Chase v. State

KENNEY, J. Appellant, Ira Chase, was indicted in the Circuit Court for Baltimore County, Maryland, and charged with possession of cocaine with intent to distribute and related offenses. After his motion to suppress was denied, he entered a conditional guilty plea to possession of cocaine with intent to distribute pursuant to Maryland Rule 4-242(d). He was sentenced to one year, all suspended, and was placed on probation for one year. In his timely appeal, he presents the following question for our review: Did the trial court err in denying the motion to suppress?

For the following reasons, we shall affirm. FACTUAL AND PROCEDURAL BACKGROUND Suppression Hearing Detective Andrew Melnyk, and his partner, Detective Young, 1 assigned to the Vice/Narcotics Section of the Baltimore County Police Department for the last six months prior to the hearing, were on patrol on September 10, 2018, in the ⁶³⁶ Security Boulevard section of the county, close to Interstates 70 and 695. This area, according to Detective Melnyk, was known for “illicit narcotic activity.” That evening, the detectives went to the Days Inn hotel, located on Whitehead Court in Baltimore County, Maryland. 2 Detective Melnyk knew this particular hotel from working patrol in the area since 2008, and that the hotel was located in a “high area of drug trafficking.” He also testified, with respect to the hotel, that he had “participated in numerous search warrants and apprehensions resulting in the seizure of illicit drugs and U.S. currency, as well as weapons.” They pulled into the Days Inn parking lot at around 6:45 p.m. and noticed a white Jeep Cherokee backed into a parking spot on the lot. The occupant of the Jeep, later identified as appellant, was talking on his cell phone.

About two minutes later, a Lexus backed adjacent to the Jeep, taking up two designated spots, despite the fact that the remainder of the parking lot was virtually empty. The driver of the Lexus exited his vehicle and got into the passenger side of the Jeep. Detective Melnyk testified, over a general objection, that based on a forty hour narcotics investigator class, as well as a weeklong class at the Academy for drug identification and characteristics of people involved in distribution of narcotics, that individuals will use vehicles “to conceal the transactions from law enforcement,” and will operate from a “hotel to conceal the identity of their home address.” Although not testifying as an expert, Detective Melnyk, based on his experience in the Vice/Narcotíes Unit, testified: So with the Defendant in his vehicle, as well as the Lexus pulling in and the driver of the Lexus getting out of his vehicle into the Defendant’s vehicle, as well as the area that they’re in, it’s a known high drug area, they did not utilize any services of the Days Inn, which is where they were parked. We believed that there was illegal drug activity taking place, or criminal activity at that matter. ⁶³⁷ Within five minutes after entering the Days Inn lot, at approximately 6:50 p.m., the two detectives decided to approach the Jeep to investigate and “detained both occupants” based on reasonable articulable suspicion that they were involved in illegal activity.

Detective Melnyk explained: We noticed, as we were approaching the vehicle, the driver specifically, as well as the passenger, they were moving, looks like they were moving things around there, reaching under the seat. The passenger immediately put his hands in his pocket. At that point, for the safety of myself and Detective Young, they were requested to exit the vehicle and we put them in handcuffs just to make sure they didn’t have any weapons and detaining them. They were not free to leave.

The, the reason for the handcuffs were solely based on the safety of everyone involved, based on the furtive movements that we observed inside the vehicle as we were approaching the vehicle. Appellant and the driver of the Lexus, Michael DeLillo, III, were patted down and read their rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). The pat down revealed no weapons. DeLillo stated that he was at the hotel to meet some unidentified individual named “Phil” to watch an Orioles game.

Appellant indicated that he was going to meet his cousin at the Maryland Live Casino. During this conversation, appellant was “very irate,” and claimed “that he had done nothing wrong.” On cross-examination, Detective Melnyk reaffirmed that both individuals were being detained and were not free to leave at this time. At this point, approximately 6:52 p.m., Detective Melnyk contacted police dispatch to request that a K-9 unit respond to the scene. The K-9 arrived within minutes, and at 7:00 p.m., the dog alerted on the passenger side door of the Jeep.

Appellant was then placed under arrest and was searched incident to the arrest. Police recovered some currency and a Days Inn room key, but no drugs were found on his person or in his Jeep. ⁶³⁸ DeLillo was also arrested and when he was searched, police recovered fourteen grams of cocaine, valued at around $700 to $900. DeLillo later spoke to police and, in a written statement, confirmed that he was in the parking lot for the sole purpose of obtaining 3.5 grams of cocaine. He brought $345 to make that purchase, but appellant gave him 14 grams of cocaine instead.

