reached the opposite conclusion, including the aforementioned State v. Smalley, 225 P. 3d 844 (Oregon, 2010) and State v. Barclay, 398 A. 2d 794 (Maine, 1979). These cases held that, even though possession below certain weight thresholds rendered it only a civil violation, marijuana still remained illegal to possess and therefore constituted contraband, which justified a warrantless search of the vehicle.

Holding

As we hoped (and suspected) they would, the Maryland Court of Special Appeals sided with the logic of the California, Oregon and Maine appellate courts, noting that:

[n]either the Supreme Court of the United States nor the Maryland appellate courts have limited the automobile exception to situations where there is probable cause to believe there is evidence of a crime in the vehicle. Rather, a search is permitted when there is probable cause to believe that the car contains evidence of a crime or contraband….Thus, although possession of less than ten grams of marijuana is no longer a crime, a search of a vehicle still would be reasonable under the Fourth Amendment if marijuana constitutes contraband.

The Court then undertook an analysis of whether marijuana is contraband pursuant to CR §5-601 and looked to no less an authority than Black’s Law Dictionary, which defines “contraband” as “goods that are unlawful to import, export, produce or possess.”

The Court also referenced the case of In re Calvin S., 175 Md. App. 516 (2007), in which a police officer searched a minor after observing the minor smoking a cigarette, a civil violation under CR § 10-108. Young Master Calvin argued that the mere fact that he was committing the civil violation of smoking a cigarette did not give rise to a warrantless search of his person. The State countered that cigarettes, in the possession of a minor, were contraband. The Court of Special Appeals disagreed, noting that CR §10-108 did not classify tobacco products as contraband and did not contain authority for their seizure. The Court did infer that in certain situations, such as smuggling cigarettes or selling them in violation of taxing regulations or certain interstate compacts, they could be deemed contraband, but generally they were not unlawful to possess.

The court noted that the legislative history of CR § 5-601(c)(2)(ii) made it clear that the Maryland General Assembly intended that while possession of under 10 grams of marijuana would no longer be a criminal offense, marijuana in any amount would still be contraband, be it one gram or one pound.

The Court of Special Appeals in Bowling concluded that regardless of the amount, it is still illegal to possess any quantity of marijuana and that marijuana retained its status as contraband. The Court held that the new decriminalization legislation did not change the established precedent that a drug dog’s alert to the odor of marijuana (or any other illegal narcotic in which it has been trained to detect), even without more, still provides the police with sufficient probable cause to authorize a search of a vehicle pursuant to the Carroll doctrine. The Court determined that Diablo’s alert provided a sufficient basis to believe that contraband would be found in the vehicle, therefore providing probable cause to search the vehicle.

Detection by a Human

While the Bowling case centered on the detection of marijuana by a drug-sniffing canine, it stands to reason that the odor of marijuana detected by a police officer, or the sight of small amounts of marijuana in plain view of an officer, would certainly carry the same level of probable cause, if not more. The legal analysis applied by the Court of Special Appeals to canine alerts and subsequent vehicle searches would also apply to the detection of marijuana and other contraband by a trained police officer.

The question as to whether the odor of marijuana alone can provide a police officer with probable cause to search a vehicle was answered by the Supreme Court in United States v. Johns, 469 U.S. 478 (1985), where Justice O’Connor wrote: “After the officers came closer and detected the distinct odor of marijuana, they had probable cause to  [885]  believe that the vehicle contained contraband.” Id @ p. 482

For similar holdings, see Ford v. State, 37 Md. App. 373 (1977) (“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” @ p. 379); United States v. Ventresca, 380 U.S. 102 (1965) (smell of mash whiskey); Seldon v. State, 151 Md. App. 204 (2003) (odor of cocaine, if believed, would have established probable cause); Mullaney v. State, 5 Md. App. 248 (1968) (“that the smell of distinctive odors can constitute evidence of crime and of probable cause is well settled.” @ p. 257).

In 2007, in the case of Wilson v. State, 174 Md. App. 434, the Court of Special Appeals of Maryland held that marijuana and other illegal drugs, by their very nature, can be stored almost anywhere within a vehicle, and that the location-specific principle that “probable cause must be tailored to specific compartments and containers within an automobile,” does not apply when officers have only probable cause to believe that contraband is located somewhere within the vehicle, rather than in a specific compartment or container within the vehicle. The odor of burnt marijuana emanating from a vehicle provides probable cause to believe that additional marijuana is present elsewhere/anywhere in the vehicle.

The defense argued that marijuana users keep their marijuana close at hand (the passenger compartment), while traffickers store their marijuana in the trunk. The smell of burnt marijuana, the appellant argued, would merely indicate personal use and not trafficking, thereby negating the necessity of searching the trunk. Seriously?

The Court in Wilson was nonplussed and determined that it was not unreasonable for an officer to believe that the odor of burnt marijuana indicates current possession of additional unsmoked marijuana that could be located somewhere inside the vehicle, including the trunk. The Court opined that to determine otherwise would mean that the trunk, or any other area outside of the passenger compartment, would become a “search-free zone” for the transportation of mass quantities of drugs. It stressed that its decision eliminated the need to distinguish between burnt, burning, or raw marijuana and avoids speculation on the part of the officer as to whether a person is a user or a trafficker and, depending upon which, where the marijuana would likely be concealed.

Conclusion

The Court of Special Appeal’s decision in Bowling v. State puts to rest at this time the question of whether the odor of marijuana in a vehicle provides probable cause for the subsequent search of that vehicle, notwithstanding the recent decriminalization of under 10 grams of marijuana. Maryland joins ranks with California, Oregon and Maine and gives a polite thumbs down to Massachusetts.

AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEY’S OFFICE FOR ANY SPECIFIC LEGAL ADVICE RELATED TO THIS SUBJECT.