Dixon v. State

HOLLANDER, Judge. This case involves an informant’s tip that led Montgomery County police to search the trunk of a car driven by Oliver Radcliffe Dixon, appellant, on January 22, 1999. During the search, the police recovered nine bags of marijuana. Following a jury trial in the Circuit Court for Montgomery County, appellant was convicted of possession of marijuana with intent to distribute, in violation of Md.Code (1957, 1996 RepLVol., 1999 Supp.), Art. 27, § 286(a)(1) (“Art.27”), and possession of marijuana, in violation of Ait. 27, § 287(a).

Dixon was sentenced to three years of incarceration, with all but nine months suspended, for the felony offense. On appeal, he presents five issues for our consideration, which we have condensed, rephrased, and reordered as follows: I. Did the court err in denying the motion to suppress the marijuana that was recovered during a search of the trunk of appellant’s car? ⁶⁵⁸ II. Did the court err in denying the motion to suppress appellant’s statements to police, when the police, inter alia, threatened appellant with deportation?

III

Did the court err in granting the State’s motion in limine, which barred testimony at trial concerning probable cause?

IV

Did the court err in adjourning the trial in order to allow the State to locate an expert witness? We answer the first question in the affirmative. Accordingly, we shall reverse appellants’ convictions. Therefore, we need not consider the remaining questions.

FACTUAL BACKGROUND 1 Dixon, a Jamaican national, moved to suppress the marijuana recovered from the trunk of his car and his statement to the police, claiming they were obtained as a result of an illegal search and seizure, made without probable cause. He also sought to suppress his statement to police on the ground that it was “elicited with threats of deportation, cunning statements, and without mandatory procedural safeguards.” The suppression hearing was held on May 14, 1999 (Woodward, J.). Officer Steven Phelps of the Montgomery County Police Department’s Germantown District Special Assignment Team' (“SAT”) testified for the State. He explained that the Germantown SAT is a plain-clothes unit that operates in a covert capacity.

Phelps stated that, during the afternoon of January 22, 1999, he received a phone call from a confidential informant. The following testimony is relevant: [PROSECUTOR:] Okay. Officer Phelps, directing your attention back to January 22nd, 1999, did there come a time prior to that date that you received information from a ⁶⁵⁹ confidential source as to allegations of drug activity involving an Orville Radcliffe Dixon? [OFFICER PHELPS:] Yes. Yes, there was. [APPELLANT’S COUNSEL:] Objection, Your Honor.

THE COURT: Overruled. Go ahead. [OFFICER PHELPS:] Yes, I did receive information from a confidential informant regarding that matter. [PROSECUTOR:] This individual that you received the information from, have you had occasion to receive information in the past, prior to this incident, from the same informant? [OFFICER PHELPS:] Yes, I have. [PROSECUTOR:] And Officer Phelps, have you had occasion to be able to develop one way or another whether the information you received in the past was reliable and accurate? [OFFICER PHELPS:] Yes. It was true and accurate— everything that he has—information he’s provided to me. According to Phelps, the informant told him that a black male named Orville Dixon would be transporting approximately ten pounds of marijuana to the second level of a parking garage adjacent to the Nordstrom’s department store at the Montgomery Mall.

The informant further indicated that Dixon would arrive at the garage at approximately 8:15 p.m. in a dark-colored Acura to conduct a drug sale. The informant did not advise Phelps as to where in the car the marijuana would be located. Phelps and other SAT officers proceeded to the garage. As a consequence of information provided on an earlier occasion by the informant concerning Dixon, Phelps “had done previous surveillance on Mr. Dixon” and his Acura, and had obtained photographs of him from the Motor Vehicle Administration.

Nevertheless, Phelps did not elaborate either on the substance of the information previously provided by the informant or the results of any surveillance of Dixon that Phelps had conducted. ⁶⁶⁰ When the police arrived at the garage at approximately 7:00 p.m. to set up surveillance, the Acura was already on the second level. A computer check of the license plate confirmed that the vehicle was registered to appellant. At approximately 8:15 p.m., Phelps saw Dixon emerge from a stairwell in the garage and walk in the direction of his vehicle. According to Phelps, Dixon “look[ed] around as if he was looking for someone,” but never went to his car and soon returned the way he had come.

