Graham v. State

DAVIS, Judge. Appellant Kelly Graham was sentenced to a term of ten years imprisonment, with all but five and one-half years ⁴⁴⁶ suspended and a probationary period following service of the unsuspended portion of the sentence upon his conviction by a jury in the Circuit Court for Washington County of possession of cocaine with intent to distribute. From the conviction and sentence, he presents for our review one issue: Whether the lower court erred in denying his motion to suppress the drugs recovered from his person. PREFACE Liberty comes not from officials by grace but from the Constitution by right.

These words were uttered by United States Supreme Court Justice Anthony M. Kennedy in his dissenting opinion in the recent case of Maryland v. Wilson, 519 U.S. 408 , 117 S.Ct. 882 , 137 L.Ed.2d 41 (1997). Justice Kennedy was referring to what he perceived to be the implications of the Court’s decision in Wilson in conjunction with the Court’s decision in Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). Optimistically anticipating that “most officers ... will exercise their new power with discretion____,” Justice Kennedy predicted what he considered would be the result of the Wilson decision. The practical effect of our holding in Whren , of course, is to allow the police to stop vehicles in almost countless circumstances.

When Whren is coupled with today’s holding, the Court puts tens of millions of passengers at risk of arbitrary control by the police. If the command to exit were to become commonplace, the Constitution would be diminished in a most public way. 519 U.S. at-, 117 S.Ct. at 890 . In a separate dissenting opinion authored by Justice Stevens, citing the Annual Report of the Maryland Judiciary (1994-1995), the opinion observed that, “in Maryland alone, there are something on the order of one million traffic stops each year.” Id. at-, 117 S.Ct. at 888 . The majority opinion in Wilson , of course, held that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” Id. at-, 117 ⁴⁴⁷ S.Ct. at 886.

Pertinent to our decision herein, the Court noted: Maryland urges us to go further and hold that an officer may forcibly detain a passenger for the entire duration of the stop. But respondent was subjected to no detention based on the stopping of the car once he had left it; his arrest was based on probable cause to believe that he was guilty of possession of cocaine with intent to distribute. The question which Maryland wishes answered, therefore, is not presented by this case, and we express no opinion upon it. Id. at-n. 3, 117 S.Ct. at 886 n. 3.

Thus, although the Supreme Court was presented with the question of what actions police officers making traffic stops may take vis-a-vis the passengers in the vehicle, it confined its holding to the narrow issue of whether such passengers could be ordered out of the vehicle. Significantly, the underlying basis for allowing officers conducting traffic stops to order the passengers out of the vehicle is for the protection and safety of the officers. Id. at-, 117 S.Ct. at 887 ; Pennsylvania v. Mimms, 434 U.S. 106 , 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977). Absent facts that would indicate a threat to the safety of the officer, the only viable basis for a continued detention of a passenger beyond that period of time necessary to dispose of the traffic infraction must be justified by a reasonable suspicion that criminal activity is afoot.

Florida v. Royer, 460 U.S. 491, 500 , 103 S.Ct. 1319, 1325 , 75 L.Ed.2d 229 (1983); Berkemer v. McCarty, 468 U.S. 420, 436-37 , 104 S.Ct. 3138, 3148 , 82 L.Ed.2d 317 (1984). We are called upon in this appeal to decide whether, and for how long, police officers may detain a passenger once the stated purpose of a traffic stop has been effectuated. For the reasons set forth in the discussion which follows, we shall reverse the judgment of conviction. FACTS On the evening of February 28, 1996, at approximately 9:10 p.m., Trooper First-Class Jeffrey L. Kissner, while on drug ⁴⁴⁸ interdiction patrol assigned to intercept drug couriers, observed the vehicle in which appellant was a passenger exceeding the posted speed limit on Route 81 in Washington County.

He also observed that the light illuminating the vehicle’s license plate was out. Consequently, Trooper Kissner stopped the vehicle. Trooper Kissner had been working as a member of a two-car drug interdiction team, the other vehicle having been operated by K-9 Trooper First-Class Charles Stanford, who employed Dillon, a K-9 qualified and certified as a patrol/attack and narcotics canine. At the inception of the traffic stop, Trooper Stanford and the K-9 were involved in a stop at another location which resulted in at least a twenty minute delay in arriving at the location of appellant’s traffic stop.

