Blasi v. State

WOODWARD, J. On January 18, 2005, the Circuit Court for Harford County convicted appellant, Michael James Blasi, of driving under the influence of alcohol, in violation of Maryland Code (1977, 2002 Repl.Vol.), section 21-902(a)(l), of the Transportation Article (hereinafter “Trans. Art., § _”). On appeal, appellant raises two important issues for our consideration. First, appellant asks us to find that the traffic stop was unlawful, because the police officer did not have probable cause to believe that appellant made an unsafe lane change in violation of Trans.

Art., § 21 — 309(b). Second, appellant requests that we decide, for the first time in Maryland, that the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a “search” within the meaning of the Fourth Amendment to the U.S. Constitution, and consequently, the officer must have probable cause that the driver is under the influence of alcohol before conducting such tests. ⁴⁸⁹ For the reasons set forth herein, we hold that: (1) under the facts of this case, the police officer had probable cause to believe that appellant made an unsafe lane change in violation of Trans. Art., § 21-309(b); and (2) the administration of field sobriety tests by a police officer constitutes a “search” within the meaning of the Fourth Amendment, but applying Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), the constitutionally mandated prerequisite for conducting such tests is reasonable articulable suspicion, not probable cause, that the driver is under the influence of alcohol. Accordingly, we shall affirm the judgment of the circuit court.

SUPPRESSION HEARING FACTS Appellant’s motion to suppress the vehicle stop and the evidence flowing from that stop came before the circuit court on January 18, 2005. The State called one witness: Trooper Harris of the Maryland State Police. Appellant testified on his own behalf, and called Karen Mitchell, his friend and a passenger in his vehicle during the stop at issue. Because the trial court found Trooper Harris “to be a very credible witness” and “accepted] his version of what he observe[d],” we will set forth only those facts of the events in question that appear in the testimony of Trooper Harris.

On the night of March 17, 2004, Trooper Harris was assigned to traffic enforcement in Harford County. At approximately 11:30 p.m., while on secondary patrol in the vicinity of northbound Route 24 at Wheel Road in Bel Air, he observed a medium colored Acura traveling northbound in lane two on Route 24. 1 Trooper Harris, in his marked patrol car, was in lane one, a short distance behind the Acura. 2 There was “medium traffic” on the road at that time. ⁴⁹⁰ While following the Acura, Trooper Harris observed two things: (1) the vehicle was unable to drive within its lane, and (2) the vehicle’s speed fluctuated about eight to ten miles an hour above and below the posted speed limit of 55 m.p.h. Trooper Harris described the vehicle’s movements: [The Acura was] failing to drive within a single lane. In the slow lane there would be a solid white l[i]ne that would be separating the shoulder and the right lane, and a dotted line would be separating the lane that I was in and the Defendant’s lane.

I noticed the vehicle would travel over the right shoulder. When I say travel over the right shoulder, the whole vehicle wasn’t on the shoulder, two wheels were over the solid line. The vehicle would come back across the lane that I was traveling in and two wheels would go over the dotted line. At no time was the vehicle completely over the white line or completely over the dotted line.

Trooper Harris observed the Acura leave its lane twice: once over the solid white line separating lane two from the shoulder, and then back the other direction, across the dotted line, and into the lane occupied by Trooper Harris. He noted that “[a]lmost half’ of the vehicle swerved over the solid white line and on to the shoulder of Route 24. These movements were in conjunction with the vehicle speeding up to 65 m.p.h., and then dowm to 45 m.p.h. The vehicle’s movements and variations in speed occurred over approximately one quarter of a mile, on a straight and level section of Route 24. 3 Trooper Harris was not aware of any external factor, thing, or other car that might have caused the Acura to leave its lane.

Trooper Harris noted, “I never lost sight of the vehicle.” Based on his observations, Trooper Harris activated his emergency equipment and initiated a traffic stop of the Acura. Upon approaching the Acura, Trooper Harris advised appel ⁴⁹¹ lant, the driver, as to why he was stopped, at which time Trooper Harris detected the odor of alcohol within the vehicle. Trooper Harris asked the driver for his license and registration. He identified the driver as appellant, Michael James Blasi.

