Flores v. State

THIEME, Judge. Appellant, Victor Flores, was convicted by a jury sitting in the Circuit Court for Prince George’s County (Sothoron, J., presiding) of possession with intent to distribute cocaine, distribution of cocaine, and possession of cocaine. He was sentenced to ten years imprisonment, five years of which was suspended, for the distribution conviction. The remaining convictions were merged for purposes of sentencing.

He noted a timely appeal and presents three questions, which we have slightly rephrased: I. Did the suppression court err in denying appellant’s motion to suppress a photograph that was taken of him during an allegedly illegal stop?

II

Did the trial court abuse its discretion in refusing to instruct the jury that mere presence at the scene of a crime is insufficient to prove guilt?

III

Did the trial court err in denying appellant’s motion to dismiss for lack of a speedy trial? FACTS On the evening of 19 September 1996, Prince George’s County Police Detectives Jennifer Hooper and Christopher Bishop, of the Narcotics Enforcement Division, were traveling in the vicinity of the 1300 block of University Boulevard. At trial, Detective Hooper testified that they were “working an undercover operation in the area targeting street-level drug dealers.” The detective explained that on the evening in question, she and Detective Bishop were working in an undercover capacity, driving an unmarked vehicle, and dressed in street clothes. Detective Bishop was driving the vehicle and Detective Hooper was in the front passenger seat.

Detective Hooper testified that as they traveled an access road in the 1300 block of University Boulevard, she made eye contact with appellant, whom she identified in court. Detec ¹⁷⁶ tive Hooper was also shown a photograph of appellant and testified that it accurately depicted appellant’s appearance on the evening in question. According to the detective, appellant “raised his left hand and flagged [her] over.... ” Detective Bishop pulled the car to the side of the road. Detective Hooper got out and walked to the front of the vehicle.

Appellant approached the detective and she asked him “if he had 20.” Detective Hooper explained that by doing so she was using street terminology to request a quantity of crack cocaine. Detective Hooper then gave appellant $20 and received suspected crack cocaine in return. Subsequent laboratory analysis of the item purchased by Detective Hooper determined that it was .10 gram of crack cocaine. Upon completing the exchange, Detective Hooper returned to the vehicle and handed the crack cocaine to Detective Bishop.

Detective Hooper testified that she also watched appellant while Detective Bishop radioed the “stop team” and that she and Bishop drove slowly from the area, keeping appellant in sight at all times until the stop team had detained him. Appellant was not arrested. Detective Hooper explained that under the terms of the police operation they had no intention of arresting appellant that evening. Detective Bishop also testified that he and Detective Hooper had encountered appellant on the evening in question.

According to Detective Bishop, appellant was walking on the sidewalk when he signaled to them to pull to the side of the road. The detective made an in-court identification of appellant as the man who signaled to them and also testified that a photograph of appellant accurately depicted his appearance on the evening in question. This photograph was admitted into evidence. Detective Bishop further testified that after they pulled to the side of the road Detective Hooper exited the car and Bishop observed the transaction between appellant and Hooper.

When Detective Hooper returned to the vehicle, she gave Bishop the crack cocaine she had purchased from appellant. Bishop radioed appellant’s location and description to ¹⁷⁷ the stop team, and Detective Bishop drove slowly from the area. We will include additional facts as necessary in our discussion of the questions presented. DISCUSSION I. Suppression of the Photograph This case would have remained a profoundly insignificant one to all except its immediate parties but for the initial question presented, which we now address.

Prior to the start of trial, appellant moved to suppress the photograph of him that was taken by the stop team. Defense counsel set forth a statement of facts in which the State agreed: I will recite the facts as I believe they are applicable. I’m basically taking them from the application of the statement of charges. It is my understanding on September 19th, 1996, it is alleged that my client was involved in an undercover sale of narcotics.

After that alleged sale took place Officer Warren, whom we have spoken of here today, stopped the defendant and obtained a photograph of him. He was released. It is my — what the officers and what the State has relayed to me concerning the stop of Mr. Flores is that he was stopped after the sale for identification purposes and he was photographed. There was I believe a pat down of the defendant.

