Henderson v. State

EYLER, DEBORAH S., J. Hayward T. Henderson, the appellant, was convicted by a jury in the Circuit Court for Harford County of possession of a controlled dangerous substance (“CDS”), in violation of Md.Code (2002); section 5-601 of the Criminal Law Article (“CL”), possession of CDS with intent to distribute, in violation of CL section 5-602; conspiracy to possess and distribute CDS, in violation of CL section 5-602; carrying and transporting a handgun in a vehicle on a public highway, in violation of CL section 4-203; and possession of a firearm “under sufficient circumstances to constitute a nexus to the drug trafficking crime,” in violation of CL section 5-621. The court merged the simple possession conviction into the possession with intent to distribute conviction, and merged the carrying and transporting a handgun conviction into the firearm possession in relation to drag trafficking conviction. For each of the three remaining convictions, the court imposed identical concurrent 20-year sentences, all but 12 years suspended. ⁸⁹ The appellant noted this appeal, posing three questions, 1 which we have combined and rephrased: I. Did the motion court err in denying his motion to suppress evidence?

II

Did the trial court err in denying his motion for judgment of acquittal on the firearm charges? For the following reasons, we shall affirm the circuit court’s judgments. FACTS AND PROCEEDINGS The appellant was one of two passengers in a vehicle that Harford County Sheriffs deputies engaged in a traffic stop on May 2, 2005, at 9:28 p.m. Deputy Paul Ruszala twice observed the vehicle fail to stop fully at stop signs, in violation of Md.Code (1977, 2006 Repl.Vol.), section 21-707 of the Transportation Article (“TR”).

After the stop was called in, Deputy Scott Blankenship, who was patrolling nearby, responded to the scene for backup, arriving about two minutes later. Deputy Ruszala performed a routine driver’s license and registration check and recognized both the driver, Andre Austin, and the appellant because of their prior involvement in ⁹⁰ CDS activities. 2 Deputy Ruszala requested a K-9 unit, which was dispatched at about 9:32 p.m. Deputy Blankenship, who had been conducting a computer check for outstanding warrants, determined that there was an outstanding arrest warrant for the other passenger, Maurice Kevin Lewis, for failure to appear at a probation hearing on CDS-related charges. Before effecting an arrest, Deputy Blankenship called for additional backup, because departmental safety guidelines require at least an equal number of police officers to suspects when an arrest is made.

There was a “four to five minute” delay while the deputies awaited confirmation from the dispatcher that the warrant for Lewis was “still good and valid and active.” The motion judge found that the arrest warrant confirmation was radioed to deputies on the scene at 9:39 p.m. A third officer, Sergeant Carl Brooks, arrived at 9:40 p.m. Immediately afterward, Deputy Blankenship removed Lewis from the vehicle and placed him under arrest. A search of his person incident to arrest recovered $741 “in one of his pockets.” At 9:52 p.m., Corporal John Seilback arrived with his K-9, Sabre.

(The K-9 unit had been on patrol in Havre de Grace, a 20-minute drive away.) Deputies ordered Austin and the appellant out of the vehicle to perform the K-9 scan. They frisked the two men for weapons, but found none. When Sabre gave a positive alert, Deputies Ruszala and Blankenship handcuffed Austin and the appellant. Deputy Ruszala searched Austin, recovered crack cocaine from inside a skull cap he was wearing, and arrested him.

Deputies then searched the vehicle. They did not find CDS, but did find two weapons: a Glock model 23 handgun 3 under the front passenger seat where Lewis had been sitting, and a “silver colored ⁹¹ pocket knife” on “the rear floorboard, between [the appellant’s] feet.” They also found, inter alia, a gray mask, two black baseball caps with the word “Police” on the front in white lettering, a video camera, cell phones, and $901 in currency. Deputy Ruszala advised the appellant he was under arrest. Deputy Blankenship then searched him and found a clear plastic bag that held a loose rock of crack cocaine and five smaller baggies of crack cocaine.

