Goodwin v. State

Panel: Meredith, Graeff, Arthur, JJ. Graeff, J. ²⁶⁷ Patrick Alan Goodwin, appellant, was convicted in the Circuit Court for Frederick County, pursuant to an agreed statement of facts, of one count of possession of a controlled dangerous substance. The court imposed a sentence of four years, all suspended, with three years of supervised probation. On appeal, appellant presents two questions for this Court's review, 1 which we have consolidated as follows: Did the circuit court err in denying appellant's motion to suppress because the stop and frisk of his vehicle and his person were unconstitutional?

For the reasons set forth below, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND 2 At approximately 10:00 p.m. on June 24, 2016, Officers Paul Malatesta and Kyle Jones, members of the Frederick City ²⁶⁸ Police Department, were on assignment as part of the "street crimes unit," which focuses on "high crime areas, drug activity and gang activity." They were conducting surveillance of the Windsor Gardens Apartments, an area well-known by law enforcement for the sale and use of drugs, as well as gang-related activity. The officers observed appellant parked in a vehicle outside the apartments. Another individual, later identified as Craig Walker, walked back and forth from the vehicle to one of the buildings in the complex multiple times.

The officers did not observe any direct "hand-to-hand" exchange of drugs, but Officer Malatesta testified that Mr. Walker's actions gave them the impression that he was the "middleman" ⁹¹⁴ in brokering a drug deal. After Mr. Walker entered appellant's vehicle, and they left the complex, the officers followed the vehicle in their marked patrol car. They recognized Mr. Walker, who was seated in the front passenger seat, as someone on the department's outstanding warrant list. The officers confirmed with dispatch that Mr. Walker had an outstanding "contempt-of-court warrant for failing to appear for fingerprinting related to a criminal case," and they decided to initiate a traffic stop to apprehend Mr. Walker.

Both officers testified that appellant had not violated any traffic laws or committed any infractions warranting a traffic stop. Officer Malatesta testified that they had no justification for stopping the car other than to effectuate the arrest of Mr. Walker. After the police activated the patrol car's emergency lights, appellant proceeded to slow the car, but he did not immediately stop or pull the car over for about "3 to 400 yards." Once the car stopped, it then proceeded "to roll a little bit further," giving the appearance, based on Officer Malatesta's experience, that appellant was "attempting to buy time." The street ²⁶⁹ was lit by streetlight, and there was "not much traffic," so appellant could have pulled the vehicle over safely. As appellant pulled the car over, both officers noticed him bend down near the floorboard toward the inside of the vehicle, completely disappearing from the officers' view for several seconds before coming back into view.

Officer Jones testified that, based on his experience, "[g]enerally, you don't see someone on a routine stop duck out of view as if they're either retrieving something or concealing something." Officers Malatesta and Jones approached the vehicle, and they asked appellant to exit and stand near the rear of the vehicle. Additional officers arrived on the scene to assist and effectuate the arrest of Mr. Walker for the warrant. Based on appellant's furtive movements, the officers suspected that weapons could be in the vehicle. Officer Jones conducted a frisk of the "lunge-and-grab area" of the vehicle where appellant was seated, and the area toward which the officers saw him bend.

He described the events as follows: [Officer Jones]: Based on the movements of the driver, when Officer Malatesta and I made contact, Officer Malatesta asked the driver to step out of the vehicle, primarily for the concern that he was retrieving a weapon, and then while he was doing that, other officers arrived to deal with the passenger, Mr. Walker- [The State]: Yes. [Officer Jones]: -then I conducted a Terry frisk of the actual vehicle in the reach-, lunge-and-grab area of the driver based on those movements. [The State]: Is this happening kind of simultaneously, Officer Malatesta gets him out and you get right in to search the vehicle? [Officer Jones]: Yeah. It's, it's all very, very quick. * * * [The State]: And you stated that you saw the [appellant] initially duck down towards the right of the car, to the ²⁷⁰ floorboard. Can you please outline for the Court the exact area of the car that you frisked? [Officer Jones]: The exact area was the seat, the driver's seat; the driver's door pocket; under the driver's seat; to the side of the driver's seat, on both sides; the cup holder/center area; and then under the floor mat, because that was as far down, as you can check. ⁹¹⁵ On cross-examination, defense counsel asked Officer Jones: "Now, you were looking under the floor mat? ... And that's a flat piece of rubber?" Officer Jones replied: "It's either rubber or carpet, typically-... in a car, yes." Officer Jones also noted that people sometimes have "hides" in the floor, i.e., a hole in the floorboard of the vehicle used to hide firearms.

