Carter v. State

Panel: Graeff, Fader, James R. Eyler (Senior Judge, Specially Assigned), JJ. Fader, J. ⁴⁶³ A Montgomery County jury convicted the appellant, Jason Nathaniel Carter, of possession of crack cocaine and possession of 50 grams or more of crack cocaine, 1 but acquitted him of possession with intent to distribute crack cocaine. Mr. Carter challenges the circuit court's: (1) denial of his motion to suppress more than 70 grams of crack cocaine and more than three grams of cocaine that police seized from him during a traffic stop; and (2) refusal to instruct the jury that "intent to distribute" is an element of the offense of possession of 50 grams or more of crack cocaine. 2 We find no error in the ⁴⁶⁴ circuit court's denial of the motion to suppress or in its jury instruction, and so affirm. BACKGROUND In a challenge to a ruling on a motion to suppress, we are limited to considering the facts presented at the motions hearing, Nathan v. State , 370 Md. 648 , 659, 805 A.2d 1086 (2002), and we must view those facts in the light most favorable to the prevailing party, Belote v. State , 411 Md. 104 , 120, 981 A.2d 1247 (2009).

Our discussion of background facts adheres to both of these principles. In the early morning hours of April 4, 2014, Montgomery County Patrol Officer Michael Mancuso observed a car being driven by Mr. Carter fail to make a complete stop at a stop sign while driving in a high-crime area known for drug activity. ²⁴¹ Officer Mancuso followed the car, pacing its speed at approximately 48 miles per hour in a 40 miles-per-hour zone. At approximately 12:52 a.m., Officer Mancuso pulled Mr. Carter over and obtained his license and registration. Mr. Carter displayed signs of being extremely nervous.

Officer Mancuso returned to his car at 12:57 a.m. and promptly: (1) requested a K-9 unit to conduct a scan for narcotics; and (2) ran a records check, which revealed that Mr. Carter's license was valid and that he did not have any outstanding warrants. Officer Mancuso estimated that it took him approximately eight-to-ten minutes to perform the various license and records checks. At 1:00 a.m., after the records check was complete, Officer Mancuso opened the electronic system to write Mr. Carter warning citations for both the failure to stop and speeding violations. 3 From that point, it "probably took about five to seven minutes" to write the ⁴⁶⁵ citations. During that same time, Officer Mancuso also briefed another officer, Officer Gary Finch, who had arrived on the scene at approximately 1:02 a.m.

Officer Jason Buhl of the K-9 unit, along with Konner, his drug-sniffing dog, arrived on scene at 1:07 a.m. At that time, Officer Mancuso had not yet finished writing the citations. At approximately 1:09 a.m., after he had briefed Officer Buhl, Officer Mancuso ordered Mr. Carter out of his car and to stand behind the patrol car so that the canine scan could proceed. Within 15-20 seconds, Konner alerted to the presence of narcotics on the driver's seat of Mr. Carter's car.

After a search of the car yielded nothing illegal, Officer Michael Murphy conducted a pat-down search of Mr. Carter. After Officer Murphy noticed an unnatural bulge in the area of Mr. Carter's groin, Mr. Carter became combative. It took all four officers to place Mr. Carter in handcuffs. The search ultimately produced two plastic baggies containing more than 70 grams of crack cocaine and three grams of cocaine.

The officers then placed Mr. Carter under arrest. Mr. Carter moved to suppress the drugs. After a hearing at which Officers Mancuso and Buhl, along with Mr. Carter, testified, the Circuit Court for Montgomery County made findings of fact, including: • Upon returning to his vehicle, Officer Mancuso "promptly" called for the K-9 unit and initiated the records checks (including license, warrant, and case search). • Officer Buhl and Konner "arrived before Officer Mancuso had finished writing the tickets." • Mr. Carter "was removed from his vehicle so the canine search could be conducted." • The drug-sniffing dog "more or less immediately alerted." • "[T]here was no delay, intentional or otherwise, by the stopping officer between the time he began questioning the driver at 12:51:57 and 1:00am." ⁴⁶⁶ • "[T]here was no delay by the stopping officer between 1:00am and 1:07:19am when the canine officer arrived." • This is not a case where the officer engaged in delay and "dilly dallied waiting for the canine officer. That's not this case." • "[T]here was no delay.

