Circuit Court for Baltimore City Case No. 417048006
Graeff, Nazarian, Arthur, JJ.
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
appeal, appellant contends that the circuit court erred in
denying his motion to suppress the handgun recovered from his
person. For the reasons set forth below, we
disagree, and therefore, we shall affirm the judgment of the
AND PROCEDURAL BACKGROUND
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
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.
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
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
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
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. Officer Burch
admitted that he did "place [his] hands on [appellant]
to  detain him, to stop him."
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. 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.
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.
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
counsel first addressed the initial stop, asserting that
there was no "reasonable, articulable suspicion for the
initial stop and seizure of [appellant's] person."
[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.
counsel argued that an anonymous tip providing a physical
description of a person, without more, was insufficient to
provide reasonable suspicion of wrongdoing.
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,  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."
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."
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.
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)).
finding that the tip did not justify the stop, the court
stated that its "analysis does not end there." The
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.
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
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 led to the finding of the gun.
motion to suppress is denied.
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
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.
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."
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).
Fourth Amendment to the United States Constitution prohibits
unreasonable searches and seizures. See Jones v.
State, 407 Md. 33, 51 (2008). 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.
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.
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).
this background in mind, we turn to the parties'
Curtis' Initial Seizure of Appellant
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.
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.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 ...