Then he was subsequently released. Counsel then referred to Evans v. State, 113 Md.App. 347 , 688 A.2d 28 , cert. granted, 345 Md. 459 , 693 A.2d 356 (1997), stating that Evans and appellant’s case presented “very similar situation[s]” with a “buy/bust operation where a sale would be made [and][a]n officer would take a photograph and then the accused were [sic] arrested at a later time.” Counsel alleged that under Evans , it was permissible for the police to ¹⁷⁸ take appellant’s photograph only if they arrested him. Counsel claimed that since appellant was not arrested, “any seizure that occurred against [appellant’s] person is invalid, and therefore that photograph that was seized from my client ... should be suppressed.” Finding that Evans was inapposite to appellant’s case, the suppression court denied the motion. Appellant contends: First, that the trial court erred in denying his motion to suppress as the photograph of him was obtained during an illegal stop.

He alleges that even if the officers who stopped him had probable cause to arrest, since there was no arrest, the evidence obtained as a result of the stop, including the photograph of him, should have been suppressed in keeping with this Court’s decision in Evans . Secondly, because none of the officers who conducted the stop testified at trial, the photograph should not have been admitted at trial as it constituted hearsay. The State claims that Evans does not apply to appellant’s case since the police did not search his person. The State also contends that the seizure of appellant was conducted legally pursuant to Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968), and that taking appellant’s photograph was not violative of the Fourth Amendment.

In the alternative, the State alleges that even if the photograph should not have been admitted into evidence, as Detectives Hooper and Bishop identified appellant in court, any error committed was harmless beyond a reasonable doubt. In reviewing the denial of a motion to suppress, we consider only the record of the suppression hearing and not that of the trial itself. Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987) (citing Jackson v. State, 52 Md.App. 327 , 332 n. 5, 449 A.2d 438 , cert. denied, 294 Md. 652 (1982)); Aiken v. State, 101 Md.App. 557, 563 , 647 A.2d 1229 (1994), cert. denied, 337 Md. 89 , 651 A.2d 854 (1995). We extend great deference to the factfinding of the suppression court and accept the facts as found, unless clearly erroneous.

Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. ¹⁷⁹ 341, 346-47, 574 A.2d 356 (1990). In addition, we review the evidence in the light most favorable to the prevailing party, the State. Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Cherry v. State, 86 Md.App. 234, 237 , 586 A.2d 70 (1991). Nevertheless, this Court must make its own independent constitutional appraisal by reviewing the law and applying it to the facts of this case.

Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Perkins, 83 Md.App. at 346 , 574 A.2d 356 . We reject the Appellant’s donnée. It is undisputed that when he was detained by the stop team, his identity determined, a photograph taken of him, and then released, under Evans , he had not been arrested. Appellant is incorrect, however, in concluding that the absence of an arrest requires the suppression of his photograph.

Evans affects appellant’s case only in that it leads us to the conclusion that an arrest cannot serve as a basis to justify the stop made by the police in his case, but Evans does not control appellant’s case. The suppression court correctly recognized that Evans was inappo-site to the question before it. In Evans , the defendant was caught in a police operation similar to that in the present case. The operation was designed to identify “street level drug dealers by making ‘controlled buys’ from them.” 113 Md.App. at 351 , 688 A.2d 28 .

One evening during the course of the operation, an undercover police officer purchased $10 worth of cocaine from Evans. The officer had used marked money to make the purchase. When the officer left the scene, he transmitted to a “technical team,” by the body wire he was wearing, a description of Evans and his location. 113 Md.App. at 352 , 688 A.2d 28 . The technical team proceeded into the area and stopped Evans.

The undercover officer drove past the scene and positively identified Evans as the man who had sold him the cocaine. The technical team proceeded to photograph Evans, “tell him that they were conducting an investigation, search him, give him a receipt for the currency which had been seized, and verify his identification.” Id. at 353 , 688 A.2d 28 (footnote ¹⁸⁰ omitted). In the initial search of Evans, the police recovered $163 in currency, but no narcotics. The technical team radioed the undercover officer, who informed them that Evans had produced the cocaine from his “rear area.” Id.

