Coley v. State

LAWRENCE F. RODOWSKY (Retired, Specially Assigned), J. Melissa Coley pled guilty in the Circuit Court for Caroline County to possession of a controlled dangerous substance and possession of drug paraphernalia. 1 She was sentenced to serve one year and one day in prison. On appeal, she challenges the court’s denial of her motion to suppress evidence police discovered during a warrantless search of her vehicle. The State concedes error. We disagree with the State’s conclusion, however, 2 and, for the following reasons, we shall affirm Coley’s convictions. ⁵⁷³ Facts and Proceedings On appeal of a court’s decision not to suppress evidence, our review is confined to the record of the suppression hearing.

See, e.g., Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129, 1135 (2007). The record of that December 19, 2012 hearing reveals the following facts. Deputy William Bodnar of the Caroline County Sheriffs Office testified that, on July 8, 2012, at about 7:00 p.m., he was dispatched to Walker’s Grocery Store, located at 18230 Henderson Road in Marydel. He was assisted by Trooper Norton of the Maryland State Police. 3 Over a several-day period occurring four or five days prior to July 8, Deputy Bodnar had been called to the store two or three times per day.

Employees of the store had reported a white female who would arrive at the store in a black Ford vehicle and loiter in front of the store for short periods of ⁵⁷⁴ time. While she was there, Hispanic males would enter the store, purchase condoms, and leave with the white female in her vehicle. Store employees believed that the female was engaging in prostitution. Deputy Bodnar had made contact and conversed with the female, whom he identified as Coley, multiple times over that several-day period.

In one of those conversations, Coley “advised that she was a prior heroin user and she had been clean for approximately one year, close to a year.” On July 7, Deputy Bodnar had served Coley with a cease and desist letter prohibiting her from loitering in front of Walker’s Grocery Store. According to Deputy Bodnar, she also was served with cease and desist letters pertaining to State Line Gas and “basically all the businesses in Marydel.” When Deputy Bodnar arrived at Walker’s Grocery Store on July 8, a store employee said that Coley had left within the previous fifteen minutes. The employee believed that Coley had gone to Walker’s Trailer Park, the entrance to which was located 100 feet from the exit to the grocery store parking lot. Deputy Bodnar and Trooper Norton went to the trailer park and located Coley, alone, sitting in the driver’s seat of a black Ford Focus, which was parked in front of Lot 30.

The vehicle was not running. The driver’s side door of the vehicle was open and Coley’s feet were on the ground. Deputy Bodnar observed an open beer can “in the cupholder of the center console of the vehicle.” “On the center console, in front of the gearshifter knob,” he “observed torn, plastic Ziploc baggies,” one-inch in length, which he “believed to be drug paraphernalia, through [his] knowledge, training and experience.” In Deputy Bodnar’s view, the baggies appeared to have been “torn open.” “They were, the pieces that you would press together were, mainly was laying in the console and they had been torn open. They weren’t, so to speak, opened up[,] and the contents of the package would have been dumped out.

They were actually torn open.” Deputy Bodnar testified that such torn plastic baggies are “used to package suspected heroin. The heroin’s wrapped in wax paper and then the wax paper’s folded into approximately ⁵⁷⁵ like a, I’ll say a half inch square and it’s placed inside the one inch big Ziploc baggy.” Upon finding the plastic baggies, Deputy Bodnar detained Coley and placed her in handcuffs in front of her vehicle. He then searched Coley’s purse and the interior of the vehicle. In Coley’s purse, Deputy Bodnar found wax paper, a lighter, and Q-tips.

In a “hidden compartment” in the vehicle, Deputy Bodnar found four syringes and Ziploc baggies containing suspected heroin wrapped in blue wax paper. The State introduced photographs of the interior of Coley’s vehicle and of the items seized from Coley’s vehicle. After hearing argument, the suppression court summarized Deputy Bodnar’s testimony and made oral findings of fact. The court did not believe the open beer can was “evidence of anything wrong.” The court found otherwise with regard to the torn plastic baggies. “[Deputy Bodnar] did at the same time observe two small plastic baggies and as he said they were about one inch by two inch, which is not the, obviously not a sandwich bag, but has a limited use.

Further he noticed that these were not just plastic baggies, but that they had the, they were torn at one end, which to the officer in his training indicates a, something which has been used to contain controlled dangerous substance and in particular heroin. At that time, um, due to the observation of the drug paraphernalia, the officer believed he had probable cause to search the vehicle for related paraphernalia. Now paraphernalia can be in different forms, but when the plastic baggies are such that the corners have been torn off, it would be an indication that they were, had been specifically used to previously contain a controlled dangerous substance and therefore residue could be in place and that would be a charge of possession of a controlled dangerous substance, not just a fineable offense, but an incarcerable offense. He detained the, asked the Defendant to get out.

