Hippler v. State

CATHELL, Judge. This appeal arises from the conviction of appellant, Andrew Wayne Hippier, in a court trial, of possession with intent to distribute a controlled dangerous substance. The charges against Hippier resulted from his presence in an Anne Arundel County residence which was searched by police officers who had obtained a warrant, based upon probable cause to believe that the residence contained quantities of a controlled dangerous substance and items related to the distribution of a controlled dangerous substance. 1 Appellant was not a permanent occupant of the home, but was preparing to move there temporarily. He was installing tile in the basement of the residence when the warrant was executed. ³²⁸ According to the testimony of Detective Tabor, who made the arrest, upon entering the residence to execute the warrant he detected the strong odor of phencyclidine, more commonly known as PCP.

Detective Tabor entered the basement, observed Hippier, and advised him to “take a prone position against the wall” of the basement. When Hippier complied with this request, Detective Tabor noticed a red cap or top which he believed to be that of a small bottle, such as a vanilla extract bottle or a food coloring bottle, protruding from the right front pocket of Hippler’s pants. Tabor related at trial that, as soon as he saw the red cap of the bottle, he was “quite sure” that it was an extract bottle used to carry liquid PCP. 2 This observation, combined with the fact that he was in the house to search for PCP, and that the odor of that substance pervaded throughout the house, rendered Tabor “quite confident” that the bottle contained PCP. Based upon that belief, Tabor removed the bottle from Hippler’s pocket.

Hippier was not under arrest at the time the bottle was removed from his clothing, but was arrested soon thereafter. The contents of the bottle were analyzed and found to be PCP. Hippier was later charged in a two-count indictment of possession of a controlled dangerous substance and possession with intent to distribute a controlled dangerous substance. Appellant moved to suppress the seizure of the bottle, but the trial court denied that motion at the March 20, 1989 hearing.

The trial before the court on the charges against Hippier took place on May 2, 1989. Hippier conceded to the charge for possession of PCP, but argued that the evidence was insufficient to demonstrate possession with intent to distribute a controlled dangerous substance. Hippier testified that the PCP in the bottle was for his personal use. The court, however, determined that the evidence was sufficient ³²⁹ to warrant a conviction on the count for possession with intent to distribute a controlled dangerous substance.

Appellant was sentenced on August 10, 1989, to ten years imprisonment, the mandatory minimum sentence prescribed by Md.Ann.Code art. 27, § 286(c)(1) and (2), since the court found that he was a repeat offender even though he contended that the State had not sufficiently proved his alleged prior offense. Hippier raises three issues on appeal: 1. Prior to trial, did the court err in denying his motion to suppress? 2. At trial, did the court err in finding sufficient evidence of possession with intent to distribute? 3.

At sentencing, did the trial court err in finding that the State properly proved his previous conviction? We perceive no error on the part of the trial court with regard to any of these issues, and therefore we affirm. We address the issues in the order in which they were raised and supplement the facts we have previously set out as is necessary. Suppression of Evidence Preliminarily, we note that the officers executing the search warrant had the authority to detain Hippier and the others in the house.

The Supreme Court, in Michigan v. Summers, 452 U.S. 692, 706 , 101 S.Ct. 2587, 2595 , 69 L.Ed.2d 340 (1981), opined that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.’; In addition, the propriety of Detective Tabor’s search of Mr. Hippier for weapons is not questioned. At the hearing on the motion to suppress, defense counsel conceded the detective’s right to conduct a “pat down” search of Mr. Hippier for purposes of “safety and protection.” Appellant contends that the trial court erred in denying his motion to suppress evidence of the bottle containing ³³⁰ PCP which the police detective seized. He asserts that there was insufficient probable cause to justify the search and seizure. We disagree.

In the case at bar, Detective Tabor, an experienced police officer, proceeded to the residence to execute a warrant to search for and seize narcotics. Outside, he spoke with the person named in the warrant, whom Detective Tabor knew to have been involved with drugs. Upon entering the residence, Detective Tabor was confronted with a strong odor of PCP. These circumstances, coupled with his observation of the red top of a bottle, like those he knew to be used to contain PCP, protruding from the pants pocket of a person whom he was about to search for weapons, provided Detective Tabor with sufficient probable cause to remove the bottle from Hippler’s pocket under the Plain View Doctrine.

The doctrine of plain view was established by the Supreme Court in Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971). The elements necessary for a valid warrantless 3 seizure under the Doctrine, as set out in Coolidge , and as summarized in Texas v. Brown, 460 U.S. 730, 736-37 , 103 S.Ct. 1535, 1540-41 , 75 L.Ed.2d 502 (1983), are as follows: (1) The police officer must lawfully make an initial intrusion or otherwise properly be in a position from which he can view a particular area. (2) The officer must discover incriminating evidence inadvertently, which is to say, he may not know in advance the location of certain evidence or contraband and intend to seize it, relying on the plain view doctrine only as a pretext. (3) It must be immediately apparent to the police that the items they observe may be evidence of a crime, ³³¹ contraband, or otherwise subject to seizure.[ 4 ] The first element of a valid plain view seizure, a valid initial intrusion, is easily met in this case since the officers had obtained a warrant to enter the house.

Justice Stewart, writing in Coolidge , remarked: An example of the applicability of the “plain view” doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character. 403 U.S. at 466 , 91 S.Ct. at 2038 . The situation in the case at bar is analogous to that described by Justice Stewart. To fall within the scope of the plain view doctrine, Detective Tabor’s spotting of the bottle must have been inadvertent. The Random House Dictionary of the English Language 719 (Unabridged ed. 1983), defines the term “inadvertent” as “unintentional”.

