author: Graeff, J.

text:
    174 A.3d 441
    Anthony BARRETT v. STATE of Maryland
    No. 530
    Sept. Term 2016
    Court of Special Appeals of Maryland.
    November 29, 2017

      Argued by Michael R. Braudes (Paul B. DeWolfe, Public Defender on the brief), Baltimore, MD, for Appellant.
    Argued by Todd W. Hesel (Brian E. Frosh, Attorney General on the brief), Baltimore, MD, for Appellee.
    Panel: Graeff, Reed, Friedman, JJ.
   Graeff, J.

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.

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. 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.

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 Levent-hall “a brown hand-rolled cigar containing green plant material.”

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.

Detective Salmon then searched appellant. He recovered a loaded 9-millimeter handgun from appellant’s pants. 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.”

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 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, 134 A.3d 388, cert. denied, 448 Md. 724, 141 A.3d 135 (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 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 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, 134 A.3d 388. Accord Norman v. State, 452 Md. 373, 386, 156 A.3d 940, cert. denied, - U.S. -, 138 S.Ct. 174, 199 L.Ed.2d 42 (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, 157 A.3d 338 (quoting Williams v. State, 372 Md. 386, 401, 813 A.2d 231 (2002), cert. granted, 454 Md. 678, 165 A.3d 473 (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, 141 A.3d 138 (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, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Accord Sellman v. State, 449 Md. 526, 540, 144 A.3d 771 (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 exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). Accord Riley v. California, - U.S. -, 134 S.Ct. 2473, 2482, 189 L.Ed.2d 430 (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, 133 S.Ct. 1552, 185 L.Ed.2d 696 (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, 141 A.3d 138 (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, 45 S.Ct. 280, 69 L.Ed. 543 (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, 134 A.3d 388. 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, 134 A.3d 388. In Bowling, 227 Md.App. at 476, 134 A.3d 388, we determined, and the Court of Appeals subsequently held in Robinson v. State, 451 Md. 94, 137, 152 A.3d 661 (2017), that this precedent remained good law, despite recent legislation that decriminalized possession of less than ten grams of marijuana.

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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 156 A.3d 940. 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 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, 69 S.Ct. 1302, 93 L.Ed. 1879 (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, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Conboy v. State, 155 Md.App. 353, 364, 843 A.2d 216 (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.

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, 48 A.3d 242 (2012). Accord Elliott v. State, 417 Md. 413, 435, 10 A.3d 761 (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, 403 A.2d 1221 (1979)). Here, the record is adequately developed for us to address whether the search was valid as a search incident to arrest.

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, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (quoting Atwater v. Logo Vista, 532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549 (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 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, 69 A.3d 36 (2013) (quoting Haley v. State, 398 Md. 106, 133, 919 A.2d 1200 (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, 124 S.Ct. 795 (quotation marks and citations omitted). It is “not reducible to precise definition or quantification.” Robinson, 451 Md. at 110, 152 A.3d 661 (quoting Florida v. Harris, 568 U.S. 237, 133 S.Ct. 1050, 1055, 185 L.Ed.2d 61 (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, 124 S.Ct. 795 (quoting Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “A finding of probable cause requires less evidence than is necessary to sustain a convic tion, but more evidence than would merely arouse suspicion.” Moulden, 212 Md.App. at 344, 69 A.3d 36 (quoting Haley, 398 Md. at 133, 919 A.2d 1200). 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, viewed from the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Pringle, 540 U.S. at 371, 124 S.Ct. 795 (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, 134 A.3d 388, 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, 156 A.3d 940.

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) (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, 788 A.2d 678 (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, 798 A.2d 552 (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. He argues that, 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, 152 A.3d 661, the Court of Appeals stated that “[djecriminalization is not the same as legalization,” and “[djespite 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, 134 A.3d 388. 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, 152 A.3d 661. 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.

Robinson, 451 Md. at 133-34, 152 A.3d 661. 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, 152 A.3d 661.

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, 292 Neb. 708, 874 N.W.2d 36 (2016), the Supreme Court of Nebraska specifically addressed this issue. In that ease, 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. 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 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.

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, 152 A.3d 661, we hold that a police 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 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, 69 A.3d 36. 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, 152 A.3d 661, 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, 985 A.2d 175 (2009), cert. denied, 414 Md. 332, 995 A.2d 297 (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, 985 A.2d 175.

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, 100 S.Ct. 2556, 65 L.Ed.2d 633 (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, 100 S.Ct. 2556. The police arrested Rawlings, but not until after they searched him and found $4,500 in cash and a knife. Id. at 101, 100 S.Ct. 2556. 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, 100 S.Ct. 2556.

Maryland appellate courts have recognized this precedent. See, e.g., Lee v. State, 311 Md. 642, 668-69, 537 A.2d 235 (1988); Conboy, 155 Md.App. at 367-68, 843 A.2d 216. 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, 822 A.2d 1247 (2003). Accord Lee, 311 Md. at 668-69, 537 A.2d 235 (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, 96 A.3d 901 (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.

      . 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.

      . The suppression hearing in this case proceeded simultaneously with the bench trial.

      , The police later determined that the cigar contained 0.37 grams of marijuana.

      . 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.

      . 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, 807 A.2d 113 (2002) (stop to investigate cracked windshield of automobile reasonable under the Fourth Amendment).

      . 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, 16 A.3d 211 (2011) (quoting State v. Cabral, 159 Md.App. 354, 372-73, 859 A.2d 285 (2004)).

      . 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.

      . As the Court of Appeals explained in Robinson, 451 Md. at 97-98, 152 A.3d 661:
      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.

      . The suspected crack cocaine found on Perry was later determined to be a form of "fake crack cocaine, known as gank." State v. Perry, 292 Neb. 708, 874 N.W.2d 36, 40 (2016).

      . 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[J” 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.

