Carter v. State

KENNEY, J. Appellant, Christopher Lewis Carter, was convicted by a jury sitting in the Circuit Court for Prince George’s County (Shepherd, J., presiding) of possession with intent to distribute ⁴⁰³ cocaine, possession of cocaine, possession with intent to distribute marijuana, possession of marijuana, and possession of a firearm with a nexus to drug trafficking. He was sentenced to twenty years’ imprisonment, with all but ten years suspended, for the possession with intent to distribute cocaine conviction; a five-year term for the possession with intent to distribute marijuana conviction; and five years’ imprisonment, to be served without the possibility of parole, for the possession of a firearm conviction. All sentences were to run concurrently and the remaining convictions were merged for purposes of sentencing. Appellant noted a timely appeal and presents one question for our review: Did the suppression court err in denying appellant’s motion to suppress?

We conclude that there was no error and affirm the judgment of the suppression court. FACTUAL AND PROCEDURAL BACKGROUND 1 On May 11, 2005, at approximately 7:00 a.m., the Prince George’s County Police Department executed a search and seizure warrant at 6271 Oxon Hill Road, Apartment 103, Oxon Hill, Maryland. Detective Jason Fisher testified that this was appellant’s apartment and that appellant was found inside the residence. In the ensuing search of the apartment, from a safe in a bedroom, the police recovered 22.60 grams of crack cocaine, 609.9 grams of marijuana, $12,308 in cash, a portable digital scale, a Ruger 9mm pistol loaded with 15 hollow point bullets, and ammunition for a shotgun.

Underneath the bed, the police located a Mossberg shotgun. The pistol and shotgun were later test fired and found to be operable. From atop a television in the bedroom, marijuana, ⁴⁰⁴ weighing 1.47 grams, was recovered. Six open boxes of sandwich bags were found underneath the bed.

From the bedroom closet, the police recovered another scale and a bag containing 12.85 grams of marijuana that was in a tennis shoe. In the top drawer of the bedroom dresser, the police found 10.48 grams of marijuana. Detective Fisher testified that the police concluded that the room was appellant’s bedroom based on items found in the room that bore his name and appellant later informed the police that it was his bedroom. Detective Melvin Powell, who testified “as an expert in the field of narcotics enforcement investigation, packaging, valuation and distribution[,]” opined that the cocaine and marijuana recovered from appellant’s bedroom were possessed with the intent to distribute.

Appellant was informed of his rights and, after agreeing to make a statement outside the presence of an attorney, indicated that he had possessed the marijuana for personal use only. He also stated that he had cocaine for friends who liked to lace their joints. He added that he did not lace the joints for profit and instead did it strictly for his friends’ pleasure. At trial, when asked if the crack cocaine was for his friends, appellant responded in the negative.

Appellant explained: “[W]hat I meant was that when they came over, they brought their own. I smoked that. But I only smoked around my friends.” DISCUSSION Because appellant challenges the denial of his motion to suppress, we begin by recounting the evidence presented at the hearing on the motion. Detective Christopher Schultz testified that he applied for the search warrant for appellant’s residence.

The detective’s investigation of appellant had its genesis in information received from an employee of M & T Bank. The information was not provided in response to a subpoena. According to the application for search warrant: During the month of April 2005, your affiant [Detective Schultz] and your co-affiant [Detective Fisher] received ⁴⁰⁵ information from Mrs. Thompson, the Regional Security Manager of M & T Bank. Mrs. Thompson stated that on numerous occasions, Christopher L. Carter has made several currency deposits into his private account with bills that are small in denomination and have a strong odor of Marijuana and an unknown chemical mixture.

Mrs. Thompson recognized the odor of Marijuana on the currency because she was a one-time employee of the Anne Arundel County Police Department, and was trained in the recognition of Controlled Dangerous Substances. Mrs. Thompson further furnished your affiant with the mailing address for Christopher L. Carter as 6271 Oxon Hill Road # 301 Oxon Hill, Prince George’s County, Maryland. Your affiant then checked the Department of Motor Vehicle’s database and confirmed that a Christopher Lewis Carter with a date of birth of 08-28-1970 resides at 6271 Oxon Hill Road # 301 Oxon Hill, Prince George’s County, Maryland. On April 21, 2005, your affiant noticed a trash dumpster in the parking lot, directly in front of the apartment located at 6271 Oxon Hill Road # 301 Oxon Hill, Prince George’s County, Maryland.

