Elliott v. State

GREENE, J. In this case, we are asked to determine whether the intermediate appellate court erred in applying the doctrine of inevitable discovery sua sponte, where the State did not argue the doctrine at any point during prior proceedings. In addition, we are asked to determine whether the Circuit Court erred in failing to grant defense counsel’s motion to compel disclosure of the identity of a confidential informant where the identity of the informant was material to the issue of the defendant’s guilt or innocence. FACTS AND PROCEDURAL BACKGROUND On April 12, 2006, Winston Elliott was arrested in a parking lot in Prince George’s County, Maryland, based on information provided by a confidential informant (“Cl”). That morning, a Cl, who is a registered source with the Prince George’s County Police Department, contacted Detective Melvin Powell of the Narcotics Enforcement Division of the Prince George’s County Police Department.

Powell is the primary contact for the source within the police department. He testified that the Cl previously provided information on numerous occasions ⁴²³ which was “accurate, [ ] proven and corroborated” and lead to the “seizure of large quantities of marijuana” in previous cases. Previously, the source had been involved in buying and selling drugs, but police agreed not to arrest him in exchange for his cooperation in future police investigations. The Cl told Powell that a man named Winston would be arriving at a movie theater near Marlow Heights later that day, in order to deliver a large quantity of marijuana.

The Cl described Winston as a slim, black male, approximately five feet, eight inches tall, with a heavy Jamaican accent. The Cl contacted Powell a second time and told Powell that the location had changed to the Southern Marketplace shopping center, with an estimated arrival time between 1:00 p.m. and 3:00 p.m. The Cl also provided the officers with a description of a black Nissan Maxima, including the license plate number, which later proved to be almost an exact match to Elliott’s car. 1 The police followed the tip and set up surveillance in the parking lot. The police were accompanied by the Special Operations Division (“SOD”), also known as the SWAT team, which provides protection for undercover officers by assisting in apprehension and safe detention of suspects, as well as agents from the Drug Enforcement Administration (“DEA”).

At approximately 1:20 p.m., Mr. Elliott entered the parking lot of the shopping center driving a black Nissan Maxima, accompanied by his friend, Rowan Chambers. Elliott parked his car. The two men then got out and started walking towards the shopping center. Detective Crystal Mills, the lead investigator in Elliott’s case, testified that she called a K-9 unit to come to the location when the car arrived at the parking lot. 2 The officers on the scene determined that Mr. Elliott and his vehicle matched the description given by the Cl, and notified the SOD to make the apprehension.

An ⁴²⁴ unmarked SOD police van then drove toward Elliott and Chambers; four police officers jumped out of the van, identified themselves as police, and ordered the men to put their hands up. The officers pointed assault rifles and sub-machine guns at the two men as they were handcuffed and forced to the ground. The men did not attempt to flee the scene. The officers searched the men and removed all of their possessions, including car keys from Mr. Elliott’s pants pocket.

Once the men were secured, SOD officer Anthony Cline called over DEA Agent Brian Silvestro, who was standing nearby. Silvestro approached the officers and requested the keys to the car. Silvestro testified that upon approaching the vehicle, he smelled the odor of marijuana emanating from the trunk. Silvestro opened the trunk using the keys, saw a large suitcase and two other bags, and smelled marijuana.

He then closed the trunk. Agent Silvestro testified at the suppression hearing that the K-9 unit arrived approximately 15 minutes after he opened the trunk. When the K-9 unit arrived, Officer Andrew Logan and the police dog conducted a scan of the vehicle, and the dog alerted to the trunk area. The officers then transported the two men and the car to the Oxon Hill police station for processing.

The entire sequence of events, from the initial apprehension until Elliott was placed in a police vehicle for transport to the police station, took about 30 minutes. At the police station, Agent Silvestro searched the vehicle and removed 20 pounds of marijuana contained in the suitcase, which was wrapped securely in closed, thick plastic bags. No marijuana or drug paraphernalia was uncovered anywhere else in the vehicle. No drugs or weapons were found on the two men.

