Edwards v. State

HOLLANDER, Judge. In this case, we must determine whether the Circuit Court for Harford County erred in denying a suppression motion filed by Lonnie Lee Edwards, appellant, concerning marijuana and a knife recovered from a vehicle in which appellant was a passenger. Resolution of that issue requires us to determine ¹⁵⁷ whether the police executed a valid traffic stop of the vehicle under Md.Code (1974, 1991 Repl.Vol.), § 21-309 of the Transportation Article (“Tr.”), after it crossed over the center line of a two lane divided highway. Following the denial of the suppression motion, Edwards was tried by the court, pursuant to an agreed statement of facts. 1 The court subsequently found appellant guilty of possession of a concealed weapon and possession of marijuana, 2 and sentenced him to concurrent terms of one year incarceration, with all but 90 days suspended.

On appeal, appellant poses one question: [Wlhether or not a one time crossing of the centerline of a[n] undivided deserted highway constitutes probable cause for a violation of failing to maintain lane pursuant to Maryland Code (1997, 1999) Repl.Vol. § 21-309, as that statute was interpreted in, Rowe v. State, 363 Md. 424 , 769 A.2d 879 (2001)[.] For the reasons that follow, we shall affirm. FACTUAL SUMMARY 3 The court held a suppression motion hearing on June 15, 2001. What follows is a summary of the evidence in the light most favorable to the State. On October 24, 2000, at about 3:15 a.m., State Trooper Timothy Mullin was on patrol in Harford County in an unmarked vehicle, traveling north on Route 152 in the vicinity of Route 7.

At that time, he observed a maroon Dodge Caravan traveling on Route 152, a two-lane highway divided by a center line, with one travel lane in each direction. While ¹⁵⁸ following the van for about a mile, the trooper observed it cross the center dividing line of the “two-lane” road. The .trooper recalled that the “distance that the vehicle traveled in which it crossed the center line was approximately a quarter mile.” Accordingly, the trooper effected a traffic stop of the van. Appellant’s girlfriend, Jennifer Badessa, was the driver of the vehicle.

Appellant, who was seated in the front, was the only passenger. At the hearing, Trooper Mullin testified as to his reason for making the traffic stop. The following colloquy is relevant: [TROOPER MULLIN]: We were traveling north. Route 152 in that area is divided by a concrete median.

Once we got past the concrete median where there was a center lane [sic], I observed the Caravan in front of me cross the line by approximately one foot on several occasions. I then activated my emergency equipment and stopped the vehicle in the slow shoulder on northbound 152 in the area of Frank-linville Road. [PROSECUTOR]: Now, the observation you made of the vehicle crossing the center line, so I understand, this section of 152 at this point, is it a two-lane road? [TROOPER MULLIN]: Correct, with a center line, no median. [PROSECUTOR]: So when you are referring to the center line, you are talking about crossing into the oncoming traffic, not crossing into a passing lane? [TROOPER MULLIN]: Correct. On cross-examination, the following ensued: [APPELLANT’S COUNSEL]: Okay. Besides your vehicle and the defendant’s vehicle, there weren’t any other vehicles in the immediate area, were there? [TROOPER MULLIN]: I can’t recall, but normally at that time of the morning, there are not too many vehicles. ¹⁵⁹ [APPELLANT’S COUNSEL]: Okay.

And you came in behind the Dodge Caravan, and other than the failure to maintain her lane, the vehicle crossed and touched by one foot the white line; is that light? [TROOPER MULLIN]: No. He [sic] crossed the center line by one foot. [APPELLANT’S COUNSEL]: When you say by one foot, you’re talking about the right tires of the Dodge Caravan crossing into the lane by one foot. Is that what you meant? [TROOPER MULLIN]: The left side tires crossed the center line, both center lines, by approximately one foot.... [T]he center line is on the left side of the vehicle. [APPELLANT’S COUNSEL]: After that happened, the vehicle went back into the travel lane; is that correct? [TROOPER MULLIN]: Correct. [APPELLANT’S COUNSEL]: And your testimony on direct was that happened on several occasions. Did you mean you witnessed that on two occasions? [TROOPER MULLIN]: I would say three. Approximately three times. [APPELLANT’S COUNSEL]: And the three times that happened, was it the same scenario, that the wheels would cross in a foot and then come back into the travel lane? [TROOPER MULLIN]: Correct. [APPELLANT’S COUNSEL]: You observed no other traffic offenses?

