Robert BAILEY v. STATE of Maryland.
No. 10, Sept. Term, 2009.
Court of Appeals of Maryland.
Jan. 14, 2010.
987 A.2d 72
Carrie J. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.
ARGUED BEFORE BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.
GREENE, Judge.
In this case, we are asked to determine whether the search and seizure of the petitioner, Robert Bailey, violated the Fourth Amendment to the United States Constitution and the Maryland Declaration of Rights. To reach a decision, we must consider whether the odor of ether, a lawful substance that is allegedly associated with contraband, constitutes probable cause to support an arrest when the arrestee, who is standing in a high crime drug area, has the odor of ether emanating from his person, and fails to respond to police questions. We shall hold that the totality of the circumstances do not provide a concrete reason to associate the odor of ether with criminal activity or contraband, and, accordingly, the officer did not have probable cause to arrest the petitioner.
I.
On the night of August 16, 2006, Officer Rodney Lewis of the Prince George‘s County Police Department was patrolling the 6800 block of Hawthorne Street in Landover, Maryland. The area was known for drug activity, though there were no specific complaints on the night in question. At approximately 11:35 P.M., while patrolling on foot, Officer Lewis spotted the
... I observed the defendant standing on the side of a home, ... just standing in the shadows, at which time I yelled out to him, “Excuse me, sir, do you live there?” I didn‘t get any acknowledgment from the individual, at which time I assumed that he probably didn‘t hear me. I repeated the same thing, “Excuse me, sir, do you live there,” which again I received no acknowledgment from the suspect, at which time myself, along with another officer, walked over to the individual. At that time, I just happened to step out of the shallow [sic] area on the sidewalk where I could visibly see his hands. And from the area at which he was standing at the time, I could smell a strong odor of ether ...
When Officer Lewis smelled the odor of ether, he was within a few feet of the petitioner, close enough to “reach out and touch him.” The odor was emanating “[f]rom [the petitioner‘s] body odor.” The odor of ether, according to Officer Lewis‘s testimony, is associated with phencyclidine, more commonly known as PCP.1 Officer Lewis acknowledged on cross-
People under the influence of PCP, according to Officer Lewis‘s testimony, “possess various strengths, sometimes they could be incoherent in reference to trying to understand if someone is saying something to them, and very glossy [sic] eyes....”3 Officer Lewis did not explain what he meant by “glossy” eyes or elaborate any further. In addition to observing the odor of ether, Officer Lewis noted that the petitioner had “glossy eyes” and that the petitioner failed to respond to the inquiries about whether he lived in the house. Officer Lewis did not, however, indicate whether he observed the petitioner‘s glossy eyes before or after he initially seized the petitioner.
The petitioner moved to suppress the physical evidence recovered from the search, asserting that the glass vial was
The petitioner proceeded to trial on an Agreed Statement of Facts. The State entered a nol pros as to the first count, possession of a controlled dangerous substance with intent to distribute. Based upon the Agreed Statement of Facts, the Circuit Court for Prince George‘s County entered verdicts of guilty to the second count, possession of a controlled dangerous substance, and sentenced the petitioner to four years in prison, all but two years suspended, with three years of supervised probation upon release.
The petitioner filed a timely appeal to the Court of Special Appeals. The intermediate appellate court, in an unreported opinion, affirmed the judgment of the trial court. The court determined that Officer Lewis had a reasonable, articulable suspicion to conduct an investigatory stop based on the odor of ether, the petitioner‘s “glossy” eyes, the petitioner‘s presence “in the shadows” in a high drug crime area, and the petitioner‘s failure to respond to Officer Lewis‘s inquiries. The court also held that
the officer‘s testimony did not provide a basis for a frisk, [but] it did provide probable cause for arresting [the petitioner] for the possession of illegal drugs and hence search-
ing him. That is to say, although Officer Lewis did not articulate a reasonable suspicion for believing [the petitioner] had weapons in his possession, he did have probable cause to arrest [the petitioner] for the possession of unlawful drugs, and therefore he had the lawful authority to conduct a search incident to that arrest.
The court based its probable cause determination on “the smell of material clearly associated with illegal drugs ... combined with both the appearance and conduct of [the petitioner],” specifically his “glossy” eyes, failure to respond to Officer Lewis‘s inquiries, and presence in a high drug crime area “standing in the shadows at 11:30 p.m. ... back off the street, well in the shadows.”
II.
