Jones v. State

BELL, Judge. Samuel Jones, Jr., the petitioner, was charged with possessing with intent to distribute crack cocaine seized from his person during a search conducted on December 16, 1993. He moved to suppress the evidence. A hearing on that motion was held in the Circuit Court for Anne Arundel County.

After that hearing, the matter having been held sub curia, the court granted the motion. Pursuant to Maryland Code (1974, 1995 Repl.Vol.) § 12-302(c)(3)(i) of the Courts and Judicial Proceedings Article 1 the State appealed that decision to the Court of Special Appeals. That court reversed and remanded the case for trial. State v. Jones, 103 Md.App. 548 , 653 A.2d 1040 (1995).

This Court, on the petitioner’s request, issued the writ of certiorari to review the propriety of the judgment granting the motion to suppress. We shall reverse the judgment of the intermediate appellate court. ⁴⁵² I. The motions court accepted the suppression hearing testimony of Officer Sean W. Ottey as to.the events leading to the petitioner’s arrest. 2 Consequently, we will set out only Officer Ottey’s version of the facts. 3 While patrolling an area of Annapolis known for its high level of drug activity, an “open air drug market,” Officer Ottey and Officer Rice noticed the petitioner and another man standing by themselves on the sidewalk near the intersection of Carver Street and Dorsey Avenue. After observing them briefly, the uniformed officers approached the two men, Officer Ottey taking the petitioner and Officer Rice the other individual. Officer Ottey informed the petitioner that he was in a known drug area and asked him why he was there.

Without waiting for a reply, Officer Ottey then inquired whether the petitioner had any drugs or guns on him, to which the petitioner answered “no.” At that point, Officer Ottey requested permission to “check” the petitioner and petitioner consented to be searched. Proceeding to pat the petitioner down, Officer Ottey felt a bulge when he reached the petitioner’s left front pants pocket and he asked the petitioner what it was. Instead of responding to the question, the petitioner revoked his consent to search. Notwithstanding that revocation, Officer Ottey reached into the Petitioner’s pocket and removed the source of the bulge, a package containing a substance which Officer Ottey recognized as crack cocaine.

Officer Ottey retained custody of the substance, which, as later analysis confirmed, was crack cocaine, but he did not arrest the petitioner at that time. That occurred several months later. ⁴⁵³ Focusing on his state of mind prior to the seizure, particularly as relates to the bulge he felt in the petitioner’s pocket, the State asked Officer Ottey what his perception of the bulge was at that time. Officer Ottey had earlier testified that he was familiar with how crack cocaine is packaged for street-level sales and that he had conducted pat-downs in the past in which he had recovered crack cocaine. He had also testified that he had been involved in 20 drug arrests that year, 90% of which involved crack cocaine.

Specifically, the State wanted to know, “What did you think it was?”. Officer Ottey responded, “When I squeezed it, prior to him revoking consent, I could feel the numerous rock-like substances in there, and I knew right then and there that I had crack cocaine or ... in his pocket.” (Emphasis added). The State continued the inquiry: “Based on your training and experience, was it readily apparent what it was, the nature of the substance?” In response, Officer Ottey said that it was, that, indeed, it was readily apparent to him that the substance was crack cocaine. Except for asking on redirect examination whether Officer Ottey had felt crack cocaine before, the State did not further delve into the basis for Officer Ottey’s assertion of knowledge and certainty.

On cross-examination, defense counsel sought to undermine Officer Ottey’s testimony regarding his ability to identify crack cocaine by touch. 4 Inquiring into the grounds for Officer Ottey’s asserted belief that the substance he felt in the Petitioner’s pants pocket was crack cocaine, he asked, “If ..., for example, Judge Thieme was standing in the hall, and he ⁴⁵⁴ ... provided you consent to search him, and you had felt in his pocket a similar item, would you have ... drawn ... the conclusion at that point that it was crack cocaine?” Officer Ottey replied, “[Y]es, sir.” Moreover, although he also conceded that “being in an open-air drug market did add to [the] conclusion [he] had drawn based on touch ... the feeling that I observed,” Officer Ottey left no doubt that location was not a critical factor in his identification. Responding to the question, “what is it about the object ... that led you to the conclusion that it was crack cocaine?,” he said, “[t]he texture of it, the way it felt.” Having reminded the officer that he had neither smelled nor seen the substance, the petitioner asked if there were other criteria that led him to conclude that it was crack cocaine. Officer Ottey indicated that it was “[j]ust the way it felt,” nothing else. At the conclusion of the hearing, the motions judge held the matter sub curia in order more carefully to read Minnesota v. Dickerson, 508 U.S. 366 , 113 S.Ct. 2130 , 124 L.Ed.2d 334 (1993), the “plain feel” case, upon which the State relied.