A short time later, Dixon returned to the second level of the garage, walked to his vehicle, removed keys from his pocket, unlocked the driver’s door, and entered the car. At that time, several unmarked police cars “blocked the vehicle in,” removed appellant from the car, and handcuffed him. Phelps did not see anything in the passenger compartment consistent with the informant’s description of the contraband. Consequently, he proceeded to open the trunk.

Phelps- acknowledged that the police did not ask Dixon to consent to the search, nor did the police have a search warrant. Upon opening the trunk, Phelps immediately noticed a strong odor of marijuana He also saw a red rubber bag in the trunk. Inside that bag was a plastic garbage bag containing nine gallon-sized bags, each containing suspected marijuana. According to Phelps, Dixon was then arrested and transported to the Rockville police station, where he was interviewed.

Phelps testified that he read Dixon his Miranda 2 rights, and appellant signed the advice of rights form at 9:50 p.m. Phelps denied that any officers threatened appellant or made any promises or inducements to him. Additionally, Phelps indicated that appellant never asked to speak with a lawyer. On cross-examination, however, Phelps acknowledged that, during Dixon’s interview, he and another officer asked appellant “where he was from, and there was a discussion about deportation.” ⁶⁶¹ With respect to the informant’s reliability, the following testimony of Officer Phelps is pertinent: [APPELLANT’S COUNSEL:] Okay.

I just want to call your attention to a few things. Officer, you testified that you have used this informant only in this matter, right? [OFFICER PHELPS:] In this—pertaining to this ease, yes. [APPELLANT’S COUNSEL:] Okay. And in your report, you said you have used him several times before and he proved reliable. Is that correct? [OFFICER PHELPS:] I wrote that “The informant has provided information to Germantown SAT before and proved reliable.” I don’t see the word[s] “several times.” [APPELLANT’S COUNSEL:] Okay.

Provided to Germantown SAT. [OFFICER PHELPS:] Correct. [APPELLANT’S COUNSEL:] But not to you specifically. [OFFICER PHELPS:] Germantown SAT. I’m a member of Germantown SAT. So, it depends on semantics. [APPELLANT’S COUNSEL:] Okay. Was there any information that this guy has provided to you in particular? [OFFICER PHELPS:] Yes.

All the information that was provided in this case was provided to me in particular. [APPELLANT’S COUNSEL:] To you. Okay. Fine. So, in other words, the only time you have ever had to deal with him directly was through this case. [OFFICER PHELPS:] Through—pertaining to this case.

Appellant’s counsel attempted to question Phelps about the extent of his prior surveillance of Dixon: [APPELLANT’S COUNSEL:] Okay. And you said that you have conducted a previous surveillance of Mr. Dixon, the Defendant. ⁶⁶² [OFFICER PHELPS:] That’s correct. * ** [APPELLANT’S COUNSEL:] Based on information from the same informant. [OFFICER PHELPS:] That’s correct. * * * [APPELLANT’S COUNSEL:] But actually found nothing. [PROSECUTOR:] Objection. [APPELLANT’S COUNSEL:] Isn’t that correct? THE COURT: Sustained. [APPELLANT’S COUNSEL:] Actually, based on that information that the informant gave you, were you able to secure an arrest of Mr. Dixon? [PROSECUTOR:] Objection. THE COURT: Sustained. [APPELLANT’S COUNSEL:] When—all the surveillance that you have conducted, what were the results of those surveillance? [PROSECUTOR:] Objection.

THE COURT: Better put the basis on the record. [PROSECUTOR:] Your Honor, the basis is that the officer has testified that the information he has received from this confidential source has proven to be reliable. That is what the law requires. Asking the results is tantamount to asking the identity of the informant and does not in any way protect that individual, as the law is set up to do. * * * THE COURT: I will sustain.the objection. [APPELLANT’S COUNSEL:] Okay. Did you have occasion, after the informant—now, let me go back to the . previous surveillance. ⁶⁶³ The previous surveillance that you conducted, were they based on the basis of information received from this same informant? [OFFICER PHELPS:] Yes.

The surveillance that were conducted were—information was given to me. It wasn’t— there wasn’t specific information, as in this one. It was information about this informant [sic], and I conducted surveillance prior to that. * * * [APPELLANT’S COUNSEL:] ... [A]re you testifying that most of the information from this informant pertained to [Dixon]? [OFFICER PHELPS:] Correct. [APPELLANT’S COUNSEL:] Okay. What types of information did you get regarding this Defendant? [OFFICER PHELPS:] Where the subject lived, where he worked, the subject’s vehicle, the activity that he was involved in, the specifics of this case, and specifics of other incidents.

