HEADNOTE:

Barrett v. State of Maryland, No. 530, September Term 2016.

MARIJUANA; PROBABLE CAUSE; SEARCH INCIDENT TO ARREST

A warrantless search of a person is reasonable under the Fourth Amendment only if it falls
within an exception to the warrant requirement. Probable cause to believe criminal activity
is occurring does not justify a search of a person, but it does authorize police to arrest the
person and then search him or her incident to that arrest, even if the search occurs prior to
the arrest.
Despite the decriminalization of possession of less than ten grams of marijuana, a law
enforcement officer who has reason to believe that an individual is in possession of
marijuana has probable cause to effectuate an arrest, even if the officer is unable to identify
whether the amount possessed is more than 9.99 grams. A requirement that law
enforcement has to be absolutely sure that the amount of marijuana involved is more than
9.99 grams before they have probable cause to arrest is inconsistent with the concept of
probable cause, which requires only facts sufficient to warrant a prudent person in
believing that an individual is committing a crime.
Circuit Court for Baltimore City
Criminal No. 114351015

                                                    REPORTED

                                     IN THE COURT OF SPECIAL APPEALS

                                               OF MARYLAND

                                                     No. 530

                                             September Term, 2016

                                   ______________________________________

                                            ANTHONY BARRETT

                                                       v.

                                           STATE OF MARYLAND

                                   ______________________________________

                                        Graeff,
                                        Reed,
                                        Friedman,

                                                     JJ.
                                   ______________________________________

                                             Opinion by Graeff, J.
                                   ______________________________________

                                        Filed: November 29, 2017
         Following a bench trial in the Circuit Court for Baltimore City, Anthony Barrett,

appellant, was convicted of the following crimes: possession of a firearm by a prohibited

person; wearing, carrying, or transporting a handgun on the person; and wearing, carrying,

or transporting a handgun in a vehicle. The court sentenced appellant on the conviction for

possession of a firearm to five years of imprisonment, all suspended but time served, and

three years of imprisonment for each of the two convictions for wearing, carrying, or

transporting a handgun.1

         On appeal, appellant presents two questions for this Court’s review, which we have

reordered and rephrased slightly, as follows:

         1. Did the circuit court err in denying appellant’s motion to suppress the
            evidence obtained as a result of the search of his person?

         2. Did the circuit court err in imposing separate sentences for each of the
            two convictions of wearing, carrying, or transporting a handgun?

         For the reasons set forth below, we shall vacate the sentence for wearing, carrying,

or transporting a handgun in a vehicle and otherwise affirm the judgments of the circuit

court.

                   FACTUAL AND PROCEDURAL BACKGROUND

         On November 24, 2014, Detectives Brian Salmon and Jason Leventhall, members

of the Baltimore City Police Department, were on patrol in a marked SUV.

         1
         The sentence for possession of a firearm was to be served concurrently to the
sentence imposed for an unrelated conviction. The sentences for wearing, carrying, or
transporting a handgun were concurrent to each other, but consecutive to a sentence
imposed for a second, unrelated conviction.
Detective Salmon had encountered the odor of burnt marijuana hundreds of times, and he

was accepted at the suppression hearing as an expert in the “sale, packaging and

recognition” of marijuana.2

       Detective Salmon saw a Honda Accord with an approximately foot-long crack in

the front windshield. He had stopped the same vehicle the previous month for the same

violation (cracked windshield), and he gave the driver of the vehicle at that time, appellant,

a verbal warning and told him to get the windshield fixed. When the officers passed the

vehicle on November 24, they “immediately smelled the strong odor of marijuana.”

       The detectives initiated a traffic stop of the vehicle, which was occupied by three

people. As the detectives exited their vehicle and approached the driver’s side of the

stopped vehicle, Detective Salmon detected a “strong odor” of “burnt marijuana”

emanating from the vehicle. Detective Leventhall approached the passenger side of the

vehicle and asked appellant, who was sitting in the front passenger seat, if there was any

marijuana in the car. Appellant “freely stated that they were smoking marijuana,” and he

handed Detective Leventhall “a brown hand-rolled cigar containing green plant material.”3

       The officers asked the driver and appellant to exit the vehicle.                When

Detective Salmon walked over to appellant, he could smell “the strong odor of marijuana

coming from [appellant] and inside the car,” but he was unable to discern from the odor

the quantity of suspected marijuana.

       2
           The suppression hearing in this case proceeded simultaneously with the bench trial.
       3
           The police later determined that the cigar contained 0.37 grams of marijuana.

                                               2
       Detective Salmon then searched appellant. He recovered a loaded 9-millimeter

handgun from appellant’s pants.4 At that time, appellant was placed under arrest. As

Sergeant John Landsman transported appellant to the police station, appellant offered “to

make a deal for getting an AK-47 in exchange for being released.” At the station, appellant

gave a recorded statement, in which he admitted that he “got caught with a handgun.”

       At the conclusion of all the evidence, which included evidence that the gun seized

was operable and met the definition of a firearm under Maryland law, the court heard

argument on the defense motion to suppress. The State argued that, based on the odor of

marijuana and appellant’s actions in handing the officer “a blunt of some sort,” Detective

Salmon had the right to search, to pat-down appellant, who possibly had additional

contraband on his person or in the vehicle. Defense counsel argued that appellant’s

“admittance of [a] civil offense” of possession of less than ten grams of marijuana “does

not give rise to [ ] probable cause of criminal activity,” and therefore, “the search should

be denied and … the statement should be suppressed.”5

       The court ultimately denied the motion to suppress. It characterized defense

counsel’s argument to be that, because possession of less than ten grams of marijuana was

       4
        The officer initially stated that the gun was recovered from the “front waist area”
of appellant’s pants. On cross-examination, he agreed with defense counsel that the gun
was “down in his underwear,” “below his private parts,” and he reached in and recovered
the handgun.
       5
         Defense counsel also argued that the initial traffic stop was unlawful. The circuit
court rejected that argument, and appellant does not, for good reason, challenge that ruling
on appeal. See Muse v. State, 146 Md. App. 395, 405 (2002) (stop to investigate cracked
windshield of automobile reasonable under the Fourth Amendment).
                                             3
a civil offense, and the police did not have information that a greater quantity of marijuana

was involved, the police did not have probable cause to search the car. The court disagreed

with that argument, noting that, pursuant to Bowling v. State, 227 Md. App. 460, cert.

denied, 448 Md. 724 (2016), the smell of marijuana gave the detectives probable cause to

search the vehicle. The court stated:

               The issue becomes whether it’s reasonable for the officer to believe
       that there may be additional marijuana in the car or on the person in the car.
       That’s the analysis under [Bowling]. And the [Bowling] Court says that it is
       reasonable. So when Officer Salmon decided to pat down Mr. Barrett to see
       if he had any additional marijuana on him, as the [Bowling] Court found with
       the vehicle, this Court finds that that was reasonable. When he patted him
       down, however, he found - - he felt a sharp object and he recovered that
       object from his person. That object turned out to be a handgun.

              The Court finds nothing - - no - - the Court does not find any violation
       of the Fourth Amendment under the facts of this case. The Court finds the
       testimony of the officers to be credible. So as to the suppression of the
       handgun, the Court denies your motion.

       At the conclusion of the trial, the circuit court convicted appellant of the weapons

charges. This appeal followed.

                                        DISCUSSION

                                              I.

       Appellant contends that the circuit court erred in denying his motion to suppress the

handgun recovered from his person and his subsequent statement. He argues that “[t]he

police had no justification for a warrantless search of [his] person,” and the court erred in

relying on this Court’s decision in Bowling because that case addressed a warrantless

search of a vehicle, whereas this case involved the search of a person. Appellant further

argues that there was no independent justification for the search, asserting that it was not a

                                              4
search incident to arrest for two reasons: (1) “he had not been arrested”; and (2) this was a

“citation offense for which he could not be arrested” because the officer could not ascertain

the quantity of marijuana involved.

       In reviewing the grant or denial of a motion to suppress, we consider the evidence

in the light most favorable to the party who prevails on the motion, and we accept the

suppression court’s factual findings unless they are clearly erroneous. Bowling, 227 Md.

App. at 466-67. Accord Norman v. State, 452 Md. 373, 386, cert. denied, ___ S. Ct. ___

(2017). In determining the ultimate legal conclusion regarding whether a constitutional

right has been violated, however, “we make an independent, de novo, constitutional

appraisal by applying the law to facts presented in a particular case.” Johnson v. State, 232

Md. App. 241, 256 (quoting Williams v. State, 372 Md. 386, 401 (2002), cert. granted, 454

Md. 678 (2017).

       Our analysis begins with the Fourth Amendment to the Constitution of the United

States, which protects against “unreasonable searches and seizures.” U.S. CONST. amend.

IV. This constitutional mandate is “applicable to the states, through the Fourteenth

Amendment.” Grant v. State, 449 Md. 1, 16 (2016). Whether a police action is reasonable

“is judged by balancing its intrusion on the individual’s Fourth Amendment interests

against its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U.S.

648, 654 (1979). Accord Sellman v. State, 449 Md. 526, 540 (2016).

