Court for Baltimore City Criminal No. 114351015
Graeff, Reed, Friedman, JJ.
a bench trial in the Circuit Court for Baltimore City,
Anthony Barrett, appellant, was convicted of the following
crimes: possession of a firearm by a prohibited person;
wearing, carrying, or transporting a handgun on the person;
and wearing, carrying, or transporting a handgun in a
vehicle. The court sentenced appellant on the conviction for
possession of a firearm to five years of imprisonment, all
suspended but time served, and three years of imprisonment
for each of the two convictions for wearing, carrying, or
transporting a handgun.
appeal, appellant presents two questions for this Court's
review, which we have reordered and rephrased slightly, as
the circuit court err in denying appellant's motion to
suppress the evidence obtained as a result of the search of
the circuit court err in imposing separate sentences for each
of the two convictions of wearing, carrying, or transporting
reasons set forth below, we shall vacate the sentence for
wearing, carrying, or transporting a handgun in a vehicle and
otherwise affirm the judgments of the circuit court.
AND PROCEDURAL BACKGROUND
November 24, 2014, Detectives Brian Salmon and Jason
Leventhall, members of the Baltimore City Police Department,
were on patrol in a marked SUV. Detective Salmon had
encountered the odor of burnt marijuana hundreds of times,
and he was accepted at the suppression hearing as an expert
in the "sale, packaging and recognition" of
Salmon saw a Honda Accord with an approximately foot-long
crack in the front windshield. He had stopped the same
vehicle the previous month for the same violation (cracked
windshield), and he gave the driver of the vehicle at that
time, appellant, a verbal warning and told him to get the
windshield fixed. When the officers passed the vehicle on
November 24, they "immediately smelled the strong odor
detectives initiated a traffic stop of the vehicle, which was
occupied by three people. As the detectives exited their
vehicle and approached the driver's side of the stopped
vehicle, Detective Salmon detected a "strong odor"
of "burnt marijuana" emanating from the vehicle.
Detective Leventhall approached the passenger side of the
vehicle and asked appellant, who was sitting in the front
passenger seat, if there was any marijuana in the car.
Appellant "freely stated that they were smoking
marijuana, " and he handed Detective Leventhall "a
brown hand-rolled cigar containing green plant
officers asked the driver and appellant to exit the vehicle.
When Detective Salmon walked over to appellant, he could
smell "the strong odor of marijuana coming from
[appellant] and inside the car, " but he was unable to
discern from the odor the quantity of suspected marijuana.
Salmon then searched appellant. He recovered a loaded
9-millimeter handgun from appellant's
pants. At that time, appellant was placed under
arrest. As Sergeant John Landsman transported appellant to
the police station, appellant offered "to make a deal
for getting an AK-47 in exchange for being released." At
the station, appellant gave a recorded statement, in which he
admitted that he "got caught with a handgun."
conclusion of all the evidence, which included evidence that
the gun seized was operable and met the definition of a
firearm under Maryland law, the court heard argument on the
defense motion to suppress. The State argued that, based on
the odor of marijuana and appellant's actions in handing
the officer "a blunt of some sort, " Detective
Salmon had the right to search, to pat-down appellant, who
possibly had additional contraband on his person or in the
vehicle. Defense counsel argued that appellant's
"admittance of [a] civil offense" of possession of
less than ten grams of marijuana "does not give rise to
[ ] probable cause of criminal activity, " and
therefore, "the search should be denied and … the
statement should be suppressed."
court ultimately denied the motion to suppress. It
characterized defense counsel's argument to be that,
because possession of less than ten grams of marijuana was a
civil offense, and the police did not have information that a
greater quantity of marijuana was involved, the police did
not have probable cause to search the car. The court
disagreed with that argument, noting that, pursuant to
Bowling v. State, 227 Md.App. 460, cert.
denied, 448 Md. 724 (2016), the smell of marijuana gave
the detectives probable cause to search the vehicle. The
The issue becomes whether it's reasonable for the officer
to believe that there may be additional marijuana in the car
or on the person in the car. That's the analysis under
[Bowling]. And the [Bowling] Court says
that it is reasonable. So when Officer Salmon decided to pat
down Mr. Barrett to see if he had any additional marijuana on
him, as the [Bowling] Court found with the vehicle,
this Court finds that that was reasonable. When he patted him
down, however, he found - - he felt a sharp object and he
recovered that object from his person. That object turned out
to be a handgun.
The Court finds nothing - - no - - the Court does not find
any violation of the Fourth Amendment under the facts of this
case. The Court finds the testimony of the officers to be
credible. So as to the suppression of the handgun, the Court
denies your motion.
conclusion of the trial, the circuit court convicted
appellant of the weapons charges. This appeal followed.
contends that the circuit court erred in denying his motion
to suppress the handgun recovered from his person and his
subsequent statement. He argues that "[t]he police had
no justification for a warrantless search of [his] person,
" and the court erred in relying on this Court's
decision in Bowling because that case addressed a
warrantless search of a vehicle, whereas this case involved
the search of a person. Appellant further argues that there
was no independent justification for the search, asserting
that it was not a search incident to arrest for two reasons:
(1) "he had not been arrested"; and (2) this was a
"citation offense for which he could not be
arrested" because the officer could not ascertain the
quantity of marijuana involved.
reviewing the grant or denial of a motion to suppress, we
consider the evidence in the light most favorable to the
party who prevails on the motion, and we accept the
suppression court's factual findings unless they are
clearly erroneous. Bowling, 227 Md.App. at 465.
Accord Norman v. State, 452 Md. 373, 386, cert.
denied, S.Ct. (2017). In determining the ultimate legal
conclusion regarding whether a constitutional right has been
violated, however, "we make an independent, de
novo, constitutional appraisal by applying the law to
facts presented in a particular case." Johnson v.
State, 232 Md.App. 241, 256 (quoting Williams v.
State, 372 Md. 386, 401 (2002), cert. granted,
454 Md. 678 (2017).
analysis begins with the Fourth Amendment to the Constitution
of the United States, which protects against
"unreasonable searches and seizures." U.S. CONST.
amend. IV. This constitutional mandate is "applicable to
the states, through the Fourteenth Amendment." Grant
v. State, 449 Md. 1, 16 (2016). Whether a police action
is reasonable "is judged by balancing its intrusion on
the individual's Fourth Amendment interests against its
promotion of legitimate governmental ...