If I do reveal that, I believe I would be revealing the informant’s person. If I revealed the specific incidents and the information in other specific incidents, I think it would reveal who the informant is. [APPELLANT’S COUNSEL:] And did you have the opportunity to check that information? [OFFICER PHELPS:] Yes, I did. [APPELLANT’S COUNSEL:] And did you find out about the activities that the Defendant was involved in? [OFFICER PHELPS:] Yes, I did. * * * [APPELLANT’S COUNSEL:] If I may, Officer Phelps, the only basis for arresting Mr. Dixon, the Defendant, was exclusively on what the informant told you. Isn’t that correct? ⁶⁶⁴ [OFFICER PHELPS:] Based on what the informant told me and what I observed at the scene, the totality of the circumstances, I believed there was probable cause for an arrest. [APPELLANT’S COUNSEL:] Okay. What did you observe on the scene that made you believe that he had committed a crime? [OFFICER PHELPS:] What made me think that was that the information the informant had given me, which, as in the past, had been proved—his information had proved to me to be reliable and true—coincided with what was going on that evening in terms of the locations, the time, the vehicle involved.

I believe that all to be in sync. I believe that to be enough to believe that he was committing the crime that I was informed that he would be committing. Appellant testified in his own behalf. He stated that he was employed at Nordstrom’s and that, on the night in question, he left work around 8:00 p.m. to go to his car.

Dixon claimed that he mistakenly left something in the store and had to return to get it. Dixon then returned to the garage, got into his car, and started it. Thereafter, he was surrounded by “a lot of cars,” and was removed from the car, handcuffed, searched, and placed into a police cruiser. Dixon was interviewed at the police station by Corporal Althoff, Detective Philip Tou, and Officer Phelps.

Appellant maintained that the police threaténed him with deportation and, but for those threats, he would not have spoken to the police. Moreover, he indicated that he did not sign a Miranda form until after the officers concluded the questioning. Appellant described the discussion that led to the questioning: It started by, “It would be best”—“It would be in your best interest to talk to us”—“to, you know, talk to us.” So, at the time, I was quiet. And they asked me, “Where are you from?” And I said, “Jamaica.” And they said— “So, you’re from Jamaica, huh?” I said, “Yes.” ⁶⁶⁵ * * * And then [one of the officers] go into, “You know this is a large quantity of stuff we find in the car.

So, you know that’s definitely deportation. So, you know, you should talk to us or we’ll see that you be deported or something, you know.” So, at that time, I got scared and said, “Okay. I have my daughter here. So, I don’t want to be separated from her.

So, I will, you know, do whatever it takes.”---- In rebuttal, Phelps denied that appellant had been threatened with deportation. Moreover, he claimed that the police advised appellant of his rights prior to any discussion concerning the incident. Detective Tou also testified as a rebuttal witness for the State. Tou explained that he was not present at the “arrest site” and did not enter the room where Phelps and Althoff were interviewing appellant until after the questioning had ended.

Although Tou confirmed that some discussion concerning possible deportation arose during appellant’s interview, he denied that appellant was threatened. Following arguments from counsel, the court denied the suppression motion. The court found that the Miranda warnings were given prior to appellant’s statement, and that appellant’s statement was made “freely, voluntarily, [and] knowingly.” The court also said: ... [T]he sole basis for the probable cause for the search comes from the tip from the confidential informant, with the observations of the officer prior to the detention of the Defendant. The first issue on that is the reliability of the confidential informant.

The officer has testified regarding the reliability of the informant prior to this incident. The Court is satisfied with the officer’s testimony and finds the officer to be credible on the prior reliability of this particular confidential informant. There were certainly other indices of reliability regarding this informant prior to the detention. The informant identi ⁶⁶⁶ fied the Defendant by name, identified the Defendant’s vehicle, albeit some discrepancy in color.

The officer knew this Defendant and knew the vehicle, identified the Defendant and identified the vehicle on the scene. The time was approximately correct. The fact that there was no sale conducted was certainly a difference. But the name, the location, the time, the vehicle were all consistent with what the confidential informant had indicated.

So, we have two levels of reliability. We have the officer’s reliability from prior surveillance of this particular informant. Then we have the reliability of the information conveyed for this particular stop. Granted, it is—and the issue really is this information in the particular time was not in and of itself of a criminal nature.

