Moore v. State

JAMES A. KENNEY, III, J. (Retired, Specially Assigned). A jury sitting in the Circuit Court for Baltimore County convicted Ray Lamont Moore, appellant, of possession of cocaine, possession of heroin, possession with intent to distribute cocaine, and possession with intent to distribute heroin. After merger of the simple possession charges, appellant received a sentence of 25 years without the possibility of parole for possession of cocaine with intent to distribute and a suspended sentence of five years for possession of heroin with intent to distribute.

Prior to trial, the court denied appellant’s motion to suppress evidence seized when he was subjected to a strip search at a police station. Appellant presents three questions for our review, which we have slightly reworded: I. Did the court err in denying appellant’s motion to suppress evidence discovered during a strip search?

II

Did the court err in denying appellant’s request to compel the State to reveal the identity of the confidential informant?

III

Was the evidence sufficient to sustain appellant’s convictions for possession with intent to distribute cocaine and heroin? ⁷⁰⁰ We answer “no” to the first two questions, “yes” to the third, and affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND The Circuit Court for Baltimore County issued a search and seizure warrant on January 24, 2006, for the search of “[t]he person known as ‘Ray Ray,’ a black male described as being in his 20’s with a medium build” and “[a] silver 4-door Kia with Maryland registration MPC835” for drugs, weapons, and drug paraphernalia. Probable cause to issue the warrant was based upon the affidavit of Detective C.M. Toland and Detective Steven Sodd of the Baltimore County Police Department. In that affidavit, the detectives stated that a confidential informant had informed them that appellant “sells crack cocaine in Baltimore County.” According to the informant, “Ray Ray [could] be called on his cell phone, ... and [he] will come out to sell crack cocaine, driving a silver 4-door Kia with Maryland registration MPC 835.” The informant also advised that “he/she has observed Ray Ray talking about having guns and actually observed what he/she believed was a handgun in Ray Ray’s silver Kia on one occasion.” The detectives affirmed that “[the informant] has provided information in the past which has lead [sic] to the successful recovery of narcotics in quantities that indicate an intention to distribute same and have led to several arrests; therefore, [the detectives] deem [the informant’s] information reliable.” They also stated that, in January, they had set up and executed a “controlled purchase of crack cocaine from Ray Ray.” The informant arranged a meeting with appellant, while under surveillance by the detectives, to purchase cocaine with money given to the informant by the detectives.

Appellant drove the described vehicle to the arranged meeting location where he sold cocaine to the informant. On January 25, 2006, at 7:00 p.m., while driving a silver Kia in Baltimore County, appellant was stopped by the Baltimore County police for the purpose of executing the search warrant. After “a search of [appellant] at the scene there per his outer- ⁷⁰¹ garments, his clothing,” and a search of the vehicle produced no drugs or paraphernalia, Detective Toland took appellant to the local police precinct. In a private room and in the presence of the detective and another male police officer, appellant was directed to take off his clothes, bend over, and spread the cheeks of his buttocks.

When he did, the detective “observed some plastic bag piece sticking out of his butt.” Detective Toland “at that point ... removed the plastic bag which contained two plastic baggies.” One of those bags contained eleven baggies of cocaine and the other contained ten baggies of heroin. Appellant moved to require the State to produce the identity of the informant and to suppress the evidence recovered. Both motions were denied. Details of the motions hearing are set out in the Discussion section of this Opinion.

Trial took place on April 16 and 17, 2006. At trial, Detective Toland testified that, according to the officers who had stopped appellant, when appellant was stopped, he was observed “bending over in the vehicle with his hands tucked around his body.” He refused to exit the vehicle, and a window had to be broken to remove him. Detective Toland was told that a cell phone was recovered in a search of appellant’s vehicle, and that appellant had less than $200 on him. Detective Toland was qualified and accepted by the court as an expert in the detection, sale, and packaging of narcotics.

He testified that, in his opinion, each of the eleven baggies of crack cocaine had an approximate street value of $40 and each of the ten baggies of heroin had an approximate street value of $20. He opined that the amount of narcotics recovered, the two different types, and the way that the narcotics were packaged indicated an intent to distribute the drugs. Detective Toland acknowledged that appellant said that he had a “bad” drug problem and that the drugs were for his personal use. Detective Toland, however, observed no visible indications of drug use on appellant’s body. ⁷⁰² The State’s chemist testified that the drugs recovered from appellant tested positive for cocaine and heroin.