“When reviewing the disposition of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment ..., we view the evidence adduced at the suppression hearing, and the inferences fairly deducible therefrom, in the light most favorable to the party that prevailed on the motion.” Crosby v. State, 408 Md. 490, 504, 970 A.2d 894, 902 (2009); Longshore v. State, 399 Md. 486, 498, 924 A.2d 1129, 1135 (2007). The appellate court defers to the trial court‘s fact-finding at the suppression hearing, unless the trial court‘s findings were clearly erroneous. Crosby, 408 Md. at 504-05, 970 A.2d at 902. “Nevertheless, in resolving the ultimate question of whether the detention or attendant search of an individual‘s person or property violates the Fourth Amendment, we ‘make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.‘” Crosby, 408 Md. at 505, 970 A.2d at 902 (quoting State v. Williams, 401 Md. 676, 678, 934 A.2d 38, 40 (2007)); Longshore, 399 Md. at 499, 924 A.2d at 1136. Thus, this Court considers the evidence adduced at the suppression hearing, construed in the light most favorable to the State as the prevailing party at the suppression hearing.
The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” When the police obtain evidence through a search or seizure that violates the Fourth Amendment, “exclusion of evidence obtained in violation of these provisions is an essential part of the Fourth Amendment protections.” Swift v. State, 393 Md. 139, 149, 899 A.2d 867, 873 (2006) (citing Mapp v. Ohio, 367 U.S. 643, 655-56, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081 (1961); State v. Lee, 374 Md. 275, 297-98, 821 A.2d 922, 934-35 (2003)). The Fourth Amendment, however, is “not implicated in every situation where the police have contact with an individual.” Swift, 393 Md. at 149, 899 A.2d at 873 (citing California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991); Scott v. State, 366 Md. 121, 133, 782 A.2d 862, 869 (2001)). This Court analyzed the applicability of the Fourth Amendment to varying levels of police interaction in Swift, 393 Md. at 149-51, 899 A.2d at 873-74:
Many courts have analyzed the applicability of the Fourth Amendment in terms of three tiers of interaction between a citizen and the police. The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime. The second category, the investigatory stop or detention, known commonly as a Terry stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and briefly detain an individual.... The least intrusive police-citizen contact, a consensual encounter, involves no restraint of liberty and elicits an individual‘s voluntary cooperation with non-coercive police contact. A consensual encounter need not be supported by any suspicion and because an individual is free to leave at any time during such an encounter, the Fourth Amendment is not implicated; thus, an individual is not considered
to have been ‘seized’ within the meaning of the Fourth Amendment.
Id. (internal citations omitted). We will consider how the petitioner‘s encounter with Officer Lewis proceeded from consensual encounter to custodial arrest, in light of settled Fourth Amendment precedent. See id.
IV. Consensual Encounter or Investigatory Stop
We agree with the intermediate appellate court that Officer Lewis‘s initial questioning of the petitioner was not an investigative stop, but rather a “consensual encounter” or accosting. As Swift, 393 Md. at 151, 899 A.2d at 874, instructs us, a consensual encounter does not implicate the Fourth Amendment because the individual with whom the police are interacting is free to leave at any time. The Court of Special Appeals analyzed the petitioner‘s encounter with Officer Lewis as follows:
When the police officers asked [the petitioner] if he lived at the house in whose shadows he was standing, [the petitioner] could not have reasonably believed that the police were doing anything more than making a routine inquiry. The officers’ inquiry was a request for basic information, not an order. Officer Lewis “yelled” the question because of the distance between the officers and [the petitioner], and the officers began to walk toward [the petitioner] only after he did not respond to their questions, presumably to find out why he had not.... In sum, [the petitioner] was not seized by the officers but merely was accosted at the point at which the officers began to approach him.
Thus, this Court need not consider whether Officer Lewis had reasonable articulable suspicion of criminal activity when he decided to approach the petitioner after the petitioner twice failed to respond to his question. There was no investigative stop of the petitioner under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
“An encounter has been described as a fluid situation, and one which begins as a consensual encounter may lose its consensual nature and become an investigatory detention or arrest once a person‘s liberty has been restrained and the person would not be free to leave.” Swift, 393 Md. at 152, 899 A.2d at 874-75. Officer Lewis‘s testimony indicates that his encounter with the petitioner proceeded quickly from an accosting, in which he shouted questions to the petitioner from the street, to a physical detention, when he grabbed the petitioner‘s hands.