Based on the evidence seized, Elliott was charged with possession of marijuana and possession with intent to distribute marijuana. Elliott filed preliminary motions in the Circuit Court for Prince George’s County. He moved to suppress the drug evidence and to compel disclosure of the identity of the CI. The hearing on the motion to suppress was held on January 19, 2007, and the hearing on the motion to compel disclosure of the identity of the informant was held on Febru ⁴²⁵ ary 16, 2007.

Elliott argued at the suppression hearing that he was arrested when he was initially apprehended and ordered to the ground, and that the information from the Cl was insufficient on its own to establish probable cause for a warrantless arrest. Elliott therefore moved to suppress the evidence seized from the car under the “Fruit of the Poisonous Tree” doctrine. The Circuit Court judge denied the motion after hearing testimony from four officers involved in the arrest. The sole focus at the motions hearing was whether the stop was a detention or arrest, and whether the information provided by the Cl was sufficient to furnish probable cause.

The court held that the initial seizure of Elliott was an investigative detention supported by reasonable suspicion, and held that the subsequent K-9 search provided the probable cause necessary to arrest Elliott and search the car. On February 16, 2007, the Circuit Court held a hearing on the motion to compel disclosure. The parties incorporated the testimony of the suppression hearing by reference, and no additional testimony was taken. Elliott argued that the Cl gave Elliott the drugs in order to set him up, and informed the court that the intended defense at trial would be entrapment.

The defense attorney, however, was not permitted to question officers at the suppression hearing as to the identity of the CL When the defense presented their theory that Elliott was set up by a specific person, the Circuit Court held that the State did not have to disclose the identity of the Cl because the defense was just “fishing” and in fact knew the informant’s identity. The Circuit Court denied the motion to compel, concluding that the information was not relevant to any defenses or charges, and emphasizing the obligation of the court to protect confidential sources. Mr. Elliott’s first trial was held on August 21-22, 2007. The jury was unable to reach a verdict and the court declared a mistrial.

The second trial was held on April 8-9, 2008, and Elliott was found guilty on both counts. At both trials, Elliott testified in his own defense, presenting evidence to show lack of knowledge of the controlled dangerous substance, in addition to expanding on the defense’s theory of entrapment. ⁴²⁶ Elliott testified that he did not know the marijuana was in the trunk of his car. Rather, an acquaintance of Elliott’s, known to him only as “Christopher Lodge,” was responsible for the drugs. According to Elliott, Lodge called Elliott the day before the incident, requesting that Elliott help store some of Lodge’s possessions.

Lodge told Elliott that Lodge had a fight with his girlfriend and that she had kicked him out of their shared apartment. Mr. Lodge asked Elliott if Elliott could help store Lodge’s belongings temporarily. Elliott drove to Lodge’s apartment, and Lodge placed a backpack, large suitcase, and garment bag in the trunk. Elliott testified that he did not get out of the car; he merely popped the trunk, allowing Lodge to place the items in the trunk, and Lodge then closed the trunk.

The next morning, Elliott received a call from Lodge asking Elliott to meet Lodge at the shopping center, in order for Lodge to retrieve his belongings. Elliott testified that following his arrest, he believed Lodge was the Cl and was unable to contact or locate Lodge. In its rebuttal, the State called Detective Powell, who testified he had never heard of Lodge. Ultimately, Elliott was convicted as a result of the second trial.

Elliott filed a timely appeal to the Court of Special Appeals. Elliott argued that the evidence of the contraband found in the trunk of the car should have been suppressed as the product of an illegal arrest and that the failure to compel disclosure of the informant’s identity precluded Elliott from effectively presenting his defense at trial. The State maintained that the initial stop of Elliott was an investigative detention, not an arrest, and that the Circuit Court was correct in withholding the informant’s identity. On November 3, 2009, in an unreported opinion, the Court of Special Appeals affirmed Elliott’s convictions.

The court held that Elliott was in fact arrested, not merely detained, when he was initially apprehended. The court concluded, however, that the evidence was nonetheless admissible under the inevitable discovery doctrine. This issue was not raised or argued by either party; rather, the court raised the issue sua sponte. The intermediate appellate court also held that the Circuit Court did not abuse its discretion in ⁴²⁷ refusing to compel disclosure of the confidential informant.

