HEADNOTE: 

Barrett v. State of Maryland, No. 530, September Term 2016. 

MARIJUANA; PROBABLE CAUSE; SEARCH INCIDENT TO ARREST 

A warrantless search of a person is reasonable under the Fourth Amendment only if it falls 

within an exception to the warrant requirement. Probable cause to believe criminal activity 

is occurring does not justify a search of a person, but it does authorize police to arrest the 

person and then search him or her incident to that arrest, even if the search occurs prior to 

the arrest. 

Despite the decriminalization of possession of less than ten grams of marijuana, a law 

enforcement 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. A requirement that law 

enforcement has 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, which requires only facts sufficient to warrant a prudent person in 

believing that an individual is committing a crime. 

Circuit Court for Baltimore City 

Criminal No. 114351015 

REPORTED 

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND 

 

No. 530 

September Term, 2016 

______________________________________ 

ANTHONY BARRETT 

v. 

STATE OF MARYLAND 

______________________________________ 

 Graeff, 

Reed, 

Friedman, 

JJ.

______________________________________ 

Opinion by Graeff, J.

______________________________________ 

 

 Filed: November 29, 2017 
Following a bench trial in the Circuit Court for Baltimore City, Anthony Barrett, 

appellant, was convicted of the following crimes: possession of a firearm by a prohibited 

person; wearing, carrying, or transporting a handgun on the person; and wearing, carrying, 

or transporting a handgun in a vehicle. The court sentenced appellant on the conviction for 

possession of a firearm to five years of imprisonment, all suspended but time served, and 

three years of imprisonment for each of the two convictions for wearing, carrying, or 

transporting a handgun.1

On appeal, appellant presents two questions for this Court’s review, which we have 

reordered and rephrased slightly, as follows: 

1. Did the circuit court err in denying appellant’s motion to suppress the 

evidence obtained as a result of the search of his person? 

2. Did the circuit court err in imposing separate sentences for each of the 

two convictions of wearing, carrying, or transporting a handgun? 

For the reasons set forth below, we shall vacate the sentence for wearing, carrying, 

or transporting a handgun in a vehicle and otherwise affirm the judgments of the circuit 

court. 

FACTUAL AND PROCEDURAL BACKGROUND 

On November 24, 2014, Detectives Brian Salmon and Jason Leventhall, members 

of the Baltimore City Police Department, were on patrol in a marked SUV. 

 

1 The sentence for possession of a firearm was to be served concurrently to the 

sentence imposed for an unrelated conviction. The sentences for wearing, carrying, or 

transporting a handgun were concurrent to each other, but consecutive to a sentence 

imposed for a second, unrelated conviction. 
2

Detective Salmon had encountered the odor of burnt marijuana hundreds of times, and he 

was accepted at the suppression hearing as an expert in the “sale, packaging and 

recognition” of marijuana.2

 

Detective Salmon saw a Honda Accord with an approximately foot-long crack in 

the front windshield. He had stopped the same vehicle the previous month for the same 

violation (cracked windshield), and he gave the driver of the vehicle at that time, appellant, 

a verbal warning and told him to get the windshield fixed. When the officers passed the 

vehicle on November 24, they “immediately smelled the strong odor of marijuana.” 

The detectives initiated a traffic stop of the vehicle, which was occupied by three 

people. As the detectives exited their vehicle and approached the driver’s side of the 

stopped vehicle, Detective Salmon detected a “strong odor” of “burnt marijuana” 

emanating from the vehicle. Detective Leventhall approached the passenger side of the 

vehicle and asked appellant, who was sitting in the front passenger seat, if there was any 

marijuana in the car. Appellant “freely stated that they were smoking marijuana,” and he 

handed Detective Leventhall “a brown hand-rolled cigar containing green plant material.”3

 

The officers asked the driver and appellant to exit the vehicle. When 

Detective Salmon walked over to appellant, he could smell “the strong odor of marijuana 

coming from [appellant] and inside the car,” but he was unable to discern from the odor 

the quantity of suspected marijuana. 

 

2

 The suppression hearing in this case proceeded simultaneously with the bench trial. 