As the Supreme Court observed in Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16, “[w]hen the officer, by means of physical force or a show of authority, has in some way restrained the liberty of a citizen [we may] conclude that a ‘seizure’ has occurred.” In determining whether a person has been seized, “the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.‘”
Swift, 393 Md. at 152-53, 899 A.2d at 875 (quoting Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988))). The inquiry is fact-specific and based on the perception of a reasonable person under the totality of the circumstances. E.g., Bostick, 501 U.S. at 439, 111 S.Ct. at 2389, 115 L.Ed.2d at 401-02 (“We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all circumstances surrounding the encounter....“). This Court identified factors that are probative of whether a reasonable person would feel free to leave in Ferris v. State, 355 Md. 356, 377, 735 A.2d 491, 502 (1999), including
the time and place of the encounter, the number of officers present and whether they were uniformed, whether the police removed the person to a different location or isolated
him or her from others, whether the person was informed that he or she was free to leave, whether the police indicated that the person was suspected of a crime, whether the police retained the person‘s documents, and whether the police exhibited threatening behavior or physical contact that would suggest to a reasonable person that he or she was not free to leave.
In the present case, it is clear that, once Officer Lewis grabbed the petitioner‘s hands and placed them over his head, a reasonable person in the petitioner‘s position would have understood that he was physically detained and thus not free to leave or go about his business. Thus, when Officer Lewis grabbed the petitioner‘s hands, he seized the petitioner for purposes of the Fourth Amendment.
Because the officer seized and searched the petitioner without a warrant, the seizure was presumptively invalid unless it was supported by a reasonable, articulable suspicion of a threat to officer safety or by an exception to the warrant requirement. Belote v. State, 411 Md. 104, 112, 981 A.2d 1247, 1252 (2009); Wilson v. State, 409 Md. 415, 439, 975 A.2d 877, 892 (2009). “It is well established that the State has the burden of proving the legality of a warrantless search and seizure.” Paulino v. State, 399 Md. 341, 348, 924 A.2d 308, 312 (2007) (citing Sifrit v. State, 383 Md. 77, 114, 857 A.2d 65, 86 (2004); State v. Bell, 334 Md. 178, 191, 638 A.2d 107, 114 (1994); Stackhouse v. State, 298 Md. 203, 217, 468 A.2d 333, 341 (1983)). We must consider whether this seizure of the petitioner was a temporary detention and protective frisk pursuant to Terry, as the Circuit Court found, or a lawful arrest of the petitioner, as the Court of Special Appeals held.
VI. Terry Frisk
We disagree with the Circuit Court‘s conclusion that the search and seizure of the petitioner was an investigatory stop and protective frisk pursuant to Terry.5 The pur-
Even if we were to assume that the encounter with the Officer Lewis was a Terry stop, “[t]he reasonableness of a Terry stop is determined by considering ‘[w]hether the officer‘s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.‘” Longshore, 399 Md. at 506, 924 A.2d at 1140 (quoting Terry, 392 U.S. at 20, 88 S.Ct. at 1879, 20 L.Ed.2d at 905). Further, assuming arguendo that Officer Lewis had reasonable, articulable suspicion to believe that criminal activity was afoot and, accordingly, detain the petitioner, he still lacked the basis for a protective Terry frisk. At the suppression hearing, Officer Lewis indicated that he searched the petitioner to “[c]heck for weapons,” but did not provide any basis for his suspicion that the petitioner was armed and dangerous. Officer Lewis did not testify as to any factors that would lead to a suspicion that the petitioner was carrying a weapon. Further, there are no objective factors in the record that indicate that the petitioner was armed and dangerous. Although the encounter took place at nighttime, the petitioner was alone and the officer “could visibly see his hands,” which, presumably because the officer did not indicate otherwise, were empty. There is no indication in the record that the petitioner made any threatening movements, or any movements at all, nor is there any indication that Officer Lewis suspected that the petitioner was dealing drugs. Thus, we concur with the Court of Special Appeals, and hold that Officer Lewis had no basis to conduct a protective frisk.6
Even if Officer Lewis had reasonably believed that the petitioner was armed and dangerous, therefore providing the basis for a proper Terry frisk, the search in the present case exceeded the scope of a proper protective frisk. A proper Terry frisk is limited to a pat-down of the outer clothing “not to discover evidence of a crime, but rather to protect the police officer and bystanders from harm” by checking for weapons. In re David S., 367 Md. 523, 544, 789 A.2d 607, 619 (2002).
Id. (quoting Minnesota v. Dickerson, 508 U.S. 366, 373, 375, 113 S.Ct. 2130, 2136-37, 124 L.Ed.2d 334 (1993)) (internal citations omitted) (emphasis added). Generally, “a pat down is a proper, minimally intrusive means of determining whether a suspect is armed.” State v. Smith, 345 Md. at 465-66, 693 A.2d at 751.
...
