Charity v. State

MOYLAN, Judge. If there is a lesson to be learned from this case, it is that when the police are permitted a very broad but persistently controversial investigative prerogative, 1 they would be well advised, even when not literally required to do so, to exercise that prerogative with restraint and moderation, lest they lose it. In Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), the Supreme Court extended law enforcement officers a sweeping prerogative, permitting them to exploit the investigative opportunities presented to them by observing traffic infractions even when their primary, subjective intention is to look for narcotics violations. The so-called “Whren stop” is a powerful law enforcement weapon.

In utilizing it, however, officers should be careful not to attempt to “push out the envelope” too far, 2 for if the ⁶⁰² perception should ever arise that “Whren stops” are being regularly and immoderately abused, courts may be sorely tempted to withdraw the weapon from the law enforcement arsenal. Even the most ardent champions of vigorous law enforcement, therefore, would urge the police not to risk “killing the goose that lays the golden egg.” The secondary lesson is that if this case is not squarely controlled by a linear application of the holding of the Court of Appeals in Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999), it is nonetheless a variation on a theme by Ferris . The appellant, Kendrick Orlando Charity, was convicted in the Circuit Court for Wicomico County of the possession of cocaine with the intent to distribute. His sole contention on appeal is that the trial court erred in denying his motion to suppress.

The Traffic Stop and Its Sequelae At about 7:10 P.M. on the evening of January 21, 1999, Maryland State Police Sergeant Mike Lewis observed three vehicles traveling closely together, southbound, on Route 13 in Wicomico County near Salisbury. Sergeant Lewis, though assigned primarily to drug interdiction, believed that the second and third vehicles were following too closely to the respective vehicles in front of them for the foggy and rainy weather conditions. He called for assistance and then initiated a traffic stop of the second and third vehicles. Sergeant Lewis approached the second car, a blue Nissan Maxima driven by the appellant, while another trooper approached the third vehicle.

The Nissan Maxima had North Carolina tags. The driver of the third car was given a written warning and released within several minutes. The appellant was not. According to Sergeant Lewis’s testimony at the suppression hearing, he approached the second vehicle, advised the appellant as to why he had been stopped, and asked to see a ⁶⁰³ driver’s license and registration card.

After noticing that Sean White, the only passenger in the car, was not wearing a seat belt, Sergeant Lewis requested his identification as well. Both the appellant and White complied. As he stood at the window, Sergeant Lewis noticed a large bundle of air fresheners hanging from the rear view mirror. A subsequent count revealed 72 such air fresheners.

Sergeant Lewis also indicated at the suppression hearing that “there was little doubt” in his mind that there was “something criminal going on inside the vehicle.” His suspicion was based on the large number of air fresheners and on the fact that the appellant had a North Carolina driver’s license and White had a New York license. Based on those observations, Sergeant Lewis asked the appellant to step out and to move to the rear of the vehicle, notwithstanding that a light rain was falling. He then began questioning the appellant as to where he was coming from and where he was going. Leaving the appellant standing in the rain, Sergeant Lewis then approached the passenger side of the vehicle and began asking White the same questions.

After receiving answers from White that were different from the answers given by the appellant, Sergeant Lewis returned to the rear of the vehicle where the appellant was standing. Because it then began to “rain heavier” and because he wanted to have the appellant “seated in [his] cruiser,” Sergeant Lewis requested a “consensual patdown” of the appellant. The appellant ostensibly consented. In the course of the pat-down, Sergeant Lewis felt a bulge in the appellant’s front pants pocket.

In response to the sergeant’s question regarding the contents of the pocket, the appellant reached into the pocket and pulled out a packet of gum and some money. In the process of the appellant’s doing so, Sergeant Lewis saw “a one gram size packet” of what he “readily recognized to be marijuana” between the appellant’s ring finger and his middle finger. Sergeant Lewis then “plucked” the packet from the appellant’s fingers, held it in ⁶⁰⁴ front of his face, and stated, “This authorizes me to conduct a full-blown search of your vehicle now.” White was also ordered out of the vehicle and was directed to stand next to the appellant while Lewis and another state trooper, Corporal Bromwell, performed a Carroll Doctrine search of the vehicle. A large quantity of cocaine, 194 grams, was found in the bottom of a box located inside the trunk.