The only evidence of a criminal activity occurring was the confidential informant’s tip that there was marijuana in the vehicle. And the question is, Is that sufficient to justify a search of the vehicle? And if it is sufficient to justify the search of the vehicle, then the discoveiy of the drugs would provide the support for the probable cause for the arrest. The officers clearly had the right to stop and detain Mr. Dixon.

The fact that he was initially placed in handcuffs does not rise, in the Court’s mind, to an arrest at that time. They had a right to detain him at that time and to further investigate. The question is, Is their search of the vehicle warranted? And if that is warranted, then the finding of the drugs supports the arrest of the Defendant and resolves the search and seizure issue.

The Court, in viewing this issue, finds that there was probable cause to search the vehicle. There is sufficient reliability, in the Court’s mind, of the surrounding circumstances, of the prior relationship with the officer. The fact that there is no other independent corroboration of the possession of the marijuana does not, in the Court’s ⁶⁶⁷ view, destroy or negate the probable cause that is necessary for searching the vehicle. The search of the vehicle revealed the marijuana.

That was sufficient, with the fact that the vehicle was the Defendant’s, the fact that the Defendant had keys to the vehicle, the fact the Defendant had entered the driver’s side of the vehicle—is sufficient for there then to be probable cause for the possession of the marijuana by the Defendant, and the Defendant was properly arrested. During preparation for trial, the defense ascertained that James Murphy, one of appellant’s former co-workers, was the confidential informant working with Phelps. In an attempt to establish an entrapment defense, appellant planned to call Murphy as a witness at trial, which began on May 24, 1999 (Chapin, J.). Appellant states in his brief to this Court that he unsuccessfully “requested a postponement [of trial] ... because a witness, James Murphy, ... failed to appear, notwithstanding the subpoena served on him.” At trial, Officer Phelps testified as to the events leading to the detention and arrest of appellant and the search of his Aeura.

Susan Cohen, a crime lab chemist, opined that the samples of plant material submitted by Officer Phelps were marijuana. Detective William Sage, who testified as an expert for the State, indicated that the marijuana in question weighed approximately nine pounds and that it had a street value of between $7,200.00 and $12,600.00. Further, he opined that the quantity of marijuana seized indicated that it was intended for distribution rather than for personal use. Appellant did not present a defense case.

The trial court subsequently denied his motion for judgment of acquittal. We shall include additional facts in our discussion. DISCUSSION I. In reviewing the denial of a motion to suppress, we are confined to the record adduced at the hearing on the ⁶⁶⁸ motion. Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999); Pappaconstantinou v. State, 352 Md. 167, 183 , 721 A.2d 241 (1998); In re Tariq A-R-Y, 347 Md. 484, 488 , 701 A.2d 691 (1997), cert. denied, 522 U.S. 1140 , 118 S.Ct. 1105 , 140 L.Ed.2d 158 (1998).

Moreover, we will consider only those facts that are “most favorable to the State as the prevailing party on the motion.” Matthews v. State, 106 Md.App. 725, 732 , 666 A.2d 912 (1995), cert. denied, 341 Md. 648 , 672 A.2d 623 (1996); see Tariq, 347 Md. at 488 , 701 A.2d 691 ; Williams v. State, 127 Md.App. 208, 212 , 732 A.2d 376 (1999); Hardy v. State, 121 Md.App. 345, 354 , 709 A.2d 168 , cert. denied, 351 Md. 5 , 715 A.2d 964 (1998). Furthermore, the court’s findings of fact and determinations of credibility are afforded great deference. See Tariq, 347 Md. at 488 , 701 A.2d 691 ; Handy v. State, 126 Md.App. 548, 552 , 730 A.2d 710 (1999), aff'd, 357 Md. 685 , 745 A.2d 1107 (2000). We accept the court’s factual findings unless they are clearly erroneous.

Ferris, 355 Md. at 368 , 735 A.2d 491 ; Williams, 127 Md.App. at 212 , 732 A.2d 376 ; see Pappaconstantinou, 352 Md. at 183 , 721 A.2d 241 . In contrast, the court’s legal conclusions are subject to de novo review by an appellate court. Ferris, 355 Md. at 368-69 , 735 A.2d 491 ; Tariq, 347 Md. at 489 , 701 A.2d 691 . Thus, “[a]s to the ultimate conclusion ... we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” Reynolds v. State, 130 Md.App. 304, 313 , 746 A.2d 422 (1999), cert. denied, 358 Md. 383 , 749 A.2d 173 (2000), petition for cert. filed, 69 U.S.L.W. 3087 (U.S. July 12, 2000) (No. 00-64).