Ordinarily, Trooper Stanford and the K-9 would have arrived within a few minutes. The operator of the vehicle, Carey Lee Davis, when ordered to produce his driver’s license and the vehicle’s registration card, advised Trooper Kissner that he did not have a driver’s license. Appellant thereupon produced a registration card and informed the officer that he was the owner of the car. Of the two forms of identification appellant displayed, neither was a driver’s license.

In response to the trooper’s inquiry, Trooper Kissner stated that one of the two occupants had said they were traveling from New Jersey whereas the other occupant told him they were coming from Pennsylvania. Both had indicated they were en route to Martinsburg, West Virginia. Trooper Kissner then radioed to Trooper Stanford requesting that the K-9 unit respond to his location. After directing Davis, the operator of the vehicle, to sit in his police car, Trooper Kissner radioed the police barracks for verification that Davis had no driver’s license.

Sometime shortly after requesting information regarding the status of Davis’s driving privileges, Trooper Kissner received information that the operator’s driving privileges had been suspended. ⁴⁴⁹ The driver was then placed under arrest and appellant was ordered to remain in his vehicle. As previously indicated, occasioned by his presence at another traffic stop, Trooper Stanford and the K-9, Dillon, arrived approximately twenty-five minutes after the initial stop. On command, the K-9 circled the vehicle in an effort to detect narcotics, during which Trooper Stanford gave the command “up search,” directing the K-9 to the driver’s side window which was open. Dillon raised up on his hind legs, put his head in the window of the vehicle, and “alerted” to the presence of narcotics by sitting, after withdrawing from the driver’s side window.

Appellant was then told to exit the car and, when he did, he was ordered to remove his left hand which had been in his left coat pocket. Upon a second command to remove his hand, one of the troopers reached into appellant’s pocket and found fifty vials of what appeared to be cocaine. The substance was later determined to be cocaine whereupon appellant was arrested. STANDARD OF REVIEW In reviewing the denial of a motion to suppress under Maryland Rule 4-252, we look only to the record of the suppression hearing and do not consider the record of the trial.

Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987) (quoting Jackson v. State, 52 Md.App. 327 , 332 n. 5, 449 A.2d 438 , cert. denied, 294 Md. 652 (1982)); see also Gamble v. State, 318 Md. 120, 125 , 567 A.2d 95 (1989); Herod v. State, 311 Md. 288, 290 , 534 A.2d 362 (1987). In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to determining the credibility of the witnesses and to weighing and determining first-level facts. Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990). When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that his findings are clearly erroneous.

Riddick v. State, 319 Md. 180, 183 , 571 ⁴⁵⁰ A.2d 1239 (1990). As to the ultimate conclusion, however, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Perkins, 83 Md.App. at 346 , 574 A.2d 356 . THE PRECISE ISSUE PRESENTED We have identified the issue the Court declined to address in Wilson , 519 U.S. at-n. 3, 117 S.Ct. at 886 n. 3, as whether “[a]n officer may forcibly detain a passenger for the entire duration of the stop.” The case sub judice, in precise terms, poses the question, “Is it constitutionally permissible to detain passengers of a vehicle once the purpose of the traffic stop has been effectuated?” 1 Lest there be any doubt, appellant was no less detained against his will than the passenger in Dennis v. State, 345 Md. 649 , 693 A.2d 1150 (1997) in which the passenger there “rather than heeding the police command to remain in the vehicle, ... walks away from the scene and subsequently resists police attempts at detention.” Id. at 650 , 693 A.2d 1150 .

To suggest, somehow, that one may simply alight from a vehicle and casually walk away once a State Trooper has ordered one to remain in the vehicle is sheer folly. As the Court said in Royer : First, it is submitted that the entire encounter was consensual and hence [Respondent] was not being held against his will at all. We find this submission untenable. Asking for and examining [Respondent’s] ticket and his driver’s license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told [Re ⁴⁵¹ spondent] that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, [Respondent] was effectively seized for the purposes of the Fourth Amendment.

These circumstances surely amount to a show of official authority such that a “reasonable person would have believed that he was not free to leave.” Royer, 460 U.S. at 502 , 103 S.Ct. at 1326 (emphasis added). It is simply wrong to suggest that a traveler feels free to walk away when he has been approached by individuals who have identified themselves as police officers and asked for, and received, his airline ticket and driver’s license. Royer, 460 U.S. at 511-12 , 103 S.Ct. at 1331 . In every sense, appellant was seized, as was the passenger in Dennis v. State, the minute that Trooper Kissner ordered that he remain in the vehicle.

