Craig v. State

SHARER, Judge. Appellant, Renard Craig, was charged in the Circuit Court for Montgomery County with felony theft and possession of drug paraphernalia. On October 3, 2001, Craig’s pre-trial motion to suppress was heard and denied. On October 3 and 4, 2001, Craig was tried before a jury, which found him guilty of misdemeanor theft and possession of paraphernalia.

He was sentenced to 18 months incarceration on the theft count. On appeal, Craig raises the following questions: I. Did the lower court err in denying appellant’s motion to suppress?

II

Did the trial court err in admitting irrelevant and prejudicial evidence regarding the investigatory history of the case, including testimony about why the police stopped appellant? For the following reasons, we answer in the negative and affirm. 1 DISCUSSION I. Did the lower court err in denying appellant’s motion to suppress? Craig first assigns error to the trial court’s denial of his motion to suppress. He asserts (1) that the police did not have reasonable articulable suspicion to stop and frisk him and (2) that a statement made by him was the result of a custodial interrogation at a time before he had been read his rights ⁶⁷⁵ under Miranda.

Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). The appropriate standard of review of the denial of a motion to suppress evidence was recently articulated by Judge Cathell in State v. Collins, 367 Md. 700, 706-07 , 790 A.2d 660 (2002): Our review of a Circuit Court’s denial of a motion to suppress evidence under the Fourth Amendment is limited, ordinarily, to information contained in the record of the suppression hearing and not the record of the trial. See Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491, 497 (1999); In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691, 693 (1997); Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22, 22 (1990); Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749, 755 (1987). When there is a denial of a motion to suppress, we are further limited to considering facts in the light most favorable to the State as the prevailing party on the motion.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990); Simpler, 318 Md. at 312 , 568 A.2d at 22 . 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 the weighing and determining first-level facts. Lancaster v. State, 86 Md. App. 74, 95 , 585 A.2d 274, 284 (1991); Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356, 358 (1990). When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that his findings are clearly erroneous.

McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430, 435 (1992); Riddick, 319 Md. at 183 , 571 A.2d at 1240 . Even so, as to the ultimate conclusion of whether an action taken was proper, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Riddick, 319 Md. at 183 , 571 A.2d at 1240 ; Munafo v. State, 105 Md.App. 662, 669 , 660 A.2d 1068, 1071 (1995). Because the State was the prevailing party, we will consider the facts in a light most favorable to the State. ⁶⁷⁶ The only witness to testify at the suppression hearing was Sergeant William Hill of the Montgomery County Police Department, Bethesda Division (MCPD), who was called by the State.

Hill’s uncontroverted testimony can be summarized as follows. In May 2001, Hill was assigned to the Delta 2 beat, in downtown Bethesda, to investigate, among other things, commercial burglaries. On May 23, 2001, at about 4:00 p.m., while-driving to work, Hill heard three separate calls from dispatch regarding “a suspicious person in progress” at 7910 Woodmont Avenue, a high-rise office building (“at least twelve floors”) in downtown Bethesda. The man was described as a black male, in his twenties, approximately 5'4", wearing a blue ball cap, a black shirt with white writing, and carrying a black bag.

The calls also reported that the person matched the description of a suspect on a printed alert issued by the MCPD in November 2000, calling attention to a “recent rash of thefts from offices” in downtown Bethesda. 2 The flyer included descriptions of three suspects in some of the recent unsolved thefts and burglaries. It was admitted into evidence at the suppression hearing. When Hill arrived at 7910 Woodmont, there were reports that the suspect was on one of the upper floors of the building. Two other officers who had responded went to the upper floors to make contact with the person who had telephoned the complaint, while Hill remained in the lobby.

After a few minutes, Hill saw a man who matched the dispatch description emerge from the elevator. That man was Craig. Hill was not in uniform, but was wearing a jacket and tie, and holding a walkie-talkie. Craig locked eyes with Hill, stopped “dead in his tracks,” stared for a moment, “made an about face,” and took a few steps in the opposite direction.

Hill noted that Craig had a bag in one hand, but could not see his other hand because of a jacket draped over that arm. Hill ⁶⁷⁷ said, “County Police, I need to see your hands.” Craig stopped walking away and Hill said, “I need you to put your hands up on the wall.” Craig did not comply, but responded, “I didn’t steal anything.” When Craig did not move, Hill physically moved him to the wall and Craig then put his hands on the wall. Hill radioed the other officers in the building, reported that he thought he “had the guy in the lobby,” and asked for assistance. When Hill asked Craig what was in the bag, Craig replied that it was a laptop.