This was ordinary course." ²⁴² The court also concluded that the search was "incident to [Mr. Carter's] arrest," and so denied the motion to suppress. Mr. Carter was tried before a Montgomery County jury on charges of possession of crack cocaine, possession with intent to distribute crack cocaine, and possession of 50 grams or more of crack cocaine. At the conclusion of a three-day jury trial, the trial court instructed the jury that to convict Mr. Carter of the crime of possession of 50 grams or more of crack cocaine, which the court referred to as "volume dealer," the State must prove beyond a reasonable doubt that Mr. Carter "possessed 50 grams of crack cocaine." The trial court rejected Mr. Carter's contention that the jury should also be instructed that "volume dealer" required the State to prove that Mr. Carter intended to distribute the crack cocaine. The jury acquitted Mr. Carter of possession with intent to distribute, but convicted him of both simple possession and possession of 50 grams or more of crack cocaine.

The trial court merged the two convictions and sentenced Mr. Carter to the mandatory minimum sentence of five years' incarceration for possession of 50 grams or more of crack cocaine. DISCUSSION I. THE MOTIONS COURT DID NOT ERR IN DENYING MR. CARTER'S MOTION TO SUPPRESS . Mr. Carter argues that the suppression court's ruling must be reversed for two reasons.

First, he contends that Officer Mancuso lacked reasonable suspicion to authorize what was effectively a second stop to investigate potential drug activity. Mr. Carter concedes that Officer Mancuso had probable cause to detain him for the traffic offenses. But he contends that ⁴⁶⁷ Officer Mancuso abandoned that traffic stop when he paused from writing Mr. Carter's citations to assist Officer Buhl with the canine search. Thus, Mr. Carter reasons, the traffic stop ended at that point and Officers Mancuso and Buhl needed reasonable suspicion of drug activity to proceed with the canine search.

Second, Mr. Carter argues that Officer Mancuso's search of his person was not incident to arrest because Mr. Carter was not yet arrested, and there was no indication that he would be arrested, until after the drugs were found. When reviewing a ruling on a motion to suppress evidence, we defer to the suppression court's findings of fact unless clearly erroneous. Holt v. State , 435 Md. 443 , 457, 78 A.3d 415 (2013) ; Longshore v. State , 399 Md. 486 , 498, 924 A.2d 1129 (2007). We only consider the facts presented at the motions hearing, Nathan , 370 Md. at 659 , 805 A.2d 1086 , and we view those facts in the light most favorable to the prevailing party, Belote , 411 Md. at 120 , 981 A.2d 1247 .

"[W]e review the hearing judge's legal conclusions de novo , making our own independent constitutional evaluation as to whether the officer's encounter with the defendant was lawful." Sizer v. State , 456 Md. 350 , 362, 174 A.3d 326 (2017). Each of these encounters is unique, and our review looks to the totality of the circumstances on the specific facts of the case before us. Id. at 363 , 174 A.3d 326 ; Belote , 411 Md. at 120 , 981 A.2d 1247 . A. The Original Traffic Stop Was Ongoing When the Canine Alert Occurred.

The Fourth Amendment to the United States Constitution 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 ...." The Court of Appeals has generally interpreted Article 26 of the Maryland Declaration of Rights to provide the same protections as ²⁴³ the Fourth Amendment. Byndloss v. State , 391 Md. 462 , 465 n.1, 893 A.2d 1119 (2006). The Fourth Amendment's protections extend to investigatory traffic stops such as that of Mr. Carter. ⁴⁶⁸ United States v. Sharpe , 470 U.S. 675 , 682, 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985) ; Ferris v. State , 355 Md. 356 , 369, 735 A.2d 491 (1999). In determining whether such stops violate an individual's Fourth Amendment rights, courts examine the objective reasonableness of the stop.

