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Law Digest — Md. Court of Appeals — June 30, 2022

Maryland Court of Appeals

Criminal; expert testimony: Where the trial court is satisfied that an expert has applied a reliable methodology to an adequate supply of data, it should not exclude the expert’s testimony merely because the court is concerned that the expert’s particular conclusions may be inaccurate. State v. Matthews, No. 15, Sept. Term, 2021 (filed June 22, 2022). 

Criminal; reasonable suspicion: Where law enforcement smells marijuana on a person, that odor, by itself, provides reasonable suspicion to support an investigatory detention. In re: D.D., No. 27, Sept. Term, 2021 (filed June 21, 2022). 

Criminal

Expert testimony

BOTTOM LINE: Where the trial court is satisfied that an expert has applied a reliable methodology to an adequate supply of data, it should not exclude the expert’s testimony merely because the court is concerned that the expert’s particular conclusions may be inaccurate.

CASE: State v. Matthews, No. 15, Sept. Term, 2021 (filed June 22, 2022) (Judges Getty, McDonald, Hotten, Booth, BIRAN, Wilner) (Judge Watts, dissents).

FACTS: Kirk Matthews was convicted of murder and related charges in connection with the shooting deaths of two women. Evidence collected at the crime scene indicated that the shooter used a 12-gauge shotgun. Video footage obtained from a nearby home security camera showed a person carrying a shotgun a few minutes after the shootings. The suspect’s face was indiscernible in the video.

Using a technique known as “reverse projection photogrammetry,” FBI scientists determined that the person shown carrying the shotgun was approximately 5’8” tall, plus or minus two-thirds of an inch. However, the FBI scientists noted in the report detailing their analysis and findings that, due to several variables, “the degree of uncertainty in this measurement could be significantly greater.”

Police measured Matthews’s height as approximately 5’9”. Prior to Matthews’s trial, his attorneys argued that, given the unknown degree of uncertainty that applied to the FBI’s height measurement, the jury should not be permitted to hear expert testimony concerning the FBI’s analysis. After holding a hearing on the defense’s motion, the trial court denied the motion.

The Court of Special Appeals reversed Matthews’s conviction, holding that the trial court erred in admitting the expert testimony. The intermediate appellate court reasoned that the inability of the expert witness to provide a margin of error that accounted for several potential variables rendered the height measurement unreliable and therefore inadmissible under Maryland Rule 5-702 and Rochkind v. Stevenson, 471 Md. 1 (2020).

LAW: There is no dispute in this case concerning the reliability of Meline’s methodology. Matthews does not contend that photogrammetry – and, in particular, reverse projection photogrammetry – is an unreliable technique. Indeed, photogrammetry has been an accepted technique for making measurements in photographs for many years and has been deemed reliable by many courts applying the Daubert factors.

Rather than challenging the agent’s methodology, Matthews argues that her conclusions were unreliable because she could not account for the effect of several variables on the degree of uncertainty that applied to her height measurement. Matthews fails to appreciate the distinction between uncertainty inherent in an expert’s methodology and uncertainty that applies to an expert’s conclusions following the application of a reliable methodology. Once a trial court is satisfied that an expert has applied a reliable methodology to an adequate supply of data, the court should not exclude the expert’s testimony merely because the court is concerned that the expert’s particular conclusions may be inaccurate.

The Court of Special Appeals viewed Meline’s acknowledgment that there were other variables she could not quantify that could increase the margin of error as indicative of an analytical gap in her analysis. This court fails to perceive an analytical gap in the absence of a demonstrable flaw in Meline’s logic.

Meline testified at the motions hearing that, based on the reverse projection photogrammetric analysis she conducted, she concluded that the height of the subject in the questioned image was 5’8” plus or minus two-thirds of an inch, but the plus-or-minus value could be greater based on other variables she could not quantify. There was nothing illogical about that explanation.

The trial court ruled that Meline’s expert testimony was admissible under Maryland Rule 5-702. In so doing, the court necessarily found that the testimony would “assist the trier of fact to understand the evidence or to determine a fact in issue.” This was the case despite Meline’s acknowledgment that the known margin of error of two-thirds of an inch could be significantly greater due to certain scientifically unquantifiable variables. The trial court acted within its discretion in making this finding. Further the trial court did not abuse its discretion by declining to exclude Meline’s testimony under Maryland Rule 5-403.