II

As we recounted, on the evening in question the officers used their vehicles to block appellant’s car. Then, they immediately removed Dixon from his vehicle and handcuffed him. The motion court ruled that appellant was not arrested at that point. Relying solely on federal constitutional law, however, appellant contends that the conduct of the police amounted to an arrest, for which the officers lacked probable cause. ⁶⁶⁹ Therefore, he claims that the motion court should have suppressed the tainted evidence seized from the trunk.

The State counters that the manner of the stop amounted to a lawful investigatory detention, founded on reasonable, articulable suspicion, and was not an arrest. Alternatively, the State argues that the officers had probable cause to arrest appellant when they stopped his car. Moreover, the State contends that the search of appellant’s vehicle was justified under the automobile exception to the warrant requirement. The State’s arguments lack merit.

As a preliminary matter, the issue of whether appellant was detained or arrested is almost beside the point. The legality of the warrantless search of the trunk does not turn on whether appellant was merely detained, as the State suggests, or was instead arrested, as appellant urges, whether with or without probable cause. Under the circumstances presented here, the warrantless search of the trunk could only be upheld if it was supported by probable case. Nonetheless, we shall begin with a consideration of the parties’ contentions as to the seizure of appellant.

The motion court found that the seizure did not amount to an arrest, even though the court found: “The officers blocked the exit of [Dixon’s] vehicle, conducted a stop of the Defendant,[ 3 ] had him exit the car, placed him in handcuffs, and then proceeded to search the vehicle.” The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause----” See Mapp v. Ohio, 367 U.S. 643 , 646 n. 4, 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961); see also Rosenberg v. State, 129 Md.App. 221, 239 , 741 A.2d 533 (1999), cert. denied, 358 Md. 382 , 749 A.2d 173 (2000). It is undisputed that the police ⁶⁷⁰ officers effected a “seizure” of appellant in the garage, within the meaning of the Fourth Amendment. As the Supreme Court explained in Colmado v. Bannister, 449 U.S. 1 , 4 n. 3, 101 S.Ct. 42 , 66 L.Ed.2d 1 (1980): “There can be no question that the stopping of a vehicle and the detention of its occupants constitute a ‘seizure—’ ” See California v. Hodari D., 499 U.S. 621, 626 , 111 S.Ct. 1547 , 113 L.Ed.2d 690 (1991) (stating that a Fourth Amendment seizure occurs when the subject yields to a “show of authority” by police or when police apply physical force to restrain movement); Brower v. County of Inyo, 489 U.S. 593, 597 , 109 S.Ct. 1378 , 103 L.Ed.2d 628 (1989) (stating that a seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied"); United States v. Mendenhall, 446 U.S. 544, 554 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980) (stating that a person is seized “if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave”); see also United States v. Hensley, 469 U.S. 221, 226 , 105 S.Ct. 675 , 83 L.Ed.2d 604 (1985); Dunaway v. New York, 442 U.S. 200 , 207 & n. 6, 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979); Delaware v. Prouse, 440 U.S. 648, 653 , 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979); Terry v. Ohio, 392 U.S. 1, 16 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) (“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”). The Court in Mendenhall identified several factors indicative of a seizure.

These include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554 , 100 S.Ct. 1870 ; see Florida v. Bostick, 501 U.S. 429, 435-37 , 111 S.Ct. 2382 , 115 L.Ed.2d 389 (1991). Prior to the Supreme Court’s 1968 Terry decision, “the Fourth Amendment’s guarantee against unreasonable seizures of persons was analyzed in terms of arrest, probable cause for arrest, and warrants based on such probable cause.” Duna ⁶⁷¹ way, 442 U.S. at 207-08 , 99 S.Ct. 2248 . The Court said in Dunaway : The term “arrest” was synonymous with those seizures governed by the Fourth Amendment. While warrants were not required in all circumstances, the requirement of probable cause ... was treated as absolute.