The officer may not exceed the limited scope of a patdown for weapons to search for contraband. “General exploratory searches are not permitted [pursuant to Terry], and police officers must distinguish between the need to protect themselves and the desire to uncover incriminating evidence.” In re David S., 367 Md. at 545, 789 A.2d at 619 (quoting State v. Smith, 345 Md. at 465, 693 A.2d at 751) (holding that the officer exceeded the permissible scope of a Terry frisk when he opened a bag found in the individual‘s waistband after realizing the bag did not contain a weapon). If the pat-down uncovered an object that is not a weapon and “the incriminating character of the object was not immediately apparent ... [but] [r]ather, the officer determined that the item was contraband only after conducting a further search,” then the further search exceeded the permissible scope of Terry. Smith, 345 Md. at 470, 693 A.2d at 754 (quoting Dickerson, 508 U.S. at 379, 113 S.Ct. at 2139, 124 L.Ed.2d at 347-48 (citation omitted)).
...
In the present case, Officer Lewis testified that he patted down the petitioner‘s right front pocket and that he did not
VII. Arrest
We must consider, alternatively, whether Officer Lewis‘s seizure of the petitioner in the present case constituted a de facto arrest, as the Court of Special Appeals determined.7 This Court analyzed what constitutes an arrest in Bouldin v. State, 276 Md. 511, 515-16, 350 A.2d 130, 133 (1976).
It is generally recognized that an arrest is the taking, seizing, or detaining of the person of another ... by touching or putting hands on him.... It is said that four elements must ordinarily coalesce to constitute a legal arrest: (1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested.
...
[W]here a police officer‘s objective conduct unambiguously reflects an intent to make a custodial arrest, the subjective intent inquiry ... takes on less significance. In other words, when an arresting officer‘s objective conduct, which provides significant insight into the officer‘s subjective intent, is unambiguous, courts need not allocate significant weight to an officer‘s subjective intent that is revealed partially in the form of his testimony at the suppression hearing; the officer‘s objective conduct, in effect, will have made his subjective intent clear.
A show of force is objective conduct demonstrating the officer‘s intent to make an arrest. “[G]enerally, a display of force by a police officer, such as putting a person in handcuffs, is considered an arrest.” Longshore, 399 Md. at 502, 924 A.2d at 1138. In California v. Hodari D., 499 U.S. at 626, 111 S.Ct. at 1550, 113 L.Ed.2d. at 697, the Supreme Court of the United States held that “[a]n arrest requires physical force” by “laying on of hands or application of physical force to restrain movement.” Although the display of force often involves placing the individual who is seized in handcuffs, application of handcuffs is not a necessary element of an arrest. See Grier v. State, 351 Md. 241, 252, 718 A.2d 211, 217 (1998) (“Once Petitioner was on the ground and in custody and control of the officers, he was certainly under arrest. Although [the officer] may have had the right to simply detain and question Petitioner before placing him in custody, he did not do so.” (citations omitted)); Morton v. State, 284 Md. 526, 530, 397 A.2d 1385, 1388 (1979) (holding, where an officer removed the individual from a recreation center and placed him under guard in a patrol car, that “an arrest is the taking ... by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest.... [The officer‘s] manual seizure of the appellant and the subsequent restraint of his liberty plainly constituted an arrest.“); Dixon v. State, 133 Md.App. 654, 673, 758 A.2d 1063, 1073 (2000) (officers exceeded the permissible
As the Court of Special Appeals stated in Dixon, 133 Md.App. at 670, 672, 758 A.2d at 1071-72, before the Supreme Court‘s landmark decision in Terry, “the Fourth Amendment‘s guarantee against unreasonable seizures of persons was analyzed in terms of arrest, [and] probable cause for arrest.’ ... Terry constituted a limited departure from the requirement of probable cause to support a seizure.” Id. (quoting Dunaway v. New York, 442 U.S. 200, 207-08, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979)).9 If a seizure and subse-
In this case, Officer Lewis‘s conduct constituted an unambiguous show of force. He approached the petitioner while in uniform, physically restrained the petitioner, conducted a search of the petitioner‘s person, and ultimately took the petitioner into physical police custody. Belote, 411 Md. at 117, 981 A.2d at 1254, instructs us that, although Officer Lewis testified at the suppression hearing that he was checking the petitioner for weapons, this statement is given less weight than his objective conduct on the night in question.10 Officer Lewis‘s conduct demonstrates that he intended to take the petitioner into physical custody, he acted with actual authority and physically seized the petitioner, and the petitioner had a clear understanding that he was not free to leave.
Although Officer Lewis describes his encounter with the petitioner as a “pat-down” to “check ... around the waistband where you‘re able to conceal ... weapons,” the totality of the circumstances show that the encounter constituted a de facto arrest, albeit described as a Terry stop. Officer Lewis‘s
Grabbing the petitioner‘s wrists when he was not suspected of being armed and dangerous, then conducting a search and removing the vial from his pocket, and, finally, taking him into custody as the initial action leading up to a criminal prosecution, constituted a de facto arrest. Thus, we hold that Officer Lewis‘s seizure, in which he physically restrained the petitioner and ultimately took him into custody, constituted an arrest.