Both appellant’s and DeLillo’s cell phones were also seized incident to their arrest. DeLillo’s phone contained text messages indicating that he was obtaining quantities of “girl.” Detective Melnyk testified, based on his training, knowledge and experience, that “girl,” referred to cocaine powder. Some of the text messages were with “Fat Boy,” which police determined was appellant’s nickname. Once the police confirmed that the room key found on appellant’s person was for a room at the Days Inn, they applied for, and obtained, a search warrant for that room.

After hearing argument, the court denied the motion to suppress, stating: Okay. It’s a very interesting case. I’m familiar with all the cases you’ve handed up, [Prosecutor]. The Carter case is of particular interest, it’s one of Judge Moylan’s shorter opinions.

The man was stopped or he wasn’t stopped, he’s already parked under the policeman’s observation when the other car pulls in. They’re backed in next to each other, it’s a high crime area. I’m familiar with the area. I don’t know how many cases I’ve had from that side of town involving drugs.

They’re in the parking lot of the hotel, nobody gets out of the car, goes into a hotel, don’t do anything except meet each other at a car. The furtive acts give me some concern because of the officers[’] safety. They see this going on inside the vehicle as they’re approaching. The inconsistent stories, you know, one’s watching the ballgame, the other one is going to Maryland Live Casino.

I think that’s what really triggered the call for the K-9 to come out and it was fairly quick after they were stopped. I believe the K-9 arrived within ten minutes of the police approaching the vehicle to begin with. I think it is a classic Terry ⁶³⁹ case, (inaudible) to the high crime in the area, drugs, we know that guns are involved with drugs. So I can understand the concern for officers’ safety.

The dog alerts on the side of the vehicle that Mr. DeLillo just got out of and he’s the one who later on states, you know, I came to buy an eight ball to get, got fourteen grams, got more than he came for. Certainly, got more than he came for when he got the cuffs on him. I believe I don’t have any choice but to deny your Motion, [Defense Counsel]. I think it’s a good stop, it’s a good search.

I was concerned about the cuffs going on when they went on and the comments that were made by the two gentlemen were after they were read Miranda. They were Mirandized right away. I know you disagree with me, Mr. [Chase], you’ve been sitting there shaking your head sideways since you came in the door today. The Motion to Suppress is denied....

Conditional Guilty Plea With the consent of the court and the State, Chase entered a conditional guilty plea to possession of cocaine with intent to distribute pursuant to Maryland Rule 4-242(d). The prosecutor summarized the factual basis for the guilty plea as follows: Your Honor, the summary of the facts in support of the conditional guilty plea that I provided the court are as, are as follows: On September 10th of 2018, Baltimore County police were on undercover surveillance on Whitehead Court in Baltimore County. They know this to be a high crime, high drug area. When they saw what they believed to be a hand to hand drug transaction, they stopped the parties involved.

One of those parties was identified as this Defendant, Ira Chase, to my left and with counsel before you. There was a series of incidents and conversations that eventually led to a search warrant of a room that was associated with Mr. Chase. He was associated to that room by the staff of the Days Inn, as well as by a key that was found on his person. Search of that room yielded a large amount of cocaine, a schedule two, controlled dangerous substance, specifically one hundred and eight grams along ⁶⁴⁰ with unused sandwich baggies, a digital scale and other indicia that to an expert in the sale of packaging, distribution of street level narcotics would indicate that the items found in a room associated to Mr. Chase and in his possession would be possessed with the intent to distribute.

Based on the statement of facts, the court found Chase guilty of possession of cocaine with intent to distribute. DISCUSSION Our standard of review is as follows: In reviewing a circuit court’s grant or denial of a motion to suppress evidence, we ordinarily consider only the evidence contained in the record of the suppression hearing. The factual findings of the suppression court and its conclusions regarding the credibility of testimony are accepted unless clearly erroneous. We review the evidence and the inferences that may be reasonably drawn in the light most favorable to the prevailing party.

We undertake our own constitutional appraisal of the record by reviewing the law and applying it to the facts of the present case. McFarlin v. State, 409 Md. 391, 403 , 975 A.2d 862 (2009) (quoting Rush v. State, 403 Md. 68, 82 , 939 A.2d 689 (2008) (citations omitted)). Appellant contends that he was arrested prior to the positive alert by the dog, while the State essentially maintains that appellant was simply subject to an investigative detention supported by reasonable articulable suspicion until the canine alert. Appellant argues that he was not merely detained because he had been removed from the vehicle, handcuffed, read his Miranda rights and questioned.

