In Re: Calvin S.

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In Re: Calvin S. No. 0607 September Term, 2005 HEADNOTE SEARCH AND SEIZURE - CIVIL INFRACTION - After police officers observed a minor in possession of a cigarette conduct which is prohibited by Maryland Code (2002 ), Criminal L aw Artic le, § 10-108 , and is a civil offense for which a citation may be issued the officers suspicion that the minor might be in possession of additional tobacco p roducts did not justify their frisk and search of the minor s person. Conseq uently, the court s hould have granted the minor s m otion to sup press the ev idence of illegal drugs th at the police discovered when they conducted their search. REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 607 September Term, 2005 ___________________________________ IN RE: CALVIN S. Salmon, Adkins, Meredith, JJ. Opinion by Meredith, J. Filed: August 31, 2007 This case arises out of a warrantless search of a minor, Calvin S., by officers of the Salisbury Police Department after the officers observed the 17-year old smoking a cigarette.1 Upon searching C alvin s perso n to see if he had any additional tobacco in his possession, the officers found a plastic bag containing five rocks of crack cocaine, and charged Calvin w ith narcotics violations. The C ircuit Court f or Wicom ico Coun ty, sitting as a juvenile court, denied Calvin s motion to suppress the cocaine, concluding that the search did not viola te the Fourth Amendment because the police were looking for contraband. Subsequently, the circuit court entere d a delinqu ency judgm ent against C alvin. The s ole question presented in this case is whether probable cause to believe an individual is committing a civil offense provides a constitutionally valid basis for a warrantless search of the individual s person. We answer that question in the nega tive. Accordingly, we shall reverse the judgment of the Circuit C ourt fo r Wico mico C ounty. Facts and Procedural History On Octob er 10, 20 04, at ap proxim ately 1:45 a.m., officers King and Underwood of the Salisbury Police Departm ent observ ed a young m an, Calvin S., riding his bic ycle on the wrong side of the road, without a headlight, in violation of traffic regulations for bicycles. As the officers app roached Calvin to inf orm him of the traffic violations, they noticed that he was smoking a cigarette and appeared to be under 18 years of age. In the course of a brief discussion with th e offic ers, Cal vin adm itted that h e was 1 7 years old . After confirming that 1 The use or possession of a tobacco product by a minor is prohibited by Maryland Code (2002), Criminal Law Article ( CL ), § 10-108. A violation is a civil offense CL 10-108(d), for wh ich a citation may be issued. CL § 10-108(e). Calvin was underage for lawful possession of cigarettes, the officers jointly frisked and searched Calvin for the purpose of discovering and confiscating any additional tobacco products Calvin might have had on his person. Officer King described the basis for the search as follows: [Defen se Coun sel]: So at the time that you saw, or you stopped Calvin, saw the cigarette, you wrote no citation? [Officer King ]: No. [Defense Counse l]: And at tha t point you dec ided to searc h [Calvin ] to see if he had more tobacco on his person? [Officer King ]: Yes, sir. [Defense Counsel]: Okay. Was that the sole reason for your search of him? [Officer King ]: Yes, sir. [Defense Counsel]: Okay. So, you didn t suspect him of having any weapons of any kind or being a danger to you? [Officer King ]: No. Off icer U nderwo od te stified simila rly: [Defense Counsel]: Oka y. And do you also agree with Officer King that the reason he was pulled over was he was going the wrong way down a street on a bicycle? [Officer Un derwood]: Yes, Sir. [Defense Counsel]: And did you see Calvin S. smoking? [Officer Un derwood]: Yes, I did. 2 [Defense Counse l]: Did you ask Calvin if h e had any oth er tobacco on his person? [Officer Un derwood]: Not that I rec all. [Defense Counsel]: Did you or Officer K ing ask him to volunteer any tobacco that he had on his person? [Officer Un derwood]: Not that I rec all. [Defense Counsel]: So at that point a search was initiated to see if he had more tobacco? [Officer Un derwood]: Yes, sir. [Defense Counsel]: And would you agree w ith Officer King that Calvin S. was not handc uffed -[Officer Un derwood]: That s corr ect. [Defense Counsel]: when the search took place? [Officer Un derwood]: That s corr ect. [Defense Counsel]: And would you also agree that you felt, you didn t feel that you were in danger of Calvin at that time? [Officer Un derwood]: [Defense Counsel]: violation? No, I did n ot. And there was no citation written for the bicycle [Officer Underwo od]: No, sir. He wa s verbally advised of the traffic laws by Officer King. Upon searching Calvin s front pants pocket, one of the officers found a small plastic bag containing five small rocks suspected to be crack cocaine. 