The “long-prevailing standards” of probable cause embodied “the best compromise that has been found for accommodating [the] often opposing interests” in “safeguard[ing] citizens from rash and unreasonable interferences with privacy” and in “seek[ing] to give fair leeway for enforcing the law in the community’s protection.” The standard of probable cause thus represented the accumulated wisdom of precedent and experience as to the minimum justification necessary to make the kind of intrusion involved in an arrest “reasonable” under the Fourth Amendment. The standard applied to all arrests, without the need to “balance” the interests and circumstances involved in particular situations. Dunaway, 442 U.S. at 208 , 99 S.Ct. 2248 (1979) (quoting Brinegar v. United States, 338 U.S. 160, 176 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949)) (alterations in original) (footnotes omitted); see Florida v. Royer, 460 U.S. 491, 498 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983). In Bouldin v. State, 276 Md. 511 , 350 A.2d 130 (1976), the Court of Appeals defined an arrest: [A]n arrest is the taking, seizing, or detaining of the person of another (1) by touching or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to fhe actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested.

It is said that four elements must ordinarily coalesce to constitute a legal arrest: (1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested. ⁶⁷² We have defined an arrest in general terms as the detention of a known or suspected offender for the purpose of prosecuting him for a crime. Id. at 515-16 , 350 A.2d 130 (emphasis added) (citations omitted); see Grier v. State, 351 Md. 241, 252 , 718 A.2d 211 (1998); Barnhard v. State, 325 Md. 602, 611 , 602 A.2d 701 (1992); Little v. State, 300 Md. 485, 509-10 , 479 A.2d 903 (1984); Morton v. State, 284 Md. 526, 530 , 397 A.2d 1385 (1979); Wiegmann v. State, 118 Md.App. 317, 330-31 , 702 A.2d 928 (1997), aff'd, 350 Md. 585 , 714 A.2d 841 (1998). Clarifying the point it made in Bouldin in terms of the above-emphasized sentence, the Court recently said in State v. Evans, 352 Md. 496 , 723 A.2d 423 (1999): Notwithstanding this gratuitous language in Bouldin and its incantation in a number of Maryland cases since, this Court has never held that a valid arrest in Maryland requires of the arresting officer an intent to prosecute the arrestee for the crime believed to have been committed. Despite Boul din’s reference, in dicta, to an intent to prosecute within the Maryland common law definition of arrest, neither that case nor . any other case decided by this Court has rested upon the determination that an intent to prosecute is a prerequisite to a valid arrest.

Put simply, whether the officer intends that a detention lead to a prosecution has no bearing on whether an arrest has occurred. Id. at 513-14 , 723 A.2d 423 (citations omitted). Terry constituted a limited departure from the requirement of probable cause to support a seizure. In that case, the Supreme Court held that a police officer may conduct a brief investigatory stop, without running afoul of the Fourth Amendment, if the officer has a reasonable, articulable suspicion that a person has committed or is about to commit a crime.

Terry, 392 U.S. at 30 , 88 S.Ct. 1868 ; see Illinois v. Wardlow, 528 U.S. 119 , 120 S.Ct. 673, 675 , 145 L.Ed.2d 570 (2000); Royer, 460 U.S. at 498 , 103 S.Ct. 1319 ; see also United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975) (holding that when a border patrol ⁶⁷³ officer’s observations lead him or her to reasonably suspect that a vehicle may contain illegal aliens, the officer may stop the vehicle, question its occupants as to citizenship and immigration status, and ask them to explain suspicious circumstances, but stating that any further detention or search must be based on consent or probable cause); Adams v. Williams, 407 U.S. 143, 146 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972) (extending Terry to a stop based on a reliable informant’s tip that defendant was armed and carrying illegal drugs); Derricott v. State, 327 Md. 582, 587 , 611 A.2d 592 (1992) (recognizing that police officer may stop a suspect “if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot”); Flores v. State, 120 Md.App. 171, 182 , 706 A.2d 628 (1998). “[RJeasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, 496 U.S. 325, 330 , 110 S.Ct. 2412 , 110 L.Ed.2d 301 (1990). The Supreme Court has described reasonable suspicion as “ ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.” Ornelas v. United States, 517 U.S. 690, 696 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996) (quoting United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981)). But, the detention “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Royer, 460 U.S. at 500 , 103 S.Ct. 1319 . As we see it, the events in the garage exceeded an investigatory stop under Terry and its progeny.