That was why you stopped this vehicle, correct? [TROOPER MULLIN]: As far as I know, that’s why I stopped the vehicle, for crossing the center line. (Emphasis added). Trooper Mullin acknowledged that neither his Statement of Probable Cause nor the criminal complaint indicated the number of times that he observed the van cross the center line. Moreover, he could not recall whether he had issued a citation ¹⁶⁰ to Ms. Badessa for failing to maintain her lane, or for any other traffic citation.

In any event, Trooper Mullin recalled that, after stopping the van, he approached the driver’s side window. The driver had already lowered the window, and the trooper immediately “detected a strong odor of burnt marijuana emitting from the vehicle.” The defense stipulated that the officer is “trained in sensing and detecting burnt marijuana.” Upon detecting the odor of marijuana, Trooper Mullin ordered Ms. Badessa and appellant out of the van and then conducted a search of the vehicle. In doing so, the trooper found the marijuana and a dagger. 4 Trooper Mullin recalled that the “glove box,” located under the front passenger seat, was locked, but he obtained the key from appellant. He found a glass jar in the glove box, which contained marijuana, marijuana seeds, and wrapping papers.

On the floorboard directly in front of the passenger seat, the trooper recovered a five-inch dagger in a sheath. Additionally, Trooper Mullin conducted a field sobriety test of Ms. Badessa, from which he concluded that she was not driving under the influence. Ms. Badessa testified that she saw two State police cars at the intersection of Routes 40 and 152, and was aware that the police were following her. Therefore, she activated her cruise control.

In doing so, Ms. Badessa acknowledged that she may have “swerved,”' but insisted “that was it.” She offered no other explanation for crossing the center line. Ms. Badessa also said: “I didn’t go all the way into the other lane. I mean, maybe the wheel, because I had to take one of my hands off the wheel to do the cruise control to set it, so maybe I went onto the center line.... Honestly, I don’t think I went all the way over the center line.” Moreover, she claimed that there were no other vehicles on the road in the area, except for the police cars.

On cross-examination, Ms. Badessa reiterated ¹⁶¹ that she “was not all the way over” the line, and claimed that “[t]here was no traffic.” When the trooper approached the van, Ms. Badessa recalled that he said: “I pulled you over for driving right of center,” and “gave her a ticket.” Ms. Badessa also recounted that the trooper said he “smelled marijuana.” Further, Ms. Badessa claimed that after she was subjected to field sobriety tests, the police asked for the keys to the glove box, located underneath the passenger seat. Ms. Badessa explained that she did not have keys to the box and, when the police asked appellant for the keys, he did not want to surrender them. Nevertheless, Ms. Badessa maintained that the keys were “forcibly” removed from appellant. Thereafter, the police found the marijuana.

Ms. Badessa testified that she heard Edwards acknowledge that the marijuana belonged to him. The circuit court found that the traffic stop was lawful, and therefore it denied the motion to suppress the marijuana and the dagger. It reasoned, in relevant part: Trooper Mullin fell in behind the subject vehicle. I find as fact that he observed at least one occasion where the vehicle crossed the center line by at least a foot into the oncoming traffic lane.

This is verified by Ms. Badessa’s testimony that that well could have happened when she put on the cruise control so she wouldn’t speed. I don’t think it matters whether I find that incidents two or three occurred because at least on one occasion I am completely satisfied she did cross the center line into the oncoming traffic lane by a foot or more. Even without oncoming traffic, it being late at night, it’s still a dangerous maneuver of more significance than crossing a shoulder line as was discussed in Rowe v. Maryland. I find this case is clearly distinguishable from Rowe v. Maryland, reported at 363 Md. 424 , 769 A.2d 879 .

I find as a fact, as a matter of law, that this was a valid motor vehicle stop by Trooper Mullin. When he ap ¹⁶² proached the vehicle, he noticed a strong odor of marijuana, and this gave him the right under the Carroll v. United States doctrine to search the vehicle for evidence of a crime without a warrant, and that gave him the right to search not only the vehicle but the locked glove box container under the passenger side of the vehicle. So I find that the search and seizure of the items inside the car was valid; therefore, the seizure of the knife and the marijuana was lawful. Thereafter, on July 11, 2001, appellant waived his right to tidal by jury and pleaded not guilty as to all charges.