Both the appellant and White were then placed under arrest and subsequently charged with 1) the importation of cocaine, 2) possession of cocaine with intent to distribute, 3) possession of cocaine, 4) conspiracy to import cocaine, and 5) conspiracy to possess cocaine with the intent to distribute. The Suppression Hearing The appellant filed a motion to suppress the cocaine. A hearing was held on August 10, 1999. With respect to the traffic stop, the judge stated: I certainly have no question under the evidence as to propriety of the stop.

It was a dark, rainy, foggy night with cars following much too closely for the conditions that existed there. The officer stopped the two cars that were in violation of the law, in his opinion, for following too closely. After he stops the car, Trooper Lewis approaches the defendant’s vehicle. The judge went on to make other rulings with respect to 1) the propriety of a further Terry-stop, 2) the voluntariness of a consent to a pat-down, and 3) probable cause for a Carroll Doctrine search of the car.

At the conclusion of the hearing, he denied the appellant’s motion to suppress. The Trial The appellant agreed to proceed on a plea of Not Guilty on an Agreed Statement of Facts on the charge of the possession of cocaine with intent to distribute. He was found guilty of ⁶⁰⁵ that offense. 3 The State placed the remaining four charges against him on the stet docket. The appellant then noted this appeal.

The Limited Focus of Our Review Because the only contention raised by the appellant is that the trial judge erroneously denied his motion to suppress the cocaine found in the trunk of the car, the only subject matter properly before us consists of the motion to suppress, the transcript of the hearing on the motion, and the trial judge’s ruling on the motion. Except for the fact that the appellant was convicted, without which we would have no appeal, it is for our purposes as if the trial on the merits never took place. The leading summary of what is properly before a reviewing court on an issue concerning pretrial suppression was made by Judge Karwacki in In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691 (1997): In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing and do not consider the evidence admitted at trial. Gamble v. State, 318 Md. 120, 125 , 567 A.2d 95, 98 (1989); Herod v. State, 311 Md. 288, 290 , 534 A.2d 362, 363 (1987); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749, 755 (1987).

Even within that limited universe of the suppression hearing, we are yet further restricted in that we may consider only ⁶⁰⁶ that version of the evidence most favorable to the prevailing party. Judge Karwacki explained: We are further limited to considering only that evidence and the inferences therefrom that are most favorable to the prevailing party on the motion, in this instance the State. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990); see also Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22, 22 (1990). Id.

At the suppression hearing in this case, for instance, the appellant himself testified, diametrically contrary to the testimony of Sergeant Lewis, 1) that he was not closely following any other automobile but was many car lengths behind the nearest vehicle and 2) that he was never asked to consent to a frisk of his person and never did consent. For present purposes, however, we treat that testimony as if it had never been given. Our ruling will be based exclusively on the State’s most favorable version of the events. The one obvious qualification to or modification of a reviewing court’s acceptance of the version of the evidence most favorable to the prevailing party, of course, is with respect to findings of first-level fact actually made by the hearing judge.

Except in rare cases of clear error, we give great deference to such findings of fact when actually made. The actual findings of fact made by the hearing judge, unless clearly erroneous, “trump” the version most favorable to the prevailing party to the extent to which they might be in conflict. Again, Judge Karwacki explained: 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 determining the credibility of witnesses and to weighing and determining first-level facts. Riddick, 319 Md. at 183 , 571 A.2d at 1240 .

When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that those findings were clearly erroneous. ⁶⁰⁷ 347 Md. at 488-89 , 701 A.2d 691 . In this case there was no divergence between the State’s best version of the facts and the facts as found by the hearing judge. As to what then to make of those first-level fact findings, however, that is ultimately the de novo responsibility of the reviewing court. In this regard, Judge Karwacki observed: As to the ultimate conclusion of whether a search was valid, we must make our own independent constitutional appraisal by applying the law to the facts of the case. 347 Md. at 489 , 701 A.2d 691 .

See also Ferris v. State, 355 Md. at 368-69 , 735 A.2d 491 (“[W]e view the legal conclusions de novo.”) In Ornelas v. United States, 517 U.S. 690 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996), the Supreme Court contrasted the great deference a reviewing court should extend to a hearing judge’s assessments of credibility and “determination^] of historic facts,” 517 U.S. at 696, 116 S.Ct. 1657 , with the obligation of a reviewing court to make its own independent or de novo judgment with respect to ultimate, conclusory, or “mixed question[s] of law and fact.” Id. Chief Justice Rehnquist, 517 U.S. at 697, 116 S.Ct. 1657 , wrote for an eight-to-one majority: We think independent appellate review of these ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases. We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court’s determination. A policy of sweeping deference would permit, “[i]n the absence of any significant difference in the facts,” “the Fourth Amendment’s incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause.” Such varied results would be inconsistent with the idea of a unitary system of law.