      . As the Court of Appeals noted in Robinson, 451 Md. at 127, 152 A.3d 661, 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.


source: Caselaw Access Project

author: Zarnoch, J.

license: Public Domain

text:
    174 A.3d 453
    COMPTROLLER OF the TREASURY v. TWO FARMS, INC.
    No. 944
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    November 29, 2017

      Argued by Brian L. Oliner (Brian E. Frosh, Attorney General on the brief), all of Annapolis, MD, for Appellant.
    Argued by H. Dean Bouland (Alan A. Abramowitz, Judah Fuld, Bouland & Brush, LLC on the brief), all of Baltimore, MD, for Appellee.
    Panel: Meredith, Beachley, Robert A. Zarnoch (Senior Judge, Specially Assigned), JJ.
   Zarnoch, J.

This appeal raises two overlapping issues: 1) whether the Comptroller of the Treasury has the authority to suspend the cigarette retail license of a business that illegally sells tobacco products to a minor; and 2) whether the Comptroller possesses such power under Md. Code (1992, 2015 Repl. Vol.), Business Regulation (“BR”) Article, § 16—210(a)(2), which authorizes discipline of a licensee that “fraudulently or deceptively uses a license.” For reasons that follow, we conclude that the Comptroller has implied power—legislatively-recognized—to suspend a license for unlawful sales of tobacco products to a minor. Under these circumstances, the licensee is acting outside the scope of the license conferred by Title 16 of the BR Article. However, the authority to suspend is not derived from BR § 16-210(a)(2). Because the administrative adjudication here was premised on the latter provision, the Circuit Court for Baltimore County correctly held that the suspension in this case cannot stand.

BACKGROUND

Two Farms is the operator of retail chain stores that are licensed to sell, among other things, cigarettes and tobacco products. On May 20, 2015, the Baltimore County Department of Health (the “Department”) warned Two Farms about making sales to minors and not asking for identification in violation of local ordinances.

In August 2015, the Department cited Two Farms for selling tobacco to minors on three separate occasions. All three violations occurred at the same location. On August 6, 2015, a minor purchased a Black and Mild cigar. On August 10, 2015, a minor bought a tin of chewing tobacco and was not asked for identification. On August 11, 2015, a minor purchased a Black and Mild cigar from the retailer. In each instance, a Department officer brought the minor to the store to attempt to purchase tobacco. Each time, Two Farms was issued a citation proposing a civil penalty for selling tobacco to a minor and, in one instance, for failing to ask for identification in violation of § 13-12-103.1 of the Baltimore County Code. These citations were adjudicated at a hearing before a county administrative law judge—a hearing that Two Farms did not attend. The retailer was found liable and civil penalties were imposed.

The County Department notified the Comptroller about Two Farms’s violations. On November 2, 2015, the Comptroller sent the retailer a Notice of Hearing directing the licensee to show cause why its license should not be suspended for violations of BR § 16—210(a)(2). On November 19, 2015, a hearing was held at the Comptroller’s office. Two officials from the County Department appeared as witnesses; however, Two Farms did not attend. One of the Department’s witnesses testified to the events described at the County adjudicative hearing. At that point, the hearing officer issued his ruling, finding:

Well, in light of the fact that [Two Farms] has failed to appear, the evidence is sufficient to substantiate a finding here of guilty, and as a result, since the Comptroller has the authority to impose a suspension or revocation of a license, this is a first offense for [Two Farms] on the State level, so they will be suspended for a period of ten days and their cigarette and tobacco licenses will be suspended for a period of ten days.

On December 10, 2015, the Comptroller sent Two Farms a Notice of Final Determination, informing the business that its license to sell tobacco products would be suspended for ten days, pursuant to BR § 16-210(a)(2) for “fraudulently or deceptively us[ing] a license.”

On January 7, 2016, Two Farms sought judicial review of the Comptroller’s decision in the Circuit Court for Baltimore County. At a June 10, 2016 hearing, the business claimed that it was not aware of the proceeding before the Comptroller’s office because the citations had been served on store employees, and not on the company. Two Farms argued that there was no evidence of fraudulent or deceptive use of a tobacco license, as required under BR § 16-210(a)(2). The retailer asserted that the minors were not being deceived when they bought the tobacco products. The Comptroller countered that an unlawful action in and of itself proves fraud or deceit. The circuit court observed that there was no evidence of any misrepresentations made by the store. At the conclusion of the hearing, the court found that the evidence did not show a fraudulent or deceptive use of the license and vacated the order suspending Two Farms’s license. The Comptroller appealed from that decision.

STANDARD OF REVIEW

The Comptroller frames the issue in this case as whether there was “substantial evidence that Two Farms fraudulently or deceptively used its license.” However, in our view, this is not a substantial evidence case, but one presenting a purely legal issue of statutory interpretation—a question that we review de novo. Matthews v. Horn. Auth. of Baltimore City, 216 Md.App. 572, 582, 88 A.3d 852 (2014).

DISCUSSION

1. Introduction

The facts in the instant case are not complicated. Two Farms received three citations for selling tobacco products to minors. Based on that evidence, the Comptroller suspended Two Farms’s license to sell tobacco products for ten days. In his order, the Comptroller stated that the license was being suspended pursuant to BR § 16-210(a)(2) for “fraudulently or deceptively use[ing] a license.” Two Farms challenged that finding and the circuit court agreed, ruling that the facts did not support a fraudulent or deceptive use of the license. Therefore, the primary issue we must decide is whether the act of selling tobacco products to a minor constitutes a fraudulent or deceptive use of a license to sell tobacco products. However, given the Comptroller’s reliance on BR § 16-212(e)(1)’s purported recognition of the power to suspend or revoke a license for illegal sales of tobacco, we also consider whether Title 16 or any part of it supports such authority.

