Hamm v. State

ALPERT, Judge. This case involves a routine traffic stop that escalated into an arrest and prosecution of two people: the driver for unauthorized use of the car and the passenger for possession of cocaine with intent to distribute and transporting a handgun. Before trial, the passenger, appellant Jason Hamm, moved to suppress the admission of the drugs as evidence. After oral argument, that motion was denied.

The case was then tried upon an agreed statement of facts. After presentation of the statement of facts, the Honorable Albert P. Close, Circuit Court for Harford County, found appellant, Jason Victor Hamm, quilty of possession with intent to distribute and sentenced him to five years imprisonment. A timely appeal was filed, and the following questions presented: 1. Did the trial court err in denying appellant’s motion to suppress? ¹⁷⁹ 2.

Did the trial judge err in refusing to fully consider and in denying appellant’s request to withdraw from his agreement to proceed by a not guilty statement of facts? I. Motion to Suppress Appellant contends that the trial court erred in denying his motion to suppress cocaine seized from him. We disagree and explain as follows. On December 11, 1985, Corporal Michael Joseph Cole stopped a 1986 Chrysler Fifth Avenue for speeding.

The car was stopped at approximately 1:50 a.m. on 1-95, just south of the Susquehanna River Bridge. The car was being driven by Leslie Hamm. Her brother, Jason Hamm, was the only passenger in the automobile. After the stop, Trooper Cole approached the car from the passenger side, startling Jason Hamm.

While asking for the driver’s license and the vehicle’s registration, Cole noticed a large knife sitting on the dashboard. He then returned to his patrol car to examine the license and registration, that Leslie Hamm had given to him. Leslie Hamm’s driver’s license had been issued by the State of California and listed a Los Angeles address. The car had been rented from Snappy Car Rental.

The rental agreement, which was given to the officer in lieu of the registration, was in the name of Nadine Stansfield. After questioning, Jason Hamm revealed that the car had been rented to his girlfriend, but that “she was still back in Baltimore.” Cole testified that this information, coupled with an examination of the rental contract, led him to believe that Leslie and Jason had unauthorized use of the automobile. 1 ¹⁸⁰ When Trooper Cole returned to the stopped vehicle, the knife he had seen earlier was missing and a hat was put in its place. Concerned for his safety due to the unknown location of the knife, Cole asked Leslie and Jason Hamm to get out of the car. 2 Once out, the occupants were frisked ¹⁸¹ by Cole and then he searched the dash and under the seat of the car, looking for the knife. Cole discovered a gun and the knife under the hat.

Jason and Leslie Hamm were then placed under arrest. A search was conducted incident to that arrest, during which cocaine and a large sum of money were discovered on appellant, Jason Hamm. Appellant contends that: Corporal Cole testified, albeit reluctantly, that he arrested Leslie Hamm for unauthorized use. The trial judge did not rely on this basis for arrest.

The reason is obvious: cross-examination of Cole and examination of the rental agreement demonstrated that there was no basis for an arrest for unauthorized use. Instead, the trial judge relied on Cole having seen the knife. One problem is that for legally sufficient probable cause, “It is necessary that such belief abide in the seizing officer.” Dipasquale v. State, 43 Md.App. 574 , 406 A.2d 665 (1979). In this case, Officer Cole specifically disclaimed any belief in probable [cause] to arrest “for a knife that could be something that anybody may carry.” A search of a vehicle may be conducted pursuant to a lawful custodial arrest of an occupant.

New York v. Belton, 453 U.S. 454, 461 [ 101 S.Ct. 2860, 2864 ] [ 69 L.Ed.2d 768 ] (1981). The prerequisite for a lawful custo ¹⁸² dial arrest is probable cause to make the arrest. In this case, there was no probable cause and the fruits of the resulting search and seizure should have been suppressed. Appellant’s contentions, however, are based on erroneous perceptions of both the law and the facts of this case.

Appellant and his sister were lawfully stopped for a routine traffic violation. During that stop, Trooper Cole noticed the knife and developed a suspicion that the driver had obtained unauthorized use of the car. Regardless of the legitimacy of his suspicion, Trooper Cole became concerned for his safety when he returned to the vehicle and found the knife missing. At that point, he asked the vehicle’s occupants to get out of the car, whereupon he frisked them and searched the car for weapons.

The initial stopping of the car was justified as the driver had committed a misdemeanor, speeding, in the officer’s presence. The second phase of detention, the stop and frisk of the vehicle’s occupants, was justified under Michigan v. Long, 468 U.S. 1032 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1981). In that case, the Supreme Court held that a police officer may make a protective search of both occupants and the passenger compartment of a car after a traffic stop, even when there is no probable cause, if the officer has a reasonable belief, based on specific and articulable facts, that the stopped person is dangerous and has or may gain immediate possession of weapons. See also Pennsylvania v. Mimms, 434 U.S. 106, 111-12 , 98 S.Ct. 330, 333-34 , 54 L.Ed.2d 331 (1977) (police may order persons stopped for traffic violation out of their car and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous).

