Johnson v. State

Chalon Joshua Johnson v. State of Maryland, No. 0572, September Term 2021,
Opinion by Moylan, J.
HEADNOTES:
CARROLL DOCTRINE – THE CASE BEFORE US – STANDARD OF REVIEW –
THE UNDISPUTED FACTS – THREE SUB-CONTENTIONS – I. PROBABLE
CAUSE TO SEARCH FOR EVIDENCE, SYNERGISTICALLY – A.
OBSERVATION OF THE MARIJUANA CRUMBS – B. SMELL OF UNBURNED
MARIJUANA – C. MUTUAL MULTIPLYING EFFECT OF THE TWO – D.
APPELLANT’S CONSCIOUSNESS OF HIS OWN GUILT – E. TINTED
WINDOWS AS AN INVESTIGATIVE CLUE – F. A “HIGH CRIME DRUG AREA”
– G. E PLURIBUS UNUM – THREE BLIND MEN AND AN ELEPHANT: WHAT
IS DECRIMINALIZATION? – THERE ARE NO QUANTITATIVE THRESHOLDS
FOR EVIDENCE TO BE THE OBJECT OF A CARROLL DOCTRINE SEARCH –
A. AN INVESTIGATIVE CLUE NEED NOT BE A LEGALLY SUFFICIENT CASE
OF GUILT – B. IN ANY EVENT, IT HAS ALL BEEN SETTLED BY STATUTE –
II. PROBABLE CAUSE TO SEARCH FOR CONTRABAND – THE PLENITUDE
OF PROBABLE CAUSE – III. THE MALIBU’S MOBILITY – IV. THE SPECIAL
PROBLEM OF SCOPE – A. BELL V. STATE – B. CALIFORNIA V. ACEVEDO –
C. CITING AUTHORITY VERSUS CHERRY PICKING – D. WHITE VIALS AND
BROWN PAPER BAGS AS SPECIFIC TARGETS – E. THE PURPOSE WAS
ALSO TO SEARCH FOR CONTRABAND – F. “MISSION ACCOMPLISHED” OR
“MISSION STILL IN PROGRESS” – V. CONCLUSION
Circuit Court for Anne Arundel County
Case No. C-02-CR-19-002090
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 0572
September Term, 2021
CHALON JOSHUA JOHNSON
V.
STATE OF MARYLAND
Kehoe,
Leahy,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
Opinion by Moylan, J.
Filed: April 4, 2022
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
*Ripken, Laura S., J., did not participate in the
2022-05-06 09:25-04:00 Court’s decision to designate this opinion for
Publication pursuant to Md. Rule 8-605.1.
Suzanne C. Johnson, Clerk
This appellant’s omnibus contention and numerous sub-contentions to the contrary
notwithstanding, the Carroll1 Doctrine’s status as a well-settled exception to the Fourth
Amendment’s warrant requirement is alive and well. Its century-old characteristics,
moreover, are so comfortably and incontrovertibly ensconced in the caselaw that they do
not need to be reinvented before each fresh application. The appellant unleashes a broad
fusillade of charges against the State’s reliance on the Carroll Doctrine in this case. Not a
single shot, however, strikes home.
The Case Before Us
On his not guilty plea on an agreed statement of facts, the appellant, Chalon Joshua
Johnson, was found guilty in the Circuit Court for Anne Arundel County by Judge J.
Michael Wachs of 1) the possession of marijuana in an amount exceeding ten grams and
2) the possession of ammunition by one prohibited to possess it. All of the evidence in the
case was developed at the pre-trial suppression hearing conducted by Judge Alison L. Asti.
Judge Asti denied the appellant’s motion to suppress the physical evidence against him. It
is that pre-trial suppression hearing that we will be reviewing.
Standard Of Review
The standard of review is clear. It was plainly set out by the Court of Appeals
speaking through Chief Judge Barbera in Raynor v. State, 440 Md. 71, 81, 99 A.3d 753(2014):
In reviewing the denial of a motion to suppress evidence, as we do here, we must
rely solely upon the record developed at the suppression hearing. We view the
evidence and inferences that may be drawn therefrom in the light most favorable to
1
Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).
the party who prevails on the motion, here, the State. We accept the suppression
court’s factual findings unless they are shown to be clearly erroneous. We, however,
make our own independent constitutional appraisal of the suppression court’s ruling,
by applying the law to the facts found by that court.
(Emphasis supplied.) See also Grant v. State, 449 Md. 1, 14-15, 141 A.3d 138 (2016);
Hailes v. State, 442 Md. 488, 499, 113 A.3d 608 (2015); State v. Wallace, 372 Md. 137,
144, 812 A.2d 291 (2002).
The Undisputed Facts
The first-level evidence before Judge Asti was undisputed. This is not surprising
because Detective Philip Clarke of the Anne Arundel County Police Department was the
sole witness to testify. He explained that at approximately 10 A.M., he and his partner were
patrolling in an unmarked police car when they saw the appellant sitting inside his car, a
green Chevrolet Malibu. The Malibu was legally parked on Lamplighter Ridge, an area
described by Detective Clarke as being a “high-crime drug area,” consisting of townhouses.
The detective’s partner recognized the appellant from a recent incident in which the
appellant “didn’t stop his vehicle and fled from the police.” On this present occasion, both
police officers were wearing their uniforms, which would have been clearly visible through
their vehicle’s front windshield. As the two officers drove closer to where the Malibu was
parked, the appellant looked at them, got out of his car, closed the car door behind him,
and ran away on foot. The officers, alighting from their own vehicle, gave chase on foot.
They lost sight of the appellant, however, and were unable to catch him.
Both officers then walked back to where the Malibu was parked. It was locked. The
windows were rolled up and were tinted. Detective Clarke, however, peered through the
2
driver’s side window and saw “what appeared to be marijuana crumbs” on the driver’s seat.
He explained that “sometimes when you roll a cigarette blunt, whatever you call it,
sometimes the marijuana will fall out. So it looked like he may have been in there
previously or had been smoking, so just remnants, just a little bit.”
In addition to seeing what he deemed to be marijuana crumbs, Detective Clarke
testified that he could also clearly detect the smell of unburned marijuana emanating from
the car. He had been trained in detecting the smell of marijuana and he routinely did so as
a part of his job. He could readily distinguish the smell of burnt marijuana from the smell
of unburnt marijuana. At that point, he called for a back-up to come to the scene. Shortly
thereafter, another officer arrived with a “lockout kit,” which the police then used to unlock
the Malibu. The officers searched the interior of the Malibu. Underneath the driver’s seat,
they found both a bag containing marijuana and a digital scale. In the bag were 52 grams
of marijuana. They continued the search and found ammunition, to wit, five bullets,
“stuffed underneath the driver’s side panel.”2
At the suppression hearing, the appellant argued that the marijuana, the digital scale,
and the ammunition should all have been suppressed because the warrantless search of his
Malibu had been an unconstitutional violation of the Fourth Amendment. The State
counter-argued that the warrantless search had been perfectly constitutional pursuant to the
2
The agreed statement of facts at the subsequent trial included the fact that the
appellant was prohibited from possessing a firearm or ammunition because of prior
convictions.
3
Carroll Doctrine’s exception to the Fourth Amendment warrant requirement. Judge Asti
agreed with the State and denied the motion to suppress. This appeal is from that ruling.
Three Sub-Contentions
The single contention that the Carroll Doctrine was violated breaks down into three
distinct sub-contentions:
1. That probable cause was not established to justify the Carroll Doctrine
warrantless search of the Malibu;
2. That even if probable cause had been established, the Carroll Doctrine
would still not have been satisfied because the Malibu was not readily
mobile; and
3. That even if the Carroll Doctrine had otherwise been satisfied with
respect to the search for the marijuana, the ammunition should have
been suppressed because the extended search that produced it had
been excessive in scope.
I. Probable Cause To Search For Evidence, Synergistically
Deferring for the moment our consideration of the very modest “exigency versus
ready mobility” speed bump, we can say with unhesitating confidence that the prime
requirement for a warrantless Carroll Doctrine search of an automobile is probable cause
to believe that the car contains evidence of crime or contraband. Possibly the single best
definition of probable cause was that given by Brinegar v. United States, 338 U.S. 160,
175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949):
In dealing with probable cause, however, as the very name implies, we deal with
probabilities. These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not legal
technicians, act. The standard of proof is accordingly correlative to what must be
proved. The substance of all the definitions of probable cause is a reasonable ground
for belief of guilt. And this means less than evidence which would justify
condemnation or conviction, as Marshall, C.J., said for the Court more than a
4
century ago in Locke v. United State. [Citation omitted]. Since Marshall’s time, at
any rate, it has come to mean more than bare suspicion: Probable cause exists where
the facts and circumstances within their (the officers’) knowledge and of which they
had reasonable trustworthy information (are) sufficient in themselves to warrant a
man of reasonable caution in the belief that an offense has been or is being
committed.
(Emphasis supplied.)
Realistically, our ultimate grasp of probable cause is not so much the product of
formal definition but rather the collective wisdom of hundreds upon hundreds of concrete
applications. The present case is one such application. It is a case wherein, clue by
relentless clue, the accumulation of suspicious behavior would have convinced any prudent
and rational observer that skullduggery was afoot. That is the point where mere suspicion
ripens into probable cause. The case now before us, moreover, provides far more than just
an instance of probable cause. In its profusion of suspicious behavior, it is a textbook
example of irrefutable probable cause.
The profusion of suspicious behavior is in significant measure the result of the
dynamic phenomenon of synergism. Webster’s New Collegiate Dictionary defines
“synergism” as “cooperative action of discrete agencies such that the total effect is greater
than the sum of the effects taken independently.” The profusion of probable cause here
resulted from just such an interplay of interacting and reinforcing observations.
A. Observation Of The Marijuana Crumbs
When the officers abandoned their unsuccessful effort to catch the appellant on foot,
they returned to where the appellant’s Chevrolet Malibu sat, parked and locked. The first
observation made by Officer Clarke, as he peered through the driver’s side window, was
5
“what appeared to be marijuana crumbs” on the driver’s seat. The appellant attempts to
discredit that observation by pointing out how bad the lighting was and how unilluminating
the police effort to photograph the crumbs was. His disdaining attitude suggests that if we
cannot confirm the presence of the crumbs visually for ourselves, Detective Clarke’s
testimony that he could do so becomes both more suspect in terms of credibility and
substantively less convincing. To what end does he do this? We are not factfinders and
such a dismissive argument falls on deaf ears as a matter of course. The appellant forgets
that we are admonished to take that version of the evidence most favorable to the prevailing
party, in this case the State. The appellant flagrantly ignores this controlling standard of
appellate review.