Speaking to the Fourth Amendment implications of detaining the occupant of a vehicle, the Court, in Whren , reiterated: Temporary detention of individuals 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 this provision. An automobile stop is thus subject to the constitutional imperative that it not be “unreasonable” under the circumstances. Whren, 517 U.S. at 809-10 , 116 S.Ct. at 1772 (citations omitted). Ultimately, [t]he test to be applied in determining whether a person has been “seized” within the meaning of the Fourth Amendment is whether in view of all the circumstances surrounding the incident a reasonable person would have believed he was not free to leave.

State v. Lemmon, 318 Md. 365, 375 , 568 A.2d 48 (1990) (citing Michigan v. Chesternut, 486 U.S. 567, 573 , 108 S.Ct. 1975, 1979 , 100 L.Ed.2d 565 (1988)). The fact that the case sub judice involves seizure of the person, rather than of the vehicle, is of paramount import ⁴⁵² because the illicit drugs were recovered from appellant’s pocket; hence, the discovery of the cocaine was directly attributable to the detention of appellant. Had the cocaine been recovered from the vehicle, the issue would have been whether the arresting officers would have been required, under the circumstances, to determine if appellant had a driver’s license 2 and, if not, whether an inventory search of the vehicle would have been reasonable since it could not be removed until someone licensed and authorized to drive it was identified. 3 Thus, we must decide in this appeal whether, in the absence of articulable suspicion, a detention of the passenger from the point in time of the seizure of his person, i.e., the order to remain in the car, to the alerting of the K-9, indicating the presence of drugs, comports with decisions construing reasonableness under the Fourth Amendment. THE FOURTH AMENDMENT ANALYSIS We begin by noting that appellant was a passenger in the subject vehicle and not the operator.

The significance therein is that, unlike Davis, the driver of the vehicle, neither ⁴⁵³ Trooper Kissner nor Trooper Stanford had any reason to believe appellant was engaged in any violation of the criminal or traffic laws until Dillon alerted to the presence of cocaine twenty-five minutes after the initial stop. As Justice Stevens observed in his dissent in Wilson , “the Constitution should not be read to permit law enforcement officers to order innocent passengers about simply because they have the misfortune to be seated in a car whose driver has committed a minor traffic offense.” 519 U.S. at-, 117 S.Ct. at 889 . The majority in Wilson , discussing their decision in Mimms , penned: We reversed, explaining that “[t]he touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion,’ ” and that reasonableness “depends ‘on a balance between the public interest and the individuals right to personal security free from arbitrary interference by law officers.’ ” Id. at---, 117 S.Ct. at 884-85 (citations omitted). The Court goes on in Wilson to observe that it noted that the State “freely conceded” that “there had been nothing unusual or suspicious to justify ordering Mimms out of the car, but that it was the officer’s ‘practice to order all drivers [stopped in traffic stops] out of their vehicles as a matter of course’ as a ‘precautionary measure’ to protect the officer’s safety.

We thought it ‘too plain for argument’ that this justification — officer safety — was ‘both legitimate and weighty.’ ” The Court concluded that it observed, in Mimms , that the danger to the officer of standing by the driver’s door and in the path of oncoming traffic might also be appreciable. Considering “the other side of the balance” [the intrusion into the driver’s liberty occasioned by the officer’s ordering him out of the car], the Wilson Court recounted that the Mimms’s decision imposed but a “de minimis ” intrusion on the driver, since he was already validly stopped for a traffic infraction. The Supreme Court then noted that we had held that “this per se rule does not apply to Wilson because he was ⁴⁵⁴ a passenger, not the driver.” 519 U.S. at-, 117 S.Ct. at 885 . The touchstone of the Fourth Amendment analysis in Wilson — the officer’s safety — as was the case in Dennis , was very aptly articulated by Chief Judge Robert M. Bell, speaking for the Court of Appeals in Dennis, 345 Md. at 653-54 , 693 A.2d 1150 : What we clearly concluded in the instant case is that there was no reason articulated or indicated as to why it was necessary to detain Dennis “for the officer’s safety,” and the detention could not be justified on any other basis.

First, there was no probable cause to arrest Dennis. Second, although the officer might have had a reasonable suspicion adequate to make an investigative stop pursuant to Terry v. Ohio, the officer did not intend to question Dennis, and a Terry investigative stop was not the basis for Dennis’s detention. Without some explanation, we were unable to determine why it was safer for the officer to detain Dennis rather than allow him to walk away from the scene. Our holding resulted from the officer’s indication that he did not make an investigative stop and was not motivated by any suspicion that Dennis was involved in illegal activity.