       The general rule is that “searches conducted outside the judicial process, without

prior approval by judge or magistrate, are per se unreasonable under the Fourth

Amendment – subject only to a few specifically established and well-delineated

                                             5
exceptions.” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States,

389 U.S. 347, 357 (1967)). Accord Riley v. California, __ U.S. __, 134 S. Ct. 2473, 2482

(2014). Thus, a warrantless search of a person is “reasonable only if it falls within a

recognized exception.” Missouri v. McNeely, 569 U.S. 141, 148 (2013). The Court of

Appeals has listed several exceptions to the warrant requirement, including: (1) hot pursuit;

(2) the plain view doctrine; (3) the Carroll doctrine; (4) stop and frisk; (5) consent; (6)

exigent circumstances; and (7) search incident to arrest. Grant, 449 Md. at 16, n.3 (2016).

       In denying the motion to suppress here, the circuit court appeared to rely on this

Court’s decision in Bowling. In that case, this Court upheld a warrantless search pursuant

to the automobile exception, sometimes referred to as “the Carroll doctrine,” Carroll v.

United States, 267 U.S. 132 (1925), which allows the police to conduct a warrantless search

of a vehicle based on probable cause to believe that the vehicle contains contraband or

evidence of a crime. 227 Md. App. at 472-73.6 We noted that the Maryland appellate

courts consistently have held that the odor of marijuana emanating from a vehicle provides

probable cause for the police to conduct a warrantless Carroll doctrine search of a vehicle.

Id. at 469. In Bowling, 227 Md. App. at 476, we determined, and the Court of Appeals

subsequently held in Robinson v. State, 451 Md. 94, 137 (2017), that this precedent

remained good law, despite recent legislation that decriminalized possession of less than

ten grams of marijuana.

       6
         The Carroll doctrine exception, which allows the warrantless search of a vehicle
based on probable cause, is based on “the exigencies associated with the mobility of a
vehicle, and the diminished expectation of privacy with regard to a vehicle.” Fair v. State,
198 Md. App 1, 11 (2011) (quoting State v. Cabral, 159 Md. App. 354, 372-73 (2004)).
                                             6
       As appellant notes, however, the issue here does not concern the propriety of the

search of the vehicle, and therefore, the automobile exception to the warrant requirement

cannot justify the search. Rather, the issue in this case involves the propriety of the search

of appellant’s person. In that regard, the Supreme Court has never held, unlike in the

context of a search of a vehicle, that there is a “probable cause to search a person” exception

to the warrant requirement. For a warrantless search of a person to be reasonable under

the Fourth Amendment, the State must show an exception to the warrant requirement, such

as consent, exigent circumstances, reasonable suspicion to conduct a protective frisk, or a

search incident to an arrest based on probable cause.

       The State argued in its brief that the search here was justified on either of the latter

two grounds. With respect to a protective frisk, the Supreme Court held in Terry v. Ohio,

392 U.S. 1, 27 (1968), that the police may conduct a limited frisk of a person who has been

stopped based on reasonable suspicion that the person is armed and dangerous. After the

briefs were filed in this case, however, the Court of Appeals held that the odor of marijuana

emanating from a vehicle does not, by itself, justify a frisk of an occupant of that vehicle,

but rather, a frisk is proper only if, “in addition to the odor of marijuana, another

circumstance or other circumstances are present giving rise to the reasonable articulable

suspicion that an occupant is armed and dangerous.” Norman, 452 Md. at 425. At oral

argument, the State conceded that, based on that decision, and the facts in this case, the

search of appellant was not justified as a protective frisk. We agree.

       The State contends, however, that the circuit court properly denied the motion to

suppress because the search was valid under the search incident to arrest exception. The

                                              7
United States Supreme Court has stated that it is “well accepted” that a search incident to

arrest is an exception to the warrant requirement, noting, however, that “the label

‘exception’ is something of a misnomer in this context, as warrantless searches incident to

arrest occur with far greater frequency than searches conducted pursuant to a warrant.”

Riley, 134 S. Ct. at 2482. As this Court has explained:

       [A] police officer with probable cause to believe that a suspect has or is
       committing a crime may arrest the suspect without a warrant. See Brinegar
       v. United States, 338 U.S. 160, 176 (1949). . . . Once lawfully arrested, police
       may search “the person of the arrestee” as well as “the area within the control
       of the arrestee” to remove any weapons or evidence that could be concealed
       or destroyed. United States v. Robinson, 414 U.S. 218, 224 (1973).

Conboy v. State, 155 Md. App. 353, 364 (2004) (parallel citations omitted).

       Appellant contends that the search should not be upheld as a valid search incident

to arrest. In support, he gives three reasons: (1) the State did not argue this exception

below and it was not the basis for the court’s ruling; (2) there was not probable cause to

arrest; and (3) there was no arrest prior to the search. We will address each of these

arguments, in turn.

                                               A.

                                   Alternative Grounds

       We begin with appellant’s contention that we should not consider whether the

search was proper as a search incident to arrest because the State did not raise this argument

below, and the circuit court did not rely on the search incident to arrest exception in its

ruling. Although appellant is correct that the search incident to arrest argument was not

raised below, that does not preclude this Court from considering the issue.

                                              8
       The Court of Appeals has made clear that “an appellee is entitled to assert any

ground adequately shown by the record for upholding the trial court’s decision, even if the

ground was not raised in the trial court,” and “if legally correct, the trial court’s decision

will be affirmed on such alternative ground.” Unger v. State, 427 Md. 383, 406 (2012).

Accord Elliot v. State, 417 Md. 413, 435 (2010) (“‘[W]here the record in a case adequately

demonstrates that the decision of the trial court was correct, although on a ground not relied

upon by the trial court and perhaps not even raised by the parties, an appellate court will

affirm.’”) (quoting Robeson v. State, 285 Md. 498, 502 (1979)). Here, the record is

adequately developed for us to address whether the search was valid as a search incident

to arrest.7

                                             B.

                                      Probable Cause

       Turning next to the issue of probable cause, appellant does not dispute that the police

may arrest an individual if the officer “‘has probable cause to believe that an individual has

committed even a very minor criminal offense in his presence.’” Maryland v. Pringle, 540

U.S. 366, 370 (2003) (quoting Atwater v. Lago Vista, 532 U.S. 318, 354 (2001)). See also

Md. Code (2001, 2008 Repl. Vol.), § 2-202(b) of the Criminal Procedure Article (providing

that “[a] police officer who has probable cause to believe that a felony or misdemeanor is

       7
         We are not persuaded by appellant’s contention, made for the first time at oral
argument, that it would be unfairly prejudicial to him for this Court to address this
argument. The issued involved is a legal issue, and there was no ambiguity regarding the
timing of the arrest. Detective Salmon testified that he recovered the handgun, and “at this
time,” appellant was placed under arrest.
                                              9
being committed in the presence or within the view of the police officer may arrest without

a warrant any person whom the police officer reasonably believes to have committed the

crime.”). He asserts, however, that the police did not have probable cause to believe that

he was committing a crime.

       Probable cause to arrest “exists where the facts and circumstances within the

knowledge of the officer at the time of the arrest, or of which the officer has reasonably

trustworthy information, are sufficient to warrant a prudent person in believing that the

suspect had committed or was committing a criminal offense.” Moulden v. State, 212 Md.

App. 331, 344 (2013) (quoting Haley v. State, 398 Md. 106, 133 (2007)). The probable

cause standard is “a practical, nontechnical conception that deals with the factual and

practical considerations of everyday life on which reasonable and prudent men, not legal

technicians, act.” Pringle, 540 U.S. at 370 (quotation marks and citations omitted). It is

“not reducible to precise definition or quantification.” Robinson, 451 Md. at 110 (quoting

Florida v. Harris, 568 U.S. 237, 133 S. Ct. 1050, 1055 (2013)). Rather, “[p]robable cause

is a fluid concept – turning on the assessment of probabilities in particular factual contexts

– not readily, or even usefully, reduced to a neat set of legal rules.” Pringle, 540 U.S. at

370-71 (quoting Illinois v. Gates, 462 U.S. 213, 232 (1983)). “A finding of probable cause

requires less evidence than is necessary to sustain a conviction, but more evidence than

would merely arouse suspicion.” Moulden, 212 Md. App. at 344 (quoting Haley, 398 Md.

at 133). In assessing “whether an officer had probable cause to arrest an individual, we

examine the events leading up to the arrest, and then decide ‘whether these historical facts,

                                             10
viewed from the standpoint of an objectively reasonable police officer, amount to’ probable

cause.” Pringle, 540 U.S. at 371 (citation omitted).

         To determine whether the police here had probable cause to arrest appellant, we

must first assess whether they had probable cause to believe that he was in possession of

marijuana. Maryland Code (2016 Supp.) § 5-101(v) of the Criminal Law Article defines

“possess” as “to exercise active or constructive dominion or control over a thing by one or

more persons.” As we noted in Bowling, 227 Md. App. at 469, Maryland courts have

consistently held that the odor of marijuana in a vehicle gives the police probable cause to

believe that marijuana is present in the vehicle. Whether the odor of marijuana emanating

from a vehicle provides probable cause to believe that a passenger in the vehicle exercised

dominion and control over the suspected marijuana, i.e. was in possession of illegal drugs,

has been viewed as a different question, which has been the subject of much discussion.

