Search based on odor ruled out

Drug conviction overturned because officer searched man after smelling ether

In Prince George's County, the cops failed the smell test.

Maryland's highest court this month threw out the conviction of a man on drug charges because the arresting officer based his search and subsequent arrest on the odor of ether, an ingredient in PCP. The officer found a small, half-full glass vial of the drug in the man's pants pocket, but the court ruled that merely smelling it didn't give the officer the legal grounds to conduct the search.

The ruling further limits police in how they conduct the most routine and common of citizen stops, a practice carried out thousands upon thousands of times on the streets of Baltimore and in cities and towns across Maryland and beyond.

Called Stop and Frisk, the tactic invoked cries of zero-tolerance policing when a past Baltimore police administration made it the centerpiece of its crime-fighting strategy in 2001. By 2005, police were conducting more than 130,000 such stops a year, a practice criticized by prosecutors and even by the police union, whose president at the time dubbed them "VCR Stops," short for "Violation of Civil Rights."

Those numbers have dropped sharply under more recent police commissioners and shifting strategies, but the stops continue to irk civil rights activists and residents who complain police too often frisk young black men at random and without sufficient reason.

Police throughout the country are governed by a 1968 U.S. Supreme Court decision called Terry v. Ohio, which set the standard by which law enforcement officers can detain and search a person without a warrant. The case expanded police powers, which had required that officers demonstrate evidence of a crime before making a detention.

The court ruled under Terry that police could stop and frisk a person, "not to discover evidence of a crime, but rather to protect the police officer and bystanders from harm." That limited the stop to a search for weapons, and the court made it clear that the search was "limited to a pat-down of the outer clothing."

In police parlance, the tactic is known as a "Terry Stop" and any cop who walks or rides a beat is familiar with the term.

"It's drilled into you in the academy," said Gary McLhinney, former chief of the Maryland Transportation Authority Police Department and a longtime union chief for city cops. "It's the essence of what we do. Without a complete knowledge and understanding of Terry, not a lot of police work can go on."

Courts across the country constantly refine the do's and don'ts allowed under Terry, forcing cops to constantly adjust to subtle changes in the rules that they argue are hard to follow and are meaningless in real-life, dangerous situations on the street.

Cops look at cases such as the Prince George's smell test and say unequivocally that the cop made a righteous bust. He smelled the prime ingredient in an illegal drug, noted the man's glassy eyes, noticed that he suspiciously avoided answering a routine question and was standing an open-air drug market. Not to mention the obvious - he had drugs in his pocket.

But others say that for every one of these stops that turns up drugs, there are scores of people jacked up who are in fact innocent, who shouldn't have to suffer the injustice and humiliation of being searched on a public street.

Andrew C. White, a former federal prosecutor in Baltimore who now works as a defense lawyer, said the intricacies of a Terry stop are under constant review "because they encompass so many different factors" and deal with "what's a reasonable suspicion for a police officer to intrude into someone's life."

He said "police are faced with a myriad of different situations that in totality may or may not add up, and they've got to make the call." The court ruling, White said, "is a reflection of the sentiment that individuals do have rights, and the right not to be intruded upon by police is a fairly significant right."

Defense lawyers have long complained that instead of setting legal boundaries for cops, Terry gives police a broad license to stop and frisk anyone under the pretense the person is armed. Baltimore police have a gun squad and the detectives are trained in how to recognize whether a person might have a gun. The weight of the weapon can make people lean to one side to compensate. Cops look for bulges in shirts or pants, or a person who is wearing a winter coat on a summer day. Hand movements are studied closely. It's never one thing, but a totality of circumstances that can lead to proper probable cause for a stop.

The case in Prince George's County begins with a routine encounter. In August 2006, Officer Rodney Lewis, patrolling a street in Landover known for brisk drug sales, spotted Robert Bailey standing next to a house. The officer twice yelled to him, "Excuse me, sir, do you live there?"