BR § 16-210(a) provides grounds upon which the Comptroller can suspend or revoke a license. Specifically, the Comptroller can suspend or revoke a license if the licensee:

(1) fraudulently or deceptively obtains or attempts to obtain a license for the applicant or licensee or for another person;
(2) fraudulently or deceptively uses a license;
(3) fails to comply with the Maryland Cigarette Sales Below Cost Act or regulations adopted under that Act;
(4) fails to comply with the provisions of Title 11, Subtitle 5A of the Commercial Law Article;
(5) buys cigarettes for resale:
(i) in violation of a license; or
(ii) from a person who is not a licensed cigarette manufacturer, licensed subwholesaler, licensed vending machine operator, or licensed wholesaler;
(6) is convicted, under the laws of the United States or of any other state, of:
(i) a felony; or
(ii) a misdemeanor that is a crime of moral turpitude and is directly related to the fitness and qualification of the applicant or licensee; or
(7) has not paid a tax due before October 1 of the year after the tax became due.

BR § 16-210(a) (Emphasis added).

Furthermore, BR § 16-212(e)(1) provides that “Except for a violation of § 10-107 of the Criminal Law Article,[] whenever any license issued under the provisions of this subtitle is suspended or revoked by the Comptroller, the licensee may, before .the effective date of the suspension or revocation, petition the Comptroller for permission to make an offer of compromise consisting of a sum of money in lieu of serving the suspension or revocation.” (Emphasis added).

The Comptroller argues that the language of BR § 16-212(e)(1) makes it clear that he can suspend or revoke a license when a licensee distributes tobacco products to a minor. According to the Comptroller, the only paragraph this could fall under is BR § 16-210(a)(2); therefore, a licensee’s unlawful distribution of tobacco to a minor constitutes a deceptive or fraudulent use of that license subject to discipline under BR § 16—210(a)(2). Two Farms argues that a suspension for violating CL § 10-107 is authorized under BR § 16-210(a)(6)(h), which allows the Comptroller to suspend or revoke a license when the licensee is convicted of certain misdemeanors that are crimes of moral turpitude. The retailer also contends that simply selling a tobacco product to a minor is not a deceptive or fraudulent act by itself. Two Farms also argues that there must be some fraudulent scheme involved in the sale to a minor in order for BR § 16-210(a)(2) to apply. In addition, the business points to the failure of 2016 legislation, which among other things, would have expressly authorized the Comptroller to suspend or revoke a license for illegal sales to minors; and argues that this demonstrates a legislative intent to deny the Comptroller this authority.

2. Relevant Principles of Statutory Construction

In addition to the text, the purpose and legislative history of the relevant statutes and the consequences of the proffered constructions are critical to resolving these contentions. Also, of special importance here are three precepts of statutory construction. The first is when interpreting a statute, we should “give effect to all of the language and avoid a construction that renders any portion superfluous.” Alston v. State, 433 Md. 275, 283, 71 A.3d 13 (2013) (quoting Stanley v. State, 390 Md. 175, 183-84, 887 A.2d 1078 (2005)). Second, although a court is not authorized to ignore the text, it is free to explore “what is below the surface of the statute and yet fairly part of it.” Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 533 (1947). Finally, of particular relevance to the Comptroller’s arguments, is the principle that “a subsequent legislative amendment of a statute is not controlling as to the meaning of the prior law [but] ... can be considered helpful to determine legislative intent.” Chesek v. Jones, 406 Md. 446, 462, 959 A.2d 795 (2008).

3. History and Purpose of the Relevant Statutes

We focus on the relationship between three provisions: (1) CL § 10-107; (2) BR § 16-210(a); and (3) BR § 16-212(e)(1). CL § 10-107 began life as Chapter 371, Laws of 1886, which according to its title, was designed “to protect the health and morals of minors in the State of Maryland.” More than a century later, Judge Rodowsky, in his dissenting opinion in Allied Vending, Inc. v. Cty. of Bowie, 332 Md. 279, 631 A.2d 77 (1993) described this criminal statute as creating a “class of ineligible purchasers.” Id. at 327, 631 A.2d 77. In a 1994 enactment, the General Assembly reinforced this conclusion by prohibiting a minor from possessing any tobacco product. CL § 10-108. Chapter 110, Laws of 1994. This statute also expressly subjected “persons licensed under Title 16 of the Business Regulation Article” to its prohibitions. CL § 10-107(b)(2). As introduced, the legislation would have mandated a license suspension for businesses convicted of violating § 10-107. That language was deleted from the bill.

The licensing provisions of Title 16 are almost as old as CL § 10-107. They became law in 1890. Chapter 91, Laws of 1890. This statute was two sentences long: the first required a trader’s license to sell tobacco to be obtained from the clerk of the circuit court for each county and Baltimore City; the second directed an applicant for a license to state under oath that cigarettes sold “contain no injurious drug.” The latter requirement was deleted six years later. Chapter 439, Laws of 1896. If such a provision had remained in the law, in light of our present knowledge of the harmful effects of smoking, no retailer could have taken such an oath, and the sale of tobacco products would have been outlawed.

The licensing provisions remained skeletal, even after the Comptroller was made an administrator/enforcer of the law and a few grounds were added as a basis for suspension or revocation, such as selling cigarettes below cost and unlawfully-buying cigarettes for resale. Most significantly, in the 1988 non-substantive code revision of the Tax—General Article, Chapter 2, Laws of 1988, fraudulent or deceptive use of the license was added as a ground for suspension or revocation. The Revisor’s Note for the change noted:

Subsection (a)(1) and (2) of this section is new language added to conform to almost all of the occupational licensing acts adopted by the General Assembly in the past several years. See, e.g., the comparable sections on disciplinary actions in the various titles of the Health Occupations Article. The General Assembly expressly decided that the language of these items was to be included in each of those sections as a fundamental ground for disciplining a licensee.

(Emphasis added).