And, because the arrest was not supported by probable cause, it was unlawful and therefore, everything that was recovered afterwards is the fruit of the poisonous tree. The State also argues, for the first time on appeal, that, even if the arrest preceded the arrival of the drug dog, there was probable cause to support an arrest. 3 ⁶⁴¹ Here, there is little, if any, dispute that probable cause to arrest existed after the drug dog alerted on the Jeep. See State v. Wallace, 372 Md. 137, 146 , 812 A.2d 291 (2002) (“Further, the law is settled that when a properly trained canine alerts to a vehicle indicating the likelihood of contraband, sufficient probable cause exists to conduct a warrantless ‘Carroll ’ search of the vehicle”), cert. denied, 540 U.S. 1140 , 124 S.Ct. 1036 , 157 L.Ed.2d 951 (2004); Wilkes v. State, 364 Md. 554, 586 , 774 A.2d 420 (2001) (“We have noted that once a drug dog has alerted a trooper to the presence of illegal drugs in a vehicle, sufficient probable cause exist[s] to support a warrantless search of [a vehicle].” (Internal quotation and citations omitted)); Stokeling v. State, 189 Md.App. 653, 664 , 985 A.2d 175 (2009) (stating that dog “alert to the Chrysler gave the police probable cause to search it for illegal drugs”), cert. denied, 414 Md. 332 , 995 A.2d 297 (2010); State v. Ofori, 170 Md.App. 211, 221 , 906 A.2d 1089 , cert. denied, 396 Md. 13 , 912 A.2d 649 (2006) (“[0]nce the K-9 ‘alerted’ to the probable presence of contraband drugs in the [vehicle], all Fourth Amendment uncertainty came to an end.”). For Fourth Amendment purposes, there are three levels of interaction between the police and citizens: The most intrusive encounter is an arrest, which requires probable cause to believe that a person has committed or is committing a crime.

The second category is the investigatory stop or detention, known commonly as a Terry stop, an encounter considered less intrusive than a formal custodial arrest and one which must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop and briefly ⁶⁴² detain an individual. The third contact is considered the least intrusive police-citizen contact, and one which involves no restraint of liberty and elicits an individual’s voluntary cooperation with non-coercive police contact. A consensual encounter, or a mere accosting, need not be supported by any suspicion and because an individual is free to leave at any time during such an encounter, the Fourth Amendment is not implicated; thus, an individual is not considered to have been “seized” within the meaning of the Fourth Amendment. Wilson v. State, 409 Md. 415, 440 , 975 A.2d 877 (2009) (citation omitted).

There is no suggestion that this case involves a consensual encounter. The issue is whether it was an arrest or an investigatory Terry stop. With respect to an arrest, the Court of Appeals has explained: A show of force is objective conduct demonstrating the officer’s intent to make an arrest. “[Generally, a display of force by a police officer, such as putting a person in handcuffs, is considered an arrest.” [Longshore v. State, 399 Md. 486, 502 , 924 A.2d 1129 (2007) ]. In California v. Hodari D., [ 499 U.S. 621, 626 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991) ], the Supreme Court of the United States held that “[a]n arrest requires ... physical force” by “laying on of hands or application of physical force to restrain movement.” Although the display of force often involves placing the individual who is seized in handcuffs, application of handcuffs is not a necessary element of an arrest.

See Grier v. State, 351 Md. 241, 252 [ 718 A.2d 211 ] (1998) (“Once Petitioner was on the ground and in custody and control of the officers, he was certainly under arrest. Although [the officer] may have had the right to simply detain and question Petitioner before placing him in custody, he did not do so.” (Citations omitted)); Morton v. State, 284 Md. 526, 530 [ 397 A.2d 1385 ] (1979) (holding, where an officer removed the individual from a recreation center and placed him under guard in a patrol car, that “an arrest is the taking ... by any act that indicates an intention to take him into ⁶⁴³ custody and that subjects him to the actual control and will of the person making the arrest.... [The officer’s] manual seizure of the appellant and the subsequent restraint of his liberty plainly constituted an arrest.”); Dixon v. State, 133 Md.App. 654, 673 [ 758 A.2d 1063 ] (2000) (officers exceeded the permissible scope of an investigative Terry stop and “arrested appellant at the time they blocked his car, removed him from his vehicle, and handcuffed him”). Bailey v. State, 412 Md. 349, 371-372 , 987 A.2d 72 (2010) (parallel citations omitted). On the other hand, as stated by the Bailey Court: Conversely, even if the officers’ physical actions are equivalent to an arrest, the show of force is not considered to be an arrest if the actions were justified by officer safety or permissible to prevent the flight of a suspect.

