JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Appellant: John K. Phoebus (Anthenelli, Phoebus & Hickman,
LLC on the brief) Salisbury, MD.
Appellee: Todd W. Hesel (Brian E. Frosh, Attorney General on
the brief) Baltimore, MD.
Graeff, Friedman, Thieme, Raymond G., Jr. (Retired, Specially
Md.App. 461] Graeff, J.
February 20, 2015, Joshua Paul Bowling, appellant, was
charged by criminal information in the Circuit Court for
Wicomico County with possession of marijuana with the intent
to distribute, as well as other drug related offenses and
several traffic offenses. Appellant subsequently filed a
motion to suppress, which the circuit court denied. On June
17, 2015, appellant entered a conditional plea of guilty on
the charge of possession of marijuana with the intent to
distribute, and the State entered a nolle prosequi on each of
the remaining counts.
Md.App. 462] On appeal, appellant raises the following issue
for this Court's review:
Did the positive alert of a drug dog that is certified to
detect marijuana, along with other controlled dangerous
substances, furnish probable cause to search appellant's
motor vehicle, given the decriminalization of small amounts
of marijuana and the drug dog's inability to distinguish
between the odor of less than 10 grams of marijuana and 10 or
more grams of marijuana?
reasons set forth below, we answer that question in the
affirmative, and accordingly, we shall affirm the judgment of
the circuit court.
AND PROCEDURAL BACKGROUND
January 2, 2015, at approximately noon, Officer Brian Barr, a
member of the Salisbury Police Department, was patrolling in
his vehicle in Salisbury, Maryland. Officer Barr saw
appellant driving, and due to prior dealings with appellant,
including a stop for driving under the influence ("
DUI" ), to which appellant had pleaded guilty, Officer
Barr believed that appellant's driver's license was
Barr decided to follow appellant's vehicle, and he
observed appellant fail to signal during two turns. After
appellant made the second illegal turn, Officer Barr
activated his lights and initiated a traffic stop.
Officer Barr approached appellant's vehicle, he noticed
that appellant's hands were shaking, appellant was
avoiding eye contact, and he " appeared very
nervous." Appellant [227 Md.App. 463] provided Officer
Barr with a " Maryland ID card" and the
vehicle's registration, and Officer Barr returned to his
vehicle to continue the traffic stop.
point, given appellant's suspicious behavior, and Officer
Barr's knowledge that appellant had an " extensive
history with controlled dangerous substances," Officer
Barr called for a K-9 unit. As Officer Barr was getting into
his vehicle, appellant got out of his vehicle. For safety
reasons, Officer Barr told appellant to get back into his
vehicle. He explained: " It's very dangerous for an
officer to have his or her head down doing any paperwork that
is needed to be done to continue a traffic stop while a
subject that has been stopped is out of the car wandering
around." Officer Barr's concern was increased in
this case because he knew that appellant had a prior "
responded that he could not get back in his car because he
had locked the keys inside and could not open the door. At
that point, for safety reasons, Officer Barr called for an
additional officer to stand by appellant while Officer Barr
completed the traffic stop. Officer Barr waited with
appellant until backup arrived.
12:20 p.m., Deputy J.C. Richardson, a member of the Wicomico
County Sheriff's Office, arrived on the scene with his
drug dog, Diablo. Deputy Richardson testified that Diablo was
certified and licensed to detect the odors of marijuana,
cocaine, heroin, methamphetamines, and MDMA (ecstasy).
Diablo's behavioral signals that alert that he has
detected the presence of CDS were the same for all five
drugs. The dog's sense of smell was sensitive enough to
pick up minute amounts [227 Md.App. 464] of a substance, and
Diablo could not communicate the amount of a substance
Richardson had Diablo sniff the exterior of appellant's
vehicle. Diablo alerted when passing the rear driver's
the K-9 alert, another officer arrived to watch appellant,
and Officer Barr continued with the traffic stop. He
confirmed that appellant's driver's license was, in
fact, suspended. He arrested appellant for driving with a
appellant's vehicle was locked with the keys inside,
Officer Barr intended to tow the vehicle to the police
station, where he would conduct an inventory search. When the
tow truck arrived, however, the tow truck driver stated that
it was company policy to open a vehicle and retrieve the keys
if they could observe them inside.
the tow truck driver opened appellant's vehicle, Officer
Barr decided to search the vehicle at the scene, as opposed
to the police station. The search revealed 198.2 grams of
marijuana, a " smoking device," a scale, a large
sum of cash, and a single OxyContin tablet (5 milligrams)
inside a cigarette carton.
to the date of trial, appellant filed a motion to suppress
the evidence found in his car, raising two grounds. First, he
argued that the initial traffic stop was unlawful. This
argument was rejected and is not challenged on appeal.
appellant argued, as he does on appeal, that Officer Barr
lacked the legal authority to conduct a warrantless search of
his vehicle, relying on the law passed by the Maryland
General Assembly in 2014, which decriminalized possession of
less than 10 grams of marijuana. Appellant asserted that,
because Diablo could not distinguish between the quantity of
marijuana that constituted a criminal offense and the
quantity that constituted a civil offense, the dog's
alert did not provide probable cause to believe a crime had
occurred, and [227 Md.App. 465] therefore, the warrantless
search of the vehicle violated his Fourth Amendment rights.
State argued that, because Diablo could detect heroin,
cocaine, methamphetamines, or MDMA, there was a fair
probability that Diablo was alerting to the presence of these
other drugs, and therefore, the alert provided Officer Barr
with probable cause to search appellant's vehicle
pursuant to the Carroll doctrine. The State
also argued that marijuana is still considered "
contraband," even though the possession of small amounts
of it results only in a civil infraction, and therefore, an
officer properly could search for it if he or she had
probable cause to believe that it was present in the vehicle.
10, 2015, the circuit court denied appellant's motion.
The court stated:
[T]he dog in this case is trained to alert to the presence of
marijuana, heroin, cocaine, methamphetamines, and MDMA.
Diablo's alert was not limited to the presence of
marijuana, where possession of a specified amount is not a
criminal infraction. Based upon the alert in this case, the
substance found could have been any number of illegal