## Facts

- Late on August 16, 2006, a Prince George’s County police officer patrolled on foot in the 6800 block of Hawthorne Street in Landover, Maryland, described as an area known for drug activity.
- The officer saw Robert Bailey standing alone in the shadows outside a residence; there were no particular complaints that night.
- The officer twice asked Bailey whether he lived there; Bailey did not respond.
- As the officers approached within a few feet, the officer smelled a strong odor of ether coming from Bailey’s person.
- The officer associated ether with PCP, but acknowledged ether is lawful and is used in common household products.
- After smelling ether, the officer grabbed Bailey’s hands, placed them on Bailey’s head, and searched him, including reaching into Bailey’s pocket.
- The officer recovered a small glass vial containing liquid; the liquid later field-tested positive for PCP.
- Bailey was arrested and charged with possession of PCP; the trial court denied his suppression motion, he was convicted, and an intermediate appellate court affirmed.

## Issues

1. Whether the totality of the circumstances—odor of ether, presence in a high-crime drug area, and failure to answer police questions—supplied probable cause to arrest Bailey and justify a search incident to arrest under the Fourth Amendment and the Maryland Declaration of Rights.
2. If probable cause was lacking, whether the vial and test results were inadmissible as fruits of an unlawful search and seizure.

## Decision

- The Court of Appeals of Maryland held the officer lacked probable cause to arrest Bailey at the time of the search.
- The odor of ether, a lawful substance with legitimate uses, did not provide a concrete basis to connect Bailey to contraband or criminal activity.
- Presence in a high-crime area and Bailey’s silence did not supply the missing link to criminal conduct.
- Because the arrest and search were unlawful, the vial and related PCP evidence should have been suppressed.
- Bailey’s conviction was reversed and the case was remanded for further proceedings consistent with the suppression ruling.

## Legal Principles

- Probable cause requires specific, articulable facts creating a fair probability that a crime is being committed and that evidence will be found; generalized suspicion is insufficient.
- The odor of a lawful substance that is only sometimes associated with contraband does not, without additional individualized facts, establish probable cause to arrest.
- A neighborhood’s reputation for crime is a contextual factor but cannot substitute for particularized facts tying the person to criminal activity.
- A person’s failure to respond to police questioning, standing alone, is not an incriminating fact that can create probable cause.
- Evidence obtained through a search incident to an arrest unsupported by probable cause must be suppressed as the product of an unreasonable search and seizure.

## Conclusion

The court ruled that ether odor plus a high-crime setting and non-responsiveness did not amount to probable cause, making the arrest-based search unconstitutional and requiring suppression of the PCP evidence and reversal of the conviction.


Bailey v. State, 987 A.2d 72 (Md. 2010)