By David Daggett
The Maryland Court of Special Appeals placed an early Christmas present under the collective trees of police and prosecutors on November 29, 2017 in the form of Barrett v. State, No. 530, September Term, 2016 (Judge Graeff.) Upon reading the opinion I felt like Ralphie unwrapping with great anticipation his Red Ryder BB gun on Christmas morning. While I didn’t almost shoot my eye out, I did accidentally jab myself with a mechanical pencil in the excitement of the moment. In an effort to avoid repeating the word ”marijuana” over and over, I’ve attempted to use as many different terms as I could come up with. A rose by any other name…
On November 24, 2014, two Baltimore City detectives were on patrol in a marked vehicle when they came upon a Honda Accord with a cracked windshield. It was the same car one of the detectives had stopped a month prior and had issued a verbal warning to the owner to have repaired. As the detectives passed the vehicle on this occasion they noticed a strong odor of marijuana escaping from the window. They initiated a traffic stop and approached the Accord, where a scene from a Cheech and Chong movie was unfolding inside. Anthony Barrett, the appellant, was seated in the front passenger seat, and after being asked if there was any dope in the vehicle, responded “Yes.” He then stated, “Oh, you meant that kind of dope,” and proceeded to hand over a cigar stuffed with ganja. While the detective could smell the odor of pot coming from both Barrett and the vehicle’s interior, he was unable to ascertain the amount. That is, he couldn’t discern whether there was more than 9.9 grams of reefer in the vehicle. Barrett was then searched and a 9-millimeter handgun was recovered from his pants. Needless to say, he did not have a valid carry permit.
At the suppression hearing in Circuit Court, the defense argued that Barrett’s admission of the possession of less than 10 grams of grass only amounted to a civil offense and did not justify a search of his person. The trial court, relying on Bowling v. State, 227 Md. App. 460 (2016) and the Carroll doctrine, declined to suppress the evidence and convicted Barrett of the gun charges. Barrett wasn’t thrilled with that outcome and his appeal followed.
Barrett argued to the Court of Special Appeals that the trial court erred in its reliance on Bowling, as that case (and subsequently, Robinson v. State, 451 Md. 94 (2017)) involved searches of vehicles and not searches of a person. The appellant also argued that it wasn’t a valid search incident to arrest because the amount of weed linked to Barrett was only a civil amount – an amount for which he could not be arrested – and further that he had not been placed under arrest when the search took place.
The Court of Special Appeals acknowledged that while searches conducted without a warrant are per se unreasonable under the Fourth Amendment, there are a number of well-established exceptions to that rule, including: hot pursuit; the plain view doctrine; the Carroll doctrine; a stop and frisk/Terry patdown; consent; exigent circumstances; and search incident to arrest.
The Court of Special Appeals acknowledged that, while a search of the vehicle under the automobile exception would have been valid, the United States Supreme Court has never held that there is a “probable cause to search a person” exception to the warrant requirement. In order to justify a search of the suspect’s person, the State must show an exception to the warrant requirement such as consent, exigent circumstances, search incident to arrest, or a reasonable suspicion to conduct a frisk.
The State, superbly represented by Todd Hesel of the Attorney General’s Office, argued in its brief that the search was justified as there was a reasonable suspicion to conduct a frisk on the theory that a person in possession of cannabis or other drugs is presumed to be armed and dangerous. After the brief was filed, those of you that have been paying attention over the past few months will remember that the Court of Appeals held in Norman v. State, 452 Md. 373 (2017) that the odor of 420 emanating from a vehicle does not, by itself, justify a frisk of the occupant of the vehicle. The Norman Court stated that “a frisk is proper only if, in addition to the odor of [cannabis], another circumstance or circumstances are present giving rise to the reasonable articulable suspicion that an occupant is armed and dangerous.” Norman at 425. Mr. Hesel conceded at oral argument that Norman pretty much put the kibosh on that particular argument.
Fortunately, the State remained alive under the theory of the search incident to arrest exception. The appellant countered that (1) the State did not argue this exception before the circuit court; (2) there was not probable cause to arrest; and (3) there was no arrest prior to the search. Let’s take them in order.
The State failed to argue the Search Incident to Arrest theory.
The CoSA dispatched this argument by making clear that “an appellee is entitled to assert any ground adequately shown by the record for upholding the trial court’s decision, even if that particular ground was not raised in the trial court and if legally correct, the trial court’s decision will be affirmed on such alternative ground.” Slip Opinion at 9. The CoSA determined that the trial court record was, in fact, adequately developed to allow the appellate court to address whether the search was valid as a search incident to arrest even though it had not be argued by the State at trial.
Probable Cause to Arrest.
The Court of Special Appeals had no problem determining that the detective had probable cause to believe that Barrett was in possession of grass. While Maryland’s appellate courts have consistently determined that the odor of chronic in a vehicle provides probable cause to believe that the drug itself is in the vehicle in some quantity, the question of whether a particular occupant is in possession of it is an entirely separate matter. To satisfy probable cause to believe that a particular occupant is in possession of the hemp requires additional factors creating a link or nexus of the drugs to that passenger. In other words, was there probable cause to believe the passenger was in either actual or constructive possession of the drugs? Where were the drugs in relation to the particular passenger? Were the drugs in plain view? In what quantity? How were they packaged? Did there appear to be recent usage? These are but some of the questions to help determine whether a particular passenger is in actual or constructive possession of the contraband.
Since Barrett not only admitted to smoking the blunt, but also handed it to the detective, it was more than clear that probable cause existed to believe that Barrett was in actual possession of herb.
