THOMAS M. BUTLER, APPELLANT,
UNITED STATES, APPELLEE
Argued October 25, 2012
Appeal from the Superior Court of the District of Columbia. (CMD-7070-10).
Thomas T. Heslep for appellant.
Trevor McFadden, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Elizabeth Trosman, Benjamin Eisman, and Katherine A. Sawyer, Assistant United States Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and BELSON, Senior Judge. OPINION by Associate Judge BLACKBURNE-RIGSBY. Dissenting opinion by Associate Judge BECKWITH at page 13.
Blackburne-Rigsby, Associate Judge :
Following a jury trial, appellant Thomas Butler was convicted of two counts of unlawful possession of a controlled substance (marijuana and amphetamine), in violation of D.C. Code § 48-904.01 (d) (2012 Repl.). On appeal, appellant argues that the trial court erred in denying his motion to suppress the drugs found on his person because the police lacked probable cause to arrest him and could not search him incident to arrest based solely on the smell of marijuana emanating from his vehicle. Citing primarily Minnick v. United States, 607 A.2d 519 (D.C. 1992), the government argues that the identifiable aroma of a drug by itself provides probable cause to arrest and search an individual. While we are not persuaded by the government's argument, and recognize that with the passage of the Marijuana Possession Decriminalization Amendment Act of 2014, effective July 17, 2014, see D.C. Council, Act 20-305 (Mar. 31, 2014), the calculus of probable cause in future cases such as this may change, we nonetheless conclude -- albeit not without some pause -- that the arrest and subsequent search of appellant in this case was not unconstitutional. Accordingly, we affirm.
I. Factual Background
At the suppression hearing, Metropolitan Police Department Officer David Boarman testified that at approximately 7:09 p.m. on April 21, 2010, he was driving his marked patrol vehicle on the 2300 block of Benning Road, Northeast, Washington,
D.C., when he noticed broken rear brake lights on the vehicle that appellant was driving, and subsequently initiated a traffic stop. The officer approached the passenger side of the vehicle, advised appellant of the reason for the traffic stop, and asked for his license, registration, and proof of insurance. During this interaction in which the passenger side window was lowered, Officer Boarman, who has been exposed to marijuana several hundred times, identified the strong odor of " fresh" marijuana coming from inside the vehicle. When the officer informed appellant of the smell, appellant, who was alone, replied: " Man, you don't smell no weed in here" ; " Man, you can search the vehicle" ; and " You can smell my fingers if you want to." In response, Officer Boarman asked appellant to step outside of the vehicle, brought him to the back of the vehicle, and " started conducting a search of him."
During this search, the officer in addition detected the smell of marijuana emanating from appellant's clothing -- most notably his jacket -- to which appellant claimed that he did not own the jacket, and that the person who owned the jacket had been smoking. When the officer pulled up appellant's left pant leg, he saw wedged between the sock and shoe a clear plastic bag containing a quantity of pills (later identified as amphetamine) and directly underneath, another clear bag, containing a " brown, green, weed-like substance," which field tested positive for marijuana. Following this search, Officer Boarman handcuffed appellant and searched the vehicle for more drugs, although none was ultimately found. On cross-examination, Officer Boarman confirmed that the smell of marijuana may " linger" in a closed space, and that it was " possible" any clothing confined in the closed space will then smell like marijuana.
During arguments on the motion to suppress, the government maintained that the search was lawful on the basis that " [u]nder well-established D.C. law, the plain smell of narcotics provides probable cause to conduct a search of a defendant's person, [and] that's what occurred here." When the trial court asked if the government " rel[ied] at all on the issue of consent," the government said " [n]o." Appellant's trial counsel retorted that the cases he read " all had to do with searching the car and not . . . the person[,]" and that this court had not " reached [a decision] [o]n search[ing]  a person [based] on probable cause just from a smell." The trial court credited Officer Boarman's testimony and denied appellant's motion on two grounds. First, the officer " had probable cause to conduct the search" of appellant's person based on " the smelling of the marijuana coming from the vehicle" and " the marijuana continuing to emanate from the defendant himself."  Second, when appellant told the officer that he could search the car, " as far as this [c]ourt is concerned, that was consent to search the defendant and to search the car."  Appellant's case
proceeded to trial, where he was found guilty of two counts of possession. This appeal followed.
On appeal, appellant argues that the trial court should have suppressed the drugs found on his person because the police lacked probable cause to arrest him, and conducted an evidentiary search in violation of the Fourth Amendment. Abandoning its position in the trial court that the smell of marijuana provided probable cause to search appellant's person, the government now argues on appeal that the smell of marijuana alone provides probable cause ...