3 On December 3, 2004, the State filed a juvenile d elinquenc y petition, chargin g Calvin with possession of cocaine, possession of cocaine with intent to distribute, possession of drug paraphernalia, and possession of a tobacco product by a person under the age of 18. On January 11, 2005, an adjudicatory hearing was held before the Master. The Master concluded that the State had proven all four counts in the juvenile petition beyond a reasonab le doubt, and recommended to the circuit court that Calvin be found d elinquent, subjected to electronic monitoring, and placed in a special program for juvenile delinquents. Calvin filed exception s to the Master s recommendations, and the circuit court h eld a de novo adjudicatory hearing on March 18, 2005. At the hearing, Calvin made an oral motion to su ppre ss the coc aine on th e gro und that t he obser ved civil violation spe cific ally, underage possession of tobacco products did not give the police off icers proba ble cause to conduct a warrantless search of Calvin s person. Consequently, Calvin argued, the search of his person was unreasonable under the Fourth Amendment and the court should suppress the crack cocaine as the fruit of an unconstitutional search. The circuit court held the motion to suppress sub curia . On March 22, 2005 , the court entered an order and memorandum of opinion concluding that the search was constitutional and denying the motion to suppress. Th e court found Calvin guilty of the four counts alleged in the juvenile petition, and entered a finding that Calvin was a delinquent child. On April 1, 2005, the circuit court held a disposition hearing. At the con clusion of th e hearing, th e circuit court placed Calvin on conditional 4 release with electronic monitoring, pending a placement in a juvenile facility. On April 29, 2005, C alvin file d a notic e of ap peal. Standard of Review In reviewing the denial o f a motion to suppress evidence , Maryland a ppellate cou rts are limited to the record before the circuit court at the su ppress ion hea ring. Carter v. State 367 Md. 447, 457 (2002). We consider the evidence presented at the suppression hearing, as well as all inferences reasonably drawn therefrom, in the light most favorable to the State, and [o]rdinarily, we will defer to the factual findings of the suppressio n hearin g judge . Myers v. State, 395 Md. 261, 274 (2006). As this Court recently explained: We extend great deference to the findings of the hearing court with respect to first-level findings of fact and the credibility of witnesses unless it is shown tha t the court s findings are clea rly errone ous. Daniels v . State, 172 Md. App. 75, 87 (2006) (citing Reynolds v. State, 130 Md. App. 304, 313 (1 999), cert. denied, 358 M d. 383, cert. denied, 531 U.S. 874 (20 00)). Although we grant deference to the facts found by the suppression hearing court, we review questions of law de novo. Carter , supra, 367 Md. at 457. Furthermore, [w]here, as here, [appellant] raises a constitutional challenge to a search or seizure, we must make an independent constitutiona l evaluation b y reviewing th e relevant law and applying it to the unique facts and circumstances of the case. Id. 5 Discussion I. The Motion to Suppress The parties do not dispute that the officers observed Calv in smokin g a cigarette, in violation of CL § 10-108, which provides: A minor may not ... use or possess a tobacco product or cigarette rolling paper. A minor is defined by CL § 1-101(g) as an individual under the age of 18 years. V iolation of C L § 10-1 08(c)(1) is a civil offense, for which [a] law enforcem ent officer a uthorized to make arre sts shall issue a citation.... CL § 10-108(e ). A minor who violates CL § 10-108 is subject to the procedures and dispositions provided in Title 3 , Subtitle 8A of the Co urts Ar ticle. C L § 10 -108(d ). Maryland Code (1974, 2006 Repl. Vol.), Cou rts & Judic ial Proceed ings Article ( CJP ), § 3-8A-10(l) sets forth the procedure to be followed by the Department of Juven ile Services upon no tification that a ju venile has received a citation for possession of tobacco products. Section 3-8A-10(l) provides: Citation authorized under § 10-108 of the Criminal Law A rticle Perm issible action. (1) If the intake officer receives a citation authorized under § 10-108 of th e Crimin al La w A rticle , the intak e off icer m ay: (i) Refer the child to a sm oking ces sation clinic, or o ther suitable presentation of the haz ards associa ted with tob acco use; (ii) Assign the child to a sup ervised work pro gram for not mo re than 20 hours for the first violation and not more than 40 hours for a second or subsequent violation; or (iii) F orw ard the ci tatio