The Revisor’s Note is consistent with the Commission to Revise the Annotated Code of Maryland’s Model Guide for Drafting Board, Commission, and Licensing Provisions (Jan. 1979). That Guide states that “in most instances there must be source law provisions in each subtitle to support the adoption of the uniform language ....” Id. at 1. The Guide goes on to note:

However, the [Guide] does propose in certain sections the adoption of uniform provisions even if the source law of a given statute does not expressly support the provision. The proposals are made only when the additional language does nothing more than state a provision that is inherent or fundamental to the scheme of things for all of the regulatory boards with which we are concerned.

Id. (Emphasis added).

In 1992, the tobacco licensing provisions were moved to the new Business Regulations Article. Chapter 4, Laws of 1992. Subtitle 1 of Title 16 of the new article contains definitions, most notably § 16—101(e), which defines “Sell cigarettes at retail” as selling cigarettes “to a consumer,” Subtitle 2 regulates a host of tobacco business licenses; some of the provisions apply to retailers, some do not, An anomaly of the code revision organization of Title 16 is that there are two separate provisions governing the suspension or revocation of a retailer’s license; BR § 16-210 and BR § 16-306. Section 16-210—'the more expansive of the two—seems to have been the “go-to” statute for subsequent amendments. See Sanchez v. Potomac Abatement, Inc., 198 Md.App. 436, 449, 18 A.3d 100 (2011), aff'd, 424 Md. 701, 37 A.3d 972 (2012) (discussing this legislative phenomenon).

We now fast-forward to 1994—the same year the General Assembly made major changes to CL § 10-107. The Legislature passed Chapter 464, Laws of 1994, a departmental bill that augmented the Comptroller’s authority over tobacco licensees. One significant change provided that the Comptroller could suspend or revoke a license if the licensee violates “Title 16 of the Business Regulation Article or regulations adopted under that title.” See BR § 16—210(b)(2). A more controversial addition authorized a licensee facing suspension or revocation of its license to petition the Comptroller to permit a monetary offer of compromise. Anti-tobacco advocates opposed this provision. See Written Testimony of the Maryland Coalition to Stop Illegal Sales of Tobacco to Minors (“If illegal sales make money, why would the seller stop selling to children even with a fine?”) (Mar. 25, 1994). To head-off this attack, the Governor’s Legislative Office and the Comptroller offered an amendment that exempted violations of CL § 10-107 from the Comptroller’s proposed compromise authority. The amendment was adopted and the legislation passed. The compromise authority was codified as BR § 16-212(e)(1).

One additional legislative development is worthy of note. In 2000, another departmental bill, HB 95, was introduced to require the Comptroller to investigate applicants for tobacco licenses and deny a license and or renewal for, among other reasons, if the applicant “is not a fit person to receive the license” or if “there are other reasons in the discretion of the Comptroller why the license should not be issued.” This language was deleted from the bill by the House Economic Matters Committee. Instead, the Committee amended BR § 16-210(a) to add certain convictions as an additional ground for suspension, revocation and reprimand. See pp. 680-81, 174 A.3d at 457-58, supra. A floor amendment in the House further limited a portion of this provision to certain misdemeanors that were “crime[s] of moral turpitude.” This measure was enacted as Chapter 97, Laws of 2000.

4. Impact of Failed Legislation

To support the circuit court decision, Two Farms relies in part on the “amendment-rejection theory.” It points to the failure in committee of HB 1015 in 2015. This bill, among other things, would have expressly authorized the Comptroller to suspend or revoke a license if the licensee failed to comply with laws regulating the sale of tobacco products to minors. In addition, language was deleted from what became Chapter 464, Laws of 1994 that would have mandated a license suspension for persons convicted of violating CL § 10-107.

Court of Appeals decisions on the amendment-rejection theory are not uniform. Compare Allied, 332 Md. at 304, 631 A.2d 77 (The failure to enact legislation prohibiting minors access to cigarette vending machines strongly suggests that there was no intent to allow local governments to enact such legislation) with Goldstein v. State, 339 Md. 563, 570, 664 A.2d 375 (1995) (Courts are reluctant to infer legislative intent from legislative inaction where there are several possible reasons for defeat).

The amendments “rejected” here show that there can be no easy reliance on the amendment-rejection theory. The 2015 legislation was largely a revenue measure that would have raised $4.4 million in annual tobacco licensing fees by 2020. Fiscal & Policy Note on HB 1015 (March 10, 2015). To think the bill was killed in a single committee because of a provision authorizing license suspension/revocation would be blinking reality. The same would be true of the 1994 legislation that would have mandated license suspension for convictions of CL § 10-107. Such a rejection tells us nothing about the General Assembly’s views on authorizing suspension, particularly where, at the same session, the Legislature enacted, as an exception to the Comptroller’s compromise authority, language that assumed that he had the power to suspend or revoke for illegal sales to minors. For these reasons, we will look to enacted, not rejected, legislation to resolve this case.

5. Are Illegal Tobacco Sales to Minors “Fraudulent or Deceptive Use” of a License?

Despite the widespread use in the Maryland Code of “fraudulent or deceptive use of a license,” there is no Maryland case that explains the meaning of these terms. However, out-of-state authorities, while not plentiful, are helpful.

Relevant caselaw does not mandate that the terms, “fraud or deceit,” in a licensing statute be given their common law meaning. Tompkins v. Bd. of Regents of Univ. of State of New York, 299 N.Y. 469, 87 N.E.2d 517, 521 (1949) (“Since the [physician licensing] statute is not concerned with private rights, it should not be construed to require that anyone actually has been misled so long as the intent is present.”); and Hughes v. Bd. of Architectural Examiners, 68 Cal. App.4th 685, 80 Cal.Rptr.2d 317, 322 (1998) (“There is nothing in the law or logic that requires the existence of a victim ... before the Board may order a license revoked as part its efforts to protect the people of California from unscrupulous conduct”). See generally, Brian Rubens, Common Law Versus Regulatory Fraud: Parsing the Intent Requirement of the Felony Penalty Provision of Food, Drug, and Cosmetic Act, 724: U. Chic. L. Rev. 507 (2005).