The court reasoned that the defense did not meet its burden of showing a substantial reason why the identity was material to the defense. As a result of the court’s ruling, Mr. Elliott filed a motion for reconsideration, claiming that the court erred in deciding the issue sua sponte because the State had never raised the issue at any point during any proceeding. The court denied the motion without opinion. Elliott filed a petition for writ of certiorari in this Court.

The Questions Presented were: I. Did the [Court of Special Appeals] err in raising and deciding inevitable discovery sua sponte, where the state failed to raise it at any point during any of the proceedings?

II

Did the court err in refusing to compel disclosure of the identity of the confidential informant, where petitioner’s defense was that the informant was responsible for devising the circumstances that led to his arrest? In its answer to the petition, the State filed a conditional cross-petition, asking this Court to determine if: The Court of Special Appeals erred in finding that the manner in which the police detained Elliott prior to the canine search of his vehicle constituted an arrest, and not an investigatory detention? We granted both the petition and cross-petition. Elliott v. State, 413 Md. 228 , 991 A.2d 1273 (2010).

DISCUSSION I. Regarding the denial of a motion to suppress evidence: “[A]n appellate court looks only to the evidence that was presented at the suppression hearing. The reviewing court views the evidence in the light most favorable to the prevailing party and defers to the motions court with respect to its first level factual findings. The ultimate determination of whether there was a constitutional violation, however, is an ⁴²⁸ independent determination that is made by the appellate court alone, applying the law to the facts found in each particular case.” Belote v. State, 411 Md. 104, 120 , 981 A.2d 1247, 1256 (2009) (internal citations omitted). Specifically, this standard applies when evaluating whether a detention becomes a de facto arrest, requiring probable cause.

See Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129,1135 (2007). Regarding the issue of disclosure of the identity of a confidential informant, the ultimate decision is within the discretion of the trial court. An appellate court will “look to see whether the court applied correct legal principles and, if so, whether its ruling constituted a fair exercise of its discretion.” Edwards v. State, 350 Md. 433, 442 , 713 A.2d 342, 346 (1998). In determining whether a court properly exercised its discretion, the question “is whether the court reached the right balance among the competing interests.” 350 Md. at 441 , 713 A.2d at 346 .

We agree with the Court of Special Appeals that the detention of Elliott constituted an arrest at the time the SWAT team apprehended him, and that the police lacked probable cause to conduct a warrantless arrest. We do not agree, however, with that court’s determination sua sponte that the evidence was properly admitted under the doctrine of inevitable discovery. Despite this conclusion, we shall affirm the Court of Special Appeals’ determination that the Circuit Court’s denial of the motion to suppress was proper, because the search of the vehicle was supported by probable cause. A. Arrest We defined the term “arrest” in Bouldin v. State, 276 Md. 511 , 350 A.2d 130 (1976).

We stated, “it is generally recognized that an 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 the actual control and will of the person making the arrest ...” 276 Md. at 515-16 , 350 A.2d ⁴²⁹ at 133. Recently, in Longshore , we relied on Bouldin’s definition of arrest and considered the distinction between a brief, investigative detention and a de facto arrest. In determining whether a Terry 3 stop is elevated to a de facto arrest, courts will consider many factors. “Generally, a display of force by a police officer, such as putting a person in handcuffs, is considered an arrest.” Longshore, 399 Md. at 502 , 924 A.2d at 1138 . This Court has, however, recognized certain limited circumstances when the use of force will be considered reasonable as part of an investigative detention: where the use of force is used to protect officer safety or to prevent a suspect’s flight. 399 Md. at 509 , 924 A.2d at 1142 .

The burden is on the State to prove that such special circumstances existed in order to justify the officer’s use of force in an investigative detention. Id. (holding that there was “no justification for placing Longshore in handcuffs” because there was no “reason to believe that [the defendant] was armed or dangerous ... [and] no reason to believe that [the defendant] was a flight risk.” 399 Md. at 514, 515 , 924 A.2d at 1145 ). The State argued that we have approved of hard take-downs as “permissible Terry detentions rather than as arrests,” relying on our opinion in Cotton v. State, 386 Md. 249 , 872 A.2d 87 (2005) (holding that the defendant was not under arrest when he was handcuffed and detained for twenty minutes while police investigated the scene).