Hill asked Craig if it was his and Craig responded, “No, I found it.” Hill asked Craig again whose laptop it was and Craig responded, “I’m holding it for a friend.” Hill testified that he was alone in the lobby, did not have his bulletproof vest on, and was concerned for his safety. Hill added that he could see that Craig had things in his pockets, but that he did not know what they were. Thus, Hill patted down Craig’s outer clothing to make sure he did not have a concealed weapon. In the course of the pat-down, Hill felt what he described as a hard thin object in Craig’s back jeans pocket that he thought could be a “screw driver without a handle,” or an “ice pick without a handle.” Hill asked Craig what it was and Craig did not answer.

Hill then removed the object from Craig’s pocket and discovered it was a five or six inch piece of straight wire, which was burnt on one end. Thinking it was drug paraphernalia, Hill then asked Craig, “This looks like something you use for a crack pipe. Do you have any crack on you?” Craig responded, “Yeah, I smoke.” Based on that answer, Hill conducted a search of Craig’s pockets and found two straws that were cut in half, with white residue on them, and several small colored zip lock baggies with white residue in them. Based on his training and experience, Hill believed the substance to be residue of a controlled dangerous substance.

Craig was eventually handcuffed and taken to the police station. At the station, Craig was advised of his rights and ⁶⁷⁸ agreed to give a written statement to the police. 3 After Hill’s testimony, Craig argued that the police did not have reasonable suspicion to stop and frisk Craig, that Craig was actually placed under arrest when Hill put his hands on the wall, and therefore any statements made by Craig after that point were the result of a custodial interrogation when he had not yet been Mirandized. The lower court denied Craig’s motion to suppress, ruling orally: THE COURT: I think both counsel in this case certainly make very good and compelling arguments from their respective points of view. I think what’s important when you are analyzing police activity is that you really have to look at it sequentially, and you can’t put aside your common sense as to what a police officer knows when he or she is about the business of investigating reported criminal activity- So, when we’re talking about Detective Hill, the first thing we have to acknowledge is that this was Detective Hill’S [sic] area; he was involved in these investigations of these commercial burglaries and thefts; he was very aware of all the other incidents which don’t involve this case, and he along with Officer Gill had put together basically a composite of three individuals that they had reason to believe from going through police reports were committing commercial burglaries and thefts in the Bethesda area.

That’s the genesis of State’s Exhibit No. 1, which alerts business owners and property owners to a rash of thefts from offices during which were taken purses, laptops and money, and then some descriptions. So, against that background what we do is then we fast forward to this particular day in question when Officer Hill was going on duty hears three dispatches over the police radio, and all three dispatches are fairly consistent. They contained a very detailed description of what’s reported to be the person suspected of being the purse thief, or the ⁶⁷⁹ person suspected of being the office burglar, and it’s not vague. The others may be broad, but this one is certainly not broad.

The description that he heard, repeated several times, though it had some variations was basically a black male 5'4", blue ball cap, black or blue shirt with white writing on it, in his twenties and carrying a black bag. Furthermore, it was specific to a building, and as events progressed it varied by floor. Further information Detective Hill had was this person suspected of being the thief was in this building engaged in suspicious activities. We would, I think, chastise any police officer who didn’t respond to this location to further investigate when there has been an ongoing problem in this particular area.

That’s the information that Sgt. Hill had, and that’s the background that he enters this particular investigation with. When he gets on the scene he talks to two other officers who are also involved in this investigation and he now has information that the suspect, the person reported to them in these three calls, is on an upper floor. So the two other officers go up and he decides he’s going to sit in the lobby and he’s going to see what unfolds.

Lo and behold he sees an individual emerge from the elevator who happens to be Mr. Craig, but is wearing the outfit that has been reported to him over the police radio in detail. So he matches very closely the description. And certainly at that point the officer had a reasonable suspicion that criminal activity was afoot in the building and he certainly had a reasonable basis to accost Mr. Craig, and Mr. Craig reacts in a manner that only enhances the detective’s suspicions by immediately saying I didn’t steal anything, and then when the officer says show me your hands, not being eager to comply with those directions. At that point the officer does escort him to the wall and make sure he has both hands on the wall, says what’s in your bag, he’s told a laptop.