He detained her and then he searched the vehicle and found other controlled dangerous substances and other paraphernalia. I find that there was a reasonable, um, for the officer to believe that there was a ⁵⁷⁶ crime being committed in the possession of a controlled dangerous substance and the search of the vehicle without a warrant was not unreasonable. I’ll therefore deny the Motion to Suppress. ... Quite simply on the issues of the prostitution, I don’t agree with you, Mr. [Prosecutor]. ...

When I say that, as to the right to search the vehicle, I don’t think the vehicle was being searched for, there was not probable cause at that time for elements of prostitution to search the vehicle. The evidence that he found may be, may be admissible to show prostitution later on in her trial, so it was reasonably seized, but I don’t think that was his reason for searching the vehicle.” After waiving a jury trial, Coley, on January 9, 2013, pled guilty on an agreed statement of facts, and was sentenced on February 25, 2013. She noted this timely appeal. Discussion Our standard of review is well settled. “[W]e view the suppression court’s findings of fact, and reasonable inferences drawn therefrom, in the light most favorable to the prevailing party on the motion below, in this case, the State.

We do not disturb those findings unless clearly erroneous.” McCracken v. State, 429 Md. 507, 515 , 56 A.3d 242, 246 (2012) (citing Crosby v. State, 408 Md. 490, 504-05 , 970 A.2d 894, 902 (2009)). “An appellate court, ... under an independent de novo review standard, must consider the application of the law to those facts in determining whether the evidence at issue was obtained in violation of the law, and, accordingly, should be suppressed.” Longshore, 399 Md. at 499 , 924 A.2d at 1136 . The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects.” “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 108-09 , 98 S.Ct. 330, 332 , 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 , 88 ⁵⁷⁷ S.Ct. 1868, 1878-79 , 20 L.Ed.2d 889 (1968)). Warrantless searches are presumptively unreasonable, “subject only to a few specifically established and well-delineated exceptions.” See Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967). In Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925), the Supreme Court recognized an exception allowing warrantless searches of automobiles upon probable cause to believe that contraband is being concealed and illegally transported in the automobile.

See also Wyoming v. Houghton, 526 U.S. 295, 300 , 119 S.Ct. 1297, 1300 , 143 L.Ed.2d 408 (1999). “Given the nature of an automobile in transit, the Court recognized that an immediate intrusion is necessary if police officers are to secure the illicit substance.” United States v. Ross, 456 U.S. 798, 806-07 , 102 S.Ct. 2157, 2163 , 72 L.Ed.2d 572 (1982). See also Pennsylvania v. Labron, 518 U.S. 938, 940 , 116 S.Ct. 2485, 2487 , 135 L.Ed.2d 1031 (1996) (per curiam) (“If a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment thus permits police to search the vehicle without more.”); California v. Carney, 471 U.S. 386, 390-91 , 105 S.Ct. 2066, 2068-69 , 85 L.Ed.2d 406 (1985). Probable cause is merely a practical, common sense determination, given the totality of the circumstances, that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317, 2332 , 76 L.Ed.2d 527 (1983). As the Supreme Court reiterated in Maryland v. Pringle, “the probable-cause standard is a ‘practical, nontechnical conception’ that deals with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ‘[PJrobable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.’ ” 540 U.S. 366, 370-71 , 124 S.Ct. 795, 799-800 , 157 L.Ed.2d 769 (2003) (quoting Gates, 462 U.S. at 231-32 , 103 S.Ct. at 2328 - ⁵⁷⁸ 29). “The principal components of a determination of ... probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount ... to probable cause.” Ornelas v. United States, 517 U.S. 690, 696 , 116 S.Ct. 1657, 1661-62 , 134 L.Ed.2d 911 (1996).

Coley contends that Deputy Bodnar lacked constitutionally sufficient grounds to search her vehicle, for three reasons. First, his unconfirmed suspicion of prostitution did not authorize a warrantless arrest or search. Second, the presence of an open beer can in the center console of Coley’s car, which was not running and which was parked on private property, did not provide probable cause to search the vehicle. Finally, the presence of plastic baggies did not provide probable cause to search the vehicle because the baggies were not themselves contraband and, even if they were, “the discovery of some contraband [does not suggest] the likely presence of more contraband, yet to be discovered.” Appellant’s Brief at 9 (citing Bell v. State, 96 Md.App. 46, 55 , 623 A.2d 690, 694 (1993), aff'd, 334 Md. 178 , 638 A.2d 107 (1994)).

Furthermore, Coley argues, possession of paraphernalia is not an arrestable offense that could authorize a search incident to a lawful arrest. As we have noted, the State concedes error. The State agrees with Coley that neither Deputy Bodnar’s suspicion of prostitution nor his observation of the open beer can provided probable cause for an arrest or search. The State also submits, based on out-of-state decisions, “that on the facts of this case, Deputy Bodnar’s observation of the torn Ziploc baggies did not furnish probable cause to search the car.... [T]he mere observation of knotted or torn plastic bags by an officer who, in light of his training and experience, believes them to be drug paraphernalia, does not furnish probable cause to search for illegal drugs or other paraphernalia.” ⁵⁷⁹ State’s Brief at 5.