Your affiant knows that it is common practice for residents of apartment complexes to place their trash in dumpsters for pick up by trash collectors. Your affiant was able to obtain one bag of trash from said dumpster. The trash bag was taken to a secure location and a search of the contents was conducted. The ensuing search revealed the following: 1.

One (1) clear glassine baggie with trace amounts of suspected Cocaine base. 2. One (1) razor blade with trace amounts of suspected Cocaine base. 3. A quantity of suspected marijuana. 4. One (1) job application bearing the name Mark M. Harris and the address of 6271 Oxon Hill Road # 301 Oxon Hill, Prince George’s County, Maryland. ⁴⁰⁶ 5.

One (1) cigar magazine cover (back page) bearing the name Christopher Carter and the address of 6271 Oxon Hill Road Oxon Hill, Prince George’s County, Maryland. Your affiant and your co-affiant conducted a preliminary field test on the trace amounts of suspected Cocaine base utilizing the Duquenois-Levine Reagent System for Cocaine. The results of the preliminary examination revealed a positive reaction to the presence of Cocaine. Your affiant and your co-affiant also conducted a preliminary field-test on the suspected Marijuana utilizing the Duquenois-Levine Reagent System for Marijuana.

The results of that examination indicated a positive reaction to the presence of THC, the active ingredient in Marijuana. Based on the items recovered from the dumpster, your affiant and your co-affiant know that controlled dangerous substances, especially Cocaine and Marijuana are being stored at the residence located at 6271 Oxon Hill Road #301 Oxon Hill, Prince George’s County, Maryland. Your affiant and your co-affiant know through training and experience, that traffickers of controlled dangerous substances, including Marijuana and Cocaine, use their residences to store and process quantities of the drugs, prior to sale. (Emphasis in original.) Appellant testified that he had never given Mrs. Thompson or any other employee of M & T Bank permission to share his financial records or transactions with anyone else.

In denying appellant’s motion to suppress, the suppression court stated: The defendant challenges the search warrant under the premise the information contained in the search warrant is illegal because under—pursuant to Financial Institutions Article Section 1-302 that disclosure of financial records is prohibited by a financial institution and the information that was provided that was formulated in part any way, the basis for the search warrant. Therefore—from the bank, there ⁴⁰⁷ fore, should not be considered because it is—at least as the defendant argues—illegal. However, when you go and look at that section, Section 1-302, it says that a fiduciary institution, it’s officers, employees, agents, or directors may not disclose ... to any person any financial record relating to a consumer of the institution unless—and it goes through a lot of exceptions. One of which the defendant relies is that the customer gives authority to disclose that information.

Now, having looked at that section, and then going to the case of Taylor v. NationsBank, 365 Md. 166 , [ 776 A.2d 645 ] (2001) case. It’s a case in which—a civil case. However, in which some general information regarding one of the consumers was given. And what was given was his name and his unlisted telephone number and his account number.

Because in the Taylor case there was some confusion as to which account the money was being deposited into. And so they were trying to get that cleared up. And so that was the information that was disclosed. And in the Taylor v. NationsBank case, they talk about those records which were contemplated under Section 1-302 of the Financial Institutions Article and the case, the court clearly says that that general information does not violate that statute.

And I don’t think that in looking at the search warrant, the four corners of the search warrant, that the information that was provided in any way comes close to providing financial records. The name and address was given and that’s it. And also that the person recognizes that the money that had been deposited smelt of marijuana, but there was never any specifics about that person’s—about the defendant in this case. About his financial records.

I mean, the deposits were not given, amounts were not given. Just that when the money—cash was deposited, it smelled of marijuana, and gave his name and address. And from that the police officers further investigated and found traces of drugs in the defendant’s trash. ⁴⁰⁸ And so I think, in looking at the four corners of the warrant, and in light of the law that the court has just recited, I think that it was probable cause to issue the search warrant. I don’t see anything illegal about it.

