Byndloss v. State

DAVIS, J. Appellant, Orlando Byndloss, was charged in the Circuit Court for Prince George’s County with importation of 28 or more grams of cocaine, possession of 448 or more grams of cocaine with intent to distribute, possession of cocaine with intent to distribute, conspiracy to distribute cocaine, and possession of cocaine. His motion to suppress was heard and denied (Krauser, J. presiding) on March 19, 2004. He was ²⁹¹ subsequently tried and convicted at a bench trial (Lamasney, J. presiding) and sentenced as follows: 15 years for count one — importation of cocaine; a concurrent 15 year sentence, the first five years without the possibility of parole, for count two — possession of 448 grams or more of cocaine with intent to distribute; count three — possession of cocaine with intent to distribute and count five — possession of cocaine, were merged with count two for purposes of sentencing. From these convictions and sentences, appellant appeals and presents the following question for our review: Did the motions court err in denying appellant’s motion to suppress evidence seized from a suitcase in the trunk of a car in which he was a passenger?

We answer in the negative. Accordingly, we shall affirm the judgment of the lower court. FACTUAL BACKGROUND MOTION TO SUPPRESS Sergeant Clifford Hughes, a ten-year veteran of the Special Operations Section of the Interstate Criminal Enforcement Team of the Maryland State Police, and a former police officer in Virginia from 1992-1994, testified that the primary duties of the criminal enforcement team were traffic enforcement on Maryland interstate roads and interception of the bulk shipment of drugs, untaxed cigarettes, currency, illegal weapons, and contraband, as well as identifying potential interstate terrorists. Through “aggressive, proactive traffic enforcement,” maintained the witness, the Team “look[ed] for violations, traffic violations.” Sergeant Hughes elaborated: We do what we call the complete traffic stop process.

We identify the operator and/or passengers in the vehicle, we look for anything basically out of place, indicate if there is criminal activity, whether it be nervousness or any other things that you don’t see in a normal traffic stop, and just follow through with it. ²⁹² At approximately 10:58 a.m. on November 19, 2003, Sergeant Hughes observed a 1997 Green Chevrolet Malibu with Florida registration plates preceding Northbound on 1-95 at Route 198 in Prince George’s County. As Sergeant Hughes followed the green Malibu, he observed that the vehicle registration “tags and month were not visible at all” because of a plastic cover over them. After pulling the vehicle over 1 because of this violation, 2 he immediately notified the communications operator at the College Park barrack, at 10:58 a.m., who advised him that the information requested regarding the driver’s license of appellant and the driver, Joan Malone, and vehicle registration, were not available, because the MILES and NCIC computer systems were down. The dispatcher was also unable to say when the systems would be up and running again.

To avoid being struck by vehicles on Interstate 95, Sergeant Hughes had approached the passenger side of the vehicle and signaled for appellant to roll down his window at 10:59 a.m. After advising appellant and Malone that the traffic stop was being videotaped, the officer had asked Malone for her driver’s license and registration, explaining that she had been stopped because her license plate cover obstructed the view of her license tag. According to Sergeant Hughes, Malone’s hands were shaking, her voice was “shaky,” and “she seemed extremely nervous and she was very restless” as she handed him her license and registration. When asked where she was going and from where she was coming, Malone responded that she was coming from Florida on her way to New York City.

At 11:02 a.m., Sergeant Hughes returned to his vehicle with Malone’s and appellant’s driver’s licenses and the car registration, but, because the information system was not in service, he began to write a warning ticket. Sergeant Hughes further testified that he told the other officer “I’m going to talk to ²⁹³ them a little more, she is real nervous.” A K-9 unit was also called at this juncture. Six minutes later, at 11:08 a.m., Sergeant Hughes again called the College Park barrack and was informed that the system was still not operational. Having been unable to check for outstanding warrants or other infractions, Sergeant Hughes did not give Malone the written warning because he had been unable to “run” her license and registration information.

Advised by the College Park barrack dispatcher that it was only that system that was down, Sergeant Hughes, at 11:09 a.m., contacted the Waterloo barrack dispatcher, but had to call back at 11:10 a.m. because of background noise during his initial call. After being assured that the Waterloo dispatcher would relay the results of the requested background check once he received the information, Sergeant Hughes advised Malone that he was waiting for the results of the license and warrant check and that she would be free to go as soon as they were received. Sergeant Hughes then asked Malone to step outside of the vehicle and again asked her where she was going and reminded her that she was free to leave once the computer system relayed the information he required. Sergeant Hughes testified: She told me she was going to New Jersey, and she had previously told me she was going to New York.