The detective’s testimony about his observation of the marijuana crumbs clearly
would have sufficed to justify a ruling of probable cause, had the suppression hearing judge
found it necessary to make such a ruling at that point. Judge Asti, however, did not find it
necessary to do so. There was more coming and she could afford to wait.
B. Smell Of Unburned Marijuana
Detective Clarke testified that simultaneously with observing the marijuana crumbs,
he also detected what he recognized to be the smell of unburned marijuana. It was on the
basis of that combination of observations – one visual and the other olfactory – that he
called for back-up and proceeded with the warrantless search of the Malibu. Judge Asti
agreed that at that point, probable cause had been established.
There has never been any question about the efficacy, in probable cause assessment,
of relying on the olfactory observations of the trained officer just as we have always relied
6
upon the olfactory observations of the trained drug-sniffing dog.3 As Justice O’Connor
wrote for the Supreme Court in United States v. Johns, 469 U.S. 478, 482, 105 S.Ct. 881,
83 L.Ed.2d 890 (1985):
After the officer came close and detected the distinct odor of marijuana, they had
probable cause to believe that the vehicle contained contraband.
(Emphasis supplied.) See also Wilson v. State, 174 Md. App. 434, 441-42, 921 A.2d 881(2007); State v. Harding, 166 Md. App. 230, 233, 887 A.2d 1108 (2005).
It is undisputed hornbook law that the smelling of marijuana in or emanating from
an automobile – by a trained drug-sniffing dog or by a trained police officer – constitutes
probable cause to justify a warrantless Carroll Doctrine search of the entire automobile. As
this Court pointed out in State v. Funkhouser, 140 Md. App. 696, 711, 782 A.2d 387(2001):
In this case there was no disputing the olfactory expertise of the trained and certified
cocaine-sniffing canine. When a qualified dog signals to its handler that narcotics
are in a vehicle, moreover, that is ipso facto probable cause to justify a warrantless
Carroll Doctrine search of the vehicle.
(Emphasis supplied.) See also Wilkes v. State, 364 Md. 554, 586-87, 774 A.2d 420 (2001);
Gadson v. State, 341 Md. 1, 8, 668 A.2d 22 (1995); Timmons v. State, 114 Md. App. 410,
417, 690 A.2d 530 (1997); In Re Montrail M., 87 Md. App. 420, 437, 589 A.2d 1318(1991); Snow v. State, 84 Md. App. 243, 248, 578 A.2d 816 (1990).
3
The only difference we have noted between the human sense of smell and the canine
sense of smell in terms of their legal significance is that the trained officer can distinguish
between the smell of unburned marijuana and that of burnt marijuana and the dog cannot.
Perhaps it is the case that the trained dog can, indeed, make that same distinction but has
simply not yet learned how to communicate that distinction to us.
7
C. Mutual Multiplying Effect Of The Two
As we examine Judge Asti’s ruling, that was the point where synergism entered and
altered the analysis. It was not the case that the sense of smell added to the sense of sight
equaled probable cause. The twin insights into the Malibu’s suspicious circumstances were
more than incremental. They produced a synergy that went beyond simple addition. We
have not simply added the one to the other. The visual observation of the marijuana crumbs
would have been enough to justify a ruling that probable cause existed, but it, standing
alone, would not have constituted an overwhelming case. Once that visual observation was
corroborated by the olfactory observation, however, that visual observation, even as just a
visual observation, took on significantly more heft and authority than it had originally
enjoyed. By the same token, the subsequent olfactory observation assumed a greater
gravitas once it was reinforced by the earlier visual observation.
In the ultimate calibration of probable cause, it was not the case that arithmetically,
one plus one equals two. It was rather the case that synergistically, one plus one equals
significantly more than two. The whole is, indeed, greater than the sum of its parts. This
synergistic enhancement becomes a significant factor whenever defense counsel, in
argument, seeks to isolate and to discredit the weight of each constituent factor in a vacuum
but conveniently ignores to reckon with the reinforcing impact of multiple factors in
combination.
D. Appellant’s Consciousness Of His Own Guilt
In this case, moreover, the synergism did not end with one plus one equaling far
more than two. In addition to Detective Clarke’s assessment of the double-barreled
8
probable cause emanating, visually and olfactorily, from the Malibu, we have the additional
benefit of the appellant’s own assessment of his own guilt. The appellant’s flight from the
scene immediately upon observing the approach of the police was evidence, inferentially
at least, of the appellant’s consciousness of his own guilt. What was that guilt? The
appellant knew that the Malibu contained 52 grams of marijuana. The appellant knew that
the Malibu contained a digital scale for measuring contraband drugs. These both
contributed to his awareness of his own guilt. The appellant’s flight then communicated,
inferentially, his consciousness of the evidence of his guilt lurking in the Malibu.4
The appellant’s flight in this case could have had significance in yet another specific
regard, had it been necessary to turn to it. It was not necessary, however. The appellant
seeks, as many defendants do, to capitalize on the fact that the possession of less than 10
grams of marijuana has recently been decriminalized. He makes the point that although an
officer may be able to smell marijuana, burnt or unburned, the officer cannot quantify the
amount of marijuana that he has smelled. The appellant argues that the marijuana smelled
by Detective Clarke might, therefore, have been for only a non-criminal amount. As we
shall explore in greater detail infra, that is of absolutely no significance in assessing
probable cause for a warrantless Carroll Doctrine search. Were it pertinent, however, the
4
When the second officer first observed the appellant sitting in the Malibu, he
recalled that the appellant had recently also taken off in flight when approached by the
police. That observation also was not without some significance in this case. The
conclusion that unexplained flight is an indication of consciousness of guilt, of course, is a
permitted inference. A permitted inference might be drawn but it might also be declined.
In this case the appellant’s earlier resort to flight was evidence of his propensity to take to
flight as his response to his consciousness of guilt and would have reinforced the case for
the drawing of such an inference here on this second occasion.
9
flight of the appellant from the scene would have taken on even greater significance. As a
user and/or distributor of marijuana, the appellant would have been intimately familiar with
the marijuana laws. Had the appellant been in possession of less than 10 grams of
marijuana, therefore, he would have had no reason to take off in flight. He could have
remained in his car and comfortably thumbed his nose at the officers. His very flight,
therefore, signaled that he knew that the Malibu contained more than 10 grams of
marijuana. His flight, moreover, told the officers that he knew that. His flight itself would
have helped to carry the suspicion over the 10-gram threshold, had that been necessary.
Lest the appellant complain that our resort to such a quantitatively precise
consciousness of guilt pushes out the envelope of reasoning too far, it behooves us to
remind him that we have no choice. On appellate review, we are required to accept that
version of the evidence “most favorable to the State’s case.” In compiling that version of
the evidence as carefully and meticulously as we can, we are enjoined to employ not simply
the adjective “favorable” but, by way of raising the standard even higher, that adjective in
its superlative degree, “MOST favorable.” Even consciousness of guilt of a civil offense
might have been a favorable version of the evidence, but consciousness of guilt of a
criminal offense would resonate as the “MOST favorable” version. We think that for the
appellant’s flight to signal to the pursuing police his consciousness of guilt at a
quantitatively qualifying criminal level would satisfy our responsibility to accept that
version of the evidence “MOST favorable” to the State. We, of course, are not permitted
to do less. If there were any doubt, moreover, about what “that version of the evidence
10
most favorable to the prevailing party” means, one can always turn to Whiting v. State, 160
Md. App. 285, 300, 863 A.2d 1017 (2004), for helpful guidance:
It will fully credit the prevailing party’s witnesses and discredit the losing party’s
witnesses. It will give maximum weight to the prevailing party’s evidence and little
or no weight to the losing party’s evidence. It will resolve ambiguities and draw
inferences in favor of the prevailing party and against the losing party.
(Emphasis supplied.) That is a standard that a defendant can appreciate only when the
defendant is the prevailing party. See State v. Funkhouser, 140 Md. App. 696, 701-03, 782
A.2d 387 (2001).
In assessing possible criminality, the prime investigative guideline is never to look
at a single clue, and never to allow an opponent to argue a single clue, in isolation. Always
keep the focus on the totality of the circumstances! Flight, as indicative of consciousness
of guilt, can at first glance be frustratingly ambiguous. Flight, however, occurs in a context
and that context will frequently clear away some or much of the ambiguity. In this case,
for example, the appellant ran away from a locked car. That alerted the police, at the very
least, to take a look at the locked car. The observation of the marijuana crumbs and the
smell of unburned marijuana, not to mention the tinted windows and the reputation of the
neighborhood as a high drug area, then dispelled any original ambiguity. The appellant’s
very behavior helped to portray his sense of guilt with contextual particularity..
E. Tinted Windows As An Investigative Clue
As the police arrived back at the parked Malibu, they noticed that the windows of
the car were tinted. In cases such as this, tinted windows appear not infrequently. The tinted
window is typically duly noticed by the court in passing and given minor significance, but
11
seldom more than that. It is worthy, however, of significantly more attention than that. As
we now afford window tinting some long overdue attention, we must remember that our
subject is not guilt or innocence but only probable cause. We are not concerned with what
a juror might accept as evidence of ultimate guilt but only with what a trained detective
should notice as an investigative lead worth pursuing further. On the issue of probable
cause, we are concerned only with a clue’s value as a clue.
The tinting of automobile windows is not the norm.5 It is legal, of course, but at
least statistically unusual. Its purpose of affording automobile passengers a modicum of
increased privacy, albeit legal, can nonetheless tell a good investigator something about
the personality of the person desiring the increased privacy. Such investigative curiosity,
of course, is also legal. It is, after all, a vehicular version of wearing a mask. Such person,
of course, might be a celebrity seeking only to avoid the prying eye of the paparazzi – or
5
The opinion of the Court of Appeals in State v. Williams, 401 Md. 676, 934 A.2d
38 (2007) and the opinion of this Court in Baez v. State, 238 Md. App. 587, 192 A.3d 945(2018) dealt with the tinting of automobile windows not as an aspect of probable cause to
believe that narcotics laws were being violated, but as possible substantive violations of
the traffic law based on the degree of the tinting. Judge Raker’s opinion for this Court in
Baez, however, pointed out that the Maryland anti-tinting regulations were enacted in 1995
and that Maryland is one of twenty-eight states that “have now enacted laws either
regulating or altogether prohibiting the use of tinted windows on vehicles in their state.”
238 Md. App. at 596. Our opinion also explained that officer safety was a primary reason
for the enactment of the anti-tinting regulations:
From the legislative history of the statute, we glean that the primary, underlying
purpose of the statute was that because excessively tinted windows prevent officers
from perceiving dangers or problems inside the vehicle, the legislation was
necessary to protect the safety of law enforcement officers who stop and approach
a vehicle.