Noting that appellant had a passenger in the vehicle, Trooper Harris sought to determine whether the driver or the passenger had been drinking. He asked appellant to get out of the car and step to the rear of the vehicle. As Trooper Harris stood an arm’s length away from appellant, he “detect[ed] a strong odor of alcoholic beverage emanating from [appellant’s] breath and person.” Trooper Harris observed that appellant’s “eyes were bloodshot and glassy,” and that his speech was “absolutely slurred.” Trooper Harris asked appellant if he “had anything to drink,” to which appellant replied, “just a few.” Trooper Harris then asked appellant to submit to a battery of field sobriety tests; appellant responded, “no problem.” 4 Trooper Harris administered three standardized field sobriety tests: (1) the horizontal gaze nystagmus (“HGN”), (2) the walk-and-turn, and (8) the one-leg-stand. Prior to commencing the tests, Trooper Harris inquired of appellant as to whether he had any mental or physical impairments that would prohibit him from doing the field sobriety tests; appellant replied in the negative.

The field sobriety tests were conducted on the side of Route 24, between appellant’s vehicle and the police car. The surface was flat, level, and clear of debris. On the basis of the HGN test, which measures the involuntary jerking of the eye, Trooper Harris concluded that appellant had alcohol in his ⁴⁹² system. On the remaining tests, the walk-and-turn and one-leg-stand, appellant was unable to maintain his balance or walk heel to toe without stepping off the line.

At the conclusion of the tests, Trooper Harris placed appellant under arrest. At no time did appellant object to performing the field sobriety tests, and at all times appellant was polite and cooperative. In arguing the motion to suppress, appellant raised two issues: (1) that the initial stop of appellant was unlawful, and (2) that the field sobriety tests were unlawful because appellant was coerced into performing them, and further that the tests require probable cause because they constitute a “search in the person’s mind and cognitive abilities.” The State countered that the stop was proper based upon Trooper Harris’s observations of appellant’s vehicle as it traveled northbound on Route 24, and that “field sobriety tests are not a search.” After hearing the testimony and both parties’ arguments, the court stated in relevant part: In any event, I found the officer to be very credible and I so accept his version of what he observes. In a quarter to a half a mile the trooper sees the Defendant’s car go one half of the way over the shoulder line and back over to the left one half of the way over into another travel lane occupied by the officer’s vehicle.

This is quite different from the Rowe case, and all of this is on Route 24[,] which is a major highway. This is coupled with speeding up to sixty-five and dropping down to forty-five. All of this gives reasonable articulable suspicion to make the stop. Upon stopping the vehicle and encountering the driver[,] he smells alcohol.

Quite frankly, in fairness to the occupant driver he asks him to go to the rear so as to isolate the Defendant to make sure that the odor is coming from him and is not coming from another source inside of the car; i.e., the second individual. He goes to the back of the car and it ⁴⁹³ is coming or emanating from him, and the Defendant even acknowledges that he has had a few. Now, the trooper asks him to do some field tests and the Defendant consents. The Court finds absolutely no coercion, no promises, no threats, no subtle threats.

The Defendant due to his upbringing feels that he has no choice. The officer did nothing to coerce, et cetera. There is nothing coercive about him requesting him to come to the back of the car, nothing about the questions asked or about taking the tests, and the Court will deny the motion to suppress. The case immediately went to trial before the circuit court, sitting without a jury.

The State proceeded on only one charge, driving under the influence of alcohol in violation of Trans. Art., § 21-902(a)(l). Appellant entered a plea of not guilty, with consent to submission on an agreed statement of facts. Based on that statement, the court found appellant guilty and sentenced him to thirty days incarceration, a partially suspended fine, and three years of supervised probation.

Thereafter, appellant noted a timely appeal to this Court. STATEMENT OF ISSUES Appellant presents one issue with eight sub-parts for our review, which we have re-phrased as follows: 5 I. Whether the trial court erred by determining that the police officer had probable cause of a traffic violation that justified a traffic stop of the motor vehicle operated by appellant.

II

Whether the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a “search” within the meaning of the Fourth Amendment to the U.S. Constitution. ⁴⁹⁴ III. If the administration of field sobriety tests constitutes a “search,” whether the Fourth Amendment requires that the police officer have probable cause to believe that appellant was driving under the influence of alcohol prior to the administration of the tests. IY. Whether appellant preserved for appellate review his contention that the administration of field sobriety tests during a valid traffic stop constitutes a custodial interrogation within the meaning of the Fifth Amendment to the U.S. Constitution and Article 22 of the Maryland Declaration of Rights.

STANDARD OF REVIEW In reviewing the denial of a motion to suppress evidence, we rely solely on the record developed at the suppression hearing. State v. Green, 375 Md. 595, 607 , 826 A.2d 486 (2003); Alston v. State, 159 Md.App. 253, 261 , 858 A.2d 1100 (2004), cert. granted, 390 Md. 500 , 889 A.2d 418 (2006). “[W]e view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion,” and accept factual findings made by the motion court that are not clearly erroneous. State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003). Although we extend great deference to the motion court’s findings of fact, such as determinations of witness credibility and the weight of the evidence, we make our own independent constitutional appraisal of the law as it applies to the facts of the case.