3 The police later determined that the cigar contained 0.37 grams of marijuana. 
3

Detective Salmon then searched appellant. He recovered a loaded 9-millimeter 

handgun from appellant’s pants.4 At that time, appellant was placed under arrest. As 

Sergeant John Landsman transported appellant to the police station, appellant offered “to 

make a deal for getting an AK-47 in exchange for being released.” At the station, appellant 

gave a recorded statement, in which he admitted that he “got caught with a handgun.” 

At the conclusion of all the evidence, which included evidence that the gun seized 

was operable and met the definition of a firearm under Maryland law, the court heard 

argument on the defense motion to suppress. The State argued that, based on the odor of 

marijuana and appellant’s actions in handing the officer “a blunt of some sort,” Detective 

Salmon had the right to search, to pat-down appellant, who possibly had additional 

contraband on his person or in the vehicle. Defense counsel argued that appellant’s 

“admittance of [a] civil offense” of possession of less than ten grams of marijuana “does 

not give rise to [ ] probable cause of criminal activity,” and therefore, “the search should 

be denied and ... the statement should be suppressed.”5

The court ultimately denied the motion to suppress. It characterized defense 

counsel’s argument to be that, because possession of less than ten grams of marijuana was 

 

4

 The officer initially stated that the gun was recovered from the “front waist area” 

of appellant’s pants. On cross-examination, he agreed with defense counsel that the gun 

was “down in his underwear,” “below his private parts,” and he reached in and recovered 

the handgun. 

5

 Defense counsel also argued that the initial traffic stop was unlawful. The circuit 

court rejected that argument, and appellant does not, for good reason, challenge that ruling 

on appeal. See Muse v. State, 146 Md. App. 395, 405 (2002) (stop to investigate cracked 

windshield of automobile reasonable under the Fourth Amendment). 
4

a civil offense, and the police did not have information that a greater quantity of marijuana 

was involved, the police did not have probable cause to search the car. The court disagreed 

with that argument, noting that, pursuant to Bowling v. State, 227 Md. App. 460, cert. 

denied, 448 Md. 724 (2016), the smell of marijuana gave the detectives probable cause to 

search the vehicle. The court stated: 

The issue becomes whether it’s reasonable for the officer to believe 

that there may be additional marijuana in the car or on the person in the car. 

That’s the analysis under [Bowling]. And the [Bowling] Court says that it is 

reasonable. So when Officer Salmon decided to pat down Mr. Barrett to see 

if he had any additional marijuana on him, as the [Bowling] Court found with 

the vehicle, this Court finds that that was reasonable. When he patted him 

down, however, he found - - he felt a sharp object and he recovered that 

object from his person. That object turned out to be a handgun. 

The Court finds nothing - - no - - the Court does not find any violation 

of the Fourth Amendment under the facts of this case. The Court finds the 

testimony of the officers to be credible. So as to the suppression of the 

handgun, the Court denies your motion. 

At the conclusion of the trial, the circuit court convicted appellant of the weapons 

charges. This appeal followed. 

DISCUSSION 

I.

Appellant contends that the circuit court erred in denying his motion to suppress the 

handgun recovered from his person and his subsequent statement. He argues that “[t]he 

police had no justification for a warrantless search of [his] person,” and the court erred in 

relying on this Court’s decision in Bowling because that case addressed a warrantless 

search of a vehicle, whereas this case involved the search of a person. Appellant further 

argues that there was no independent justification for the search, asserting that it was not a 
5

search incident to arrest for two reasons: (1) “he had not been arrested”; and (2) this was a 

“citation offense for which he could not be arrested” because the officer could not ascertain 

the quantity of marijuana involved. 

In reviewing the grant or denial of a motion to suppress, we consider the evidence 

in the light most favorable to the party who prevails on the motion, and we accept the 

suppression court’s factual findings unless they are clearly erroneous. Bowling, 227 Md. 

App. at 466-67. Accord Norman v. State, 452 Md. 373, 386, cert. denied, ___ S. Ct. ___ 

(2017). In determining the ultimate legal conclusion regarding whether a constitutional 

right has been violated, however, “we make an independent, de novo, constitutional 

appraisal by applying the law to facts presented in a particular case.” Johnson v. State, 232 

Md. App. 241, 256 (quoting Williams v. State, 372 Md. 386, 401 (2002), cert. granted, 454 

Md. 678 (2017). 

Our analysis begins with the Fourth Amendment to the Constitution of the United 

States, which protects against “unreasonable searches and seizures.” U.S. CONST. amend. 