(Citations omitted). The Supreme Court, 517 U.S. at 699, 116 S.Ct. 1657 , concluded: ⁶⁰⁸ We ... hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. In parsing how an appellate court reviews a hearing judge’s findings on a mixed question of law and fact, we ourselves observed in Walker v. State, 12 Md.App. 684, 695 , 280 A.2d 260 (1971): What we mean, therefore, when we say that we have the obligation to make an independent, reflective constitutional judgment on the facts whenever a claim of a constitutionally-protected right is involved is that, although we give great weight to the findings of the hearing judge as to specific, first-level facts (such as the time that an interrogation began, whether a meal was or was not served, whether a telephone call was requested, etc.) we must make our own independent judgment as to what to make of those facts; we must, in making that independent judgment, resolve for ourselves the ultimate, second-level fact — the existence or non-existence of voluntariness. At least two such ultimate, conclusory, or mixed questions of law and fact are before us for our independent assessment in this case.

One of them concerns the voluntariness of the appellant’s ostensible consent to the pat-down of his person and the reasonableness of Sergeant Lewis’s perception as to that consent. The other is whether the proper scope of a “Whren stop” was exceeded so as to have necessitated an independent Fourth Amendment justification for the roadside proceedings that followed. With respect to our assessment of the voluntariness of the appellant’s ostensible consent to the pat-down, Perkins v. State, 88 Md.App. 341, 346 , 574 A.2d 356 (1990), clearly set out the appropriate standard of review: As we are called upon to review the constitutionality of an allegedly consensual search, our standard of review is clear. We extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibilities of contradicting witnesses and to weighing and ⁶⁰⁹ determining first-level facts.

With respect to the ultimate, conclusionary fact of whether the act of consent was truly voluntary, however, we are called upon to make our own independent, reflective constitutional judgment. (Emphasis supplied). See also Gamble v. State, 318 Md. 120, 128 , 567 A.2d 95 (1989); Matthews v. State, 89 Md.App. 488, 497 , 598 A.2d 813 (1991). With respect to the second question, Munafo v. State, 105 Md.App. 662, 672 , 660 A.2d 1068 (1995), was emphatic that the determination of whether there was one detention or two is not a finding of fact with respect to which the appellate court will give deference to the hearing judge but is, instead, a conclusory or constitutional fact with respect to which the reviewing court must make its own independent, de novo determination: Whether appellant was effectively stopped twice for constitutional purposes is not a question of fact, but one of constitutional analysis.

Accordingly, the trial court’s conclusion in that regard is not entitled to deference. See also Whitehead v. State, 116 Md.App. 497, 505-06 , 698 A.2d 1115 (1997). The “Whren Stop” The initial stop of the appellant’s automobile for a traffic infraction was completely legitimate. Sergeant Lewis testified that while traveling at approximately 65 miles per hour, the appellant’s automobile, in rainy and foggy conditions at night, was following the car in front of it by no more than one to one-and-a-half car lengths.

The hearing judge found as a fact that the appellant was “following too closely” and that the stop for the traffic infraction was fully justified. We accept that as historic fact. To be sure, Sergeant Lewis was not a highway patrolman with any apparent interest in enforcing the traffic regulations per se. He was a 15-year veteran of the Maryland State Police assigned to the special task of drug interdiction.

He had made between 400 and 600 arrests on the Eastern Shore ⁶¹⁰ of Maryland in cases “involving controlled dangerous substances being transported into or through the State of Maryland.” He recounted at length his extensive training in drug interdiction at special schools and courses in Florida, Canada, Illinois, Nevada, Detroit, New Jersey, West Virginia, Virginia, and North Carolina. There is every reason to believe that when he saw the appellant’s car traveling as one of what appeared to be three cars “in convoy” southbound on a major drug corridor from New York to Norfolk and points south, he suspected the appellant to be a drug courier. The fortuitous traffic infraction simply gave him the opportunity to pursue his primary investigative mission. All of that is beside the point, however, because Whren v. United States permits a narcotics officer to seize the opportunity presented by a traffic infraction to make a stop that would not otherwise be permitted.