See Norman, 452 Md. at 412-415.

         This case, however, does not involve the mere odor of marijuana. Here, not only

did the officers smell marijuana in a vehicle in which appellant was one of three occupants,

Detective Salmon testified that he could smell the strong odor of marijuana coming from

appellant. Moreover, when appellant was asked if there was marijuana in the car, he “freely

admitted” that “they” had been smoking marijuana, and he handed Detective Leventhall a

cigar.

          In situations where the police have more information connecting an occupant of a

vehicle to the marijuana, and there is more than merely the odor of marijuana, courts have

found probable cause to arrest. See U.S. v. Humphries, 372 F.3d 653, 659 (4th Cir. 2004)

                                            11
(although the odor of marijuana provides probable cause to believe that marijuana is

present, additional factors must be present to localize its source to a person to justify an

arrest); Johnson v. State, 142 Md. App. 172, 191 (holding that the odor of burnt marijuana

from within a vehicle, along with the observation of a marijuana bud on the gearshift cover,

within arm’s reach of the passenger, provided probable cause to arrest the passenger), cert.

denied, 369 Md. 180 (2002).

       Here, as indicated, the police not only smelled marijuana in the vehicle, they smelled

it on appellant, and he admitted to smoking marijuana and handed the officer a cigar. Based

on these circumstances, the police had probable cause to believe that appellant possessed

marijuana.

       Appellant notes, however, that the Maryland General Assembly decriminalized the

possession of less than ten grams of marijuana and made it a civil offense. 8 He argues that,

       8
           As the Court of Appeals explained in Robinson, 451 Md. at 97-98:

            Before October 1, 2014, under Maryland law, possession of less than
            ten grams of marijuana was a misdemeanor that carried a maximum
            penalty of ninety days of incarceration and a fine of $500. See 2014
            Md. Laws. 1119 (Vol. II, Ch. 158, S.B. 364); Md. Code Ann., Crim.
            Law (2002, 2012 Repl. Vol., 2013 Supp.) § 5–601(c)(2)(ii). As of
            October 1, 2014, under Maryland law, possession of less than ten grams
            of marijuana became “a civil offense” that is punishable by
            participation in a drug education program, an assessment for substance
            abuse disorder, possible substance abuse treatment, and a fine, the
            amount of which depends on whether the violation is a first, second, or
            subsequent violation of the statute. See 2014 Md. Laws. 1119, 1124
            (Vol. II, Ch. 158, S.B. 364); Md. Code Ann., Crim. Law (2002, 2012
            Repl. Vol., 2014 Supp.) § 5–601(c)(2).

Appellant was arrested on November 24, 2014, shortly after the law went into effect.
                                              12
because the police could not tell the quantity of marijuana involved, the police did not have

probable cause to believe that he was committing a crime.

       Although the Maryland appellate courts have not yet addressed the issue of probable

cause to arrest an individual for possession of marijuana following the decriminalization

of possession of less than ten grams, the Court of Appeals and this Court have addressed

the issue of probable cause to search a vehicle and held in that context that the police are

not required to determine the amount of marijuana involved. In Robinson, 451 Md. at 125,

the Court of Appeals stated that “[d]ecriminalization is not the same as legalization,” and

“[d]espite the decriminalization of possession of less than ten grams of marijuana,

possession of marijuana in any amount remains illegal in Maryland.” Accord Bowling,

227 Md. App. at 470. The Court of Appeals noted that other jurisdictions that had

addressed the issue had determined that, even though possession of a small amount of

marijuana had been decriminalized, it still suggested criminal activity. Robinson, 451 Md.

at 122-23. See, e.g., People v. Zuniga, 372 P.3d 1052, 1060 (Colo. 2016) (although

possession of small amount of marijuana is legal, odor of marijuana is suggestive of

criminal activity and relevant to the probable cause determination). The Court agreed with

that analysis and stated:

       Despite the decriminalization of possession of less than ten grams of
       marijuana, the odor of marijuana remains evidence of a crime. The odor of
       marijuana emanating from a vehicle may be just as indicative of crimes such
       as the possession of more than ten grams of marijuana, possession of
       marijuana with the intent to distribute, or the operation of a vehicle under the
       influence of a controlled dangerous substance, as it is of possession of less
       than ten grams of marijuana.

                                             13
Robinson, 451 Md. at 133-34. Accordingly, the Court held that “the odor of marijuana

emanating from a vehicle provides probable cause to believe that the vehicle contains

evidence of a crime, and a law enforcement officer may search the vehicle under such

circumstances.” Id. at 134.

       Although the issue in Robinson addressed probable cause to search a vehicle, the

same analysis applies to probable cause to arrest for possession of marijuana. In State v.

Perry, 874 N.W.2d 36 (Neb. 2016), the Supreme Court of Nebraska specifically addressed

this issue. In that case, Perry was the driver of a vehicle that was stopped for a traffic

violation. Id. at 39. Police detected an odor of burnt marijuana from within the vehicle

and observed the passenger holding a plastic “baggie” containing a “white rocklike

substance.” Id. at 39-40. The passenger was arrested, and Perry was asked to step out the

vehicle. Id. Perry was searched, and the police found ecstasy pills (a controlled substance)

and what appeared to be crack cocaine on his person.9 Id. Perry’s vehicle was then

searched, and police recovered a marijuana cigarette and a firearm. Id.

       The Supreme Court recognized that there was no probable cause to search a person

exception to the warrant requirement, noting, however, that a person could be searched

incident to arrest if the arrest was based on probable cause. Id. at 41. In addressing whether

the officer had probable cause to believe that Perry was involved in a crime, the court stated

that it had “consistently held that the odor of marijuana, alone or in combination with other

       9
        The suspected crack cocaine found on Perry was later determined to be a form of
“fake crack cocaine, known as gank.” State v. Perry, 874 N.W.2d 36, 40 (Neb. 2016).

                                             14
factors, creates probable cause for an officer to infer that one or all of the occupants of a

vehicle had committed the crime of possessing a controlled substance,” providing probable

cause to arrest. Id. at 45-46.10

       The court then addressed Perry’s argument, similar to that made by appellant here,

that, in light of Nebraska’s decriminalization of less than one ounce of marijuana, “the

mere smell of marijuana is not sufficient probable cause that a crime is being or has been

committed and does not justify an arrest.” Id. at 46. The court rejected that argument,

explaining:

       Objectively, the smell of burnt marijuana tells a reasonable officer that one
       or more persons in the vehicle recently possessed and used the drug. The
       officer need not know whether the amount possessed is more than 1 ounce in
       order to have probable cause to suspect criminal activity in the vehicle.

Id. The court noted that “probable cause does not require evidence sufficient to convict –

only that which would lead to a reasonable inference of guilt.” Id. at 47.

       We agree with the rationale expressed by the Supreme Court of Nebraska. Pursuant

to that reasoning, and the reasoning set forth in Robinson, 451 Md. at 133-34, we hold that

a police officer who has reason to believe that an individual is in possession of marijuana

       10
          The court subsequently stated, however, that the odor of marijuana was a factor
in determining probable cause, finding that, based on the odor of burnt marijuana, the
passenger’s non-compliance with police orders, and the passenger’s possession of a
substance that appeared to be crack cocaine, “[a] reasonable officer with knowledge of all
of these facts could conclude both occupants of the vehicle had knowledge of the presence
of marijuana and the suspected cocaine and exercised dominion over both[.]” Id. at 46-47.
Here, as explained, supra, the odor of marijuana was only one factor giving the police
probable cause to believe appellant was in possession of marijuana.

                                             15
has probable cause to effectuate an arrest, even if the officer is unable to identify whether

the amount possessed is more than 9.99 grams.11

       A requirement that the police need to be absolutely sure that the amount of

marijuana involved is more than 9.99 grams before they have probable cause to arrest is

inconsistent with the concept of probable cause, which requires only facts “sufficient to

warrant a prudent person in believing” that an individual is committing a crime. Moulden,

212 Md. App. at 344. Because the odor of marijuana “may be just as indicative of crimes

such as possession of more than ten grams of marijuana” or possession with the intent to

distribute, Robinson, 451 Md. at 133, the odor of marijuana here, along with appellant’s

admission to smoking marijuana and handing the officer a cigar, gave the police probable

cause to arrest appellant.

                                               C.

                                       Timing of Arrest

       Once the police had probable cause to arrest appellant, they could search him

incident to that arrest. Stokeling v. State, 189 Md. App. 653, 670-71 (2009), cert. denied,

       11
           As the Court of Appeals noted in Robinson, 451 Md. at 127, the General Assembly
did not intend, in decriminalizing possession of less than ten grams of marijuana, “to stop
what would be right now a lawful search incident to arrest.” Id. (quoting Crim. L.
Possession of Marijuana Civ. Offense: Hearing on S.B. 364 before the Sen. Jud. Comm.,
2014 Reg. Sess. (Md. Apr. 1, 2014)). At the legislative hearing, Senator Zirkin, one of the
sponsors of the legislation, responded to the committee’s concern that decriminalization of
possession of less than ten grams of marijuana would hamper the ability of police to
conduct a search incident to arrest. He stated that, even if the police could not identify the
quantity of marijuana when they saw “a joint or just smell[ed] the odor of marijuana,” “the
fact that there is still a criminal amount [in the statute] permits it [search incident to arrest]
to go forward.” Hearing on S.B. 364.