Accordingly, we do not agree with either the State or the trial court that appellant was merely detained prior to the car search. Instead, we conclude that the officers arrested appellant at the time they blocked his car, removed him from his vehicle, and handcuffed him. Cf. Grier, 351 Md. at 252 , 718 A.2d 211 (acknowledging that when the defendant was put “on the ground and in the custody and control of the police officers, he was certainly under arrest”); Morton, 284 Md. at 530 , 397 A.2d 1385 (1979) (stating that the defendant was clearly under arrest when he ⁶⁷⁴ was removed from a building and placed in a patrol car under guard); Wiegmann, 118 Md.App. at 330 , 702 A.2d 928 (concluding that when court deputies “sought to handcuff’ the defendant, that “act amounted to an attempt to arrest him”).

III

The legality of the search of the trunk, like the legality of the arrest, turns upon the existence of probable cause. See Evans, 352 Md. at 511 , 728 A.2d 423 ; Collins v. State, 322 Md. 675, 678 , 589 A.2d 479 (1991); see also Art. 27, § 594B (governing warrantless arrests by police). Our focus is upon probable cause for the search of the trunk. Even if the initial seizure of appellant amounted only to a Terry stop, or instead constituted an arrest founded on probable cause, the State was not necessarily entitled to conduct a warrantless search of appellant’s trunk.

The Fourth Amendment denounces those searches that are “unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991); Carroll v. United States, 267 U.S. 132, 147 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925). Subject to a few exceptions, “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable.” Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967). In this case, the exception for a warrantless search incident to a lawful arrest would not extend to the car trunk. See United States v. Robinson, 414 U.S. 218, 235 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973); Rosenberg, 129 Md.App. at 239-40 , 741 A.2d 533 .

As we recently explained in State v. Femon, 133 Md.App. 41 , 754 A.2d 463 (2000), two rationales underlie the search incident to arrest exception: “(1) the need to disarm the suspect to prevent the suspect from resisting arrest or effecting escape, and for the safety of the officer and others; and (2) the need to prevent concealment or destruction of evidence.” Id. at 49 , 754 A.2d 463 . Accordingly, in the context of an automobile,, the Supreme Court has held that when a police officer “has made a lawful custodial arrest of the ⁶⁷⁵ occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile,” including any containers. New York v. Belton, 453 U.S. 454, 460 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981) (emphasis added) (footnote omitted). But, the scope of a such a search ordinarily does not include the vehicle’s trunk.

Id. n. 4; see Whiting v. State, 125 Md.App. 404, 412 , 725 A.2d 623 (1999). Consequently, the search of appellant’s trunk did not qualify as a lawful search incident to arrest. To support the search of the trunk, the State relies on the automobile exception to the warrant requirement, embodied in Carroll and its progeny. See Maryland v. Dyson, 527 U.S. 465, 466-67 , 119 S.Ct. 2013 , 144 L.Ed.2d 442 (1999).

Accordingly, we must determine whether the car search was justified under the Carroll doctrine. In Carroll, 267 U.S. 132 , 45 S.Ct. 280 , the Supreme Court established what would later be commonly referred to as the automobile exception to the warrant requirement. There, the defendants challenged their convictions of “transporting in an automobile intoxicating spirituous liquor ... in violation of the National Prohibition Act.” Id. at 134 , 45 S.Ct. 280 . The contraband was discovered when federal and state agents stopped the defendants’ car and recovered numerous bottles of liquor during a vehicle search.

On appeal, the defendants argued that the search and seizure violated the Fourth Amendment. The Court rejected that argument, stating: [T]he true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the "interests and rights of individual citizens. ⁶⁷⁶ Id. at 149 , 45 S.Ct. 280 . The Carroll Court’s conclusion was premised, at least in part, on the following reasoning: [T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Id. at 153 , 45 S.Ct. 280 (emphasis added). But cf. Dyson, 527 U.S. at 466-67 , 119 S.Ct. 2013 (holding that the Carroll doctrine has no separate exigency requirement). The Court was careful to distinguish the warrantless search of an automobile based on probable cause from the exception for a search incident to arrest, stating: When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution. The argument of [the] defendants is based on the theory that the seizure in this case can only be thus justified.

If their theory were sound, their conclusion would be. The validity of the seizure then would turn wholly on the validity of the arrest without a seizure. But the theory is unsound. The right to search and the validity of the seizure are not dependent on the right to arrest.