Alston, 159 Md.App. at 261-62 , 858 A.2d 1100 . DISCUSSION The Traffic Stop The Fourth Amendment to the U.S. Constitution protects against unreasonable government searches and seizures. See United States v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002). A traffic stop involving a motorist is a detention that implicates the Fourth Amendment.

See United States v. Sharpe, 470 U.S. 675, 682 , 105 ⁴⁹⁵ S.Ct. 1568, 84 L.Ed.2d 605 (1985); Green, 375 Md. at 609 , 826 A.2d 486 ; Rowe v. State, 363 Md. 424, 432 , 769 A.2d 879 (2001); Ferris v. State, 355 Md. 356, 369 , 735 A.2d 491 (1999); Edwards v. State, 143 Md.App. 155, 164 , 792 A.2d 1197 (2002). Such a stop does not initially violate the U.S. Constitution if a police officer has probable cause to believe that the driver has committed a traffic violation, see Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), or where an officer has reasonable articulable suspicion that “criminal activity may be afoot.” Terry v. Ohio, 392 U.S. 1, 30 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). While “reasonable suspicion” is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimum level of objective justification for making the stop. The officer must be able to articulate more than an “inchoate and unparticularized suspicion or ‘hunch’ ” of criminal activity.

Illinois v. Wardlow, 528 U.S. 119, 123-24 , 120 S.Ct. 673 , 145 L.Ed.2d 570 (2000) (citations omitted). Appellant argues that the trial court erred in denying his motion to suppress because Trooper Harris did not have probable cause to believe that appellant had violated any traffic law. The State counters that Trooper Harris made a lawful traffic stop after observing appellant move out of his lane on two separate occasions and drive at erratic speeds over a short distance. 6 ⁴⁹⁶ In support of his position that the traffic stop was unlawful, appellant places great emphasis on the opinion of the Court of Appeals in Rowe, 363 Md. 424 , 769 A.2d 879 . The relevant facts of Rowe are as follows.

A Maryland State Trooper observed a van being driven in the slow lane of Interstate 95 at 1:00 a.m. Id. at 427-28 , 769 A.2d 879 . The trooper followed the van for 1.2 miles. Id. at 427 , 769 A.2d 879 .

Within that distance, he observed the van cross the white edge line on the right shoulder approximately eight inches and touch the rumble strips and then immediately return to the slow lane. Id. at 427-28 , 769 A.2d 879 . When the officer observed the vehicle touch the white edge line a second time, he initiated a traffic stop for “the benefit of the driver” because “late in the evening ... people fall[ ] asleep at the wheel.” Id. at 428 , 769 A.2d 879 . The officer acknowledged that late night drivers “could have possibly been intoxicated” when not driving within a single lane.

Id. The officer determined that Rowe was not intoxicated, but upon discovering that Rowe was driving a rental vehicle issued to another driver, and that the rental contract had expired, the officer asked to search the vehicle. Id. at 429 , 769 A.2d 879 . Rowe consented, and the ensuing search of luggage in the vehicle revealed 34,000 grams of marijuana (seventy-seven pounds).

Id. Rowe was charged with possession of marijuana, possession with intent to distribute marijuana, and driving a rented vehicle in violation of the rental agreement. Id. He was also issued a warning for failure to drive within a single lane under Trans.

Art., § 21-309(b). 7 Id. at 430, 769 A.2d 879 . ⁴⁹⁷ The Court of Appeals reversed this Court’s affirmance of the trial court’s denial of petitioner’s motion to suppress the evidence derived from the traffic stop. The Rowe Court acknowledged that the purpose of section 21-309(b) is to promote safety on laned highways, but held: We conclude that the petitioner’s momentary crossing of the edge line of the roadway and the later touching of that line did not amount to an unsafe lane change or unsafe entry onto the roadway, conduct prohibited by § 21-309, and thus, cannot support the traffic stop in this case. Id. at 441, 769 A.2d 879 . In the instant case, appellant analogizes his situation with that of the petitioner in Rowe .

