Hawkins v. State

ALPERT, Judge. Appellant, Timothy Eugene Hawkins, was charged with one count each of possession, possession with intent to distribute, and distribution of a controlled dangerous substance. A motion to suppress the introduction of certain evidence was denied after a hearing on January 25, 1988. At trial in the Circuit Court for Montgomery County, appellant was convicted on all three counts, and he was sentenced to concurrent twenty year terms on the distribution and intent to distribute counts and a concurrent sentence of one year imprisonment on the simple possession count.

The court then suspended ten years of the twenty year sentences in favor of five years supervised probation. This ³⁴¹ appeal followed. Appellant presents four questions on appeal: 1. Did the trial court err in ruling that appellant lacked standing and in denying his motion to suppress evidence? 2.

Did the trial court err in admitting the seized evidence and the analysis thereof where the integrity of the chain of custody had not been established? 3. Was the evidence insufficient to support the conviction for distribution? 4. Are the sentences for possession with intent to distribute and possession illegal? We affirm in part and modify in part.

FACTS On November 12,1986, several members of the Montgomery County Police Department’s “Jump Out Squad”, a unit formed to combat drug transactions, were on surveillance at an apartment complex on Scenery Drive in Gaithersburg. From a vacant apartment, Officer Jeannie Hobbs noticed the appellant leaning against a fence near the parking lot. A white male with a red jacket (“Red Jacket”) approached appellant. Appellant pulled out a baggie containing several packets wrapped in aluminum foil and handed one of the packets to Red Jacket.

That person proceeded to sniff the packet; he then handed the appellant some money and pocketed the packet. After Red Jacket walked away, appellant remained in the same location. Officer Hobbs radioed several other members of the team, related what she had observed, and directed them to arrest the appellant. As Officer Daryl Ferdock, in plain clothes, approached to within several feet of appellant, appellant noticed him and started running.

Officer Ferdock gave chase, shouting “Stop, police!” Appellant continued to run, reached into his coat pocket, and threw aside the plastic baggie. He was apprehended a moment later. Offi ³⁴² cer Ferdock retrieved the bag, the substance inside of which later tested positive for marijuana and phencyclidene (PCP). Motion to Suppress Appellant argues that the baggie and its contents should have been suppressed as the result of an illegal arrest.

He contends that because Officer Ferdock did not possess probable cause to arrest appellant, independent of Officer Hobbs’ observations, and because Officer Hobbs did not testify at the suppression hearing, the court’s denial of his motion to suppress was reversible error. The State argues that the appellant had no standing to make the argument because, by throwing away the evidence, he abandoned it. Appellant responds that the abandonment was forced by illegal police conduct; therefore, he has standing. We address the standing argument first.

The general rule is that “abandoned property does not fall within that category in which one has a legitimate expectation of privacy to bring it within the protection of the Fourth Amendment.” Everhart v. State, 274 Md. 459, 483 , 337 A.2d 100 (1975). Appellant contends, however, that the abandonment was compelled by unlawful police conduct, i.e., an attempted arrest without probable cause. Before we begin to examine whether probable cause for the arrest existed, we must determine whether the chase prior to the arrest even implicates the Fourth Amendment probable cause for seizure analysis. In Michigan v. Chesternut, — U.S. —, 108 S.Ct. 1975 , 100 L.Ed.2d 565 (1988), the United States Supreme Court examined this same issue.

There, two police officers in a patrol car began following Chesternut when he ran after spotting the patrol car. The officers caught up to Chester-nut and drove alongside him. As he continued to run, he began to discard a number of unidentified packets. One of the officers exited from the patrol car, noticed the packets contained pills, gave chase, and arrested him.

Chesternut argued that all police chases are Fourth Amendment seizures; while Michigan countered that “the Fourth Amend- ³⁴³ ment is never implicated until an individual stops in response to the police’s show of authority.” Id. 108 S.Ct. at 1978-79 . The majority refused to adopt a bright line rule and applied a test it first articulated in United States v. Mendenhall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980): The test provides that the police can be said to have seized an individual “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Chesternut, supra, 108 S.Ct. at 1979 (quoting Mendenhall, 446 U.S. at 554 , 100 S.Ct. at 1877 ). Under this test, which examines the objective belief of the defendant, the respondent in Chesternut was not “seized” under the Fourth Amendment, because such an investigatory pursuit would not lead a reasonable person to believe that he was not free to leave. Id. 108 S.Ct. at 1980 .