n to the State s Att orne y. 6 (2) The intake officer shall forwar d the citation a utho rized by § 10-108 of the Criminal Law Article to the State s A ttorney if the child fails to com ply with a smoking program referral or a supervised work program assignment described under paragraph (1) of this subsection. If the charge proceeds to a hearing and is sustained, the juvenile court can impose similar penaltie s pursu ant to C JP § 3-8 A-19 (e)(3)(ii). With respect to the role of police o fficers in en forcing C L § 10-1 08(c)(1), the s tatute provides: A law enforcem ent officer a uthorized to make arre sts shall issue a citation to a minor if the law enforcement officer has pro bable cau se to believe that the mino r is committing or has committed a violation of this sec tion. 2 CL § 10 -108(e). O nce Calv in admitted to the officers that he wa s seventeen years old, the of ficers clearly had probable cause to believe tha t Calvin w as violating C L § 10-1 08(c)(1). Th e issue bef ore us is whether the commission of a civil violation justifies a warrantless search of the suspect s person. We conclude that it does no t. Calvin contends that the officers search of his person for additional cigarettes violated his right under the F ourth Am endmen t of the Un ited States C onstitution to be free from unreasonable searches and seizures. Calvin argues that probable c ause to believe that he was committing a civil violation does not provide a constitutional basis for a warrantless 2 Citation is defined by Md. Code (1974, 2006 Repl. Vol.), Courts & Judicial Proceedings Article, § 3-8A-01(f) as the written form issued by a police officer which serves as the initial pleading against a child for a violation and which is adequate process to give th e court ju risdiction over th e perso n cited. 7 search of one s person, and therefore th e hearing c ourt erred in d enying his mo tion to suppress the cocaine. The Fourth Amendm ent provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The Supreme Court has explained that, under the protections afforded b y the Fourth Amen dment, [w]herever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures. Katz v. United States, 389 U.S. 347, 374 (1967). 3 The hearing court in this case concluded that the officers search of Calvin fell within the exigent circumstances exception to the warrant requirement, and said, in its memorandum of opinion: The Court finds that there w as probable cause f or Officers King and Underwood to believe that the Respondent was in possession of contraband, and they therefore had the right to search the Respondent s person. Given that the police had no authority to arrest or detain the Respondent for a violation of CL § 10-108, there were exigent circumstances to justify a warrantless search of th e Respo ndent. 3 As we noted in Muse v . State, 146 Md. App. 395, 402, n.7 (2002): The protections of the Fourth Amendment are applicable to the States by virtue of the Fourte enth A mend ment, see Ma pp v. Oh io, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and its provisions are construed in pari ma teria with those of Article 26 of the M aryland D eclaratio n of R ights. See Scott v. S tate, 366 Md. 121, 139, 782 A.2d 862 (2001). Constructions o f the federal amend ment by the United States S upreme Co urt are contro lling aut hority. See generally, Arkansas v. Sullivan, 532 U.S. 769, 121 S.Ct. 1876, 149 L .Ed.2d 944 (2 001). 8 The State argues that the circuit court correctly concluded that cigarettes in the possession of a minor are contraband because such possession is prohibited by law, and that the office rs were permitte d to sea rch Ca lvin s pe rson fo r additio nal con traband . Although warrantless searches are presumptively unreasonable, because the touchstone of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain exceptions. Brigham City, Utah v. Stuart, ____ U .S. ____, 12 6 S.Ct. 1943, 1947 (2006). One such exception recognized by the Supreme Court is the exigent circumstances exception, which provides that a warrantless search and seizure doe s not violate th e Fourth Amendment when law enforcement officers are faced with exigent circumstances such that there is a compelling need for official action and no time to secure a warrant. Wengert v. State, 364 Md. 76, 85 (2001) (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978)). Exigent circumstances are defined as those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police w ere to delay a search un til a warrant could be obtained. Wenge rt, 364 Md. at 85 (quoting United States v. Robertson, 606 F.2d 853, 859 (9th Cir. 1979)). Regardless of the circumstances or the applicability of an exception to the warrant requirement, however, law enforcement officers must have probable cause in order to conduct a valid search. See Longshore v. State, 399 M d. 486, 5 01 (20 07). When a defendant moves to suppress evidence allegedly obtained in violation of the Fourth Amendment, [t]he burden is on the State to establish exigent circumstances that 9 overcome the presumptive unreasonableness [of a warrantless search]. Id. In Gorman v. State, 168 Md. App . 