Baziz v. State

²⁸⁷ HARRELL, Judge. After a bench trial in the Circuit Court for Baltimore County, appellant, Jack I. Baziz, was convicted of possession of cocaine with intent to distribute it. He was sentenced to three years in prison, with eighteen months suspended in favor of two years of probation. This appeal followed.

On appeal, appellant contends that the suppression judge erred in denying his motion to suppress incriminating evidence, including a confession, obtained as a result of his arrest, because the arrest was made without a warrant and without probable cause. We agree with appellant’s contention. Accordingly, we must reverse the conviction. A. Detective Douglas Kriete of the Baltimore County Police Department was the first witness to testify at the suppression hearing.

Kriete testified to the following facts. On 26 October 1990, he was involved in an investigation of Simon Alpert. Prior to 26 October 1990, Alpert made a cocaine sale to one of Kriete’s undercover colleagues, Detective Jim Dorsey, in Alpert’s apartment in the Worthington Place Apartment Complex (Complex) in Owings Mills, Maryland. Alpert had arranged for another transaction with Dorsey to take place on 26 October 1990 at 1:00 p.m. in the parking lot adjacent to the Complex.

Kriete was assigned to watch the transaction and, via radio, inform the other members of the investigation team of what transpired. From an observation post across the street from the Complex, Kriete could see through a large glass window on Alpert’s building into the hallway outside Alpert’s apartment, but not into the apartment itself. At the scheduled time of the sale, Kriete saw Alpert and appellant emerge from Alpert’s apartment. Kriete was not acquainted with appellant and had no information concerning him.

Alpert and appellant conversed in the hallway outside Alpert’s apartment and looked around the parking ²⁸⁸ lot adjacent to the Complex through the large glass window. Dorsey was already waiting in the parking lot. Alpert entered the elevator, then emerged from the building and approached Dorsey in the parking lot. The two conversed.

They then entered Alpert’s car and drove off together. Appellant, who had remained at the window up to that time, reentered Alpert’s apartment. Alpert and Dorsey returned to the parking lot seven or eight minutes later. After they conversed briefly, Dorsey left.

Alpert returned to his apartment. Ten minutes later, Alpert and appellant reemerged from the apartment, went to the parking lot, and drove off together in Alpert’s car. Kriete did not see any exchange of money or drugs between Alpert and appellant. Based upon his observations and information about Alpert, as well as his eight years of experience as a police officer and four years of experience as an officer in the Narcotics Division, Kriete concluded that appellant was Alpert’s source of cocaine.

Kriete explained that drug sources generally do not wish to meet ultimate purchasers, preferring instead to “remain back in the background and observe in the background.” Kriete attached significance to the fact that the previous transaction between Alpert and Dorsey took place in Alpert’s apartment: [I]t seemed to us that [Alpert] did not want Detective Dorsey up there because of a certain reason. [Appellant] maintained his status as far as he could, but yet oversaw all of the actions that were taking place at that time. Furthermore, Kriete was aware that Alpert’s usual source of drugs was incarcerated, Alpert having previously mentioned this fact to Dorsey, who in turn passed it along to the investigation team. According to Kriete, the latter fact, combined with appellant’s presence at the date and time scheduled for the cocaine sale, gave heft to his conclusion that appellant was Alpert’s new source of cocaine: Alpert’s source was no longer available to him, which indicated to us that he does ... have another source of ²⁸⁹ cocaine, the reason the ... buy was set up on that particular day. Kriete admitted on cross-examination, however, that it is “not uncommon” for drug dealers to keep stashes of drugs obtained from one source at different locations.

Sergeant David Diseroad, who was in charge of the investigation on 26 October 1990, also testified at the suppression hearing. Diseroad testified to the following facts. He was kept informed of events by Kriete and Dorsey and knew that the scheduled sale had been consummated. Diseroad followed Alpert’s car after Alpert and appellant had left the Complex.

Alpert’s car pulled into a car wash parking lot, dropped appellant off, and drove away. Diseroad, after parking his car, followed appellant into the office of the car wash. Diseroad saw that appellant had “a wad of cash kind of rolled up in his hand.” Diseroad pulled out his badge and identified himself to appellant as a police officer. He told appellant that he wanted appellant to answer some questions and to step outside with him.