We will include any additional facts as necessary to our discussion of the issues. DISCUSSION I. A. When reviewing the denial of a motion to suppress under Rule 4-252, our inquiry is limited to the record of the suppression hearing. Owens v. State, 399 Md. 388, 403 , 924 A.2d 1072 (2007); Padilla v. State, 180 Md.App. 210, 218 , 949 A.2d 68 (2008). We defer to the hearing judge’s first-level factual findings, applying a clearly erroneous standard of review.

State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003). We view the facts and inferences reasonably drawn therefrom in the light most favorable to the prevailing party, in this case the State. Id.; Morris v. State, 153 Md.App. 480, 487-90 , 837 A.2d 248 (2003). We “make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” State v. Williams, 401 Md. 676, 678 , 934 A.2d 38 (2007).

The legal basis for the appellant’s motion to suppress evidence is an alleged violation of the Fourth Amendment, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Fourth Amendment is applicable to the states through incorporation by the Fourteenth Amend ⁹² ment. Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). The appellant contends the motion court erred in concluding that his detention prior to the K-9 scan did not violate the Fourth Amendment. He argues, based on Dennis v. State, 342 Md. 196 , 674 A.2d 928 (1996) (Dennis I), aff'd on remand, 345 Md. 649 , 693 A.2d 1150 (1997) (Dennis II), that, because he was just a passenger in the vehicle, the officers had to have a reasonable, articulable suspicion that he in particular had engaged in criminal activity in order to detain him.

See Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). He maintains that there was no reasonable, articulable suspicion that he was engaged in any criminal activity until the positive K-9 alert. Therefore, his detention prior to the K-9 search was illegal and his motion to suppress should have been granted. In Dennis I, a driver ran a red light and then engaged police officers in a high-speed chase.

When eventually police caught up, the driver and passenger both exited the vehicle and attempted to leave the scene. Dennis, the passenger, ignored an order to stop and simply walked away. A police officer tackled him, and he fought back, striking the officer in the ribs. Dennis was convicted of disorderly conduct and battery.

This Court affirmed the convictions in an unreported opinion. The Court of Appeals reversed. It focused on the arresting officer’s stated rationale for detaining Dennis: “Well, we’re taught for officers’ safety to keep all subjects in the vehicle. Also, we did not know, the way the subject was acting, we did not know if he had contraband, if he had weapons---- [A]nd for our safety, we always ask all subjects to stay in the vehicle.” 342 Md. at 208 , 674 A.2d 928 .

Thus, the Court emphasized the police officer’s subjective thought not to conduct a Terry investigative stop, but to detain the passenger solely to ensure officer safety. Because the officer failed to articulate a reasonable suspicion that Dennis had aided or abetted the driver, ⁹³ whose only apparent crimes were the traffic violations, the Court held that Dennis had been arrested illegally. It relied upon language in Terry that appeared to require the arresting officer, not the prosecutor in a subsequent suppression hearing, to articulate specific reasons for seizing the subject of an investigatory stop. Dennis I, 342 Md. at 208 , 674 A.2d 928 (police officer “did not ... articulate the requisite reasonable suspicion Terry requires”); id. at 209, 674 A.2d 928 (“Terry requires that ‘the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ ”) (quoting Terry, supra, 392 U.S. at 21 , 88 S.Ct. 1868 ).

The Court so held even while remarking that “there may well have been sufficient evidence in the record from which [the officer] could have possessed a reasonable, articulable suspicion that the petitioner aided and abetted the criminality of the driver. Had he, in fact, intended to make a Terry stop, a different result might be appropriate.” Id. at 208-09, 674 A.2d 928 (emphasis added). The State filed a petition for certiorari in Dennis I to challenge the Court’s focus in its analysis on the subjective intent of the arresting officer. By that time, a substantial body of Fourth Amendment jurisprudence had developed in favor of objective standards in determining whether various police-citizen encounters satisfy the reasonableness requirement of the Fourth Amendment. 4 See, e.g., United States v. Mendenhall, 446 U.S. 544, 554 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980) (“We conclude that a person has been ‘seized’ within the meaning of the Fourth Amendment 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.”); Scott v. ⁹⁴ United States, 436 U.S. 128, 137 , 98 S.Ct. 1717 , 56 L.Ed.2d 168 (1978) (“[A]lmost without exception in evaluating alleged violations of the Fourth Amendment the Court has first undertaken an objective assessment of an officer’s actions in light of the facts and circumstances then known to him.”); United States v. Robinson, 414 U.S. 218, 234-35 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973) (“[T]he danger to an officer ... in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station ... is an adequate basis for treating all custodial arrests alike for purposes of search justification.”) (emphasis added); id. at 236 , 94 S.Ct. 467 (“Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed.”); Terry, supra, 392 U.S. at 21-22 , 88 S.Ct. 1868 (“[I]n making [the assessment of reasonableness] it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief that the action taken was appropriate?”) (quoting Carroll v. United States, 267 U.S. 132, 162 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925)).