Whren v. United States , 517 U.S. 806 , 813, 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). Thus, an otherwise-valid traffic stop does not become unconstitutional just because the actual purpose of the law enforcement officer making the stop was to investigate potential drug crimes. So-called Whren stops-valid but pretextual traffic stops undertaken for the primary purpose of investigating other illegal activity-though "a powerful law enforcement weapon," Charity v. State , 132 Md. App. 598 , 601, 753 A.2d 556 (2000), are restricted in scope and execution. 4 A Whren stop " 'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.' " Ferris , 355 Md. at 369 , 735 A.2d 491 (quoting Florida v. Royer , 460 U.S. 491 , 500, 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983) ). This Court has recognized, though, that officers may pursue investigations into both the traffic violation and another crime "simultaneously, with each pursuit necessarily slowing down the other to some modest extent." Charity , 132 Md. App. at 614 , 753 A.2d 556 .

But investigation into the original traffic violation cannot "be conveniently or cynically forgotten and not taken up again until after [the other] investigation has been completed or has run a substantial course." Id. at 614-15 , 753 A.2d 556 ; see also Whitehead v. State , 116 Md. App. 497 , 506, 698 A.2d 1115 (1997) ("Stopping a car for speeding does not confer the right ⁴⁶⁹ to abandon or never begin to take action related to the traffic laws ...."). The purpose of a traffic stop is "to address the traffic violation that warranted the stop and attend to related safety concerns." Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609 , 1614, 191 L.Ed.2d 492 (2015) (internal citation omitted); see also Byndloss , 391 Md. at 483 , 893 A.2d 1119 . Thus, "[a]uthority for the seizure ... ends when tasks tied to the traffic infraction are-or reasonably should have been-completed." Rodriguez , 135 S.Ct. at 1614 . Because a scan by a drug-sniffing dog serves no traffic-related purpose, traffic stops cannot be prolonged while waiting for a dog to arrive.

Henderson v. State , 416 Md. 125 , 149-50, 5 A.3d 1072 (2010). Once the officer completes the tasks related to the original traffic stop or extends the stop beyond when it reasonably should have been completed, any continued detention is considered a second stop for Fourth Amendment purposes, and thus requires new, constitutionally-sufficient justification. Byndloss , 391 Md. at 483 , 893 A.2d 1119 . Absent such independent justification, any further detention, even if very brief, violates the ²⁴⁴ detainee's protection against unreasonable seizures.

We determine the reasonableness of the duration of a Whren stop on a case-by-case basis. Jackson v. State , 190 Md. App. 497 , 512, 988 A.2d 1154 (2010). "There is no set formula for measuring in the abstract what should be the reasonable duration of a traffic stop." Charity , 132 Md. App. at 617 , 753 A.2d 556 . Thus, a very lengthy detention may be reasonable in one circumstance, and a very brief one may be unreasonable in another.

Id. Generally, the reviewing court must look to whether the stop " 'extended beyond the period of time that it would reasonably have taken for a uniformed officer to go through the procedure involved in issuing a citation to a motorist.' " Ferris , 355 Md. at 371 -72 , 735 A.2d 491 (quoting Pryor v. State , 122 Md. App. 671 , 682, 716 A.2d 338 (1998) ). ⁴⁷⁰ Here, the trial court, after hearing testimony from Officers Mancuso and Buhl, as well as Mr. Carter, found that Officer Mancuso promptly took the appropriate steps to process Mr. Carter's traffic violations and did not engage in any delay. Officer Mancuso returned to his vehicle from his initial interaction with Mr. Carter at 12:57 a.m., and it was then that he both called for the K-9 unit and began processing the necessary records checks. By 1:07 a.m., when Office Buhl arrived with Konner, Officer Mancuso had processed the records checks, briefed Officer Finch, and was in the process of writing the citations.