238 Md. App. at 595
12
the hoopla of curious onlookers. Such person might be one with a sensitive eye condition,
trying to avoid the glare of the sun. Such person could also, on the other hand, be a criminal,
seeking to avoid the probing curiosity of the police. Or such person could, yet again, simply
be anyone looking for enhanced privacy for any reason. Knowing the reason for the desired
privacy, however, can tell a trained investigator a lot about the personality of the person
seeking that enhanced privacy.
At this point, the tinted window, though intended visually to be less illuminating,
can be figuratively very illuminating by illustrating the value of looking at the totality of
the circumstances. In a vacuum, the tinted window may tell us nothing about the
automobile owners or about why they desire the enhanced privacy. Tinted windows,
however, are seldom found in vacuums. They are found in the concrete contexts of real
cases. The answer to the investigator’s curiosity will frequently be found in that context.
At first approach to this quest for the reason for the desired enhanced privacy, we may not
know whether we are dealing with Greta Garbo or with Don Vito Corleone. The context,
however, can quickly narrow that range of probabilities considerably.
In the present case, the police may have been told little by the tinted window alone.
Combine it with one other fact, the observation of marijuana crumbs on the driver’s seat,
and the range of possibilities immediately narrows dramatically. Combine it with yet a
second additional fact, the smell of unburnt marijuana, and any remaining mystery
becomes non-existent. Combine it with yet a third fact, the appellant’s precipitate flight
upon the approach of the police, and even to surmise about a privacy-seeking Greta Garbo
or Princess Diana becomes an absurdity. The fourth additional factor, the general character
13
of the neighborhood as a high crime area focused largely on narcotics, is merely a gilding
of the lily. At that point, there was nothing left to add to the picture. In full context, which
is the only way to look at it, our appraisal of the unilluminating tint of the Malibu’s
windows has been vividly illuminating.
The tinted window, as an abstraction in a vacuum, may speak with a softly
modulated voice. In the glorious totality of its full context, however, it may speak volumes.
Whatever value a tinted window may have as proof of ultimate guilt is not, of course, the
issue before us. On the antecedent issue of probable cause, we need only ask, “Is it a good
investigative clue?” Of course it is. It may be a critical element of probable cause.
F. A “High Crime Drug Area”
Simply to set this entire totality of circumstances in its proper geographic context,
the Malibu, when searched, was parked on Lamplighter Ridge, described by Detective
Clarke as a “high crime drug area.” Once again, standing alone that might not have critical
significance. Synergistically, however, it helps to fill out and to give interpretive tone to
the total picture.
In Bell v. State, 96 Md. App. 46, 53, 623 A.2d 690 (1993), this Court observed how
the character of the neighborhood in which an event occurs can raise the level of suspicion
as to the event itself. Bell’s comment about “immediate dispersal,” moreover, would
certainly apply to the precipitate flight from the scene of the appellant in this case.
The neighborhood was known to the police as one with a high level of drug activity.
The appellant was one of four or five young males who immediately dispersed at
the approach of strangers, quite possibly the police.
(Emphasis supplied.)
14
When the issue before us is not guilt or innocence but only probable cause, State v.
Johnson, 458 Md. 519, 541, 183 A.3d 119 (2018) well states the pivotal criterion as
“circumstances sufficiently suspicious to warrant further investigation:
The stop occurred in a high-crime area, a relevant contextual consideration that an
officer is not required to ignore when determining whether the circumstances are
sufficiently suspicious to warrant further investigation.
(Emphasis supplied.) And see Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 145
L.Ed.2d 570 (2000).
In assessing the Fourth Amendment reasonableness of the police response, the
geography of the encounter can be critically important. In terms of its exposed
vulnerability, the abandoned Malibu here, probably containing an undetermined quantity
of illegal drugs, sat helplessly amid an opportunistic crowd of drug users and drug peddlers.
It was not resting quietly somewhere in the outback of rural Finland. All else being equal,
a difference in geographic setting can make a critical difference in level of suspicion and
also in level of vulnerability.
A word is in order about the Malibu’s location. Initially, the possibility that the
appellant was parked in the middle of a drug market in order to sell drugs was no more
than one random possibility in an open-ended cornucopia of random possibilities. Standing
alone, it would not achieve critical mass. That is why it is necessary to examine, one by
one, every circumstance in the totality of the circumstances to see if that narrows the range
of possibilities. In this case, each of four separate sets of circumstances did, indeed, narrow
that range. What began as a mere random possibility ripened into a significant probability.
15
In discussing location, we should not even be talking about a green Chevrolet
Malibu parked on Lamplighter Ridge. We should only be talking about a green Chevrolet
Malibu with tinted windows and marijuana crumbs on the driver’s seat, emitting the smell
of unburned marijuana and from which the driver had fled precipitously upon the approach
of the police, sitting in a “high crime drug” area. Only that full context permits a meaningful
assessment of that car in that location at that time. A car with a story to tell is a far more
reliable witness when left unsterilized. It was no longer just a green Chevrolet Malibu
parked on Lamplighter Ridge.
G. E Pluribus Unum
After having tried as carefully and meticulously as we know how to set out and to
describe these five separate tributaries of suspicious behavior that synergistically all joined
together to form the main stream of probable cause, we are chagrined that the appellant, in
his brief, can completely ignore four of the five as if they did not exist:
The question in issue in this case is whether police may search a car, and if so, the
permitted scope of that search, where the sole basis for probable cause is that the
car smells like marijuana.6
(Emphasis supplied.)
6
Is the appellant even suggesting that the permitted scope of a resultant Carroll
Doctrine search might, on some yet uninvented sliding scale, fluctuate upward or
downward depending upon the relative strength of the generative probable cause? Stronger
probable cause supporting a more intensive investigation? Weaker, albeit adequate,
probable cause supporting only a more inhibited investigation? Would the measurable
levels of authorizing probable cause, moreover, be limited to two? Or might there be an
intermediate third level? Or even a fourth level? Such a sliding scale for the permitted
scope or intensity of searches and seizures, as opposed to a simply binary “yes or no,”
would seem to entail a massive rewriting of the entire Fourth Amendment. For the moment,
however, probable cause either is or is not.
16
Once the Ohio River, below Cairo, flows into the Mississippi, one can no longer
analyze Ohio River water as a distinct entity separate from its newer and larger totality.
That earlier and partial identity no longer exists. We conclude this section of the opinion
by reaffirming that the fact “that the car smelled like marijuana” was by no means “the sole
basis for probable cause” in this case. As a mandatory standard of review, we must assess
the totality of the circumstances and not a single factor in isolation. Surely, the marijuana
crumbs on the driver’s seat, the precipitate flight of the appellant, the tinting of the car
windows, and the character of the neighborhood counted for something. They may not be
conveniently ignored. The smell of marijuana was obviously not “the sole basis for
probable cause.”
If the parties were competing, persuasively, on a level playing field, the appellant
might make such an argument. They are not, however, competing on a level playing field.
As we have repeatedly explained, on appellate review of a suppression hearing ruling, we
are enjoined to take that version of the evidence “MOST favorable” to the State’s case.
The appellant, incongruously, urges upon us a version of the evidence “LEAST favorable”
to the State’s case, ignoring the marijuana crumbs, the tinted windows, the sudden flight
of the appellant, and the character of the neighborhood. He does not even attempt to
reconcile his summary of the evidence with the controlling standard of appellate review.
He urges upon us a version of the evidence that is irrelevant. The appellant does not even
try to suggest how four other sets of suspicious circumstances, all in addition to and
corroborative of the smelling of the marijuana, can be utterly eliminated from that “MOST
17
favorable” version of the evidence. They cannot be eliminated, of course, and the argument
is patently spurious.
Three Blind Men And An Elephant:
What Is Decriminalization?
“Aha,” said a blind man touching the side of an elephant, “so an elephant is like a
wall. “On, no,” said the second blind man touching the leg of the elephant, “an elephant is
like a tree.” “You are both wrong,” said the third blind man touching the tail of the elephant,
“an elephant is like a snake.” Just such an elephant is now codified in the Criminal Law
Article of the Maryland Code at Sections 5-601 and 5-601.1. How shall we describe that
elephant? Single characteristic by single characteristic? Or in its totality? We must first
reject the partial description urged upon us by the appellant. His skewed perception,
inevitable because of his obsessive focus on a single characteristic of a much larger totality,
would seem to qualify him as a fourth blind man joining the classic trio in the ancient Indic
fable, none of whom could see the forest because of the trees.
Notwithstanding both unambiguous statute law and extensive State and national
caselaw universally to the contrary, the appellant doggedly persists in chanting a mantra of
decriminalization that has been completely discredited. Or should have been! Early in his
brief, he asserts his basic legal position:
When a search is based on the smell of marijuana, which has recently become legal
to possess in certain quantities, the police’s powers under Carroll and its progeny
should be narrowed.
18
(Emphasis supplied.) The appellant does not deign to tell us what those diminished or
“narrowed” police powers under the Carroll Doctrine should be, let alone how we should
presume to narrow federal constitutional law.
Farther along in his brief, the appellant sought to distinguish Wilson v. State, 174
Md. App. 434, 921 A.2d 881 (2007). He did so by pointing out that:
Wilson was decided long before marijuana possession was decriminalized.
Maryland has yet to directly reckon with whether police may look in every nook
and cranny of a vehicle, and even tear it apart, because they smell something that it
is no longer a crime to possess.
(Emphasis supplied.) The appellant does not suggest how the intensity of the searching
process might have been affected. Might the police, because of decriminalization, have
retained the authority to look into the car generally but have lost the authority to look into
“every nook and cranny?”
The third drumbeat of irrelevancy was purely gratuitous:
Exhaustive, sometimes damaging searches of parked, locked, unoccupied cars
simply because police claim they smell marijuana, which a citizen may now possess
without committing a crime, are unreasonable.
(Emphasis supplied.) If “exhaustive” searches are now “unreasonable,” why are not
cursory searches equally “unreasonable?”
The appellant’s final intoning of his decriminalization mantra does inadvertently
expand significantly the sweep of the actual decriminalization:
Again, given that marijuana is no longer a crime to possess, the reasonableness of
expansive Carroll searches of parked, locked, and unoccupied vehicles based on its
smell should be viewed differently. Such searches are unreasonable.
(Emphasis supplied.)
19
This tendency of defendants and of defense counsel to overread, stubbornly and
massively, the significance of Chapter 158 of the Acts of 2014 is necessary to counteract.
The appropriate way to begin would be by simply reading the Act itself, now codified as
Maryland Code, Criminal Law Article, Sect. 5-601 itself. Subsection 5-601(a) sets out the
illegal behavior that is broadly prohibited:
(a) Except as otherwise provided in this title, a person may not:
(1) possess or administer to another a controlled dangerous substance, unless
obtained directly or by prescription or order from an authorized provider
acting in the course of professional practice.