I asked her did she have a lot of luggage in the vehicle and she said no. She had previously told me she was going to stay a week, and I asked her how was she going to stay a week without a lot of luggage, and she stated she wasn’t going to stay a week because she had to go back to work. Her stories were inconsistent with what she had previously stated to me and at that time, I also noticed that her eyes were watering and she appeared to be crying. She was jumpy.

She couldn’t keep still and she was holding herself. The College Park dispatcher called Sergeant Hughes at 11:19 a.m. to advise that Trooper First Class Butler, assigned to the K-9 Unit and who had been summoned by Sergeant Hughes at 11:02 a.m., was unable to find his location. After again attempting to obtain results of the warrant check from ²⁹⁴ the Waterloo barrack and having been told to “stand by,” Sergeant Hughes, in a conversation which took place in his departmental vehicle after Malone voluntarily entered, asked whether there were “any weapons, narcotics, or untaxed cigarettes, contraband, currency, et cetera, in the vehicle, and she said no. And I asked her was she sure and she said not that I know of.” At 11:23 a.m., despite complaining to the communications officer at the Waterloo barrack that the background check was taking a long time, Sergeant Hughes was still unable to obtain the information requested, as the officer said he was “really busy.” At 11:26 a.m., TFC Butler arrived and began the scan of the car.

At 11:27 a.m., the communications operator at the Waterloo barrack called to inform that appellant had an extensive criminal background, but that no information was yet available as to Malone. “At the same time,” testified Sergeant Hughes, “TFC Butler is running the dog around the vehicle, I observed the dog to the right-rear side of the vehicle, which I knew was a positive sit alert for the presence of narcotics.” Based on the dog’s alert, the vehicle was searched from 11:30 a.m. until 11:40 a.m. Two kilos of suspected cocaine were found in a suitcase in the trunk of the car. The communications operator at the Waterloo barrack never called back with information about Malone. After the pair was arrested, Sergeant Hughes went to the College Park barrack, where he obtained the background information on Malone.

Upon consideration of the above testimony, the lower court issued the following ruling: ²⁹⁵ defendants, and that is why the issue of timing is something that the appellate courts scrutinize very carefully. ²⁹⁴ Thank you very much. With all due respect, my off-the-record comment while watching a rather boring videotape, I can only suggest that there is a very real difference in watching a videotape where for 20 minutes basically nothing was happening and having the experience of that 20 minutes in real-time in real life. Be that as it may, I’m sure that those 20 minutes of waiting seemed like an eternity to the ²⁹⁵ In this instance, we have a confluence of misfortune on behalf of the defendants and poor timing on the part of the State in which the trooper, through absolutely no fault of his own, was stuck with a K-9 officer that he called for at 11:02, who apparently got lost, and said he couldn’t find the trooper, who was clearly visible on the side of the road, but apparently on the opposite side of the six — or eight-lane highway from where the K-9 officer was looking for him. And you had that, plus the fact that his home barracks in College Park had its computer down.

And clearly until the second call that the trooper made, he could not be certain whether it was the entire NCIC or MILES system and its connection to the state police or whether it was only the local computers at College Park, which it turned out to be. He was directed at College Park to call either Frederick or Rockville — Forestville or Rockville, which might have made sense if you’re sitting in College Park and you know that College Park is halfway between those two locations, but, in fact, the trooper was on 1-95 in the northbound lanes at or near the intersection with the Route 198 cut-off, and he knew that from the 198 exit, the Waterloo barracks is only a couple miles down the road, whereas Rockville was 20 miles away. Learn your geography and you’ll know the answer to that. I happen to know that, having driven it many times.

And I think there is an old case from Judge Chasanow that says I’m allowed to take judicial notice of local geography. Because apparently you all don’t know how to figure those things out. But anyway, that’s the reality. Forestville was probably much farther than Rockville.