The narcotics officer need not apologize for this. The “Whren stop” is part of the arsenal. There are, however, scope limitations on what may be done pursuant to a permissible “Whren stop” or pursuant to any traffic stop. A person engaged in criminal activity compromises to some extent his constitutional expectations of privacy whenever he is careless enough to commit a traffic infraction while simultaneously committing a crime. 4 That is the essential effect of Whren .

In the statement we just made, however, the critical qualifying words are the adverbial phrase “to some extent.” Whren is primarily a justification for the initial police intrusion. There are, however, two key Fourth Amendment considerations: 1) the justification for the initial intrusion into a protected privacy interest and 2) the scope of what may be done even following a legitimate initial intrusion. Coolidge v. New Hampshire, 403 U.S. 443, 467 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971). Our concern in this case is not with the “Whren stop” ab initio.

It is with the scope limitations ⁶¹¹ that necessarily attach to a traffic stop generally and to a “Whren stop” specifically. In Whitehead v. State, 116 Md.App. at 506 , 698 A.2d 1115 , Judge Sonner pointed out that although the Supreme Court has placed its imprimatur on a “Whren stop” generally, it has not yet fleshed out the permissible contours of such a tactic: Whren ... did not provide guidance as to just how far the police may go in detaining and interrogating someone who has been stopped on the pretext of the enforcement of the traffic laws. Scope Limitations of a Traffic Stop: The Ferris v. State Sequence Ferris v. State, 355 Md. 356 , 735 A.2d 491 (1999), squarely establishes one such scope limitation. Once the purpose of a traffic stop has been fully and finally served, the traffic stop may not supply the Fourth Amendment justification for any further intrusion that follows.

Ferris did not involve a “Whren stop.” From the outset, it was a genuine traffic stop and nothing else. Maryland State Trooper Andrew Smith was posted on Interstate 70 in Washington County to look for speeding infractions; he was operating a laser speed gun. The posted speed limit was 65 miles per hour at the spot where he clocked Ferris’s vehicle traveling at a speed of 92 miles per hour. Trooper Smith activated his emergency lights and stopped Ferris’s automobile without incident.

On demand, Ferris produced his driver’s license and registration card. Ferris remained behind the wheel of his own vehicle as Trooper Smith returned to his patrol car and checked for outstanding warrants. Trooper Smith wrote out a speeding citation. He returned to Ferris’s vehicle and presented Ferris with the citation.

Ferris signed the citation and Trooper Smith returned Ferris’s driver’s license and registration card to him, along with a copy of the citation. At that point, the purpose of the traffic stop had been fully and finally served. ⁶¹² While that traffic-oriented stop was in progress, however, Trooper Smith and another trooper had made observations that raised their suspicions about other criminal activity on the part of Ferris and his passenger. Ferris was asked if he would mind alighting from his car, stepping to the back of the vehicle, and answering questions. The questioning of both suspects ultimately led to the search of the automobile in which they had been riding and to the recovery of a quantity of marijuana.

In determining the extent to which a law enforcement officer who has properly stopped a motor vehicle based on probable cause may detain and question the driver after the officer has concluded the purpose for the initial stop, the Court of Appeals in Ferns explained, 355 Md. at 369 , 735 A.2d 491 : The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention. The Supreme Court has made clear that a traffic stop involving a motorist is a detention which implicates the Fourth Amendment. It is equally clear, however, that ordinarily such a stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation. Nonetheless, the Supreme Court has also made it clear that the detention of the person “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” (Citations omitted; emphasis supplied).

Writing for the Court, Judge Raker further explained that: [t]he officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to'issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention. Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment ⁶¹³ 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. 355 Md. at 372 , 735 A.2d 491 (emphasis supplied). See also Snow v. State, 84 Md.App. 243, 248-68 , 578 A.2d 816 (1990).

In Ferris , there was a clearly demarcated sequence. At the moment when Trooper Smith returned Ferris’s driver’s license and registration card to him and handed Ferris a copy of the speeding citation, the initial traffic stop came to an end. It could no longer serve as the Fourth Amendment justification for anything that followed. The Court of Appeals did then go on to hold that because of the coercive atmosphere attendant on the traffic stop and with no clear dissipation of that atmosphere, the confrontation between the troopers and the passengers that followed the stop were not voluntary acts on the part of the passengers.

