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Grant v. State

Court of Appeals of Maryland

July 12, 2016

TERRANCE JAMAL GRANT
v.
STATE OF MARYLAND

          Argued: March 4, 2016

         Circuit Court for Frederick County Case No. 10-K-13-053987

Barbera, C.J. [*] Battaglia, Greene, Adkins, McDonald, Watts, Hotten, JJ.

          OPINION

          HOTTEN, J.

         In this 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         At 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.

         Deputy 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 Eyler[1]arrived 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 scan.

         While 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 marijuana.

         Suppression Hearing

         Petitioner's 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, as follows:

[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 with him.
[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? No-
[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 ...

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