Rockville was certainly much farther than Waterloo, which was the next barracks closer to College Park. What the trooper didn’t anticipate was that making that call for the records check was going to hit at the same time that apparently the Waterloo barracks was inundated either with ²⁹⁶ an inefficient dispatcher or somebody who was inundated with a lot of calls coming in at just that particular time. So he was waiting in good faith for the records check to come back. I believe that I was wrong, and while I could appreciate your not wanting to correct me, but I frankly didn’t remember what the finding was in Wilkes, and the Wilkes case clearly says that a K-9 sniffing on the exterior of a vehicle or even a suitcase does not create any Fourth Amendment issue whatsoever because the K-9 does not intrude into anything, and we saw that plainly on the video.

So the length of time that it happened to take for both the K-9 and the records check were almost exactly and precisely concurrent. The records check, I believe, call came back while the dog was wandering around the vehicle, if I recall. If not, it was within a minute or so of the dog arriving and going around the vehicle. I observed the dog.

I saw him stop twice, sniffing where it appeared to me that the defendant was seated on the passenger side of the vehicle. Again, as I said earlier, you can’t tell on a two-dimensional video what the distance is from the rear of the vehicle to the passenger door, but that was the area in which I saw him kind of sniff a little bit and then get pulled away by the handler to move on and go around the vehicle again. But he did that on each of the first two circuits and it was only on the third circuit that he came around and actually sat. But he was sitting on the same side of the vehicle that he had sniffed before.

So I couldn’t tell whether he was sniffing at the front passenger door or right behind that or closer to the rear of the vehicle on the side of the trunk by the rear door. Clearly, the officers who reported believed that the dog was indicating at the rear of the passenger compartment. They checked there to no avail. I watched the video and you could see the trooper actually reach deep into the trunk to pull some piece of luggage, or whatever it was, to the front of the trunk in order to then search it.

So whether it was in that area just above the wheel well, which would have been approximately where the dog was indicating, is ²⁹⁷ really something for conjecture because I don’t think that video is going to get any clearer no matter how many times you watch it. So you’re going to have to wait for that, for the testimony of the handler as to where he was indicating. But I’m satisfied that there was enough at that indication to become then probable cause for a full search of the vehicle, passenger compartment and trunk. Now, as to the delay, I find no impermissible delay because it was absolutely not a pretext for the officer to be waiting for a call back to confirm whether or not there were outstanding warrants or any illegality in the licensing of the driver.

While it appears at first blush that because he was able to very quickly clear up any confusion by the registration plate obscuring date — or month and year, he cleared that up, apparently, very quickly with the driver’s license and registration card, but at the time that he was able to look at that, he was also calling in the information for outstanding warrant and criminal record check, which is routine procedure. The delay was caused through no fault of the officer. It was not a pretext. Granted he did try and do some more investigative work while talking pre-arrest with the defendant Malone, but all that established was some inconsistencies in what she had told him that raised his suspicions.

In fact, he had already requested K-9 assistance. So those reasonable suspicions certainly didn’t go to his effort to get a K-9 officer out there because he had already made that decision. So I find those to be irrelevant to this finding. But I don’t see anything other than due diligence in the officer’s part in making the stop.

TRIAL At the bench trial, Sergeant Hughes testified, as he had on the motion to suppress, that the dog alerted him to the presence of narcotics, whereupon he ordered appellant out of the car and conducted a search of the vehicle. Inside a black ²⁹⁸ suitcase in the trunk of the car were articles of men’s clothing inside of which was a “Family Dollar bag” inside of which were too flat packages wrapped in yellowish, brownish masking tape. Inside the packages was a white powder, suspected to be cocaine or heroin. Sergeant Hughes transported the taped packages to the police barrack in College Park and, after removing the masking tape from the two packages, weighed them.

The total weight of the two packages was 2,124.4 grams and the weight of the 10 samples which were sent for analysis to the chemist was 15.1 grams; he confirmed the substances in the packages were cocaine. STANDARD OF REVIEW Our review of the circuit court’s denial of a motion to suppress evidence under the Fourth Amendment is limited, ordinarily, to information contained in the record of the suppression hearing and not the record of the trial. Dashiell v. State, 374 Md. 85, 93 , 821 A.2d 372 (2003); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); State v. Carroll, 383 Md. 438, 445 , 859 A.2d 1138 (2004); Rowe v. State, 363 Md. 424, 431 , 769 A.2d 879 (2001); Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999). 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.

