Johnson v. State

MURPHY, Chief Judge. In the Circuit Court for Baltimore County, the Honorable John O. Hennegan convicted Ricardo I. Johnson, appellant, of (1) distribution of cocaine, (2) use of a firearm in relation to drug trafficking, and (3) unlawful wearing, carrying, or transporting of a handgun. 1 Appellant now argues that (1) the State should not have been permitted to introduce into evidence the incriminating tangible items seized from his person, (2) the State’s evidence was insufficient to establish his guilt of the “use ... in relation” offense, and (3) he should not have received separate sentences for the “firearm” and “handgun” convictions. These arguments present three separate questions for our review: I. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S MOTION TO SUPPRESS THE DRUGS AND THE HANDGUN SEIZED FROM APPELLANT’S PERSON SUBSEQUENT TO HIS ARREST?

II

WAS THE EVIDENCE INSUFFICIENT TO SUPPORT APPELLANT’S CONVICTION FOR USE OF A FIREARM IN RELATION TO DRUG TRAFFICKING? ²⁹³ III. DOES APPELLANT’S TWO-YEAR CONCURRENT SENTENCE FOR UNLAWFUL WEARING, CARRYING, OR TRANSPORTING OF A HANDGUN MERGE INTO HIS FIVE-YEAR SENTENCE FOR USE OF A FIREARM IN RELATION TO DRUG TRAFFICKING? For the reasons that follow, we answer “no” to each question, and shall therefore affirm the judgments of the circuit court. Factual Background Prior to trial, appellant’s counsel filed a motion to suppress the drugs and handgun seized from appellant’s person subsequent to his arrest.

Judge Hennegan was entitled to accept all, part, or none of the following suppression hearing testimony. 2 On February 28, 2001, several members of the Baltimore County Police Department conducted an investigation that resulted in appellant’s arrest. The investigators included Detective Allan Griffin, Corporal Steve Sunderland and Sergeant James Conaboy. During the investigation, they communicated with one another over police radios. The investigation began with a surveillance of pay phones located near the Crown gas station at the intersection of ²⁹⁴ Liberty and Brenbrook roads.

The officers knew that these phones were occasionally used by persons involved in drug transactions. At approximately 6:40 p.m., Detective Griffin observed a dark-colored Chevrolet pickup truck pull up to a gas pump at the station. One white male got out of the truck, walked up to one of the pay phones, dialed a number, promptly hung up the receiver, and waited by the phone. Based on his knowledge, training, and experience, Detective Griffin recognized this call as a call to a pager, which is a common method of contacting a drug dealer.

Shortly thereafter, the white male received a call on that phone. He spoke for approximately one minute, hung up, and walked back to the truck. He then drove out of the gas station and traveled in a westerly direction on Liberty Road. Detective Griffin followed the truck, which came to a stop on the parking lot outside of Tom’s Sports Bar.

At this point, two persons got out of the truck and walked into the bar. Detective Griffin, along with other members of the police department, maintained surveillance of the area. Approximately five minutes after the truck stopped in front of the bar, Corporal Sunderland observed a red Chevrolet Beretta pull onto the parking lot and park next to the truck. At this point, appellant got out of the Beretta, opened the hood of that vehicle, and stood near it for about one minute.

During this time period, appellant appeared to be looking around to see if anyone was looking at him. Appellant then opened the door of the Chevrolet truck, bent down, closed the door, walked back to the Beretta, and drove away. Some of the officers followed appellant’s vehicle. After appellant drove away from Tom’s Sports Bar, Corporal Sunderland observed the two occupants of the pickup truck come out of the bar and walk toward the truck.

Corporal Sunderland approached the two individuals, looked inside the driver’s side window of the truck, and observed a small bag of what appeared to be crack cocaine on the floor of the vehicle. He then placed the two individuals under arrest and informed the other detectives that he had done so. ²⁹⁵ Meanwhile, appellant drove to the parking lot of a nearby Giant Food store, pulled the Beretta into a parking space next to a blue Chevrolet station wagon, got out of the Beretta, lifted up the hood, and stood in front of the Beretta. At this point the occupant of the station wagon, later identified as Mark Lambert, got out of that vehicle and spoke with appellant for about one minute. Appellant then closed the hood of his vehicle and drove off.

Mr. Lambert returned to his vehicle and drove off. Sergeant Conaboy followed the Beretta and Detective Griffin followed the station wagon. Appellant pulled into an Exxon gas station. Mr. Lambert then pulled into the gas station, got out of the station wagon, looked in the direction of the Beretta, walked into the convenience store section of the gas station, and remained in the store for about five minutes.