The State misinterprets our limited approval of hard take-downs. In Cotton , we held that the temporary detention by police of persons found in or around the premises “to minimize the risk of harm to both police and occupants” did not reach the level of an ⁴³⁰ arrest. 386 Md. at 258 , 872 A.2d at 92 . The State, however, overlooks the fact that we sanctioned the use of force precisely because one of the special circumstances listed above was present—reasonable suspicion of danger. 4 The case does not stand for a blanket acceptance of hard take—downs absent specialized need, which was made very clear in Longshore , decided two years after Cotton . In the present case, Elliott was arrested as he walked away from the vehicle he drove to the parking lot.

Applying the Bouldin definition, Elliott was seized and detained by the physical touching of officers and by acts indicating an intent to take Elliott into custody. Testimony at the suppression hearing by Officer Powell revealed that the arrest was made two minutes after Elliott’s car arrived at the parking lot. To confirm this, Powell later admitted at trial that “we arrested him as soon as he arrived.” This was also corroborated by Agent Silvestro at trial, stating that the arrest signal was given once Mr. Elliott exited the car. These statements indicate that the police believed Mr. Elliott to be under arrest when he was initially detained.

Further, Officer Cline testified at the suppression hearing that the SOD unit “drove the van towards the intended targets and we jumped out, placed them on the ground and handcuffed them.” He indicated that the officers were carrying M-4’s, which are short “assault rifle type [guns] for close quarters,” and MP-5’s, which are a type of “submachine gun.” This “threatening presence of several officers, the display of a weapon by an officer, [and] some ⁴³¹ physical touching of the person” would make “a reasonable person [believe] that he was not free to leave.” Swift v. State, 393 Md. 139, 150 , 899 A.2d 867, 873 (2006). Finally, as Officer Cline stated during his testimony at the suppression hearing, there was “no attempt to flee whatsoever.” There was therefore no indication that Elliott posed a flight or safety risk in order to justify a hard take-down, which supports the holding that Elliott was arrested when he was initially detained. Having found that Elliott was arrested without a warrant, we must next decide if there was probable cause to justify the arrest. We agree with the Court of Special Appeals when it held that the arrest was not supported by probable cause. “Probable cause exists where the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested.” Longshore, 399 Md. at 501 , 924 A.2d at 1137 (quotations and alterations omitted).

When officer apprehension of a suspect is based on information provided by a confidential informant, reliability of the informant is “critical to any constitutional validity of the warrantless seizure” of a person. Lee v. State, 311 Md. 642, 653 , 537 A.2d 235, 240 (1988) (applying Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983)). In making this determination, we apply the “totality of the circumstances” test, which mandates that we look to the veracity, reliability, and basis of knowledge of the informant to establish if the Cl’s report furnishes probable cause. 311 Md. at 654 , 537 A.2d at 240 . Prior relations with the police and specificity of the tip contribute to this determination. 311 Md. at 654-55 , 537 A.2d at 240 .

In Dixon v. State, 133 Md.App. 654 , 758 A.2d 1063 (2000) the Court of Special Appeals provided an in-depth analysis of our jurisprudence on the issue of confidential informants providing reasonable suspicion and probable cause. In Dixon , an officer received a tip from a confidential informant with whom the officer had previously worked and considered to be ⁴³² “reliable and accurate.” 133 Md.App. at 659 , 758 A.2d at 1066 . The informant told the officer that a “black man named Orville Dixon would be transporting approximately ten pounds of marijuana to [a department store parking lot] ... at approximately 8:15 p.m. in a dark-colored Aeura to conduct a drug sale.” Id. Once police saw Dixon get into his car, several unmarked police cars blocked his vehicle in, removed Dixon from the car and handcuffed him. 133 Md.App. at 660 , 758 A.2d at 1066 .