There was, rather, a second Fourth Amendment detention of the passengers requiring an independent justification. The Court of Appeals concluded that there was no independent justification for that second detention. •It is on the difference in the sequencing between this case and Ferris that the State here relies. The State argues that this case is “not controlled” by Ferris because Ferris was concerned with a second detention after the termination of the initial traffic-oriented first detention, whereas this case is not. In its brief, the State points out that [t]he initial distinguishing factor between Ferris and the instant case is that the initial traffic stop here had, not concluded before the drugs were found.

Unlike in Ferris, Charity had not been issued a warning or citation at any time prior to the discovery of the marijuana. Lewis testified that he issued, Charity a warning, not [at the] roadside but during processing at the station later that night. And this was not a situation, as in Pryor v. State, involving a “detention that extended beyond the period of time that it would reasonably have taken for a uniformed officer to go ⁶¹⁴ through the procedure involved in issuing a citation to a motorist.” Lewis testified that the average time it took to issue a warrant or citation was five minutes, and he found the marijuana approximately two to three minutes after he stopped Charity’s car ... Thus, this case is not controlled by Ferris because there was no second stop requiring reasonable suspicion.

At the surface level, we agree with the State. In Ferris , there was a clear sequence: 1) an initial detention as a result of a traffic infraction, 2) a precisely pinpointed termination of the initial detention, and 3) the beginning of a second and independent detention. In the case now before us, there was not such a neat sequence. According to the State’s argument, the first detention was not formally terminated until hours later and then only at the station house miles away.

In that sense, to be sure, this case is not controlled by the literal holding of Ferris . That is not, however, the end of the analysis. Although the first traffic-oriented detention was not formally, terminated until long after all of the critical investigative events in this case had occurred, this does not mean that Ferris has no bearing on this case. Albeit not a case vulnerable to a literal or linear application of the Ferris holding, this case is clearly a variation on a theme by Ferris .

Other Scope Limitations on a Traffic Stop: An Unreasonable Prolongation Just as a traffic stop, be it a “Whren stop” or be it subjectively genuine, loses its energizing power to legitimate a contemporaneous but extrinsic investigation once it is formally terminated, Ferris v. State, so too may the legitimating raison d’etre evaporate if its pursuit is unreasonably attenuated or allowed to lapse into a state of suspended animation. We are not suggesting for a moment that when the police effectuate a traffic stop, they are operating under a “time gun” or may not pursue two purposes essentially simultaneously, with each pursuit necessarily slowing down the other to some modest extent. We are simply saying that the purpose of the justify ⁶¹⁵ ing traffic stop may not be conveniently or cynically forgotten and not taken up again until after an intervening narcotics investigation has been completed or has run a substantial course. The legitimating power of a traffic stop to justify a coincidental investigation has a finite “shelf life,” even when the traffic stop, as in this case, is not formally terminated.

The moment of termination of the initial justification in a Ferris sequence is easy to pinpoint. When, as here, however, the initial justification simply dissipates or evaporates away through neglect, pinpointing the moment that it loses its efficacy becomes more problematic. Informal or functional terminations are, by their nature, more elusive than formal ones, but they are just as terminal. In Whitehead v. State, 116 Md.App. at 506 , 698 A.2d 1115 , we did not hesitate to hold that an unduly protracted detention was unconstitutional notwithstanding our difficulty in pinpointing the precise moment at which it lapsed into unconstitutionality: Exactly when he began the prohibited detention is not completely ascertainable.

At the very latest, however, it began when he learned that he had no reason to detain Whitehead further because he learned there was no reason to do so from the radio report from his barrack. On the record presented, we find no justification for his abandoning the requirement of proceeding with the issuing of the traffic citation and beginning the outer search of the car 'with the K-9. (Emphasis supplied). The State would like to have us set some arbitrary, minimal time period that would have to expire before the traffic-oriented justification could be held to have lapsed.