In light of Officer Mancuso's testimony that it takes him eight-to-ten minutes to conduct all of the necessary records checks and five-to-seven minutes to write the citations at issue, it was not unreasonable that he was still writing the traffic citations when Officer Buhl arrived. 5 Indeed, both officers testified that was the case and the trial court found that testimony credible. ⁴⁷¹ We conclude, based on our independent constitutional appraisal of the events as a whole, that there was no impermissible delay. Giving proper deference to the trial court's first-level findings of fact, the conduct of the officers was reasonable and does not suggest impermissible delay. Moreover, the entire episode, from initiation of the traffic stop until the alert, took ²⁴⁵ approximately 17 minutes, and there were only ten minutes between the time Officer Mancuso returned to his car and Officer Buhl's arrival. Although the absolute amount of time a stop takes is not dispositive, Byndloss , 391 Md. at 485 , 893 A.2d 1119 ("We will not simply determine that a stop was unreasonable due to the length of time over which it occurred."), nothing about a stop of 17 minutes is itself unreasonable, see, e.g. , id. at 469, 491-92, 893 A.2d 1119 (upholding detention of approximately 30 minutes); State v. Ofori , 170 Md. App. 211 , 243, 906 A.2d 1089 (2006) (stating that a "24-minute period of delay was not, in and of itself, especially inordinate"); Jackson , 190 Md. App. at 512 , 988 A.2d 1154 (noting that "[i]n almost all of the cases, the critical breaking point between permissible and unreasonably prolonged traffic detentions occurs at somewhere near the 20 to 25 minute marker").

Mr. Carter contends that regardless of the amount of time that elapsed before the canine scan, we should find that Officer Mancuso impermissibly abandoned the traffic stop when he paused from writing citations to brief Officer Buhl and then to ask Mr. Carter to exit his vehicle so that the canine search could proceed. We disagree. The suppression court's finding that Officer Mancuso never abandoned the tasks relevant to the traffic stop is supported by Officer Mancuso's testimony. Mr. Carter's contention that any break from tasks related solely to processing the traffic violations constitutes abandonment of the traffic stop is both unreasonable and inconsistent with our prior decisions.

See Charity , 132 Md. App. at 614 , 753 A.2d 556 (stating that officers may pursue investigations into both the traffic violation and another crime "simultaneously, with each pursuit necessarily slowing down the other to some modest extent"). And we cannot ⁴⁷² say that the tasks Officer Mancuso performed were unreasonable under the circumstances, as he simply briefed arriving officers on the situation and approached Mr. Carter to ask him to exit his vehicle. See McCree v. State , 214 Md. App. 238 , 263 n.7, 76 A.3d 400 (2013) (stating that an officer's interruption of a traffic stop to brief other newly arrived officers was neither unreasonable nor "rendered [the stop] impermissibly long"). That other officers were present on the scene does not render it unreasonable for Officer Mancuso to have performed these tasks, as he was the original officer on the scene and the only one who had interacted with Mr. Carter to that point.

This was not abandonment of the purpose of the traffic stop, but a momentary pause for permissible multi-tasking that, based on the findings of the suppression court, did not cause the seizure to extend beyond the time that was necessary to effectuate the traffic stop. 6 In sum, the original traffic stop had not ended, nor had it been extended improperly, at the time Konner alerted because it occurred within the time that "tasks tied to the traffic infraction are-or reasonably should have been-completed." Rodriguez , 135 S.Ct. at 1614 . Because we find that the traffic stop was ongoing when the canine alert occurred, there was no "second stop" and we need not address whether Officer ²⁴⁶ Mancuso had a reasonable suspicion to investigate drug activity. B. Officer Mancuso's Search of Mr. Carter Was Incident to Mr. Carter's Arrest. Mr. Carter also argues that even if the traffic stop continued until the alert, Officer Mancuso still lacked probable cause to search his person.