IV. This constitutional mandate is “applicable to the states, through the Fourteenth 

Amendment.” Grant v. State, 449 Md. 1, 16 (2016). Whether a police action is reasonable 

“is judged by balancing its intrusion on the individual’s Fourth Amendment interests 

against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U.S. 

648, 654 (1979). Accord Sellman v. State, 449 Md. 526, 540 (2016). 

The general rule is that “searches conducted outside the judicial process, without 

prior approval by judge or magistrate, are per se unreasonable under the Fourth 

Amendment – subject only to a few specifically established and well-delineated 
6

exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 

389 U.S. 347, 357 (1967)). Accord Riley v. California, __ U.S. __, 134 S. Ct. 2473, 2482 

(2014). Thus, a warrantless search of a person is “reasonable only if it falls within a 

recognized exception.” Missouri v. McNeely, 569 U.S. 141, 148 (2013). The Court of 

Appeals has listed several exceptions to the warrant requirement, including: (1) hot pursuit; 

(2) the plain view doctrine; (3) the Carroll doctrine; (4) stop and frisk; (5) consent; (6) 

exigent circumstances; and (7) search incident to arrest. Grant, 449 Md. at 16, n.3 (2016). 

In denying the motion to suppress here, the circuit court appeared to rely on this 

Court’s decision in Bowling. In that case, this Court upheld a warrantless search pursuant 

to the automobile exception, sometimes referred to as “the Carroll doctrine,” Carroll v. 

United States, 267 U.S. 132 (1925), which allows the police to conduct a warrantless search 

of a vehicle based on probable cause to believe that the vehicle contains contraband or 

evidence of a crime. 227 Md. App. at 472-73.6 We noted that the Maryland appellate 

courts consistently have held that the odor of marijuana emanating from a vehicle provides 

probable cause for the police to conduct a warrantless Carroll doctrine search of a vehicle. 

Id. at 469. In Bowling, 227 Md. App. at 476, we determined, and the Court of Appeals 

subsequently held in Robinson v. State, 451 Md. 94, 137 (2017), that this precedent 

remained good law, despite recent legislation that decriminalized possession of less than 

ten grams of marijuana. 

 

6

 The Carroll doctrine exception, which allows the warrantless search of a vehicle 

based on probable cause, is based on “the exigencies associated with the mobility of a 

vehicle, and the diminished expectation of privacy with regard to a vehicle.” Fair v. State, 

198 Md. App 1, 11 (2011) (quoting State v. Cabral, 159 Md. App. 354, 372-73 (2004)). 
7

As appellant notes, however, the issue here does not concern the propriety of the 

search of the vehicle, and therefore, the automobile exception to the warrant requirement 

cannot justify the search. Rather, the issue in this case involves the propriety of the search 

of appellant’s person. In that regard, the Supreme Court has never held, unlike in the 

context of a search of a vehicle, that there is a “probable cause to search a person” exception 

to the warrant requirement. For a warrantless search of a person to be reasonable under 

the Fourth Amendment, the State must show an exception to the warrant requirement, such 

as consent, exigent circumstances, reasonable suspicion to conduct a protective frisk, or a 

search incident to an arrest based on probable cause. 

The State argued in its brief that the search here was justified on either of the latter 

two grounds. With respect to a protective frisk, the Supreme Court held in Terry v. Ohio, 

392 U.S. 1, 27 (1968), that the police may conduct a limited frisk of a person who has been 

stopped based on reasonable suspicion that the person is armed and dangerous. After the 

briefs were filed in this case, however, the Court of Appeals held that the odor of marijuana 

emanating from a vehicle does not, by itself, justify a frisk of an occupant of that vehicle, 

but rather, a frisk is proper only if, “in addition to the odor of marijuana, another 

circumstance or other circumstances are present giving rise to the reasonable articulable 

suspicion that an occupant is armed and dangerous.” Norman, 452 Md. at 425. At oral 

argument, the State conceded that, based on that decision, and the facts in this case, the 

search of appellant was not justified as a protective frisk. We agree. 

The State contends, however, that the circuit court properly denied the motion to 

suppress because the search was valid under the search incident to arrest exception. The 
8

United States Supreme Court has stated that it is “well accepted” that a search incident to 

arrest is an exception to the warrant requirement, noting, however, that “the label 

‘exception’ is something of a misnomer in this context, as warrantless searches incident to 

arrest occur with far greater frequency than searches conducted pursuant to a warrant.” 

