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Law School Case Brief

Bailey v. State - 412 Md. 349, 987 A.2d 72 (2010)


Probable cause is a nontechnical conception of a reasonable ground of a belief of guilt. A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion. A court's determination of whether probable cause exists requires a nontechnical, common sense evaluation of the totality of the circumstances in a given situation in light of the facts found to be credible by the trial judge. Therefore, to justify a warrantless arrest the police must point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the intrusion.


Officer Rodney Lewis of the Prince George’s County Police Department was patrolling the 6800 block of Hawthorne Street in Landover, Maryland. The area was known for drug activity, though there were no specific complaints on the night in question. At approximately 11:35 P.M., while patrolling on foot, Officer Lewis spotted petitioner, Robert Bailey, standing alone on the side of the street. From the area at which petitioner was standing, Officer Lewis smelled the odor of ether – the odor was emanating from the petitioner’s body. Upon smelling the odor of ether, Officer Lewis reached over and grabbed both of petitioner’s hands and had him place them over the top of his head. Officer Lewis then conducted a search of the petitioner, which uncovered a glass vial, half-full of liquid, in the petitioner's right front pants pocket. Field tests confirmed that the liquid contained phencyclidine, more commonly known as PCP. The petitioner was subsequently taken into custody and charged with possession of a controlled dangerous substance.

At trial, petitioner moved to suppress the physical evidence recovered from the search, asserting that the glass vial was the fruit of an illegal search and seizure under the Fourth Amendment, as well as the Maryland Declaration of Rights. Following a suppression hearing at which Officer Lewis was the sole witness, the trial court found that Officer Lewis had reasonable articulable suspicion to stop and question the petitioner based on the smell of ether, the petitioner's failure to respond to Officer Lewis's questions, and the petitioner's presence in a "high crime drug area with a number of complaints from citizens." The suppression court also determined that Officer Lewis conducted a valid pat-down of the petitioner for "officer safety" and that, based on the totality of the circumstances, the search and seizure were valid. Petitioner was then adjudged guilty of possession of a controlled dangerous substance, and accordingly, sentenced to 4 years in prison. The judgment was affirmed by the court of special appeals. Petitioner sought further appellate review.


Did the search and seizure of defendant violate the Fourth Amendment and the Maryland Declaration of Rights?




The Maryland Supreme Court held that the totality of the circumstances did not provide a concrete reason to associate the odor of ether with criminal activity or contraband, and, accordingly, the officer did not have probable cause to arrest the petitioner. While petitioner’s initial encounter with the officer was consensual, petitioner was seized when the officer grabbed petitioner's hands and placed them over his head. Although the officer testified that he was checking petitioner for weapons, the officer's actions demonstrated that he intended to take petitioner into physical custody. The Court found that the officer lacked the probable cause necessary to support a warrantless arrest. The officer's belief that petitioner possessed ether, based on the presence of the odor of ether, was not sufficient, as the possession of ether was not a criminal act and the surrounding circumstances did not provide a substantial basis for a suspicion that petitioner possessed contraband.

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