stating that “even if the officers’ physical actions are equivalent to an arrest, the show of force is not considered to be an arrest if the actions were justified by officer safety,” and citing cases in which force was applied to effectuate a limited Terry stop
How later courts described this case
- stating that “even if the officers’ physical actions are equivalent to an arrest, the show of force is not considered to be an arrest if the actions were justified by officer safety,” and citing cases in which force was applied to effectuate a limited Terry stop
- stating that a Terry frisk “is limited to a pat-down of the outer clothing” and its purpose is “not to discover evidence of a crime, but rather to protect the police officer and bystanders from harm by checking for weapons[.]”
- holding unlawful the seizure of a glass vial during a Terry frisk because “the incriminating nature of the object in the defendant’s pocket was not immediately apparent upon [the officer’s] initial touch of the object in the pat-down,” thus making the removal of the vial from the defendant’s pocket a “general exploratory search exceeding the permissible scope of a protective Terry frisk”
- holding that an officer could not seize what he recognized as a glass vial because “the incriminating nature of the object in the defendant's pocket was not immediately apparent upon his initial touch of the object in the pat-down”
Written by the judges who cited it.
The opinion
Dissenting Opinion by HARRELL, Judge, which BARBERA, J., Joins.
I doubt that anyone who sat on this case, whether on this Court or any court through which it passed, could identify the smell of ether before now, if at all. 1 , 2 To his credit and *388 training, 3 Officer Lewis at least appreciated the odor of ether present and emanating from Bailey 4 and associated it with a role in the life cycle of a specific illicit drug, PCP. 5
*389 The smell of ether has been described as a “unique and pungent aroma ... associated with POP,” People v. Luna, 140 Cal.App.3d 788, 790 , 189 Cal.Rptr. 792 (2nd Dist., 1983), a “sweet, chemical ... smell,” U.S. v. Rivera, 867 F.2d 1261, 1262 (10th Cir.1989), and “a distinct, if not ‘peculiar’ smell,” State v. Fisher, 283 Kan. 272 , 154 P.3d 455, 480 (2007).
Confronting that recognizable odor and drug association emanating from Bailey as he stood, glassy-eyed 6 and unre *390 sponsive, at 11:35 p.m. in the shadows alongside a townhouse in a known high drug activity area, Officer Lewis, in my opinion, had probable cause to support a warrantless arrest of Bailey and the resultant search incident of his person. The only things that could have undermined that probable cause might have been had Bailey been dressed in a hospital gown (suggesting the smell of ether may have been incident to the administration of an archaic form of anesthesia to facilitate medical treatment) 7 or a maid’s outfit (suggesting that he had been or was in the act of applying household aerosol cleaners or solvents to the interior or exterior of the townhouse). Neither hypothetical appears to be apt to the actual circumstances attested by Officer Lewis.
The Majority opinion attempts to bolster its unrealistic analysis by characterizing Bailey’s condition and circumstances as merely a series of innocuous coincidences, all benign in and of themselves (when considered separately or in isolation), amounting to no reason(s) for Officer Lewis to think something illicit was afoot. Although paying lip service to a totality of the circumstances analysis, the Majority opinion actually employs a divide-and-conquer consideration of some, but not all, of the factors available to Officer Lewis on the night in question. That is an incorrect analytical approach. See United States v. Arvizu, 534 U.S. 266, 274 , 122 S.Ct. 744, 751 , 151 L.Ed.2d 740, 750 (2002) (citing Terry v. Ohio, 392 U.S. 1, 22 , 88 S.Ct. 1868, 1880 , 20 L.Ed.2d 889, 906 (1968)). In a similar vein, the Majority opinion attempts, by mis-characterizing the State’s case here as solely premised on the odor of ether, to distinguish the many cases where the smell of ether, coupled with other indicia of suspicious activity or circumstances, was found to supply probable cause. The record *391 here, however, reviewed in a light most favorable to the State as the prevailing party below, revealed much more than the mere smell of ether:
• prior citizen complaints about the particular area experiencing high illegal drug activity;
• Bailey was standing in the shadows of the side of the townhouse at 11:35 p.m.;
• he did not respond at all to Officer Lewis’ questions whether Bailey lived in the townhouse;
• his eyes were glassy; and
• he reeked of ether.
These factors, coupled with Lewis’ training that enabled him to discern the singular smell of ether and his knowledge regarding a relationship between ether and POP, were ample cause to arrest Bailey and search his person. To conclude otherwise is to overlook the relevant principle that courts should respect an officer’s ability to draw on his or her own experience and training to draw inferences and deductions from the cumulative information available to him or her that “might well elude an untrained person.” Arvizu, 534 U.S. at 273 , 122 S.Ct. at 750-51 , 151 L.Ed.2d at 749 -50 (quoting United States v. Cortez, 449 U.S. 411, 417-18 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621, 629 (1981)).