Riley, 134 S. Ct. at 2482. As this Court has explained: 

[A] police officer with probable cause to believe that a suspect has or is 

committing a crime may arrest the suspect without a warrant. See Brinegar 

v. United States, 338 U.S. 160, 176 (1949). . . . Once lawfully arrested, police 

may search “the person of the arrestee” as well as “the area within the control 

of the arrestee” to remove any weapons or evidence that could be concealed 

or destroyed. United States v. Robinson, 414 U.S. 218, 224 (1973). 

Conboy v. State, 155 Md. App. 353, 364 (2004) (parallel citations omitted). 

 Appellant contends that the search should not be upheld as a valid search incident 

to arrest. In support, he gives three reasons: (1) the State did not argue this exception 

below and it was not the basis for the court’s ruling; (2) there was not probable cause to 

arrest; and (3) there was no arrest prior to the search. We will address each of these 

arguments, in turn.

A.

Alternative Grounds

We begin with appellant’s contention that we should not consider whether the 

search was proper as a search incident to arrest because the State did not raise this argument 

below, and the circuit court did not rely on the search incident to arrest exception in its 

ruling. Although appellant is correct that the search incident to arrest argument was not 

raised below, that does not preclude this Court from considering the issue. 
9

The Court of Appeals has made clear that “an appellee is entitled to assert any 

ground adequately shown by the record for upholding the trial court’s decision, even if the 

ground was not raised in the trial court,” and “if legally correct, the trial court’s decision 

will be affirmed on such alternative ground.” Unger v. State, 427 Md. 383, 406 (2012). 

Accord Elliot v. State, 417 Md. 413, 435 (2010) (“‘[W]here the record in a case adequately 

demonstrates that the decision of the trial court was correct, although on a ground not relied 

upon by the trial court and perhaps not even raised by the parties, an appellate court will 

affirm.’”) (quoting Robeson v. State, 285 Md. 498, 502 (1979)). Here, the record is 

adequately developed for us to address whether the search was valid as a search incident 

to arrest.7

B.

Probable Cause

Turning next to the issue of probable cause, appellant does not dispute that the police 

may arrest an individual if the officer “‘has probable cause to believe that an individual has 

committed even a very minor criminal offense in his presence.’” Maryland v. Pringle, 540 

U.S. 366, 370 (2003) (quoting Atwater v. Lago Vista, 532 U.S. 318, 354 (2001)). See also 

Md. Code (2001, 2008 Repl. Vol.), § 2-202(b) of the Criminal Procedure Article (providing 

that “[a] police officer who has probable cause to believe that a felony or misdemeanor is 

 

7

 We are not persuaded by appellant’s contention, made for the first time at oral 

argument, that it would be unfairly prejudicial to him for this Court to address this 

argument. The issued involved is a legal issue, and there was no ambiguity regarding the 

timing of the arrest. Detective Salmon testified that he recovered the handgun, and “at this 

time,” appellant was placed under arrest. 
10 

being committed in the presence or within the view of the police officer may arrest without 

a warrant any person whom the police officer reasonably believes to have committed the 

crime.”). He asserts, however, that the police did not have probable cause to believe that 

he was committing a crime. 

Probable cause to arrest “exists where the facts and circumstances within the 

knowledge of the officer at the time of the arrest, or of which the officer has reasonably 

trustworthy information, are sufficient to warrant a prudent person in believing that the 

suspect had committed or was committing a criminal offense.” Moulden v. State, 212 Md. 

App. 331, 344 (2013) (quoting Haley v. State, 398 Md. 106, 133 (2007)). The probable 

cause standard is “a practical, nontechnical conception that deals with the factual and 

practical considerations of everyday life on which reasonable and prudent men, not legal 

technicians, act.” Pringle, 540 U.S. at 370 (quotation marks and citations omitted). It is 

“not reducible to precise definition or quantification.” Robinson, 451 Md. at 110 (quoting 

Florida v. Harris, 568 U.S. 237, 133 S. Ct. 1050, 1055 (2013)). Rather, “[p]robable cause 

is a fluid concept – turning on the assessment of probabilities in particular factual contexts 

– not readily, or even usefully, reduced to a neat set of legal rules.” Pringle, 540 U.S. at 

370-71 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). “A finding of probable cause 

requires less evidence than is necessary to sustain a conviction, but more evidence than 

would merely arouse suspicion.” Moulden, 212 Md. App. at 344 (quoting Haley, 398 Md. 

at 133). In assessing “whether an officer had probable cause to arrest an individual, we 

examine the events leading up to the arrest, and then decide ‘whether these historical facts, 
11 

viewed from the standpoint of an objectively reasonable police officer, amount to’ probable 

cause.” Pringle, 540 U.S. at 371 (citation omitted). 