In re David S., 367 Md. 523, 539-40 [ 789 A.2d 607 ] (2002) (holding that a “hard take down” in which officers forced the individual to the ground and handcuffed him was a limited Terry stop, not an arrest, when the “conduct was not unreasonable because the officers reasonably could have suspected that the respondent posed a threat to their safety”); Trott v. State, 138 Md.App. 89, 118 [ 770 A.2d 1045 ] (2001) (holding that “the handcuffing of appellant was justifiable as a protective and flight preventive measure pursuant to a lawful stop and did not necessarily transform that stop into an arrest”). The use of handcuffs in a seizure is not a dispositive factor in determining whether the seizure was a Terry stop or an arrest. Bailey, 412 Md. at 372 n. 8, 987 A.2d 72 (parallel citations omitted). This Court, in Johnson v. State, 154 Md.App. 286 , 839 A.2d 769 (2003), cert. denied, 380 Md. 618 , 846 A.2d 402 (2004), reiterated the factors to consider in determining whether a suspect is under arrest: A Terry stop is distinguishable from an arrest in three important respects: the length of the detention, the investigative activities that occur during the detention, and the ⁶⁴⁴ question of whether the suspect is removed from the place of the stop to another location.

Farrow v. State, 68 Md. App. 519, 526 [ 514 A.2d 35 ] (1986) (citing Florida v. Royer, 460 U.S. 491 [ 103 S.Ct. 1319 , 75 L.Ed.2d 229 ] (1983)). “In determining whether an investigatory stop is in actuality an arrest requiring probable cause, courts consider the ‘totality of the circumstances.’ ” In re David S., 367 Md. [at 535, 789 A.2d 607 ] (quoting United States v. Patterson, 648 F.2d 625, 632 (9th Cir.1981)). Under the totality of circumstances, no one factor is dispositive. See Ferris v. State, 355 Md. 356, 376 [ 735 A.2d 491 ] (1999). Id. at 297 , 839 A.2d 769 (parallel citations omitted); see also Harrod v. State, 192 Md.App. 85, 103 , 993 A.2d 1113 (2010) (“[T]here is no bright line marking the point at which a Terry stop and frisk rises to the level of an arrest”), rev’d on other grounds, 423 Md. 24 , 31 A.3d 173 (2011).

In a totality of the circumstances analysis, the nature of the area is important in our consideration. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 124 , 120 S.Ct. 673 , 145 L.Ed.2d 570 (2000) (investigatory stop in area known for heavy narcotics trafficking; “that the stop occurred in a ‘high crime area’ among the relevant contextual considerations in a Terry analysis” (citing Adams v. Williams, 407 U.S. 143, 144 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972))); U.S. v. Brignoni-Ponce, 422 U.S. 873, 884 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975) (law enforcement officers may consider an area’s characteristics in deciding whether to make an investigatory stop); accord Holt v. State, 435 Md. 443, 466 , 78 A.3d 415 (2013). Detective Melnyk testified the Days Inn was in a “high area of drug trafficking ...” And here, the motions judge recognized the area as one associated with narcotics in making his findings of fact. In addition, Detective Melnyk testified, based on his training and experience, that the appellant’s and DeLillo’s behavior was suspicious.

More specifically, he found it suspicious that they parked side by side in an otherwise empty hotel parking lot, and did not go into a hotel room but instead, ⁶⁴⁵ met in appellant’s vehicle, which suggested to him that they were attempting to conceal their activities. A police officer’s experience and training are highly relevant in assessing either probable cause or reasonable suspicion. See U.S. v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002) (a reviewing court must permit police officers “to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person” (internal quotation and citation omitted)); see also Holt, 435 Md. at 461 , 78 A.3d 415 (“We therefore assess the evidence through the prism of an experienced law enforcement officer, and give due deference to the training and experience of the ... officer who engaged the stop at issue[.]” (Internal quotation and citations omitted)); Crosby v. State, 408 Md. 490, 508 , 970 A.2d 894 (2009) (“In making its assessment, the court should give due deference to the training and experience of the law enforcement officer who engaged in the stop at issue”) (citing Ransome v. State, 373 Md. 99, 104-05 , 816 A.2d 901 (2003)). As the two officers approached the vehicle, they noticed that both occupants were “moving, looks like they were moving things around there, reaching under the seat” and that “[t]he passenger immediately put his hands in his pocket.” The detective characterized these movements as “furtive.” The Supreme Court has noted that such nervous and evasive behavior can be a pertinent factor in determining reasonable suspicion.