We recognized that the officer might have had a basis for a Terry stop, but noted that the officer’s stop was made only because of his unexplained belief that detaining Dennis was safer for the officer than letting Dennis leave the scene. There was no intent to interrogate Dennis as might have been permitted by Terry and no indication why Dennis should be stopped for the officer’s safety. The thread running through federal and State cases discussing intrusions into personal liberties is that the decisions seek to preserve those liberties unless there is demonstrated a public interest concern that must override protections guaranteed by the Bill of Rights. The public interest concern, in the context of traffic stops, as explicated in Mimms, Wilson, Terry v. Ohio, 392 U.S. 1, 19 , 88 S.Ct. 1868, 1878-79 , 20 L.Ed.2d 889 (1968), and Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), is the need to insure the ⁴⁵⁵ safety of police officers.

In the instant case, in which there is articulated no concern by either Trooper Kissner or Trooper Stanford for his personal safety, 4 the continued detention of the passenger must be justified on some other basis. OTHER REASONS FOR DETENTION In issuing its ruling, the trial court explained: ... However the stop of the motor vehicle of course was with probable cause. The arrest of the driver was with probable cause.

The momentarial [sic] seizure of the vehicle as the result of the violations of the law by the driver surely is a reasonable expected result. The twenty-five minutes that elapses between the call and the time that the officer arrives with the dog to begin the scan is a reasonable time under the circumstances. The alerting by the dog gives the police officers probable cause to believe that there is contraband within the vehicle ⁴⁵⁶ in some fashion whether it’s in the vehicle or whether it is on an individual who is in the vehicle. It gives the officers probable cause to search that vehicle.

The court alludes to the twenty-five minutes which elapsed between the call and Trooper Stanford’s arrival with Dillon, but fails to address the fact that the operator admitted that he had no valid driver’s license when the vehicle was first stopped and Davis’s admission was confirmed shortly thereafter when Trooper Kissner radioed the police barracks. When asked why he suspected that there were drugs in the vehicle, Trooper Kissner explained that the driver had no form of identification on him and advised that he was en route from Pennsylvania whereas appellant stated that they were traveling from New Jersey. Trooper Kissner stated, “in my mind I had two different stories at the time.” In rejecting the basis for Trooper Kissner’s suspicions, we said in Whitehead, 116 Md.App. at 504-05, 698 A.2d 1115 : The use of the “conflicting” details of their visit in New Jersey is unavailing here to show probable cause to suspect possession of narcotics. There is nothing about not having their stories together, about, just whom they visited, or about the day that they left Baltimore, that somehow yields an inference of possession of narcotics.

Or, put another way, there is nothing about narcotics laws violators that police can recognize from an inability to agree upon these details of their journey to New Jersey. In asking the questions, Trooper Donovan was not making inquiry to further the enforcement of the 55 mile speed limit. He was looking for justification to intrude upon the privacy of the' person whom he had detained. Our review of the “inconsistency” — the different dates that their trip began and whom they had gone to visit — does not support any inference that the occupants were in possession of narcotics or that the automobile that Whitehead was driving contained narcotics.

There is nothing that Donovan observed that even remotely indicates an involvement in the transportation of drugs. He did not observe scales, bongs, glassine bags, or ⁴⁵⁷ instruments which may have a law abiding use, but about which an educated police officer could testify can also be consistent with drug dealing and, therefore, could give rise to a permissible inference that criminal narcotic activity is afoot. Law enforcement personnel do not have the discretion to select neutral human behavior as the justification for the formation of probable cause. Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, Section 3.6(f) (2d ed.1987); People v. Reynolds, 94 Ill.2d 160 , 68 Ill.Dec. 122 , 445 N.E.2d 766 (1983); Donaldson v. State, 46 Md.App. 521, 534 , 420 A.2d 281 (1980).

(Emphasis added.) In a case in which the detention was based on a hunch, the detainee having been arrested on a previous occasion for charges related to cocaine and marijuana, citing Snow v. State, 84 Md.App. 243 , 578 A.2d 816 (1990) (quoting Berkemer, 468 U.S. at 436-37 , 104 S.Ct. at 3148 ), we said, “because the purpose of the initial stop had been satisfied, we concluded that the trooper detained Snow and his vehicle twice: once when he stopped Snow for speeding, and again when he continued to hold Snow after issuing a ticket. As in the present case, the total length of the stop was brief, and did not exceed normal duration for a traffic stop. Id. at 264, 268, 578 A.2d 816 .” Munafo v. State, 105 Md.App. 662, 671 , 660 A.2d 1068 (1995). In contrasting the difference between what we characterized as a single detention permissible under the Fourth Amendment analysis and a continued detention constituting a separate stop, we said: In [In re] Montrail M. [ 87 Md.App. 420 , 589 A.2d 1318 (1991)1 by contrast, we held that a single detention took place.

