McKay v. State

BARBERA, Judge. This case raises two questions related to the lawfulness of a car search. We are asked whether the police could rely on information supplied by informants in deciding that there was probable cause to search the car for drugs. We hold that the police could rely on the information supplied to them and that it, largely corroborated by independent police investigation, gave them probable cause for the search.

We are also asked whether that probable cause was undermined, if not negated altogether, by the failure of a drug sniffing dog to alert to the presence of drugs in the car moments before the search was undertaken. We hold that the police continued to possess probable cause that the car contained drugs notwithstanding the dog’s failure to indicate their presence. The search was lawful, accordingly. Appellants Mark McKay and Leann Miller were charged by indictment with having committed numerous drug-related offenses.

Appellants filed a motion to suppress the physical evidence that was obtained in the warrantless search of McKay’s car and in the subsequent execution of a warrant to search appellants’ apartment. Following a hearing, the Circuit Court for Prince George’s County denied the motion. Appellants thereafter waived their right to a jury trial, entered not guilty pleas to all charges, and consented to have an agreed statement of facts read into the record for the court’s determination of guilt. The court found McKay guilty of possession, possession with intent to distribute cocaine and marijuana, possession of a firearm during and in relation to a drug trafficking crime, conspiracy to distribute a controlled dangerous substance, and maintaining a common nuisance.

The court sentenced McKay to a period of ten years’ incarceration, with all but five years suspended and without the possibility of parole, to be followed by five years’ probation. The court found Miller guilty of possession, conspiracy to distribute a controlled dangerous ¹⁸⁰ substance, and maintaining a common nuisance, and sentenced her to incarceration for two years, with all but two days suspended, and two years of probation. Appellants raise the following issue on appeal: Did the suppression court err in denying appellants’ motion to suppress drugs seized during a warrantless search of appellant McKay’s vehicle? FACTS AND PROCEEDINGS Detective Tom Moreland is a member of the Greenbelt City Police Department and of the Maryland State Police and Prince George’s County Drug Task Force.

Detective More-land testified at the suppression hearing that in the Spring of 2001 he learned from a source, George Michael Richardson, that Jacquelyn Thompson was distributing cocaine hydrochloride and that her drug source was her son, appellant McKay. According to Richardson, McKay delivered cocaine hydrochloride and marijuana to Thompson at various locations, including her place of employment, so that she could then sell the drugs. Detective Moreland verified the information Richardson provided by independently confirming Thompson’s place of employment, place of residence, and her relationship to McKay. Moreland also conducted three undercover hand-to-hand drug purchases with Thompson during April, May, and June 2001.

After the third of these, Moreland informed Thompson that he was a police officer. Thompson thereafter admitted to Moreland that McKay served as her drug supplier and agreed to cooperate with police to force McKay to cease his drug distribution. 1 ¹⁸¹ Moreland launched an investigation to verify Thompson’s identification of McKay as her drug source. In the course of this investigation, Moreland learned McKay’s full name and address and that he resided with appellant Miller. Moreland obtained McKay’s driver’s license photograph from the Motor Vehicle Administration (“MVA”).

Moreland also learned from the MVA that McKay owned a 1995 Honda Prelude and Miller owned a 1997 Hyundai Accent. A criminal history check on McKay disclosed that he had been arrested on three prior occasions; at least one arrest involved drug offenses. 2 In early June 2001, the police verified that the apartment was leased to both McKay and Miller. Thereafter, the police conducted a “loose” surveillance of appellants’ residence, identifying both appellants as they emerged separately from their residence. In cooperation with the police, Thompson arranged for McKay to deliver two ounces of cocaine hydrochloride to her place of employment, LAB Towing, in Lanham, Maryland, on June 14, 2001.

The police learned from Thompson that McKay would be delivering the drugs “possibly before four o’clock that afternoon.” In preparation for the pre-arranged drug purchase, the police set up surveillance of appellants’ residence on June 14, 2001. At about one o’clock that afternoon, the police observed McKay emerge from the apartment carrying a black book bag. McKay got into his vehicle with the bag and drove to an automotive shop. He entered the shop and exited with another male.