He then returned to his vehicle and drove away. After following Mr. Lambert for a short distance, the officers decided to effect a traffic stop. Mr. Lambert, however, did not stop immediately and threw an object out of his vehicle before he came to a stop. Approximately 500 feet from where Lambert’s vehicle came to a stop, the officers discovered a white ziplock baggie containing a substance later tested and found to be crack cocaine.

The officers arrested Mr. Lambert and advised him of his Miranda rights. At this point, Mr. Lambert told the officers that he had bought a rock of crack cocaine from the individual in the red Beretta. The officers radioed this information to Sergeant Conaboy, and requested that he arrest appellant. Sergeant Conaboy’s role in the surveillance operation was to “stop and apprehend” the individual that the police suspected of dealing drugs, and he picked up the surveillance of the Beretta as it left the Giant Food store.

When appellant pulled into the Exxon station and stopped abruptly on the side of the Exxon lot, Sergeant Conaboy pulled in behind the Beretta, activated his emergency equipment, and “pinched the door, in essence, came up behind it and put [the] bumper [of his vehicle] right up towards the door of [appellant’s] vehicle.” He then walked up to the Beretta, identified himself, and told appellant to keep his hands up on the steering wheel and not ²⁹⁶ to move them. He also ordered appellant to produce a driver’s license and vehicle registration. Sergeant Conaboy told appellant that he had reason to believe that appellant was selling drugs in the area, and that other detectives were in the process of following and stopping subjects whom they believed had just purchased drugs from appellant. Sergeant Conaboy also stated that, in a moment or two he would make a determination as to what to do with appellant and that in the meantime they would sit and wait.

Sergeant Conaboy did not recall whether appellant asked if he was free to leave the scene, but stated that if appellant had asked to leave, he would not have been permitted to do so. At the point in time when he stopped appellant, Sergeant Cona-boy had not been told that drugs were recovered from any of the other vehicles under surveillance that evening. Approximately five to ten minutes after Sergeant Conaboy detained appellant, he learned from his colleagues that Mr. Lambert had been placed under arrest. At this point, he placed appellant under arrest and conducted a search incident to the arrest.

That search turned up a loaded nine-millimeter handgun in appellant’s left jacket pocket, and cocaine in appellant’s left interior breast pocket. Discussion I According to appellant, his motion for suppression of the items seized from his person should have been granted because (1) Sergeant Conaboy’s detention of appellant was an “arrest” rather than an “investigatory stop,” and (2) appellant’s suspicious behavior did not establish probable cause for an arrest. We disagree. A. Investigatory Stop v. Arrest Appellant contends that he was arrested because he was not free to leave. 3 It is true that, once appellant was told ²⁹⁷ to put his hands on the steering wheel of his vehicle, appellant was not free to leave.

That fact alone, however, does not establish that appellant was “arrested.” Terry v. Ohio, 392 U.S. 1, 21-22 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). A Terry stop is distinguishable from an arrest in three important respects: the length of the detention, the investigative activities that occur during the detention, and the question of whether the suspect is removed from the place of the stop to another location. Farrow v. State, 68 Md.App. 519, 526 , 514 A.2d 35 (1986) (citing Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983)). “In determining whether an investigatory stop is in actuality an arrest requiring probable cause, courts consider the ‘totality of the circumstances.’ ” In re David S., 367 Md. 523, 535 , 789 A.2d 607 (2002) (quoting United States v. Patterson, 648 F.2d 625, 632 (9th Cir.1981)). Under the totality of circumstances, no one factor is disposi-tive.

See Ferris v. State, 355 Md. 356, 376 , 735 A.2d 491 (1999). Appellant argues that, under the totality of the circumstances, he was arrested without probable cause. From our review of the totality of circumstances, we are persuaded that the stop in this case was a Terry stop, not an arrest. Appellant’s detention was brief, and he was not removed from the location at which he was detained.

Under the circumstances, appellant’s detention was entirely reasonable. 1. The Force (or lack of force) that Accompanied the Stop Appellant notes that the police cruiser was blocking a door of his vehicle and that he was required to identify himself. In State v. Rucker, 374 Md. 199 , 821 A.2d 439 (2003), however, the Court of Appeals held that a similar stop did not constitute an arrest: [The officer] parked his patrol car behind [appellant’s vehicle]. There was no vehicle occupying the space in front of ²⁹⁸ the [appellant’s vehicle] at the time.