412, 422 (2006), in the context of a w arrantless entry into a suspect s home, this Court explained the criteria for concluding that exigent circumstances justify a warrantless search. We said: The exception to the warrant requirement for exigent circumstan ces is narrow, and [a] heavy burden falls on the government to demonstrate exigent circumstances that overcome the presumptive unreasonableness of warrantless home entries. Williams v . State, 372 Md. 386, 403, 813 A.2d 231 (2002). Exigent circumstances exist when a substantial risk of harm to the law enforcement officials involved, to the law e nforcement proc ess itself, or to others would a rise if the police were to delay u ntil a wa rrant co uld be is sued. Id. at 402, 813 A.2d 231. Exigent circumstances include an emergency that requires immediate response; hot pursuit of a fleeing felon; and imminent destruction or removal of evidence. Bellamy v. State, 111 Md. App. 529, 534, 682 A.2d 1 185, cert. denied, 344 Md. 116, 685 A.2d 451 (1996). Certain factors must be considered in the determination of whether exigent circumstances are presen t: the gravity of the underlying offense, the risk of danger to police an d the com munity, the read y destructibility of the evidence, and the reasonable belief that contraband is about to be removed. Williams, 372 Md. at 403, 813 A.2d 231. Also [r]elevant to the de termina tion ... is the opportunity of the police to have obtained a warr ant. Dunnuck v. State, 367 Md. 198, 205-06, 786 A.2d 695 (2001). *** The determination of exigency is made on a case-by-case basis, considering the facts as they appeared to the officers at the time[.] William s, 372 Md. at 403, 813 A.2d 231. Id. at 422 (alterations in original). In Wallace, supra, this Court examined the criteria for a valid warrantless search of an individual, noting that, [i]f contraban d were in plain view on a person, a w arrantless 10 search could be conducted. 142 Md. App. at 684 (citing Livingston v. State, 317 Md. 408, at 412 (1989)). Cf. Cox v. State, 161 M d. App. 65 4, 660 (20 05) (police w ho stopped th e operator of a bicycle for traffic violations seized the cyclist after they observed him remove from his pocket a clear plastic bag containing gel caps suspected to be heroin). Contraband is not defined within the Maryland Crimina l Law Article. Black s Law D ictionary defines contraband as goods that are unlawful to import, export, or possess. But the State s ch aracterization of cigarettes in the possession of a minor as contraband strains the limits of statutory interpretation. CL § 10-108 does not classify tobacco products as contraband, and it contains no authorization for seizure. In various other statutes, the Maryland legislature has specifically defined th e instances in which ce rtain items, that may under other circumstances be legally used or possessed, shall be considered contra band. See Maryland Code (1985, 2001 R epl. Vo l.), Tax-P roperty A rticle ( T P ), § 12-103(b) (defining contraband tobacco products as possessed or sold in the State in a manner that is not authorized under this title or under Title 16 of the Business Regulation Article; or (2) are transported by vehicle in the State by a perso n who d oes not ha ve, in the vehicle, the records required by § 16-219 of the Business Regulation Article for the transportation of cigarettes or other tobacco products ); Maryland Code (1957, 20 05 Rep l. Vol.), Article 2B, § 1-201(a)(5) ( Any vehicle, vessel or aircraft used with the express or implied knowledge, consent or permission of its lawful owner for the purpose of violating any of the provisions of this article relating to the unlawful manufacture of alcoholic 11 beverages or which is used to tran sport, store or s ecrete illicit alcoholic beverages shall be deemed contraband[.] ). Furtherm ore, CL § 10-108 d oes not au thorize police officers to arrest minors for possession of tobacco products. Nor does it authorize officers to seize cigarettes that are in the possession of a minor or to obtain a warrant to search for evidence of a violation of the statute. The legislature has neither made possession of cigarettes by a minor a criminal offense, nor indicated in CL § 10-108 an intent that tobacco products in the possession of a minor be classified as contraband. For us to label the cigarettes in Calvin s possession contraband would b e contrary to the principles of statutory interpretati on.4 Acc ordingly, the warrantless search of Calvin s person cannot be justified on the ground that he possessed contraband