In making this argument, Mr. ⁴⁷³ Carter raises and then knocks down several strawmen, 7 but never addresses squarely the basis on which the suppression court actually upheld the search, which is that it was incident to a lawful arrest. This Court has repeatedly found both (1) that a canine alert provides probable cause to arrest, see, e.g. , State v. Harding , 196 Md. App. 384 , 390, 9 A.3d 547 (2010) ("There is [ ] no question but that [a canine's] positive alert furnished probable cause for ... the arrest of the appellee as the driver of the [vehicle]."); Ofori , 170 Md. App. at 221 , 906 A.2d 1089 (stating that at the time of a canine alert there was "unquestionable probable cause for the warrantless arrest of" a vehicle's driver); and (2) that "the 'search incident to an arrest' exception to the warrant requirement is applicable as long as the search is 'essentially contemporaneous' with the arrest," Barrett v. State , 234 Md. App. 653 , 672, 174 A.3d 441 (2017) (quoting Wilson v. State , 150 Md. App. 658 , 673, 822 A.2d 1247 (2003) ), cert. denied , 457 Md. 401 , 178 A.3d 1243 (2018) ; see also Lee v. State , 311 Md. 642 , 668, 537 A.2d 235 (1988) (stating that a search that is followed by an arrest is considered incident to that arrest if "there was probable cause to support an arrest at the time of the search"). Here, the canine alert provided probable cause to arrest Mr. Carter and the search of his person was essentially contemporaneous with his arrest. Under our precedent, therefore, this was a search incident to arrest; nothing more was required.

Mr. Carter's argument to the contrary relies primarily on dicta in this Court's decision in ⁴⁷⁴ State v. Funkhouser , 140 Md. App. 696 , 782 A.2d 387 (2001), 8 which he contends requires a court, when faced with a search conducted contemporaneously with an arrest, to make an express finding that the arrest would have occurred regardless of the results of the search. To the contrary, as we confirmed most recently last year in Barrett , the search incident to arrest exception "is applicable as long as the search is 'essentially contemporaneous' with the arrest." 234 Md. App. at 672 , 174 A.3d 441 (quoting ²⁴⁷ Wilson , 150 Md. App. at 673 , 822 A.2d 1247 ). Here, the search and the arrest were contemporaneous. That Officer Mancuso did not place Mr. Carter under arrest immediately after the canine alert does not suggest that he did not intend to do so, especially in the context of a chain of events that, in total, lasted only a few minutes.

" 'There is no case in which a defendant may validly say, 'Although the officer had a right to arrest me at the moment when he seized me and searched my person, the search is invalid because he did not in fact arrest me until afterwards.' ' " Conboy v. State , 155 Md. App. 353 , 365, 843 A.2d 216 (2004) (quoting Sibron v. New York , 392 U.S. 40 , 77, 88 S.Ct. 1889 , 20 L.Ed.2d 917 (1968) (Harlan, J., concurring) ). We find no error or abuse of discretion in the suppression court's determination that Mr. Carter was searched incident to his arrest, and affirm the suppression court's denial of the motion to suppress.

II

THE TRIAL COURT'S JURY INSTRUCTION WAS VALID . A. Based on the Plain, Unambiguous Language of the Statute, the Trial Court Properly Instructed the Jury. Mr. Carter also argues that the trial court erred by not instructing the jury that an "intent to distribute" is an ⁴⁷⁵ element of the crime of possession of 50 grams or more of crack cocaine. An appellate court reviews a trial court's jury instruction for an abuse of discretion.

Stabb v. State , 423 Md. 454 , 465, 31 A.3d 922 (2011). To make this determination, we look to three factors: " '(1) whether the requested instruction was a correct statement of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was fairly covered in the instructions actually given.' " Keller v. Serio , 437 Md. 277 , 283, 85 A.3d 283 (2014) (quoting Stabb , 423 Md. at 465 , 31 A.3d 922 ). Although the overall determination is one of abuse of discretion, "we review without deference ... whether the jury instruction was a correct statement of the law." Seley-Radtke v. Hosmane , 450 Md. 468 , 482, 149 A.3d 573 (2016). The complainant bears the burden " 'to show both prejudice and error.' " Lindsey v. State , 235 Md. App. 299 , 331, 176 A.3d 741 (2018) (quoting Tharp v. State , 129 Md. App. 319 , 329, 742 A.2d 6 (1999), aff'd 362 Md. 77 , 763 A.2d 151 (2000) ).

To determine the elements of a statutory offense, we use the standard tools of statutory interpretation. State v. Bey , 452 Md. 255 , 265, 156 A.3d 873 (2017). Where the plain language of the statute, within the statutory scheme and in light of the legislative purpose of the