Glanden v. State

Christopher Glanden v. State of Maryland, Nos. 1114, 1871, 1872, & 1873, September Term, 2019. SEARCHES AND SEIZURES – IN GENERAL – PLAIN VIEW FROM LAWFUL VANTAGE POINT Suppression court did not err in denying appellant’s motion to suppress drugs found on his person, where the drugs were in plain view of a police officer. At the time the drugs were found, the officer was in a lawful vantage point, the incriminating character of the drugs was immediately apparent, and the officer had a lawful right of access to the drugs. CONTROLLED SUBSTANCES – OFFENSES – DEFENSES – MEDICAL NECESSITY OR ASSISTANCE Section 1-210(d) of the Criminal Procedure Article (“CP”) of the Maryland Code did not immunize appellant from sanctions for violations of his probation resulting from his conviction for possession with intent to distribute fentanyl.

Although the statute prohibits an individual from being sanctioned for a violation of probation if the evidence of the violation was obtained solely as a result of the person seeking medical assistance for a drug overdose, such evidence did not serve as the “sole” basis for the violations of probation in appellant’s case. In finding that appellant had violated his probation, the court did not consider the facts underlying the conviction; instead, the court relied on a certified copy of the conviction. Moreover, possession with intent to distribute fentanyl is not one of the enumerated crimes for which an individual is provided immunity from prosecution under CP 1-210(b) and (c). Because the protections provided by CP § 1-210(d) were intended as an extension of the protections provided by CP § 1-210(c), allowing appellant to receive the benefits of CP 1-210(d) for a crime that the legislature expressly excluded from CP 1- 210(b) would be contrary to the legislature’s intent.

Circuit Court for Caroline County Case No. C-05-CR-17-000069 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND Nos. 1114, 1871, 1872, & 1873 September Term, 2019 CHRISTOPHER ERIC GLANDEN v. STATE OF MARYLAND Shaw Geter, Gould, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ. Opinion by Shaw Geter, J. Filed: February 5, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-02-05 12:28-05:00 Suzanne C. Johnson, Clerk This appeal arises from a finding by the Circuit Court for Caroline County that appellant, Christopher Glanden, was in violation of probation as a result of his conviction for possession with intent to distribute fentanyl, while under the supervision of the court. The underlying circumstances of Glanden’s fentanyl conviction involved a 911 call placed by his mother, seeking medical assistance for him because of an apparent drug overdose. Glanden argues that Section 1-210 of the Criminal Procedure Article (“CP”) of the Maryland Code immunizes him from prosecution.

In 2017, Glanden was charged by criminal information with possession with intent to distribute fentanyl. Prior to trial, he filed a motion to suppress, which the court denied without a hearing. A jury later convicted him, and he was sentenced to a term of 35 years’ imprisonment, with all but 25 years suspended. Glanden timely appealed his conviction and while his appeal was pending, Glanden was found to be in violation of probation in three unrelated cases, because of the conviction.

He filed an application for leave to appeal in each of those cases. This Court granted the applications and consolidated the appeals with Glanden’s direct appeal of his conviction. In his direct appeal, this Court held that the circuit court erred in not holding a hearing before denying his motion to suppress. Glanden v. State, No. 1956, September Term 2017, 2019 WL 1306341 (Md. Ct. Spec.

App. March 21, 2019). We remanded for a new suppression hearing and on remand, the circuit court held a suppression hearing. Following the hearing, the circuit court denied Glanden’s motion and reaffirmed its findings as to the violations of probation. Glanden noted an appeal in each case, and this Court consolidated all four appeals into the instant appeal.

Appellant presents two questions for our review: 1. Did the circuit court err in denying the motion to suppress? 2. Does Section 1-210 of the Criminal Procedure Article of the Maryland Code immunize Glanden from sanctions for violations of probation resulting from his conviction for possession with intent to distribute fentanyl? For reasons to follow, we hold that the circuit court did not err in denying the motion to suppress.

We also hold that CP § 1-210 does not immunize Glanden from sanctions for violating his probation. We affirm the judgments of the court. BACKGROUND In July of 2016, Glanden was arrested and charged with possession with intent to distribute CDS from an incident where his mother called 911 seeking medical assistance for his suspected drug overdose. A total of 152 wax bags, weighing approximately 44 grams, were found in Glanden’s possession that evening.

The results of testing came back positive for fentanyl. As noted, prior to trial, Glanden filed a motion to suppress the drugs found in his possession and the circuit court denied the motion without holding an evidentiary hearing. Glanden was ultimately convicted of possession with intent to distribute fentanyl. He timely filed an appeal.