Detective Tabor testified at the suppression hearing concerning the manner in which he came to discover the red bottle top protruding from Mr. Hippler’s pocket. Q Okay now when you got to the club section of the basement then, what, if anything, happened? A I — I saw that the person on the floor was already secured, and I observed Mr. Hippier and I advised him to take a prone position up against the wall which would have been on the west side of the resi — east side of the residence. ³³² Q Okay, what happened after that? A .

He did — at that point I looked down and I observed protruding from the top of his right hand pants, his pants appeared to be somewhat tight. The top, it would be like — if you can see, Your Honor— Q You might have to stand up. Yeah. COURT: Alright.

A He was standing. His pants were a little tight, maybe a little tighter than mine. It had like a square pocket and like from the top, just the very top I saw a small red cap about the size of a dime. Detective Tabor was not searching Mr. Hippier for drugs, he was “securing” him, or searching him for weapons, and in the process, he observed the tightness of the subject’s pants and the protruding red bottle top.

The discovery of the evidence, therefore, was inadvertent. The critical inquiry thus becomes whether Detective Tabor had the requisite probable cause for believing that the red bottle cap which he observed in Hippler’s pocket was evidence of a crime. The Supreme Court, in Texas v. Brown, 460 U.S. 730 , 103 S.Ct. 1535 , 75 L.Ed.2d 502 (1983), stated that probable cause is a flexible, common-sense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such belief be correct or more likely true than false.” Brown, 460 U.S. at 742 , 103 S.Ct. at 1543 (citation omitted).

The Court of Appeals, in Doering v. State, 313 Md. 384 , 545 A.2d 1281 (1988), also addressed the question of what constitutes probable cause as it relates to a warrantless arrest. Quoting Brinegar v. United States, 338 U.S. 160, 175-76 , 69 S.Ct. 1302, 1310-11 , 93 L.Ed. 1879 (1949), the Court in Doering stated: ³³³ “In dealing with probable cause ..., as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Doering, 313 Md. at 403 , 545 A.2d 1281 . The testimony at the suppression hearing took place as follows: COURT: Saw what kind of a cap?

A A red cap. COURT: A red cap. A Like the top of a bottle. I recognized the top of the cap.

Q Umhmm. A Being consistent with that of a[n] extract bottle. Q Okay, what, if anything, did you do then when you saw that red cap of the bottle? A As soon as I saw that, I was quite sure that’s what it was, the extract bottle, since I was there for the purposes of PCP, I pulled it from his pocket.

Q Okay. Were there any— COURT: How did you know it wasn’t extract? How did you know it wasn’t — he went to the store, the A & P store and bought himself some extract? A Considering I was there for the warrant, also considering the odor I smelled, [emphasis added] The trial judge, denying Mr. Hippler’s motion to suppress, ruled as follows: COURT: I’m going to deny your Motion to Suppress.

I really believe that with the smell of this odor of PCP the officer being knowing [sic] as an expert, knowing this smell and then seeing the top of the extract bottle, putting them together in his mind, he felt for sure that’s what it was and that in fact — well, forgetting about what it ultimately turned out to be, that he had certainly a probable cause. I am going to find that the search was valid. ³³⁴ Wé find no error in the trial court’s ruling. The circumstances surrounding. the issuance and execution of the warrant, combined with the odor of POP in the house, the type of bottle which Detective Tabor plainly observed protruding from Mr. Hippler’s pocket, and his knowledge and experience regarding narcotics investigations provided Detective Tabor with the requisite probable cause necessary to effect a valid seizure of the bottle under the plain view doctrine. The case at bar is distinguishable on its facts from several recent cases decided by this Court, the Court of Appeals and the Supreme Court in which probable cause has been found not to exist.

The Supreme Court, in Arizona v. Hicks, 480 U.S. 321 , 107 S.Ct. 1149 , 94 L.Ed.2d 347 (1987), addressed the application of the plain view doctrine. Hicks involved police officers who entered an apartment pursuant to a report that a gun had been fired through its floor, the bullet striking and injuring someone below. In addition to retrieving a ski mask and assorted weaponry, one of the officers observed some expensive stereo equipment, which seemed out of place in the otherwise squalid and sparsely furnished apartment. Suspecting the equipment to be stolen, he recorded the serial numbers, moving some of the equipment in order to gain access to the numbers.

He phoned his headquarters and confirmed that the equipment had been stolen in a recent armed robbery. He then seized the equipment immediately, without first obtaining a warrant. The Arizona trial court granted Hicks’ motion to suppress the evidence that had been seized, and the Court of Appeals of Arizona affirmed, both rejecting the State’s argument that the warrantless seizure was justified under the plain view doctrine. The Supreme Court affirmed the decision in a plurality opinion and addressed in detail the question of plain view, holding that probable cause is necessary to invoke the plain view doctrine.

Justice Scalia, writing for the majority, found that the moving of the equipment did constitute a search separate ³³⁵ and apart from that for the shooter. “It is clear ... that the search here was valid if the ‘plain view’ doctrine would have sustained a seizure of the equipment.” Id. at 107 S.Ct. 1153 . The Court went on to say that, “[t]here is no doubt that it would have done so if Officer Nelson had probable cause to believe that the equipment was stolen. The State has