VIII. Probable Cause Supporting a Warrantless Arrest
We must now consider whether Officer Lewis‘s arrest of the petitioner was lawful. “A warrantless arrest of an individual in a public place for a felony, or a misdemeanor committed in the officer‘s presence, is consistent with the
Probable cause, we have frequently stated, is a nontechnical conception of a reasonable ground of a belief of guilt. A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than
State v. Wallace, 372 Md. 137, 148, 812 A.2d 291, 297-98 (2002) (quoting Collins v. State, 322 Md. 675, 680, 589 A.2d 479, 481 (1991)) (internal citations omitted); Illinois v. Gates, 462 U.S. 213, 230-32, 103 S.Ct. 2317, 2328-29, 76 L.Ed.2d 527, 543-45 (1983). In the case of a search incident to arrest, the State must show that probable cause supported a lawful arrest before the officer conducted the search. Bouldin, 276 Md. at 515, 350 A.2d at 132; see also Davids v. State, 208 Md. 377, 385, 118 A.2d 636, 639 (1955) (evidence seized following the arrest cannot be taken into consideration in determining whether the officer had probable cause to make the arrest). We shall consider only what the officer articulated as the basis for the seizure: the smell of ether emanated from the petitioner‘s person, the petitioner was standing next to a house in a high drug crime area, and the petitioner did not respond to Officer Lewis‘s questions.11 We hold that, based on what Officer Lewis knew at the moment that he seized the petitioner, he did not have probable cause to believe that the petitioner had committed or was committing a crime.
The petitioner argues that, considering the totality of the circumstances, the facts do not constitute probable cause to show that he was committing a crime on the night in question. Although the intermediate appellate court held that “knowl-
The State argues that several courts in other jurisdictions have found that the smell of ether alone is sufficient to establish probable cause. The State maintains that, even if this were not the case, the other factors present, such as standing in the shadows in a known drug area and characteristics consistent with PCP intoxication, provide an additional basis for establishing probable cause.
It is well-established that odor is a valid consideration in the probable cause analysis. United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 747, 13 L.Ed.2d 684, 690 (1965) (observation of 60lb bags of sugar, empty tin cans, and odor of mash whisky provided sufficient probable cause for a search warrant); Ford, 37 Md.App. at 379, 377 A.2d at 580 (“[K]nowledge 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.“) Maryland courts have previously held that the odor of contraband alone is sufficient to establish probable cause for a belief
The Supreme Court of Kansas recently addressed the issue of whether the odor of ether constitutes probable cause for a warrantless search of a vehicle in State v. Ibarra, 282 Kan. 530, 147 P.3d 842 (2006). During a routine traffic stop, the officer smelled a strong odor of ether emanating from the vehicle. Ibarra, 147 P.3d at 844-45. Based on the odor of ether, the officer searched the vehicle. Ibarra, 147 P.3d at 845. The search uncovered a black bag containing a glass container of white powder. Id. Field tests confirmed that the powder was methamphetamine. Id. In considering whether the officer had probable cause to search Ibarra‘s vehicle based on the smell of ether, the Supreme Court of Kansas noted that the odor of contraband, including marijuana and alcohol, can constitute probable cause to support a warrantless search. Ibarra, 147 P.3d at 847-48 (citing State v. MacDonald, 253 Kan. 320, 324, 856 P.2d 116, 120 (1993) (odor of marijuana constitutes probable cause to support a warrantless search); State v. Bickerstaff, 26 Kan.App.2d 423, 424, 988 P.2d 285, 286 (1999) (odor of alcohol, breath test, and denial of drinking constitute probable cause for warrantless search of a vehicle)). After determining that the exigent circumstances exception to the warrant clause did not apply, Ibarra, 147 P.3d at 849, the Court distinguished the odor of ether from the odor of marijuana or other contraband.
[T]he odor of marijuana, an illegal substance, can provide probable cause standing alone.... It is not surprising then that the odor of marijuana combined with an anonymous tip can furnish probable cause. In the present case, the ether smelled by the officers is not an illegal substance and we
decline to conclude that the odor of ether alone could establish probable cause for the search of Ibarra‘s vehicle. Where the odor alone does not furnish probable cause, this court should not use it to bootstrap insubstantial information in to establish probable cause.
Ibarra, 147 P.3d at 856. The odor of ether is distinguishable from the odor of contraband like marijuana because “[t]he strong odor of ether ... is as consistent with lawful activity as it is with criminal activity.” Ibarra, 147 P.3d at 850. Thus, “the smell of ether alone is justification for further investigation but not for a search.” Id.