When he reconvened the hearing, he granted the petitioner’s motion to suppress, explaining: On December the sixteenth, nineteen ninety-three, Officer Ottey of the Annapolis City Police Department was on routine patrol in an area known as an open air drug market. And these are facts that I’m accepting. Officer Ottey approached the Defendant, asked him if he had any drugs or weapons, the Defendant replied that he did not. Ottey then asked if he could check.

The Defendant replied that he could. Ottey then patted down the Defendant. In the Defendant’s [left] pants pocket Officer Ottey felt a bulge. At this point, the Defendant requested the Officer to stop.

Officer Ottey testified, and I’m quoting, he immediately recognized [the bulge] to be crack cocaine. Despite the request that Officer Ottey cease, he seized the substance from the Defendant’s pocket. The Defendant was not arrested at the time. Now, there’s no question, and the State [concedes that the basis for the seizure was the probable cause issue not as ⁴⁵⁵ any Terry type of situation[ 5 ] or anything else under the ... plain feel doctrine....

Now, the problem is, and the Officer testified as an expert, and I accept him as an expert, but ... it’s not just a question of being an expert and coming in and saying the magic words like it was readily apparent would be the words from the Supreme Court____ I have to make my determination as to whether I’m going to accept the expert’s opinion based upon the facts upon which his opinion was based. And there are insufficient facts for me to accept that opinion [in] the record. For that reason, the Court will grant the Motion to Suppress.

II

The Court of Special Appeals, in a 2-1 decision, reversed the trial court’s judgment. The majority reasoned: The issue decided was the existence ... of probable cause on the part of the officer. The appellate review of such an issue calls for our own independent de novo determination of whether Officer Ottey had enough data to permit him reasonably to conclude that he had probable cause. In that regard, the historic fact of Officer Ottey’s conclusion, even if not its accuracy, is before us for our review.

It is our independent determination that 1) the presence of Jones on a corner in an “open air drug market”; 2) the detection of rock-like substances in Jones’s pocket; 3) the officer’s expert ability, based on his training and expertise, to recognize the feel of crack cocaine; and 4) the officer’s conclusion that the rock-like substance he felt was crack ⁴⁵⁶ cocaine was a legally sufficient basis to support the officer’s probable cause determination. Since the officer’s subsequent warrantless seizure of the crack cocaine was reasonable, the evidence should not have been suppressed. Jones, 103 Md.App. at 615 , 653 A.2d at 1073-74 . The dissenting judge perceived the issue to be an entirely different one: Although he accepted Officer Ottey as an expert witness, i.e., one who by training and experience is able to recognize crack cocaine by sight and by touch, Judge Thieme concluded that there had been presented insufficient evidence as to the extent of the officer’s training, experience or tactile acuity to persuade him, as trier of fact, that it was “readily apparent” to the officer that what he felt in Jones’s pocket while “patting him down” was crack cocaine.

Certainly, that determination was first level fact-finding, which, not being clearly erroneous, is binding on us. Md. Rule 8-131(c). Id. at 617 , 653 A.2d at 1074 (Bloom, J., dissenting). Interpreting the motions court as ruling that the State had not established the basis for Officer Ottey’s expert witness opinion, it concluded: What this case boils down to, once we defer to Judge Thieme’s finding that he does not accept the Officer’s assertion that it was readily apparent to him that what he felt was crack cocaine, is that the Officer’s seizure of the substance from appellee’s pocket was based on suspicion, not probable cause.

An experienced police Officer observed two men conversing on a street corner in a residential neighborhood, where drugs are sold with some degree of frequency. One of these men had something in his pants pocket that could have been crack cocaine. Because of the neighborhood, the Officer perhaps reasonably, suspected, that the substance was crack cocaine, and based on that suspicion, which does not amount to probable cause, he seized the substance. ⁴⁵⁷ Id. at 619 , 653 A.2d at 1075 . The dissent pointed out that deference to the trial court’s factual determination required that the trial court’s ruling on the motion to suppress be upheld.

The State’s brief in this Court adopts the Court of Special Appeals’ approach, de novo review of the trial court’s ruling. The State acknowledged, however, that the appropriate standard of review depends upon whether the motions judge found: (1) that, when Officer Ottey felt the substance in the petitioner’s pocket, he had no actual subjective belief that the substance was contraband or (2) that, while Officer Ottey did have a subjective belief that the substance was contraband, objectively, that belief did not amount to probable cause. The petitioner also offers two possible, though somewhat related, interpretations of what the motions judge did. First, he suggests that the motions judge determined, as a matter of credibility, that Officer Ottey only had a suspicion, not amounting to probable cause, regarding what was in the petitioner’s pocket.

The petitioner also asserts that the motions judge rejected Officer Ottey’s expert opinion because it was not supported by the reasons upon which it was based— the State failed to provide sufficient facts as a foundation for Officer Ottey’s testimony. Therefore, in the petitioner’s view, the Court of Special Appeals erred by not deferring to the motions court’s evidentiary findings.

