McDowell v. State

WOODWARD, Judge. In the Circuit Court for Queen Anne’s County, appellant, Ernest James McDowell, was charged with eight counts of narcotics-related offenses arising from the seizure of heroin and drug paraphernalia following a routine traffic stop on ⁶⁷¹ December 20, 2005. At a motions hearing, appellant moved to suppress the evidence seized during the traffic stop and the statements that he made to the police. At the conclusion of the hearing, the judge took the case under advisement and, thereafter, issued a written opinion denying appellant’s motion to suppress.

Appellant entered into an agreement with the State to proceed on an agreed statement of facts as to one count of unlawfully bringing a controlled dangerous substance into the State. The trial judge found the agreed facts sufficient to establish a factual basis for the charge and entered a verdict of guilty. On November 29, 2006, appellant was sentenced to 20 years’ incarceration. The State entered a nolle pros to the remaining counts.

This appeal followed. The sole issue on appeal is whether the circuit court erred in denying appellant’s motion to suppress the physical evidence. Finding no error, we shall affirm the judgment. BACKGROUND On August 16, 2006, the hearing on the motion to suppress was held.

Trooper Jeremiah Gussoni of the Maryland State Police, Centreville Barrack, was the only witness to testify. Based on his testimony, the following facts were adduced. On December 20, 2005, at 11:40 p.m., Trooper Gussoni was traveling on Route 301 southbound in Queen Anne’s County, Maryland when he observed a Chevy pickup truck driving erratically. Trooper Gussoni testified: I observed that the vehicle would be [sic] traveling in lane one, the fast lane, would go across the edge line, back over the center line, the divided white line, into lane two, across the edge line, back into lane one; made several erratic moves like that.

At one point, two vehicles actually had to take evasive maneuvers to keep from being struck. I paced the vehicle about a half mile. [It] [w]as actually traveling down the center of both the lanes. I then activated my emergency lights and initiated a traffic stop on the vehicle. ⁶⁷² The vehicle pulled over onto the right-hand shoulder of Route 301, a short distance before the 101 mile marker. It was very dark outside, and Trooper Gussoni described the area as “poorly lit.” Trooper Gussoni observed two individuals in the vehicle, a driver and a front-seat passenger.

When Trooper Gussoni approached the stopped vehicle, he advised the driver of his name and the reason for the stop. The driver apologized, explaining that the reason for his erratic driving was that he was tired. The driver identified himself as Hugh Collins Hines and appellant as his passenger. Appellant stated that it was his vehicle and that he was not carrying any identification.

During the stop, Trooper Gussoni observed that both Hines and appellant were nervous. In particular, Trooper Gussoni noticed that appellant, who was “staring straight, wouldn’t look at me, was just—just appeared to me to be out of it.” 1 Trooper Gussoni returned to his vehicle and initiated a driver’s license check on the status of Hines’s license as well as a “check on both men.” While sitting in his vehicle, Trooper Gussoni could see into appellant’s vehicle, which was illuminated by the trooper’s “multi-patrol vehicle spot light.” Trooper Gussoni saw appellant “bending down, bending over. I could see him twisting his body. He made several movements like that.

At that point, appearing that he might have been retrieving a weapon, I requested backup,” which was approximately 15 to 20 minutes away. Trooper Gussoni exited his patrol car, “went to the rear of [his] vehicle as not to cross [the vehicle’s] high beam light,” and walked up to the passenger side of the stopped pickup truck. Trooper Gussoni “stood just behind the passenger side window,” where he “observed [appellant] reaching underneath his seat and then behind his seat into a gym bag.” The gym bag was “a standard gym bag, two and a half feet by a foot ⁶⁷³ and a half’ and “undoubtedly” large enough to hold a weapon. Trooper Gussoni testified: At that point, I knocked on the window and spoke with [appellant].

I asked him what he was reaching for in the bag. I observed that the driver was now smoking a cigarette. [Appellant] had advised me that he was looking for cigarettes. I said, well, [appellant], are there any cigarettes in the bag and he said, well, no. I said what are you doing going into that bag.

Again, figuring he had some type of weapon in there. Appellant’s nervous movements made Trooper Gussoni fearful that, based on his training at the State Police Academy, appellant had a weapon. Trooper Gussoni described appellant’s movements as “indicative of someone trying to hide an item or retrieving a weapon or hiding a weapon.” Trooper Gussoni elaborated: “A normal person is not going to reach underneath a seat, reach behind his seat into a bag and, then, when you ask about his [sic] contents, he is quickly moving away from that bag.” Because of his belief that “there was a weapon in the bag or [appellant] had secreted one,” Trooper Gussoni asked appellant to exit the vehicle and bring the bag with him. Hines remained in the driver’s seat while Trooper Gussoni directed appellant to “come to the rear of the vehicle, along with the bag.” When asked “Why did you have [appellant] bring the bag out [of the car]?,” Trooper Gussoni responded: “[F]rom the initial point of the traffic point [sic] how [appellant] was acting, the movements into the bag.

