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Bowling v. State

Court of Special Appeals of Maryland

March 31, 2016

JOSHUA PAUL BOWLING
v.
STATE OF MARYLAND

          JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

         For Appellant: John K. Phoebus (Anthenelli, Phoebus & Hickman, LLC on the brief) Salisbury, MD.

         For Appellee: Todd W. Hesel (Brian E. Frosh, Attorney General on the brief) Baltimore, MD.

          Graeff, Friedman, Thieme, Raymond G., Jr. (Retired, Specially Assigned), JJ.

          OPINION

          [227 Md.App. 461] Graeff, J.

         On 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.[1] 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.[2]

          [227 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?

         For the reasons set forth below, we answer that question in the affirmative, and accordingly, we shall affirm the judgment of the circuit court.

         FACTUAL AND PROCEDURAL BACKGROUND

         On 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 suspended.[3]

         Officer 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.

         When 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.[4]

         At that 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 " weapons charge."

         Appellant 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.

         At 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 detected.

         Deputy Richardson had Diablo sniff the exterior of appellant's vehicle. Diablo alerted when passing the rear driver's side door.

         After 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 suspended license.

         Because 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.

         After 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.

         Prior 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.

         Second, 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.

         The 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.[5] 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.

         On June 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 ...

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