                                               16
414 Md. 332 (2010). The purpose of the search incident to arrest exception is to seize

weapons that might be used to harm the police officers and to preserve evidence that might

otherwise be destroyed. Id. at 671.

       Appellant contends that the search in this case, which led to the discovery of the

loaded handgun in his pants, was “not a search incident to arrest, because he had not been

arrested.” The State does not dispute that the formal arrest here occurred after the search,

but it argues that this fact is irrelevant. We agree with the State.

       The United States Supreme Court has made clear that a search may qualify as a

search incident to arrest even if, sequentially, the search occurs prior to the arrest. Rawlings

v. Kentucky, 448 U.S. 98, 111 (1980). In that case, the police had probable cause to arrest

Rawlings when he admitted ownership of drugs found in a woman’s purse. Id. at 111. The

police arrested Rawlings, but not until after they searched him and found $4,500 in cash

and a knife. Id. at 101. The Court upheld the search as a valid search incident to arrest

because “the formal arrest followed quickly on the heels of the challenged search of

petitioner’s person,” and it was not “particularly important that the search preceded the

arrest rather than vice versa.” Id. at 111.

       Maryland appellate courts have recognized this precedent. See, e.g., Lee v. State,

311 Md. 642, 668- 69 (1988); Conboy, 155 Md. App. at 367-68. In addressing the requisite

timing between the search and arrest, this Court stated that the “search incident to an arrest”

exception to the warrant requirement is applicable as long as the search is “essentially

contemporaneous” with the arrest. Wilson v. State, 150 Md. App. 658, 673 (2003). Accord

                                              17
Lee, 311 Md. at 668-69 (search incident to arrest not precluded where search occurred prior

to arrest where “events occurred instantly, one after the other.”).

       Here, the record is clear that the search was “essentially contemporaneous” with the

arrest. Detective Salmon testified that he discovered the gun, and “at this time,” appellant

was arrested.

       Because the police had probable cause to arrest appellant for possession of

marijuana, and the arrest occurred right after the search, the search was valid as a search

incident to arrest. Accordingly, the trial court did not err in denying appellant’s motion to

suppress.

                                             II.

       Appellant contends that his separate sentences for his convictions of wearing,

carrying, or transporting a handgun on his person and in a vehicle should be merged. The

State agrees, and so do we. See Clark v. State, 218 Md. App. 230, 256 (2014) (under the

rule of lenity, defendant’s conviction for wearing, carrying, or transporting a handgun on

or about his person merged with his conviction for wearing, carrying, or knowingly

transporting a handgun in a vehicle where acts were part of single transaction.)

                                           SENTENCE IMPOSED ON COUNT 6
                                           (WEARING,      CARRYING,     OR
                                           TRANSPORTING A HANDGUN IN A
                                           VEHICLE) VACATED. JUDGMENTS OF
                                           THE CIRCUIT COURT FOR BALTIMORE
                                           CITY OTHERWISE AFFIRMED. COSTS
                                           TO BE SPLIT EQUALLY BETWEEN
                                           APPELLANT AND MAYOR AND CITY
                                           COUNCIL OF BALTIMORE.

                                             18


797 F.2d 980
Smithv.First Nat. Bank
85-8785
United States Court of Appeals,Eleventh Circuit.
7/24/86

1
N.D.Ga.

REVERSED


                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1

               United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                              Submitted March 19, 2020*
                               Decided March 19, 2020

                                        Before
                      DANIEL A. MANION, Circuit Judge

                      DIANE S. SYKES, Circuit Judge

                      AMY J. ST. EVE, Circuit Judge
No. 19-3103

RYAN D. KRUEGER,                                 Appeal from the United States District
    Plaintiff-Appellant,                         Court for the Eastern District of Wisconsin.

      v.                                         No. 19-C-1470

JOSH KAUL, et al.,                               William C. Griesbach,
     Defendants-Appellees.                       Judge.

      * The district court dismissed the complaints in these cases at screening,
see 28 U.S.C. § 1915(e)(2)(B), before any defendant appeared. The appellees are not
participating in the appeals. We have agreed to decide the cases without oral argument
because the briefs and records adequately present the facts and legal arguments, and
oral argument would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
Nos. 19-3103 and 19-3379                                                             Page 2

No. 19-3379

RYAN D. KRUEGER,                                  Appeal from the United States District
    Plaintiff-Appellant,                          Court for the Eastern District of Wisconsin.

       v.                                         No. 19-C-1670

CARRIE STAGE and AARON                            William C. Griesbach,
KRZEWINSKI,                                       Judge.
     Defendants-Appellees.

                                        ORDER

       In these appeals, which we have consolidated for decision, Ryan Krueger
challenges the district court’s dismissals of his complaints alleging violations of his right
under the Americans with Disabilities Act to have a veteran’s “advocate” accompany
and communicate for him in a state-court proceeding. The district court dismissed the
complaints at screening, see 28 U.S.C. § 1915(e)(2)(B), for failing to state a claim upon
which relief could be granted. We affirm the judgments.

        Recently, we decided an appeal in the first of Krueger’s three federal cases
challenging the same ongoing paternity suit in state court. Krueger alleged in his first
suit that the family-court commissioner violated his right under the Act to have an
advocate during the proceeding to facilitate his participation (Krueger has PTSD). The
district court dismissed the complaint, and the case became moot on appeal because the
commissioner told Krueger that he was entitled to have a lay advocate present. See
Krueger v. Wisconsin, 790 F. App’x 828 (7th Cir. 2020).

        But events in the state-court proceeding led Krueger to file suit in federal court
twice more. First, Krueger sued the commissioner for limiting what the advocate could
do for him in court. Krueger alleged, without much detail, that she interfered with his
ability to have an effective advocate, violating the Act. In the same complaint, he sued a
county veterans-service officer and a sheriff’s deputy, alleging that, with the
commissioner’s permission, they attended a hearing only to intimidate him. He
appeared to seek declaratory or injunctive relief, stating that these violations “must
stop.” In the second new case, Krueger sued the mother of his children (the petitioner in
Nos. 19-3103 and 19-3379                                                            Page 3

the paternity suit) and her lawyer, alleging that they violated his rights under the Act
(citing 42 U.S.C. § 1983 as well) by seeking to reduce the role of his advocate, apparently
by arguing that the lay advocate was practicing law without a license.

       The district court dismissed both complaints at screening for failure to state a
claim. The commissioner was immune from a suit for damages, the court reasoned, and
injunctive relief was untenable because Krueger did not allege that he would be subject
to similar conduct in the future. Further, the court “lacked jurisdiction” to review the
decision to allow the officer and deputy to observe the hearing, and Krueger’s
allegations of intimidation were too conclusory. As to the second complaint, the court
dismissed the claims against the petitioner and her attorney because Title II of the Act
does not create liability for discrimination by private individuals, and it dismissed the
claims under 42 U.S.C. § 1983 because the defendants were not state actors. The court
warned Krueger that should he file any more frivolous suits, he could be sanctioned.1

       On appeal, Krueger argues that the district court erred by dismissing his first
complaint without determining “what an ADA Advocate can and cannot do” in his
state-court proceeding. Unlike the district court, we view Krueger as fairly alleging that
the commissioner will continue to deny him the ability to have an effective advocate; he
asserted, in describing his requested relief, that this behavior “must stop.” And nothing
suggests that the proceeding has ended.

       But the relief Krueger seeks—an order directing the state court how to conduct
its ongoing proceeding—runs contrary to the principles of equity, comity, and
federalism underlying our abstention doctrines, so the district court could not have
properly exercised jurisdiction over this claim. See Courthouse News Serv. v. Brown,
908 F.3d 1063, 1065–66 (7th Cir. 2018); see also SKS & Assocs., Inc. v. Dart, 619 F.3d 674,
677–82 (7th Cir. 2010). This matter does not fit neatly into the scenarios under which it is
appropriate to abstain under Younger v. Harris, 401 U.S. 37 (1971): the paternity case is
not a criminal proceeding; it is not a civil enforcement proceeding akin to a criminal
prosecution (the state is not a party, and Krueger is not a target); and it does not touch
on a state’s interest in enforcing the orders and judgments of its courts. See Sprint
Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77–79 (2013) (describing Younger’s scope); see also

       1  Krueger then unsuccessfully tried to remove the underlying paternity action to
federal court. Finding his conduct to be part of a “pattern of abusive and duplicative
litigation,” the district court fined Krueger $400 and imposed a filing restriction. Stage
v. Krueger, No. 20-C-65, 2020 WL 241553, at *2 (E.D. Wis. Jan. 16, 2020).
Nos. 19-3103 and 19-3379                                                             Page 4

Mulholland v. Marion Cty. Election Bd., 746 F.3d 811, 815–16 (7th Cir. 2014) (noting that
Younger applies in “exactly three classes of cases”). But as in Courthouse News, Krueger
seeks a level of intrusion by a federal court into the state court’s operations that is
“simply too high,” at least before the state courts have had a chance to consider the
issue. 908 F.3d at 1074. In effect, Krueger asked for a writ of mandamus to a state-court
commissioner directing the scope of the advocate’s participation in the pending case,
and that is not within the province of the federal courts.