To determine whether the police here had probable cause to arrest appellant, we 

must first assess whether they had probable cause to believe that he was in possession of 

marijuana. Maryland Code (2016 Supp.) § 5-101(v) of the Criminal Law Article defines 

“possess” as “to exercise active or constructive dominion or control over a thing by one or 

more persons.” As we noted in Bowling, 227 Md. App. at 469, Maryland courts have 

consistently held that the odor of marijuana in a vehicle gives the police probable cause to 

believe that marijuana is present in the vehicle. Whether the odor of marijuana emanating 

from a vehicle provides probable cause to believe that a passenger in the vehicle exercised 

dominion and control over the suspected marijuana, i.e. was in possession of illegal drugs,

has been viewed as a different question, which has been the subject of much discussion. 

See Norman, 452 Md. at 412-415. 

This case, however, does not involve the mere odor of marijuana. Here, not only 

did the officers smell marijuana in a vehicle in which appellant was one of three occupants, 

Detective Salmon testified that he could smell the strong odor of marijuana coming from 

appellant. Moreover, when appellant was asked if there was marijuana in the car, he “freely 

admitted” that “they” had been smoking marijuana, and he handed Detective Leventhall a 

cigar. 

 In situations where the police have more information connecting an occupant of a 

vehicle to the marijuana, and there is more than merely the odor of marijuana, courts have 

found probable cause to arrest. See U.S. v. Humphries, 372 F.3d 653, 659 (4th Cir. 2004)
12 

(although the odor of marijuana provides probable cause to believe that marijuana is 

present, additional factors must be present to localize its source to a person to justify an 

arrest); Johnson v. State, 142 Md. App. 172, 191 (holding that the odor of burnt marijuana 

from within a vehicle, along with the observation of a marijuana bud on the gearshift cover, 

within arm’s reach of the passenger, provided probable cause to arrest the passenger), cert. 

denied, 369 Md. 180 (2002). 

Here, as indicated, the police not only smelled marijuana in the vehicle, they smelled 

it on appellant, and he admitted to smoking marijuana and handed the officer a cigar. Based 

on these circumstances, the police had probable cause to believe that appellant possessed 

marijuana. 

Appellant notes, however, that the Maryland General Assembly decriminalized the 

possession of less than ten grams of marijuana and made it a civil offense. 8 He argues that, 

 

8 As the Court of Appeals explained in Robinson, 451 Md. at 97-98: 

Before October 1, 2014, under Maryland law, possession of less than 

ten grams of marijuana was a misdemeanor that carried a maximum 

penalty of ninety days of incarceration and a fine of $500. See 2014 

Md. Laws. 1119 (Vol. II, Ch. 158, S.B. 364); Md. Code Ann., Crim. 

Law (2002, 2012 Repl. Vol., 2013 Supp.) § 5–601(c)(2)(ii). As of 

October 1, 2014, under Maryland law, possession of less than ten grams 

of marijuana became “a civil offense” that is punishable by 

participation in a drug education program, an assessment for substance 

abuse disorder, possible substance abuse treatment, and a fine, the 

amount of which depends on whether the violation is a first, second, or 

subsequent violation of the statute. See 2014 Md. Laws. 1119, 1124 

(Vol. II, Ch. 158, S.B. 364); Md. Code Ann., Crim. Law (2002, 2012 

Repl. Vol., 2014 Supp.) § 5–601(c)(2). 

Appellant was arrested on November 24, 2014, shortly after the law went into effect. 
13 

because the police could not tell the quantity of marijuana involved, the police did not have 

probable cause to believe that he was committing a crime. 