Wardlow, 528 U.S. at 124 , 120 S.Ct. 673 . And, as recognized by our Court of Appeals, “[c]onduct, including nervousness, that may be innocent if viewed separately can, when considered in conjunction with other conduct or circumstances, warrant further investigation.” McDowell v. State, 407 Md. 327, 337 , 965 A.2d 877 (2009). According to Detective Melnyk, the detectives asked appellant and DeLillo to exit the vehicle, where they were handcuffed, and given their Miranda rights based on a concern for “the safety of everyone involved,” and “to make sure they ⁶⁴⁶ didn’t have any weapons.” The fact that the two handcuffed individuals were also read their Miranda rights is not dispositive in an “arrest” calculus. The Court of Appeals has stated that “courts have made clear that a cautious or gratuitous recitation of Miranda warnings is irrelevant to whether there has been an arrest, or even a custodial interrogation.” Cotton v. State, 386 Md. 249, 266 , 872 A.2d 87 , cert. denied, 546 U.S. 885 , 126 S.Ct. 212 , 163 L.Ed.2d 190 (2005).

Nor is an investigative stop transformed into an arrest because appellant was handcuffed. As the Court of Appeals has recognized: This Court has recognized that society has become more violent, that attacks against law enforcement officers have become more prevalent, that there is a greater need for police to take protective measures to ensure their safety and that of the community that might have been unacceptable in earlier times, and that Terry has been expanded to accommodate those concerns. In In re David S., 367 Md. [at 534, 789 A.2d 607 ], we quoted with approval this passage from United States v. Tilmon, 19 F.3d 1221, 1224-25 (7th Cir.1994): “The last decade has witnessed a multifaceted expansion of Terry, including the trend granting officers greater latitude in using force in order to neutralize potentially dangerous suspects during an investigatory detention. For better or worse, the trend has led to the permitting of the use of handcuffs, for the placing of suspects in police cruisers, the drawing of weapons and other measures of force more traditionally associated with arrest than with investigatory detention.” Our approval of “hard takedowns” in David S. and in Lee v. State, 311 Md. 642 [ 537 A.2d 235 ] (1988), as permissible Terry detentions rather than as arrests, confirms our acceptance of that observation.

See also Dashiell v. State, 374 Md. 85 [ 821 A.2d 372 ] (2003). Cotton, 386 Md. at 265 , 872 A.2d 87 (parallel citations omitted). Furthermore, “[w]e have often recognized the inherent dangers of drug enforcement, and an investigatory stop based ⁶⁴⁷ upon a reasonable suspicion that a suspect is engaged in drug dealing, can justify a frisk for weapons.” Hicks v. State, 189 Md.App. 112, 124 , 984 A.2d 246 (2009); see also Marks v. Criminal Comp., 196 Md.App. 37, 70 , 7 A.3d 665 (2010) (“There can be no serious dispute that there is an intimate relationship between violence and drugs”); Dashiell v. State, 143 Md.App. 134, 153 , 792 A.2d 1185 (2002) (“Persons associated with the drug business are prone to carrying weapons”), aff'd, 374 Md. 85 , 821 A.2d 372 (2003). Appellant asserts that there was insufficient evidence that he was armed and dangerous so as to justify a frisk of his person.

However, “Terry does not require a police officer to be certain that a suspect is armed in order to conduct a frisk for weapons. All that is required is a reasonable suspicion that the person is armed and dangerous.” In Re: David S., 367 Md. at 541 , 789 A.2d 607 . Appellant contends that, even assuming there was reasonable suspicion for a brief detention and that the appellant and DeLillo were armed and dangerous, there was no basis for that concern after the police frisked him and DeLillo and found no weapons on their persons. Thus, at that point, the continuation of the detention and the questioning indicate an arrest.

Under the totality of the circumstances, however, we are persuaded that the encounter remained an ongoing investigation under Terry and the failure of the officers to immediately remove the handcuffs after a brief pat down did not convert this detention into an arrest. See Farrow v. State, 68 Md.App. 519, 526 , 514 A.2d 35 (1986) (“The distinction between a Terry ‘stop’ and an arrest, then, is not in the method of detention, but rather has to do with the length of the detention, the investigative activities during the detention, and whether the suspect is removed to a detention or interrogation area”), cert. denied, 308 Md. 382 , 519 A.2d 1283 (1987). In support of his argument, appellant looks to Payne v. State, 65 Md.App. 566 , 501 A.2d 484 (1985), cert. denied,