Even if in a given case there were no semblance of processing or pursuing the traffic violation, the State would still like the benefit of a “time-out” for so long as it would normally and reasonably take to process a routine traffic stop. The State here argues, for instance, that because Sergeant Lewis did not return the appellant’s driver’s license and registration card or actually “complete” the traffic stop by ⁶¹⁶ issuing a citation or warning, Sergeant Lewis remained free to conduct any inquiry he chose without any further justification so long as he did so within the time it normally would take for a traffic stop to be completed. If we agreed with that contention, we would be giving police officers free rein during the first five minutes, for instance, of any valid traffic stop. Such a result flies in the face of the spirit, if not the letter, of Ferris , not to mention the Fourth Amendment.

A clever officer could always ward off the foreclosing effect of Ferris by deliberately delaying his final termination of the traffic stop. Such a tactic would render Ferris a dead letter by vitiating any need for an independent justification for a second stop simply by delaying the termination of the first stop. With respect to the tactical inefficacy of such a calculated delay in issuing a traffic warning, Judge Davis’s observation in Munafo v. State, 105 Md.App. at 672 , 660 A.2d 1068 , is pertinent: The distinguishing fact in the present case is that Deputy Houck did not actually issue a citation or warning after receiving word that Munafo’s license and rental agreement were valid. Rather, he waited for Sergeant Elliott to arrive on the scene before approaching appellant a second time.

Even then it is unclear whether Deputy Houck intended to issue a citation when he approached the vehicle a second time. We find it more than slightly illogical to allow officers to circumvent Snow for Ferris] [5] merely by wait ⁶¹⁷ ing to issue a citation until after conducting a search of a detained vehicle. (Emphasis supplied). In determining whether a police officer has exceeded the temporal scope of a lawful traffic stop, the focus will not be on the length of time an average traffic stop should ordinarily take nor will it be exclusively on a determination, pursuant to Ferris , of whether a traffic stop was literally “completed” by the return of documents or the issuance of a citation.

Even a very lengthy detention may be completely reasonable under certain circumstances. Conversely, even a very brief detention may be unreasonable under other circumstances. There is no set formula for measuring in the abstract what should be the reasonable duration of a traffic stop. We must assess the reasonableness of each detention on a case-by-case basis and not by the running of the clock.

In both Snow v. State, supra and Munafo v. State, supra, we held that an initially valid traffic stop could not serve as the justifying predicate for the narcotics-related investigation that followed in its immediate wake, notwithstanding the fact that in both cases “the total length of the stop was brief and did not exceed the normal duration for a traffic stop.” Muna-fo, 105 Md.App. at 671 , 660 A.2d 1068 . What might be a reasonable duration for most traffic stops might not be reasonable duration for a particular traffic stop on a particular occasion. Reasonableness may depend on whether the purpose of the traffic stop is actually being pursued with some modicum of diligence. We repeat that in processing a traffic infraction the police are not to be monitored with a stop-watch.

Neither, however, does Whren confer on them, for example, five minutes of “free time” to do whatever they wish in the service of some other investigative purpose. ⁶¹⁸ The Prolongation of the Traffic Stop In this Case Under the extreme circumstances of this case, which are what prompted our observations at the very outset of this opinion, it is clear to us, on our independent assessment of the ultimate Fourth Amendment merits, that the police purpose of taking appropriate action against the appellant for his traffic infraction of following too closely effectively lapsed into a coma at the instant Sergeant Lewis approached the Nissan Maxima and the appellant rolled down the window. As soon as Sergeant Lewis smelled and saw the air fresheners, if not before, he was, figuratively as well as literally, “on the scent” of a narcotics violation. His total focus had shifted from the traffic infraction, if it had ever been there, to drug interdiction. Q: Now, when you engaged Mr. Charity in some conversation there at roadside, your initial purpose was to tell him that he was driving too close or following— A: That’s correct.

Yes, sir. Q: Now, when you got to Mr. Charity’s driver’s window, tell me the reason you didn’t just give him the summons right there or at least a warning right there? A: Well, as I knelt down, sir, and asked for his license and registration, he gave me his license, the registration was retrieved, I believe from the glove box, and as I stood next to the car I was overcome with the odor of air fresheners emanating from the vehicle’s interior, and when I knelt down, I could clearly see a large bunch of air fresheners hanging from the rear view mirror which ended up being 72 separate pine tree air fresheners hanging from the rear view mirror. Most I have ever seen in my career.

Q: So there were a lot of air fresheners in there? ⁶¹⁹ A: Yes, sir. Q: Still, is that a violation of the law? A: No, sir, but it is a common indicator of drug trafficking. That in isolation means nothing, hut I was considering that in aggregate.