The total weight of the cocaine was 4.4 grams and the total weight of the heroin was 1.4 grams. Appellant did not testify or otherwise offer evidence. DISCUSSION Motion to Suppress Standard of Review In Paulino v. State, 399 Md. 341, 347-49 , 924 A.2d 308 (2007), the Court of Appeals explained: “Our review of a circuit court’s denial of a motion to suppress evidence, ordinarily, is limited to the evidence presented at the suppression hearing. See Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491, 497 (1999).

Thus, we refrain from engaging in de novo fact finding and looking at the trial record for supplemental information.” Carter v. State, 367 Md. 447, 457 , 788 A.2d 646, 651 (2002). We review the evidence presented at the hearing on [the] motion to suppress, and all reasonable inferences drawn from that evidence, in the light most favorable to the State. See Carter, 367 Md. at 457 , 788 A.2d at 651 ; Scott v. State, 366 Md. 121, 143 , 782 A.2d 862, 875 (2001); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240-1241 (1990). As this Court noted in State v. Nieves, 383 Md. 573, 581-82 , 861 A.2d 62, 67 (2004), “[although we extend great deference to the hearing judge’s findings of fact and will not disturb them unless clearly erroneous, we review, independently, the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law, and, accordingly, should be suppressed.” Suppression Hearing The sole witness at the suppression hearing was Detective Toland.

He testified that on January 25, 2006, at 7:00 p.m., ⁷⁰³ appellant was stopped by Baltimore County police officers at the intersection of Mussula and Yakona Roads in Baltimore County because both his physical characteristics and the vehicle he was driving matched the description in a search and seizure warrant that authorized a search of appellant and the vehicle for drugs. Appellant’s vehicle and outer clothing were searched at the scene and nothing was recovered. In response to questioning by defense counsel, Detective Toland testified that he arrived at the scene shortly after the stop and took appellant to the Towson precinct. A search of appellant was carried out in a private interview room: There’s an interview room. [Appellant] was in the interview room with myself and another officer.

At that point, he was strip searched. His clothes were removed. When I asked him to turn around and to bend over, I observed some plastic bag piece sticking out of his butt. And at that point, I removed the plastic bag which contained exactly two plastic bags.

One contained 11 baggies of crack cocaine and one contained ten baggies of heroin. The record reveals the following exchange on cross-examination by the State: [State Attorney]: The interview room, is this a private room with a door? Detective Toland: Yes. Q. Now, when he was asked to disrobe, was he asked — was he facing you or was he turned away from you at that time?

A. He was facing me. Q. Did you ask him to turn around? A. After he was undressed, yes. Q. And what exactly did you say to him at the time?

A. I told him to turn around and bend over and spread his cheeks, his butt cheeks. ⁷⁰⁴ Q. Okay. And was that the point that the items became visible? A. Clearly visible. On redirect examination: [Defense Counsel]: So it — from what was just described, if he would get undressed and walk around without spreading his butt cheeks, you wouldn’t have seen it.

Detective Toland: Correct. [Defense Counsel]: Did you ask him to walk? Detective Toland: No, I did not ask him to walk. Detective Toland also testified that nothing fell out of appellant’s underwear and nothing fell down when appellant was standing in the interview room. Defense counsel argued that the search warrant only allowed a search of the outside of appellant’s person, and that a strip and visual body cavity search were outside the scope of the warrant. 1 The court, in denying the motion to suppress, stated: Well, there’s no case law in this particular type of search in Maryland.

The Nieves case up in Washington County was a warrantless search. The Roachin case and the other case cited by Counsel involve an actual invasion or incursion into the body, of making the person drink the ipecac or some other matter to actually invade a bodily cavity. There’s no invasion at all here. Testimony is when the man turned around and bent over, these bags were in plain view.

They were hanging there.... ⁷⁰⁵ Analysis This case involves the particularity required of warrants by the Fourth Amendment to the United States Constitution. 2 The warrant issued in this case was issued for the search of the appellant’s “person” and “vehicle” for drugs and drug paraphernalia. Appellant asks whether the search conducted in this case exceeded the scope of the warrant. The warrant provided: Application and Affidavit having been made before me by Your Affiants, Detective C.M. Toland # 3932 and Detective Steve Sodd # 4072, members of the Baltimore County, Maryland Police Department, being duly sworn, depose/s and say/s that there is probable cause to believe that in/on 1) The person known as “Ray Ray,” a black male described as being in his 20’s with a medium build and 2) A silver 4-door Kia with Maryland registration MPC835, YIN # KNACD128945309662, in Baltimore County, there is now property subject to seizure, such as Cocaine, a Schedule II Controlled Dangerous Substance, packaging materials, scales, paraphernalia and instruments used in the distribution and/or possession of the above Controlled Dangerous Substance which are in violation of the Laws of Maryland pertaining to Controlled Dangerous Substances, Criminal Code CR 5-303(d) to CR 5-903(a). Also subject to seizure are any notes, records and documents that relate to the distribution of Controlled Dangerous Substances; monies which are the profits of sales of the above Controlled Dangerous Substance; and any papers that show residency.

