Belote v. State

MATRICCIANI, J. Appellant, Darvell Lamar Belote, was arrested and charged with various crimes, including possession with intent to distribute controlled dangerous substances (“CDS”) and possession of drug paraphernalia. On January 22, 2010, the court denied appellant’s motion to suppress evidence. On January 26, 2010, a jury found appellant guilty of possession with intent to distribute CDS and three related charges that merged at sentencing. Appellant noted this appeal on January 27, 2010.

Questions Presented Appellant presents one question for our review, which we have reworded, for clarity: ⁵⁰ Did the trial court err when it denied appellant’s motion to suppress evidence? For the reasons set forth below, we answer yes and we reverse the judgment of the circuit court. Factual and Procedural History On June 26, 2009, police 1 responded to a home invasion and attempted murder in which the perpetrators stole a Microsoft Xbox video game system. Police learned that after the robbery, on August 6, 2009, a user account associated with that game system logged on to the internet.

Investigators traced the user account’s internet protocol address from that date and time to the Comcast Corporation, which had assigned it to an account with the physical address of 1010 Fairground Drive, Apartment 11, in Salisbury, Maryland. Further investigation revealed that Sharon Polk was the apartment’s lessee and that she resided there with two men, Keith Fitzgerald and Lamont Marvin Smith. Police applied for a warrant to search the premises. The application’s supporting affidavit stated that Polk’s criminal history included a conviction for theft under $100.00 and that intrusion without warning was necessary because Fitzgerald and Smith were known to a local drug task force as vendors of CDS with “a history of use of handguns related to CDS crimes.” 2 The circuit court issued a warrant to search the apartment for the stolen video game system, handguns and handgun ammunition, and footwear and clothing stained with blood.

Police executed the warrant on August 18, 2009, and found six people in the apartment, including appellant, who was in bed ⁵¹ with Polk. 3 According to police testimony, this was when they first became aware of appellant’s association with Polk, appellant having not been named or otherwise described in the warrant application. After securing the apartment’s occupants in the living room, police located the video game system and continued to search the premises for other evidence listed in the warrant. Upon searching Polk’s bedroom closet, police found a lock-box under a pile of clothes. Based upon the weight and noise of its contents when moved, police suspected that it contained the firearm and ammunition they were seeking.

The police picked the box’s lock and found forty-one small packages containing suspected crack cocaine, additional empty “baggies,” a digital scale, a folding knife, and a flavored “blunt” wrapper that can be used with tobacco but is often associated with marijuana use. Police continued to search Polk’s room and found a set of keys on her dresser. One of the keys opened the lockbox, and when police presented the set to Polk, she admitted that the keys belonged to her. Continuing, police located a lid and empty packaging matching the scale on her dresser and in her night-stand, respectively, both of which matched the scale later discovered in the lockbox. 4 There was no evidence or indicia of CDS on, in, or ⁵² near the dresser, other than the CDS and paraphernalia recovered from the lockbox.

Based upon these facts, police placed appellant under arrest for possession of CDS and drug paraphernalia. Upon arresting appellant, police “helped” him -with some of his clothes, 5 then searched and recovered from his pants a key that fit the lockbox. Appellant was charged with several crimes, including possession with intent to distribute CDS in violation of Maryland Code (2002), § 5-602 of the Criminal Law Article (“CR”), and with possession of paraphernalia in violation of CR § 5-619. Appellant moved to suppress evidence discovered from the search incident to his arrest, and at the conclusion of a hearing on January 22, 2010, the court denied appellant’s motion.

On January 26, 2010, a jury found appellant guilty of possession with intent to distribute CDS and three related charges that merged at sentencing. For these crimes, the court imposed twenty years of incarceration, with all but ten suspended, and two years of supervised probation upon release from confinement. Appellant noted this appeal on January 27, 2010. Discussion Appellant argues that the trial court erred when it denied his motion to suppress evidence of the key because police found it only after arresting him without probable cause.

Under the “fruit of the poisonous tree” doctrine, ⁵³ evidence acquired by virtue of an illegal arrest will be excluded from a subsequent criminal prosecution. Myers v. State, 165 Md.App. 502, 524 , 885 A.2d 920 (2005) (citing Wong Sun v. United States, 371 U.S. 471, 485-86 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963)). The State conceded at trial that appellant’s arrest was not related to the search warrant being executed, and so the case turns on whether police had probable cause to arrest appellant. See Maryland v. Pringle, 540 U.S. 366, 369-70 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003) (warrantless arrest for a felony or misdemeanor committed in the officer’s presence is consistent with the Fourth Amendment if the arrest is supported by probable cause). 6 Our review under these circumstances is guided by several principles, which the Court of Appeals summarized in State v. Wallace, 372 Md. 137, 144 , 812 A.2d 291 (2002): Our review of a circuit court’s denial of a motion to suppress evidence under the Fourth Amendment, ordinarily, is limited to the information contained in the record of the suppression hearing and not the record of the trial.

When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favorable to the State as the prevailing party on the motion. Even so, we review legal questions de novo, and where, as here, a party has raised a constitutional challenge to a search or seizure, we must make an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case. We will not disturb the ⁵⁴ trial court’s factual findings unless they are clearly erroneous. (Citations omitted.) The parties have framed the issues such that our decision turns on probable cause, where we are guided by another set of oft-cited principles, collected over years and cases: Probable cause ... is a nontechnical conception of a reasonable ground for belief of guilt.