III

When the question is whether a constitutional right, such as, as here, a defendant’s right to be free from unreasonable searches and seizures, has been violated, the reviewing court makes its own independent constitutional appraisal, by reviewing the law and applying it to the peculiar facts of the particular case. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990) (citing State v. Gee, 298 Md. 565, 571 , 471 A.2d 712 , cert. denied, 467 U.S. 1244 , 104 S.Ct. 3519 , 82 L.Ed.2d 827 (1984)). When the facts are in dispute, deference is paid to the trial court, that is, its findings of fact are ⁴⁵⁸ accepted unless they are clearly erroneous. In making the latter determination, the court must give “due regard to the opportunity of the trial court to judge the credibility of the witnesses.” Maryland Rule 8-131(c). 6 When the motion to suppress has been denied, the only relevant facts “are ... those produced at the suppression hearing, see Trusty v. State, 308 Md. 658 , 521 A.2d 749 (1987), which are most favorable to the State as the prevailing party on the motion.” Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22 (1990).

On the other hand, when the motion is granted, the evidence produced at the suppression hearing must be considered in the light most favorable to the defendant. Accepting these principles, the State submits that the motions judge, by applying the law of probable cause to the facts of this case, determined, as a matter of law, that Officer Ottey did not have probable cause to seize the crack cocaine from the petitioner’s pocket. It argues, therefore, that the Court of Special Appeals properly conducted de novo review of that ruling. 7 ⁴⁵⁹ In order for this argument to succeed, however, the State must demonstrate that the motions judge actually made a probable cause determination and did not, as the dissenting opinion in the intermediate appellate court opined, reject Officer Ottey’s testimony because the facts the State adduced failed to substantiate his opinion. The approach of the Court of Special Appeals’ majority was to label illogical both the motions judge’s analysis and the result he reached thereby.

It reasoned: Judge Thieme ... seemed to accept the truth of all of the premises that went into the building of a syllogism and then, inexplicably, found the conclusion invalid. He accepted fully the credibility of Officer Ottey. He accepted the historic facts of the ‘open-air drug market’ and of the detection of the rock-like substance in Jones’s pocket by Officer Ottey. He accepted Officer Ottey as an expert on the feel of crack cocaine, for that was the only issue on which Officer Ottey’s expertise had any possible relevance.

He accepted the fact that Officer Ottey concluded that what he felt was crack cocaine. Judge Thieme simply declined to accept the validity of Officer Ottey’s conclusion. In effect the decision was, 'I accept the officer’s expert ability to recognize crack cocaine when he felt it. He said that what he felt was crack cocaine, but I don’t buy it.’[ 8 ] Under this approach, a motions court that finds a witness, whom it has also accepted as an expert, credible with regard to the facts, necessarily must accept whatever conclusion that witness may draw from those facts. ⁴⁶⁰ In performing its fact-finding role, the trier of fact decides which evidence to accept and which to reject.

Therefore, in that regard, it is not required to assess the believability of a witness’s testimony on an all or nothing basis; it may choose to believe only part, albeit the greatest part, of a particular witness’s testimony, and disbelieve the remainder. Muir v. State, 64 Md.App. 648, 654 , 498 A.2d 666 (1985), aff'd, 308 Md. 208 , 517 A.2d 1105 (1986). Moreover, it is the trier of fact that decides to what, if any, weight the evidence adduced is entitled. And, having accepted a witness’s testimony as to the facts, it is the trier of fact that must draw the inferences reasonably deducible therefrom.

McMillian v. State, 325 Md. 272, 290 , 600 A.2d 430 (1992). Consequently, absent clear error in its fact-finding, an appellate court is required, in deference to the trial court, to accept those findings of fact. Maryland Rule 8-131(c). Furthermore, Rule 8-131(c) and its predecessors were “only intended to prevent manifest error;” they were not “intended, and will not be construed to permit [an appellate court] to reverse judgments merely because [its] conclusion on the record is different from that of the trial judge.” Lambert v. State, 196 Md. 57, 68 , 75 A.2d 327, 332 (1950).

As already indicated, the evidence adduced at the motions hearing is to be viewed in the light most favorable to the petitioner. So viewed, there are two interpretations of the trial court’s decision that establish that it is not clearly erroneous or founded on a faulty premise. First, the evidence supports the motions court’s conclusion that Officer Ottey did not provide any, not to mention an adequate, predicate as to how, or why, he was able to identify the substance in the petitioner’s pocket as crack cocaine. Second, based on the evidence before it, the motions court could have disbelieved Officer Ottey’s statement of his ability to identify crack cocaine on the basis of feel alone, i.e., it did not believe that what he felt in the petitioner’s pocket was readily apparent to the officer.

We shall address each of these possible interpretations in turn. ⁴⁶¹ IV. Concluding his oral opinion, the motions judge stated, “[TJhere are insufficient facts for me to accept [Officer Ottey’s] opinion [in] the record.” Thus, the motions judge seemed to determine that the evidence was