Levine v. State

WILNER, Chief Judge. Appellant was convicted in the Circuit Court for Anne Arundel County of possession of marijuana with intent to distribute (Count One), possession of marijuana (Count Two), and conspiracy to violate the controlled dangerous substance laws of Maryland (Count Three). Counts Two and Three were merged into Count One, and appellant was sentenced to incarceration for a year and a day. Her ⁵⁵⁷ convictions were based on the discovery of marijuana in a suitcase she had transported from Houston to Baltimore-Washington International Airport (BWI).

In this appeal, appellant alleges the following errors: “I. The [trial] court erred in denying appellant’s motion to suppress.

II

The trial court erred in merging the conspiracy count into the possession with intent to distribute count rather than granting a judgment of acquittal on the conspiracy charge.

III

The trial court erred in allowing the state to introduce evidence for which a proper chain of custody had not been established.” Finding no error, we shall affirm. I Motion to Suppress In a pre-trial “Omnibus Motion,” appellant asked, among many other things, that all evidence seized from her “at or about the time of the arrest” be suppressed “because such evidence was seized unlawfully, absent probable cause, and in violation of [her] Constitutional and other legal rights____” Essentially, what she sought to suppress was the suitcase, the marijuana found inside of it, and a statement made to police. The principal witness at the suppression hearing was State Trooper Leon Martin, who was assigned to the Drug Interdiction Unit of the State Police. On January 13, 1991, the Federal Drug Enforcement Agency (DEA) informed Martin that it had received information from the Houston police indicating that appellant and a male companion would each be bringing a piece of luggage containing a controlled dangerous substance by airplane from Houston to Baltimore.

Specifically, Martin was informed that the Houston police became suspicious when the pair purchased their tickets for cash just before the flight left, that police had their luggage scanned by a “drug detection dog,” and that ⁵⁵⁸ the dog “did alert as a positive reaction that there was a suspected CDS in both bags.” Apparently as a result of detaining the luggage for the dog sniff, it did not get on the flight taken by appellant but was put on the next flight, in the crew’s cabin, and arrived about an hour and a half after appellant’s plane. The Houston police gave the DEA a description of appellant and her companion as well as the baggage claim numbers. With this information, Trooper Martin, accompanied by one or two DEA agents, went to BWI to await the flight. They observed appellant and her companion at the baggage area.

When the pair realized that the luggage had not arrived, they filled out a claim form and then left the terminal. Martin and the DEA agent(s) followed appellant outside, stopped her, identified themselves, explained their purpose, and asked her name. Appellant responded that her name was “Singleton” and, at their request, presented them with an airline ticket bearing that name. She also handed over her baggage claim ticket, which bore the same numbers reported to the DEA by the Houston police.

When asked for more identification, appellant produced a Maryland driver’s license bearing her true name, Rhodalia Levine. 1 Trooper Martin kept the airline ticket and the baggage claim ticket, but returned the driver’s license to appellant. He then informed her of her rights pursuant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), and “asked her if she would escort us inside” to an office for further questioning. Once inside the office, appellant was presented with an advice of rights form, which she signed. She then signed a written statement, in which she admitted, in essence, to flying to Houston for the purpose of picking up a suitcase of marijuana to bring back to Baltimore.

Thereafter, appellant consented to a search of her suitcase upon its arrival at ⁵⁵⁹ BWI. To that end, she signed a form entitled “Consent to Search & Seizure.” 2 “[A] search conducted without the benefit of a warrant supported by probable cause is per se unreasonable under the [F]ourth Amendment, subject to only a few exceptions.” Gamble v. State, 318 Md. 120, 123 , 567 A.2d 95 (1989) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041, 2043 , 36 L.Ed.2d 854 (1973)). Searches conducted pursuant to an individual’s consent are such an exception; however, the consent must be voluntary and uncoerced. See id.