Appellant acted “relatively nervous[.]” As Diseroad and appellant walked out the door to the office of the car wash, two other police officers approached from their left. Diseroad directed appellant toward the officers. At that point, “he [appellant] looked to his right ... away from the officers and he made a couple quick steps like he was going to run.” Diseroad and the other officers grabbed appellant and put him against a car, where they “conducted a search.” They found seven hundred dollars in appellant’s hand. The serial numbers of the bills matched those of the bills that Dorsey had given to Alpert in exchange for cocaine. 1 Detective Maurice Xenos was one of the officers at the car wash.

Xenos, like Diseroad, testified at the suppression hearing that after Diseroad and appellant exited the door to ²⁹⁰ the office of the car wash, “it looked like he [appellant] was going to take off. At that time we grabbed him.” After the officers had placed appellant against a car and begun to “pat him down for weapons[,]” Xenos testified, appellant, without being asked any questions, “told me [Xenos] to get two ounces of coke in the front of his pants.” Appellant, who testified on his own behalf at the suppression hearing, asserted that, up to the time he and Alpert left the Complex together in Alpert’s car, he was inside Alpert’s apartment and “was never at the window [in the hallway outside Alpert’s apartment].” Appellant also provided a far different account than did Diseroad and Xenos of what transpired at the car wash. Appellant testified that he walked into the office of the car wash with fifty dollars in his hand to pay for his car, which had been waxed. Thereafter, according to appellant, the following occurred: In front of my face came a badge like this.

I turned around real slowly and the officer told me to follow him outside. I did. I immediately followed him outside. When I opened up the door all I saw were a lot of people standing to the left, which turned out to be police officers. [One of the police officers] looked at me and he said, you look pretty quick, go for it.

Exactly. ... I wouldn’t run. They grabbed me, threw me on the car with my head first, and reached around my jacket ... handcuffed me. And then I felt a metal — before they handcuffed me I felt a metal object to my head.

I turned my eyes and it was a gun. I was handcuffed. Then they lifted me up and they started to search me for drugs and weapons. And [one of the police officers] reached on my crotch and he said, what is this?

I said, it’s two ounces of cocaine; He pulled it out and he reached in my crotch and pulled out the big wad of money and reached over and handed it to the other police officer. ²⁹¹ The circuit court denied the motion to suppress, ruling that the police had probable cause to arrest appellant based upon Kriete’s observations. Let’s forget about the question of whether he started to run or whether they thought he was going to run or whether he did actually run or whether he didn’t run. That is not the point. I am not too concerned about what happened that late in the situation.

What I see is this, the police have an awareness of the fact that Alpert’s premises has been used and is being used for transactions involving controlled dangerous substances____ They know that activity is taking place there. They are about to execute a warrant and I don’t think that is of great significance. 2 Because I don’t know what the warrant said. That is not before me. But at least they felt they had enough to go ahead with a warrant— Shortly before they are ready to pounce on Mr. Alpert and execute the warrant, and with the knowledge in addition that Alpert’s source or apparent source is out of commission, they see [appellant] in the area leaving the apartment — taking the testimony offered by the State in the light most favorable to the [S]tate 3 — standing, observing the general scenery, talking to Al[p]ert.

Don’t know what was said of course. Al[p]ert then leaves and goes to the parking lot, meets [Dorsey], makes a controlled sale. [Appellant] is still up ²⁹² in the area. He is still there when Al[p]ert comes back. Then they, the two of them, leave.

Now, there is nothing ... that happens after that that is of any great concern. It’s the fact that [appellant] is there in the vicinity of the premises where transactions are taking place, interchanging conversation and observing what could have been the comings and goings, probably was the comings and goings, the detectives and the buy, which we know was in fact made ... I will certainly grant you ... that it’s thin. But I think there is enough there to establish [appellant] as a viable suspect in this transaction.

I think they had enough at that time, at that point, to make an arrest. The rest is window dressing. Whether he bolted, whether he didn’t bolt, whether he was patted down first or handcuffed first, or whether there was a gun brought out ... I think the probable cause is established at the time of these observations, connected with his activities at the time he was there.

He’s there after the owner of the premises leaves. Waits for him to come back. There is some relationship there. The relationship centers around an actual buy.

Whether he participated in it directly is a matter of another question altogether. What we are concerned with here, do the officers have enough probable cause to make an arrest. I think they do. The motion to suppress is denied.

B. We begin by defining the issue before us. “[E]vidence seized pursuant to an illegal arrest is tainted and, therefore, not admissible against the person illegally arrested.” Tr usty v. State, 67 Md.App. 620, 622-23 , 508 A.2d 1018 (1986), modified, 308 Md. 658 , 521 A.2d 749 (1987). In order to be lawful, an arrest must be made either with a warrant or with probable cause. Id., 67 Md.App. at 623 , 508 A.2d 1018 . Warrantless Fourth Amendment intrusions are presumptively unreasonable, ... and the burden is allocated to the ²⁹³ State of showing adequate justification for the exceptional departure from the Fourth Amendment norm.