He further stated that he looked under the floor mat for a gun or any weapon, including one that did not "result in a bulge [ ] visible to the eye." When Officer Jones lifted the vehicle's floor mat, he saw a single syringe, the size of one used to receive a shot. 3 There was residue on the syringe, which the officers believed was heroin. The police then placed appellant under arrest and conducted a search of the vehicle and appellant's person. From the vehicle, they recovered a spoon and straws, and from a wallet on appellant's person, they recovered two strips of Suboxone Film, which is a prescribed medicine used to treat opioid addiction. 4 Appellant filed a motion to suppress, arguing that the stop and frisk were warrantless and presumed to be illegal. Specifically, counsel argued that the frisk of appellant's car was improper.

At the suppression hearing, Officers Malatesta and Jones testified regarding the events that occurred that evening, as ²⁷¹ discussed supra . When Officer Malatesta began to testify about the stop of the vehicle based on the warrant for Mr. Walker, defense counsel objected on the ground that counsel had "never seen a copy of the warrant." The court asked whether appellant's counsel specifically requested the document, to which counsel replied: "It's a general discovery demand. I think it's fairly standard to produce the warrant that's the basis for a stop. I think it's required under what is, Your Honor, I think it was Duggins v. State ." 5 The court overruled the objection.

The State did not produce a copy of the warrant at the suppression hearing, nor did appellant challenge the authenticity of the warrant. At the conclusion of the testimony, defense counsel argued that the warrantless stop, arrest, and search violated the Fourth Amendment. He asserted that there may have been justification for the stop, but that was questionable without the warrant. He argued that, once the situation with Mr. Walker was "resolved," there was no reason for any interaction with appellant.

Moreover, counsel asserted, the search of the vehicle was not a frisk, but rather, it was "literally picking up the floorboards to see if there's potentially hidden compartments that we have no reason to, to think exist." Counsel asked the court to suppress "each and every one of the things recovered-the needle that's originally recovered and then, also, the straw, spoon, [and] the Suboxone that were recovered after a more in-depth search." The State argued that the police saw appellant in a high crime area engaging in suspicious activity that, in light of their experience and training, indicated involvement in a drug transaction. The police officers followed the vehicle and decided to stop it to arrest the passenger, who had an open warrant. Appellant then engaged in evasive, furtive movements. The State argued ⁹¹⁶ that, under these circumstances, the police had reasonable suspicion to conduct a protective frisk of the area where appellant was reaching down. ²⁷² The circuit court ultimately denied appellant's motion to suppress.

It noted that the police saw appellant at Windsor Gardens, a high-crime area, engaging in actions consistent with drug activity. The officers then saw Mr. Walker, who had an open warrant for a failure to be fingerprinted. 6 At that point, the police "knew they had an obligation to execute the warrant," and they stopped the vehicle. The court then discussed appellant's furtive actions after the officers engaged the emergency lights on their vehicle. It stated that the officers had reason to question appellant regarding what transpired at Windsor Gardens.

It noted: "Meantime, Mr. Walker was taken from the vehicle by other officers." Turning to the frisk that ensued, the court noted that "the biggest concern for these officers was when they saw [appellant] do that reaching down to his right." The court continued: What they saw that did cause them difficulty was when he leaned over and out of sight to his right, and certainly, we all know from whatever vehicle, some have consoles, some don't, but there's plenty of room to hide a weapon or at least move it out of sight, under a seat, next to a seat, in the console, on the floorboards, whatever. That gave them sufficient reason to be concerned as to what, what might be there given that there had been-now, again, given that you put that together with the fact that there had been a transaction which was suspicious and that weapons are often used in connection with those transactions. So to be clear, they had to get [appellant]-they got [appellant] out of the vehicle, which the Defense acknowledges was appropriate. Then they had a reason to examine that, briefly examine that vehicle, in terms of weapons, for ²⁷³ what actions they observed of [appellant]; and, when Officer Jones did that, he found the syringe under the floor mat.