        Krueger’s remaining arguments lack merit. He asserts that he has evidence to
support his allegations of “intimidation” by the service officer and sheriff’s deputy. But,
assuming that Krueger was intimidated, nothing in his complaint plausibly suggests
that because of these defendants (who appear to be public employees) he was
“excluded from participation in” or “denied the benefits of” public services, programs,
or activities. 42 U.S.C. § 12132; see Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). The
district court was also correct to dismiss Krueger’s claims against the petitioner and her
attorney under Title II of the Act because that section covers discrimination only by
public entities. See Ashby v. Warrick Cty. Sch. Corp., 908 F.3d 225, 230, 234 (7th Cir. 2018)
(describing elements of claim and affirming grant of summary judgment in favor of
public school where event was organized and maintained by a private museum).
Krueger also contends that he stated a claim under 42 U.S.C. § 1983 against the attorney
because he is an “officer of the court,” but—even assuming Krueger alleged a violation
of a constitutional right—this is insufficient, standing alone, to suggest any action taken
“under color of state law.” See Polk Cty. v. Dodson, 454 U.S. 312, 318–19 (1981).

                                                                                AFFIRMED


     Case: 16-50229      Document: 00513920117         Page: 1    Date Filed: 03/21/2017

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 16-50229                              FILED
                                  Summary Calendar                      March 21, 2017
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EMILIO RESENDEZ GOMEZ,

                                                 Defendant-Appellant

                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:08-CR-693-5

Before JOLLY, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       The Federal Public Defender appointed to represent Emilio Resendez
Gomez has moved for leave to withdraw and has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632
F.3d 229 (5th Cir. 2011). Gomez has not filed a response. We have reviewed
counsel’s brief and the relevant portions of the record reflected therein. We
concur with counsel’s assessment that the appeal presents no nonfrivolous

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 16-50229    Document: 00513920117    Page: 2   Date Filed: 03/21/2017

                                No. 16-50229

issue for appellate review. Accordingly, counsel’s motion for leave to withdraw
is GRANTED, counsel is excused from further responsibilities herein, and the
APPEAL IS DISMISSED. See 5TH CIR. R. 42.2.

                                      2


136 Ga. App. 105 (1975)
220 S.E.2d 279
COLLINS
v.
NORTON et al.
51211.
Court of Appeals of Georgia.
Argued September 29, 1975.
Decided October 9, 1975.
*108 Smith, Cohen, Ringel, Kohler & Martin, Marion Smith, II, Bruce H. Beerman, for appellant.
Fierer & Devine, Foy R. Devine, Lawrence E. McEvoy, Jr., Jones, Bird & Howell, Dow N. Kirkpatrick, II, for appellees.
DEEN, Presiding Judge.
1. The depository of property held in escrow is the agent of both parties in carrying out the escrow. Williams v. Northside Realty Assoc., 116 Ga. App. 253 (157 SE2d 166). Its purpose is merely to fulfill the terms of the agreement, or, as here, of the law. The fact of escrow removes the property absolutely from the control of the depositor. Morris v. Durbin, 123 Ga. App. 383, 385 (180 SE2d 925). Title, however, remains in the depositor who surrenders his property to the third party, until all conditions of the escrow are accomplished or it is abandoned and he or another receives the property from the depository. Foy v. Scott, 197 Ga. 138, 139 (28 SE2d 107). This title may ordinarily be sold subject to the conditions of the escrow agreement. Where a block of stock placed in escrow was to be held until certain contingencies happened and then returned to the depositor, an assignment by the depositor executed during the existence of the escrow, to become effective at its completion, is valid. Bertram v. Exchange Trust Co., 4 FSupp. 392 (1). Thus title may change although the right of possession does not. It follows that no statutory or common law right referred to in Code § 97-114 (c) would prevent one who has placed stock in escrow, to be returned to the grantor on fulfillment of statutory conditions, from selling to a third party subject to the terms of the escrow.
2. However, Code § 97-114 itself provides that any sale of securities in violation of the Securities Law in Chapter 97-1 shall be voidable at the election of the purchaser. Under subsection (c) any speculative securities (within the definition of which the block of stock here involved falls) issued or transferred to officers, agents or persons promoting them must under conditions here obtaining be placed in escrow for a period of up to two years, as set by the Commissioner of Securities of Georgia. In Morris, supra, where a block of stock was placed in escrow under similar conditions, the agreement also stating that "`no transfer or any disposition of any of said shares or of any interest therein is to be made whether subject to this escrow agreement or otherwise,'" and the *106 depositor sold the stock to a third party, apparently not connected with the promotion of the stock, and the third party gave a note in payment for the block of stock, but later attempted to rescind the agreement and was sued on the note, it was held that the sale was in violation of both the statute and the agreement, and was therefore voidable and unenforceable at the election of the purchaser.
We have shown above that no other rule of law than this statute would render such a sale illegal. We have also shown that a remedy for such violation is given only to the purchaser of the stock who, prior to delivery, attempts to rescind the agreement.
In the present case the plaintiff Collins, a promoter and member of the board of directors of the company, sold an escrowed block of stock to Norton, also a promoter and member of the board of directors, for $3,000 which was paid to him and which he now has. Thus, it is the seller and not the buyer who is complaining of the illegality of the transaction. Norton and Fuller have paid for the stock (to be delivered at the conclusion of the escrow) and he wishes to go through with the deal. Since the sale is not illegal unless made so by the Act itself, and since the Act gives no remedy to the seller of the stock, although providing that the transaction is voidable at the option of the buyer, Collins has no enforceable right under Code § 97-114 to renege, and he has no other common law or statutory right to do so. Nothing to the contrary is held in Turpin v. Wilson, 133 Ga. App. 239 (211 SE2d 316) also involving a purchaser seeking to recover the price paid for stock which could not be delivered because of the escrow. The court held (p. 242) that "it is not inappropriate, as in the case at bar, for a plaintiff to pursue recovery on a theory of assumpsit or money had and received where defendant fails to deliver the securities contracted for and refuses to refund the monies received by the purchaser." In this context it applied the right retained by Code § 97-114 (c) to pursue any other statutory or common law right which the litigant might have aside from the Securities Act. In that case there was a default on the part of the seller-defendants. In this case there is no default on the part of the purchasers-defendants.
*107 3. Further, the plaintiff, an officer and director of the corporation, participated in the sale of the escrowed stock and received his payment for it. Furthermore, the agreement contained provisions which would ultimately result in reissuance of the stock so as to conform to a prospectus the application for which was verified by the plaintiff by affidavit, that the Class B stock was owned in equal 20,000 share lots by each of the five directors, which included both plaintiff and defendants. The prospectus was so verified some time after the original sale between plaintiff and defendants, and conformed to it. If, as he now contends, the sale was in fact void, then his affidavit is untrue, and his participation illegal. "A participant serving as an officer and director of a corporation at the time stock of the corporation is issued cannot recover the sums he paid for a portion of said stock under the purchasers' remedies section of the Georgia Securities Act (Ga. L. 1957, pp. 134, 161; Code Ann. § 97-114) on the ground said stock was not properly registered in accordance with the Act because such a participant is equally guilty with the defendants of violating the Georgia Securities Act." Nash v. Jones, 224 Ga. 372 (162 SE2d 392), and see also the discussion of this case in Turpin, supra. These facts alone are sufficient to prevent recovery.
4. The plaintiff-appellant further contends that the sale was not completely executed because the stock has not been reissued, and that he participated in it in the first instance because of fraudulent inducement by the defendants. We have examined these contentions and find no merit in them. The defendants have no right to possession of the stock until it is released from escrow; only at that time will it be reissued. Plaintiff has alleged no facts which support his allegations of fraud. The trial court properly granted the motion for summary judgment and denied that of Collins.
Judgment affirmed. Evans and Stolz, JJ., concur.


