Gilmore v. State

MEREDITH, J. Bruce Wayne Gilmore, appellant, was charged in the Circuit Court for Prince George’s County with possession of cocaine and marijuana, and possession with intent to distribute cocaine and marijuana. Prior to trial, appellant filed a motion to suppress evidence seized from his person prior to his arrest. After the motion was denied, the case proceeded by way of a bench trial on an agreed statement of facts. Appellant was found guilty of possession of cocaine, and possession with intent to distribute cocaine.

The charges for possession of marijuana and possession with intent to distribute marijuana were initially placed on the STET docket, and later nolle prossed. Appellant was sentenced to eight years’ incarceration, all but four of which were suspended, subject to five years’ supervised probation. The sole question presented for our consideration is whether the circuit court erred in denying appellant’s motion to suppress. Because the detention of appellant which led to the search was based upon the police officer’s mistake of law as to whether the observed conduct was prohibited, we shall reverse. ⁵⁶⁰ Factual Background Appellant contends that the circuit court erred in denying his motion to suppress cocaine and marijuana seized from his person after an unlawful detention that was purportedly based upon a parking infraction.

Our review of a trial court’s denial of a motion to suppress is limited to the record of the suppression hearing, and we do not consider the trial record. Brown v. State, 397 Md. 89, 98 , 916 A.2d 245 (2007); Myers v. State, 395 Md. 261, 274 , 909 A.2d 1048 (2006); State v. Green, 375 Md. 595, 607 , 826 A.2d 486 (2003)(citing Dashiell v. State, 374 Md. 85, 93 , 821 A.2d 372 (2003)). “Although we extend great deference to the hearing judge’s findings of fact, we review, independently, the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law and, accordingly, should be suppressed.” Laney v. State, 379 Md. 522, 533-34 , 842 A.2d 773 (2004) (citations omitted). In addition, we review the evidence in the light most favorable to the prevailing party, in this case, the State. Brown, 397 Md. at 98 , 916 A.2d 245 ; Myers, 395 Md. at 274 , 909 A.2d 1048 ; Green, 375 Md. at 607 , 826 A.2d 486 ; Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2002).

At the suppression hearing, Corporal Derrick Neumer of the Prince George’s County Police Department, testified that, on February 7, 2008, he was working on a special assignment team “saturating high drug trafficking areas.” He observed appellant backing his vehicle into a parking space at a liquor store known as the 51 Club. According to Corporal Neumer, appellant parked his car so that it was centered over one of the lines of a parking space, and, as a consequence, his vehicle occupied two parking spaces. After appellant and a passenger from his vehicle entered the liquor store, Corporal Neumer observed other vehicles attempting to park, but they were unable to park in the spots occupied by appellant’s vehicle because of the manner in which appellant’s vehicle straddled a line. Corporal Neumer waited approximately 10 minutes for appellant to exit the liquor store and return to his vehicle.

He ⁵⁶¹ then confronted appellant and asked him “why he parked his car like that in a parking lot.” Appellant responded that “he didn’t realize he parked his car that way.” Corporal Neumer advised appellant that other people were trying to visit the liquor store, but were unable to use one of the parking spaces, and that appellant “was in violation.” He asked appellant for his driver’s license and registration, which appellant handed over. While Corporal Neumer ran a registration and license check, he observed that appellant, who was five to ten feet in front of him, “appeared to be very nervous,” and “kept moving back and forth ... placing both hands in his pockets.” Out of concern for officer safety, Corporal Neumer instructed appellant not to place his hands in his pockets. Thereafter, appellant “bladed his body,” so as to turn or twist his torso away from Corporal Neumer with his hand in his pocket. It was the officer’s experience that some prior suspects he had encountered had “discarded things out of their pockets while doing that.” After appellant again put his hands back in his pockets, Corporal Neumer approached appellant and advised that he would “have to conduct a pat down for officer safety, and that if everything checked out okay, he could put his hands in his pocket.” As Corporal Neumer approached to conduct the pat down, he asked appellant if he had any weapons in his possession, and appellant stated that he had a knife in his left pocket.

In conducting the pat down, Corporal Neumer located the knife in appellant’s left jacket pocket. Intending to hold the knife until the records check came back, Corporal Neumer reached into the pocket. As he pulled the knife out of appellant’s pocket, Corporal Neumer saw that there was a bag “hooked right with the front of the knife and it had—it was a clear sandwich baggie with a green leafy substance” that a subsequent field test revealed was marijuana. Corporal Neumer advised appellant that he was under arrest and placed handcuffs on him.

Corporal Neumer then conducted a more thorough search of appellant. He found another bag of suspected marijuana in appellant’s right jacket pocket, and 16 bags of crack cocaine in ⁵⁶² his pants pocket. Corporal Neumer also searched appellant’s vehicle, and found two glassine baggies containing suspected controlled dangerous substances. Appellant moved to suppress the evidence recovered from his person.

