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Lewis v. State

Court of Special Appeals of Maryland

June 28, 2018

RASHERD LEWIS
v.
STATE OF MARYLAND

          Circuit Court for Baltimore City Case No. 417048006

          Graeff, Nazarian, Arthur, JJ.

          OPINION

          GRAEFF, J.

         On July 24, 2017, Rasherd Lewis, appellant, pleaded not guilty, pursuant to an agreed statement of facts, to the charge of wearing, carrying, or transporting a handgun. The Circuit Court for Baltimore City found him guilty and imposed a sentence of three years' imprisonment, all but 90 days suspended, to be followed by three years of supervised probation.

         On appeal, appellant contends that the circuit court erred in denying his motion to suppress the handgun recovered from his person.[1] For the reasons set forth below, we disagree, and therefore, we shall affirm the judgment of the circuit court.

         FACTUAL AND PROCEDURAL BACKGROUND

         On February 1, 2017, Officer David Burch, Jr., an officer with the Baltimore City Police Department, received a tip that a black male, "with a certain clothing description" and a red bag, was in possession of a handgun in the area of Eutaw Street and Saratoga Street in Baltimore City. Officer Burch testified that the tip was "from a source of information," who was not a confidential informant, but rather, someone that Officer Burch had come into contact with who provided him information and "didn't want any monetary . . . gains out of it." Officer Burch testified that he had received information from this source for "a little less than a month," and the information had been reliable.[2]

         After Officer Burch received the tip, he notified City Watch, individuals monitoring cameras in Baltimore City, that "there was a potentially armed individual in the 400 block of W. Saratoga," and he advised the operator of the description provided. City Watch subsequently identified an individual matching the description provided inside Bag Mart, located at 401 W. Saratoga Street. City Watch advised Officer Burch of this location.

         Officer Burch was familiar with Bag Mart because the police received "numerous calls in reference to that store," and a lot of individuals sold drugs there. Moreover, the area surrounding the 400 block of W. Saratoga was known to Officer Burch as an "open air drug market" and "a high crime area." Officer Burch was qualified as an expert in the identification and packaging of marijuana, and he testified that there was "no other odor like the odor of marijuana." He further testified that there was no difference in the odor of marijuana based upon the amount present.

         When City Watch notified Officer Burch of appellant's location at Bag Mart, he and five other officers responded. Officer Burch explained that, when approaching someone who could be armed, the police "go in there, strength in numbers."

         Bag Mart was a small store. When the officers arrived, it was crowded inside. Officer Burch smelled an odor of marijuana when he entered the store. He saw appellant with a red bag, located near the register. Appellant had some money in his hand and was moving towards the exit as if he had just made a purchase. Other customers, located in front of appellant, were in the process of exiting the store when the officers arrived.

         Officer Burch approached appellant. When he was "literally right in front of" appellant, Officer Burch "smelled an odor of marijuana emitting from [appellant's] person." Officer Burch stated that the odor "could have been from his breath when I was speaking with him or on his person." Officer Burch then stopped appellant, based on "the odor of marijuana and the information that [he] received," searched appellant, and found a handgun in the red bag, which he described as a satchel.[3] Officer Burch admitted that he did "place [his] hands on [appellant] to [] detain him, to stop him."

         Officer Burch told appellant to put his hands up and guided appellant's hands up with his own. At that time, Officer Curtis was standing behind appellant.[4] Officer Burch testified that, when he told appellant to put his hands up, appellant subsequently brought his hands down, which was "an indicator" for the police, so "for everyone's safety," they put appellant in handcuffs.

         While Officer Curtis was handcuffing appellant, Officer Burch searched appellant. In addition to finding a firearm in the red bag, Officer Burch recovered a zip lock baggie containing less than 10 grams of marijuana from appellant's jacket, as well as miscellaneous packaging material, believed to be for packaging marijuana.

         In response to appellant's motion to suppress the items seized during the search, the State argued that Officer Burch testified to two grounds to stop and search appellant: (1) the tip that a person matching appellant's description had a handgun; and (2) the odor of marijuana. With respect to the odor of marijuana, the State explained that Officer Burch testified that he smelled it "on [appellant's] breath, on his person," and the odor of marijuana provided Officer Burch "the basis to permit a search."

         Defense counsel first addressed the initial stop, asserting that there was no "reasonable, articulable suspicion for the initial stop and seizure of [appellant's] person." She contended:

[I]t was clear from Officer Burch's testimony that the reason that he went to the store, that his purpose of going to the store was to stop [appellant] based solely on the information that he received from a tip from the source who he described not as an informant, but as some individual he has had contact with, but did not give further information as to exactly the nature of the contact or any benefit that individual might have been receiving.

         Defense counsel argued that an anonymous tip providing a physical description of a person, without more, was insufficient to provide reasonable suspicion of wrongdoing.