I believe he had placed a weapon in there. It would be foolish of me to leave a bag with a weapon with another person in a vehicle with me outside.” Trooper Gussoni further explained: “I was going to search the bag for a weapon. I was going to make sure there wasn’t a gun in there or a knife or something that would harm me.” When appellant reached the rear of the vehicle, Trooper Gussoni expressed to appellant his fear that appellant was retrieving a weapon or hiding a weapon in the bag. Appellant responded: “[N]o, there’s no weapons in there,” after which ⁶⁷⁴ Trooper Gussoni asked appellant to open the bag.

Appellant opened the bag “extremely wide from the top and the sides,” and Trooper Gussoni observed several prescription bottles, personal hygiene items, clothing, used syringes, and a torn plastic baggy containing white powdery residue. Trooper Gussoni described the syringes: “You could tell from the syringes that they had been used. Some were partly drawn back. There was dry blood in there—what appeared to be dried blood at that point[.]” Based on his training and expertise, Trooper Gussoni believed that the torn baggy was drug paraphernalia containing either cocaine or heroin, because “[tjhose are drugs that are heavily ... injected into the body.” When backup arrived, Trooper Gussoni placed appellant under arrest and performed a search incident to arrest of appellant’s person and the pickup truck.

Several torn plastic baggies of powdery residue were found in the front pocket of appellant’s jeans. Recovered from the vehicle were several torn plastic baggies, a spoon with residue on one side and burn marks on the other side, a syringe left in the glove box, 20 packages of mannite, an agent commonly used for cutting narcotics, and numerous bloody towels. The gym bag was transported to the police barracks where it was searched further. Trooper Gussoni found two knotted plastic baggies containing 55.5 grams of a brownish substance, later determined to be heroin.

At the conclusion of the hearing, the motions judge took the case under advisement and, on September 7, 2006, issued a written opinion denying appellant’s motion to suppress the physical evidence and the statements that he made to the police. 2 In a thorough and well-reasoned opinion, the motions court stated, in pertinent part: ⁶⁷⁵ Trooper Gussoni had reasonable articulable suspicion that [appellant] was armed and dangerous, thereby allowing him to conduct a frisk of [appellant], and of the gym bag. Trooper Gussoni described that at the time of the stop it was dark, late at night; the Trooper was conducting a traffic stop whereby he received an out of state driver’s license from the driver who did not own the vehicle; the passenger in the right front passenger seat owned the car but was not driving it; the same passenger seemed “out of it”; [appellant] was making furtive gestures towards the rear seat of the car, and the gym bag was in the rear seat. [Appellant] was reaching for it during the traffic stop, and the bag was large enough to hold a handgun. These are not the inchoate, unparticularized facts present in Derricott [v. State, 327 Md. 582 , 611 A.2d 592 (1992) ] or Payne [v. State, 65 Md.App. 566 , 501 A.2d 484 (1985) ]. The Trooper here observed what he considered furtive gestures, suspicious activity by the passenger, in particular, while effectuating the stop and attempting to obtain information from and about the driver and passenger, which led him to believe that [appellant] possessed a weapon which might have harmed him.

As in Matoumba [v. State, 162 Md.App. 39 , 873 A.2d 386 (2005) ], Trooper Gussoni acted as a reasonably prudent man in the circumstances and was warranted in the belief that his safety was in danger. Upon re-approaching the car, on the passenger side, he observed [appellant] reaching for the bag. [Appellant] indicated, when questioned about the bag and his activities, that he wanted a cigarette but stated that there were none in the bag. It was then that the officer had [appellant] exit the vehicle with the bag. “When a police officer lawfully conducting a protective search reasonably believes a gun is concealed in the detainee’s bag, the officer remains vulnerable and in danger if the ⁶⁷⁶ bag is returned and the detainee released at the conclusion of the investigative stop. It would be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.” Jordan [v. State, 72 Md.App. 528 , 531 A.2d 1028 (1987) ].