They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law. Carroll, 267 U.S. at 158-59 , 45 S.Ct. 280 (citations omitted). Since the 1925 decision in Carroll , the doctrine it promulgated has been used to uphold the warrantless search of a vehicle’s trunk, United States v. Ross, 456 U.S. 798, 825 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982), as well as containers in the ⁶⁷⁷ vehicle, so long as the police “have probable cause to believe contraband or evidence is contained” in the containers. California v. Acevedo, 500 U.S. 565, 580 , 111 S.Ct. 1982 , 114 L.Ed.2d 619 (1991).

See generally Manno v. State, 96 Md. App. 22, 33-38 , 623 A.2d 677 (discussing, inter alia, Carroll, Ross, and Acevedo), cert. denied, 332 Md. 454 , 632 A.2d 151 (1993). The Carroll doctrine is not without limits, however: The scope of a warrantless search of an automobile ... is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Just as probable cause to believe that a stolen lawnmower may be found in a garage will not support a warrant to search an upstairs bedroom, probable cause to believe that undocumented aliens are being transported in a van will not justify a warrantless search of a suitcase. Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.

Ross, 456 U.S. at 824 , 102 S.Ct. 2157 (emphasis added); see Almeida-Sanchez v. United States, 413 U.S. 266, 269 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973) (acknowledging that “the Carroll doctrine does not declare a field day for the police in searching automobiles. Automobile or no automobile, there must be probable cause for the search.”); cf. Ross, 456 U.S. at 825 , 102 S.Ct. 2157 (holding that the scope of a search under the Carroll doctrine “is no broader and no narrower than a magistrate could legitimately authorize by warrant”). Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970), one in the line of cases to follow Carroll , is also instructive. There, two men brandishing guns robbed a gas station.

The men took cash from the register and directed the attendant to place the coinage in a right-hand glove. Two teenagers who had earlier noticed a blue compact station wagon circling the block near the station saw the robbers’ car speed away from a parking lot near the station. The teenagers informed police that there were four men in the wagon, one of whom was wearing a green sweater. The station attendant told police that one of the robbers wore a green ⁶⁷⁸ sweater, while the other wore a trench coat.

A description of the robbers and the vehicle was broadcast over the police radio. Within an hour, a light blue compact station wagon with four men, including the defendant, was stopped two miles from the gas station. A trench coat was found in the car. The vehicle’s occupants were arrested and the car was taken to the police station, where it was searched.

In a hidden compartment under the dashboard the police discovered two handguns, a right-hand glove with change in it, and the belongings of a person who had been robbed a week earlier. The defendant was indicted and convicted in connection with both robberies. He did not directly appeal those convictions, but petitioned, unsuccessfully, for a writ of habeas corpus in state and federal courts. On appeal to the Supreme Court, the defendant argued, inter alia, that the search of the station wagon was the fruit of an unlawful arrest.

Chambers, 399 U.S. at 46 , 90 S.Ct. 1975 . The Court “pass[ed] quickly” on this claim. Id. Although the Court agreed that the defendant’s arrest was supported by probable cause, it acknowledged in a footnote that the validity of an arrest is not necessarily determinative of the right to search a car if there is probable cause to make the search.

Here, as mil be true in many cases, the circumstances justifying the arrest are also those furnishing probable cause for the search. Id. at 47 n. 6, 90 S.Ct. 1975 (emphasis added). Additionally, as it had in Carroll , the Court distinguished the search in Chambers from one incident to lawful arrest. Id. at 47 , 90 S.Ct. 1975 .

The question, then, is whether the police had probable cause to search appellant’s trunk. We conclude that probable cause was wholly lacking. Probable cause is defined as “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 , 76 L.Ed.2d 527 (1983); see State v. Lee, 330 Md. ⁶⁷⁹ 320, 326, 624 A.2d 492 (1993); Braxton v. State, 123 Md.App. 599, 620 , 720 A.2d 27 (1998). It is a nontechnical conception of a reasonable ground for belief of guilt.

A finding of probable cause requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion. Our determination of whether probable cause exists requires a nontechnical, common sense evaluation of the totality of the circumstances in a given situation in light of the facts found to be credible by the trial judge. Probable cause exists where the facts and circumstances taken as a whole would lead a reasonably cautious person to believe that a felony had been or is being committed by the person arrested. Collins, 322 Md. at 680 , 589 A.2d 479 (emphasis