So your motionc‘ ]s denied. Appellant contends that, in his case, the bank became an agent of the State. He asserts that the General Assembly’s purpose in enacting Maryland Code (2003), § 1-302 of the Financial Institutions Article (“FI”) was, in part, to preserve and protect the confidential relationship between fiduciary institutions and their customers. He claims that this purpose should be interpreted broadly and thus asserts that Taylor v. NationsBank, N.A., 365 Md. 166 , 776 A.2d 645 (2001), should not be applied to permit bank employees to volunteer information to government authorities.

According to appellant, bank customers should not have to fear that depositing money in small denominations will be reported to the police because of a bank employee’s olfactory acquired beliefs. He contends that the investigation in his case proceeded because of the improper disclosure of confidential information, and therefore the warrant was illegally obtained and the fruits of the resulting search should have been suppressed. “Our review of the judge’s decision to issue the search warrant[ ] is limited to whether there was a substantial basis for concluding that the evidence sought would be discovered in the place described in the application for the warrant.” Birchead v. State, 317 Md. 691, 701 , 566 A.2d 488 (1989) (citation omitted). “The substantial basis standard involves ‘something less than finding the existence of probable cause,’ and ‘is less demanding than even the familiar “clearly erroneous” standard by which appellate courts review judicial fact finding in a trial setting.’ ” State v. Coley, 145 Md.App. 502, 521 , 805 A.2d 1186 (2002) (quoting State v. Amerman, 84 Md.App. 461, 470-71, 472 , 581 A.2d 19 (1990)) (internal citation omitted). Furthermore, “[t]he judge’s determination that probable cause exists is entitled to great deference.” McDonald v. State, 347 Md. 452, 467 , 701 A.2d 675 (1997) ⁴⁰⁹ (citations omitted). The issuing judge’s probable cause determination is a practical, common-sense decision based on analyzing the affidavit in light of the totality of the circumstances.

State v. Lee, 330 Md. 320, 326 , 624 A.2d 492 (1993); Potts v. State, 300 Md. 567, 576 , 479 A.2d 1335 (1984). “[An] after-the-fact scrutiny by an appellate court regarding the sufficiency of an affidavit should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ ” Illinois v. Gates, 462 U.S. 213, 236 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) (quoting Spinelli v. United States, 393 U.S. 410, 419 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969)). Doubtful or marginal cases should be resolved in favor of the judge’s decision to issue the warrant. State v. Amerman, 84 Md.App. 461, 470 , 581 A.2d 19 (1990).

Appellant does not allege that the information contained in the affidavit, if the information was obtained legally, did not give rise to probable cause. Rather, he claims that the information provided by Mrs. Thompson was illegally obtained and could not be used to support issuance of the search warrant. We are thus called upon to determine whether the suppression court erred in failing to find that there was a violation of FI § 1-302, which provides: Except as otherwise expressly provided in this subtitle, a fiduciary institution, its officers, employees, agents, and directors: (1) May not disclose to any person any financial record relating to a customer of the institution unless: (i) The customer has authorized the disclosure to that person; (ii) Proceedings have been instituted for appointment of a guardian of the property or of the person of the customer, and court-appointed counsel presents to the fiduciary institution an order of appointment or a certified copy of the order issued by or under the direction or supervision of the court or an officer of the court; (iii) The customer is disabled and a guardian is appointed or qualified by a court, and the guardian presents to the ⁴¹⁰ fiduciary institution an order of appointment or a certified copy of the order issued by or under the direction or supervision of the court or an officer of the court; (iv) The customer is deceased and a personal representative is appointed or qualified by a court, and the personal representative presents to the fiduciary institution letters of administration issued by or under the direction or supervision of the court or an officer of the court; (v) The Department of Human Resources requests the financial record in the course of verifying the individual’s eligibility for public assistance; (vi) The institution received a request, notice, or subpoena for information directly from the Child Support Enforcement Administration of the Department of Human Resources under § 10-108.2, § 10-108.3, or § 10-108.5 of the Family Law Article or indirectly through the Federal Parent Locator Service under 42 U.S.C. § 666 (a)(17); or (vii) The institution received a request, notice, or subpoena for information directly from the Comptroller under § 13-804 or § 13-812 of the Tax-General Article; (2) Shall disclose any information requested in writing by the Department of Human Resources relative to moneys held in a savings deposit, time deposit, demand deposit, or any other deposit held by the fiduciary institution in the name of the individual who is a recipient or applicant