Appellant contends that his acts of crossing onto the shoulder of the road, back over and across the line dividing the northbound lanes, coupled with speed changes from 10 m.p.h. over to 10 m.p.h. under the speed limit, were not sufficient to justify a traffic stop. Rather, he asserts that “swerving, jerking movements, or straying more consistently and for longer periods over lane lines, is necessary for there to be a ‘violation’ that would justify a police stop.” In response, the State argues that the case sub judice is distinguishable from Rowe and points to two more recent opinions issued by this Court, Edwards, 143 Md.App. 155 , 792 A.2d 1197 , and Dowdy v. State, 144 Md.App. 325 , 798 A.2d 1 (2002). First, in Ed,wards, this Court concluded that the defendant’s “crossing [of] the center line of an undivided, two lane road by as much as a foot, on at least one occasion, provided a legally sufficient basis to justify the traffic stop.” 143 Md.App. at 171 , 792 A.2d 1197 . We distinguished Rowe , “which involved a brief crossing of an edge line separating the slow lane from a shoulder area,” because of “the danger associated with veering into an opposing lane of traffic, even briefly.” Id.

Second, in Dowdy , a Maryland State Trooper observed a vehicle being driven in the slow lane of two westbound lanes of Route 140 at 11:54 p.m. 144 Md.App. at 326-27 , 798 A.2d 1 . ⁴⁹⁸ As the trooper followed the vehicle he observed that “it was drifting continuously from side to side,” and on two occasions the vehicle moved from the right lane across the broken lane markings. Id. at 327 , 798 A.2d 1 . Specifically, the trooper observed the left tires of the vehicle cross over the broken lane markings into lane number one for approximately one tenth of a mile, and then one half of a mile later, he observed one quarter of the vehicle cross the same lane markings and travel another tenth of a mile. Id.

These movements of the vehicle occurred over a distance of one and one half miles. Id. We distinguished the facts in Dowdy from those in Rowe . We said that in Rowe there was no lane change, unsafe or otherwise, because the driver only moved eight inches beyond the right edge line of the roadway, returned to the paved road, and later touched the same edge line.

See id. at 330, 798 A.2d 1 . By contrast, the vehicle in Dowdy “crossed over from the slow lane into the passing lane and remained there for one-tenth of a mile twice,” creating a “potential danger to anyone who may have been proceeding lawfully in the passing lane.” Id. (emphasis added). Moreover, the vehicle’s “swaying back and forth ‘continuously from side to side’ for the entire mile and a half ... was far more egregious than that presented in Rowe.” Id.

We concluded, inter alia, that the “totality of the circumstances [established] that appellant was in violation of § 21-309(b), which established probable cause for the stop.” Id. at 331, 798 A.2d 1 . We agree with the State that the instant case is factually distinguishable from Rowe , and more analogous to Dowdy . Like Dowdy , appellant’s vehicle crossed from the slow lane into the passing lane, with two wheels over the broken line, thereby creating a “potential danger to anyone who may have been proceeding lawfully in the passing lane.” Id. at 330 , 798 A.2d 1 . It is true that appellant’s vehicle crossed over the broken line only once, as opposed to twice in Dowdy , and apparently did not travel as far on the road while over the broken line, as in Dowdy .

However, appellant’s driving in this case was much more erratic than the defen ⁴⁹⁹ dant’s driving in Dowdy . In Dowdy , other than crossing the broken line twice, the defendant’s vehicle drifted continuously from side to side within the lane for a mile and one half. See id. at 327 , 798 A.2d 1 . Here, in the span of only one quarter of a mile, appellant went on to the right shoulder of the road, with one half of his vehicle over the solid white line, came back to the left, and crossed over the broken line between lanes one and two, all while speeding up to 65 m.p.h. and then down to 45 m.p.h.

These movements occurred on a straight, level road, without any obstructions or other external factors, and would have taken only about sixteen seconds if the vehicle averaged 55 m.p.h. In sum, appellant made a lane change when part of his vehicle crossed from the slow lane into the passing lane, and his erratic driving immediately preceding such movement made that lane change unsafe. Under the totality of the circumstances in the case sub judice, we conclude that Trooper Harris made a lawful traffic stop of appellant’s vehicle, because he had probable cause to believe that appellant was operating that vehicle in violation of Trans. Art., § 21-309(b).

Are Field Sobriety Tests A “Search”? Appellant contends that field sobriety tests conducted by a police officer during a valid traffic stop constitute a “search” within the scope of the Fourth Amendment’s protection against unreasonable governmental searches and seizures. The State counters by arguing that field sobriety tests do not constitute a search within the meaning of the Fourth Amendment. Instead, according to the State, field sobriety tests may be administered by a police officer as a part of an investigatory stop based upon a reasonable articulable suspicion that the driver was operating a motor vehicle under the influence of alcohol.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const, amend.