This Court expressed similar views in Stidwell v. Md. State Bd. of Chiropractic Examiners, 144 Md.App. 613, 799 A.2d 444 (2002). There, we upheld the denial of certification of a massage therapist with respect to an applicant previously convicted of solicitation of prostitution. One ground for the denial was Stidwell’s conviction for a “crime of moral turpitude.” Rejecting her assertion that the statute embraced the common law definition, we said:

Stidwell would benefit if our analysis ended with these criminal cases, ... Her conviction, however, surfaced in the field of administrative law, where “moral turpitude” has evolved from its common law trappings into an even more fluid descriptive tool. Indeed, while Maryland’s administrative and regulatory statutes repeatedly use the phrase “moral turpitude,” that use is variable and inconsistent. Our review of theses [sic] statutory provisions reveals that, whereas for trials, the expression “moral turpitude” speaks primarily to truthfulness, for the business of professional licensing and public appointments, the expression strikes the broader chord of public confidence in the administration of government. That is, a person who has credibility to testify may not have the public’s confidence to practice certain professions or to serve on a governmental board.

Id. at 618-19, 799 A.2d 444.

Caselaw aside, there is another reason why BR § 16-210(a)(2) does not lock into place common law understandings of fraud and deceit. We know from the 1988 Tax—General revision, see p. 686, 174 A.3d at 460, supra, that when the “fraud or deceit” language was enacted, the General Assembly was codifying so-called inherent agency authority derived from statutory source law, not from the common law.

Does freedom from the confines of the common law advance the Comptroller’s case past the goal line? Not if just the text of § 16-210(a)(2) is our focus.

Highly instructive is the decision of the New York Court of Appeals in Tompkins, 87 N.E.2d 517. At issue was the proper interpretation of the words “fraud or deceit in the practice of medicine” as grounds for discipline in a physician licensing statute. Doctor Tompkins issued prescriptions for morphine to three persons—one, who was an agent and another, an informant for the Federal Bureau of Narcotics. Tompkins believed that each was an addict, but on the prescription, he noted that they were diagnosed with renal colic. Although the Board contended that the physician’s action violated federal and state law, the court said it would only consider whether the “fraud or deceit charge” had been demonstrated. Id. at 520-21. The appellate court went on to note:

[I]t is urged that there is no proof of respondent’s intent to defraud any one. The board insists that the terms “fraud or deceit in the practice of medicine” are equivalent in meaning to “unprofessional conduct”, which is a ground for discipline in other professions than medicine .... Both contentions are wide of the mark. The words “fraud or deceit” must be read in light of their traditional meaning in the law .... and cannot be synonymous with “unprofessional conduct” a term which may signify activity quite unlike fraud in the customary sense.

Id. at 521.

Addressing the question of what persons were misled, the Court of Appeals said:

The issuance of a prescription for narcotic drugs to an addict without proper medical basis is clearly an act which is calculated to deceive those whose legitimate concern is the enforcement of the laws controlling trade in and consumption of narcotics. Such a prescription is more than a direction to the pharmacist. It plays an integral part of the system of control and, if not a true prescription, may throw that system awry. It is clear that respondent was conscious of those facts, and therefore we must hold that his conduct constituted “fraud and deceit” ’ under section 6514.

Id. (Emphasis added). The Tompkins court identified the parties hypothetically deceived—law enforcement officers who enforce the narcotics laws—even though the federal government, through the use of an agent and an informant, was not in fact deceived by the doctor’s actions.

Although much in Tompkins is helpful to the Comptroller’s case, one critical fact appears there and not here: Dr. Tompkins falsified his prescriptions. From a purely textual analysis, the Tompkins case takes the terms “fraudulent or deceptive” use of a license about as far as they can go. However, the Comptroller has another arrow in his quiver—BR § 16-212(e)(1).

6. What effect should be given to § 16-212(e)(1)?

The most perplexing issue in this case is what meaning we should ascribe to BR § 16-212(e)(1)’s exception to the Comptroller’s power to compromise a license suspension or revocation if the licensee violates CL § 10-107’s prohibition on the sale of tobacco products to a minor. It seems obvious that when the General Assembly enacted this provision in 1994, it thought the Comptroller already had the power to suspend or revoke a license for such violations.

The Comptroller argues that the only language the Legislature must have had in mind is BR § 16-210(a)(2)’s authority to sanction a licensee for fraudulent or deceptive use of its license—an interpretation we have previously noted does damage to the text. Two Farms contends that the reference in § 16—212(e)(1) must be to § 16-210(a)(6)(ii)’s power to suspend or revoke if a licensee is convicted of “a misdemeanor that is a crime of moral turpitude .... ” However, this proffered construction is extremely doubtful, because the quoted language was not added to the law until 2000—six years after § 16-212(e)(1). The hardest alternative to accept is that the General Assembly was simply mistaken when it thought the Comptroller had the power to suspend or revoke a license for illegal tobacco sales to minors. While the 1994 change is not controlling as to the meaning of preexisting law, it is some indication of legislative intent. Moreover, we strive to give effect to all of the language in a statute and to avoid a construction that would render BR § 16-212(e)(1) superfluous or illusory. See pp. 682-83, 174 A.3d at 458-59, supra. In light of this principle, we consider one more alternative construction of the 1994 exception.

7. Does the Comptroller have the “implied” or “inherent” authority to suspend or revoke a license for illegal sales of tobacco products to minors?