Id., quoting DiPasquale v. State, 43 Md.App. 574, 578 , 406 A.2d 665 (1979) (citations omitted). Appellant’s arrest was made without a warrant. The question before us, therefore, is whether the State, at the hearing on the motion to suppress, met its burden of demonstrating probable cause for the arrest. In reviewing the evidence presented below, we are mindful of our duty to make an “independent reflective constitutional judgment” of the circuit court’s conclusions, Parker v. State, 66 Md. App. 1, 10 , 502 A.2d 510 (1986), based upon the findings of fact of the circuit court, unless those findings are clearly erroneous.

McAvoy v. State, 314 Md. 509, 514-15 , 551 A.2d 875 (1989). It is important to make clear that the issue before us is not whether the police were justified in stopping appellant at the car wash and frisking him for weapons. “An investigatory stop may be made upon ‘specific articulable facts’ which would lead a reasonable police officer at the inception of the stop to conclude that a brief detention of the individual was appropriate.” State v. Williams, 84 Md.App. 738, 744-45 , 581 A.2d 864 (1990) (citations omitted). See also Payne v. State, 65 Md.App. 566, 570 , 501 A.2d 484 (1985) (officer may frisk a person for weapons if the officer “perceives conduct which reasonably leads him to believe that the person ... may be armed and dangerous”). The quantity and quality of evidence required to create reasonable suspicion under the stop and frisk exception to the Fourth Amendment warrant requirement is significantly less than that required to show probable cause: Reasonable suspicion is a less demanding standard than probable cause hot only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to ²⁹⁴ establish probable cause but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

State v. Williams, 84 Md.App. at 745 , 581 A.2d 864 (citations omitted). The circuit court expressly declined to rule on the evidence regarding what happened at the car wash. Accordingly, we cannot address the issue of whether the police actually made an investigatory stop, as the testimony of Diseroad and Xenos suggests, or simply placed appellant under arrest, as appellant’s testimony suggests. As we have already indicated, “first-level facts,” such as the credibility of the testimony of a witness, are the province of the circuit court.

Parker v. State, 66 Md.App. at 10-11 , 502 A.2d 510 . An appellate court can reject the testimony of a witness credited by the triers of fact only when the testimony is inherently improbable. There must exist a physical impossibility that the statements of the witness are true or their falsity must appear without resorting to inferences or deduction. The appellate court may not substitute its judgment with respect to the credibility of a witness for that of the jury and trial judge on the ground that the evidence is inherently improbable unless it is so clearly false and unbelievable that reasonable minds may not differ.

Borgen v. State, 58 Md.App. 61, 79-80 , 472 A.2d 114 (1984) (citations omitted). See also Dixon v. State, 23 Md.App. 19, 38 , 327 A.2d 516 (1974) (discussing difference between “first-level facts of ‘who, what, when and where’ ” and “ultimate, second-level, constitutional fact”). Since we cannot say that the testimony of either Diseroad and Xenos or appellant is “so clearly false and unbelievable that reasonable minds may not differ[,]” and since the circuit court declined to express an opinion as to the truth of their testimony regarding what occurred at the car wash, except ²⁹⁵ to state that such evidence constituted “window dressing,” 4 we are without any facts concerning events that occurred at the car wash upon which to base an independent judgment. Therefore, we must determine whether the warrantless arrest of appellant was based upon grounds sufficient to pass constitutional muster without considering events occurring after Alpert and appellant left the Complex.

It is also appropriate to note that the legality of appellant’s arrest may not be determined with the benefit of hindsight. See United States v. Di Re, 332 U.S. 581, 595 , 68 S.Ct. 222, 229 , 92 L.Ed. 210 (1948) (“In law it [the search] is good or bad when it starts and does not change character from its success”). Thus, the fact that appellant ultimately confessed to possession of two ounces of cocaine, and the fact that seven hundred dollars that Dorsey had given to Alpert in exchange for cocaine was recovered from appellant, cannot influence our consideration of whether the police had probable cause to arrest appellant. C. The circuit court found Kriete’s version of what he observed at the Complex to be credible.

We accept the court’s findings of fact. Based upon those findings, we now make our own appraisal of whether the circuit court was correct in ruling that appellant was lawfully arrested. We recognize that probable cause is not to be evaluated from a remote