Herring v. State

SHARER, J. Appellant, Alton Herring, was convicted by a jury sitting in the Circuit Court for Baltimore City of possession of a regulated firearm after having been previously convicted of a disqualifying crime, and wearing, carrying, and transporting a handgun. 1 Appellant noted a timely appeal and presents three questions for our review: I. Did the trial court err in denying appellant’s motion to suppress?

II

Did the trial court err in refusing to amend the verdict sheet?

III

Did the trial court err in allowing the prosecutor to repeatedly misstate the definition of constructive possession during closing and rebuttal arguments? Finding neither error nor abuse of discretion, we shall affirm the judgments of the trial court. FACTUAL BACKGROUND On August 19, 2008, at 7:35 p.m., Detective Robert Himes, Detective Ernest McMillan, 2 and Sergeant Young 3 of the Baltimore City Police Department were traveling in an unmarked police car in the 2700 block of West Lanvale Street. Young was driving, Himes was seated in the front passenger seat, and McMillan was in the rear seat behind the driver. ⁶⁶ Himes was dressed in plain clothes, but was wearing a black vest with “police written in bold letters on the front and back.” In his trial testimony, Himes recalled that as they traveled on West Lanvale Street, he observed “a blue Chevy Monte Carlo parked approximately two feet away from the curb with its hazard lights on.” His attention was drawn to the vehicle because “it was sitting so far away from the curb in the travel lanes with its hazard lights on, we believed it was a disabled vehicle.” Himes recalled that Young pulled the unmarked patrol car in front of the Monte Carlo, “almost head-to-head.” The three officers got out of the unmarked vehicle, and Himes approached the passenger’s side of the Monte Carlo, while McMillan and Young approached the driver’s side.

Himes further recalled that it was still daylight and as he looked through the windshield, he observed four occupants in the vehicle. 4 The front seat passenger began to open the door, but Himes told him to remain in the vehicle. The passenger complied. Himes recalled that all the windows, save for the windshield, were tinted, and when he was beside the Monte Carlo, he could not see inside the vehicle. He stated that once the officers were standing next to the vehicle, McMillan “knocked on the window and asked the driver to put the windows down so we could look inside the vehicle.” Appellant, whom Himes identified as the driver of the vehicle, lowered the driver’s and passenger’s side windows at the same time.

As soon as the window was down, Himes saw “the butt of a handgun in the center console.” He yelled “gun, gun, gun[,]” moved away from the vehicle, and drew his weapon. Young called for backup, which arrived in two to three minutes. Once additional officers arrived on the scene, the four occupants were removed from the Monte Carlo. Himes also testified that all four occupants of the Monte Carlo “were within hand’s reach of the gun[,]” although he did ⁶⁷ not see any of the occupants touch or hold the gun.

He added, however, that due to the way in which the gun rested in the center console, appellant had a “slight advantage” over the other occupants in the ability to reach the gun. McMillan, too, observed the Monte Carlo “probably maybe two feet away from the curb, illegally parked, with the hazards blinking!!]” When he got out of the unmarked patrol car, his badge was displayed on his shirt. When he approached the driver’s side door, the windows were still closed, so he “tapped on the driver’s window and told him to roll the window down.” In court, McMillan identified appellant as the driver of the Monte Carlo. Appellant was also the owner of the vehicle.

McMillan stated that as soon as appellant lowered the windows, he saw “the butt of a handgun sticking out of the front console.” He also yelled “gun” multiple times, and he and the other officers drew their weapons. McMillan did not see the gun in the hands of any of the vehicle’s occupants. After backup officers arrived and the occupants were removed from the Monte Carlo, McMillan searched the vehicle. From the glovebox, he recovered $200 in U.S. currency.

He also recovered the handgun, which was loaded. A photo of the handgun as it sat in the center console was admitted into evidence. At trial, the parties entered into the following stipulations: (1) the handgun was a .32 caliber Smith and Wesson long revolver; (2) the handgun was test fired and found to be operable; (3) the gun met the definition of “handgun” in Md. Code (2002), Criminal Law (Crim.Law) § 4-201; (4) the gun was processed for fingerprints, but “there were no suitable latent prints found on the handgun”; and (5) appellant “has been convicted of a crime for which [he] is prohibited from possessing a regulated firearm under the laws of this State.” DISCUSSION I. Suppression Appellant contends that the trial court erred in denying his motion to suppress. We review that denial based solely on ⁶⁸ the evidence developed at the suppression hearing.