Police then opened Dixon’s trunk without a search warrant and discovered marijuana. Id. Before trial, the defense filed a motion to suppress evidence, claiming Dixon was unlawfully arrested without probable cause. 133 Md.App. at 669 , 758 A.2d at 1070 . The State countered that the stop was an investigatory detention supported by reasonable suspicion. 133 Md.App. at 669 , 758 A.2d at 1071 .

The Circuit Court denied the motion to suppress and the evidence was admitted. On appeal, the Court of Special Appeals held that Dixon was arrested in the parking lot, rather than detained. 133 Md. App. at 673 , 758 A.2d at 1073 . Employing the totality of the circumstances test, the Court of Special Appeals also held that the informant’s tip did not provide probable cause to support the arrest. The court stated: Probable cause in the context of an informant’s tip depends on some combination of the substance of the tip and corroborative observation by law enforcement of the suspect’s activities, some of which may appear innocent on its face.

In the case of a confidential informant, as opposed to an anonymous one, evidence as to the informant’s demonstrated reliability is also vital. 133 Md.App. at 695 , 758 A.2d at 1085 . The court then applied this reasoning to the case at hand and held that the tip was not sufficiently corroborated and that the informant’s reliability was undeveloped. 133 Md.App. at 696 , 758 A.2d at 1085 . In this case, the officers were provided with a fairly specific tip from an apparently reliable Cl. Similar to Dixon , while the information most assuredly provided articulable, ⁴³³ reasonable suspicion sufficient to justify a brief investigative detention, the information was not alone sufficient to furnish probable cause to arrest Elliott on the spot. 5 The tip included a description of the suspect, containing some specific information; it also contained inaccurate and unverified statements.

Specifically, the Cl described the suspect or driver’s height as five feet eight, and Elliott is in fact five feet eleven. Also, before arresting Elliott, police did not ask Elliott whether his name was “Winston,” and did not ascertain whether he had a heavy accent, both key elements in the description that the Cl gave to Powell. Instead of asking Elliott his name or asking him to speak in order to verify either piece of information, police immediately engaged in a hard-take down and handcuffed Elliott. Again similar to Dixon , at the time of the arrest, the police had not confirmed the claim that Elliott was engaged in any illegal activity.

Rather, all the police knew at the time of arrest was that a man who was similar in description to the description provided by the Cl, had parked his car and was walking toward a mall. In fact, when asked by defense counsel whether Mr. Elliott was acting “erratic or unusual,” Officer Cline testified, “No. You would think he was normal [sic] shopping there.” As the Court of Special Appeals noted, “[t]he only information possessed by the police at the time of the arrest was based on the Cl’s tip.” Absent police corroboration or specific information in the tip regarding future behavior, the remaining facts, that a slim black male would be driving a black Nissan Maxima, are not sufficient to provide probable cause. Therefore, probable cause to arrest Mr. Elliott did not exist at the time of his apprehension. The Court of Special Appeals was correct in concluding that Elliott ⁴³⁴ was arrested during his initial detention and that the arrest was not supported by probable cause.

B. Inevitable Discovery Despite holding that Elliott was illegally arrested without probable cause, the Court of Special Appeals nevertheless invoked the inevitable discovery doctrine, and upheld the denial of the motion to suppress the evidence seized. We hold that the intermediate appellate court erred in raising the issue sua sponte, because the record below was not sufficiently developed for the State to meet its burden of proving inevitable discovery by a preponderance of the evidence, and applying the doctrine would result in unfair prejudice to the defendant. As we stated above, we are constrained to a review of the record of evidence presented at the suppression hearing in determining whether a court may review an issue sua sponte. Belote v. State, 411 Md. 104, 120 , 981 A.2d 1247, 1256 (2009).

We may only rely on the “facts and information contained in the record of the suppression hearing” and will defer to the hearing judge’s factual findings. Longshore, 399 Md. at 498 , 924 A.2d at 1135 . This case presents the question of whether an issue may be raised and determined at the appellate level that was not raised at the suppression hearing and goes beyond the record developed. We have discussed extensively the scope of appellate review.