IV

The Supreme Court, however, “has never managed to set out a comprehensive ⁵⁰⁰ definition of the word ‘searches’ as it is used in the Fourth Amendment.” Wayne R. LaFave, Search and Seizure § 2.1(a) (4th ed.2004). Initially, the Supreme Court limited the protection of the Fourth Amendment to physical intrusions by police into a “constitutionally protected area,” to wit, persons, houses, papers, and effects. See id. at 430-31, 798 A.2d 1 ; Goldman v. United States, 316 U.S. 129 , 62 S.Ct. 993 , 86 L.Ed. 1322 (1942); Olmstead v. United States, 277 U.S. 438 , 48 S.Ct. 564 , 72 L.Ed. 944 (1928); Hester v. United States, 265 U.S. 57 , 44 S.Ct. 445 , 68 L.Ed. 898 (1924). In the seminal case of Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), the Supreme Court reviewed the admission into evidence at trial of the defendant’s telephone conversations from a telephone booth that had been overheard and recorded by F.B.I. agents using an electronic device attached to the exterior of the booth.

See id. at 348 , 88 S.Ct. 507 . The Government argued that the agents’ actions did not constitute a search within the meaning of the Fourth Amendment, because a public telephone booth was not a “constitutionally protected area” and there was no physical penetration of the telephone booth. See id. at 351-53 , 88 S.Ct. 507 . Writing for the Court, Justice Stewart rejected the Government’s contention by stating: For the Fourth Amendment protects people, not places.

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Id. at 351 , 88 S.Ct. 507 (citations omitted). The Court concluded that the “Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon lohich he justifiably relied while using the telephone booth and this constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.” Id. at 353 , 88 S.Ct. 507 (emphasis added).

Based on a concurring opinion by Justice Harlan, the Court’s holding in Katz has ⁵⁰¹ been stated as “whenever an individual may harbor a reasonable ‘expectation of privacy,’ he is entitled to be free from unreasonable governmental intrusion.” Terry, 392 U.S. at 9 , 88 S.Ct. 1868 (citation omitted). The Court of Appeals of Maryland has articulated the Katz principle by stating that “Lt]he scope of the protection afforded by the Fourth Amendment is defined in terms of the individual’s ‘legitimate expectation of privacy.’ ” Stanberry v. State, 343 Md. 720, 731 , 684 A.2d 823 (1996); see Sproates v. State, 58 Md.App. 547, 563 , 473 A.2d 1289 (1984) (describing the principle as a “legitimate or reasonable” expectation of privacy). 8 When the teachings of Katz and its progeny are applied to field sobriety tests, we must determine whether the State has intruded into an area where an individual has a reasonable expectation of privacy. The area implicated by field sobriety tests has been described as “personal characteristics” or “physical characteristics” of an individual. See La Fave, at § 2.6(a); United States v. Dionisio, 410 U.S. 1, 14 , 93 S.Ct. 764 , 35 L.Ed.2d 67 (1973); United States v. Mara, 410 U.S. 19, 21 , 93 S.Ct. 774 , 35 L.Ed.2d 99 (1973).

The Supreme Court has held that the physical characteristics of a voice exemplar are not within the ambit of a reasonable expectation of privacy because “a person’s voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public.” Dionisio, 410 U.S. at 14 , 93 S.Ct. 764 ; see also Miles v. State, 365 Md. 488, 513 , 781 A.2d 787 (2001). Similarly, the furnishing of a handwriting exemplar is not within the Fourth Amendment’s protection because “[hjandwriting, like speech, is repeatedly shown to the public.” Mara, 410 U.S. at 21, 93 S.Ct. 774 ; see also Burns v. State, 813 So.2d 668, 681 (Miss.2001). On the other hand, the Supreme Court has held that the obtaining of certain physical characteristics does constitute ⁵⁰² a search under the Fourth Amendment, including taking a blood sample, see Schmerber v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966); collecting breath and urine samples, Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 , 109 S.Ct. 1402 , 103 L.Ed.2d 639 (1989); and obtaining scrapings from a defendant’s fingernails, Cupp v. Murphy, 412 U.S. 291 , 93 S.Ct. 2000 , 36 L.Ed.2d 900 (1973). 9 Focusing on the physical characteristics of a driver that are subject to governmental intrusion during a routine traffic stop, the Colorado Supreme Court stated that “a driver of a motor vehicle has no legitimate expectation of privacy in his physical traits and demeanor that are in the plain sight of an officer during a valid traffic stop.” People v. Carlson, 677 P.2d 310, 316 (Colo.1984). For example, an officer’s observation of the driver’s gait upon exiting the vehicle and walking to the rear of the vehicle “is no different than the viewing of his general physical characteristics, such as height, weight or build.” Id.

By contrast, the court held that an individual has a