See Bost v. State, 406 Md. 341, 349 , 958 A.2d 356 (2008) (“In reviewing the ruling on a motion to suppress evidence, we consider only the evidence contained in the record of the suppression hearing.”) The evidence presented at the suppression hearing was as we have set out, above. McMillan recounted for the suppression court his observations of the events of August 19, 2008, at 7:35 p.m., which ultimately led to the charges against appellant and the other occupants of the vehicle. At the point at which McMillan told the suppression court of the initial contact with appellant’s vehicle, he said: [We] got out of our vehicle — well, got out the vehicle, walked towards the car and once we got towards the car it was — you could see from the front view there was four occupants in the vehicle. Got beside the vehicle, they still had the windows up.

Tapped on the window and told them to roll the windows down. Once we got out of our vehicle, badges were displayed showing that we was police. Because the side windows on the Monte Carlo were tinted, and McMillan could not see through the window, he told the driver to lower the windows. He recalled that the driver and front seat passenger lowered their windows at the same time.

Once the window was down, he could see “in clear view, ... the handle of a handgun sitting in the front compartment[,]” that is, in the center console between the driver and front seat passenger. McMillan made an in-court identification of appellant as the driver of the Monte Carlo. McMillan testified that upon seeing the gun, he yelled “Gun! Gun!” He and the other officers drew their weapons and ordered the occupants of the Monte Carlo to raise their hands.

The occupants complied with the officers’ orders. They called for backup, which arrived in two to three minutes. Once backup was on the scene, the officers removed the occupants of the Monte Carlo, and McMillan searched the vehicle. The search yielded the following items: (1) a “hand rolled cigar” that contained suspected marijuana from the area between the ⁶⁹ front passenger’s seat and the center console; 5 (2) a dollar bill with “a powdered substance” from a “pouch” located on the back of the passenger seat; and (3) $200 in U.S. currency from the glove box.

On cross-examination, McMillan testified that when he approached the driver, he sought “to investigate the vehicle, why was it illegally parked.” When asked his basis for saying that the Monte Carlo was illegally parked, he responded: “Based that it was too far in the middle of the street.” 6 He added that the Monte Carlo was “[m]ore than ... two feet from the curb.” No citation was issued to appellant for the parking violation. In denying appellant’s motion to suppress, the trial court stated, in part: Now, in this particular case, there is no stop. The vehicle is already immobile. All the police do, because of the unorthodox way in which the car is situated — not parked at the curb, out in the street with the hazard lights flashing— they choose to investigate it.

Number one, perhaps, to just tell the people to move on. Number two, perhaps, to get a uniformed officer to come along and write them a citation. Or, perhaps, three, to aggressively look for guns and drugs and seeing that they have an opportunity ... their investigative opportunity is not contrived, or not failure to specify any violation of the law. So, the question here is, can police officers get out of their vehicles and walk up to a non-moving vehicle and make observations that don’t detain anybody because here the Officer testified that he knocked on the window to get the ⁷⁰ driver’s attention and, as soon as the window opened, he saw the gun, at which point, he had probable cause to arrest everybody that was in close proximity to the gun?

In a way you can analogize this case to the knock and talk case, Scott v. State, [ 366 Md. 121 , 782 A.2d 862 (2001),] where the Court of Appeals found there was no violation of the Fourth Amendment to knock on people’s doors in an effort to have them come speak to them in order to see what probable cause unfolds in that brief encounter. I find as step one, or phase one, that parking a car with hazard lights on, away from the curb, allows the police, as part of the community caretaking function, to at least inquire of the motorist why he’s there, and in that inquiry it’s permissible to ask him to roll down his window, at that point — which is like opening the door of the home, or the hotel room. At that point, if the officers observed something that gives them, either a reasonable suspicion to detain the people further or to make an arrest, that occurs. I find that speaking to the driver of a stopped vehicle who has his hazard lights on as to why he’s there, does not violate the Fourth Amendment.

Then, the question becomes, if he can stand there, if he can speak, if you ask him to open his window, do you then develop probable cause to arrest? So, as far as legally approached, because it was stopped by the driver’s volition, not by the officers, the officer had the reasonable suspicion because of the position of the car and the hazard lights to ask that the tiny step of rolling down the window occur. The officer sees the gun ... on the console, within the close reach of all four occupants, and in plain view of all four occupants. And regardless of how a jury would find, whether or not they exercised dominion and control for purposes of knowingly transporting a handgun in a vehicle, it’s clear that the officer had probable cause to believe that all four of them ⁷¹ jointly and constructively possessed the handgun, for purposes of arresting them. [T]his particular gun, upon its observation, provided probable cause to arrest all four occupants.