The parties adopted the facts adduced at the suppression hearing, supplemented, inter alia, by the report of the crime lab identifying the substance recovered from the vehicle as marijuana. We shall include additional facts in our discussion. DISCUSSION I. Our review of the trial court’s ruling with respect to a suppression motion “ordinarily is limited to information contained in the record of the suppression hearing.” Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000); see Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999); State v. Fernon, 133 Md.App. 41, 43 , 754 A.2d 463 (2000). Moreover, we review the evidence in the light most favorable to the State as the prevailing party.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); see Charity v. State, 132 Md.App. 598, 606 , 753 A.2d 556 , cert. denied, 360 Md. 487 , 759 A.2d 231 (2000) (stating that “[o]ur ruling will be based exclusively on the [prevailing party’s] most favorable version of the events.”). In our review, we give due regard to the motion judge’s opportunity to assess the credibility of the witnesses. McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430 (1992); Fernon, 133 Md.App. at 43 , 754 A.2d 463 . ¹⁶³ Unless clearly erroneous, we defer to the factual findings of the suppression judge as to first-level findings of fact. See Ferris, 355 Md. at 368 , 735 A.2d 491 ; Fernon, 133 Md.App. at 44 , 754 A.2d 463 ; Charity, 132 Md.App. at 606 , 753 A.2d 556 .

Nonetheless, we must make our own independent constitutional appraisal as to whether a stop or search was lawful. See Ornelas v. United States, 517 U.S. 690, 697 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996); Cartnail, 359 Md. at 282-83 , 753 A.2d 519 ; Fernon, 133 Md.App. at 44 , 754 A.2d 463 . We accomplish this by reviewing the law and applying it to the first-level facts found by the suppression judge. In re Tariq A-R-Y, 347 Md. 484, 489 , 701 A.2d 691 (1997), cert. denied, 522 U.S. 1140 , 118 S.Ct. 1105 , 140 L.Ed.2d 158 (1998); Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Howard v. State, 112 Md.App. 148, 156 , 684 A.2d 491 (1996), cert. denied, 344 Md. 718 , 690 A.2d 524 (1997).

II

Appellant argues that, “absent reasonable articulable suspicion or probable cause for a violation of § 21-309(b),” the trooper violated the Fourth Amendment when he stopped the van. 5 He asserts that “[t]he sole question presented in this appeal is whether a law enforcement officer who views a vehicle’s wheels momentarily cross the center line of a[n] undivided highway absent something more constitutes probable cause for a violation [oí] Maryland Code (1997, 1999 Repl.Vol.) [, Transportation Article,] § 21-309(b).” Edwards contends that the circuit court found a one-time crossing and, relying on the recent case of Rowe v. State, 363 Md. 424 , 769 A.2d 879 (2001), he asserts that “a one-time crossing of the center line fails to establish probable cause for a violation of Tr. § 21-309(b).” In appellant’s view, Rowe eschewed the literal interpretation of Tr. § 21-309(b), in favor of an interpretation that focuses exclusively on the safety of a ¹⁶⁴ lane change. Thus, appellant maintains that the trial court erred in distinguishing this case from Rowe and finding, instead, that “a one time centerline crossing of the centerline was qualitatively different in nature then [sic] crossing the shoulder....” We begin our analysis with a brief review of the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961); Owens v. State, 322 Md. 616, 622 , 589 A.2d 59 , cert. denied 502 U.S. 973 , 112 S.Ct. 452 , 116 L.Ed.2d 470 (1991). The Fourth Amendment guarantees, inter alia, “ ![t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.... ’ ” Rosenberg v. State, 129 Md.App. 221, 239 , 741 A.2d 533 (1999), cert. denied, 358 Md. 382 , 749 A.2d 173 (2000) ■ (internal citations omitted).

Nevertheless, “[t]he Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991) (citing Illinois v. Rodriguez, 497 U.S. 177 , 110 S.Ct. 2793 , 111 L.Ed.2d 148 (1990)); see United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568 , 84 L.Ed.2d. 605 (1985); Rosenberg, 129 Md.App. at 239 , 741 A.2d 533 . In Ferris v. State, 355 Md. 356 , 735 A.2d 491 (1999), the Court recognized that a traffic stop involving., a motorist is a detention which implicates the Fourth Amendment.... It is equally clear, however, that ordinarily such a stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation. Id. at 369 , 735 A.2d 491 (internal citation omitted); see also Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996).

Probable cause has been defined as “a non-technical conception of a reasonable ground for belief for guilt, requiring less evidence for such belief than would justify conviction but more evidence ... than mere suspicion.” Doer- ¹⁶⁵ ing v. State, 313 Md. 384, 403 , 545 A.2d 1281 (1988); see also Collins v. State, 322 Md. 675, 680 , 589 A.2d 479 (1991). As the Supreme Court said in Brinegar v. United States, 338 U.S. 160, 175 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949), “in dealing with probable cause, ... as the very name implies, we deal with probabilities.” Moreover, in Rowe v. State, 363 Md. at 433 , 769 A.2d 879 , the Court reiterated that