By: Jared Lerner
A sniff is considered a search, according to the Court of Appeals of Maryland. Maryland’s highest appellate court ruled in favor of Terrance Jamal Grant (“Grant”) when it determined that the sniff search of his vehicle, by a police officer, following a routine traffic stop violated his Fourth Amendment rights.
At the suppression hearing, the Circuit Court for Frederick County found the following: Deputy First Class Chad Atkins (“Deputy Atkins”) observed Grant speeding and pulled him over; from the video of the traffic stop, Deputy Atkins’ head appeared to have breached the windowpane into Grant’s car; and it was unclear from the video and Deputy Atkins’ testimony as to when he smelled the odor of marijuana. The trial court denied the suppression motion, and Grant appealed to the Court of Special Appeals of Maryland, which determined, under a totality of the circumstances standard, that the stop and search were reasonable.
The standard of review of a circuit court’s denial of a motion to suppress is limited to the record of the suppression hearing, and facts are considered in the light most favorable of the prevailing party, the State. However, constitutional challenges to a search or seizure are reviewed de novo, and factual findings of the circuit court will not be disturbed unless they are clearly erroneous.
The Court of Appeals determined the initial stop, due to Grant’s speeding, and detention to be constitutional, but the case depended on when Deputy Atkins detected the odor of marijuana – before or after he breached the windowpane. The court provided a detailed Fourth Amendment analysis, culminating with a finding that Grant’s vehicle was protected from illegal searches and seizures. Next, the court determined that Deputy Atkins conducted a search when he “inserted his head into the constitutionally-protected area of [Grant’s] vehicle” without a warrant or other justification. It explained that there were no exigent circumstances that made the warrantless search reasonable.
The court determined that the exclusionary rule applied since it was unclear when Deputy Atkins observed the odor of marijuana. The State failed to meet its burden of proof by failing to show that Deputy Atkins discovered the odor of marijuana prior to breaching the windowpane. Thus, the Court of Appeals determined that the circuit court erred in denying Grant’s suppression motion.
Maryland attorneys should take note of the circumstances surrounding the Grant case. In suppression hearings for evidence obtained as a result of the detection of marijuana, it is important to identify the exact moment that the searching officer identified the odor in the car. The State must meet its burden of proof with a showing that the searching officer detected the odor of marijuana before breaching the windowpane of the defendant’s car. Without such a showing, the evidence obtained as a result of the search should be excluded.
Jared Lerner is a third-year law student at the University of Baltimore School of Law. He will graduate in May 2017 with a concentration in litigation and advocacy. He is currently working on a research paper that applies tort principles to company data breaches. Throughout law school, Jared gained practical experience in several practice areas, including trusts and estates, alternative dispute resolution, trial and appellate litigation, and administrative law. Most recently, he served as an honors law clerk at the U.S. Environmental Protection Agency in the Office of Enforcement and Compliance Assurance. Prior to law school, he attended the University of Central Florida where he earned a B.A. in May 2014. Jared can be reached at email@example.com.
 See Grant v. State, 449 Md. 1 (2016) (“[A]n officer’s detection of odors by virtue of a physical intrusion into a vehicle’s interior is also considered a ‘search’”) (citing Wayne R. Lafave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.5(c) (5th ed. 2015)).
 See Grant, 449 Md. at 15 (“The absence of a finding that Deputy Atkins detected the odor of marijuana before he inserted his head into the passenger window, the State did not satisfy its burden regarding the lawfulness of the search.”).
 Grant, 449 Md. at 7-8.
 Id. at 12.
 Id. at 13.
 Grant, 449 Md. at 14.
 Id. at 14-15.
 Id. at 15.
 Grant, 449 Md. at 16-19.
 See id.
 Id. at 19.
 Id. at 27.
 Id. at 28-30.
 Grant, 449 Md. at 29-30.
 Id. at 30.