Ferris, 355 Md. at 368 , 735 A.2d 491 ; Graham v. State, 146 Md.App. 327, 341 , 807 A.2d 75 (2002). In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to the weighing and determining [of] first-level facts. Lancaster v. State, 86 Md.App. 74, 95 , 585 A.2d 274 (1991); Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990). When conflicting evidence is presented, we accept the facts found by the hearing judge unless it is shown that his/her findings are clearly erroneous.

McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430 ; Riddick, 319 Md. at 183 , 571 A.2d 1239 . Unless clearly erroneous, we also accept the trial court’s conclusions regarding witness credibili ²⁹⁹ ty. Dashiell v. State, 374 Md. 85, 93 , 821 A.2d 372 (2003); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990). “Even so, as to the ultimate conclusion of whether an action taken was proper, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” Dashiell, 374 Md. at 93-94 , 821 A.2d 372 ; Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002). DISCUSSION I At the outset, as the State points out, appellant, in his brief, “concedes that the initial stop of the green 1997 Chevrolet Malibu in which he was a passenger was proper,” acknowledging that, under Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), a stop for a traffic infraction, even if pretextual, is countenanced by that decision.

Regarding the initial stop, appellant simply alludes to an observation made by Judge Moylan, in Charity v. State, 132 Md.App. 598 , 753 A.2d 556 (2000), in which we cautioned that a perception that Whren stops are being moderately abused could lead to a withdrawal of “the weapon from the law-enforcement arsenal.” Id. at 602, 753 A.2d 556 . He does not otherwise challenge the initial stop. Thus, our review will focus only upon the length of the detention and the justification for prolonging the detention to complete the record check. Asserting that he and the driver “were detained much longer than it reasonably should have taken to issue a warning or a citation for displaying the license plate cover” and “the continued detention was not justified by what occurred during the brief period of time that it should have taken to determine the status of the driver, passenger and vehicle,” the gravamen of appellant’s assignment of error, as set forth in his brief, is: In this case the constitutional violation was the unreasonably prolonged detention or seizure of Mr. Byndloss following a traffic stop for displaying a license plate cover.

The unreasonable detention led to a search of a suitcase containing male clothing, Mr. Byndloss’s personal papers and co ³⁰⁰ caine. These items were the fruit of unlawful detention. See Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963)(tangible evidence seized that as the result of an unlawful invasion is the “fruit of the poisonous tree” and must be suppressed.) In addition to challenging the length of his detention, appellant also contends that the perceived nervousness and the inconsistencies in the precise details of Malone’s trip did not constitute reasonable articulable suspicion, which would justify extending his detention. The State, for its part, relies on the reasoning of the motions court, that “the trooper didn’t anticipate that making that call for the records check was going to hit at the same time that apparently the Waterloo barracks was inundated with an inefficient dispatcher or somebody who was inundated either with a lot of calls coming in at just that particular time.” Ultimately, avers the State, “the court held that the length of time that it happened to take for both the K-9 and the records check were almost exactly and precisely concurrent.” LENGTH OF DETENTION In this case, appellant does not challenge the time line as testified to by Sergeant Hughes, or what occurred, or the sequence of events on the morning in question.

Nor does appellant controvert the court’s findings that the delay was not pretextual and was occasioned by the time it took to obtain information regarding outstanding warrants or traffic infractions. Appellant recognizes, as the court put it, “a confluence of misfortune” in which, despite the inability of the K-9 unit initially to find the location of the traffic stop, it arrived simultaneously with the information that Sergeant Hughes had requested. Notably, alluding to Sergeant Hughes’s attempt to “do some more investigative work while talking prearrest with the defendant Malone,” the court found that “all that established was some inconsistencies in what she had told him that raised his suspicions,” and the court therefore found such “reasonable suspicions” to be irrelevant to whether the ³⁰¹ detention was legitimate because “[Sergeant Hughes] had already made the decision [to call for the K-9 unit].” In the case sub judice, Sergeant Hughes wrote out a warning for violation of Maryland Code, Transportation Articles § 13-411.1(a) and § 13 — 411(c), 3 but did not deliver the warning to the driver, Malone. In issuing her ruling, denying appellant’s motion to suppress, the motions judge discounted Sergeant Hughes’s conversation with Malone, in which he attempted to establish reasonable articulable suspicion, relating how she appeared nervous, was shaking, and gave inconsistent stories about the origin and destination of her trip.