As Justice Frankfurter has suggested, we now explore “what is below the surface of the statute and yet fairly part of it.” Frankfurter, supra, 47 Colum. L. Rev. at 533. The text and legislative history of the relevant statutes make it clear that CL § 10-107 and Title 16 of the Business Regulations Article are joined at the hip. In 1994, the General Assembly expressly included Title 16 licensees within the prohibition of CL § 10-107. At the same session, the Legislature amended BR § 16-210(a) to include violations of Title 16 as a ground for suspension or revocation of a license. And the same legislation included the troublesome exception to BR § 16-212(e) for CL § 10-107 violations—a further indication that the two statutes are tied together.

The 1994 amendments to CL § 10-107 reinforce Judge Rodowsky’s conclusion that this provision creates a “class of ineligible purchasers.” Allied Vending, 382 Md. at 327, 631 A.2d 77. Because licensees may only sell tobacco products to a lawful “consumer,” BR § 16-101(e), a licensed retailer illegally making such a sale to a minor is acting outside the scope of its license and thus, violates Title 16. Does the law leave the licensing agency, and the Comptroller, powerless to discipline a licensee under such circumstances? We think not.

According to 61 Am. Jur. 2d Licenses <& Permits at § 66, “[i]n the absence of constitutional limitations, the ultimate authority from which a license to carry on as a particular activity derives[,] has inherent power to withdraw the license.” See also State ex rel. Morris v. West Virginia Racing Comm., 133 W.Va. 179, 55 S.E.2d 263, 271 (1949) (“[T]he power vested in a board or commission to issue a license ... implies the power to revoke a license for good cause.”); and Matter of A-1 Jersey Moving & Storage, Inc., 309 N.J.Super. 33, 706 A.2d 752, 755-56 (1998) (A licensing body with disciplinary authority has the inherent power to revoke a license for failing to comply with lesser sanctions, even though the licensing statute does not list this offense as a ground for suspension or revocation). See also Advice Letter of Special Assistant Trest-man, supra at n. 18 (“The Comptroller’s issuance of a license to sell cigarettes at retail contemplates that the licensees will sell cigarettes in a lawful manner.”).

At one time—more than 70 years ago—Maryland courts would not have subscribed to such a rule. In 1943, in Burley v. Cty. of Annapolis, 182 Md. 307, 34 A.2d 603 (1943), a divided Court of Appeals overturned a municipality’s revocation of a billiards license. The revocation was premised on the fact that gambling was occurring on the premises, a cause not specified in the licensing ordinance. Citing American Jurisprudence and other authorities, the majority said: “Where a statute or ordinance authorized the revocation for causes enumerated, such licenses cannot be revoked on any ground other than the cause specified.” Id. at 311, 34 A.2d 603 (Internal quotation omitted). In the last 70 years, no Maryland case has cited Burley for this proposition. In 1991, West Virginia’s highest court suggested that the Maryland case was contrary to the rule recognized by the majority of jurisdictions for certain implied grounds for licensee discipline. Mounts v. Chafin, 186 W.Va. 156, 411 S.E.2d 481, 487 (1991). And as noted earlier, p. 694, 174 A.3d at 465 supra, 51 Am. Jur. 2d Licenses & Permits at § 56 now recognizes the inherent power of a licensing agency to withdraw a license.

More importantly, the Court of Appeals has broadly affirmed the implied authority of licensing agencies in Lussier v. Md. Racing Comm’n, 343 Md. 681, 684 A.2d 804 (1996). There, the Court upheld the Commission’s authority to impose a monetary penalty of up to $5000 for violations of an agency regulation, despite the lack of express statutory authorization. See also Thanner Enterprises, LLC v. Baltimore Cnty., 414 Md. 265, 276-77, 995 A.2d 257 (2013) (citing Lussier for the proposition that a sanction imposed by a licensing agency may be “impliedly authorized”).

Whether Burley is still good law is an issue for the Court of Appeals. We need not decide it here. The text and history of the relevant statutes in this case manifest a legislative intent not present in Burley—that aside from the express statutory-grounds for suspension or removal of a retailer’s license—an implied cause exists for illegal sales to minors that would violate CL § 10-107.

First, in Title 16 of the BR Article—and 56 other licensing statutes rewritten during the code revision process—the General Assembly itself made it clear that licensing authorities have an implied, if not “inherent,” power to suspend or revoke a license for certain “fundamental” reasons. See pp. 684-86, 174 A.3d at 460, supra.

Second, like a fraudulent application for or use of a license, acting outside the scope of a license is a fundamental ground for suspending or revoking a license.

Third, a retail licensee acts outside the scope of its license when it illegally sells tobacco products to a minor, an ineligible purchaser, in express violation of CL § 10-107. Such misconduct impliedly violates Title 16 of the BR Article, a specific ground for license suspension or revocation under the 1994 amendment to BR § 16-210(b)(2).

Fourth, CL § 10-107 expressly embraces retail licensees and BR § 16—212(e)(1) ties licensee discipline to violations of CL § 10-107.

In short, the Comptroller has not pulled this ground for suspension out of thin air. Suspension for illegal tobacco sales to minors is consistent with the text and history of the relevant statutes and the express assumption of the General Assembly. To conclude otherwise would lead to an absurd and unreasonable result that the holder of a retail license is immune from administrative sanction for harmful conduct, despite the Legislature’s efforts to tie both together. Finally, our interpretation does not render BR § 16-212(e)(1) ineffectual or surplusage or run counter to the language of the statute.

Thus, we conclude that a retailer that illegally sells tobacco products to a minor may have its license suspended under BR § 16-210(b)(2) for violating “Title 16 of the Business Regulations Article.”

8. Who Wins? Who loses?

The Comptroller may have won the war in this case; but he has lost this battle. A court may not uphold an agency decision on any basis other than the findings or reasons stated by the agency. Johnson v. Criminal Injuries Compensation Bd., 145 Md.App. 96, 106, 801 A.2d 1092 (2002). While a court’s decision may be upheld as right for the wrong reason, an agency decision must be “right for the right reason.” Mueller v. People’s Counsel for Baltimore Cnty., 177 Md.App. 43, 84, 984 A.2d 974 (2007).