Quite similarly, if Trooper Gussoni had taken a different course of action and allowed [appellant] to reenter the vehicle without further investigation into what he believed contained a weapon, the threat would not have been neutralized. * * * The Trooper’s order to [appellant] that he get out of the vehicle and for him to bring the bag with him was a protective ‘frisk’ of the passenger and the item, specifically narrowed in. scope to the specific bag which the Trooper believed contained the weapon. The Court finds the testimony of the Trooper fully credible. Consequently, the evidence obtained from [appellant’s] gym bag and from any searches of [appellant’s] person or automobile ... will not be suppressed. On October 5, 2006, appellant entered into an agreement with the State to proceed on an agreed statement of facts as to one count of unlawfully bringing a controlled dangerous substance into the State.

At a hearing on October 10, 2006, the judge found that the agreed facts were sufficient to establish a factual basis for the charge and entered a verdict of guilty. On November 29, 2006, appellant was sentenced to 20 years’ incarceration. The State entered a nolle prosse to the remaining counts. Appellant timely noted this appeal. ⁶⁷⁷ STANDARD OF REVIEW In Hoerauf v. State, 178 Md.App. 292, 306 , 941 A.2d 1161 (2008), we recently discussed the appropriate standard for reviewing the denial of a motion to suppress: When reviewing a circuit court’s disposition of a motion to suppress evidence, we “consider only the facts and information contained in the record of the suppression hearing.” Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129 (2007). “ ‘[W]e view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion,’ ” in this case, the State.

Owens v. State, 399 Md. 388, 403 , 924 A.2d 1072 (2007) (quoting State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003)). We defer to the trial court’s factual findings and uphold them unless they are shown to be clearly erroneous. Id. We also make our “‘own independent constitutional appraisal,’ ” by reviewing the relevant law and applying it to the facts and circumstances of this particular case.

Longshore, 399 Md. at 499 , 924 A.2d 1129 (quoting Jones v. State, 343 Md. 448, 457 , 682 A.2d 248 (1996)). DISCUSSION Appellant maintains that the search of the gym bag was unlawful because it was “conducted without a warrant, without probable cause, and without authority under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 [ ] (1968) ... since there were no facts to suggest that [appellant] was armed.” Consequently, appellant contends that the motions court should have suppressed the physical evidence. We disagree. The Fourth Amendment to the United States Constitution 3 is made applicable to the State of Maryland through ⁶⁷⁸ the Due Process Clause of the Fourteenth Amendment, see Mapp v. Ohio, 867 U.S. 643 , 655, 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961); Owens v. State, 322 Md. 616, 622 , 589 A.2d 59 (1991), and “protects against unreasonable searches and seizures, including seizures that involve only a brief detention.” Stokes v. State, 362 Md. 407, 414 , 765 A.2d 612 (2001). “It is fundamental, under Federal and Maryland jurisprudence, that the detention of a motorist pursuant to a police traffic stop is a seizure encompassed by the Fourth Amendment.” Farewell v. State, 150 Md.App. 540, 562 , 822 A.2d 513 (2003); see United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985); State v. Green, 375 Md. 595, 609 , 826 A.2d 486 (2003); Rowe v. State, 363 Md. 424, 432 , 769 A.2d 879 (2001); Ferris v. State, 355 Md. 356, 369 , 735 A.2d 491 (1999); Edwards v. State, 143 Md.App. 155, 164 , 792 A.2d 1197 (2002).

Such a stop, however, does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation. Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). Furthermore, an officer making a traffic stop may order the passengers to get out of the car pending completion of the stop, because the “danger to an officer from a traffic stop[, which] is likely to be greater when there are passengers in addition to the driver,” outweighs the “minimal” intrusion on the passenger. Maryland v. Wilson, 519 U.S. 408, 414-15 , 117 S.Ct. 882 , 137 L.Ed.2d 41 (1997). “Although warrantless searches are presumptively unreasonable, because the touchstone of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain exceptions.” In re Calvin S., 175 Md.App. 516, 528 , 930 A.2d 1099 (2007) (internal quotations omitted); Madison-Sheppard v. State, 177 Md.App. 165, 173 , 934 A.2d 1046 (2007) (“This constitutional guarantee is subject only to a few limited ⁶⁷⁹ exceptions when the search or seizure is ‘conducted outside the judicial process, without prior approval by judge or magistrate.’ ” (internal quotation omitted)) (quoting Minnesota v. Dickerson, 508 U.S. 366, 372 , 113 S.Ct. 2130 , 124 L.Ed.2d 334 (1993) (footnote omitted)) (quoting Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967)).

One of the exceptions to the warrant requirement was announced in Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). In Terry , the United States Supreme Court authorized police officers to conduct brief, investigatory stops of persons without a warrant or probable cause to arrest, so long as the officer has reasonable suspicion that a crime is being committed, has been committed, or is about to be committed by the individual stopped. Terry, 392 U.S. at 30 , 88 S.Ct. 1868 . Further, under Terry , when an officer justifiably believes that an individual is armed and presently dangerous, the officer may conduct a pat down search of an individual to determine whether the individual is carrying a weapon.

