ANTHONY BARRETT v. STATE OF MARYLAND
Court of Special Appeals of Maryland, Graeff, Nov. 29, 2017,
Odor of Marijuana – A police officer “who has reason to believe that an individual is in possession of marijuana has probable cause to effectuate an arrest, even if the officer is unable to identify whether the amount possessed is more than 9.99 grams.”
Facts:
In 2014, Detectives Brian Salmon and Jason Leventhall observed a vehicle with a cracked windshield occupied three times.
The detectives initiated a traffic stop of the vehicle. As the detectives exited their vehicle and approached the driver’s side of the stopped vehicle, Detective Salmon detected a “strong odor” of “burnt marijuana” emanating from the vehicle. Detective Leventhall approached the passenger side of the vehicle and asked Barrett, who was sitting in the front passenger seat, if there was any marijuana in the car. Barrett “freely stated that they were smoking marijuana,” and he handed Detective Leventhall “a brown hand-rolled cigar containing green plant material.”
The officers asked the driver and Barrett to exit the vehicle. When Detective Salmon walked over to Barrett, he could smell “the strong odor of marijuana coming from Barrett and inside the car,” but could not tell the quantity of marijuana based on the odor alone.
Barrett was searched and a handgun was recovered from inside of his pants.
At trial, Barrett challenged his search and lost.
Barrett was convicted of wear/carry/transport a handgun on person as well as wear/carry/transport a handgun in a vehicle. Barrett was then sentenced for both.
Barrett appealed, arguing that he was illegally searched. He also argued that he should not have been sentenced for both wear/carry/transport crimes.
Held:
The Court of Special Appeals held that the search was legal, but that Barrett only should have received one sentence for w/c/t.
Warrantless Searches- Searches without a search warrant are considered “unreasonable”/illegal under the Fourth Amendment unless an exception applies
Warrantless Searches- Common exceptions to the search-warrant requirement:
– Frisk
– Consent
– Search Incident to Arrest
– Community Caretaking (including inventory)
– Exigent Circumstances (including hot pursuit)
– Carroll (probable cause vehicle search)
Warrantless Searches – There is NO “probable cause to search a person” exception to the warrant requirement
Frisk- Odor of marijuana from a vehicle does not justify a frisk of an occupant unless additional facts suggest that an occupant is armed and dangerous
Search Incident to Arrest – After an arrest, police may search: 1) the person of the suspect and 2) the area in the suspect’s immediate control
Note: If the suspect is removed from the area, they no longer have control of that area and it cannot be searched incident to arrest
Warrantless Arrest – Police may arrest with probable cause of “even a very minor criminal offense in his presence.”
From the Case: Police had probable cause to arrest Barrett where they smelled the odor of marijuana coming from the car, smelled it coming from Barrett, Barrett admitted that “they” were smoking marijuana, and Barrett handed police a small cigar containing suspected marijuana.
Marijuana – Despite decriminalization of small quantities of marijuana, possession of a small quantity of marijuana still suggests the presence of more marijuana as well as other related criminal activity.
From the Case: A requirement “that the police need to be absolutely sure that the amount of marijuana involved is more than 9.99 grams before they have probable cause to arrest is inconsistent with the concept of probable cause.” The odor of marijuana “may be just as indicative of crimes such as possession of more than ten grams of marijuana or possession with the intent to distribute.”
Search Incident to Arrest – A search incident to arrest must be “essentially contemporaneous” with the arrest.
From the Case: Because the police had probable cause to arrest appellant for possession of marijuana, and the arrest occurred right after the search, the search was valid as a search
incident to arrest
Practice Note: It is best to have a clear arrest and THEN perform a search incident to arrest. In cases where the suspect is clearly going to be arrested, the courts have found the order to be less critical. However, in cases where the arrest is less clear courts have frequently gone the other way and held the search illegal. Don’t gamble with your searches; arrest first and then search.
Practice Note: Additionally, it is critical that here the police had probable cause BEFORE the search incident to arrest. You cannot “bootstrap” (justify a search with the evidence that you find pursuant to the search).
Wear/Carry/Transport a Handgun – There are two separate wear/carry/transport (w/c/t) crimes: w/c/t on the person and w/c/t in a vehicle
Sentencing – At sentencing, both w/c/t crimes “merge” into a single sentence under the “rule of lenity” because it was not clear that the legislature intended two separate sentences.