I am satisfied that there is probable cause to believe that the property so described is in or on the [premises/vehicle/person] above described and that the grounds for the issuance ⁷⁰⁶ of the Search Warrant exist, being those grounds as stated on the Application and Affidavit attached hereto and incorporated herein by reference. You are, therefore, commanded, with the necessary and proper assistance to search forthwith the [premises/vehicle/person] herein above described for the property herein above specified; further, to search all locked and unlocked containers capable of concealing any type of Controlled Dangerous Substance; executing this warrant and making the search; and, if the property be found there, to seize it; and, if upon execution of this warrant, there are found person then and there engaged in the commission of a crime, arrest those so participating; leaving a copy of this Warrant and Application/Affidavit therefore with an inventory of the property seized and returning a copy of said Warrant, Application/Affidavit and inventory, if any, to me within ten days after its expiration, as required by law. (Bold in original; Italics added.) Appellant argues that “the ‘in/on’ language was boilerplate language, where the prepositions ‘in’ and ‘on’ were referring in the alternative to the subjects of the prepositions ‘automobiles,’ ‘premises,’ and ‘persons,’ and was not intended to mean that the police were granted authority to search for evidence that was on or in [his] person.” On appeal, the State argues that “the strip search was conducted properly at the police precinct as a valid search incident to [appellant’s arrest.” It also contends that, “even if, arguendo, [the strip search] had been performed exclusively pursuant to the valid warrant, and not incident to his subsequent arrest, the scope of the warrant’s authority to search [appellant’s person would have nonetheless lawfully permitted the strip search in this instance.” Search Incident to Arrest It appears that the State’s search incident to arrest argument is one of appellate afterthought as our review of the record does not reveal that it was argued to the motions court ⁷⁰⁷ at the suppression hearing. According to the State, “Detective Toland testified that [appellant] was arrested and taken to a secure location at the police precinct in Towson.... ” (Emphasis added).

It is true that defense counsel, during the suppression hearing, asked Detective Toland if he arrested appellant on January 25, 2006. That exchange reads as follows: [Defense Counsel]: [January] 25, 2006. On that day, it’s my understanding that, in fact, you arrested Ray Moore, is that correct? [Detective Toland]: That is correct. Q. And could you tell His Honor what time it was that you arrested him?

Time of day I meant. A. It was about 19:10 hours, about ten after seven, when we had taken Mr. Moore into custody. After an “unintrusive search” was made “at the scene,” appellant was taken “to a secure location” and the search at issue was carried out. After Detective Toland testified as to the details of the search and the recovery of the drugs, defense counsel asked: “So this procedure was taken by you and that’s how it was recovered?” He responded: “Per the search warrant, yes.” In his argument to the motions court, the prosecutor stated, “But in this case, there was a warrant.

The officers had a warrant to search in or on the person.” At no point did the State argue that the search was incident to arrest. Whether detaining and transporting a person to a police precinct, for the sole purpose of conducting a strip search pursuant to a search warrant, constitutes an arrest of the person appears to be a question of first impression. 3 We are persuaded that it does not. ⁷⁰⁸ Strip searches, and body cavity searches in particular, are to be conducted in places that are private and appropriately hygienic. 4 This will necessarily involve securing the search area from public view and may often involve transporting the person by vehicle to a more private and secure facility, such as a police station. Though the person to be searched is under the control of the police and is not free to leave, the purpose of the detention and the resulting transportation is to carry out the search warrant. After the search is completed, if no evidence to support an arrest is discovered as a result of the search, the person would be free to leave.

In Cotton v. State, 386 Md. 249 , 872 A.2d 87 (2005), the Court of Appeals examined the concept of arrest with respect to whether the detention of a person at the scene during the search of a building was an arrest or an investigative stop. In Cotton , a search warrant authorized the search of a building, its curtilage, and the persons found on the property for drugs and related paraphernalia. Id. at 252 , 872 A.2d 87 . Cotton was on the property at the time of the search.

Id. at 254 , 872 A.2d 87 . He was given Miranda warnings, handcuffed, and detained for over twenty minutes. Id. He argued that this detention constituted an unlawful arrest.