Id. Specifically, the Supreme Court held: [Wjhere a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken. Id. at 30-31 , 88 S.Ct. 1868 .

Thus the purpose of a protective search under Terry is not to discover evidence of a crime; rather, it allows ⁶⁸⁰ an officer to conduct an investigation without fear of violence. Minnesota v. Dickerson, 508 U.S. 366, 373 , 113 S.Ct. 2130 , 124 L.Ed.2d 334 (1993). Accordingly, “[i]f the protective search goes beyond what is necessary to determine if the suspect is armed, it is no longer valid under Terry and its fruits will be suppressed.” Id. In Michigan v. Long, 463 U.S. 1032, 1049, 1053 , 103 S.Ct. 3469 , 77 L.Ed.2d 1201 (1983), the Supreme Court extended the reach of the Terry stop and frisk, holding that, in the context of a roadside encounter, a police officer may conduct a protective search for weapons not only of an individual, but also of the passenger compartment of a motor vehicle.

In Long , two deputy police officers were on patrol one evening when they noticed a car “traveling erratically and at excessive speed,” eventually turning onto a side road and swerving into a ditch. Id. at 1035 , 103 S.Ct. 3469 . When the deputies approached the car to investigate, the driver and only occupant of the automobile met the officers at the rear of the vehicle, “which was protruding from the ditch onto the road.” Id. at 1035-36 , 103 S.Ct. 3469 . The driver’s door was left open.

Id. at 1036 , 103 S.Ct. 3469 . The driver did not respond to the initial requests for his license or registration, and according to one of the deputies, “appeared to be under the influence of something.” Id. at 1036 , 103 S.Ct. 3469 (internal quotation omitted). Having produced his license, the driver was asked again for his registration, after which he turned from the officers and walked toward the open driver’s door of the vehicle. Id.

Walking behind the driver, the officers observed a large hunting knife on the floorboard of the car. Id. The officers stopped the driver and subjected him to a Terry protective pat down, but recovered no weapons. Id.

One of the deputies then proceeded to search the vehicle for other weapons by shining his flashlight into the car without entering the vehicle. Id. When the officer noticed something protruding from under the front armrest, the officer knelt in the vehicle, lifted the armrest, and discovered an open pouch on the front seat. Id.

Upon shining his flash light on the pouch, the officer saw that it contained what appeared to be ⁶⁸¹ marijuana. Id. The driver was arrested for possession of marijuana. Id.

In considering whether a police officer may conduct a Terry-type search of the passenger compartment of a motor vehicle during a lawful investigatory stop of the occupant, the Court in Long emphasized a police officer’s interest in self-protection and the protection of others. Id. at 1047-52 , 103 S.Ct. 3469 . The Court observed that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers,” id. at 1047 , 103 S.Ct. 3469 , that “suspects may injure police officers and others by virtue of their access to weapons, even though they may not themselves be armed,” id. at 1048 , 103 S.Ct. 3469 , and that “[i]f a suspect is ‘dangerous,’ he is no less dangerous simply because he is not arrested.” Id. at 1050 , 103 S.Ct. 3469 . In particular, the Court stressed that, when a stop “involves a police investigation ‘at close range,’ ” the police officer “remains particularly vulnerable in part because a full custodial arrest has not been effected, and the officer must make a “quick decision as to how to protect himself and others from possible danger.” Id. at 1052 , 103 S.Ct. 3469 .

The Court further opined: Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect. Id. at 1049 , 103 S.Ct. 3469 . The Court held that the police may search the passenger compartment of an automobile, “limited to those areas in which a weapon may be placed or hidden[ ] ... if the police officer possesses a reasonable belief based on ‘specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officers in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.” Id. at 1049-50 , 103 S.Ct. 3469 (quoting Terry, 392 U.S. at 21 , 88 S.Ct. 1868 ). ⁶⁸² Turning to the facts before it, the Court concluded that the deputies had a reasonable belief that the defendant “posed a danger if he were permitted to reenter his vehicle.” Id. at 1050, 103 S.Ct. 3469 . The Court explained: The hour was late and the area rural. [The defendant] was driving his automobile at excessive speed, and his car swerved into a ditch.

The officers had to repeat their questions to [the defendant], who appeared to be “under the influence” of some intoxicant. [The defendant] was not frisked until the officers observed that there was a large knife in the interior of the car into which [the defendant] was about to