(Emphasis supplied.)
Subsection 5-601(a)(2) goes on to prohibit the attempt to obtain or to administer a
Controlled Dangerous Substance. The section does not distinguish between marijuana and
any other Controlled Dangerous Substance. Nor does the section make any distinction
between some greater amount and some lesser amount of marijuana. The prohibition
applies to all Controlled Dangerous Substances, including marijuana and regardless of the
amount.
It is only in Subsection 5-601(c) that the act moves to the applicable penalties for
adjudicated violations of the act. Subsection (c)(1) sets out the penalties for violations
involving Controlled Dangerous Substances other than marijuana. Subsection (c)(2) sets
out the penalty for the use or possession of marijuana generally, imprisonment not
exceeding 6 months or a fine not exceeding $1,000 or both. It is only in Subsection (c)(2)(ii)
that the act turns to the “penalties” for “findings of guilt” involving the use or possession
of less than 10 grams of marijuana:
20
1. A first finding of guilt under this section involving the use or possession of
less than 10 grams of marijuana is a civil offense punishable by a fine not
exceeding $100.
2. A second finding of guilt under this section involving the use or possession
of less than 10 grams of marijuana is a civil offense punishable by a fine not
exceeding $250.
3. A third or subsequent finding of guilt under this section involving the use or
possession of less than 10 grams of marijuana is a civil offense punishable
by a fine not exceeding $500.
(Emphasis supplied.) These “findings of guilt” and these resultant fines, as “punishment,”
are not imposed for legal behavior.
Subsection (c)(ii)(4) goes on to direct that the court may also commit a defendant
“found guilty of a violation” involving less than 10 grams of marijuana 1) to attend drug
education, 2) to be referred for an assessment of substance abuse disorder, and 3) to receive
substance abuse treatment if necessary.
The only slight solace a defendant can take from this post-2014 law governing the
use or possession of less than 10 grams of marijuana is in Sect. 5-601.1(b) which provides:
(1) A violation of §5-601 of this part involving the use or possession of less than
10 grams of marijuana is a civil offense.
(2) Adjudication of a violation under §5-601 of this part involving the use or
possession of less than 10 grams of marijuana:
(i) is not a criminal conviction for any purpose; and
(ii) does not impose any of the civil disabilities that may result from a
criminal conviction.
(Emphasis supplied.)
21
Section 5-601.1 goes on to provide, however, that a police officer shall issue a
citation to one who has violated the Controlled Dangerous Substances law even by way of
committing such a civil offense. A violator under the age of 21 years or an older violator
who has two prior convictions for violating this law has no fine prepayment option and
will be summoned to appear for trial.7 One does not stand trial for lawful behavior. One is
not fined for lawful behavior.
Section 5-601.1 also spells out the procedure for the trial in the District Court of this
civil offense which it labels as “Code violation under Sect. 5-601.” Subsection (i)(2)
provides:
The court shall apply the evidentiary standards as prescribed by law or rule for the
trial of a criminal case.
(Emphasis supplied.) For one found to have committed this civil offense, “the verdict of
the court shall be…guilty of a Code violation.” Subsection (k)(1) further provides:
The State’s Attorney for any county may prosecute a Code violation under § 5-601
of this part involving the use or possession of less than 10 grams of marijuana in the
same manner as prosecution of a violation of the criminal laws of the State.
(Emphasis supplied.)
After the use or possession of less than 10 grams of marijuana was made a civil
offense in 2014, the first Maryland appellate opinion to deal with the new law was Judge
7
We do note several interesting features of a trial for a civil offense in contrast to a
trial for a criminal offense. In both instances, the prosecution of the case is entrusted to the
State. In the trial of the civil offense, however, the burden of persuasion imposed upon the
State is only that of proof by a preponderance of the evidence as opposed to proof beyond
a reasonable doubt. In the trial of the civil offense, moreover, the defendant is entitled to
the assistance of counsel. Counsel, however, is not provided at State expense. Sect. 5-601.1
(i) (1 and 5).
22
Graeff’s for this Court in Bowling v. State, 227 Md. App. 460, 134 A.3d 388 (2016). That
opinion made it clear at the outset that the possession of less than 10 grams of marijuana
remains illegal:
This statutory language makes clear that, although the legislation enacted in 2014
decriminalized the possession of less than 10 grams of marijuana, it remains a civil
offense, and therefore, it still is illegal. Decriminalization is not synonymous with
legalization.
(Emphasis supplied.) 227 Md. App. at 470. Our opinion, 227 Md. App. at 476, concluded,
“[I]t is still illegal to possess any quantity of marijuana.” (Emphasis supplied.)
Within less than a year, the Court of Appeals in Robinson v. State, 451 Md. 94, 152
A.3d 661 (2017) affirmed that illegal status of the possession of any amount of marijuana:
Simply put, decriminalization is not synonymous with legalization, and possession
of marijuana remains unlawful.
(Emphasis supplied.) 451 Md. at 99. Judge Watts’s thorough opinion for the Court, 451
Md. at 125, indisputably held that the possession of marijuana in any amount remains
illegal in Maryland:
Our logic is straightforward. Decriminalization is not the same as legalization.
Despite the decriminalization of possession of less than ten grams of marijuana,
possession of marijuana in any amount remains illegal in Maryland. To be sure, the
amended marijuana statute changed the categorization of, and maximum penalty
for, possession of less than ten grams of marijuana. Specifically, possession of less
than ten grams of marijuana is now categorized as a civil offense rather than a crime,
and it is punishable by a fine, participation in a drug education program, an
assessment for substance abuse disorder, and possible substance abuse treatment,
rather than a fine and/or a period of incarceration. Decriminalization
notwithstanding, however, the possession of less than ten grams of marijuana – i.e.
the possession of any amount of marijuana – remains illegal.
(Emphasis supplied.)
23
The bottom line is that, contrary to the interpretation of Sect. 5-601.1 solemnly
urged upon us by this appellant and by others, a finding of guilty of a Code violation of
Sect. 5-601 has definitely not received the Goodhousekeeping Seal of Approval. The
possession or use of marijuana in any amount has not become normal and proper behavior.
It is illegal. One may not be issued a citation by the police for, be summoned to trial for,
be found guilty of, be punished by a fine of up to $500 for, be assessed for a substance
abuse disorder for, and be subjected to substance abuse treatment for behavior that is legal
and proper. To suggest otherwise is a disingenuous resort to Orwellian nonsense. It is a
blatant sugarcoating of flagrant illegality. Less than 10 grams of marijuana, moreover,
remains seizable contraband. So, for that matter, does one gram of marijuana.
It is a sheer torture of language to suggest that the possession or use of less than 10
grams of marijuana is “inoffensive.” No less than half a dozen Praetorian sanctions now
sternly guardrail this newly created “civil offense.” The General Assembly chooses its
words carefully and deliberately. It is nothing less than Orwellian Newspeak 8 to conclude
that the Legislature would take conduct that it deems to be completely inoffensive and
would then officially denominate such conduct as an “offense,” civil or otherwise. It is an
oxymoron to say that one can be found “guilty” of being inoffensive.
One might as readily praise a defendant convicted of petty larceny for not being as
guilty as one whose theft had reached the requisite threshold for grand larceny. Is there
much of a moral distinction between the grand possession of marijuana and the petty
8
George Orwell, Nineteen Eighty-Four (1949).
24
possession of marijuana? It is not a badge of honor that for the last 500 years the status of
petty larceny has been downgraded to the level of being non-felonious. A “verdict of
guilty” for the lesser or petty offense does not earn one a laurel wreath.
All of this analysis of the 2014 change in the law, of course, is intended simply to
dampen the ardor of the appellant’s “Decriminalization” protest. The difference between
the use or possession of 10 grams or more of marijuana and the use or possession of less
than 10 grams of marijuana may be important for the trial on the merits. It has absolutely
nothing to do with the antecedent issue of probable cause for a search and seizure. In this
case, moreover, the appellant was actually found to have been in possession of 52 grams
of marijuana, not less than 10 grams. The digital scale, moreover, suggests that he may
have been more than a user. The appellant is simply waving the 2014 downscaling of the
verdict and punishment as some sort of libertarian banner. One must, however, identify the
barricades. The libertarian banner may not be out of place at a trial on the merits. It is
definitely a discordant display at a suppression hearing.
There Are No Quantitative Thresholds
For Evidence To Be The Object Of A Carroll Doctrine Search
On the suppression issue which is before us, the appellant continues to try to exploit
the 2014 change in Maryland law that reduced the use or possession of less than 10 grams
of marijuana to a civil offense. He argues that the smell of marijuana in a car by a trained
officer (or by a dog) cannot be quantified as to the amount that was smelled. From this he
goes on to argue that the amount of marijuana that was smelled may have been less than
10 grams, which in and of itself is no longer a criminal offense. Therefore, his argument
25
concludes, probable cause does not exist to believe that what was smelled was evidence of
a crime. This argument fails utterly for three separate and independent reasons. In Pacheco
v. State, 465 Md. 311, 328, 214 A.3d 505 (2019), the Court of Appeals held clearly:
[F]or purposes of probable cause in the context of vehicle searches, there is no
distinction between the significance of a criminal amount of marijuana versus the
significance of a noncriminal – but still illegal – amount of marijuana.
(Emphasis supplied.)
A. An Investigative Clue Need Not Be A Legally Sufficient Case Of Guilt
The entire phenomenon of probable cause deals with investigative clues and with
heightened suspicion, not with the proof at trial of a legally sufficient case of guilt. There
is no burden of production required to proceed with a reasonable investigation. During the
investigative stage, the detection of “some” inculpatory suspicion, by any of the senses,
leads the prudent investigator reasonably to suspect that there may be “more.” That is why
the smell of marijuana in any amount in a vehicle has always led to a permitted search of
the entire vehicle, frequently including a locked trunk. We ask of a good and possibly
productive clue no more than this. We are reviewing only the reasonableness of an
investigation, not the reasonableness of a conviction.
For a reasonable Carroll Doctrine search of an automobile, two categories of things
are proper objects of the search. One of these is “contraband,” (of which much more anon).
The other is “evidence of crime.” Evidence of crime means some evidence, not legally
sufficient proof of guilt. Posit a case where the sum total of marijuana recovered from a
defendant’s car is a mere five grams. Posit further, however, the production at trial of an
additional five grams of marijuana taken from a defendant during a search incident of his
26
person or yet another five grams taken from a bag or suitcase in his possession or even an
additional five grams abandoned by him in a field or in a dumpster. The necessary 10 gram
threshold for trial purposes might easily have been met by some combination of those 5-
gram increments. The product of the Carroll Doctrine search need only have been a small
part of that ultimate totality. Even a single 5-gram increment would have been self-
evidently some “evidence” contributing to the proof of guilt. Evidence of crime is not
necessarily self-sufficient evidence of guilt.