We disagree with the State‘s interpretation of the cases it cites in support of the proposition that the odor of ether alone is sufficient to establish probable cause. The State cites United States v. Clayton, 210 F.3d 841, 842 (8th Cir.2000), in which police, acting on an anonymous tip about a methamphetamine laboratory and illegal guns, went to Clayton‘s home to execute an arrest warrant on an unrelated matter. Upon arriving at the home, the officers smelled odors related to the manufacture of methamphetamine and saw jars of liquid that the officers believed to be methamphetamine. Clayton, 210 F.3d at 842-43. Although the officers had no search warrant, Clayton consented to the search. Clayton, 210 F.3d at 843. The Court of Appeals for the Eighth Circuit upheld the validity of the search, holding that the officers validly entered Clayton‘s home to execute an unrelated arrest warrant, and that the odor and other items were in “plain view” upon entry. Clayton, 210 F.3d at 844-45. In that case, the police relied not only on the odor of chemicals associated with methamphetamine manufacture in seeking a search warrant, but also the corroborating tip about methamphetamine manufacture and the presence of liquids that appeared to be methamphetamine.
Similarly, in State v. Kennedy, 953 So.2d 655, 656 (Fla.Dist.Ct.App.2007), police received information that Kennedy was involved in a feud over stolen anhydrous ammonia to be used in the manufacture of methamphetamine. Acting on this information, police went to Kennedy‘s home to investigate the possibility of methamphetamine manufacture. Id. From out-
The State also relies on Minnick v. United States, 607 A.2d 519 (D.C.1992). In Minnick, police officers stopped Minnick‘s car for a traffic violation in an area known for PCP trafficking. Minnick, 607 A.2d at 521. During the stop, the officers “smelled a strong odor of PCP emanating from inside the car.” Id. A search of Minnick‘s purse uncovered two vials of PCP. Id. The District of Columbia Court of Appeals held that “the search ... was justified by the strong, distinctive odor of PCP which both detectives smelled as they approached Minnick‘s car,” and accordingly held that the search did not violate the
As this Court recently noted in Crosby, 408 Md. at 512, 970 A.2d at 907, “it is ‘impossible for wholly innocent factors to combine into a suspicious conglomeration unless there are concrete reasons for such an interpretation.‘” Id. (quoting United States v. Wood, 106 F.3d 942, 948 (10th Cir.1997) (internal citations omitted)). The odor of ether is an innocent factor without context, but the totality of the circumstances may lead to a conclusion that the lawful substance is associated with a criminal purpose. See Crosby, 408 Md. at 508, 970 A.2d at 904 (“[C]ontext matters: actions that may appear innocuous at a certain time or in a certain place might very well serve as a harbinger of criminal activity under different circumstances.” (quoting United States v. Branch, 537 F.3d 328, 336 (4th Cir.2008))). In the cases in which courts held that the odor of ether or another lawful substance constituted probable cause for a belief that contraband or criminal activity were present, the surrounding circumstances strongly suggested that the odor was associated with criminal activity.
In the cases discussed infra, courts have held that the odor of ether or other non-contraband substances constituted probable cause when the suspicion of criminal activity was corroborated by other circumstantial evidence of criminal activity, such as a tip providing specific information about drug manufacture, or specific knowledge that an area is known for the distribution of the contraband associated with the odor. See Clayton, 210 F.3d at 844-45 (odor of ether, tip about methamphetamine manufacture); Minnick, 607 A.2d at 524-25 (odor of PCP, area known for PCP distribution); Kennedy, 953 So.2d at 656-57 (odor of ether and ammonia, tip about methamphetamine manufacture). Other courts have relied on similar factors in determining that the odor of ether, combined with other factors, constituted probable cause. See Fouse v. State, 73 Ark.App. 134, 143, 43 S.W.3d 158, 166 (2001) (odor of ether, informant information, counter-surveillance measures
In the present case, the totality of the circumstances do not provide a concrete reason to associate the odor of ether with criminal activity or contraband. In reaching its decision that Officer Lewis had reasonable articulable suspicion to approach the petitioner, a lesser standard than probable cause, the Circuit Court relied on the odor of ether, the fact that the petitioner was in a high drug crime area and standing “well in the shadows,” and the petitioner‘s failure to respond to Officer Lewis‘s questions. The Circuit Court did not rely on the petitioner‘s glossy eyes, nor did the court make a factual finding as to whether Officer Lewis observed the petitioner‘s eyes before he seized the petitioner. Moreover, Officer Lewis‘s testimony did not indicate whether he observed the petitioner‘s glossy eyes before or after initially seizing the petitioner. Further, Officer Lewis did not elaborate on the definition of “glossy” or how glossiness would tend to show intoxication. Thus, we shall not consider the petitioner‘s allegedly glossy eyes in our probable cause analysis.