Once the weapons were found, Trooper Cole had probable cause to arrest appellant for a weapons violation. Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972). Accord United States v. Hensley, 469 U.S. 221, 227 , 105 S.Ct. 675, 680 , 83 L.Ed.2d 604 (1985). A subse ¹⁸³ quent, more extensive search was then justified as an incident to the arrest.

See New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981); Adams, supra. Evidence found as a result of this more extensive search was, therefore, admissible. Belton, supra; Adams, supra. See also Farrow v. State, 233 Md. 526, 527 , 197 A.2d 434 (1964); Payne v. State, 65 Md.App. 566, 573 , 501 A.2d 484 (1985).

See generally Annot., Law Enforcement Officer’s Authority, Under Federal Constitution, to “Stop and Frisk” Person—Supreme Court Cases, 32 L.Ed.2d 942 (1972). Thus, like the prior two tiers of appellant’s detention, we think that the third tier—the search incident to the arrest—was reasonable and not in violation of the Fourth Amendment. Adams, supra. In so deciding, we expressly reject appellant’s contention that the evidence must be suppressed because there was no probable cause to arrest appellant for unauthorized use of the car, the charge Trooper Cole gave at the time of arrest.

In Boddie and Brooks v. State, 6 Md.App. 523 , 252 A.2d 290 (1968), we defined what is meant by the term “probable cause.” Probable cause ... exists when the facts and circumstances within the knowledge of the arresting officer, or of which he had reasonably trustworthy information, are sufficient to warrant a reasonably cautious person in believing that a felony had been committed by the person arrested. Michaels v. State, 2 Md.App. 424 [ 234 A.2d 772 (1967)]; Gaudio v. State, 1 Md.App. 455 [ 230 A.2d 700 (1967)]. The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction, but more evidence than that which would arouse a mere suspicion. Edwardsen v. State, 243 Md. 131 [ 220 A.2d 547 (1966)]; Terrell v. State, 3 Md.App. 340 [ 239 A.2d 128 (1968) ].

In other words, an officer is not required to have sufficient evidence to convict at the time of the arrest, but only probable cause or, as stated by the Supreme Court in Spinelli v. United States, 393 ¹⁸⁴ U.S. 410 [ 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969) ], “only the probability, and not a prima facie showing of criminal activity is the standard of probable cause.” In Davis v. United States, supra, the District of Columbia Court of Appeals held at page 486 that “the problem faced by the officer is one of probabilities—not certainties and not necessarily eventual truth.” And it is settled that the legality of an arrest is measured by the existence of probable cause at the time of the arrest. Mullaney v. State, 5 Md.App. 248 [246 A.2d (1968) ]; Leatherberry v. State, 4 Md.App. 300 [ 242 A.2d 599 (1968)]; Wilson v. State, 2 Md.App. 210 [ 233 A.2d 817 (1967) ]. In Simms v. State, 4 Md.App. 160 [ 242 A.2d 185 (1968) ], we noted at page 167: “In assessing the validity of an arrest under the rule the essential ingredient is that probable cause existed within the knowledge of the arresting officer and not that he necessarily construed that knowledge correctly. It is not the belief of the officer that determines the validity of the arrest; it is whether, in the situation in which he found himself, he had probable cause to believe a felony had been committed and that the person arrested committed it.” Id. at 532, 252 A.2d 290 (emphasis added).

Even assuming, arguendo, that the officer did not have probable cause to arrest for unauthorized use, he certainly had probable cause to arrest for the weapons violation. The arrest was, therefore, justified on that basis. For, “[a]s to the presence of probable cause, if probable cause to arrest is apparently present, the fact that the information upon which the officer acted is subsequently determined to be false will not render the arrest illegal, nor does it matter that the arrest initially was made for the wrong offense.” Cook, Constitutional Rights of the Accused at 106 (1972). See also United States v. Lester, 647 F.2d 869, 873 (8th Cir.1981) (validity of search incident to an arrest does not turn upon suitability of stated grounds for arrest, instead “the validity of the arrest should be judged by whether the arresting ¹⁸⁵ officers actually had probable cause for the arrest, rather than by whether the officers gave the arrested person the right reason for the arrest”); State v. Retford, 276 S.C. 657 , 281 S.E.2d 471, 472-3 (1981) (where officers clearly had probable cause to arrest appellant for auto theft, the fact that they stated the arrest was made for another offense did not render the arrest unlawful and, therefore, the