Now, what I note was-and up to this point, I certainly, I'm not even, have not had any difficulty with this at all-I noted that he examined a limited area. It was just that area I described, whether it be a console, I think he mentioned cup holders, sides of the seats, the seat itself, and the floorboards, ... his examination wouldn't necessarily be limited to a firearm, a handgun. It could be a knife, and it's dark. Although he has a flashlight-and, frankly, I'm familiar with the area-there are some streetlights.

I don't think it was inappropriate for him to lift the floor mat in terms of a thorough search. When it's all taken together, given the context of the observations made at Windsor Gardens, the actions of [appellant] and the procedure of the stop, I think that it was appropriately done and I'll deny the motion to suppress. DISCUSSION Appellant contends that the circuit court erred in denying his motion to suppress because his encounter with the police violated ⁹¹⁷ his Fourth Amendment rights in several ways. First, he argues that the warrantless stop was unconstitutional because (a) the State "failed to produce the alleged warrant for Mr. Walker," and (b) it "failed to provide a legal basis for [his] continued detention following Mr. Walker's arrest." Second, he alleges that the alleged Terry frisk of the vehicle was unconstitutional because (a) the police did not have reasonable suspicion to believe that he was armed and dangerous, and (b) the search of the floor mat exceeded the scope of a proper the frisk.

Before addressing the specific contentions, we note the framework in which we review these contentions. In Bowling v. State , 227 Md. App. 460 , 466-67, 134 A.3d 388 (quoting Taylor v. State , 224 Md. App. 476 , 486-87, 121 A.3d 167 (2015) ), cert. denied , 448 Md. 724 , 141 A.3d 135 (2016), this ²⁷⁴ Court set forth the proper standard of review of a motion to suppress: We review a denial of a motion to suppress evidence seized pursuant to a warrantless search based on the record of the suppression hearing, not the subsequent trial. State v. Nieves , 383 Md. 573 , 581, 861 A.2d 62 (2004). We consider the evidence in the light most favorable to the prevailing party, here, the State.

Gorman v. State , 168 Md. App. 412 , 421, 897 A.2d 242 (2006) (Quotation omitted). We also "accept the suppression court's first-level factual findings unless clearly erroneous, and give due regard to the court's opportunity to assess the credibility of witnesses." Id. "We exercise plenary review of the suppression court's conclusions of law," and "make our own constitutional appraisal as to whether an action taken was proper, by reviewing the law and applying it to the facts of the case." Id. We noted in Bowling that, when reviewing a claim that a police encounter violates the Fourth Amendment, we must keep in mind that " 'the underlying command of the Fourth Amendment is always that searches and seizures be reasonable,' " and " 'what is reasonable depends on the context within which a search takes place.' " Id. at 467 , 134 A.3d 388 (quoting State v. Alexander , 124 Md. App. 258 , 265, 721 A.2d 275 (1998) ) (emphasis omitted).

With those principles in mind, we address appellant's contentions. I. The Initial Stop A. Failure to Produce the Arrest Warrant Appellant contends that the State failed to show a constitutional basis for the initial stop because it failed to produce the arrest warrant related to Mr. Walker. He asserts that "the State effectively asked the trial court to assume a valid arrest warrant existed without proving it," and therefore, "the State cannot meet its burden in this way." ²⁷⁵ The State contends that it was not required to produce the warrant to establish the legality of the traffic stop. It asserts that, because appellant did not challenge the validity of the arrest warrant as a basis for its motion to suppress, the State had no obligation to produce the warrant.

In any event, the State asserts that the officers had a good faith belief that an open warrant existed for Mr. Walker, and therefore, the good faith exception to the exclusionary rule applies. After reviewing the arguments of counsel below, we conclude that this issue is not preserved for review because it was not adequately presented to the circuit court. See Fitzgerald v. State , 384 Md. 484 , 504-06, 864 A.2d 1006 (2004) (argument not raised at suppression hearing not ⁹¹⁸ properly before appellate court). Accord Harmony v. State , 88 Md. App. 306 , 317, 594 A.2d 1182 (to preserve an issue for review, "[a] party must bring his argument to the attention of the trial court with enough particularity that the court is aware first, that there is an issue before it, and secondly, what the parameters of the issue are.").