Two Farms was accused of violating BR § 16-210(a)(2) for fraudulently or deceptively using its license and adjudicated liable for the same reason. We cannot affirm the Comptroller’s decision on this basis and, in fact, reject that administrative determination. Because the agency here is not right for the right reason, we must uphold the circuit court’s decision in favor of Two Farms.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      , Section 13-12-103 of the Baltimore County Code states:
      (a) An owner may not distribute to a minor: (1) Any tobacco product: (2) Tobacco paraphernalia; or (3) A coupon redeemable for a tobacco product.
      (b) A person other than an owner may not: (1) Buy for or sell any tobacco product to a minor; or (2) Distribute tobacco paraphernalia to a minor.
      (c) A violation of this section has not occurred if the owner or other distributor: (1) Examined the purchaser’s or recipient's drivers license or another valid identification issued by a government entity or institution of higher education; and (2) That license or other identification positively identified the purchaser or recipient of a tobacco product as at least 18 years of age.
      Section 13-12-103.1 provides:
      (a) Each owner or other distributor shall verify by means of photographic identification containing the bearer’s date of birth that no person purchasing a tobacco product or tobacco paraphernalia is a minor.
      (b) No such verification is required for any person over the age of 26.
      (c) Proof that the owner or other distributor demanded, was shown, and reasonably relied upon proof of age shall be a defense to any action brought under this section.
      (d) An owner or other distributor is not required to verify the age of the individual purchasing the tobacco product if the owner or other distributor has personal knowledge, whether from personal acquaintance or from a previous demand for verification of age, that the purchaser is not a minor.

      . The Comptroller’s hearing officer did not explain how the illegal tobacco sales were in fact fraudulent or deceptive.

      . At oral argument, counsel for Two Farms stated that the employees probably just threw the citations away so that they would not get into trouble for selling to a minor.

      . We note that BR § 16-207(a) provides that "[ujnless a license is renewed for a one-year term as provided in this section, the license expires on the first April 30 after its effective date” and that BR § 16-304 states that "[a] county license expires on the first anniversary of its effective date.” In light of these provisions, it is likely that the license, which is the subject of the suspension in this case, has expired and may have been renewed. Nevertheless, we believe this case is not moot, because in the future, the Comptroller could use the existence of Two Farms's unlawful sales to minors against the retailer in future proceedings, see Thana v. Bd. of License Comm’r for Charles Cnty., 226 Md.App. 555, 568, 130 A.3d 1103 (2016), most notably in the Comptroller's consideration of a license renewal. See BR § 16-207(c)(1) and § 16—210(d).

      . Two Farms presents the issue in the following terms:
      Where BR § 16-210(a)(2) authorizes the Comptroller to suspend a tobacco license if the licensee "fraudulently or deceptively uses a license,” did the Circuit Court correctly rule in favor of a licensee who unwittingly sold tobacco to a minor, where the Comptroller admitted that there was no evidence of fraud or deceit?

      . In this case, the retailer sold cigars and chewing tobacco—actions which would appear to be governed by Title 16-5 of the BR Article. That Title regulates licensees for "other tobacco products.” Yet, the parties have treated this case as one involving the suspension of a "cigarette” license under Title 16. Given our resolution of this appeal, we need not address this anomaly.

      . Section 16—210(b) also provides:
      Subject to the hearing provisions of § 16-211 of this subtitle, the Comptroller may suspend or revoke a license if the licensee violates: (1) Title 12 of the Tax—General Article, or regulations adopted under that title; or (2) this title or regulations adopted under this title.

      . Section 10-107 of the Criminal Law Article (CL) (2002, 2016 Repl. Vol.) provides:
      (a) This section does not apply to the distribution of a coupon that is redeemable for a tobacco product, if the coupon is: (1) contained in a newspaper, magazine, or other type of publication in which the coupon is incidental to the primary purpose of the publication; or (2) sent through the mail.

        (b) (1) This subsection does not apply to the distribution of a tobacco product or tobacco paraphernalia to a minor who is acting solely as the agent of the minor's employer if the employer distributes tobacco products or tobacco paraphernalia for commercial purposes. (2) A person who distributes tobacco products for commercial purposes, including a person licensed under Title 16 of the Business Regulation Article, may not distribute to a minor: (i) a tobacco product; (ii) tobacco paraphernalia; or (iii) a coupon redeemable for a tobacco product.
      (c) A person not described in subsection (b)(2) of this section may not: (1) purchase for or sell a tobacco product to a minor; or (2) distribute tobacco paraphernalia to a minor,
      (d) In a prosecution for a violation of this section, it is a defense that the defendant examined the purchaser’s or recipient's driver’s license or other valid identification issued by an employer, government unit, or institution of higher education that positively identified the purchaser or recipient as at least 18 years of age.
      (e) (1) A person who violates this section is guilty of a misdemeanor and on conviction is subject to a fine not exceeding: (i) $300 for a first violation; (ii) $1,000 for a second violation occurring within 2 years after the first violation; and (iii) $3,000 for each subsequent violation occurring within 2 years after the preceding violation. (2) Enforcement of a civil penalty for a violation of this section precludes a prosecution for a violation of § 10-107 of the Criminal Law Article arising out of the same violation.
      (f) For purposes of this section, each separate incident at a different time and occasion is a violation.

      . Even though this case involves the civil violation of local ordinances, not a state criminal prosecution under CL § 10-107, the assumption of the Comptroller is that both involve illegal sales of tobacco products to minors and, if the latter is covered by BR § 16-210(a)(2), so would the former.

      . We will discuss only those amendments to the statutes that are relevant to this case.