         "[S]econd and independent of that," counsel argued, there was "not a [] justification for a search of [appellant's] person and . . . there [was] immediately a full blown search of his person." She argued that there was not a Terry frisk, [5] but rather, there was a "full blown search" and "no lawful arrest that precede[d] this [] stop. So there [was] no lawful exception to the warrant requirement." Counsel argued that a person could not "lawfully be arrested for possession of less than ten grams of marijuana."

         Defense counsel argued that the body-camera video showed that the police immediately grabbed appellant by the shoulder, and he was "already stopped and seized and [Officer Burch] already [began] this search," so the police could not "retroactively justify something based on [] something [the police] detects later," and he "can't search a person based on something that is an odor in the [] room." Counsel concluded by saying that the smell of marijuana does not justify a search of a person, and even if there was reasonable suspicion for the initial detention, the police could not "just immediately . . . begin to rummage [a] person's clothing, the pockets and bag."

         In rendering its decision, the court noted that the tip led the officers to the store:

In this case, the police officer's suspicions that [appellant] was carrying a red handbag with a gun arose not from his own individual observation . . ., but solely from a person whose information the officer had indicated that he had relied upon for the past month. In the case of being no demonstration of the tipster's basis of knowledge, although the officer testified that his information had been reliable in the past.
Um, now there are situations in which a tip, [] suitably corroborated[, ] makes sufficient indicia of reliability to provide a reasonable suspicion to make an investigatory stop. Standing alone, the Court does not find that the tip itself justifies the Terry stop per Alabama v. White, 496 U.S. 325.

         The court continued to discuss the case law, noting that reasonable suspicion "requires that a tip be reliable in its assertion of illegality . . ., not just in a tendency to identify the determined person." (quoting Florida v. J.L., 529 U.S. 266 (2000)).

         After finding that the tip did not justify the stop, the court stated that its "analysis does not end there." The court stated:

The officer in this case testified that not only did he detect the odor of marijuana in the store, but that he detected the odor of marijuana coming from [appellant's] person specifically and the odor of marijuana emanating from [appellant] may be just as indicative of possession of more than ten grams or less than ten grams as indicated in Robinson v. State, 451 Md. 94');">451 Md. 94 [(2017)]. Marijuana in any amount is still a Schedule 1 substance and making less than ten grams decriminalized, it is still subject to seizure and forfeiture. Robinson also further states that it's unreasonable to expect a police officer based on odor to determine the weight of any substance. . . . [F]ollowing the reasoning . . . of Robinson, it would appear that the odor of marijuana emanating from a person provides probable cause to believe that that person contains evidence of a crime, a police officer may search that person under such circumstances.

         Finally, noting that it must consider "the totality of these circumstances" and "the facts known to the police officers at the time of the encounter," the court stated:

The Court does not believe that the tip alone justifies the officer's immediate stop and frisk of [appellant] even though he may have had some indicia [of] reliability with regard to the information that it acted upon. However, the issue of the smell of marijuana, the Court finds allows the fluidity of the concept of probable cause. . . . That is, no bright line or rigid [rules] or mechanical or mathematically certain rules detecting the odor of marijuana is what the officer indicates that he knew prior to the search as immediate as it may have been. It establishes probable cause to search as the police officers have probable cause that [appellant] may have had contraband, that is marijuana. That probable cause le[]d to the finding of the gun.

         The motion to suppress is denied.

         DISCUSSION

         Appellant contends that the circuit court erred in denying his motion to suppress, for two reasons. First, he asserts that, although the court correctly determined that the police did not have reasonable suspicion to seize him based on the tip received, and only had reasonable suspicion to seize him upon detecting the odor of marijuana, the court erred in failing to conclude that appellant was unlawfully seized. Specifically, appellant asserts that the court "failed to conclude what the record unequivocally demonstrates: that Officer Curtis (and then Officer Burch) immediately seized Appellant before Officer Burch detected an odor of marijuana on Appellant."

         Second, appellant contends that, even if he was not immediately seized, the court "erred in its 'totality' analysis." In that regard, he argues that the court erred in finding that the police had probable cause to support the search of his person because: (1) the court improperly considered evidence of the tip; and (2) the odor of marijuana did not give the police "grounds to immediately search or arrest" him.

         The State contends that "the circuit court correctly denied [appellant's] motion to suppress a handgun that police recovered from his person incident to arrest." Although it addresses the specific claims raised by appellant, it asserts that "[t]he essential question in this case . . . comes down to whether the circuit court was correct that the police possessed probable cause to arrest and search [appellant] at the moment the police seized him because the officers detected the scent of marijuana." The State agrees that appellant was seized when the police placed their hands on him, but it argues that, whether the encounter "was an investigatory detention or an arrest, or whether it evolved from one to another and when, are largely academic questions because . . . the officers' conduct was maximally authorized by probable cause from the start of the encounter based on the scent of marijuana."