In discussing the police encounter here, defense counsel's reference to the stop was as follows: There may have been a justification for stopping. I maintain, Your Honor, that under Duggins that without a copy of the, of the warrant-that even that is questionable, whether they actually had a justification to stop. We don't know. The best evidence would have been the actual copy of the warrant-but even if we're going to say that they were allowed to stop the car, they were allowed to stop the car and they were allowed to get Mr. Walker out, certainly-he had an arrest warrant-then they were to let [appellant] go.

This argument hinted at the argument made on appeal, i.e., that the stop itself was unconstitutional because the police did not produce the warrant for Mr. Walker, but it did not clearly state that argument. See Sifrit v. State , 383 Md. 116 , 136, 857 A.2d 88 (2004) (declining to require "trial courts to imagine all reasonable offshoots of the argument actually presented before them before making a ruling."). Accordingly, this issue is ²⁷⁶ not preserved for appellate review, and we decline to address it. 7 B. Prolonged Detention Appellant next contends that, even if the initial stop was lawful, his continued detention after Mr. Walker was arrested was unconstitutional because the reason for the initial traffic stop "evaporated." He asserts that the reasonableness of a stop is based on its purpose, and once the officers arrested Mr. Walker, the purpose of the stop was fulfilled, and any further actions by the officers constituted a "second stop" requiring a separate justification, which the State failed to show. The State contends that this contention is not preserved for this Court's review because appellant failed to argue below, as he does on appeal, that the stop "evolved into an unconstitutional detention" after Mr. Walker was arrested.

In any event, the State argues that the contention fails on the merits because there was only a single continuous stop. It further asserts that the frisk of the car and appellant occurred simultaneously to the arrest of Mr. Walker, and therefore, they in "no way prolonged the stop." We begin with the State's preservation argument. Although defense counsel below did not articulate the argument exactly the same way as appellant does on appeal, he did argue that, once Mr. Walker was arrested there was "no ²⁷⁷ reason for [the police] to keep interacting with" appellant. Under that circumstance, we conclude that ⁹¹⁹ he sufficiently preserved the issue for this Court's review, and we will address it on the merits.

Appellant is correct in his assertion that once the purpose of a valid stop has been fulfilled, a continuation of the encounter that "implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot." Ferris v. State , 355 Md. 356 , 372, 735 A.2d 491 (1999). Where appellant goes astray, however, is in his assertion that there was a second stop in this case. Here, the record indicates that the arrest of Mr. Walker occurred at the same time as the frisk of the vehicle. Officer Malatesta testified that he took appellant to the rear or the side of the vehicle so that Officer Jones could do "the quick pat-down of the vehicle," and at the "same time," the "other officers were arriving and taking Mr. Walker out to arrest him." He explained that by the time the arrest of Mr. Walker was completed, they had found the syringe in the vehicle.

Similarly, Officer Jones testified that Officer Malatesta's actions in asking appellant to step out of the vehicle happened "kind of simultaneously" with his search of the vehicle, and during that time, "other officers arrived and were dealing with the passenger, Mr. Walker." Accordingly, the record does not support appellant's argument that there was a second stop after the purpose of the stop, Mr. Walker's arrest, was completed. Rather, the record indicates that the search of the vehicle occurred simultaneously with Mr. Walker's arrest. 8 We thus turn to the validity of the frisk of the vehicle. ²⁷⁸ II. Terry Frisk Appellant contends that the search of the vehicle was unconstitutional for two reasons. First, he argues that the police did not have reasonable, articulable suspicion that he was armed and dangerous.

Second, he asserts that the search exceeded the scope of a permissible Terry frisk. As explained below, we are not persuaded. A. Suspicion Armed and Dangerous The Court of Appeals recently discussed the Fourth Amendment guarantee against unreasonable searches and seizures, noting that what makes a search or seizure reasonable " 'depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers.' " Sellman v. State , 449 Md. 526 , 540, 144 A.3d 771 (2016) (quoting Pennsylvania v. Mimms , 434 U.S. 106 , 109, 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) ). The general rule is that " 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.' " Arizona v. Gant , 556 U.S. 332 , 338, 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009) (quoting Katz v. United States , 389 U.S. 347 , 357, 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) ).

Accord ⁹²⁰ Barrett v. State, 234 Md. App. 653 , 661-63, 174A.3d. 441, 2017 WL 5900113 at ³