The motions judge implicitly concluded that the officer was justified in detaining appellant and Malone until such time as he was able to check both licenses and the vehicle registration as well as any outstanding warrants. Put another way, the court determined that a finding of reasonable articulable suspicion was unnecessary to support the extended detention so long as the purpose for the initial stop had not been accomplished and the investigation was ongoing. The length of the detention from the initial traffic stop at 10:58 a.m. until the K-9 unit arrived at 11:28 a.m. was thirty minutes. Rigid time limitations on traffic stops have ³⁰² been expressly rejected by the Supreme Court.

See United States v. Sharpe, 470 U.S. 675, 685 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985). Of course, the touchstone of any analysis of the Fourth Amendment is always “the reasonableness and all the circumstances of the particular governmental invasion of a citizen’s personal security.” Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 , (1968). Our determination as to whether the length of the detention after the initial traffic stop, in the case at hand, exceeded constitutional bounds is measured by whether the traffic stop was longer than necessary to effectuate the purpose of the stop. See Terry, 392 U.S. at 19 , 88 S.Ct. 1868 .

(“The scope of the search must be ‘strictly tied to and justified by 5 the circumstances which rendered its initiation permissible.”). Once the purpose of a traffic stop has been fulfilled, the continued detention of the vehicle and its occupants amounts to a second detention. See Florida v. Royer, 460 U.S. 491, 500 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983). A police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable articulable suspicion that criminal activity is afoot.

Wilkes v. State, 364 Md. 554, 572-73 , 774 A.2d 420 (2001) (quoting Ferris, 355 Md. at 372 , 735 A.2d 491 ). More specifically, in Pryor v. State, 122 Md.App. 671 , 716 A.2d 338 (1998), cert. denied, 352 Md. 312 , 721 A.2d 990 (1998), we concluded that a person stopped for a minor traffic violation “cannot be detained at the scene of the stop longer than it takes — or reasonably should take — to issue a citation for the traffic violation that the motorist committed.” Pryor, 122 Md.App. at 674-75 , 716 A.2d 338 . We held that waiting for the K-9 unit to arrive amounted to an unjustified second detention. In Wilkes, the Court of Appeals considered the factors in determining whether a detention pursuant to an investigative stop is too long in duration: ³⁰³ The Supreme Court has expressly rejected imposing rigid time limitations on traffic stops.

In that case, [Sharpe ] the Supreme Court noted that as “[m]uch as a ‘bright-line’ rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and ordinary human experience must govern over rigid criteria.” The Supreme Court continued: In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, itself, render the search unreasonable.” The question is not simply whether some other alternative was available, but whether the police acted unreasonably in failing to recognize or to pursue it.

Id. at 576-77, 774 A.2d 420 (citations omitted). We also considered the length of detention of a suspect after a traffic stop in Pryor , where Chief Judge Murphy, writing for this Court, explained: This appeal ... requires that we examine an important rule of engagement applicable to the forcible stop of a motorist who commits a minor traffic violation while under police surveillance: the point in time at which continued detention violates the motorist’s Fourth Amendment protection against unreasonable searches and seizures. We hold that, unless continued detention can be justified by what occurs during the brief period of time it takes to determine wheth ³⁰⁴ er the motorist has a valid license and whether the vehicle has been reported stolen, a motorist who is subjected to a “Whren stop” for a minor traffic violation cannot be detained at the scene of the stop longer than it takes — or reasonably should take — to issue a citation for the traffic violation that the motorist committed. 122 Md.App. at 674-75 , 716 A.2d 338 . See also Nathan, 370 Md. at 661-62 , 805 A.2d 1086 .

Other jurisdictions are in accord. See, e.g., U.S. v. Mendez, 118 F.3d 1426, 1428-29 (10th Cir.1997) (once all computer checks are completed, namely, license, registration, and warrant checks, the initial purpose for the stop has been accomplished, and the police officer may no longer detain the vehicle); United States v. Walker, 933 F.2d 812 , 816 n. 2 (10th Cir.1991) (“[0]ur determination that the defendant was unlawfully detained might be different if the questioning by the officer did not delay the stop beyond the measure of time necessary to issue a citation. For example, this case would be changed significantly if the officer'asked the same questions while awaiting the