He argued that there was no traffic offense which justified the officer’s detention of appellant in the parking lot, and it was that unlawful detention that led to the officer’s recovery of the evidence. At the suppression hearing, Corporal Neumer described his justification for approaching appellant as follows: Q. [Prosecutor]: What caused you to come into contract with Mr. Gilmore? A. [Corporal Neumer]: I observed Mr. Gilmore backing his vehicle into the parking space of the 51 Club parking lot area and he—the way he pulled his car back, he completely took up two lanes. He pulled his car, center over the line, and other vehicles that were attempting to get in—after he and the passenger got out of the vehicle, they went into the liquor store, and other vehicles that were attempting to get in could not use either one of the two spaces that he was parked in.

At that point, other people were going around, parking in other areas. So we waited for the defendant to come out of the store, to question him in reference to the violation. Q. ... Is double parking in the liquor store parking lot a traffic offense?

A. Yes, it is. Q. Do you recall what specific offense that is? A. It’s parked in a double space. On cross-examination, Corporal Neumer reiterated that occupying two spaces was the specific traffic violation for which he approached appellant and detained him during a records check: Q. [Defense Counsel]: And are you familiar with the ordinance that indicates that when an officer sees a parking ⁵⁶³ violation and the car is unattended, that they just leave a citation on the window?

A. [Corporal Neumer]: Yes. Q. Are you also aware that this ordinance indicates that if you do come in contact with the parking offender, that you then also give them a citation? A. Yes. Q. But none of that took place, either giving a citation or leaving a citation?

A. We were not able to put one on his window. Q. Or give him a citation. A. Not until he came out, no. Q. Did you give him a citation?

A. No. We gave him a verbal warning though. Q. Now, based on the photographs, it seems like he is not what is traditionally called double parking, but actually just parking within more than one parking space. Would you agree with that? A. He’s taking up two parking spaces, yes. ...

I know this is illegal, right here, in terms of taking up two parking spaces. We were trained that at the academy. In his closing argument at the suppression hearing, defense counsel argued, in part: There is no ordinance or citation in the parking citations on what is a parking violation that indicates that parking in more than one spot is a violation of any parking ordinance. In fact, Maryland Code 21-1003 delineates every single parking type of violation, from stop and standing parking that is prohibited, and no place within the regulation is parking in more than one spot enumerated.

The prosecutor argued in response: “[T]he vehicle was double parked. At that point the officer had reasonable articulable suspicion that a traffic offense had occurred.” The prosecutor further argued that, even if there was no parking ⁵⁶⁴ violation, the officer was permitted to approach the appellant to verify the status of his driver’s license and registration. The court asked the prosecutor: “What is the section you’re referring to to establish the violation, that there was a parking violation?” The prosecutor replied: “Well, the officer conceded he did not cite him for that. I don’t have that particular statute or provision—.” At the conclusion of the suppression hearing, the court denied appellant’s motion, stating, in part: Based on the testimony of Officer Neumer, it appears to the Court that the defendant was operating his vehicle on the date and time as stated and that the officers had observed him back into a parking space, and he parked between the markings in the parking lot.

Apparently, it was a parking lot for single lane parking, if you call it that, but it’s not parallel parking in any event, and that the defendant then went into the liquor store, and there were other people that apparently could not park because of the way the defendant parked his car, which was basically—he took up two spaces, from the photo, and parked between the markings. The officer testified he believed it to be a parking violation. He waited for the defendant to come out of the store, and I believe the testimony was about ten minutes, and then confronted him about the manner in which he parked and requested his driver’s license and registration, which was provided to him. At that point the Court .finds that, as a legitimate stop, based on the way the car is parked and the information the officer stated about other individuals wanting to get parking spaces—this apparently is some type of commercial establishment.

The defense stated that the officer could have done a number of things differently with regard to whether he could have put the parking violation on the car or could have handed it to him, and he did not do that. ⁵⁶⁵ Officers have discretion in the way in which they go about their duties and it’s not necessarily—well, to take the position that he could have or should have sometimes, I think, does not—it doesn’t mean that what he did was, in fact, out of the scope of his authority, but he didn’t chose to do it that way. He chose to, instead, confront the defendant and then to run the check. Under this type of situation, the Court finds that the officer would have to articulate his suspicion, which he did so when he testified as to how the defendant was moving or what he did to concern him, that is, the officer and his safety, so much that he felt a pat down was necessary. So that with that in mind, the Court finds that the officer’s actions were reasonable under the circumstances and deny the motion to suppress the search and seizure.

Discussion Appellant contends that straddling the line of two designated parking spaces does not constitute one of the parking offenses enumerated in the Transportation Article. As a result, appellant asserts his detention was an unreasonable use of police authority and that any evidence seized as a consequence of that abuse of authority should have been suppressed. We agree. The Fourth Amendment to the Constitution of the United States, made applicable to the states through the Fourteenth Amendment, protects against unreasonable searches and seizures. 1 Whren v. United States, 517 U.S. 806, 809-10 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996).