An officer “performed a rectal search of [Evans] and recovered, one by one, nine glass vials of cocaine.” Id. (Footnote omitted.) Evans was then released. The police officers involved in the operation testified at the suppression hearing that they had no intention of arresting Evans that evening and that they had not arrested him. Evans was arrested one month later when the police returned to the area and made a mass arrest of approximately sixty people.

The suppression court denied Evans’s motion to suppress the evidence seized, finding, in relevant part, that Evans had been arrested and that the search had been incident to his arrest. Id. at 354 , 688 A.2d 28 . This Court reversed, holding that a search incident to an arrest cannot be conducted without a valid arrest, which was lacking in Evans’s case. We referred to many cases, including Bouldin v. State, 276 Md. 511 , 350 A.2d 130 (1976), to define arrest: . “It is axiomatic that when the State seeks to justify a warrantless search incident to arrest, it must show that the arrest was lawfully made prior to the search.

Of course, the right to arrest is not equivalent to making an arrest; the record must satisfactorily demonstrate that an arrest was in fact consummated before a warrantless search incident thereto may be found to be lawful. 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; or (3) by the consent of the person to be arrested.” 113 Md.App. at 359 , 688 A.2d 28 (quoting Bouldin, 276 Md. at 515-16 , 350 A.2d 130 (citations omitted; emphasis supplied)). ¹⁸¹ We also referred to McChan v. State, 238 Md. 149 , 207 A.2d 632 (1965), which provides: An arrest has been defined as “the detention of a known or suspected offender for the purpose of prosecuting him for a crime.” ... [T]here is a detention only when there is a touching by the arrestor or when the arrestee is told that he is under arrest and submits. Where there is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there must always be an intent on the part of one to arrest the other and an intent on the part of such other to submit. When one is approached by a police officer and merely questioned as to his identity and actions, this is only an accosting and not an arrest.

See also Kauffman, The Law of Arrest in Maryland, 5 Md. L.Rev. 125,131. 113 Md.App. at 360 , 688 A.2d 28 (quoting McChan, 238 Md. at 157 , 207 A.2d 632 (citations omitted; emphasis supplied)). It is apparent that under Evans appellant was not arrested when he was detained by the police officers after selling cocaine to Detective Hooper. This, however, does not end our inquiry in appellant’s case, for in Evans there was no challenge to the fact that the police had stopped the defendant. Rather, the challenge was brought against the police for conducting a full body search when Evans had not been arrested.

Furthermore, in Evans , this Court did not address the admissibility of the photograph taken of the defendant. In contrast to Evans , appellant was detained briefly, patted down, his identity determined, his photograph taken, and then he was allowed to proceed. He was not subjected to a search. Accordingly, the fact that appellant was not arrested does not require the conclusion that the brief stop conducted by the police in his case was illegal.

The State claims that the stop conducted by the police falls within Terry . We agree that the intrusion by the police was no greater than that allowed under Terry . Yet, appellant’s case does not fall squarely within Terry , as the stop was ¹⁸² supported by probable cause, rather than reasonable articula-ble suspicion, and it was not purely investigatory in nature. In addition, a Terry stop is normally conducted to confirm or dispel an officer’s suspicions, with an arrest following if the officer’s suspicions, supported by the further investigation, rise to the level of probable cause.

If these factors were absent, our inquiry would end and we would consider this a proper stop and frisk under the dictates of Terry . Nonetheless, we believe that Terry and the law that has developed concerning permissible stops of individuals by the police teach us that the brief seizure of appellant’s person was not unreasonable. The Fourth Amendment to the Constitution of the United States, made applicable to the States through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684, 1691-92 , 6 L.Ed.2d 1081 (1961), guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” We have no doubt that appellant was seized for purposes of the Fourth Amendment when he was detained and photographed by the police. See Terry, 392 U.S. at 16 , 88 S.Ct. at 1877 (1968) (“Whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.”).