The Circuit Court gave “great weight” to the fact that the petitioner was standing in a high drug crime area, where the police had received “a number of complaints from citizens.” Certainly, the fact that activity is taking place in a high drug
If the police can stop and frisk any man found on the street at night in a high-crime area merely because he has a bulge in his pocket, stops to look at an unmarked car containing three ununiformed men, and then, when those men alight suddenly from the car and approach the citizen, acts nervously, there would, indeed, be little Fourth Amendment protection left for those men who live in or have occasion to visit high-crime areas.
Id. (holding that there was no reasonable basis for a frisk because “petitioner had done nothing to attract police atten-
We are equally hesitant to determine that the petitioner‘s failure to answer Officer Lewis‘s questions has any significance, in a probable cause determination, in the absence of further facts suggesting a suspicious or criminal element to his silence. Officer Lewis testified that he interpreted the defendant‘s silence as evidence of intoxication:
...
Q [State‘s Attorney]: ... What are some of the general characteristics of an individual under the influence of phencyclidine?
A [Officer Lewis]: Normally, they possess various strengths, sometimes they could be incoherent in reference to trying to understand if someone is saying something to them....
...
Q: Other than the defendant having glassy eyes, are there any other characteristics that the defendant had on the night that you came into contact with him that would be reminiscent of someone under the influence of phencyclidine?
A: No response once I was asking him questions.... When I asked the defendant a question, I got no response from him.
(Emphasis added.) Although Officer Lewis does not say so directly, the inference appears to be that when the petitioner did not answer the question twice posed to him, his failure to respond was due to incoherence or an inability to comprehend the question due to intoxication. The Circuit Court did not make a factual finding about whether the court interpreted the petitioner‘s silence as evidence of intoxication. Rather, the court noted that the petitioner‘s failure to respond “[gave] Officer Lewis reason to approach the defendant and the right to determine the individual‘s name and address.”
Although the State is entitled to the benefit of any reasonable inferences from the evidence adduced at the suppression hearing, in our view, it is not reasonable to infer that the
...
“[A] search conducted without a warrant supported by probable cause is per se unreasonable under the Fourth Amendment, subject to only a few exceptions.”
Belote, 411 Md. at 112, 981 A.2d at 1252 (quoting Cherry v. State, 86 Md.App. 234, 240, 586 A.2d 70, 73 (1991)). A search incident to a lawful arrest is a well-established exception to the warrant requirement. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427, 434 (1973); Chimel v. California, 395 U.S. 752, 759, 89 S.Ct. 2034, 2038, 23 L.Ed.2d 685, 692 (1969). “It is axiomatic that when the State seeks to justify a warrantless search incident to arrest, it must show that the arrest was lawfully made prior to the search.” Bouldin, 276 Md. at 515, 350 A.2d at 132-33 (citing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964)). Thus, because Officer Lewis did not make a lawful arrest when he seized the petitioner, the subsequent warrantless search of the petitioner was not within an exception to the warrant requirement and therefore violated the
JUDGMENT OF THE COURT OF SPECIAL APPEALS IS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE‘S COUNTY. PRINCE GEORGE‘S COUNTY TO PAY THE COSTS.
HARRELL, J., files a dissenting opinion in which BARBERA, J., joins.
Dissenting Opinion by HARRELL, Judge, which BARBERA, J., Joins.
I doubt that anyone who sat on this case, whether on this Court or any court through which it passed, could identify the smell of ether before now, if at all.12 To his credit and
Confronting that recognizable odor and drug association emanating from Bailey as he stood, glassy-eyed6 and unre-
The Majority opinion attempts to bolster its unrealistic analysis by characterizing Bailey‘s condition and circumstances as merely a series of innocuous coincidences, all benign in and of themselves (when considered separately or in isolation), amounting to no reason(s) for Officer Lewis to think something illicit was afoot. Although paying lip service to a totality of the circumstances analysis, the Majority opinion actually employs a divide-and-conquer consideration of some, but not all, of the factors available to Officer Lewis on the night in question. That is an incorrect analytical approach. See United States v. Arvizu, 534 U.S. 266, 274, 122 S.Ct. 744, 751, 151 L.Ed.2d 740, 750 (2002) (citing Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). In a similar vein, the Majority opinion attempts, by mis-characterizing the State‘s case here as solely premised on the odor of ether, to distinguish the many cases where the smell of ether, coupled with other indicia of suspicious activity or circumstances, was found to supply probable cause. The record
- prior citizen complaints about the particular area experiencing high illegal drug activity;
- Bailey was standing in the shadows of the side of the townhouse at 11:35 p.m.;
- he did not respond at all to Officer Lewis’ questions whether Bailey lived in the townhouse;
- his eyes were glassy; and
- he reeked of ether.