Q: You were considering that ? A: That’s correct. Q: Did you tell him at that time that he was following the vehicle too closely ? A: Yes, and he apologized for following too closely.

I have that documented in my report. Q: He apologized for following too closely? A: Yes, sir. Q: Did you issue him the warning then?

A: No, I did not. (Emphasis supplied). The next action Sergeant Lewis took after confronting the appellant as he sat behind the steering wheel was to order him out of the car and to the rear of the vehicle for further questioning. The State hastens to point out that under Pennsylvania v. Mimms, 434 U.S. 106, 108-12 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) and Maryland v. Wilson, 519 U.S. 408, 411-12 , 117 S.Ct. 882 , 137 L.Ed.2d 41 (1997), the police enjoy the automatic prerogative, following a lawful traffic stop, of ordering the driver out of the car.

The State is correct that the entitlement to order the driver out of the car is an automatic incident of a traffic stop. In this case, however, Sergeant Lewis’s ordering of the appellant out of the car was not, even in part, an incident of the traffic stop. It was, in our judgment, exclusively for the independent purpose of investigating a likely narcotics violation. Initially, it is clear that Sergeant Lewis’s ordering of the appellant out of the car so that he might be subjected to further questioning at the rear of the car had no conceivable relationship to the purpose of the traffic stop.

The traffic ⁶²⁰ infraction was that of “following too closely,” a violation as relatively minimal as traffic infractions can be. For that infraction, the appellant was only issued a warning, a typical sanction for following too closely. Once Sergeant Lewis, while still standing outside the driver’s window, informed the appellant that he had been stopped for following too closely and the appellant had both acknowledged and apologized for the infraction, there was nothing further to be done. There was no reason the warning, or even a citation, could not have followed forthwith.

There was, moreover, no traffic-related reason for any further questioning. As a practical matter, the entire subject of the traffic infraction never came up again until the warning was ultimately issued hours later at the station house. If we focused only on the traffic infraction, it is inconceivable that one could be stopped on the roadside at 7:10 P.M. for following too closely and held for hours before being issued a warning later that night and miles away. It is hard even to fathom a purpose for giving the warning at that late time and remote place except to establish a neat terminal point for the processing of the traffic infraction, for purposes of Ferris v. State, so that the traffic stop might better serve as the “cover” for the detention involved in conducting the narcotics investigation. 6 Contrasting the handling.of the appellant’s traffic violation with the handling of the same violation by the driver of the other car that was stopped is not, of course, controlling; it is nonetheless instructive as to what the police were actually doing in the case of the appellant.

Sergeant Lewis and Corporal Bromwell were traveling together in the same unmarked police cruiser. The appellant’s car and the car behind it were traveling at precisely the same speed on precisely the same road under precisely the same weather conditions and were each following the car in front at essentially the same ⁶²¹ distance. Both cars were stopped and Corporal Bromwell approached the other car just as Sergeant Lewis approached the appellant’s car. The driver of the other car was issued a warning and sent on his way within no more than a minute or two.

The appellant was not. The driver of the other car was never asked to alight from it and to step to its rear, notwithstanding Pennsylvania v. Mimms and Maryland v. Wilson. The appellant was. With regard to the respective traffic infractions per se, there was nothing to distinguish the case of the other driver from that of the appellant.

In assessing the selective ordering of the appellant out of the car, moreover, it is not without significance that it was raining and, indeed, beginning to rain heavily. That is a harsh and inclement venue for the issuing of a traffic warning. Just as it is clear that a traffic-related purpose was no longer being served even marginally, it is equally clear that, measured from the moment Sergeant Lewis ordered the appellant out of the car, a narcotics-related purpose had not simply been opportunistically added to the traffic-related purpose but had, indeed, preempted the field as the exclusive purpose for every investigative action that followed. Before Sergeant Lewis ordered the appellant out of the car, he had smelled and seen the air fresheners.

He had noted that the car had a North Carolina license tag and that it was traveling southbound on Route 13, a well known “drug corridor” between New York City and the upper South. He had noted that the appellant had a North Carolina driver’s license and that his passenger had a Virginia identification card and a New York driver’s license. He had noted that the appellant avoided all eye contact with him: As I talked to the two men, there was