We must remember, however, “[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, 1803 , 114 L.Ed.2d 297 (1991). In Terry , the Supreme Court held that police officers may stop persons to investigate possible criminal activity. 392 U.S. at 21-22 , 88 S.Ct. at 1879-80 . A valid investigatory stop, commonly called a “Terry stop” or “stop and frisk,” requires only that “the police have specific articulable facts which, taken together with rational inferences from those facts, create reasonable suspicion that the person has been or is about to be involved in criminal conduct.” Aguilar v. State, 88 Md.App. 276, 281 , 594 A.2d 1167 (1991). Reasonable ¹⁸³ suspicion is “ ‘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, 1661 , 134 L.Ed.2d 911 (1996)(quoting United States v. Cortez, 449 U.S. 411, 417-18 , 101 S.Ct. 690, 695 , 66 L.Ed.2d 621 (1981)).

See also Derricott v. State, 327 Md. 582, 587 , 611 A.2d 592 (1992) (police officer may stop a suspect “if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot”). In the present case, the actions of the police were based upon probable cause, a higher standard than that of reasonable articulable suspicion. See Alabama v. White, 496 U.S. 325, 330 , 110 S.Ct. 2412, 2416 , 110 L.Ed.2d 301 (1990) (“reasonable suspicion can arise from information that is less reliable than that required to show probable cause”); United States v. Sokolow, 490 U.S. 1, 7 , 109 S.Ct. 1581, 1585 , 104 L.Ed.2d 1 (1989) (“the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause”); Baziz v. State, 93 Md.App. 285, 293 , 612 A.2d 296 (1992), cert. denied, 329 Md. 110 , 617 A.2d 1056 (1993) (“The quantity and quality of evidence required to create reasonable suspicion under the stop and frisk exception to the Fourth Amendment warrant requirement is significantly less than that required to show probable cause____”). It is absurd that a Terry-type stop, based upon the higher standard of probable cause regarding commission of a crime, would not also be permitted.

In Price v. State, 227 Md. 28 , 175 A.2d 11 (1961), the police received a call about a prowler. They responded to the scene and found Price in the vestibule of an apartment building. Price had entered the building’s outer door and was facing its inner door, on which pry marks were visible. The police asked Price if he lived in the building, he mumbled an unintelligible reply,and hurried away.

The police pursued Price and a struggle ensued with the officers eventually taking him into custody. The Court discussed but did not decide a question briefly raised by Price: ¹⁸⁴ One question which is suggested or touched upon rather lightly in the appellant’s brief, but is not discussed by the State’s brief, is whether or not there is a right to detain for questioning a person found in such suspicious circumstances as those in which the appellant was found. Inferentially, the learned trial judge seems to have been of the opinion that the officers could detain the appellant for an explanation on the spot. Certainly, this would be less drastic than an actual arrest and, presumably, less objectionable from the appellant’s point of view.

There seems, however, to be no decision of this Court with regard to a right of police officers to detain a suspect for questioning without an actual arrest (but see Kauffman’s comment in The Law of Arrest in Maryland, 5 Md. L.Rev. 125,159 (rule 5)); and we find it unnecessary here to undertake to decide such a question, for if the facts would justify an arrest, a fortiori, they would justify a detention for questioning. 227 Md. at 34 , 175 A.2d 11 (emphasis added). Although decided before Terry, Price demonstrates an argument based on pure logic — if the police possess probable cause to arrest an individual, that probable cause would also support a brief on-the-spot detention to question the individual. This is the factual scenario present in appellant’s case; however, in Price , as in a typical Terry stop where the officers’ suspicions are confirmed, the suspect was arrested. We must, therefore, consider the nature and scope of the conduct of the police during the brief seizure of appellant’s person.

There are limits placed upon the scope of the police intrusion during a Terry stop with the conduct of the police being “tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” Terry, 392 U.S. at 20 , 88 S.Ct. at 1879 (footnote omitted). “The reasonableness of an intrusion is to be assessed against an objective standard — whether ‘the facts available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief’ that the action taken was appropriate.’ ” Anderson v. State, 282 Md. 701, 705 , 387 A.2d 281 (1978) (quoting Terry, 392 U.S. at 21-22 , 88 S.Ct. at ¹⁸⁵ 1880). The detention “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 , 103 S.Ct. 1319, 1325 , 75 L.Ed.2d 229 (1983). In addition, “if