      . The dissent disagreed with the majority's conclusion that the comprehensiveness of state laws regulating cigarette vending machines preempted local ordinances governing their placement.

      . Under the federal Synar Amendment, 42 U.S.C. § 300x-26, as a condition of receiving certain substance abuse grants from the federal government, Maryland must have a law that prohibits the sale of tobacco products to minors. CL § 10-107 is that law. In addition, the Synar Amendment requires the states to enforce their laws on the sale of tobacco products to minors in a matter that can reasonably be expected to reduce availability and to annually conduct random, unannounced inspections to ensure compliance with those laws. See 42 U.S.C. § 300x-26(b).

      . So too was fraudulent or deceptive obtaining of a license. These provisions were included in old Article 56 in anticipation of incorporating them into a Business Regulation article.

      . It would appear that the first regulatory statute to include "fraudulent or deceptive use” of a license as a ground for discipline was the Medical Practice statute. That occurred in 1968. Chapter 469, Laws of 1968. Now, as a result of code revision, 57 licensing statutes list this misconduct as a ground for discipline.

      . One reason for this separate treatment of retail licenses is that the license is actually issued by the clerks of court, not the Comptroller,

      . The Senate Floor Report on the bill states that this amendment "[prohibits the Comptroller from accepting an offer of compromise from a licensee who has violated provisions of law concerning sales to minors.” Senate Economic & Environmental Affairs Floor Report on SB 104 (1994).

      . A more modest fee bill that would have expressly authorized discipline authority with respect to tobacco sales to minors (HB 546) also failed in 2003.

      . We do not intend to express any view as to the meaning of these terms in other licensing statutes. It is possible that the "fraudulent and deceptive use” language may be colored by other statutory grounds for licensee discipline. For example, now under the Medical Practice Act, there are 41 other grounds for physician discipline. See Md. Code (1987, 2014 Repl. Vol., 2017 Cum. Supp.) Health Occupations Article, § 14-404(a).

      . The statute in Tompkins prohibited fraud or deceit in the practice of medicine, while in Hughes, the law punished fraud or deceit in the practice of architecture.

      , A February 17, 2005 advice letter to the Comptroller’s office from Special Assistant to the Attorney General Marlene Trestman stated that illegal tobacco sales to minors by licensees may deceive both the minor and the Comptroller's office. This letter superseded a July 15, 1998 legislative advice letter to the Hon. Samuel I. Rosenberg that questioned the Comptroller’s authority to suspend or revoke a cigarette license for violation of CL § 10-102. The 2005 letter said with some equivocation; "[M]inors are deemed incapable by their youth to reasonably avoid the harm from the sale and ... there may be implied representation by the merchant that the sale of the product is lawful.” (Emphasis added). The advice letter also noted that ”[t]he Comptroller's issuance of a license to sell cigarettes at retail contemplates that the licensee will sell cigarettes in a lawful manner.’’ With respect to the last point, it is noteworthy that in the Application of Cigarette and Other Tobacco Products (OTP) Licenses (available on the Comptroller’s website), the applicant must attest under penalty of peijury that it ”agree[s] to conform to all the laws, rules and regulations of the State of Maryland relating to the business in which they propose to engage under this license.” This application is used for seven different types of tobacco licenses, but not by those seeking a retailer’s license from the clerk of court. The record in this case does not contain Two Farms's application for a license.

      . The Comptroller also directs our attention to Stop Youth Addiction, Inc. v. Lucky Stores, Inc., 17 Cal.4th 553, 71 Cal.Rptr.2d 731, 950 P.2d 1086 (1998) for the proposition that a cigarette sale to a minor equates to a fraudulent, unfair or deceptive business act under California’s Unfair Competition Act. However, that statute defines "unfair competition” as "any unlawful, unfair or fraudulent business act or practice.” Id., at 1090 (Emphasis added). If the “unlawful” language appeared in BR § 16-210(a)(2), this case would be extremely relevant, but it does not.

      . On the other hand, we reject as unreasonable the notion that the Legislature in § 16-212(e)(1), had in mind only those rare or hypothetical cases of illegal sales to minors perpetuated by the actual fraud of retail licensees.

      . Aside from the fact that one provision uses the terms, “violation,” while the other uses "conviction,” there might be other difficulties with Two Farms's argument. At common law, a violation of CL § 10-107 probably would not have been a crime of moral turpitude, although it might qualify under the more liberal interpretation we have given to "moral turpitude” in licensing statutes. See Stidwell, 144 Md.App. 613, 799 A.2d 444. This is a question we need not decide, because this case does not involve a conviction for violating § 10-107.

      . The Latin term for this aid to statutory construction is in pari materia—statutes on the same subject are construed together.

      . No doubt, such licensees were already covered by the statute. However, the express inclusion is not without significance.

      . Burley also represented a rote application of the canon of statutory construction expressio unius est exclusio alterius (The expression of one is the exclusion of the other). More modern Court of Appeals decisions state that this canon should be used with "extreme caution” so that it is not applied to override the intention of the Legislature. Breslin v. Powell, 421 Md. 266, 294, 26 A.3d 878 (2011); and Potomac Abatement, Inc. v. Sanchez, 424 Md. 701, 112-13, 37 A.3d 972 (2012).

      . Because the Legislature has so forcefully expressed its intent in linking the licensing provisions and CL § 10-107, we conclude that an illegal sale to a minor is an act outside the scope of the license. We express no view on what other actions, if any, by a licensee would fit that description or would constitute an implied ground for disciplinary action.

      . Subsection (b)(2) also authorizes licensee discipline for violations of regulations adopted under Title 16. If the Comptroller exercises the disciplinary authority that we recognize here, it may be wise for the office to adopt a regulation expressly specifying violation of a statute or ordinance barring illegal sales of tobacco products to minors as a ground for license suspension or revocation. Such a regulation would obviate any fair notice issues.