The Supreme Court has held that the “[tjemporary detention of individuals ⁵⁶⁶ during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment].” Id. Counsel have referred to the police encounter with appellant as a “traffic stop” even though the vehicle was already stopped before the police officers approached appellant. Because a purported violation of the Transportation Article was the officers’ justification for detaining appellant, the traffic stop cases are relevant. The Fourth Amendment is not “a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985)(emphasis in original). “An automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances.

As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren, 517 U.S. at 810 , 116 S.Ct. 1769 ; see also Ferris v. State, 355 Md. 356, 369 , 735 A.2d 491 (1999)(“ordinarily ... a [traffic] stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation.”). Cf. Virginia v. Moore, 553 U.S. 164, 178 , 128 S.Ct. 1598 , 170 L.Ed.2d 559 (2008)(“When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.”); United States v. Stewart, 551 F.3d 187, 193 (2d Cir.2009) (“[W]e now hold unambiguously that the reasonable suspicion of a traffic violation provides a sufficient basis under the Fourth Amendment for law enforcement officers to make a traffic stop.”). As we have held on other occasions, “[u]nder Whren , the law enforcement officer who observes a traffic violation may stop the violator, even though the officer does so out of curiosity as to whether (or in the hope that) the stop will lead to the discovery of other incriminating evidence.” Pryor v. ⁵⁶⁷ State, 122 Md.App. 671, 679 , 716 A.2d 338 (1998); see also Whitehead v. State, 116 Md.App. 497, 500 , 698 A.2d 1115 (1997)(“In Whren, ... the Supreme Court held that, as long as the police could have stopped the driver for a traffic violation, it is inconsequential that the police actually stopped the driver to investigate another offense.” (Emphasis in original.)).

In Herring v. State, 198 Md.App. 60 , 16 A.3d 246 (2011), we considered whether Whren applies in the context of a parking violation. In Herring , a police officer observed a Chevrolet Monte Carlo parked “approximately two feet away from the curb with its hazard lights on.” Id. at 66 , 16 A.3d 246 . Purportedly, out of concern that the Monte Carlo was disabled, the officer, and two other officers who had been in an unmarked police vehicle with him, approached the passenger’s side of the vehicle. Id.

All of the Monte Carlo’s windows except for the windshield were tinted so that the officers could not see inside, but, by looking through the windshield, the officers observed four occupants. Id. One of the officers asked the occupants to put the windows down, and, when the driver’s side and passenger’s side windows were lowered, at least two of the officers saw a handgun in the center console. Id.

After backup officers arrived, the occupants were removed from the Monte Carlo and the vehicle was searched. Id. at 66-67 , 16 A.3d 246 . Officers recovered the handgun, which was loaded, and $200 in U.S. currency. Id. at 67 , 16 A.3d 246 .

On appeal from the denial of his motion to suppress, Herring argued (a) that he was seized when one of the officers tapped on the window of the Monte Carlo and told the occupants to roll down the windows, and (b) that the seizure was not supported by reasonable and articulable information because the officers lacked objective, specific, and articulable facts to show that, at that point, “any of the car’s occupants appeared to be sick, in distress, or in need of emergency assistance or that the car appeared to be functioning improperly.” Id. at 71 , 16 A.3d 246 . In addition, Herring argued that “the alleged parking violation was simply a pretext for investigating the occupants and contents of the car.” Id. ⁵⁶⁸ Although we held that the record supported the trial court’s conclusion that “the caretaking function applied and that reasonable articulable suspicion was present,” in our independent application of the law to the facts of the case, we concluded that the conduct of the officers could “just as easily be justified as a Whren stop.” Id. at 74, 16 A.3d 246 . In reaching that conclusion, we recognized that, although no Maryland case had theretofore “applied Whren in the context of a parking violation];,]” “other jurisdictions have done so.” Id. We also pointed to the fact that the Supreme Court declined to hold that only certain types of traffic violations could justify a stop while others might not.

Id. at 75, 16 A.3d 246 . In Whren , the Supreme Court stated: Petitioners urge as an extraordinary factor in this case that the “multitude of applicable traffic and equipment regulations” is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as petitioners would have us do, which particular provisions are sufficiently important to merit enforcement.

For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure. 517 U.S. at 818-19 , 116 S.Ct. 1769 . This case presents a different wrinkle from Herring because here the State cannot point to a provision of law that clearly prohibits the manner in which appellant operated and parked his vehicle. Corporal Neumer used the phrase “double parking” to describe the parking violation he witnessed, but was unable to identify the provision in the code that ⁵⁶⁹ prohibits occupying two spaces. Nor was the prosecutor who represented the State at the suppression hearing able to cite a provision that prohibits occupying two spaces.

The Transportation Article provides now, as it did in 2008, that “[a] person may not drive a motor vehicle in