in plain view of the officers. Nor can the search be justified as a legitimate stop-and-frisk unde r Terry v. O hio, 392 U.S.1 (1968). Before an officer can make a legitimate Terry stop, the officer must have reasonable, articulable grounds to believe that [the suspect] is committin g, is about to 4 The Court of Appeals has described the limits upon judicial interpretation of statutes as follows: The cardinal rule of statutory interpretation is to ascertain and effectuate the intent of the Legislature. ... [A] court may neither add nor delete language so as to reflect an intent not evidenced in the plain and unambiguous language of the statute ; nor may it con strue the statute with force d or subtle interpretations that limit or extend its application. ... [W]e analyze the statutory scheme as a whole and attempt to harmonize provisions dealing with the sam e subject so that each m ay be given e ffect. Chow v. State, 393 M d. 431, 4 43 (20 06) (cita tions om itted). 12 commit, or has committed a crime. Ransom e v. State, 373 Md. 9 9, 113 ( 2003) (Rake r, J., concurring). A confrontation between an officer and a person w ho is subjec t to being issued a citation for a civil offense does not meet the standard for a Terry stop absent some other basis to s uspect that crim inal activ ity is afoot. Moreover, even when a Terry stop is justified, the officer s right to frisk the individual is limited. In Wallace, supra, we stated that the frisk component of a stop-and-frisk pursuant to Terry authorize s the pat-do wn of th e clothing surface for the limited purpose of detecting the presence of a weapon. 142 Md. A pp. at 684 (empha sis added). Here, there was no effort m ade to justify the search as being based upon a reasonable concern for officer safety. The officers in this case expressly disavowed any notion tha t they searched Calvin for the purpo se of detec ting a wea pon. To th e contrary, both officers testif ied at the suppression hearing that they did not believe Calvin posed any danger to them at the time they initiated the search . See Ransome, supra, 373 Md. 99, 109 ( Terry requires the officer to point to specif ic and a rticulab le facts justifying his con duct. ). Cf. Graham v. State, 119 Md. App. 444, 455 (1998) (detention of passenger w as not supp orted by any articu lable concern for office r safety). Because the officers stated that their sole purpose in searching Calvin was to find more tobacco, the search did not constitute a Terry stop-and-frisk, but must instead be treated as a full-blown warrantless search requiring probable cause a nd exigent circumstan ces. In Wallace, we recog nized that, [ o]f the firm ly rooted exce ptions to the w arrant require ment, 13 a search incid ent to lawf ul arrest is the only one that authorizes a full-blown search of a person for the purpose of discovering evidence. Id. at 685. Although the officers had grounds to issue a citation to Calvin for possession of tobacco pursuant to CL § 10-108, the officers did not hav e the authority to arrest Calvin for that civil inf raction, and the State concedes, as it must, that this was not a se arch inc ident to a rrest. Cf. Swift v. State, 393 Md. 139, 157-58 (2006) (imprope r seizure of p erson wh ere there w as no prob able cause to suspect criminal con duct); Ferris v. State, 355 Md. 356, 384 (1999) (after initial purpose of traffic stop is com pleted, furthe r detention must be su pported b y reasonable, a rticulable suspicion that criminal activity was afo ot ). The State relies on Calvin s violation of CL § 10-108 as a valid basis for conducting the search of his person. We conclude, however, that the officers were not permitted to search Calvin incident to the citation issued for possession of tobacco products. The Supreme Court addressed an analogous issue in Knowles v. Iowa, 525 U .S. 113 , 115 (1 998), a case in which a police officer stopped a driver for speeding and issued the driver a citation. The officer then proceeded to conduct a full search of the vehicle, finding marijuana and drug paraphernalia. Id. The Supreme Court held that the driver s motion to suppress the drug evidence should have been granted, explicitly rejecting the argument that a search incident to citation is perm itted by the Fourth Ame ndme nt. Id. at 118. In reaching its conclusion that the warrantless search of C alvin s perso n was law ful, the circuit court relied on the decision of the Supreme Judicial Court of Maine in State v. 14 Michael M., 772 A.2d 117 9 (2001). In State v. Michael M., the court concluded that police officers pat-down search of Michael M., a juvenile whom the officers had observed smoking a cigarette, did not violate the Fourth Amendment. 