Both men got into McKay’s vehicle and drove in the direction of LAB Towing. Sergeant Michael Lewis of the Maryland State Police assisted in the operation. He stationed his cruiser several blocks away from LAB Towing. According to plan, Sergeant Lewis conducted a traffic stop of McKay at about 2:45 p.m. on the basis that McKay’s car was missing a front registration plate. ¹⁸² Sergeant Lewis was able to identify McKay and his vehicle because he had been briefed earlier that day on the details of the investigation.

During the traffic stop, Lewis asked McKay for consent to search his vehicle. When McKay refused to consent to the search, Lewis called for a drug sniffing dog to scan the automobile. The dog failed to alert during the scan. Lewis later learned from its handler, however, that the dog was on medication as a result of an attack at the kennel a few days prior and should not have been working that day.

Lewis advised a supervisor that the dog failed to alert to the presence of drugs in McKay’s vehicle, and was instructed to search the vehicle anyway. Lewis opened the driver’s side door of McKay’s vehicle and seized the black bag on the back seat. In the bag, Lewis found approximately two pounds of marijuana and several thousand dollars in U.S. currency. One ounce of cocaine hydrochloride was found in the car’s console.

After completing the search, Lewis placed McKay under arrest. Moreland thereafter secured a search warrant for appellants’ residence. In executing the warrant, the police seized controlled dangerous substances, weapons, and drug paraphernalia, and thereafter arrested Miller. At the subsequent suppression hearing, appellants sought suppression of the evidence seized from McKay’s car and their apartment.

Appellants did not challenge either the initial traffic stop or the delay attendant to the arrival of the drug sniffing dog. Instead, appellants argued that the search of the car was not accompanied by the requisite probable cause that it contained drugs. Appellants specified that the police could not reasonably have relied on the informants’ information that McKay distributed drugs and was carrying drugs in his car that afternoon. Appellants asserted in the alternative that, even assuming the police were initially possessed of probable cause, it was dissipated when the dog failed to alert on the car.

From there, appellants argued that because the evidence seized in the unlawful car search was relied upon in ¹⁸³ obtaining the warrant to search their apartment, the evidence obtained in executing that warrant should also be suppressed under the doctrine of “fruit of the poisonous tree.” 3 The court (Shepherd, J.) denied the motion, reasoning that the police had probable cause to search the car based on the informants’ information about McKay and his drug distribution, which information was sufficiently verified by independent investigation. Judge Shepherd also found that the dog’s failure to alert did not negate probable cause, noting that “[sjometimes you have incompetent dogs.” Consequently, he denied appellants’ motion to suppress. DISCUSSION As appellants have formulated the issue, the propriety of the court’s refusal to suppress the evidence seized in the search of McKay’s car and appellants’ apartment turns entirely on the question whether the police had the necessary probable cause to search the car in the first place. For the reasons that follow, we hold that they did.

In reviewing the grant or denial of a motion to suppress, we are limited to the record developed at the suppression hearing. Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002); Graham v. State, 146 Md.App. 327, 341 , 807 A.2d 75 (2002). We view the suppression court’s fact findings in the light most favorable to the prevailing party, here, the State. Graham, 146 Md.App. at 341 , 807 A.2d 75 .

Where facts are in dispute, we accord great deference to the suppression court and accept its findings of fact unless clearly erroneous. Nathan, 370 Md. at 659 , 805 A.2d 1086 . As to legal questions that arise during a suppression hearing, we review them “ ‘de novo and based upon the evidence presented at the suppression hearing and the applicable law, we then make our own constitutional appraisal.’ ” Id. (quoting Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001)). ¹⁸⁴ The case sub judice implicates the “automobile exception” to the warrant requirement established in Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925).

The Court of Appeals recently restated the Carroll doctrine in Nathan : “Police officers who have probable cause to believe that there is contraband or other evidence of criminal activity inside an automobile that has been stopped on the road may search it without obtaining a warrant.” 370 Md. at 665-66 , 805 A.2d 1086 (2002); accord State v. Wallace, 372 Md. 137, 145-46 , 812 A.2d 291 (2002). Probable cause has been defined as “ ‘a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would