As [the appellant] was getting into the driver’s side of the [appellant’s vehicle], [the officer] called to him in an attempt to get his attention, walked to him, and requested [the appellant’s] license and registration. [Appellant] asked, “what’s going on,” the [officer] just repeated his original request, and [appellant] subsequently complied. [The officer] was uniformed and armed, but his weapon was not drawn, and he “made no physical contact with [appellant].” Id. at 204 , 821 A.2d 439 (holding that the forceable stop at issue was an “investigatory stop” rather than an “arrest”). Citing Morton v. State, 284 Md. 526 , 397 A.2d 1385 (1979), appellant argues that he was arrested when Officer Conaboy instructed him to keep his hands on the steering wheel and not to move them. The Morton Court held, however, that the suspect was arrested when the officers removed him from a recreation center and placed him in a patrol car. Id. at 530 , 397 A.2d 1385 .

In Lee v. State, 311 Md. 642, 665-66 , 537 A.2d 235 (1988), the Court of Appeals held that ordering individuals to lay down on a basketball court did not transform an investigative stop into an arrest. In David S., swpra, the Court of Appeals held that the acts of handcuffing an individual and placing him on the ground for a brief time does not automatically convert an investigatory stop into an arrest. 367 Md. at 539 , 789 A.2d 607 . Until Sergeant Conaboy received information that appellant had been implicated by Mr. Lambert, appellant was neither removed from his car nor physically restrained in any way. The “degree of force” factor indicates that appellant was the subject of an investigatory stop rather than an arrest. 2.

Length of Detention Appellant argues that the five to ten minute period of time when he was required to remain in his car exceeded the scope of an investigatory stop. Appellant also argues that the stop amounted to an arrest because (1) “hypothetically” the stop could have lasted much longer, and (2) he would not have been allowed to leave even had he requested to do so. ²⁹⁹ We decline to speculate about what “hypothetically” could have happened, and shall confine our analysis to the facts in the hearing record. Appellant was stopped for no longer than ten minutes while Sergeant Conaboy waited for a report on the status of Mr. Lambert and the other suspected buyers with whom appellant had been observed. “A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.” Adams v. Williams, 407 U.S. 143, 146 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972) (citing Terry, 392 U.S. at 21-22 , 88 S.Ct. 1868 ). The method of investigation in this case was not unreasonable considering the series of events leading up to the stop.

Appellant wTas observed engaging in very suspicious activities at a variety of locations. Sergeant Conaboy stopped him only long enough to find out whether Mr. Lambert, who had just been observed meeting with appellant, had any relevant information. It was reasonable to detain appellant for a brief period of time, thereby ensuring that appellant would not escape. When Mr. Lambert told the police that appellant had just sold him drugs, appellant was immediately arrested.

The entire incident lasted less than ten minutes. 4 B. Validity of the Investigatory Stop 1. Reasonable Articulable Suspicion Appellant argues in the alternative that, even if the seizure was a Terry stop rather than an arrest, there was no reasonable articulable suspicion to support it. ³⁰⁰ The Fourth Amendment to the United States Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend.

IV

It is clear, however, that “the Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable.” Florida v. Jimeno, 500 U.S. 248, 250 , 111 S.Ct. 1801 , 114 L.Ed.2d 297 (1991). In Terry , the Supreme Court held that a police officer may stop and briefly detain a person for investigative purposes if the officer has reasonable suspicion, supported by articulable facts, that criminal activity “may be afoot.” 392 U.S. at 30 , 88 S.Ct. 1868 ; see also Quince v. State, 319 Md. 430 , 572 A.2d 1086 (1990). The “reasonable suspicion” standard has been defined as nothing more than “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981). While the reasonable suspicion standard is more than a “hunch,” it “is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence.” Illinois v. Wardlow, 528 U.S. 119, 123 , 120 S.Ct. 673 , 145 L.Ed.2d 570 (2000).

In evaluating the existence of reasonable suspicion, courts consider “the totality of the circumstances — the whole picture.” United States v. Sokolow, 490 U.S. 1, 8 , 109 S.Ct. 1581 , 104 L.Ed.2d 1 (1989). Furthermore, “the determination of reásonable suspicion must be based on commonsense judgments and inferences about human behavior.” Wardlow, 528 U.S. at 125 , 120 S.Ct. 673 . The stop and frisk in Terry took place after an experienced officer observed three men repeatedly pacing back and forth along a short stretch of the street, pausing each time to look into a particular store window. Suspicious that the men were preparing to rob the store, and concerned that they were armed, the officer confronted them and patted down their outer clothing.