Although the Maryland appellate courts have not yet addressed the issue of probable 

cause to arrest an individual for possession of marijuana following the decriminalization 

of possession of less than ten grams, the Court of Appeals and this Court have addressed 

the issue of probable cause to search a vehicle and held in that context that the police are 

not required to determine the amount of marijuana involved. In Robinson, 451 Md. at 125, 

the Court of Appeals stated that “[d]ecriminalization is not the same as legalization,” and 

“[d]espite the decriminalization of possession of less than ten grams of marijuana, 

possession of marijuana in any amount remains illegal in Maryland.” Accord Bowling, 

227 Md. App. at 470. The Court of Appeals noted that other jurisdictions that had 

addressed the issue had determined that, even though possession of a small amount of 

marijuana had been decriminalized, it still suggested criminal activity. Robinson, 451 Md. 

at 122-23. See, e.g., People v. Zuniga, 372 P.3d 1052, 1060 (Colo. 2016) (although 

possession of small amount of marijuana is legal, odor of marijuana is suggestive of 

criminal activity and relevant to the probable cause determination). The Court agreed with 

that analysis and stated: 

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. 
14 

Robinson, 451 Md. at 133-34. Accordingly, the Court held that “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.” Id. at 134. 

Although the issue in Robinson addressed probable cause to search a vehicle, the 

same analysis applies to probable cause to arrest for possession of marijuana. In State v. 

Perry, 874 N.W.2d 36 (Neb. 2016), the Supreme Court of Nebraska specifically addressed 

this issue. In that case, Perry was the driver of a vehicle that was stopped for a traffic 

violation. Id. at 39. Police detected an odor of burnt marijuana from within the vehicle 

and observed the passenger holding a plastic “baggie” containing a “white rocklike 

substance.” Id. at 39-40. The passenger was arrested, and Perry was asked to step out the 

vehicle. Id. Perry was searched, and the police found ecstasy pills (a controlled substance) 

and what appeared to be crack cocaine on his person.9

 Id. Perry’s vehicle was then 

searched, and police recovered a marijuana cigarette and a firearm. Id.

The Supreme Court recognized that there was no probable cause to search a person 

exception to the warrant requirement, noting, however, that a person could be searched 

incident to arrest if the arrest was based on probable cause. Id. at 41. In addressing whether 

the officer had probable cause to believe that Perry was involved in a crime, the court stated 

that it had “consistently held that the odor of marijuana, alone or in combination with other 

 

9

 The suspected crack cocaine found on Perry was later determined to be a form of 

“fake crack cocaine, known as gank.” State v. Perry, 874 N.W.2d 36, 40 (Neb. 2016). 
15 

factors, creates probable cause for an officer to infer that one or all of the occupants of a 

vehicle had committed the crime of possessing a controlled substance,” providing probable 

cause to arrest. Id. at 45-46.10

 

The court then addressed Perry’s argument, similar to that made by appellant here, 

that, in light of Nebraska’s decriminalization of less than one ounce of marijuana, “the 

mere smell of marijuana is not sufficient probable cause that a crime is being or has been 

committed and does not justify an arrest.” Id. at 46. The court rejected that argument, 

explaining: 

Objectively, the smell of burnt marijuana tells a reasonable officer that one 

or more persons in the vehicle recently possessed and used the drug. The 

officer need not know whether the amount possessed is more than 1 ounce in 

order to have probable cause to suspect criminal activity in the vehicle. 

Id. The court noted that “probable cause does not require evidence sufficient to convict – 

only that which would lead to a reasonable inference of guilt.” Id. at 47. 

We agree with the rationale expressed by the Supreme Court of Nebraska. Pursuant 

to that reasoning, and the reasoning set forth in Robinson, 451 Md. at 133-34, we hold that 

a police officer who has reason to believe that an individual is in possession of marijuana 

 

10 The court subsequently stated, however, that the odor of marijuana was a factor 

in determining probable cause, finding that, based on the odor of burnt marijuana, the 

passenger’s non-compliance with police orders, and the passenger’s possession of a 

substance that appeared to be crack cocaine, “[a] reasonable officer with knowledge of all 

of these facts could conclude both occupants of the vehicle had knowledge of the presence 

of marijuana and the suspected cocaine and exercised dominion over both[.]” Id. at 46-47. 

Here, as explained, supra, the odor of marijuana was only one factor giving the police 

probable cause to believe appellant was in possession of marijuana. 
16 

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.11 

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, which requires only facts “sufficient to 

warrant a prudent person in believing” that an individual is committing a crime. Moulden, 

212 Md. App. at 344. Because 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, Robinson, 451 Md. at 133, the odor of marijuana here, along with appellant’s 

admission to smoking marijuana and handing the officer a cigar, gave the police probable 

cause to arrest appellant. 