Appellant claims that he was seized when McMillan tapped on the car window and told the occupants to roll down the windows; that the seizure was not supported by reasonable and articulable information; thus, he posits, the suppression court erred in denying his motion. He asserts that the officers lacked objective, specific, and articulable facts to show that, at that point, “any of the car’s occupants appeared to be sick, in distress, or in need of emergency assistance or that the car appeared to be functioning improperly.” According to appellant, in the absence of such facts, or any evidence that the car was impeding traffic, the seizure could not be justified under the community caretaking function. Appellant further asserts that “the alleged parking violation was simply a pretext for investigating the occupants and contents of the car.” Even if the car were illegally parked, he argues, the officers could have issued a parking citation, or asked him to move the car or park closer to the curb. He notes that McMillan could have issued a parking citation without attempting to gather information from appellant, or any of the occupants because parking citations are normally left on the vehicle’s windshield.

Appellant concludes that because the seizure was unlawful, the fruits of that seizure should have been suppressed. The State responds that appellant was not seized when McMillan tapped on the car window and asked that it be lowered, and relies on the court’s finding that McMillan was entitled to “ask” the driver to lower the window without a seizure having occurred. The State also notes that defense counsel, during cross-examination of McMillan, and argument on the motion, repeatedly stated that McMillan had “asked,” rather than commanded, appellant to lower the windows. The State contends that we should credit the interpretation ⁷² adopted by the motions court and defense counsel, rather than rely on appellant’s interpretation of McMillan’s testimony.

The State adds that, to the extent there is any ambiguity, the standard of review favors this Court’s adoption of the State’s interpretation. The State thus asserts that because appellant was not seized, the trial court committed no error in denying his motion to suppress. The State continues that even if appellant were seized, the officer’s actions were supported by reasonable, articulable suspicion. According to the State, McMillan had reasonable, articulable suspicion to approach the car because of the way it was parked, away from the curb, a violation of Md. Code (1977, 2009 Repl.

Vol.), Transportation (“T.A.”) § 21-1004(a). The State also rebuts appellant’s “on the windshield” suggestion, because T.A. § 26-203 requires the police to deliver the citation personally unless the vehicle is unattended. Finally, the State asserts that the court correctly determined that the officers acted reasonably in accordance with their community caretaking function. The State argues that under this function, the officers’ actions must be supported by specific and articulable facts to justify their reasonable belief that the occupants of the vehicle needed aid, or that the automobile needed to be impounded or inventoried.

The State contends that because the car was parked two feet from the curb with its hazard lights flashing, the officers could have reasonably believed that the driver or a passenger may have needed assistance, or that the vehicle was not functioning properly. Of course, the officers could not have made such an inquiry without having the ability to speak to appellant, which still required the lowering of the tinted window. Once the window was lowered, the gun was in plain view, changing the scenario from a potential motor vehicle violation to a weapons violation. Standard of Review In reviewing the ruling on a motion to suppress evidence, we view the facts in a light most favorable to the ⁷³ State as the prevailing party on the motion.

State v. Collins, 367 Md. 700, 707 , 790 A.2d 660 (2002). We also extend great deference to the suppression court’s findings of fact and will not disturb those findings unless clearly erroneous. Byndloss v. State, 391 Md. 462, 477 , 893 A.2d 1119 (2006). Finally, “[although we extend great deference to the hearing judge’s findings of fact, we review, independently, the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law and, accordingly, should be suppressed.” Laney v. State, 379 Md. 522, 533-34 , 842 A.2d 773 (2004) (citations omitted).

The Fourth Amendment to the Constitution of the United States, made applicable to the States through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 655 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), guarantees, inter alia, “Ltjhe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” “When an automobile and its occupants are stopped by police, the resulting detention constitutes a ‘seizure’ within the meaning of the Fourth and Fourteenth Amendments to the federal constitution, ‘even though the purpose of the stop is limited and the resulting detention quite brief.’ ” In re Albert S., 106 Md.App. 376, 392 , 664 A.2d 476 , (1995) (quoting Little v. State, 300 Md. 485, 493 , 479 A.2d 903 (1984)). “An automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996); see also Ferris v. State, 355 Md. 356, 369 , 735 A.2d 491 (1999) (“ordinarily ... a [traffic] stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation”). In Whren , the Court concluded that the constitutional reasonableness of traffic stops did not depend on the actual motivations of the officers involved and that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” ⁷⁴ Whren, 517 U.S. at 813 , 116 S.Ct. 1769 ; see also Pryor v. State, 122 Md.App. 671, 679 , 716 A.2d 338 (1998) (“Under Whren, the law enforcement officer who observes a traffic violation may stop the violator, even though the officer does so out of curiosity as to whether (or in the hope that) the stop will lead to the discovery of other incriminating evidence.”) (citations omitted); Whitehead v. State, 116 Md.App. 497, 500 , 698 A.2d 1115 (1997) (“In Whren, ... the Supreme Court held that, as long as the police could have stopped the driver for a traffic violation, it is inconsequential that the police actually stopped the driver to investigate another offense.”) (emphasis in original; citation omitted). Here, we proceed, arguendo, from the assumption that appellant was seized when McMillan tapped on the driver’s side window and told appellant to roll down the window.