Three months after the Court of Appeals filed its opinion in Dennis I , the Supreme Court issued its decision in Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), upholding a so-called pretextual traffic stop. The Court stated its preference for objective determinations of Fourth Amendment validity: “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id. at 813 , 116 S.Ct. 1769 . Four months later, the Supreme Court issued a GVR (grant, vacate, and remand) order in Dennis I , in light of Whren. Maryland v. Dennis, 519 U.S. 802 , 117 S.Ct. 40 , 136 L.Ed.2d 4 (1996) (mem).

On remand,- the Court of Appeals reaffirmed its previous holding, stating that Whren was inapposite because it addressed a different question: ⁹⁵ Whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws. Dennis II, 345 Md. at 651 , 693 A.2d 1150 (quoting Whren, 517 U.S. at 808 , 116 S.Ct. 1769 ). The Court noted that the Supreme Court had left open the specific issue in Dennis: “Whether ‘an officer may forcibly detain a passenger for the entire duration of [a traffic] stop.’ ” Dennis II, 345 Md. at 653 , 693 A.2d 1150 (quoting Maryland v. Wilson, 519 U.S. 408 , 415 n. 3, 117 S.Ct. 882 , 137 L.Ed.2d 41 (1997)). The Court then reaffirmed its decision in Dennis I , relying on its analysis that the police officer had failed to offer any explanation to support the notion that detaining Dennis was safer than simply permitting him to leave.

Dennis II, 345 Md. at 654 , 693 A.2d 1150 . The State again petitioned for a writ of certiorari, which was denied. Maryland v. Dennis, 522 U.S. 928 , 118 S.Ct. 329 , 139 L.Ed.2d 255 (1997). In this case, there was no evidence that the appellant attempted to leave, or was prevented from leaving, from the time the stop began until the K-9 was deployed.

Moreover, shortly after the stop began, officers discovered the likelihood of an open arrest warrant for one of the passengers, Maurice Kevin Lewis. That single circumstance escalated the stop to a Terry stop with respect to Lewis. From that point forward, as the motion court aptly stated, “it was reasonable for the police officers on the scene to stop the processing of the traffic stop and concentrate their efforts on the apprehension of a person known to have an outstanding warrant.” The discovery of $741 on Lewis’s person raised further suspicion. Once the officers prepared to conduct the K-9 scan, there already was a reasonable, articulable suspicion to support a Terry stop with respect to Austin and the appellant, even before the positive alert.

In preparing for the scan, the officers had to remove the occupants from the vehicle for their ⁹⁶ safety. 5 In doing so, they saw in plain view a knife on the car floor between the appellant’s feet. Under the circumstances, a reasonable police officer would have taken further actions both to ensure his own safety and to investigate whether the appellant or his cohorts had other weapons or contraband. When the K-9 alerted to the presence of CDS, deputies arrested the driver (Austin) and searched him, uncovering CDS on his person. They then searched the vehicle and recovered the knife they previously had seen and a handgun.

As the motion court explained, We believe that reasonable and prudent persons, faced with the facts before these officers would conclude that the three individuals who were known drug users and sellers, out together at 10:00 p.m. at night, with one possessing substantial amounts of cash in his pocket, and the other having packets of CDS concealed under his hat were on a