The State believes that it is precluded from relying on Deputy Bodnar’s knowledge of Coley’s past heroin use as an additional circumstance that could add up to probable cause because the agreed statement of facts that the State submitted as a proffer of proof in support of Coley’s guilty plea “described Coley’s admission as having occurred after she was arrested and after she waived her Miranda rights.” State’s Brief at 8. The State tells us that “[t]he chronology in the Agreed Statement of Facts conforms to the chronology in the police report.” State’s Brief at 8, n. 3. 4 The agreed statement of facts submitted in support of Coley’s guilty plea has no bearing on our review of the suppression decision made three weeks earlier by a different judge than the one who accepted the plea. Furthermore, the agreed statement of facts and Deputy Bodnar’s testimony at the suppression hearing are not necessarily inconsistent. At the suppression hearing, Deputy Bodnar testified that, during one of the conversations he had with Coley before July 8, 2012, “[s]he advised that she was a prior heroin user and she had been clean for approximately one year, close to a year.” Deputy Bodnar did not testify to whether Coley made any statements after being arrested.

The agreed statement of facts did not mention any event or conversation occurring prior to July 8, 2012. According to the statement, after the search of the vehicle, “Ms. Coley was placed under arrest, read her Miranda rights, which she waived.... She did admit to being a former heroin addict, however, she stated she had been clean for about a year.” Deputy Bodnar’s testimony and the agreed statement of facts are not mutually exclusive. Just as Deputy Bodnar’s testimony at the suppression hearing omitted anything that occurred after his search of the vehicle, the agreed statement of facts omitted anything that occurred prior to the evening of July 8. ⁵⁸⁰ Neither source actually contradicts the other.

It would be entirely reasonable for us to infer, in the light most favorable to the State, that Coley told Deputy Bodnar of her past drug use prior to July 8, as he testified, and again after she was arrested, as set forth in the agreed statement of facts. 5 In any event, the fact that the State’s proffer of proof may have differed slightly from Deputy Bodnar’s testimony does not change the record that was before the suppression court. In Trusty v. State, 308 Md. 658, 670-72 , 521 A.2d 749, 755-56 (1987), the Court rejected the opposite argument to the one the State makes here. In Trusty , the State had attempted on appeal to use evidence adduced at trial to bolster the insufficient evidence adduced at a pretrial suppression hearing. The Court explained that “this proof came too late, of course, to cure the deficiency at the pretrial hearing.” Id. at 670 , 521 A.2d at 755 .

In the case of a suppression motion that was erroneously denied, the rule that the suppression record cannot be bolstered later by evidence adduced at trial protects the defendant by relieving any responsibility “ ‘ “to retry before the jury the question which he has previously presented according to law for a final determination of the judge.” Absent notice to the defense that the legality of the search and seizure is somehow an “open” question throughout the trial, the defendant might well not challenge certain trial testimony which bolsters the pretrial suppression ruling but is not particularly damaging on the issue of guilt or innocence.’ ” Id. at 671 , 521 A.2d at 755 -56 (quoting 4 W. LaFave, Search and Seizure, § 11.7(C) (2d ed.1987)). ⁵⁸¹ With regard to the situation now before us, assuming Coley were the one raising the inconsistency as evidence that the suppression ruling was erroneous, not the State, Professor LaFave explains: “What then of the reverse situation, that is, where again there was no renewal of the motion at trial but it is now the defendant who wishes the appellate court to take into account the testimony at trial because he thinks that testimony undercuts the testimony given in the pretrial hearing? Though it has occasionally been said that an appellate court ‘will look to relevant evidence produced on trial for any adverse effect it might have on admission of disputed items,’ courts have usually declined to do so in these circumstances. The most cogent explanation for this result is that because of the ‘defendant’s failure to move at that point for a reconsideration of his motion to suppress,’ the trial judge did not err ‘in not reconsidering its suppression ruling sua sponte.’ As noted earlier, there is some dispute as to whether reconsideration of a pretrial suppression ruling is a matter entirely within the trial judge’s discretion. But even Gouled v. United States [ 255 U.S. 298 , 41 S.Ct. 261 , 65 L.Ed. 647 (1921) ], which speaks of the court’s ‘duty’ to reconsider, described that duty as being ‘to entertain an objection’ when ‘in the progress of a trial, it becomes probable that there has been an unconstitutional seizure of papers.’ If there is no such duty when no objection is made, it would seem to follow that there is no reason for the appellate court to consider evidence the trial judge was not required to consider.” 6 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 11.7(d), at 581-82 (5th ed.2012) (footnotes omitted).

In this case, as the suppression ruling was not actually re-litigated before Coley’s guilty plea was accepted, 6 the Decem ⁵⁸² ber 19, 2012 suppression ruling was binding upon the plea judge 7 and the record of the plea hearing is not relevant to our review of the suppression ruling. As we have explained, “[i]n reviewing the denial