Although the trial court found that McMillan asked appellant to lower the window, and defense counsel stated that the detective had “asked” appellant to lower the window, McMillan’s testimony was unequivocal that he “told” appellant to roll down the window. The trial court found that the caretaking function applied and that reasonable articulable suspicion was present, but in our independent application of the law to the facts of this case, we conclude that McMillan’s conduct amounted to a Whren stop. While we are satisfied that the record supports the suppression court’s ruling, we are equally satisfied that the conduct of the officers can just as easily be justified as a Whren stop. Our research has not revealed a Maryland case that has applied Whren in the context of a parking violation.

Nonetheless, other jurisdictions have done so. See Flores v. City of Palacios, 381 F.3d 391, 402-03 (5th Cir.2004) (parking violation gave officer authority to conduct stop under Whren), United States v. Hughes, 606 F.3d 311, 320 (6th Cir.2010) (recognizing that Whren applied where officer observed defendant violate parking laws, but remanding case to district court for determination of whether officer knew or reasonably believed that defendant was violating law by parking to obstruct ⁷⁵ traffic); United States v. Choudhry, 461 F.3d 1097, 1101-4 (9th Cir.2006) (“parking violation alone provided the officers with a sufficient basis to conduct an investigatory stop of ... vehicle”; Whren applied because police officers were authorized to enforce civil parking violations); Mitchell v. United States, 746 A.2d 877, 886 (D.C.2000) (Parking violation gave officer authority to stop under Whren . “It is immaterial for Fourth Amendment purposes that the infraction in question was not a moving violation.”). In addition, in Whren , the Supreme Court declined to hold that only certain types of traffic violations could justify a stop while others might not. The Court wrote: Petitioners urge as an extraordinary factor in this case that the “multitude of applicable traffic and equipment regulations” is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop.

But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as petitioners would have us do, which particular provisions are sufficiently important to merit enforcement. For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure. Whren, 517 U.S. at 818-19 , 116 S.Ct. 1769 .

McMillan testified that he observed a violation of the vehicle laws because the Monte Carlo was parked more than twelve inches from the curb. See T.A. § 21-1004(a): Manner of parking generally. — Except as otherwise provided in this section, a vehicle that is stopped or parked on a two-way roadway shall be stopped or parked parallel to the ⁷⁶ right hand curb or edge of the roadway, with its right hand wheels within 12 inches of that curb or edge of the roadway. The trial court credited that testimony concerning the position of the Monte Carlo in the street. Moreover, police officers are authorized to enforce all vehicle laws, including parking violations.

See T.A. § 26-201(a)(1): Authority of police officer to charge. — A police officer may charge a person with a violation of any of the following, if the officer has probable cause to believe that the person has committed or is committing the violation: (1) The Maryland Vehicle Law, including any regulation adopted under any of its provisions.... We find those authorities to be persuasive. We believe a parking violation to be at least the functional equivalent to the stop of a moving vehicle in violation of the motor vehicle laws. That, we conclude, comports with Whren and its progeny, and supports the denial of appellant’s motion to suppress.

We find no error.

II

The Verdict Sheet Appellant next asserts that the trial court erred in refusing to amend the verdict sheet, which provided in relevant part: Do you find that the defendant, ALTON HERRING, committed the following on or about August 19, 2008 in the 2700 block of W. Lanvale, Baltimore, Maryland: Count 1 Having been previously disqualified, did possess a regulated firearm, to wit: .32 caliber Revolver? Not Guilty_Guilty_ Count 4 Wear, carry, and transport a handgun, to wit: .32 Caliber Revolver upon and about his person? Not Guilty_Guilty_ After the close of all the evidence, but before the trial court instructed the jury, defense counsel asked the court to amend the verdict sheet so that “it simply be numbered one and