1 have no problem affirming the judgments of the Court of Special Appeals and the Circuit Court for Prince George’s County.
Judge BARBERA has authorized me to state that she joins in this dissenting opinion.
. The term "ether” describes, in reality, not a single chemical or compound, but an entire class of organic chemical compounds, each with different compositions, but sharing certain characteristics.
. Some of the roles of ether in the drug culture have been noted in popular literary works. Recreational use of diethyl ether was portrayed in the novel Fear and Loathing in Las Vegas: A Savage Journey to the Heart of the American Dream by Hunter S. Thompson (Random House *388 1971, at 43), who compared its effects to the behavior of a "village drunkard in some early Irish novel.” It also was portrayed in the novel The Cider House Rules by John Irving (William Morrow 1985) and in the film adaptation of the same name.
. The State developed on direct examination during the suppression hearing Officer Lewis' basis to recognize the smell of ether and an association of ether with PCP:
Q. Now, officer, you said that you smelled a strong odor of ether; is that correct?
A. Yes, ma’am.
Q. Have you ever come in contact, during your five and a half years with the Prince George's County Police Department, with phencyclidine?
A. Yes, ma’am.
Q. Does phencyclidine have an odor?
A. An odor of ether.
Q. How many times have you come into contact with phencyclidine?
A. Hundreds.
Q. How many arrests have you made where phencyclidine was present?
A. Hundreds.
Q. Have you had any training during your five and a half years with respect to the odor and appearance of phencyclidine?
A. I have, ma'am.
Q. Can you detail that for Your Honor?
A. I received training in basic schools, the academy, and also follow-up classes, investigative classes, which were drug related after graduating from the academy.
. In direct examination, Officer Lewis stated:
Q. And the odor of ether that you smelled, you indicated that was about the defendant’s person, correct?
A. Yes, correct.
Q. Approximately, how far away from the defendant were you when you smelled this odor of ether?
A. Maybe just a few f[ee]t. I was able to reach out and touch him.
. The cases recognize at least two main roles that ether plays in the life cycle of PCP: (1) as a precipitating agent in the manufacturing of PCP—see Porter v. Terhune, 2006 U.S. Dist. Lexis 96690 at *20 (C.D.Cal. March 1, 2006); and (2) as an evaporating agent in the preparation of cigarettes laced with PCP—see U.S. v. Dorsey, 921 F.2d 785, 788 (8th Cir.1990); U.S. v. Brown, 871 F.2d 80, 81 (8th Cir.1989).
. The Majority opinion makes much of an obvious typographical error in the transcription of the suppression hearing testimony. During direct examination, Officer Lewis explained as follows:
Q. Have you, during the course [of] your employment, come into contact with individuals under the influence of phencyclidine?
A. Yes, I have.
Q. Approximately, how many times?
A. Hundreds.
Q. During those hundreds of times that you've come into contact with those individuals, are they characteristics that are similar to those individuals who are under the influence of phencyclidine?
A. Yes. It varies from person to person.
Q. Okay. What are some of the general characteristics of a an individual under the influence of phencyclidine?
A. Normally, they possess various strengths, sometimes they could be incoherent in reference to trying to understand if someone is saying something to them, and very glossy eyes, which the defendant had at the time.
(Emphasis added.) The next question posed by the prosecutor was as follows:
Q. Other than the defendant having glassy eyes, are there any other characteristics that the defendant had on the night that you came into contact with him that would be reminiscent of someone under the influence of phencyclidine?
A. No response once I was asking him questions.
THE COURT: I'm sorry. No response to what?
THE WITNESS: When I asked the defendant a question, I got no response from him.
BY MS. STEUART:
Q. Other than asking the defendant whether he lived where he was standing, do you recall asking him anything else?
A. No, ma’am.
(Emphasis added.)
It is clear to me that the prosecutor heard Officer Lewis say “glassy,” not “glossy,” initially and his follow up question was framed accordingly. As to when in the confrontation Lewis noticed Bailey’s glassy eyes, the State’s evidence (because it was the prevailing party below) is entitled to a reasonable inference that Lewis noted the quality of Bailey’s eyes contemporaneously with detecting the odor of ether and *390 Bailey’s unresponsiveness to questioning. The inference derives from the proximity of the two of them at the time Lewis smelled the ether and the common sense notion that Lewis likely looked at Bailey’s face at the same time.
. Ether rarely is used any longer in developed countries as an anesthesia because of its flammability and the ready availability of nonflammable alternatives.