357 S.W.2d 789 (1962)
HARRIS COUNTY WATER CONTROL & IMPROVEMENT DISTRICT NO. 58 et al., Appellants,
v.
The CITY OF HOUSTON, Appellee.
No. 13681.
Court of Civil Appeals of Texas, Houston.
May 17, 1962.
Rehearing Denied June 7, 1962.
*791 Burford, Ryburn & Ford, Clarence A. Guittard, H. Sam Davis, Jr., Dallas, for appellants.
R. H. Burks, City Atty., John Gano, Senior Asst. City Atty., Charles F. Weaver, Asst. City Atty., Houston, for appellee.
BELL, Chief Justice.
This case originated when Harris County Water Control and Improvement District No. 58, herein called District, filed suit against the City of Houston, herein called City, asking for a declaratory judgment declaring the City had no jurisdiction to regulate the rates it charged the customers in the City that it served with water. Suit was filed July 22, 1959. On August 12, 1959, the City filed its formal answer. On January 29, 1960, the City filed its amended answer and cross-action. By its cross-action it brought in Lone Star Water Company as a party cross-defendant. At trial in September, 1960, appellants filed two trial amendments. The City asserted jurisdiction over rates to be charged by the District and asked for an injunction restraining the District from charging rates in excess of those fixed by an ordinance of the City. The City also contended that in fact the water system belonged not to the District but to Lone Star Water Company. The District and the Water Company attacked the rates as fixed as being invalid, not only because of a want of jurisdiction in the City to fix rates charged by the District, to which they contend the water system belongs, but also because procedural due process was denied it in connection with an alleged rate hearing that led to the passing of the rate ordinance.
The trial court found it unnecessary to pass on the questions as to whether the District or the Lone Star Water Company owned the system or whether it was lawful for the District to operate a water system outside of its established limits through a completely physically autonomous system. However, that court found the City had jurisdiction to fix the rates charged by the District for water sold in the City under the circumstances of this particular case. The court enjoined the District from charging rates in excess of those fixed by the City Council of the City of Houston.
We are of the view, as was the trial court, that it is unnecessary to pass on the *792 questions as to whether the water system belongs to the District or the Water Company, or whether it is lawful for the District to operate the system under the facts shown, because we are of the view that assuming the system belongs to the District, and assuming its ownership and operation is ultra vires and subject to being terminated in an action brought by the State of Texas, the City, under the facts of this case, has jurisdiction to fix rates charged by the District.
We think the two questions that are determinative of this appeal are:
1. Does the City have jurisdiction to fix water rates to be charged by the District to customers served by its system in the City under the facts of this case?
2. Was the District denied procedural due process in connection with the passage of the ordinance fixing its maximum rates?
The District is a water control and improvement district organized pursuant to Article 16, Section 59, of the Constitution of Texas, Vernon's Ann.St., and Articles 7880-1 to 7880-147z, Vernon's Annotated Texas Statutes. It was created after the filing of a petition with the Board of Water Engineers of Texas on December 15, 1955. The original limits of the District encompassed about 181 acres of land. Its limits were extended thereafter so that at the time material here it encompassed some 704 acres of land. The District was formed by W. D. Laird, Ernest Gates, Leland Baker and Edwin Young. They were also stockholders in Goose Creek Development Company. The land within the District was largely undeveloped but was being developed as residential property. It lies near Baytown (formerly Goose Creek) in eastern Harris County. The water system involved in this case lies in the City of Houston and is some 22 miles from the limits of the District. Physically it has no connection whatsoever with any water facility operated by the District for service of property or customers within the District.
It appears that for years prior to 1952 the Texas Water Company operated systems for the distribution of water for municipal purposes at various points in Texas and other states. One such system was the one referred to here and in our record as the "North Houston" system. It originally lay outside the corporate limits of the City of Houston. In 1956, as we will later more particularly note, part of the system was brought within the corporate limits. It is the fixing of rates for customers served from such part that is here involved. In 1952 the Texas Water Company was dissolved and ownership of the system vested in the stockholders, McArthur, Henrickson and Alexander. Ownership of the system continued thus until 1956. It is unnecessary for us, for purposes of this appeal, to go into the details of how ownership of the system finally came to the District. It suffices to say that we are assuming that ownership vested in the District on December 28, 1956, subject to a mortgage lien on the system securing a note for $1,250,000.00 payable to McArthur, Henrickson and Alexander. On February 1, 1956, at a time the "North Houston" system was owned by the above named individuals, the City passed on first reading an annexation ordinance which encompassed much of the territory served by the "North Houston" system. The territory to be annexed was changed from time to time between the passage on first vote on the ordinance and its final passage on December 31, 1956, but there was no change in the area involving the "North Houston" system.
After annexation and about October, 1958, attorneys for the District and representatives of the City commenced negotiations for the purchase of the system by the City. When the negotiations commenced Mr. Beadle of the City Attorney's office requested certain data so the City could ascertain the value of the property. Present also were Mr. Nagle of the City Water Department and Mr. Owsley who handles utility rate matters for the City. Thereafter *793 the District representatives furnished a balance sheet as of December, 1958, water rates in effect, total number of connections as of December, 1958, potential connections at vacant lots and a map of the area supplied. Later, in early 1959, the District furnished the City a map with a legend describing the mains, a schematic drawing of the two production plants and an inventory of physical properties comprising the water system broken down by years of installation and the size and material of the lines. Further it furnished a schedule of water sold by the month for the year ending October 31, 1958, a summary of bills issued active customers for this period, a schedule of actual sales during the period and the sales pro forma on a basis of 3429 customers and for 5170 customers on a basis of complete saturation development of the area. The depth the lines were buried was furnished. No statement of operating expenses was furnished.
While negotiations for purchase were in progress, the City Council on May 12, 1959 passed a resolution directing that the District be notified to appear before the City Council June 22 to show cause why it should not submit itself to a rate hearing for the purpose of determining what rate reduction, if any, should be made. The City Council appointed an Examiner to conduct the hearing. The District, through counsel, appeared and challenged the jurisdiction of the City to regulate its rates because it was a political subdivision of the State of Texas carrying on a governmental function and its board of directors had by law been given authority to fix water rates to be charged by it. Further the District contended the notice was not of a hearing to be held, but was merely notice to the District to show cause why a hearing should not be held. The hearing was recessed and the Examiner recommended to the City Council that the plea to the jurisdiction be overruled. June 23 the Council passed an ordinance finding it had jurisdiction and directing the Examiner to proceed with the hearing. A rate hearing was then called for July 13, 1959. The District, through counsel, appeared and challenged jurisdiction. A subpoena duces tecum had been issued and served on Ernest M. Gates, Secretary of the District, commanding him to appear with certain designated books and records of the District. Mr. Gates did not respond to the subpoena. The records were not produced and the District refused to produce the records until a court should determine the City Council had jurisdiction and until a court should order production of the records. The hearing was commenced and the Assistant City Attorney introduced the motion of May 12, 1959 directing that the District show cause on June 22 why it should not submit to a rate hearing, a letter from the City Secretary sending a certified copy of the motion to the District, the motion passed by the Council ordering issuance of the subpoena duces tecum, a copy of the subpoena issued and the officer's return showing service. Then a general offer of all action taken by the City Council relating to the calling of a rate hearing was made. The hearing was then recessed until July 24. When the hearing was resumed the City introduced, over the District's objection, a letter from Mr. Owsley, its rate expert. On July 23 the City had sent the attorney for the District a copy of the letter. The transmittal letter informed the District that on July 24 the City would file Mr. Owsley's letter with the Examiner and would make no further presentation but would rest. The transmittal letter confirmed a telephone conversation between counsel for the City and the District. It also stated Mr. Owsley would be available for cross-examination and the District could introduce any evidence it wished. The District did not cross-examine Mr. Owsley or introduce any evidence bearing on the value of its property or concerning what it considered would be reasonable rates. It continued to challenge the City's jurisdiction.
*794 The letter of Mr. Owsley was dated July 23, 1959, and was addressed to the Mayor and City Council via the Examiner. It is lengthy and we will not quote it, but will summarize its material contents. It noted that the District served some 3200 consumers in the City. The letter gives an extensive review of the City's efforts to obtain from the District the books, etc. for examination by the City. It points out the refusal of the District to furnish desired information. It overlooks the fact that the District had furnished the information we have above noted. Too, the letter notes that at the hearing on July 13, the attorneys for the District appeared and refused to put on evidence and refused to produce the witness or make available its books and records that had been subpoenaed. Then follows these two concluding paragraphs:
"Since Water District No. 58 is an agency engaged in the distribution and sale of water within the city limits of Houston, we see no reason why it should attempt to discriminate against approximately 3200 Houston families by charging a higher water rate than the City of Houston charges. We therefore recommend that the City Council fix the City of Houston water rates, including bimonthly billing to be the rates to be charged by Harris County Water Control and Improvement District No. 58 to its customers within the City of Houston.
"It should be understood that, if the City of Houston water rates are not adequate for Harris County Water Control and Improvement District No. 58, then it is encumbent upon said District to come forward in this hearing with competent and adequate proof from its books and records to establish to what extent, if any, such City of Houston rates would be inadequate."
The District objected to the introduction of the letter basically because it was a pure conclusion of Mr. Owsley, was not supported by any substantive evidence and the recommendation was made without any investigation.
Other than some instruments dealing with the question as to whether the property in fact was owned by the Lone Star Water Company or the District, the above matters constitute all the material evidence before the Examiner.
On August 21, 1959 the Examiner made his report and recommendation to the City Council. The entire transcript of the proceedings before him was transmitted. It recited the District had consistently challenged the jurisdiction of the City and had declined to put on any evidence or permit the City to examine its records. It then called attention to Mr. Owsley's recommendation. The report concluded with this sentence:
"Since there was no evidence offered on which any different conclusion could be based, I concur in the recommendation of the Public Service Department and suggest that the City Council adopt a motion requesting the Legal Department to prepare a rate ordinance fixing the rates in accordance with such recommendation."
Such a motion was made and passed by City Council on August 27, 1959. An ordinance was passed and became effective September 1, 1959. The ordinance recited the procedure that had been followed, as we have above stated; recited the failure and refusal by the District to produce or allow examination of its books and records; recited the failure of the District to put on evidence; recited that the recommendation of Mr. Owsley was in evidence; and recited the City Council had considered the transcript of the hearing before the Examiner and the recommendations of the Examiner and Mr. Owsley. The ordinance then enacted the City of Houston rates. It then recited if the District was not satisfied with the rates, it could apply for a hearing and one would be granted.
*795 We have reached the conclusion that the City had jurisdiction to prescribe the rates to be charged the District's customers whom it served with water in the City of Houston, the customers being within an area wholly outside of and in no way connected with the territorial limits of the District and the customers being served through a system wholly unrelated to a system established and maintained by the District within its limits where it developed the water resources of the District, or constructed elsewhere for the purpose of primarily serving the needs within the limits of the District.
The District's position is that it is a governmental agency, a political subdivision of the State of Texas, carrying on a governmental function, that is, the conservation and development of the State's water resources. It contends it is given authority by law to distribute water within or without the District and to construct and operate distribution systems within or without its limits and that its Board of Directors is given authority to fix the rates it shall charge. It further contends that even if under the facts of this case it has exceeded its authority, its acts are not contrary to any statute nor against public policy or malum in se and only the State through quo warranto can question its acts.
It is undoubtedly true that the people of Texas through the adoption of Article 16, Section 59, of the Constitution, intended to grant the State broad powers to take steps to conserve our natural resources such as water through utilization of such resources. Too, the legislature of Texas, pursuant to the authority there conferred, has passed, among other statutes, Articles 7880-1 to 7880-147z, which authorize the creation of political subdivisions of the State to further the conservation and development of our natural resources. The agencies thus created are political subdivisions of the State and certainly while acting within the authority conferred are carrying on governmental functions. Willacy County Water Control and Improvement District No. 1 v. Abendroth, 142 Tex. 320, 177 S.W. 2d 936; Bennett v. Brown County Water Improvement District, 153 Tex. 599, 272 S.W.2d 498. However, such agencies have only such powers as are granted by statute, which include such implied powers as are necessarily implied as an incident to the express powers given. Tri-City Fresh Water Supply District No. 2 of Harris County v. Mann, 135 Tex. 280, 142 S.W.2d 945.
Article 7880-48, relied on by the District, provides in substance that the District shall have full power to construct all plants, works and improvements necessary to the purpose for which it is organized and incident thereto. It also provides the District may construct works and improvements for the purpose of supplying water for municipal uses, domestic use, power and commercial purposes and all other beneficial uses. Section 125 of the same article, in dealing with the right of eminent domain, authorizes the acquisition of land for construction of plants for purposes for which the District was formed. Such land may be either within or without the District. It also authorizes the District to contract for the use of its waters, power or other facilities or service within or without the District. Section 106 of said article gives the Board of Directors the right to fix rates to be charged by the District. So does Sec. 3a.
We are of the view, however, that the statutes do not authorize the District to roam at large throughout the State and distribute water wherever it wishes without regard to limitations placed on it by statute. We are of the view that considering all of the provisions of Article 7880, V.A.T.S., there are some limitations imposed.
Article 7880, Sec. 4, in effect contemplates and provides for geographical limits. It provides a district may include the area of any county or counties or a part thereof including towns, villages and municipal corporations. Further the lands in a district need not be contiguous but if they are not, *796 each segregated area must cast a majority vote before it may be included in the district. Section 10 provides that a majority in number of owners of title to the land and of the value of the land to be included in a district must sign the petition for a district. Section 11 requires that the petition designate the boundaries of the district. Sections 75, 75a, 75b and 75c all deal with addition of land to a district by making such land a part of the district. Section 138 authorizes the sale of surplus waters to others, but it is expressly stated it is the duty of the district to protect the lands within the district with an adequate supply of water for the purpose for which it was organized. Too, it was to protect the supply of water for municipal purposes within the district.
The effect of these statutory enactments, when considered as a whole, is not to authorize a water control and improvement district to do as appellant District here has done. It has acquired a water distribution system 22 miles outside its boundaries and the water distributed is from a source wholly outside its boundaries, and there is no use of such water within its boundaries. In other words, it is a completely autonomous system. We should note for the sake of accuracy that the District receives at least a $1500.00 per month operating fee. We do not think this legally material here. While appellant District stresses the authority conferred by statute to sell water inside or outside its limits and to exercise the right of eminent domain within or without its limits, we do not feel such authorizes the situation we have before us.
The statutes envision an orderly development of the State's natural resources, such as water which is here involved, through the formation of definite districts with geographical boundaries where waters of the State will be conserved through primary utilization within the district. These waters may come from within the district or from without. However, the overriding purpose is service within the district. There may not be sufficient supply within the district so the statutes have authorized acquisition of properties outside the district but, we think, to be used primarily in developing the area within the district. It is recognized, however, that the needs of the district may be served and water may be available and a district is authorized to supply water outside its limits as an incident to its primary obligation. While we recognize a plant for the accumulation or production of water may lie wholly outside of the district (Lower Nueces River Water Supply District v. Cartwright, Tex.Civ.App., 274 S.W.2d 199, ref., n. r. e., and King v. Jefferson County Water Control & Improv. Dist. No. 7, Tex. Civ.App., 281 S.W.2d 185, error ref.), the primary use of the water is to be within the district. Incident to that primary service, if the needs within the district are served, water may be furnished without the district. The same is true where the source of the water is within the district. We have no such case here. We have a case where the source of the water is wholly unconnected with the limits of the district and distribution is in an area wholly unconnected with and outside the limits of the district. This act by appellant is beyond its authority and ultra vires.
We have read all of appellants' cases and deem them distinguishable from this case on a basis of the reasoning above set out.
The District says even if it has no such authority, its acts are only ultra vires and the City is in no position to question its acts, but only the State of Texas may raise the question. We are of the view that when such a district without authority of law enters a municipality to carry on business, it operates as a private utility in its operations there and is subject to regulation by the municipality as any other utility. While we have found no authorities covering this precise situation there are cases that by way of dictum, which we consider sound, establish such principle. City of New Braunfels v. City of San Antonio, *797 Tex.Civ.App., 212 S.W.2d 817, ref., n. r. e.; Bay City Plumbing & Heating Company v. Lind et al., 235 Mich. 455, 209 N.W. 579; Borough of Verona v. Township of Cedar Grove, 49 N.J.Super. 293, 139 A.2d 584; Mettet v. City of Yankton et al., 71 S.D. 435, 25 N.W.2d 460; State of Georgia v. City of Chattanooga, 264 U.S. 472, 44 S.Ct. 369, 68 L.Ed. 796. In the case before us the City preempted the territory here involved when it passed the annexation ordinance on first reading in February, 1956. The District did not acquire the system until December, 1956. The City is not attempting to make the District cease its operation; it is merely asserting its governmental authority to regulate, for the benefit of its citizens, the rates that the District may charge. We emphasize that such power is asserted in a situation where the District is operating where under the circumstances it is not by law authorized to operate.
We are of the view, however, that the action of the City Council was arbitrary because it was based on absolutely no investigation of the facts with regard to the fair value of the District's property and what rates as applied to that value would enable the District to realize a reasonable return on its investment. Procedural due process has been denied.
The City takes the position that the District must show that the rates fixed are in fact confiscatory. It says the courts are concerned only with the end result. This position is correct where procedural due process has been observed. Railroad Commission v. Houston Natural Gas Co., 155 Tex. 502, 289 S.W.2d 559. All of the cases cited by the City to sustain its position were cases where procedural due process had been observed by notice and a hearing at which the regulatory body had gone forward and introduced substantial substantive evidence as to value and had on the basis of such exercised its legislative judgment. In such cases it was correctly held that presumptively the rates fixed were valid and the utility was under the burden of proving the rates confiscatory. None of them were cases where the regulatory body had reduced rates without a consideration of substantive evidence as to the value of the utility's property and an exercise of legislative judgment based on such evidence.
We have heretofore held that procedural due process must be observed and that procedural due process requires notice and hearing. City of Houston v. Willow Bend Utilities, Inc. et al., Tex.Civ.App., 331 S.W.2d 333, ref., n. r. e. Supporting our holding are cases there cited. Subsequent to our decision the Supreme Court of Texas held the same. Glen Oaks Utilities, Inc. v. City of Houston, Tex., 340 S.W.2d 783. It is true that in the case decided by us the ordinance reducing rates was enacted without any notice and in the Glen Oaks case the ordinance was enacted without notice after a suspended and uncompleted hearing. We deem this to be no significant difference from the case before us. In those cases no requirement was made that the utility establish the rates fixed were in fact confiscatory.
A utility, in the absence of assertion by a regulatory body of its authority to fix rates, may fix its own rates. United Gas Corp. v. Shepherd Laundries, 144 Tex. 164, 189 S.W.2d 485; City of Houston v. Memorial Bend Utility Co., Tex.Civ.App., 331 S.W.2d 418, ref., n. r. e. In this case the District had fixed its rates at a time before the City assumed to reduce them. When the City moved to assert its rate making authority by giving notice to the District to show cause why its rates should not be reduced the burden was on the City to introduce evidence as to value of the property, income, expense, etc., so the Council would have some material evidence on which it could exercise legislative judgment. While no Texas case has been cited, and we have found none, holding expressly that the burden of going forward is on the regulatory body, we hold such to be law on principle. A legally established rate, such as the District had established here, is *798 binding until set aside. It may not be invalidated by legislative fiat. It can only be set aside by the party attacking it showing factually that it is excessive and other rates are sufficient. Eldridge v. Fort Worth Transit, Tex.Civ.App., 136 S.W.2d 955, dism., cor. judg.; In re Coal Rate in New Mexico, 23 N.M. 704, 171 P. 506. We think it very significant that while the many cases cited us and which we have ourselves found that deal with efforts of a regulatory body to reduce rates, the regulatory body has gone forward with the introduction of substantive evidence and has exercised legislative judgment on the basis of substantive evidence before it.
The rate ordinance passed in this case was passed without according the District procedural due process because it was based on no substantive evidence. The Council merely by legislative fiat fixed the rates. The ordinance on its face shows the rates were fixed on a basis of the recommendation of the utility rate expert and the Examiner. The recommendations of the rate expert and the Examiner were made on a basis of their thought that, since the District was serving customers in the City and the District not having offered any evidence as to why the District should charge a different rate, they saw no reason why the water rates charged by the City of Houston should not be fixed for the District. The fact that the City charges certain rates is of no probative value in determining what rates the District should charge in the absence of a showing of comparable systems. Texas & New Orleans R. R. Co. v. Railroad Commission, 155 Tex. 323, 286 S.W.2d 112. We judicially know that the City has many thousands of customers while the record here shows the District has some 3200 customers. This one item of difference will itself illustrate the obvious want of comparability.
Also, the ordinance was based on the fact that the District refused to produce its books and records that were subpoenaed. Mr. Owsley's letter, which was introduced before the Examiner, shows his recommendation was made as to rates, not on a basis of an examination of information previously furnished by the District, and his expert estimation on matters such as operating expenses which the District had not furnished, but because the District refused to produce their books, and he saw no reason why the District should charge any different rates than the City. The recommendation of the Examiner and the ordinance of Council have no different foundation.
The City says the District cannot complain because it refused to produce its books after they were subpoenaed. The failure to respond to a subpoena is not punishable by the fixing of rates in a manner which denies due process. The subpoena can be enforced by court action. Too, the City overlooks the fact that the District had furnished the information we have above outlined, but the City seems to have made no use of it.
The City contends the District did not plead denial of procedural due process. We have read the entire pleading, including the trial amendments, and are of the view they are sufficient to raise the issue.
We, therefore, hold the rate ordinance is void and we here render judgment dissolving the injunction granted by the trial court enjoining the District from charging rates in excess of those fixed by the City in its ordinance. However, we hold that the City does have jurisdiction under the facts of this case to fix the rates to be charged by the District for water served its customers in the City.
Reversed and rendered.
COLEMAN, J., not sitting.