C.

Timing of Arrest 

Once the police had probable cause to arrest appellant, they could search him 

incident to that arrest. Stokeling v. State, 189 Md. App. 653, 670-71 (2009), cert. denied, 

 

11 As the Court of Appeals noted in Robinson, 451 Md. at 127, the General Assembly 

did not intend, in decriminalizing possession of less than ten grams of marijuana, “to stop 

what would be right now a lawful search incident to arrest.” Id. (quoting Crim. L. 

Possession of Marijuana Civ. Offense: Hearing on S.B. 364 before the Sen. Jud. Comm., 

2014 Reg. Sess. (Md. Apr. 1, 2014)). At the legislative hearing, Senator Zirkin, one of the 

sponsors of the legislation, responded to the committee’s concern that decriminalization of 

possession of less than ten grams of marijuana would hamper the ability of police to 

conduct a search incident to arrest. He stated that, even if the police could not identify the 

quantity of marijuana when they saw “a joint or just smell[ed] the odor of marijuana,” “the 

fact that there is still a criminal amount [in the statute] permits it [search incident to arrest] 

to go forward.” Hearing on S.B. 364. 
17 

414 Md. 332 (2010). The purpose of the search incident to arrest exception is to seize 

weapons that might be used to harm the police officers and to preserve evidence that might 

otherwise be destroyed. Id. at 671. 

Appellant contends that the search in this case, which led to the discovery of the 

loaded handgun in his pants, was “not a search incident to arrest, because he had not been 

arrested.” The State does not dispute that the formal arrest here occurred after the search, 

but it argues that this fact is irrelevant. We agree with the State. 

The United States Supreme Court has made clear that a search may qualify as a 

search incident to arrest even if, sequentially, the search occurs prior to the arrest. Rawlings 

v. Kentucky, 448 U.S. 98, 111 (1980). In that case, the police had probable cause to arrest 

Rawlings when he admitted ownership of drugs found in a woman’s purse. Id. at 111. The 

police arrested Rawlings, but not until after they searched him and found $4,500 in cash 

and a knife. Id. at 101. The Court upheld the search as a valid search incident to arrest 

because “the formal arrest followed quickly on the heels of the challenged search of 

petitioner’s person,” and it was not “particularly important that the search preceded the 

arrest rather than vice versa.” Id. at 111. 

Maryland appellate courts have recognized this precedent. See, e.g., Lee v. State, 

311 Md. 642, 668- 69 (1988); Conboy, 155 Md. App. at 367-68. In addressing the requisite 

timing between the search and arrest, this Court stated that the “search incident to an arrest” 

exception to the warrant requirement is applicable as long as the search is “essentially 

contemporaneous” with the arrest. Wilson v. State, 150 Md. App. 658, 673 (2003). Accord 
18 

Lee, 311 Md. at 668-69 (search incident to arrest not precluded where search occurred prior 

to arrest where “events occurred instantly, one after the other.”). 

Here, the record is clear that the search was “essentially contemporaneous” with the 

arrest. Detective Salmon testified that he discovered the gun, and “at this time,” appellant 

was arrested. 

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. Accordingly, the trial court did not err in denying appellant’s motion to 

suppress.

II.

Appellant contends that his separate sentences for his convictions of wearing, 

carrying, or transporting a handgun on his person and in a vehicle should be merged. The

State agrees, and so do we. See Clark v. State, 218 Md. App. 230, 256 (2014) (under the 

rule of lenity, defendant’s conviction for wearing, carrying, or transporting a handgun on 

or about his person merged with his conviction for wearing, carrying, or knowingly 

transporting a handgun in a vehicle where acts were part of single transaction.) 

SENTENCE IMPOSED ON COUNT 6 

(WEARING, CARRYING, OR 

TRANSPORTING A HANDGUN IN A 

VEHICLE) VACATED. JUDGMENTS OF 

THE CIRCUIT COURT FOR BALTIMORE 

CITY OTHERWISE AFFIRMED. COSTS 

TO BE SPLIT EQUALLY BETWEEN 

APPELLANT AND MAYOR AND CITY 

COUNCIL OF BALTIMORE.