772 A.2d at 1180. The officers frisked Michael M. with the purpose of searching for more cigarettes, but also recovered a butterfly knife, the posses sion of which is a crim e in M aine. Id. Michae l M. was charged w ith trafficking in dangerous knives, and he move d to suppre ss the kn ife. Id. at 1181. The district court denied the motion to s uppress, an d after enter ing a cond itional guilty plea, M ichael M . appealed. Id. The Supreme Judicial Court reasoned that, although possession of tobacco products by minors is a civil offense under Maine law, cigarettes in the hands of a minor are contraband. Id. at 1182-83. The court also concluded that exigent circumstances supported the officers warrantless search of Michael M. s person, noting that, exigent circumstances exist when an officer discovers contraband in a person s possession and the evidence might be removed, concealed, or destroyed before a warrant could issue. Id. at 1183 (citations omitted). In this case, neither probable cause nor exigent circumstances supporting the warrantless search exist. At the suppression hearing, Officer King testified: It s my personal policy and my personal belief that somebody in possession of tobacco products, sp ecifically a cigarette, there is a good ch ance that they re going to have another cigarette. They re an addictive substance and just in my own personal experience, people that carry cigarettes often have more than one. Suspicion that an individual possesses evidence of a civil violation 15 does not justify a warrantless search of the individual s person. In Wallace v. State, 142 Md. App. 67 3, 685, we said: Probable cause to believe that a person is carrying evidence does not justify a warrantless search of the person any more than probable cause to believe a home contains evidence justifies a warrantless search of a home. O nly places or things enjoying a lesser expectation of privacy, such as automobiles, are vulnerable to probable-cause-based warrantless searches for the purpose of discovering and seizing evidence of crime . (Emphasis add ed). Unlike the offense alleged in Wallac e, the offense in this case did not rise to the level of a crime. The officers were merely searching Calvin for additional evidence of the civ il violation they had already witnessed. Und er Wallace, probable cause to believe that Calvin possessed additional evidence of a civil viola tion was in sufficient to support a warrantless search of his p erson. Contrary to the hearing court s conclusion, the officers also lacked exigent circumstances to valida te the sea rch. The hearing court concluded that exigent circumstances justified the search of Calvin S. s person because the police had no authority to arrest or detain the Respondent for a violation of CL § 10-108[.] Lack of statutory authority to arrest does not constitute a reasonable basis for con ducting a warrantless sea rch of a suspect s person. Were it otherwise, every driver issued a speeding ticket would be subject to a search to explore whether the violator might be in possession of evidence of further infractions of the law. In this case, the officers candidly admitted at the adjudicatory hearing that they had no reason to believe that Calvin po sed a dan ger, or, in the words of Wenge rt, supra, 364 Md. 16 at 84 (citat ions om itted), substantial risk of harm to the persons involved or to the law enforcement process. Another factor in the exigent circumstances analysis, the gravity of the offense, also weighs agains t the con stitutiona lity of the se arch. Gorman, supra, 168 Md. App. at 422. Possession of a cigarette is a relatively minor civil infraction, not an offense for which violators of the statute can receive a jail sentence. Instead, the law provides for dealing w ith juvenile tobacco violators by requiring enrollment in tobacco education or smoking cessation programs, or by ordering participation in a supervised work pro gram, or by im posing a c ivil fine of not m ore than $25 fo r the first violatio n. CJP § 3-8A -19(e)( 3)(ii). A third factor in the exigent circumstances analysis is whether the officers would have had the tim e and opp ortunity to prope rly obtain a warra nt prior to the sear ch. Id. Maryland Rule 4-601(a) authorizes the issuance of a search warrant only as authorized by law. Neither CL § 10-108 nor any other statute authorizes law enforcement officers to obtain a warrant to search for tobacco products in the possession of minors. Generally, issuance of search warrants is governed by Md. Code (2001, 2006 Supp.), Criminal Procedure Article, § 1-203, w hich prov ides, in relevan t part: (a)(1) A circuit court judge or District Court judge may issue forthwith a search warrant w henever it is m ade to app ear to the judge, by application as described in paragraph (2) of this subsec tion, that there is p robable ca use to believe that: (i) a misdem eanor or felony is being committed by a person or in a building, apartmen t, premises, pla ce, or thing