Evidence of crime is evidence of crime in any amount. A small amount of gold dust
downstream of a mountain may set off a gold rush to the mountain. Probable cause to
believe that there was one gram of marijuana in a car would be constitutional justification
for a warrantless Carroll Doctrine search of the entire vehicle. One gram is some
“evidence.” The ultimate burden of production may be satisfied by combining various bits
of “some evidence.” “Some evidence” may be searched for upon probable cause that it
exists. The Carroll Doctrine’s “evidence of crime” requirement, therefore, contemplates
some relevant evidence (perhaps no more than a lead pointing the way to other evidence).
It does not contemplate a cache of evidence legally sufficient in and of itself to support a
trial verdict of guilty. The appellant’s argument, however, does not pursue this issue of
unquantifiable “evidence of crime” beyond intoning the familiar mantra and again waving
the libertarian banner.
In Robinson v. State, 451 Md. 94, 152 A.3d 661 (2017), Judge Watts explained that
the smelling of marijuana in any amount still constitutes probable cause to search a vehicle
for “evidence of a crime.” Even if the mere possession or use of less than 10 grams of
27
marijuana may have been decriminalized, the distribution of less than 10 grams of
marijuana remains a crime as does driving under the influence of less than 10 grams of
marijuana. At 451 Md. 133-34, Judge Watts explained:
Despite the decriminalization of possession of less than ten grams of marijuana, the
odor of marijuana remains evidence of a crime. The odor of marijuana emanating
from a vehicle may be just as indicative of crimes such as the possession of more
than ten grams of marijuana, possession of marijuana with the intent to distribute,
or the operation of a vehicle under the influence of a controlled dangerous substance,
as it is of possession of less than ten grams of marijuana. In short, possession of ten
grams or more of marijuana, crimes involving the distribution of marijuana, and
driving under the influence of a controlled dangerous substance have not been
decriminalized in Maryland, and, thus, the odor of marijuana emanating from a
vehicle provides probable cause to believe that the vehicle contains evidence of a
crime, and a law enforcement officer may search the vehicle under such
circumstances.
(Emphasis supplied.)
Chief Judge Barbera’s recent opinion for the Court of Appeals in Pacheco v. State,
465 Md. 311, 214 A.3d 505 (2019) is an invaluable teaching aid to distinguish between the
lesser amount of marijuana that must probably be present to support a warrantless search
of a defendant’s automobile and the greater amount of marijuana that must probably be
present to support the arrest of the appellant and its attendant search incident. As Chief
Judge Barbera’s opinion concluded, 465 Md. at 333:
The same facts and circumstances that justify a search of an automobile do not
necessarily justify an arrest and search incident thereto.
(Emphasis supplied.)
Probable cause to arrest Pacheco depended upon the probable presence of enough
marijuana (10 grams or more) to establish his actual guilt of a crime. The 10 grams
threshold was of critical importance for that purpose. Probable cause to conduct a
28
warrantless search of his car for evidence, on the other hand, depended upon a showing of
no such quantifiable threshold. For that lesser purpose, the 10 gram threshold was not
significant:
The facts presented by the State and credited by the hearing judge were sufficient
to establish probable cause to search the vehicle based on the presence of
contraband. However, little else was presented that addressed why this minimal
amount of marijuana, which is not a misdemeanor, but rather a civil offense, gave
rise to a fair probability that Mr. Pacheco possessed a criminal amount of marijuana
on his person.
465 Md. at 333. (Emphasis supplied.)
In the Pacheco case, as here, the police detected the smell of marijuana coming from
a vehicle. At the suppression hearing, the State argued that “the odor provided probable
cause to search both the vehicle and the defendant.” 465 Md. at 318. The Court of Appeals
rejected that equivalency. It explained that it was being called upon to examine probable
cause for two distinct law enforcement purposes:
This case gives rise to consideration of two exceptions to the warrant requirement
of the Fourth Amendment: the so-called automobile exception announced in Carroll
v. United States (1925) and the search incident to arrest exception announced in
Chimel v. California (1969).
465 Md. at 321. (Emphasis supplied.) The Court of Appeals quoted extensively from 2
Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, Sect.
3.1(b)(5th ed. 2012), p. 7:
The probable cause determinations for the automobile exception and the search
incident to lawful arrest exception are not in all respects identical. Although the
probable cause determination for each of these exceptions requires the same
quantum of evidence, each requires a showing of probabilities as to somewhat
different facts and circumstances – a point seldom made explicit in the appellate
cases. This distinction is a critical one, and there may be probable cause to search
without probable cause to arrest, and vice-versa.
29
465 Md. at 324-25. (Emphasis supplied.) The Court of Appeals went on to pose the
distinction in its own terms:
When determining whether probable cause exists for purposes of the automobile
exception, courts ask whether there is probable cause to believe the vehicle contains
contraband or evidence of a crime. However, before a person can be lawfully
arrested and searched incident thereto the focus must be on the likelihood of the
guilt of the arrestee. In the search context, the question is whether the totality of
circumstances is sufficient to warrant a reasonable person to believe that contraband
or evidence of a crime will be found in a particular place. Whereas in the arrest
context, the question is whether the totality of the circumstances indicate to a
reasonable person that a suspect has committed, is committing, or is about to commit
a crime.
465 Md. at 325. (Emphasis supplied.)
Chief Judge Barbera’s opinion went on to explain the reason for the distinction
between the probable cause necessary to search an automobile for additional evidence and
the probable cause necessary to arrest a human being:
The distinction between the two exceptions is at least in part due to the diminished
expectation of privacy that justifies the automobile exception as compared to the
unique, significantly heightened constitutional protections afforded a person to be
secure in his or her body.
465 Md. at 325-26. (Emphasis supplied.)
The latter investigative step, one wherein the 10 gram threshold is critical, involves
the actual beginning of the prosecution of an individual based on probable cause to believe
that he was actually guilty of a crime. The former step, by contrast, only justifies further
investigation to determine whether the suspected crime was ever actually committed:
Thus, the mere odor of marijuana emanating from a vehicle provides probable cause
that the vehicle contains additional contraband or evidence of a crime, thereby
permitting the search of the vehicle and its contents.
30
465 Md. at 329. (Emphasis supplied.) Probable cause to conduct a further search of an
automobile for evidence and probable cause to arrest an individual for a consummated
crime serve two very different purposes:
It does not follow, however, that because the police lawfully searched Mr. Pacheco’s
car for contraband or evidence they likewise had the right to search his person.
465 Md. at 330. (Emphasis supplied.) The probable cause that justified the Carroll Doctrine
search of Pacheco’s car was not probable cause to justify the arrest (and subsequent search
incident) of Pacheco:
They also testified to their detection of fresh burnt marijuana emanating from the
vehicle and the joint they observed in the center console. These facts, without more,
do not meet the standard for probable cause to arrest and thereby to search Mr.
Pacheco.
465 Md. at 332. (Emphasis supplied.)
The fact that in that case the probable cause of evidence being present in the
Chevrolet Malibu never necessarily crossed the new 10 gram threshold was absolutely
immaterial for Carroll Doctrine purposes. On the other hand, it could not have justified
Pacheco’s arrest and it did not. It could, however, have justified the search of his car and it
did. The latter is all that is necessary in the present case. It was, in any amount, a good clue
and that is all that the Carroll Doctrine requires for a finding of probable cause. A good
clue, to be sure, is not a legally sufficient case. Those who, like the appellant here, insist
that probable cause requires that the officer shall have smelled 10 grams or more of
marijuana are arguing that probable cause means no less than a legally sufficient case at
trial. They are imposing a trial requirement on a pre-trial investigation. They are imposing
an ultimate and heavy burden of production on an investigative clue. They may not do so.
31
B. In Any Event, It Has All Been Settled By Statute
All of this, in the last analysis, is an unnecessary and redundant argument. The 2014
change in the law that lowered the status of the use and possession of less than 10 grams
of marijuana to that of a civil offense did not stop there. It went on to settle in unequivocal
terms the search and seizure question before us here. Sect. 5-601(d) clearly provides:
The provisions of subsection (c)(2)(ii) of this section making the possession of
marijuana a civil offense may not be construed to affect the laws relating to:
1. operating a vehicle or vessel while under the influence of or while
impaired by a controlled dangerous substance; or
2. seizure and forfeiture.
(Emphasis supplied.) Q.E.D. In Maryland the search and seizure law post-2014 remains
precisely what it was pre-2014. It remains, as it always was, reasonable and constitutional.
II. Probable Cause To Search For Contraband
The Carroll Doctrine, it must not be forgotten, is a double-barreled investigative
weapon. The focus of its gunsight is two-fold. The investigative object of the search of an
automobile or automobile equivalent is not simply to discover evidence of crime. The
cross-hairs are also trained, independently and distinctly, on the discovering, seizing, and
confiscating of contraband. That, in its own right, is an independent justification for a
Carroll Doctrine search of a vehicle. Quite aside from probable cause to search for evidence
of crime, the Carroll Doctrine authorizes the police to search for contraband.
If at this point every line thus far written in the course of this opinion were to be
erased as wrongfully reasoned and if the State were to submit a binding concession that
there was not a shred of probable cause to suspect that the appellant’s Chevrolet Malibu
32
contained any “evidence of crime,” the warrantless Carroll Doctrine search under review
would still pass muster on totally separate and independent grounds. We could simply hold
that the police had probable cause to believe that the appellant’s Malibu contained
contraband, and say no more. The 10-gram threshold on the possession of marijuana has
no significance in the definition of contraband.
Lest any might for a moment think that the search for contraband is a mere
afterthought or tag-along to the Carroll Doctrine’s core purpose of searching for evidence
of crime, the reality is diametrically otherwise. The Carroll Doctrine, of course, has been
with us for 97 years. Chief Justice William Howard Taft’s opinion, however, revealed that
its more distant rumblings and its earliest energizing rationale had been marinating for a
full 135 years before 1925. From the very dawn of the Republic, warrantless searches of
wagons, boats, carts, and sleds had been constitutionally permitted in the search for
contraband. It was the search for evidence of crime that later came along as the almost
incidental afterthought. Carroll v. United States itself, 267 U.S. at 153, revisited the
pedigree:
Thus contemporaneously with the adoption of the Fourth Amendment we find in
the First Congress, and in the following Second and Fourth Congresses, a difference
made as to the necessity for a search warrant between goods subject to forfeiture,
when concealed in a dwelling house or similar place, and like goods in course of
transportation and concealed in a movable vessel where they readily could be put
out of reach of a search warrant. Compare Hester v. United States, 265 U.S. 57, 44
S.Ct. 445, 68 L.ED. 898.