It turned out that each was in fact armed. The Terry Court held that the stop was reasonable and that ³⁰¹ the evidence acquired as a result of the pat down was admissible. The officers had observed a series of acts, “each of them perhaps innocent in itself, but which taken together warranted further investigation.” Terry, 392 U.S. at 22 , 88 S.Ct. 1868 . In the case of David S., supra, a police officer observed the respondent and his companion approach an abandoned building.

When he saw the companion crouch down in front of the building while the respondent went behind the building, the officer made an investigative stop. 367 Md. at 534-35 , 789 A.2d 607 . The Court of Appeals held that, under these circumstances, the officer had reasonable articulable suspicion that the respondent and his companion were engaging in criminal activity. Id. On the other hand, in Ransome v. State, 373 Md. 99 , 816 A.2d 901 (2003), a majority of the Court of Appeals held that a police officer did not possess the requisite reasonable suspicion to stop and frisk Ransome based only on the fact that Ransome was in a high-crime area and had a bulge in his pocket. “Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible.

They are commonsense, nontechnical conceptions that deal with ‘the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” Ornelas v. United States, 517 U.S. 690, 695 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996) (citations omitted). Officers are permitted and encouraged to “draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002) (citations omitted). We agree with Judge Hennegan that the evidence presented at the suppression hearing justified a Terry stop. The police had observed very suspicious behavior and were able to enunciate facts that established a reasonable articulable suspicion that appellant sold drugs to two customers. “A factor that, by ³⁰² itself, may be entirely neutral and innocent, can, when viewed in combination with other circumstances, raise a legitimate suspicion in the mind of an experienced officer.” Ransome, 373 Md. at 105 , 816 A.2d 901 .

This series of events, when viewed collectively, established the validity of appellant’s initial seizure. 2. Detention v. Detentions Appellant also argues that there were two separate seizures, the first of which occurred when he was instructed to place his hands on top of the steering wheel, and the second of which occurred when he was required to remain in that position for the five to ten minute period of time before he was ordered out of his vehicle. Once the purpose of an investigatory stop has been fulfilled, the continued detention of an individual amounts to a second detention. 460 U.S. at 500 , 103 S.Ct. 1319 . We must therefore determine whether the stop was longer than necessary to effectuate its purpose.

Judge Hennegan found that the sergeant was telling [appellant] why he stopped him and checked his license and registration, and then sat and waited for information, which is similar probably to a traffic check, to see if there are any warrants or hits out for the Defendant____I think five to ten minutes is not an unreasonable period of time for further investigation under these circumstances because they knew that Lambert was going to be stopped very shortly and just right up the road, and to let him go would probably result in destruction of evidence. We agree with that analysis. Sergeant Conaboy stopped appellant after the team of surveillance officers observed suspected drug transactions involving appellant and the other individuals under surveillance. The sergeant approached appellant, requested identification, and told appellant that in moments, after a brief investigation, appellant would know his status.

Sergeant Conaboy was awaiting communication with ³⁰³ the other arresting officers to confirm Mr. Lambert had just bought drugs from appellant. 5 Upon receiving confirmation, Sergeant Conaboy immediately arrested appellant. The entire incident from the beginning of the stop to the formal arrest lasted no longer than ten minutes. It is clear that there are several investigative techniques which may be utilized effectively in the course of a Terry-type stop. The most common is interrogation, which may include both a request for identification and inquiry concerning the suspicious conduct of the person detained but the officer may also or instead conduct a non-search examination of the suspect’s person, car, or objects he is carrying, or may compare the suspect’s shoes with prints at the nearby crime scene....

Sometimes the officer will communicate with others, either police or private citizens, in an effort to verify the explanation tendered, to determine if certain property in possession of the suspect has been stolen, or to confirm the identification or determine whether a person of that identity is otherwise wanted. Or, the suspect may be detained while it is determined if in fact an offense has occurred in the area, a process which might involve checking certain premises or vehicles, locating and examining objects abandoned by the suspect or otherwise lawfully discovered, or talking with other people.... ³⁰⁴ Wayne R. LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 9.2(f) at 51-58 (1996)(footnotes omitted)(emphasis added). This Court has noted in the past that a brief detention in order to check for open warrants on a suspect is a legitimate