Whose is it? First he’s told I found it, then he’s told I’m holding it for a friend. What we’re really looking at here, and I think [the State] has analyzed it correctly, is we are looking at an investiga ⁶⁸⁰ tion and not at this point an arrest. The officers do have a right to ask preliminary investigative questions.

The responses that Sgt. Hill receives from Mr. Craig really only enhance his suspicion. He’s alone in the lobby; he’s waiting for other officers to arrive; he has reasonable articulable suspicion that he’s dealing with somebody who may be responsible for a series of burglaries or theft. This individual has bulges in his pockets.

I think it is perfectly reasonable, when he states that he’s afraid and he’s on his own, that he could conduct his own that he could conduct a Terry patdown search to see whether or not the suspect had any weapons. What he feels, and the only thing that he reports at least in the evidence before me taking out, is what he said could have been handleless ice pick or a handleless screwdriver and it turns out to be a wire. He said it’s burnt at one end. His training and experience leads him to believe this was some type of controlled dangerous substance paraphernalia.

He asked Mr. Craig about that, and Mr. Craig says yeah I smoke. A resaonable [sic] officer then with background and training knows that somebody who uses illicit drugs is very likely to be carrying them, so I think it was certainly reasonable for him to conduct a further search at that time to see whether of not there was any kind of controlled dangerous substance on Mr. Craig. If you don’t look at the events in sequence and really don’t analyze specifically how they unfold and how quickly they unfold and against what background, I certainly can understand why [defense counsel] raises the points that he’s raising. We certainly don’t want people to be stopped on the basis of unsupported profiles.

But I certainly don’t think that was the situation in this case. I think the officer’s activity was very specifically directed] to one individual of whom they had a detailed description, and Mr. Craig emerged at the place and at the time dressed identically to that report. So I think the officer’s conduct from that point further was appropriate to have had an accosting, to make a stop, to conduct a Terry patdown, to then conduct ⁶⁸¹ a search for contraband, and then to make the arrest. And I do think the arrest was the last event, based on probable cause, so I will deny the motion to suppress.

Following the oral ruling, defense counsel posed an inquiry to the court: DEFENSE COUNSEL: Your Honor, I’m curious. You said he had a right to search for contraband? THE COURT: Upon the removal of what he believed to be a piece of drug paraphernalia. DEFENSE COUNSEL: What type of search is that?

THE COURT: That’s a search for contraband based on probable cause. The Stop Our initial concern is the constitutional propriety of Hill’s stop of Craig. The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures by government officers. U.S. Const, amend.

IY. “The protections of the Fourth Amendment are applicable to the State of Maryland through the Fourteenth Amendment of the United States Constitution.” State v. Collins, 367 Md. 700, 707 , 790 A.2d 660 (2002) (citing Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). “ ‘The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.’ ” Id. at 708 , 790 A.2d 660 (emphasis in original) (quoting United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985)); Owens v. State, 322 Md. 616, 622 , 589 A.2d 59 (1991)). A police officer may direct an inquiry to a citizen, even when he or she has no cause for doing so and it may be entirely appropriate for that citizen to decline “to stop or respond to such inquiries.” If the officer does nothing more, takes no further action, then no seizure will have occurred. Under the Fourth Amendment, an officer may make a forceable stop of a citizen, however, if the officer has reasonable grounds for doing so. ⁶⁸² Stokes v. State, 362 Md. 407, 414 , 765 A.2d 612 (2001) (internal citation omitted). For purposes of our de novo review, we assume that Craig was “seized” within the meaning of the Fourth Amendment when Hill shouted “County Police.

I need to see your hands.” This circumstance clearly amounted to “a show of official authority such that ‘a reasonable person would have believed that he was not free to leave.’ ” Florida v. Royer, 460 U.S. 491, 502 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983) (quoting United States v. Mendenhall, 446 U.S. 544, 554 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980) (footnote omitted)). Consequently, Craig stopped, although he did not comply with Hill’s request to show his hands. Under the circumstances, Hill’s seizure of Craig was reasonable. Pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), certain seizures are justifiable under the Fourth Amendment if there is reasonable and articulable suspicion that the person is involved in criminal activity.

In re David S., 367 Md. 523, 532 , 789 A.2d 607 (2002) (citing Terry, supra, 392 U.S. at 30 ,