Interestingly, although the concurring opinion in Chesternut advocated adoption of the bright-line rule argued by the petitioner, see id. at 1981 (Kennedy, J. concurring), the majority expressly left open the question whether a pursuit under the facts present in this case would constitute a Fourth Amendment seizure. See id. at 1980, nn. 8, 9 . Until the Supreme Court has an opportunity to decide whether a situation like the present one will compel it to abandon the “objective belief of the defendant” test for the “chase is not a seizure” bright-line rule, we will apply the former. A reasonable person in the appellant’s shoes probably would not have felt under any compulsion to remain as the plain clothes officer silently approached.

Where, however, the officer gave chase and shouted, “Stop, police!,” the chase rose to the stature of a Fourth Amendment seizure under the Chesternut analysis. 1 From Officer ³⁴⁴ Ferdock’s testimony, appellant's abandonment of the baggie occurred after the officer began to give chase and shouted an order to the appellant to stop. Thus, a Fourth Amendment seizure had taken place and we must examine the officer’s actions to determine whether probable cause existed for the officer to make an arrest. At the suppression hearing, Officer Ferdock testified that he relied on Officer Hobbs’ relation of her observations to him in effectuating the arrest. We stated in Carter v. State, 18 Md.App. 150 , 305 A.2d 856 (1973): Probable cause existing at the time of an arrest is the measure of the legality of the arrest.

Evans v. State, 11 Md.App. 451 , 274 A.2d 653 (1971). It is settled that probable cause may be based on information within the collective knowledge of the police. Collins v. State, 17 Md.App. 376 , 302 A.2d 693 (1973); Hebron v. State, 13 Md.App. 134 , 281 A.2d 547 (1971). Thus, even though an arresting officer personally may lack probable cause to justify an arrest, the State can show that the police team, collectively possessed knowledge sufficient to establish probable cause.

Thompson v. State, 15 Md.App. 335, 343 , 290 A.2d 565 (1972); Collins v. State, supra. Id. at 154, 305 A.2d 856 . Given Officer Hobbs’ observations which, in light of her police training, led Officer Hobbs to believe that a drug transaction had occurred, Officer Fer-dock, under the “police team” theory, possessed probable cause to arrest appellant in response to Officer Hobbs’ request. 2 Appellant contends, however, that although Officer Ferdock testified at the suppression hearing in regard ³⁴⁵ to the information relayed to him by Officer Hobbs, Officer Hobbs herself was required to testify as to probable cause at the suppression hearing. No such requirement is mandated.

Appellant errs in his assumption that Officer Hobbs’ probable cause may only be articulated through her testimony. We need only be concerned with whether Officer Ferdock, based on the information received from Officer Hobbs, had probable cause to arrest appellant. If the motion to suppress had concerned whether probable cause to issue a search warrant existed, the court would not require testimony at a suppression hearing from the source of the information upon which an officer relies in seeking a search warrant. Instead, the court examines the “totality of the circumstances” to determine whether probable cause for the warrant existed.

Illinois v. Gates, 462 U.S. 213, 238 , 103 S.Ct. 2317, 2332 , 76 L.Ed.2d 527 (1983). Primary emphasis is still placed on the reliability of the source of the information and the source’s basis of knowledge. Id. As in cases where the validity of an arrest or search warrant is questioned, the totality of the circumstances is examined with primary emphasis on the trustworthiness of the source relied upon and the source’s basis of knowledge.

The defendant is not entitled to require the source of the information to testify at a suppression hearing. Officer Ferdock testified regarding the information related to him by Officer Hobbs, a reliable and trustworthy source of information. The content of the information gave rise to sufficient probable cause to arrest appellant. Appellant has presented no evidence or reasonable hypothesis that would lead us to believe that the contrary was true.

Thus, “[i]n the instant case the State met its burden of preliminarily showing prima facie probable cause.” Thompson v. State, 15 Md.App. 335, 344 , 290 A.2d 565 (1972). In sum, although the content of the information must be proven by the State, the basis or source of the information need not be presented firsthand. Accord, State v. Mills, 735 S.W.2d 197 , 201 & n. 2 (Mo.App.1987); People v. Dodt, 61 N.Y.2d 408 , 474 N.Y.S.2d 441, 445 , 462 N.E.2d 1159, 1163 (1984). Therefore, we ³⁴⁶ conclude that appellant’s motion to suppress was