345 N.W.2d 136 (1984)
Dale P. ASMANN, Appellee,
v.
BOARD OF TRUSTEES OF POLICE RETIREMENT SYSTEM OF CITY OF SIOUX CITY, Iowa, Appellant.
No. 83-664.
Supreme Court of Iowa.
March 14, 1984.
*137 Patrick J. Nugent, City Atty., Bryan J. Arneson and M. James Daley, Asst. City Attys., for appellant.
Harry H. Smith and MacDonald Smith, Sioux City, for appellee.
Considered by UHLENHOPP, P.J., and HARRIS, LARSON, CARTER, and WOLLE, JJ.
LARSON, Justice.
In this action, retired Sioux City police officers and their police pension fund's board of trustees contest the meaning of statutory language used to compute increases in pension benefits. The facts may be briefly stated.
Plaintiffs, ex-police officers who all had more than eight years of service, retired at Step 4, then the highest step on the pay scale. A new contract, negotiated after their retirement, provided for a new, higher step, "Master Police Officer," or Step 5. Initially, the Board of Trustees of the Police Retirement System determined that henceforth the plaintiffs' pension benefits would be calculated on the basis of the new Step 5 level because, were the retirees still serving, their eight years' service would automatically make them Master Police Officers. The Board later rescinded that action and the retirees sought certiorari review. When the district court ruled in the retirees' favor, this appeal followed. We affirm.
The statutory language in question is found in Iowa Code section 411.6(12)(a), which mandates that semi-annual pension adjustments for retired fire and police department employees reflect increases in the "earnable compensation payable to an active member of the department, of the same rank and position on the salary scale as was held by the retired ... member at the time of the member's retirement," and in section 411.1(12) which defines "earnable compensation," in pertinent part, as:
"the regular compensation which a member would earn during one year on the basis of the stated compensation for the members' rank or position including compensation for longevity..."
(Emphasis added.)
The district court, interpreting these sections, found the new status of Master Police Officer to be
only a level of compensation. It is not a rank. Designation as a master police officer does not involve an increase in authority or a change of duties. In all respects other than compensation, a master police officer is the same as any other police officer.
Upon the completion of eight years of service a police officer automatically becomes a master police officer. No consideration is given to merit or to any other factor than longevity.
The court concluded that Master Police Officer was, under chapter 411, equivalent to the status from which the officers retired. It therefore ruled that the retirees' pensions should be readjusted accordingly.
In this appeal, the Board first asserts that its decision denying the increase was a finding of fact, review of which is limited to an inquiry into whether the Board's determination is supported by any substantial evidence. The Board further asserts that even as a question of law, the district court erred in defining "earnable compensation" to include longevity-based step increases as longevity pay.
The retirees respond that facts were not at issue here and that the district court's construction of this statute prevails over that of the Board. The retirees contend that what the Board did was illegal and that the district court was correct in its *138 construction of sections 411.6(12)(a) and 411.1(12).
The scope of review in this case is summarized in Norland v. Worth County Compensation Board, 323 N.W.2d 251, 252-53 (Iowa 1982):
Appeal to this court from a certiorari judgment of a district court is treated as an ordinary action, and will be affirmed if supported by competent and substantial evidence.
Certiorari is appropriate where an inferior board, exercising judicial functions, acts illegally. An illegality is established if a board has not acted in accordance with a statute; if its decision was not supported by substantial evidence; or if its actions were unreasonable, arbitrary, or capricious. The plaintiff bears the burden to prove the illegality.
(Citations and footnote omitted.)
The retirees argued, and the district court ruled, that the Board "has not acted in accordance with the statute." We agree. Iowa cases do not support the Board's argument that its own construction of the statute must be accorded deference. See Burke v. Board of Trustees, 308 N.W.2d 21 (Iowa 1981); Carstensen v. Board of Trustees, 253 N.W.2d 560 (Iowa 1977).
Statutory construction is not a fact question which requires deference. It is not, for example, a question similar to whether a fireman has become physically incapacitated. See Reisner v. Board of Trustees, 203 N.W.2d 812 (Iowa 1973). See also Staads v. Board of Trustees, 159 N.W.2d 485 (Iowa 1968).
This case turns on whether the retirees' "rank and position on the salary scale" when they left the force is equivalent to the new Master Police Officer status. Iowa Code § 411.6(12). An affirmative answer is required because Master Police Officer is not a new "rank;" no new duties or authority are vested in an officer because of that designation. It is, rather, a new step in the pay scale, and it is uncontested that if these retirees were on the force today they would be at the new Step 5. Thus, they are at "the same rank and position on the salary scale." Further, because the retirees would be at Step 5 on the basis of longevity alone, and longevity is specifically included as a basis for "earnable compensation" under section 411.1(12), that section reinforces our conclusion placing them at "the same rank and position."
We also emphasize that a contrary result here could endanger almost every retiree's rights under section 411.6(12). By creating new steps or otherwise altering the salary structure, current police and city negotiators could sacrifice retirees' unrepresented interests to allocate more of the available money to salaries.
AFFIRMED.