Violations of Probation While the appeal was pending, Glanden was charged with violating his probation in three other criminal cases. At the hearing that followed, the State alleged that, in each of the three criminal cases, Glanden had violated certain conditions of his probation, namely, that he obey all laws, that he abstain from possessing, using, or selling a controlled 2 dangerous substance, and that he totally abstain from alcohol, illegal substances, and abuse of prescription drugs. As evidence of those violations, the State presented a certified copy of Glanden’s conviction of possession with intent to distribute fentanyl. Before the circuit court accepted the certified conviction into evidence, Glanden moved to exclude the conviction from the court’s consideration.

He argued that the conviction could not serve as the basis for a finding that he violated his probation because such a finding was prohibited by Maryland’s “Good Samaritan” statute. According to Glanden, the statute precludes an individual from being sanctioned for a violation of probation if the evidence of the violation was obtained as a result of the individual having sought or received medical assistance after an apparent drug overdose. The circuit court denied the motion and accepted the certified copy of his conviction into evidence. The court later found that, in each of the three cases, Glanden had violated his probation as a result of his conviction for possession with intent to distribute fentanyl.

Glanden noted an appeal of all three judgments. Those appeals were later consolidated into his then-pending direct appeal of his conviction for possession with intent to distribute fentanyl. First Appeal In an unreported opinion, this Court held that the circuit court erred in not conducting a hearing on Glanden’s motion to suppress. Glanden v. State, 2019 WL 1306341 .

We remanded the case with instructions that the court hold a suppression hearing. Id. at 1–2. We explained: “If the circuit court grants the motion to suppress, then the prior judgment must be vacated and a new trial ordered. On the other hand, if the circuit 3 court denies the motion to suppress, the prior judgment is affirmed.” Id. at 2.

We added: “At least for now, this means there is no evidentiary support for the finding that Glanden violated his probation. Therefore, as to the violations of probation too, we remand without affirmance or reversal.”1 Id. at 5–6. Suppression Hearing On remand, the circuit court held a suppression hearing. Sergeant Brian McNeill of the Federalsburg Police Department testified that, on July 29, 2016, he responded to the home of Eva Eason, Glanden’s mother, after receiving a call for a possible cardiac arrest.

Upon arriving at the home, Sergeant McNeill spoke to Ms. Eason, who reported that her son had suffered a possible overdose. Sergeant McNeill then entered a bedroom, where he encountered Glanden, who was “standing upright at the time” and was “conscious and alert.” Sergeant McNeill testified that, upon entering the bedroom, he observed “two tennis shoes” on the floor and that Glanden was standing barefoot next to the tennis shoes. Sergeant McNeill then observed that inside one of the tennis shoes there appeared to be a “bundle” of suspected heroin packets that had been “manicured and banded together with a rubber band.” Surrounding the bundle were “multiple loose wax-fold packets” of suspected heroin. Sergeant McNeill testified that he did not manipulate the shoes in order to see the suspected drugs.

Although we discussed Glanden’s claims in greater detail via a footnote, we did 1 not resolve any of the issues he raised regarding the violation of probation orders. 4 After having a brief conversation with Glanden, Sergeant McNeill watched him “put the tennis shoes on in an effort to conceal the . . . heroin packets.” He then walked with Glanden to the living room, at which point the officer “asked for a pair of boots to be gathered” for Glanden to wear. Once the boots were obtained, Glanden took off the tennis shoes and placed the boots on his feet. Sergeant McNeill then secured the tennis shoes containing the suspected heroin and relayed that information over his police radio. Federalsburg Police Officer Michael Stivers testified that he also responded to the Eason home on July 29, 2016.

Officer Stivers testified that he was responsible for escorting Glanden outside to an awaiting ambulance shortly after Glanden’s initial interaction with Sergeant McNeill. After he and Glandon reached the ambulance, Officer Stivers asked him to “face the back door of the ambulance” so that he could “check him for any kind of weapons before he got in the ambulance.” As he was standing directly behind Glanden, he observed “a very big bulge inside the pocket” of Glanden’s shorts. Officer Stivers testified that the pocket was “bulged open” and that he could “see some white baggies, which turned out to be waxfolds.” Officer Stivers stated he then reached into Glanden’s pocket and “retrieved the suspected CDS.” Prior to the search, he had been informed “that there was CDS in plain view” and that “CDS had already been found on or near Mr. Glanden.” On cross-examination, defense counsel asked Officer Stivers about a report he had authored following the incident, which defense counsel claimed was inconsistent with his trial testimony. Defense counsel also questioned Officer Stivers about the circumstances surrounding his observations, including whether Glanden was under arrest at the time and whether Officer Stivers conducted a “pat-down” or “felt the bulge” in Glanden’s pocket. 5 Officer Stivers testified that Glanden was not under arrest but rather was in “investigative detention” because the officers “had no clue what was going on yet.” Officer Stivers also testified that he did not conduct a pat-down or “feel the bulge;” instead, he “just reached into the pocket and grabbed the bulge.” Officer Stivers added that he seized the bulge because Glanden’s pocket was “open” and “white wax folds” of “suspected heroin” could be seen inside the pocket.