The scope of appellate review is defined in Maryland Rule 8-131, which provides in part: “Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.” Rule 8-131(a). “This Court has often stated that the primary purpose of Rule 8-131(a) is to ensure fairness for all parties in a case and to promote the orderly administration of law.” State v. Bell, 334 Md. 178, 189 , 638 A.2d 107, 113 (1994) (internal citations omitted). There are, however, ⁴³⁵ [W]ell-recognized exceptions to this general principle. One exception is that where the record in a case adequately demonstrates that the decision of the trial court was correct, although on a ground not relied upon by the trial court and perhaps not even raised by the parties, an appellate court will affirm. In other words, a trial court’s decision may be correct although for a different reason than relied on by that court.

Robeson v. State, 285 Md. 498, 502 , 408 A.2d 1221 , 1223 (1979) (citations omitted). Appellate review of issues not previously raised is therefore discretionary, but, “this discretion should be exercised only when it is clear that it will not work an unfair prejudice to the parties or the court.” Bell, 334 Md. at 189 , 638 A.2d 107 at 113 . As stated above, there must be an adequate record below in order to justify an appellate court’s departure from the general rule against raising issues sua sponte. In order to determine whether the present case satisfies the exception, we must determine if the record was adequate to justify the intermediate appellate court’s invocation of inevitable discovery.

As a preliminary matter, we have held that the usual remedy applied when police officers violate the Fourth Amendment 6 is to suppress the evidence obtained from the unlawful search or seizure, pursuant to the Fruit of the Poisonous Tree Doctrine. 7 A warrantless search is presump ⁴³⁶ tively unreasonable, but is subject to a few, limited exceptions. Williams v. State, 372 Md. 386, 402 , 813 A.2d 231, 241 (2002). One such exception is the doctrine of inevitable discovery, first recognized by the United States Supreme Court in Nix v. Williams, 467 U.S. 431 , 104 S.Ct. 2501 , 81 L.Ed.2d 377 (1984). The doctrine is used to overcome the presumed suppression of evidence gained from an unlawful search.

The State must show, by a preponderance of the evidence, that the evidence inevitably would have been discovered through lawful means. See Williams, 372 Md. at 415 , 813 A.2d at 250 . In determining whether the doctrine should apply, courts should “focus on historical facts capable of easy verification, not on speculation.” Williams, 372 Md. at 418 , 813 A.2d at 250 . In Williams, police entered a hotel room without a warrant, arrested Williams, and found cocaine in his pajamas. 372 Md. at 395 , 813 A.2d at 236-37 .

The discovery of the evidence was then communicated to an officer standing by, and was used to furnish the necessary probable cause to obtain a warrant for the search of the premises and seizure of the evidence. 372 Md. at 396 , 813 A.2d at 237 . Before trial, the defendant filed a motion to suppress the cocaine seized. 372 Md. at 398 , 813 A.2d at 238 . The State argued that the search was justified by exigent circumstances because the police feared evidence would be destroyed. 372 Md. at 398 , 813 A.2d at 239 . The Circuit Court granted the motion to suppress, finding that there was insufficient information to support probable cause and that exigent circumstances did not exist.

Id. On appeal, the Court of Special Appeals reversed, holding that the inevitable discovery doctrine applied to the evidence and the trial court erred in suppressing the evidence. The State then argued in this Court that the evidence would have been inevitably discovered because the police were actively pursuing a search warrant and, presumably, the police would have found the evidence if they waited at the premises for the search warrant to be issued. 372 Md. at 418 , 813 A.2d at 250 . We rejected this argument, pointing out that the State must “demonstrate that the evidence inevitably would have been found.” 372 Md. at 423 , 813 A.2d at 253 .

We ⁴³⁷ reversed the intermediate appellate court’s judgment, emphasizing that “speculation will not satisfy the demands of the inevitable discovery doctrine,” and holding that the record was insufficient to establish that the drugs would have been discovered during a lawful search. 372 Md. at 416 , 813 A.2d at 249 . In reaching this conclusion, we discussed examples of the reluctance of other courts to apply inevitable discovery based on speculation.