Again, by the second section of the Act of March 3, 1815, 3 Stat. 231, 232, it was
made lawful for customs officers, not only to board and search vessels within their
own and adjoining districts, but also to stop, search, and examine any vehicle, beast,
or person on which or whom they should suspect there was merchandise which was
subject to duty or had been introduced into the United States in any manner contrary
33
to law, whether by the person in charge of the vehicle or beast or otherwise, and if
they should find any goods, wares, or merchandise thereon, which they had probable
cause to believe had been so unlawfully brought into the country, to seize and secure
the same, and the vehicle or beast as well, for trial and forfeiture. This act was
renewed April 27, 1816 (3 Stat. 315), for a year and expired. The Act of February
28, 1865, revived section 2 of the Act of 1815, above described, 13 Stat. 441, c. 67.
The substance of this section was re-enacted in the third section of the Act of July
18, 1866, c. 201, 14 Stat. 178, and was thereafter embodied in the Revised Statutes
as section 3061 (Comp. St. §5763). Neither section 3061 nor any of its earlier
counterparts has ever been attacked as unconstitutional.
(Emphasis supplied.)
Chief Justice Taft, 267 U.S. at 153, thus laid out the antecedent DNA of what
became the Carroll Doctrine:
We have made a somewhat extended reference to these statutes to show that the
guaranty of freedom from unreasonable searches and seizures by the Fourth
Amendment has been construed, practically since the beginning of the government,
as recognizing a necessary difference between a search of a store, dwelling house,
or other structure in respect of which a proper official warrant readily may be
obtained and a search of a ship, motor boat, wagon, or automobile for contraband
goods, where it is not practicable to secure a warrant, because the vehicle can be
quickly moved out of the locality or jurisdiction in which the warrant must be
sought.
(Emphasis supplied.)
It was this search for contraband that gave birth to the Carroll Doctrine. It behooves
us periodically to keep this proper order of seniority in mind. The search for contraband is
actually the senior partner. Judge Barbera (later Chief Judge of the Court of Appeals) wrote
for this Court in Berry v. State, 155 Md. App. 144, 176, 843 A.2d 93 (2004), as she pointed
out the dual or twin purpose of a warrantless Carroll Doctrine search of a vehicle:
The United States Supreme Court, in a series of cases harkening back almost 80
years, has recognized an exception to the warrant requirement that allows the police,
when they have probable cause to believe a vehicle contains contraband or evidence
34
of a crime, to search the vehicle for that contraband or evidence of a crime and seize
it, without a warrant.
(Emphasis supplied.)
In Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the
Supreme Court described probable cause as a “fair probability that contraband or evidence
of a crime [would] be found in the car.” (Emphasis supplied.) Wyoming v. Houghton, 526
U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) stated clearly that an officer may
search an automobile without a warrant if he has probable cause to believe it contains
evidence of a crime or contraband goods.
As Maryland has regularly applied the Carroll Doctrine over the years, it has
consistently recognized the dual purpose of the police search. In Nathan v. State, 370 Md.
648, 665-66, 805 A.2d 1086 (2002), the Court of Appeals stated clearly:
Police officers who have probable cause to believe that there is contraband or other
evidence of criminal activity inside an automobile that has been stopped on the road
may search it without obtaining a warrant.
(Emphasis supplied.)
The thorough analysis by Judge Graeff in Bowling v. State, 227 Md. App. 460, 476,
134 A.3d 388 (2016) definitively concluded that the 2014 change in Maryland law on the
possession or use of less than 10 grams of marijuana had absolutely no adverse impact on
marijuana’s continuing status as contraband:
[I]t is clear that the Maryland General Assembly intended that marijuana remain
classified as “contraband,” and that the decriminalization of small amounts of
marijuana would not affect existing case law allowing officers to search a vehicle
based upon a K-9 alert to the smell of marijuana.
35
Given this legislative history, we conclude that, although the Maryland General
Assembly made possession of less than 10 grams of marijuana a civil, as opposed
to a criminal, offense, it is still illegal to possess any quantity of marijuana, and
marijuana retains its status as contraband. Accordingly, we hold that this legislation
does not change the established precedent that a drug dog’s alert to the odor of
marijuana, without more, provides the police with probable cause to authorize a
search of a vehicle pursuant to the Carroll doctrine. Here, Diablo’s alert provided a
sufficient basis to believe that contraband would be found in the vehicle, and
therefore, it provided probable cause to search the vehicle.
(Emphasis supplied.)
In affirming Bowling v. State, the Court of Appeals in Robinson v. State, 451 Md.
94, 152 A.3d 661 (2017), was emphatic that, quite independent of any issue with respect
to probable cause to believe that evidence of crime was present in a vehicle, the distinct
and independent justification for a Carroll Doctrine search – probable cause to believe that
contraband is present in the vehicle – is completely unaffected by the decriminalization of
the possession of less than 10 grams of marijuana:
[W]e hold that a law enforcement officer has probable cause to search a vehicle
where the law enforcement officer detects an odor of marijuana emanating from the
vehicle, as marijuana in any amount remains contraband, notwithstanding the
decriminalization of possession of less than ten grams of marijuana; and the odor of
marijuana gives rise to probable cause to believe that the vehicle contains
contraband or evidence of a crime. Simply put, decriminalization is not synonymous
with legalization, and possession of marijuana remains unlawful.
(Emphasis supplied.) 451 Md. at 99.
After reminding us that “marijuana remains contraband, which is subject to seizure,”
451 Md. at 107, the Court of Appeals resoundingly reaffirmed our holding in Bowling that
probable cause to search for contraband is a separate and independent justification for a
Carroll Doctrine search:
36
The Court of Special Appeals also examined case law from the Supreme Court and
other jurisdictions and concluded that the automobile exception to the warrant
requirement is not limited to where there is probable cause to believe there is
evidence of a crime in a vehicle; rather, the Court of Special Appeals determined
that “a search is permitted when there is probable cause to believe that the car
contains evidence of a crime or contraband. The Court of Special Appeals explained
that marijuana in any amount remains contraband – i.e., goods that are unlawful to
possess. As such, in Bowling the narcotics dog’s alert provided probable cause to
believe that contraband would be discovered in the vehicle irrespective of the
decriminalization of possession of less than ten grams of marijuana.
(Emphasis supplied.) 451 Md. at 117-18.
Probable cause to search for and to seize contraband is by no means synonymous
with probable cause to arrest the defendant for committing a crime:
The Supreme Court’s use of the phrase “contraband or evidence of a crime”
demonstrates that the terms “contraband” and “evidence of a crime” have different
meanings. In our view, “contraband” means goods that are illegal to possess,
regardless of whether possession of the goods is a crime. The definition of
“contraband” that we adopt is warranted by the Supreme Court’s conclusion in
Carroll that a law enforcement officer can search a vehicle based on probable cause
to believe that the vehicle’s contents are contraband, even if the law enforcement
officer cannot arrest the driver.
(Emphasis supplied.) 451 Md. at 128.
The standard definition of “contraband” fully supported the reasoning of the Court
of Appeals:
The conclusion that the terms “contraband” and “evidence of a crime” are not
synonymous is supported by the plain meaning of the word “contraband.”
Significantly, the words “crime” and “criminal” do not appear in the definitions of
“contraband” in both Black’s Law Dictionary and Merriam-Webster. Black’s Law
Dictionary defines contraband, in relevant part, as “goods that are unlawful to
import, export, produce, or possess.” Contraband, Black’s Law Dictionary (10th ed.
2014). Similarly, Merriam-Webster defines contraband, in relevant part, as “goods
or merchandise whose importation, exportation, or possession is forbidden.” These
definitions support the conclusion that marijuana in any amount constitutes
contraband.
37
(Emphasis supplied.) 451 Md. at 128-29. As the Court of Appeals made clear at 451 Md.
133:
[T]he term “contraband” includes more than items or goods that are criminal to
possess, but may also include items or goods that are simply illegal to possess.
The fact that the amount of marijuana that is smelled is small has absolutely no
effect on its status as contraband or on its power to generate probable cause:
Rather than cabining our holding to the requirement that the odor must be strong or
overwhelming, we conclude that the odor of marijuana provides probable cause to
search a vehicle. [M]arijuana in any amount, no matter how small, is contraband;
accordingly, the odor of marijuana constitutes probable cause to search a vehicle. In
other words, for purposes of probable cause, there is no distinction between the
significance of a criminal amount of marijuana versus the significance of a
noncriminal – but still illegal – amount of marijuana.
(Emphasis supplied.) 451 Md. at 130. Robinson v. State, 451 Md. at 137, also concluded:
[W]e hold that a law enforcement officer has probable cause to search a vehicle
where the law enforcement officer detects an odor of marijuana emanating from the
vehicle, as marijuana in any amount remains contraband.
(Emphasis supplied.)
Nowhere in the appellant’s argument, however, is there so much as a mention of
marijuana’s dual identity – its identity as contraband as distinct from its identity as
evidence of crime. What the appellant does not challenge would be, ipso facto, proof of the
case against him.
The Plenitude Of Probable Cause
As Chief Judge Barbera pointed out in State v. Johnson, 458 Md. 519, 535, 183
A.3d 119 (2018) (quoting District of Columbia v. Wesby, 583 U.S. , 138 S.Ct. 577, 199
L.Ed.2d 453 (2018)), “probable cause is not a high bar.” The probable cause to justify the
38
warrantless Carroll Doctrine search of the appellant’s Chevrolet Malibu in this case was,
like Portia’s quality of mercy, “twice blest.”9 The probable cause to search the Malibu for
evidence of marijuana-related crimes was abundant. That alone satisfied the Carroll
Doctrine. Quite independently, the probable cause to search the Malibu for any amount of
contraband, to wit, any amount of marijuana, was also abundant. That alone also satisfied
the Carroll Doctrine. In terms of the Carroll Doctrine’s authorizing of the police
warrantlessly to search a vehicle for evidence of crime or contraband, it is as if the 2014
change in the law of Maryland had never occurred. There is no way that the Carroll
Doctrine’s probable cause requirement was not satisfied in this case. It was, indeed, “twice
blest.”10
III. The Malibu’s Mobility
As a separate and distinct sub-contention, the appellant argues that the Carroll
Doctrine was violated because the Malibu, when searched, was not sufficiently mobile to
justify a warrantless search. Curiously, he constructs this sub-contention completely on the
authority of the Supreme Court opinion of Coolidge v. New Hampshire, 403 U.S. 443, 458-
63, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) and a very early decision of this Court, Humphrey
v. State, 39 Md. App. 484, 386 A.2d 1238 (1978), that expressly followed Coolidge.
