Bowling v. State
134 A.3d 388
| Md. Ct. Spec. App. | 2016Background
- On Jan. 2, 2015, Officer Barr stopped Joshua Bowling for traffic violations and suspected his license was suspended; Bowling appeared nervous and had a CDL ID card rather than a driver’s license.
- Officer Barr called for a K-9; Deputy Richardson’s certified dog Diablo alerted to the exterior rear driver’s side of Bowling’s locked vehicle. Diablo was trained to detect marijuana and four other CDS and could not indicate quantity.
- Bowling was arrested for driving on a suspended license; the tow driver retrieved keys and the officers searched the car at the scene, finding ~198.2 grams of marijuana, a scale, cash, a smoking device, and one OxyContin 5 mg tablet.
- Bowling moved to suppress the evidence, arguing that after Maryland decriminalized possession of <10 grams of marijuana (civil offense), a dog alert unable to discriminate quantity cannot establish probable cause to search for a criminal offense.
- The State argued the alert could indicate other illegal drugs and that marijuana remains contraband despite decriminalization; the trial court denied the motion and Bowling took a conditional guilty plea reserving this issue.
Issues
| Issue | Bowling's Argument | State's Argument | Held |
|---|---|---|---|
| Whether a K-9 alert that detects marijuana (and other drugs) supplies probable cause to search a vehicle after decriminalization of <10g marijuana | Dog cannot distinguish quantity; alert could indicate only civil possession (<10g), so alert alone cannot establish probable cause to search for a crime | Dog alerts to multiple illegal CDS; marijuana remains illegal/contraband even if <10g is civil; totality (dog alert + other facts) supports probable cause | K-9 alert to marijuana, standing alone, provides probable cause to search a vehicle because marijuana remains contraband and the legislature preserved seizure/forfeiture laws |
Key Cases Cited
- Carroll v. United States, 267 U.S. 132 (Carroll doctrine permits warrantless automobile searches when probable cause exists)
- Florida v. Harris, 133 S. Ct. 1050 (2013) (probable cause is a practical, totality-of-the-circumstances inquiry; K-9 reliability assessed under that framework)
- Illinois v. Gates, 462 U.S. 213 (totality-of-the-circumstances test for probable cause)
- Wilkes v. State, 364 Md. 554 (2001) (odor of marijuana detected by trained dog establishes probable cause to search a vehicle)
- Nathan v. State, 370 Md. 648 (automobile searches permitted when officers have probable cause to believe contraband/evidence is inside)
- Maryland v. Dyson, 527 U.S. 465 (automobile exception applies when probable cause exists to believe vehicle contains contraband)
- California v. Acevedo, 500 U.S. 565 (police may search container in vehicle when probable cause exists to believe it contains contraband)
- Commonwealth v. Overmyer, 11 N.E.3d 1054 (Mass. 2014) (when small-quantity possession is civil, odor alone may be insufficient absent facts supporting belief of criminal quantity)
- State v. Smalley, 225 P.3d 844 (Or. Ct. App. 2010) (odor of marijuana supports probable cause because marijuana is contraband regardless of quantity)
- State v. Crocker, 97 P.3d 93 (Alaska Ct. App. 2004) (distinguishes jurisdictions where small-quantity possession is legal from those where it remains illegal)
- State v. Barclay, 398 A.2d 794 (Me. 1979) (smell of marijuana justified warrantless search because marijuana remained illegal/contraband)