         In reviewing a ruling on a suppression motion, we apply the following standard of review:

We review a denial of a motion to suppress evidence seized pursuant to a warrantless search based on the record of the suppression hearing, not the subsequent trial. State v. Nieves, 383 Md. 573, 581, 861 A.2d 62 (2004). We consider the evidence in the light most favorable to the prevailing party, here, the State. Gorman v. State, 168 Md.App. 412, 421, 897 A.2d 242 (2006) (Quotation omitted). We also "accept the suppression court's first-level factual findings unless clearly erroneous, and give due regard to the court's opportunity to assess the credibility of witnesses." Id. "We exercise plenary review of the suppression court's conclusions of law," and "make our own constitutional appraisal as to whether an action taken was proper, by reviewing the law and applying it to the facts of the case." Id.

Goodwin v. State, 235 Md.App. 263, 274 (2017) (quoting Bowling v. State, 227 Md.App. 460, 466-67 (2016)), cert. denied, 457 Md. 671 (2018). Accord Robinson v. State, 451 Md. 94');">451 Md. 94, 108 (2017).

         The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. See Jones v. State, 407 Md. 33, 51 (2008).[6] Whether a search or seizure is unreasonable under the Fourth Amendment "'depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.'" Sellman v. State, 449 Md. 526, 540 (2016) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 109 (1997)). Accord Robinson, 451 Md. at 108.

         A Fourth Amendment seizure occurs when, "'taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Swift v. State, 393 Md. 139, 152-53 (2006) (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)). A warrantless seizure generally is unreasonable unless supported by probable cause or reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21 (1968); Lee v. State, 311 Md. 642, 652 (1988). For example, an investigatory detention, commonly known as a Terry stop, will not violate the Fourth Amendment "as long as the officer has a reasonable, articulable suspicion of criminal activity." Swift, 393 Md. at 150. An arrest, likewise, will not violate the Fourth Amendment if an officer has "probable cause to believe that a person has committed or is committing a crime." Id.

         With respect to a warrantless search, the general rule is that "'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions.'" Goodwin, 235 Md.App. at 278 (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009)). Accord State v. Johnson, Md., No. 22, Sept. Term, 2017, slip op. at 13 (filed Apr. 20, 2018). One such exception is a search incident to arrest. Grant v. State, 449 Md. 1, 16 n. 3 (2016); Barrett v. State, 234 Md.App. 653, 662 (2017), cert. denied, 457 Md. 401 (2018). This Court has explained the search incident to arrest exception, as follows:

[A] police officer with probable cause to believe that a suspect has or is committing a crime may arrest the suspect without a warrant. See Brinegar v. United States, 338 U.S. 160, 176 (1949). . . . Once lawfully arrested, police may search "the person of the arrestee" as well as "the area within the control of the arrestee" to remove any weapons or evidence that could be concealed or destroyed. United States v. Robinson, 414 U.S. 218, 224 (1973).

Barrett, 234 Md.App. at 664 (quoting Conboy v. State, 155 Md.App. 353, 364 (2004)). Accordingly, "[a]ny container within an arrestee's immediate control at the time of arrest is subject to a contemporaneous search incident to that arrest." Ricks v. State, 322 Md. 183, 194 (1991).

         With this background in mind, we turn to the parties' contentions.

         I.

         Officer Curtis' Initial Seizure of Appellant

         Relying on the body-camera footage introduced into evidence, appellant contends, and the State agrees, that appellant "was seized within the meaning of the Fourth Amendment" when Officer Curtis grabbed his arm. Appellant argues, however, again relying on the body-camera footage, that Officer Curtis grabbed his arm prior to the time that Officer Burch detected the odor of marijuana emanating from him. He asserts, therefore, that Officer Curtis did not have a lawful basis to seize him, and the evidence subsequently found should have been suppressed.

         A review of the body-camera footage does not reflect where Officer Burch was when Officer Curtis initially touched appellant's arm. It does reflect, however, that within one second or less, Officer Burch was in front of appellant telling him to put his hands up.[7]Although appellant hinges his argument on appeal on this sequence of events during a fast moving situation, he never raised this argument below or suggested that the timing of Officer Curtis' actions had any bearing at all on the suppression issue. And the circuit court did not address the significance or timing of Officer Curtis' action in grabbing appellant because the issue was not raised at the suppression hearing. Under these circumstances, the issue is not preserved for this Court's review. See Maryland Rule 8-131(a) ("Ordinarily, the appellate court will not decide any other issues unless it plainly appears by the record to have been raised in or decided by the trial court."); Ray v. State, 435 Md. 1, 19 (2013) (where a defendant advances one theory of ...


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