Maryland appeals court rules ether smell doesn't equal probable cause

By chillinwill · Jan 23, 2010 ·
  1. chillinwill
    Drug search leading to conviction deemed illegal in 5-2 decision

    Having a strong body odor of ether, a solvent that smells like the drug PCP, and being in a high-crime area at night are not reason enough for a police officer to search someone, Maryland's highest court ruled.

    The Maryland Court of Appeals ruled last week that police had violated Robert Bailey's Fourth Amendment rights by illegally searching him.

    Bailey was standing in the shadows of a town house in Landover in 2006 when police approached him and asked him twice if he lived in the house, court records show. Bailey didn't answer.

    When Prince George's County police Officer Rodney Lewis came within a few feet of Bailey, Lewis smelled ether coming from Bailey. Lewis said he knew what PCP smelled like because he had come into contact with the drug hundreds of times, court records show.

    Lewis also said that Bailey appeared incoherent, a common characteristic of people who take PCP.

    Police frisked Bailey and found a glass vial of liquid PCP. He was charged and found guilty of drug possession in circuit court. The Prince George's County man has a long history of drug arrests.

    But Bailey, whose attorney could not be reached for comment, appealed on the argument that the vial should not have been entered as evidence because the police had conducted an illegal search.

    Bailey argued that the smell of ether, a legal substance, didn't provide police with probable cause to search him.

    The Court of Appeals, in a 5-2 decision, agreed with Bailey, saying the evidence was illegally obtained and ordered the state to pay for court costs.

    In a dissenting opinion, Judge Glenn Harrell criticized the majority's ruling, calling it "unrealistic." Harrell said the totality of the circumstances -- that Bailey was in an area known for high drug activity, was standing in the shadows of a house at 11:35 p.m., had "glassy" eyes, ignored questions from the police about where he lived and "reeked" of ether -- gave police probable cause to search him.

    "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," Harrell said.

    The Prince George's County Police Department did not return calls for comment.

    By: Alan Suderman
    January 20, 2010

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