A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion. Our determination of whether probable cause exists requires a nontechnical, common sense evaluation of the totality of the circumstances in a given situation in light of the facts found to be credible by the trial judge. Probable cause exists where the facts and circumstances taken as a whole would lead a reasonably cautious person to believe that a felony had been or is being committed by the person arrested. Therefore, to justify a warrantless arrest the police must point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the intrusion.

To determine whether an officer had probable cause in a specific case, here probable cause to search[ 7 ] the reviewing court necessarily must relate the information known to the officer to the elements of the offense that the officer believed was being or had been committed. Wallace, 372 Md. at 148-49 , 812 A.2d 291 (internal citations and quotation marks omitted). In this case, we must determine whether the police had probable cause to suspect appellant of possession of a controlled dangerous substance and paraphernalia. Possession, according to CR § 5-101(u), “means to exercise actual or ⁵⁵ constructive dominion or control over a thing by one or more persons.” The statute recognizes that possession may be constructive or actual, exclusive, or joint.

Wallace, 372 Md. at 149 , 812 A.2d 291 (citing State v. Leach, 296 Md. 591, 596 , 463 A.2d 872 (1983)). Maryland Courts often invoke the following non-exclusive list of factors to determine whether the circumstances upon a suspect’s arrest indicate possession: 1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the contraband is found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband. Folk v. State, 11 Md.App. 508, 518 , 275 A.2d 184 (1971). We note that these factors are not entirely discrete because they can implicate each other — for example, mutual use and enjoyment naturally lends itself to proximity, so that the latter implies the former to a certain extent.

Nevertheless, the factors do not always coincide and are thus distinct concepts. With that in mind, we would add to that list two factors that have emerged in the time since Folk and that are particularly relevant to the case at hand. First, courts pay special attention to the nature of the premises where an arrest is made or search is executed, generally holding that a small or exclusive space increases probable cause to suspect criminal association among those present. Compare Dashiell v. State, 374 Md. 85, 102 , 821 A.2d 372 (2003) (“The relationship between a patron of a bar and the bar’s employee’s illegal drug trafficking is, generally, more tenuous than an individual’s relationship to the activities being conducted inside the private home in which they live.”), and Owens v. Lott, 372 F.3d 267, 279 (4th Cir.2004) (“[T]he residential nature of the premises and the fact that the search occurred during daytime or early evening hours presented the ⁵⁶ obvious risk that unsuspecting Mends, neighbors, or laborers would be present during the search.”), with State v. Kinney, 83 Ohio St.3d 85, 93 , 698 N.E.2d 49 (1998) (“The small, private nature of the premises lends support to a determination of probable cause.”), and People v. Broach, 111 Mich.App. 122, 125-26 , 314 N.W.2d 544 (1981) (“Given the exclusive nature of the premises and the proximity in time to an actual drug sale, the searching officers had probable cause to believe that defendant was involved with the illegal activity within the apartment.”).

Courts give special considerations to automobiles, in particular. Thus, in Wyoming v. Houghton, 526 U.S. 295, 304-05 , 119 S.Ct. 1297 , 143 L.Ed.2d 408 (1999), the Supreme Court distinguished Ybarra v. Illinois, 444 U.S. 85 , 100 S.Ct. 338 , 62 L.Ed.2d 238 (1979), based on the differing natures of the premises involved: [A] car passenger — unlike the unwitting tavern patron in Ybarra — will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing. A criminal might be able to hide contraband in a passenger’s belongings as readily as in other containers in the car — perhaps even surreptitiously, without the passenger’s knowledge or permission.[ 8 ] Second, courts will consider whether the circumstances indicate a common criminal enterprise. Maryland v. Pringle, 540 U.S. 366, 372-73 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003).

As noted, above, this factor is not entirely independent of the rest. In particular, the nature of the premises is one of the many forms of evidence that can imply common enterprise. Thus, in attempting to delineate “common enterprise” as an independent factor, the Pringle Court cited Houghton for the proposition that the nature of a vehicle makes it more likely that the occupants are involved in a ⁵⁷ “common enterprise.” Id. The Pringle court also indicated that the nature of the evidence discovered could indicate a common enterprise, such as the presence of items that exceed the capacity of one person to possess.

Id. at 373 , 124 S.Ct. 795 (“The quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.”). 9 Having laid the groundwork of our analysis, we now examine the facts known to the police at the time of appellant’s arrest to determine whether they gave rise to probable cause for his arrest for possession of CDS and drug paraphernalia. The paraphernalia charges included both the items found inside the lockbox as well as the digital scale lid and packaging recovered from Polk’s dresser. Because our analysis of the latter depends in large part upon our analysis of the former, we begin by examining appellant’s relation to the items inside the lockbox. For reasons stated above — and with no small difficulty — our analysis must ignore the fact that the police found a key to the lockbox in appellant’s pocket, and we must consider only the facts known to them at the time of his arrest.

With that fact set aside, the State argues that appellant’s presence in Polk’s bed (and consequently her apartment), and their proximity to the lockbox, gave police probable cause to arrest him for possession of the CDS and paraphernalia found inside that lockbox. The State further argues that the facts allowed the police — and circuit court — to infer that appellant and Polk ⁵⁸ were involved in an ongoing relationship and thus a common enterprise -with respect to the lockbox and its contents. There is a string of reported decisions holding that similar circumstances would be insufficient to convict someone in appellant’s position, but there is a dearth of analysis when the question is probable cause. See White v. State, 363 Md. 150, 167 , 767 A.2d 855 (2001) (“[A] rational fact finder may not infer in the present case that Petitioner had dominion and control over the cocaine found in a sealed box in the trunk of a vehicle in which he apparently