In that case, a sheriffs deputy observed a station wagon parked outside a business in an isolated area early in the morning. There were three persons in the car. The deputy called for backup, knowing that the only other unit on duty at the time was a canine unit. The deputy spoke with the driver, and his suspicions were further aroused by the driver’s explanation of what he was doing in that particular location at 3:30 a.m.

The deputy obtained the ⁴⁵⁸ driver’s license and registration and began to run a check. Before the check was completed, the canine unit arrived, and the deputy conducted a quick scan of the station wagon. After the dog indicated that drugs were present, the deputy searched the car and found both marijuana and crack cocaine. Our analysis of the situation emphasized two points.

First, the canine scan occurred during an otherwise valid stop, which was based on reasonable suspicion. At the time that the scan took place, the deputy was still awaiting the results of the license and registration check Second, we noted that the scan did not prolong the detention. Because the scan was conducted in a public place and did not inconvenience the car’s occupants, the scan itself did not constitute a search within the meaning of the Fourth Amendment. Id. at 671-72, 660 A.2d 1068 (emphasis added; citations and footnote omitted).

We observed that the distinguishing fact in Munafo was that the deputy did not actually issue a citation or warning after receiving word that Munafo’s license and rental agreement were valid, but rather waited for the second member of his team to arrive so that the vehicle could be subjected to a further inspection. We ultimately concluded that, ‘We find it more than slightly illogical to allow officers to circumvent Snow merely by waiting to issue a citation until after conducting a search of a detained vehicle.” Id. at 672, 660 A.2d 1068 . Munafo , it should be emphasized, involved a ten minute detention. THE LENGTH OF THE DETENTION Although there is no bright line rule for determining when the duration of a detention is such that it violates constitutional standards of reasonableness, The Supreme Court has ... said that the “brevity of invasion of the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so ⁴⁵⁹ minimally intrusive as to be justifiable on reasonable suspicion.” Snow, 84 Md.App. at 265 , 578 A.2d 816 (citations omitted).

For the sake of clarity and focus, our discussion herein only tangentially addresses a traffic stop in which the officers conducting the stop are investigating an offense previously committed, since such cases often turn on an analysis of whether the officers possessed probable cause. (Cf. United States v. Hensley, 469 U.S. 221 , 105 S.Ct. 675 , 83 L.Ed.2d 604 (1985), in which Court considered reasonableness of detention in reliance on another police department’s “wanted flyer” which was issued on the basis of articulable facts supporting reasonable suspicion — rather than probable cause — that the person wanted had committed offense.) As we have indicated, supra, the Supreme Court in Whren acknowledged the constitutional implication of a temporary detention “even if only for a brief period.” Whren, 517 U.S. at 809 , 116 S.Ct. at 1772 . A detention based on probable cause obviously may continue until the probable cause has dissipated or developed into confirmed facts indicating criminal activity.

At the other end of the spectrum, a detention for any period of time beyond the effectuation of the purpose for a traffic stop based on a hunch cannot be justified. As noted, in Mimms , the Supreme Court, in allowing the driver to be ordered out of the vehicle, alluded to a “de minimis” intrusion, since the driver was already validly stopped for a traffic infraction. The Court, in Delaware v. Prouse, 440 U.S. 648, 662-64 , 99 S.Ct. 1391, 1401 , 59 L.Ed.2d 660 (1979), while disapproving traffic stops absent articulable reasonable suspicion that a motorist was unlicensed or the vehicle unregistered, opined that [t]his holding does not preclude the State of Delaware or other states from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic or roadblock-type stops is one possible alternative.

We hold only that persons in automobiles on public roadways may not for that purpose alone have their travel and ⁴⁶⁰ privacy interfered with at the unbridled discretion of police officers. While the Prouse Court was clearly concerned about the arbitrariness of the stops conducted by Delaware patrol officers, it suggested an alternative which would not involve the officer’s discretion as to whom would be stopped. Indeed, since the Prouse decision in 1979, check point stops to determine if motorists are driving under the influence of alcohol have become commonplace and, where used, have for the most part become accepted. Aside from overcoming the objection of the police officers exercising unbridled