These factors, coupled with Lewis’ training that enabled him to discern the singular smell of ether and his knowledge regarding a relationship between ether and PCP, were ample cause to arrest Bailey and search his person. To conclude otherwise is to overlook the relevant principle that courts should respect an officer‘s ability to draw on his or her own experience and training to draw inferences and deductions from the cumulative information available to him or her that “might well elude an untrained person.” Arvizu, 534 U.S. at 273, 122 S.Ct. at 750-51, 151 L.Ed.2d at 749-50 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621, 629 (1981)).
I have no problem affirming the judgments of the Court of Special Appeals and the Circuit Court for Prince George‘s County.
Judge BARBERA has authorized me to state that she joins in this dissenting opinion.
Notes
Q. Now, officer, you said that you smelled a strong odor of ether; is that correct?
A. Yes, ma‘am.
Q. Have you ever come in contact, during your five and a half years with the Prince George‘s County Police Department, with phencyclidine?
A. Yes, ma‘am.
Q. Does phencyclidine have an odor?
A. An odor of ether.
Q. How many times have you come in contact with phencyclidine?
A. Hundreds.
Q. How many arrests have you made where phencyclidine was present?
A. Hundreds.
Q. Have you had any training during your five and a half years with respect to the odor and appearance of phencyclidine?
A. I have, ma‘am.
Q. Can you detail that for Your Honor?
A. I received training in basic schools, the academy, and also follow-up classes, investigative classes, which were drug related after graduating from the academy.
Q. And the odor of ether that you smelled, you indicated that was about the defendant‘s person, correct?
A. Yes, correct.
Q. Approximately, how far away from the defendant were you when you smelled this odor of ether?
A. Maybe just a few f[ee]t. I was able to reach out and touch him.
Q. Have you, during the course [of] your employment, come into contact with individuals under the influence of phencyclidine?
A. Yes, I have.
Q. Approximately, how many times?
A. Hundreds.
Q. During those hundreds of times that you‘ve come into contact with those individuals, are they characteristics that are similar to those individuals who are under the influence of phencyclidine?
A. Yes. It varies from person to person.
Q. Okay. What are some of the general characteristics of a an individual under the influence of phencyclidine?
A. Normally, they possess various strengths, sometimes they could be incoherent in reference to trying to understand if someone is saying something to them, and very glossy eyes, which the defendant had at the time.
(Emphasis added.) The next question posed by the prosecutor was as follows:
Q. Other than the defendant having glassy eyes, are there any other characteristics that the defendant had on the night that you came into contact with him that would be reminiscent of someone under the influence of phencyclidine?
A. No response once I was asking him questions....
THE COURT: I‘m sorry. No response to what?
THE WITNESS: When I asked the defendant a question, I got no response from him.
BY MS. STEUART:
Q. Other than asking the defendant whether he lived where he was standing, do you recall asking him anything else?
A. No, ma‘am.
(Emphasis added.)
It is clear to me that the prosecutor heard Officer Lewis say “glassy,” not “glossy,” initially and his follow up question was framed accordingly. As to when in the confrontation Lewis noticed Bailey‘s glassy eyes, the State‘s evidence (because it was the prevailing party below) is entitled to a reasonable inference that Lewis noted the quality of Bailey‘s eyes contemporaneously with detecting the odor of ether and Bailey‘s unresponsiveness to questioning. The inference derives from the proximity of the two of them at the time Lewis smelled the ether and the common sense notion that Lewis likely looked at Bailey‘s face at the same time.
Id. (quoting Terry, 392 U.S. at 25-26, 88 S.Ct. at 1882, 20 L.Ed.2d 889 (footnote omitted)). “The distinction between a Terry stop and an arrest is not defined simply by the length of the detention, the investigative activities during the detention, and whether the suspect was removed to a detention or interrogation area.” Longshore, 399 Md. at 515-16, 924 A.2d at 1146. In addition to the relevant factors identified in Longshore, an arrest is distinguishable from a Terry detention because the Terry stop is not only limited in duration, but also has a limited permissible scope. The scope of a Terry stop is limited to brief investigatory stops or detentions “conducted in furtherance of the goal of protecting the safety of the officer[,]” or the safety of bystanders. Longshore, 399 Md. at 508, 924 A.2d at 1141.An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society‘s interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual‘s freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes a brief, though far from inconsiderable, intrusion upon the sanctity of the person.