Judgment of the Court of Special Appeals reversed.

DISSENT: I would hold that the Court of Special Appeals correctly determined that the circuit court abused its discretion in admitting the testimony of the state’s expert witness because there was an analytical gap between the facts and data available to the expert and the opinion that the expert rendered.

Criminal

Reasonable suspicion

BOTTOM LINE: Where law enforcement smells marijuana on a person, that odor, by itself, provides reasonable suspicion to support an investigatory detention.

CASE: In re: D.D., No. 27, Sept. Term, 2021 (filed June 21, 2022) (Judges Getty, McDonald, Booth, BIRAN) (Judge Watts, concurs) (Judges Hotten, Raker, dissent).

FACTS: In 2014, the Maryland General Assembly decriminalized possession of less than 10 grams of marijuana. However, the legislature did not legalize marijuana possession. Rather, possession of less than 10 grams of marijuana currently is a civil offense punishable by fines and other remedies, and possession of more than 10 grams of marijuana remains a criminal offense.

In Lewis v. State, 470 Md. 1 (2020), this court held that the odor of marijuana on a person, without more, does not provide probable cause to believe that the person is in possession of a criminal amount of the drug. In this case, the court must decide whether the odor of marijuana, by itself, provides reasonable suspicion to support an investigatory detention.

LAW: The state argues that the Court of Special Appeals erred when it held that the odor of marijuana “cannot, by itself, provide reasonable suspicion that the person is in possession of a criminal amount of marijuana or otherwise involved in criminal activity.” The state emphasizes that the standard for reasonable suspicion is less demanding than that for probable cause. The court agrees with the state.

Put simply, a particular circumstance or set of circumstances may satisfy the reasonable suspicion standard but fall short of probable cause. That is precisely the case with respect to the odor of marijuana. Contrary to D.D.’s argument, decriminalization has not rendered the odor of marijuana free of all criminal suspicion. Rather, “the odor of marijuana remains evidence of a crime,” because the use or possession of 10 grams or more of marijuana remains a criminal offense in Maryland. In other words, partial decriminalization has reduced the level of certainty associated with the odor of marijuana on a person from probable cause that the person has committed a crime to reasonable suspicion that the person has committed a crime or is in the process of committing a crime.

It follows that a brief investigatory detention based solely on the odor of marijuana is reasonable, whereas an arrest (and a search incident to such arrest) is unreasonable if based solely on the odor of marijuana. The different outcomes make sense, given the differing levels of intrusiveness of the two Fourth Amendment events.

D.D. correctly observes that there are many wholly innocent reasons why someone might smell of marijuana. However, that does not render the odor of marijuana free of reasonable suspicion. As Terry itself demonstrates, wholly innocent conduct may provide reasonable suspicion that criminal activity is occurring or is about to occur.

D.D. nevertheless argues that Sergeant Walden lacked reasonable suspicion to believe that he was armed and dangerous before frisking him. According to the state, Walden’s decision to frisk D.D. was supported by reasonable suspicion. Among other factors, the state relies on the discovery of the weapon on J. and on Walden’s assessment of the behavior of D.D. and his companions as evasive. The court agrees with the state. As such, the gun recovered from D.D.’s waistband was the fruit of a lawful frisk, and the juvenile court correctly declined to suppress it.

Judgment of the Court of Special Appeals reversed.

CONCUR: I would hold that the odor of marijuana alone is not enough to give rise to reasonable articulable suspicion to conduct an investigatory Terry stop, but would conclude that, in this case, there was more than just the odor of marijuana that gave rise to reasonable articulable suspicion to justify the stop.

DISSENT: I respectfully dissent from both conclusions of the majority that the investigatory stop of D.D. was constitutionally justified and that the frisk of respondent was supported by reasonable suspicion that respondent was armed and dangerous. I would therefore affirm the decision of the Court of Special Appeals that evidence of the firearm recovered from respondent should have been suppressed as the fruit of an unlawful search.