The appellant next argued that since the Maryland General Assembly decriminalized the possession of less than 10 grams of Mary Jane in October of 2014– making it a civil offense – and that the detectives here could not determine the quantity involved, they did not have probable cause to believe that Barrett was committing a crime.
The Court of Special Appeals cited the language of Robinson v. State, supra, that “decriminalization is not the same as legalization” and “despite the decriminalization of possession of less than ten grams of marijuana, possession in any amount remains illegal in Maryland.” Robinson, 451 Md. 94, 125.
The Court noted that although Robinson addressed probable cause to search a vehicle, the same analysis applied to probable cause to arrest for possession of cannabis: Marijuana is still contraband and the possession of any amount provides probable cause to arrest, even if the officer is unable to determine whether the amount possessed is 10 grams or more. Emphasis added. The Court held that probable cause “only requires facts sufficient to warrant a prudent person in believing that an individual is committing a crime.” Slip Opinion at 16.
There was no arrest prior to the search.
At this point, undoubtedly feeling much like the mythical Greek King Sisyphus eternally rolling his boulder up a hill, Barrett next argued that he had not been arrested when the search was conducted, so therefore a search incident to arrest wasn’t justified. The cart was before the horse, so to speak. The appellate court noted that in Rawlings v. Kentucky, 448 U.S. 98 (1980) the United States Supreme Court held that a search may still be deemed “incident to arrest” even if the search occurred prior to the arrest. Judge Graeff noted that the main requirement is that the search be “essentially contemporaneous” with the arrest. Wilson v. State, 150 Md. App. 658, 673 (2003) and that the search and arrest need to “occur instantly, one after the other.” Lee v. State, 311 Md. 642, 668 (1988)
In this case, Barrett was arrested as soon as the detective discovered the gun. The Court of Special Appeals held that because the police had probable cause to arrest Barrett for possession of the joint, and that the arrest occurred immediately after the discovery of the gun, the search was valid as a search incident to arrest.
It’s a fine line.
The holding of the Court of Special Appeals in Barrett illuminates the fine line that exists between a search of a person based upon probable cause versus the arrest of the person for the same offense (with the same probable cause) and subsequently searching incident to that arrest. It seems counterintuitive in that an arrest and search can be so much more intrusive than a search itself. Given the choice, who amongst us wouldn’t rather just be searched (and subsequently released if nothing is found) rather than being arrested and then searched? Baltimore City police procedures allow for a suspect that has been placed under arrest to be subsequently released on site, upon compliance with certain administrative procedures. Other police departments have totally different procedures once the cuffs go on, requiring the full Monty (taking the suspect in, processing, being photographed, fingerprinted, etc.). Many simply allow for catch and release. Being placed under arrest and then searched can be so much more intrusive than reversing the order. Probable cause is probable cause. But, I digress.
Be that as it may, the Barrett opinion makes clear that the officer must first inform the suspect that he or she is under arrest and then immediately conduct the search incident thereto. If nothing criminal is discovered, is it not better to simply remove the cuffs, “unarrest” the suspect, write a civil citation and send him on his way with a hearty pat on the back and a “Have a nice day, my man!”?
As mentioned in the beginning, the Barrett opinion adds an important arrow to the law enforcement quiver. Allowing police to arrest and search someone for the public use and possession of marijuana puts to rest all those “search incident to citation” questions, at least for the time being. While it wasn’t specifically discussed, common sense would indicate that the opinion would only seem to allow for an arrest and search when there is probable cause to believe the suspect is currently in possession or is seen smoking a joint in public. The stale odor of an old smoked doobie coming from someone’s dirty jacket is not what the Court of Appeals was contemplating with this opinion. A slight, stale odor, coming from the interior of a vehicle, without more, is also probably not what the Court of Special Appeals had in mind. Remember, what the Court giveth, the court (or legislature) can taketh away. When it comes to marijuana the Maryland legislature seems to be making their intentions clear. In the immortal words of Johnny Cash, “I see that train a-coming. It’s rolling ‘round the bend.”
With the arrival of medical marijuana, law enforcement will be confronting an entirely new set of legal issues, but that is a topic for another time.
BOGO BLOG: IGNITION INTERLOCK
I’d like to thank Karen Morgan of the Maryland Department of Legislative Services – and a friend of the MSAA – for pointing out a very important update to the 2017 edition of the Maryland Traffic Code. Now appearing as TR §21-902.3(b), if a person is convicted of a violation of §21-902(b) or (c) and the trier of fact finds beyond a reasonable doubt that the person refused to take a test arising out of the same circumstances as the violation, the court shall require the person to participate in the Ignition Interlock program for one year.
The penalty provided under this section shall be in addition to any other criminal penalty for a (b) or (c) violation and concurrent with any other participation in the MVA Ignition Interlock Program.
This provision had previously been buried in TR 27-107.1 rather than in TR §16-404.1(d) where it belonged, so it was probably missed by many.
If conducting a jury trial, the State should probably add a jury instruction regarding the refusal to take the intoximeter following the instructions for the (b) and/or (c) charges, as well as adding a line to the verdict sheet that the defendant was found to have refused to take the test. In a bench trial, either during opening statement or closing argument, the prosecutor should ask the trial judge to make a finding beyond a reasonable doubt that the defendant refused to take the test. This is in addition to the enhanced penalty provisions newly located in TR § 21-902(g)(3), in which the State is required to serve the defendant with notice of intent to seek the additional 60 days.
Wishing everyone a safe and happy Holiday season.
AS ALWAYS, PLEASE CONSULT WITH YOUR LOCAL STATE’S ATTORNEYS’ OFFICE WITH ANY SPECIFIC QUESTIONS REGARDING THIS SUBJECT MATTER