Our first and immediate response is to dispose of Coolidge v. New Hampshire
summarily. If it were necessary to do so, we would not hesitate to distinguish this case
9
William Shakespeare, The Merchant Of Venice, Act 4, Scene 1.
10
Indeed, the appellant never expressly challenged the existence of probable cause to
conduct a Carroll Doctrine search of the Malibu for contraband.
39
from Coolidge in half a dozen ways. It is not necessary to do so, however, and this opinion
is already unduly long.
What the appellant gives us from Coolidge is not in any way authoritatively binding
Supreme Court law. It is simply a part of Justice Stewart’s plurality opinion, Part II B at
403 U.S. 458-63. Coolidge is, to be sure, a tangled labyrinth of overlapping plurality,
concurring, and dissenting opinions in the course of six written opinions. That is why it
must be approached sensitively. Justice Stewart’s discussion of the Carroll Doctrine
garnered four votes, his own and those of Justices Brennan, Marshall, and Douglas. Indeed,
the Coolidge opinion itself formally acknowledged this less than binding status of Part II-
B of the plurality opinion. “Parts II-A, II-B, and II-C of this opinion are joined only by Mr.
Justice Douglas, Mr. Justice Brennan, Mr. Justice Marshall.” 403 U.S. at 445, n.**.
In Humphrey v. State, Judge Morton’s opinion for this Court relied directly on that
plurality opinion. “In this factual posture we are persuaded that the reasoning employed by
Justice Stewart in Coolidge v. New Hampshire is also appropriate to the case sub judice.”
The Humphrey opinion then went on to quote 18 lines of the Coolidge plurality opinion
verbatim. 39 Md. App. at 493. The Humphrey rationale was based exclusively on Coolidge.
The appellant has cited not a single case other than Coolidge and Humphrey where
the Carroll Doctrine was held to have been violated because of the alleged non-mobility of
the searched vehicle. Under the circumstances, we decline to indulge this sub-contention
further.11
11
We breach our resolution not to indulge this sub-contention further only to cite Bell
v. State, 96 Md. App. 46, 54, 623 A.2d 690 (1993):
40
IV. The Special Problem Of Scope
In his third and final sub-contention, the appellant raises the issue of scope. The
prime directive of the Fourth Amendment is that no search or seizure must ever be
excessive in scope. As we implement that prime directive, our guiding principle is:
THE PERMITTED SCOPE OF ANY SEARCH IS WHATEVER IS
NECESSARY TO SERVE THE PURPOSE OF THAT SEARCH – BUT
NOTHING MORE.
The appellant contends that once the police in this case discovered 52 grams of
marijuana along with a digital scale under the driver’s seat of the appellant’s Malibu, they
had completely served the purpose of their Carroll Doctrine search and they were obligated,
at that point, to terminate the search. The continuing search that produced the ammunition,
the appellant contends, was therefore excessive in scope and should have compelled the
suppression of the ammunition. The appellant misreads our guiding principle.
In order to determine what is necessary to serve the purpose of a search, one must
first identify the purpose of the search. In the context of the Carroll Doctrine, it is the object
of the phrase “probable cause to believe” that defines the purpose of the permitted search.
A parked car containing possible narcotics in a zone of high narcotics activity was
a goose waiting to be plucked. At the very least, it was a repository of possible
inculpatory evidence that would have been long gone before the police team could
secure a search warrant.
(Emphasis supplied.) The Malibu was abandoned by the appellant on Lamplighter Ridge,
an area that was described by Detective Clarke as being a “high-crime drug area” consisting
of townhouses. The detective explained that the police “receive several CDS complaints
on a daily basis” from residents and community managers. In terms of its exigent
vulnerability, the Malibu was, indeed, “a goose waiting to be plucked.”
41
If there is probable cause to believe that certain “evidence of crime” or a certain type of
“contraband” is somewhere in the vehicle, the police are permitted to search anywhere in
the vehicle that such “evidence of crime” or such “contraband” might be found including
a locked trunk. The ever-present constraint is, “But don’t look anywhere else.” If looking
for a stolen diamond ring, look everywhere. If searching an automobile for stolen truck
tires, on the other hand, look everywhere that such truck tires could be, but don’t look in
the glove compartment. A ready guideline that we commend for general use would be:
DON’T LOOK FOR AN ELEPHANT IN A MATCHBOX. Looking in the glove
compartment would be, by definition, excessive in scope because it would have been more
than was necessary to serve the purpose of that search, to wit, the search for an elephant.
As the appellant here misreads those general guidelines, his self-serving version of
the applicable constraints seems to be, “If you have probable cause to search the Malibu
for marijuana, once you find some, be satisfied. Terminate the search and do not look for
more.” There is, however, no such constraint. The purpose of a given search is to find ALL
of a sought-after object, not merely SOME of it. If the object of the search is marijuana,
the police may continue to search any part of the vehicle, including a locked trunk, where
even more marijuana might be hidden. The permitted purpose of the Carroll Doctrine
search is to recover all of the designated evidence of crime and all of the designated
contraband that is probably to be found somewhere in that vehicle. As the Supreme Court
pointed out in Wyoming v. Houghton, 526 U.S. 295, 301, 119 S.Ct. 1297, 143 L.Ed.2d 408(1999):
42
If probable cause justifies the search of a lawfully stopped vehicle, it justifies the
search of every part of the vehicle and its contents that may conceal the object of
the search.
(Emphasis supplied.) See also United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157,
72 L.Ed.2d 572 (1982).
The appellant seeks misguided solace in two cases: 1) Bell v. State, 96 Md. App.
46, 623 A.2d 690 (1993), affirmed by State v. Bell, 334 Md. 178, 638 A.2d 107 (1994)
from Maryland, and 2) California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L.Ed.2d
619 (1991) from the Supreme Court. Neither, however, serves the appellant’s purpose.
A. Bell v. State
In Bell v. State, 96 Md. App. at 53-54, the police developed good probable cause to
make a warrantless search of the appellant’s vehicle for a single white vial containing white
powder. The Court of Special Appeals described the limited scope of the search that was
permitted:
We have no difficulty upholding the initial and limited police entry into the
automobile to retrieve the vial containing white powder. It was investigative in
nature and was based upon probable cause.
96 Md. App. at 53. (Emphasis supplied.) The probable cause that focused on the single
white vial was described by this Court:
Ten minutes later, the appellant was again observed standing beside the open
passenger door. On that occasion, he dropped what appeared to be “a vial, a white
object” into the window opening. Looking through the transparent window of the
automobile, as was their right, the police observed on the floor a vial containing
white powder. It was inside the window where the appellant had just been seen
throwing something in.
43
96 Md. App. at 53. (Emphasis supplied.) This Court made very clear the limited nature of
the Carroll Doctrine search that was permitted:
Under the totality of the circumstances, the police had, we hold, the necessary
probable cause required by the Carroll Doctrine to justify a warrantless entry into
the automobile for the specific purpose of retrieving the vial of suspected cocaine.
96 Md. App. at 54. (Emphasis supplied.)
Having fully served the purpose of that limited search, the obligation on the police
was then to terminate the search and to go no further:
What followed that limited seizure was beyond the permitted scope of this particular
“automobile exception” entry. The permitted scope of a Carroll Doctrine search, of
course, is whatever is necessary to serve the purpose of that particular search. The
only probable cause asserted by the police was probable cause to believe that the
single vial observed lying on the floor in front of the passenger seat contained
contraband narcotics. Accordingly, the automobile was warrantlessly entered and
that vial was retrieved. At that point, the entire purpose that justified the warrantless
entry in the first place had been fulfilled. The police obligation, therefore, was to
terminate the search, its purpose already having been fully served. The Carroll
Doctrine does not permit further and gratuitous rummaging about.
96 Md. App. at 54. (Emphasis supplied.)
It was the clear opinion of this Court that the warrantless search should have stopped
at that point. The police had recovered not one white vial out of possibly many white vials,
but the only white vial that had ever figured in this case. It was THE white vial that the
police had seen being dropped in the car through the window. It was THE white vial the
police had observed on the floor of the car. It was THE white vial that was the sum total
of the probable cause to search the car. The purpose of that particular Carroll Doctrine
search had self-evidently been fully and completely served. Nothing else was needed. What
44
followed, a badly entangled inventory search analysis, is not pertinent to our present
analysis.
On certiorari review, the Court of Appeals agreed that the Court of Special Appeals
had been correct in holding that the probable cause established by the police had been
limited to the single vial observed on the floor of the car:
As the Court of Special Appeals noted in the instant case, the only probable cause
asserted by police was probable cause to believe that the single vial observed on the
floor of the car contained contraband narcotics. Thus, we can find no error in that
court’s limitation of the first Carroll doctrine search to the seizure of a single vial.
334 Md. at 186. (Emphasis supplied.)
The combined opinions of the Court of Appeals and the Court of Special Appeals
in this Bell case, we should note, are treacherous waters and the prudent reader should be
leery about lingering too long in them. There are dangerous rip currents veering off in
unanticipated directions. The initial problem, before it metamorphosed, was that the State
broke down what should have been a single automobile search into two distinct parts, with
a separate rationale offered to support each part. The Court did not mandate such a
separation. It simply accepted it and proceeded from there. A first Carroll Doctrine search,
aimed at retrieving a single vial of white powder, first metamorphosed into probable cause
to support a warrantless arrest and then, secondly, into a post-arrest inventory search of the
automobile. More than half of the opinion was spent on rejecting the State’s reliance on an
inventory search. None of this is remotely pertinent to the present case.
A theory that might have had some pertinence to the present case was never
considered by either Court because it had not been properly preserved for appellate review.
45
The Court of Special Appeals referred to it in passing as a hypothetical possibility in some
future case but something that was not before the Court in the Bell case:
Although an argument might someday be made for extending a search such as this
based upon some almost Newtonian proposition that the discovery of some
contraband suggests the likely presence of more contraband yet to be discovered, it
is enough to note that no such argument was made by the State in this case, either
at the suppression hearing or before us.
96 Md. App. at 55. (Emphasis supplied.)
Such a hypothesis is that the search might go on as one continuous search. The only
recovery of additional evidence or contraband that was ever made in the Bell case was not
made, as with the ammunition here, in the course of some continuing Carroll Doctrine
search but it was one made in the course of an inventory of the contents of the car following
the arrest of the driver and prior to the impounding of his car. There is absolutely nothing
in the holding of the Bell case or in the facts even remotely pertinent to the case now before
us.