At the conclusion of the suppression hearing, the circuit court found that both officers had sufficient probable cause to conduct a warrantless search of Glanden’s person and property. The court stated that, when Sergeant McNeill went into Glanden’s bedroom, “he found [Glanden] standing and tennis shoes with waxed envelopes typically used in heroin distribution.” The court stated further that, when Officer Stivers was standing behind Glanden near the rear of the ambulance, “he could look in the pocket, see a bulge and see wax papered folds commonly known to be used by people who sell, distribute, or keep heroin or fentanyl or that type of drug.” Based on those findings, the court denied Glanden’s motion to suppress. Violations of Probation At the conclusion of the suppression hearing, Glanden renewed his argument that the circuit court erred in finding that he had violated his probation based on his conviction of possession with intent to distribute fentanyl. The court ultimately ruled that, because the motion to suppress had been denied, “the three violations of probation on a conviction for possession of fentanyl with the intent to distribute stand.” This appeal followed. 6 DISCUSSION I. Glanden first contends that the circuit court erred in denying his motion to suppress the drugs seized from his person by Officer Stivers.2 Glanden argues that Officer Stivers did not have probable cause to arrest and search him based on the suspected CDS found by Sergeant McNeill in the tennis shoe.

Glanden also argues that Officer Stivers did not have reasonable articulable suspicion to frisk him for weapons. Finally, he argues “the evidence did not support a finding that the drugs seized from [his] right front shorts’ pocket were in plain view.” Conversely, the State contends the seizure was justified by the “plain view” doctrine. “In reviewing the denial of a motion to suppress evidence under the Fourth Amendment, we look only to the record of the suppression hearing and do not consider any evidence adduced at trial.” Daniels v. State, 172 Md. App. 75, 87 (2006). In so doing, “we view the evidence presented at the [suppression] hearing, along with any reasonable inferences drawable therefrom, in a light most favorable to the prevailing party.” Davis v. State, 426 Md. 211, 219 (2012). “We accept the trial court’s factual findings unless they are clearly erroneous, but we review de novo the court’s application of the law to its findings of fact.” Pacheco v. State, 465 Md. 311, 319 (2019) (citations and quotations omitted). “When a party raises a constitutional challenge to a search or seizure, this Court renders an independent constitutional evaluation by reviewing the relevant law and 2 Glanden does not challenge Sergeant McNeill’s seizure of the drugs found in his tennis shoe. 7 applying it to the unique facts and circumstances of the case.” Id. at 319–20 (citations and quotations omitted). “The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, prohibits unreasonable searches and seizures.” Redmond v. State, 213 Md. App. 163 , 177–78 (2013) (quotations and footnote omitted). “Although warrantless searches and seizures are presumptively unreasonable, they may be deemed reasonable if the circumstances fall within a few specifically established and well- delineated exceptions.” Pacheco, 465 Md. at 320–21 (citations and quotations omitted). One such exception is the plain view doctrine, which “permits a police officer to seize an item in plain view when the officer has probable cause to believe that the item is contraband or evidence of a crime.” Peters v. State, 224 Md. App. 306, 352 (2015).

For the plain view doctrine to be applicable: “(1) the police officer’s initial intrusion must be lawful[;] (2) the incriminating character of the evidence must be immediately apparent; and (3) the officer must have a lawful right of access to the object itself.” Sinclair v. State, 444 Md. 16, 42 (2015) (citations and quotations omitted). “For the incriminating character of an item to be immediately apparent, the officer, upon seeing the item, must have probable cause to believe that the item in question is evidence of a crime or is contraband.” McCracken v. State, 429 Md. 507, 516 (2012) (citations and quotations omitted). “Probable cause . . . requires that the facts available to the officer would warrant a man of reasonable caution in the belief that certain items may be contraband or stolen property or useful as evidence of a crime[.]” Wengert v. State, 364 Md. 76, 90 (2001) (citations and quotations omitted). “Probable cause is to be determined 8 based upon evaluation of facts, viewed from the standpoint of an objectively reasonable police officer, and not