See also McMillian v. State, 325 Md. 272, 284-85 , 600 A.2d 430 (1992); Cherry v. State, 86 Md.App. 234, 240 , 586 A.2d 70 (1991). The trial court, in its review of the events of January 13, 1991, found that appellant’s statement and consent to search were voluntary. Appellant contends, however, that the voluntariness of her statement and her consent to search her suitcase was tainted by her illegal arrest. 3 We do not agree. “[Vjoluntariness is a question of fact to be determined from the totality of the circumstances.” Cherry, 86 Md.App. at 240-41 , 586 A.2d 70 (citing Schneckloth, 412 U.S. at 227 , 93 S.Ct. at 2047 and Gamble, 318 Md. at 125 , 567 A.2d 95 ). As an appellate court, we defer to the findings of fact of the trial court unless clearly erroneous.

Yet, we make our own independent evaluation of whether the conduct of law enforcement officers was reasonable in light of the Fourth Amendment. See, e.g., McMillian, 325 Md. at 281-82 , 600 A.2d 430 ; Cherry, 86 Md.App. at 240 , 586 A.2d 70 . ⁵⁶⁰ The trial court did not make any specific findings as to whether or when appellant was arrested. It simply found that there was “reasonable cause” and “probable cause” to detain appellant. Our own constitutional appraisal leads us to the conclusion that appellant was arrested when Trooper Martin first informed her of her rights and asked her to return to the terminal.

Trooper Martin testified that appellant was free to go before he informed her of her rights, and appellant testified that she did not feel she was free to go after she was so informed. Moreover, the trooper did not return appellant’s ticket or baggage claim. See, e.g., Florida v. Royer, 460 U.S. 491, 501-07 , 103 S.Ct. 1319, 1326-29 , 75 L.Ed.2d 229 (1983) (plurality opinion) (a Terry stop of the defendant escalated into an arrest where, after stopping the defendant in an airport and questioning him, the police retained his identification, his luggage, and a ticket for an airline flight he was about to board). Compare United States v. Mendenhall, 446 U.S. 544, 557-58 , 100 S.Ct. 1870, 1879 , 64 L.Ed.2d 497 (1980); Cherry, 86 Md.App. at 242 , 586 A.2d 70 .

While these factors cause us to conclude that appellant was in custody, they do not dictate the conclusion that she was unlawfully so. From the moment she arrived at BWI with her companion, appellant was under suspicion for, at the least, attempting and conspiring to bring a controlled dangerous substance into Maryland. See generally Md.Ann. Code art. 27, §§ 286, 286A, 287, and 290. The Houston police had provided local DEA authorities with a description of appellant, along with a report that a drug-sniffing dog had detected drugs in the suitcase she was carrying.

That information was forwarded by the DEA to the Maryland State police. The Houston Police Department is, of course, a major metropolitan law enforcement agency, and local authorities are entitled to rely upon information supplied by it. Clearly then, when Trooper Martin and the DEA agent(s) stopped appellant outside the airport and asked her for identification, they had a reasonable articulable suspi ⁵⁶¹ cion for doing so. See generally Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

Upon stopping appellant, Trooper Martin confirmed not only the name on the ticket as given by the Houston police, but also the baggage claim number. Appellant identified herself as “Singleton,” the name on her ticket, but, upon seeing appellant’s driver’s license, the trooper realized that the name was an alias. We are satisfied that, at that point, the trooper had probable cause to place appellant under arrest for the suspected attempt and conspiracy to commit a crime. For all the above reasons, we agree with the trial court’s finding that appellant was lawfully detained, although we go one step further and conclude that there was a lawful arrest.

Hence, we find that appellant’s consent was not tainted by the circumstances that preceded it. II Merger At the close of the State’s case and, again, at the close of all evidence, defense counsel moved for judgment of acquittal as to conspiracy. Defense counsel argued that there was no evidence to support a charge of conspiracy, and the prosecutor stated, “I will concede on that count.” The court responded that it would “enter the finding of guilty as to Count One [possession of marijuana with intent to distribute], merge the other two into Count One. Okay?” At that time, counsel lodged no objection.

Appellant now argues that, rather than merge the two charges, the trial judge should have granted defense counsel’s motion for judgment of acquittal on the conspiracy charge. Appellant complains that her “criminal record reflects a conviction for ... conspiracy to possess with intent to distribute marijuana when there was concededly no evidence produced to prove the conspiracy charge ... [and, therefore, the] conviction must be reversed.” Whether evidence is sufficient to support a conviction is a question of law, not of fact,