                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                             No. 99-7219

VONNIE RAY BULLARD,

                                           Petitioner - Appellant,

          versus

WILLIAM R. BARKER, Superintendent, Sampson
County Prison Unit, Clinton, NC; MICHAEL
EASLEY, Attorney General of North Carolina,

                                           Respondents - Appellees.

Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh.    Terrence W. Boyle, Chief
District Judge. (CA-96-370-5-BO)

Submitted:   June 21, 2001                  Decided:   July 3, 2001

Before WIDENER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed in part and dismissed in part by unpublished per curiam
opinion.

Susan Hubbard Pollitt, NORTH CAROLINA PRISONER LEGAL SERVICES,
INC., Raleigh, North Carolina, for Appellant.      Clarence Joe
DelForge, III, OFFICE OF THE ATTORNEY GENERAL OF NORTH CAROLINA,
Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Vonnie Ray Bullard appeals the district court’s order denying

relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &

Supp. 2000).   We have reviewed the record and the district court’s

opinion and find no reversible error.   We therefore deny a certif-

icate of probable cause and dismiss in part, and affirm in part on

the reasoning of the district court.    See Bullard v. Barker, No.

CA-96-370-5-BO (E.D.N.C. Aug. 2, 2000).     We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

                               AFFIRMED IN PART, DISMISSED IN PART

                                 2


544 U.S. 1043
FOXv.UNITED STATES.
No. 04-9669.
Supreme Court of United States.
May 16, 2005.

1
C. A. 9th Cir. Certiorari denied. Reported below: 119 Fed. Appx. 142.