within the territorial jurisdiction of the judge; or 17 (ii) property subject to seizure under the criminal laws of the State is on the person or in or on the building, apartment, premises, place, or thing. (Emp hasis ad ded.) Possession of cigarettes by a minor is neither a misdemeanor nor a felony, and nothing in the language of CL § 10-108 or the criminal laws of the State authorizes seizure of cigarettes in the posse ssion of a m inor. It wou ld be perve rse to permit officers to perform a warrantless search of an in dividu al, on grounds of exigency, to investigate an offense for which the officers could not o btain a search warrant in any e vent. Cf. In re Alb ert S., 106 Md. App. 376, 395-96 (1995) (holding that warrantless arrest of a minor for possession of alcohol was unlawfu l, because p ossession o f alcohol b y a minor is a civil offense and the officer could do no thing more than issue a c itation ). None of the other out-of-state c ases cited by the parties are on point with Maryland law and the facts of this case. State v. Matthew David S., 205 W.V a. 392, 397 (1999), is cited for the proposition that police officers may validly search a minor if the officer witnesses the minor in possession of tobacco products. But in Matthew David S., the officer stated that he con ducted a p at-down search fo r my safety, as we ll as ... the other people s offices of the surrounding area. Id. at 394-95. In contrast, the officers in this case specifically testified that they searched Calvin only for the purpose of d iscovering more cigarettes. Furthermore, under West Virginia law, possession of cigarettes by a minor is a misdemeanor offense, not a civil violation. W.Va. Code (1998), § 16-9A-3. 18 We also distingu ish this case o n its facts from B.W. v. State of Florida, 784 So. 2d 1219 (2001), in which the District Court of Appeal of Florida upheld an o fficer s seizure from a minor of two packages of cigarettes, one of which was later found to contain crack cocaine, on the basis that ciga rettes in the han ds of a minor a re contr aband . Id. at 11219-20. In B.W., the officer saw the cigarettes because the minor pulled one pack of cigarettes out of his pants pocket when searching for his identification, and the other pack of cigarettes was plainly visible to the off icer in th e mino r s fron t shirt po cket. Id. at 1219. The issue in B.W. was not whe ther an illegal search occurred, but instead, whether the seizure of cigarettes from a minor was p ermitted . Id. In contrast to th e facts of this case, the officer in B.W. did not condu ct a frisk or othe r search of the m inor. Id. The officer merely asked the m inor to give him the ciga rette pac kages w hich w ere in pla in view , and the minor c omplie d. Id. II. The Delinquency Finding In a delinquency proceeding, the juvenile court must determine whether the State has proven beyond a reasonable doubt that the accused juvenile committed the delinquent act alleged in the de linquen cy petition . Albert S., supra, 106 Md. App. at 398. Because the warrantless search of Calvin s person was illegal, the circuit court should have suppressed the crack cocaine found in Calvin s p ocket. Absent th e evidenc e obtained by the officers in the warrantless search, the juvenile court could not have found that the State proved beyond a reasonable doubt that Calvin was guilty of possession of cocaine, possession of cocaine with intent to distribute, or possession of drug paraphernalia. Consequently, the o nly 19 remaining charge against Calvin in the delinquency petition is the count a lleging that C alvin had possessed a tobacco product in violation of CL § 10-108. This allegation cannot provide a valid basis for a finding that Calvin was a delinquent child. CJP § 3-8A-01(m) defines a delinquent child as a child who has com mitted a delinquent act and requires guidance, treatment, or rehabilitation. As defined by CJP § 3-8A-01(l), a delinquent act is an act which would be a crime if committed by an adult. In In re Charles K., 135 Md. A pp. 84, 98 (2000), w e concluded that the statutory language defining delinquent child is clear and unambiguous. We reach the same conclusion with respect to the de finition of de linquen t act. Possession of tobacc o produc ts by an adult is not a crime . Therefo re, possessio n of tobac co produ cts by a minor d oes not fall within the statut ory de finit ion o f a d elinq uent act, and a juv enile delin quency petition containing a sole allegation that the alleged juvenile possessed tobacco products cannot supp ort a find ing o f del inqu ency. Acc ordingly, w e rev erse the ju dgm ent o f the Circ uit C ourt for W icom ico C oun ty. THE JU DGM ENT O F THE C IRCUIT COURT FOR WICOMICO COUNTY IS REVER SED. CO STS TO B E PAID BY W ICO MIC O CO UNT Y. 20 21

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