Our only purpose in analyzing the Bell opinion to the extent we have done so is to
negate the appellant’s erroneous reliance on a truncated section of the opinion. What that
truncated reliance by the appellant here does is to try to impose the limited observations of
the Court with respect to the first of two distinct searches as an imagined holding on a
purely hypothetical second of two distinct searches, a proposition that neither Court ever
considered because it had not been properly preserved for appellate review. The appellant
has presumed to make for both appellate courts a conclusion as to the effect that our
observations as to the first search might have had on the hypothetical second search, a
46
holding that each appellate court expressly declined to consider. As to that first of the
searches, the Court of Appeals agreed with the Court of Special Appeals:
Given the fact that the two searches were distinct, the Court of Special Appeals was
entirely correct in determining that the first search was complete upon the seizure
of the single vial.
334 Md. at 185. (Emphasis supplied.) All of which, without any consideration of the
hypothetical second search, gets the appellant nowhere. Neither Court in Bell even
considered the proposition that the State should not have broken the search of the
automobile down into two distinct and separate segments. Neither Court even considered
the possibility that what was recovered in the first search might have constituted probable
cause for a second search. Such a second search never took place. That issue was simply
not before either court.
With respect to the source of the energizing probable cause, moreover, in the Bell
case it was a solitary, easily identifiable, three-dimensional concrete object and not the
more generalized and pervasive presence of an unquantifiable amount of marijuana. To
recover all of the first is not comparable to recovering all of the second.
B. California v. Acevedo
The second and only other ostensible authority relied upon by the appellant in this
regard is California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991).
For the purpose for which the appellant cites it, California v. Acevedo is of absolutely no
pertinence. The full focus of the Supreme Court’s analysis was on the searchability of a
single paper bag placed in the trunk of an automobile, not upon the non-searchability of
the rest of the car, the manufactured proposition on which this appellant totally relies. Any
47
mention of the rest of the car was uncontroversial and was mentioned only in passing. The
full focus of the Supreme Court’s four opinions was on the change in the law that the Court
was making therein, recognizing the influence of United States v. Ross, 456 U.S. 798, 102
S. Ct. 2157, 72 L.Ed.2d 572 (1982) and then reversing its own earlier reliance on United
States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) and Arkansas v.
Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), as those cases too strictly
inhibited the warrantless searches of suitcases and other containers. None of that is at all
pertinent to the issue for which the appellant is citing Acevedo.
In Acevedo, federal narcotics agents were on the trail of a shipment of marijuana
that had arrived in the United States from Hawaii. Acevedo’s car, parked outside of an
apartment that was under surveillance, was not the focus of any investigative attention. The
exclusive focus was on a brown paper bag that was observed being carried out of the
apartment and placed in the trunk of Acevedo’s car:
At 12:30 P.M., respondent Charles Steven Acevedo arrived. He entered Daza’s
apartment, stayed for about 10 minutes, and reappeared carrying a brown paper bag
that looked full. The officers noticed that the bag was the size of one of the wrapped
marijuana packages sent from Hawaii. Acevedo walked to a silver Honda in the
parking lot. He placed the bag in the trunk of the car and started to drive away.
Fearing the loss of evidence, officers in a marked police car stopped him. They
opened the trunk and the bag, and found marijuana.
500 U.S. at 567. (Emphasis supplied.)
The probable cause was focused completely on the brown paper bag and not upon
Acevedo’s car. As a result, the warrantless search of the bag, as a container search, could
not rely on the Carroll Doctrine but had to rely on the then binding precedent of United
States v. Chadwick:
48
The court concluded that the officers had probable cause to believe that the paper
bag contained drugs but lacked probable cause to suspect that Acevedo’s car, itself,
otherwise contained contraband. Because the officers’ probable cause was directed
specifically at the bag, the court held that the case was controlled by United States
v. Chadwick rather than by United States v. Ross. Although the court agreed that
the officers could seize the paper bag, it held that, under Chadwick, they could not
open the bag without first obtaining a warrant for that purpose. The court then
recognized “the anomalous nature” of the dichotomy between the rule in Chadwick
and the rule in Ross. That dichotomy dictates that if there is probable cause to search
a car, then the entire car – including any closed container found therein – may be
searched without a warrant, but if there is probable cause only as to a container in
the car, the container may be held but not searched until a warrant is obtained.
500 U.S. at 568. (Emphasis supplied.)
The great bulk of the Supreme Court’s opinion focused on what became the Court’s
retreat from the harshness of its former holding in Chadwick. The reference to the absence
of any probable cause to search the rest of Acevedo’s car was made completely in passing.
Nothing in the Acevedo opinion itself had anything remotely to do with this appellant’s
proffered principle that a good Carroll Doctrine search for some marijuana at its inception
must terminate once it has discovered some marijuana, lest the continuing search be
deemed to be excessive in scope. The appellant does not even argue the point to the
contrary or grace us with so much as a single argument found in or a single quotation from
Acevedo. It simply cites State v. Bell, 334 Md. at 186-86, and relies on the fact that the
Bell opinion made mention of Acevedo.
C. Citing Authority Versus Cherry Picking
In terms of their ultimate holdings, neither Bell nor Acevedo dealt with anything
remotely pertinent to the issue the appellant raises here. The scope issue raised by the
appellant involves an initial Carroll Doctrine search, the one here that found 52 grams of
49
marijuana underneath the driver’s seat, and then the critical question of whether the Carroll
Doctrine search might continue after that point. Neither Bell nor Acevedo involved any
such continuing Carroll Doctrine search. In Bell, the issue was whether the probable cause
that supported the initial automobile search could also justify a warrantless arrest of the
defendant and, if so, whether the impounding and the inventorying of the driver’s car could
validly follow. In Acevedo, there was no secondary or continuing search of any sort. The
issue was that of whether the single search of the brown paper bag in the trunk of Acevedo’s
car, which under the then-prevailing rule of United States v. Chadwick could not be
searched warrantlessly in its capacity as a container, could have been searched
warrantlessly under the Carroll Doctrine because, at the time of the search, it was sitting
inside an automobile. Neither the holding of Bell nor that of Acevedo, therefore, has any
remote pertinence to the continuing search issue here being raised by the appellant.
With respect to stare decisis, moreover, it is holdings that matter, not random
language. In neither case does the appellant cite Bell or Acevedo for their actual holdings.
That, of course, would engage the authoritative gears of stare decisis. The appellant simply
cherry-picks random sentences and observations from those cases. The appellant then uses
that cherry-picked material to support propositions of his own creation although that
material was not used to support such propositions in their original settings. At the very
least, this represents a reliance on ostensible but dubious authority that should cause the
prudent reader to tread with extreme caution. See State v. Wilson, 106 Md. App. 24, 39,
664 A.2d. 1 (1995) (“[S]tare decisis is ill served if readers hang slavishly on every casual
or hurried word as if it had bubbled from the earth at Delphi”).
50
D. White Vials And Brown Paper Bags As Specific Targets
In any event, the probable cause in Bell was focused exclusively on the vial of white
powder that was dropped through the window and was then observed on the floor of the
car. Once it was found and seized, the purpose of that search had been fully served and
should then have terminated. In sharp contrast, the probable cause in the present case was
that marijuana was somewhere in the Malibu. The service of that purpose would not have
been fully served until the entire car, including the trunk, had been searched for any amount
of marijuana that could be found.
The analysis would be precisely the same with respect to the brown paper bag in
Acevedo. The probable cause in that case had never focused on anything other than that
brown paper bag. Its recovery completely served the purpose of the police entry into the
trunk of the car. There was nothing else to look for. In the present case, by contrast, there
was still more marijuana to look for. Neither Bell nor Acevedo remotely suggest that in
this case there was not a purpose of the search yet being served.
E. The Purpose Was Also To Search For Contraband
In grasping for a rationale to support a non-existent scope limitation, the appellant
conveniently forgets the dual character of marijuana as not only evidence of crime but also
as contraband. The purpose of a search for contraband is to find it, to seize it, and to
confiscate it. That obviously means ALL of it that can be found anywhere in the searched
automobile, not simply SOME of it that already has been found. The purpose is to find it
all, not to find some of it. It is, moreover, a truism that more contraband may be present
than was initially suspected. In this case, the ammunition was not found after the search
51
for marijuana had been finished and terminated. It was found as the search for more
marijuana continued. Why, for instance, would a search bent on the confiscation of
contraband marijuana not wish to find and confiscate all of the marijuana? It would so
wish. A search for contraband will not be consummated by a guilty verdict at a criminal
trial. A search for contraband pursues the very different purpose of confiscating all of a
forbidden product. That purpose of the search for marijuana as contraband was, therefore,
still being served when the ammunition was found. It was within its permitted scope.
F. “Mission Accomplished” Or “Mission Still In Progress”
When the Carroll Doctrine search of the Malibu first recovered marijuana from
underneath the driver’s seat, were the police entitled at that point to go on and look under
the driver’s side panel, where the ammunition was recovered? Or with the initial discovery
of SOME marijuana, had the energizing purpose of the Carroll Doctrine search been so
fully and completely accomplished that any further searching amounted to nothing more
than gratuitous rummaging about? It has been the burden of this opinion that the search of
the Malibu remained legitimately in progress. The inquiry, however, raises an interesting
question.
In terms of what it takes to serve completely and definitively the purpose of a search,
it is obviously easier for the police to search for and find a single and specifically described
physical object than it is for the police to search a more generalized and non-specific
ambience for the non-quantifiable source (or sources) of the smell of marijuana. The
seizure of Bell’s single vial containing white powder or of Acevedo’s single brown paper
bag obviously represented some sort of fait accompli that the discovery of some, but not
52
necessarily all, of the aroma-producing marijuana did not. The appellant’s argument has
been to analogize the one to the other. Our sub-holding in this regard is that the analogy is
inapt.
In Bell the police had found all of the white vial there was to be found. In Acevedo
the police had found all of the brown paper bag that was to be found. In this case, they had
not yet found all of the marijuana that was to be found. The investigative search in this case
remained in constitutional progress until the search for any possibly remaining marijuana
had been completed. It was from start to finish a constitutional Carroll Doctrine search.
There was no scope violation.
V. Conclusion
We conclude as we began. This appellant’s omnibus contention and numerous sub-
contentions to the contrary notwithstanding, the Carroll Doctrine’s status as a well-settled
exception to the Fourth Amendment’s warrant requirement is alive and well.12
JUDGMENT AFFIRMED; COSTS
TO BE PAID BY APPELLANT.
12
See also Moylan, “The Automobile Exception: What It Is And What It Is Not – A
Rationale In Search Of A Clearer Label,” 27 Mercer L. Rev. 987 (1976).
53
The correction notice(s) for this opinion(s) can be found here:
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/0572s21cn.pdf