Argued: March 4, 2016
Court for Frederick County Case No. 10-K-13-053987
Barbera, C.J. [*] Battaglia, Greene, Adkins,
McDonald, Watts, Hotten, JJ.
case, we granted certiorari to consider whether the Circuit
Court for Frederick County erred in denying Petitioner,
Terrance Jamal Grant's motion to suppress, where it was
"not clear" whether the officer detected the odor
of marijuana before or after inserting his head into the
passenger side window of the vehicle. We also consider
whether, in affirming the judgment of the circuit court, the
Court of Special Appeals applied the appropriate standard of
review to the circuit court's factual findings and legal
conclusions. For the reasons that follow, we shall reverse.
AND PROCEDURAL BACKGROUND
approximately 6:03 p.m. on May 23, 2013, Deputy First Class
Chad Atkins ("Deputy Atkins") of the Frederick
County Sheriff's Office, was patrolling Worthington
Boulevard in an unmarked police vehicle when he observed a
speeding vehicle being driven by Petitioner. As a result,
Deputy Atkins, a certified radar and laser operator,
activated his radar equipment and determined that the vehicle
was traveling at a speed of 50 miles per hour in a 35 mile
per hour zone. Deputy Atkins subsequently stopped Petitioner
for the traffic violation.
Atkins approached the passenger side of Petitioner's
vehicle, subsequent to Petitioner rolling down the window.
Petitioner was the sole occupant. During the suppression
hearing, Deputy Atkins testified that upon initial contact
with Petitioner, he detected the odor of marijuana emanating
from the vehicle. He further testified that he could not
recall whether his head crossed the window's threshold
while speaking with Petitioner. Deputy Atkins was familiar
with the smell of marijuana, having received over one hundred
hours of police training in controlled dangerous
substances-including the identification of marijuana-and
completing approximately one hundred drug-related arrests.
Deputy Atkins also testified that the weather was windy and
the odor of marijuana "quickly dissipated."
Approximately two to three minutes after Deputy Atkins
initiated the stop, he returned to his vehicle and requested
a nearby K-9 dog unit. Corporal Eylerarrived approximately fifteen
minutes later. Thereafter, Deputy Atkins returned to
Petitioner's vehicle, and requested that he step out.
While Deputy Atkins and Petitioner stood behind
Petitioner's vehicle, Corporal Eyler began the K-9 dog
Corporal Eyler conducted the scan, Deputy Atkins informed
Petitioner that he detected the odor of marijuana emanating
from his vehicle. Petitioner admitted that there was pipe and
a small amount of marijuana in the center console. Shortly
thereafter, Corporal Eyler informed Deputy Atkins of a
positive alert from Petitioner's vehicle. A search of the
vehicle by Deputy Atkins revealed a film canister containing
1.6 grams of marijuana, as well as a smoking device
containing burnt marijuana residue in the center console.
Petitioner was placed under arrest and later released with a
criminal citation. Petitioner subsequently moved to suppress
the evidence seized from his vehicle, asserting that Deputy
Atkins conducted an unconstitutional search when he inserted
his head into the passenger window and detected the odor of
suppression hearing was held before the circuit court on
January 6, 2014. Deputy Atkins testified on behalf of the
State regarding his initial contact with Petitioner. On
cross-examination, defense counsel sought clarification
regarding the moment Deputy Atkins detected the odor of
marijuana. The cross-examination proceeded, in relevant part,
[DEFENSE COUNSEL]: So when you stopped him, you got out of
your car, did you smell marijuana?
[DEPUTY ATKINS]: Yes, on the initial contact.
[DEFENSE COUNSEL]: I said when you got out of your car did
you smell marijuana?
[DEPUTY ATKINS]: You mean before I went up to his car?
[DEFENSE COUNSEL]: Yeah. Before, before you went up to his
car did you smell marijuana?
[DEPUTY ATKINS]: No.
[DEFENSE COUNSEL]: Okay. Did you perform a sniff of his car?
[DEPUTY ATKINS]: Did, what do you mean by sniff?
[DEFENSE COUNSEL]: Like a dog. I'm saying did you
specifically examine his car for, for the smell of marijuana?
[DEPUTY ATKINS]: You mean did I walk around the car and just
sniff at, at his car?
[DEFENSE COUNSEL]: I understand the answer may be no.
[DEPUTY ATKINS]: No.
[DEFENSE COUNSEL]: Okay. Ah, so the point at which you, you
allege you smelled marijuana was when you kind of leaned in
to get his, get his license and registration?
[DEPUTY ATKINS]: If you call it leaning, it's when he
rolled down his window and I made con-when I was speaking
[DEFENSE COUNSEL]: Okay. Do you recall how you, how you
positioned yourself when you were speaking with him?
[DEPUTY ATKINS]: Like I, I, I don't know how to explain
it 'cause I do it on every single stop that I have. I,
you know, put my head, he, they have the, they roll the
window down and I have my head by their window. And-
[DEFENSE COUNSEL]: Okay. Do you recall if your head entered
the window or not?
[DEPUTY ATKINS]: I don't know if my head entered through
the window [pane] or not. I wouldn't of, you know, it, I,
I don't know. Honestly.
[DEFENSE COUNSEL]: Okay. You wouldn't be surprised to
find out that it did.
[DEPUTY ATKINS]: If I had crossed where the window glass was?
[DEFENSE COUNSEL]: Where the, where the pane-
[DEPUTY ATKINS]: -because sometimes-
[DEFENSE COUNSEL]: -would have been-
[STATE'S ATTORNEY]: Objection, Your Honor.
THE COURT: Let, let him answer. One at a time. We have all
morning to finish the (unclear-one word). Go ahead.
[DEFENSE COUNSEL]: Thank you.
[DEPUTY ATKINS]: No, I, the, wouldn't, I wouldn't be