Id. at 255 , 872 A.2d 87 . The Court disagreed. In its analysis, the Court quoted United States v. Sharpe, 470 U.S. 675, 686 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985), where the U.S. Supreme Court, in the context of investigative stops, stated: “In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or ⁷⁰⁹ dispel their suspicions quickly, during which time it was necessary to detain the defendant.]” Cotton, 386 Md. at 259 , 872 A.2d 87 . The Cotton Court also cited Muehler v. Mena, 544 U.S. 93 , 125 S.Ct. 1465 , 161 L.Ed.2d 299 (2005).

There, a woman was placed in handcuffs at gunpoint and detained under guard for two to three hours in a converted garage while the search of the premises took place. Cotton, 386 Md. at 260 , 872 A.2d 87 (citing Muehler, 544 U.S. at 99 , 125 S.Ct. 1465 ). The Muehler Court held that the woman’s Fourth Amendment rights were not violated and that “the fact that the detention lasted two-to-three hours was not, itself, unreasonable, if it did not last longer than the search of the house required.” Id. (citing Muehler, 544 U.S. at 99 , 125 S.Ct. 1465 ).

In Fromm v. State, 96 Md.App. 249 , 624 A.2d 1296 (1993), the defendant asserted that he was illegally detained by police officers when they arrived at his apartment building to execute a search warrant authorizing the search of his apartment. He was a short distance away from his apartment, heading out of a neighboring apartment building and toward a parking lot, when police officers executing the warrant detained him and “transported] him the short distance to his apartment.” Id. at 254-55 , 624 A.2d 1296 . “At some point during the process, appellant was placed in handcuffs.” Id. at 251 , 624 A.2d 1296 . The Fromm Court applied Michigan v. Summers, 452 U.S. 692, 705 , 101 S.Ct. 2587, 2595 , 69 L.Ed.2d 340 (1981), where the Supreme Court held that “for Fourth Amendment purposes, ... a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Fromm, 96 Md.App. at 251 , 624 A.2d 1296 . The Fromm Court approved the analysis of the trial court, which had stated: [It] is permissible to detain persons in and about the premises that are specifically identified as having connection with the premises.

And this defendant was specifically identified as being the owner or the lessee of the premises. ⁷¹⁰ So that I think it was proper to bring him from outside inside during the conduct of the search. Id. at 256 , 624 A.2d 1296 (emphasis in original). The Fromm Court also cited Commonwealth v. Reicherter, 317 Pa.Super. 256 , 463 A.2d 1183 (1983), where “the Superior Court of Pennsylvania held that police with a warrant to search the defendant’s apartment properly stopped the defendant just after he left the building, as he was riding in a friend’s truck several blocks away.” Fromm, 96 Md.App. at 255 , 624 A.2d 1296 . The Reicherter Court stated: Although Reicherter was initially stopped by the police while several blocks from his apartment while the defendant in Michigan v. Summers ... was stopped on the front steps of his residence, this is not a difference such as would require a different result: in both cases some transportation of relatively short duration was required to return the defendant to the residence to be searched.

Id. (quoting Reicherter, 317 Pa.Super. at 260 , 463 A.2d 1183 ). The fact that appellant was handcuffed when transported does not necessitate a finding that he was placed under arrest. In Smith v. State, 186 Md.App. 498, 537 , 974 A.2d 991 (2009), aff'd, 414 Md. 357 , 995 A.2d 685 (2010), in considering whether a detention was an arrest, we stated that “the use of flex cuffs on the appellant and the other three individuals being detained did not transform a Terry stop into an arrest.” We quoted from Trott v. State, 138 Md.App. 89 , 770 A.2d 1045 (2001): Appellant contends that even if the stop was justified, his handcuffing by Officer Middleton transformed that stop into an “arrest.” That arrest was illegal, appellant claims, because the officer did not have, at that time, probable cause to arrest him.

We disagree for three reasons. First, the handcuffing of appellant was justifiable as a protective and flight preventative measure pursuant to a lawful stop and did not necessarily transform that stop into an arrest. ⁷¹¹ Smith, 186 Md. App. at 537, 974 A.2d 991 (emphasis supplied by Smith Court). The Smith Court then “surveyed ten federal cases and eight state cases in support of [its] conclusion that ‘handcuffing does not necessarily transform a “stop” into an “arrest.” ’ ” Id. at 538 , 974 A.2d 991 (quoting Trott, 138 Md.App. at 89 , 770 A.2d 1045 ); see also In re David S., 367 Md. 523, 539-40 , 789 A.2d 607 (2002). Individuals present during the search of a premises authorized by a search warrant may be detained by police without being under arrest.

It necessarily and logically follows that persons who are the subject of a search warrant may also be detained for the period of time reasonably necessary to carry out the search. As the cases discussed above illustrate, the transportation of individuals, even in handcuffs, is not necessarily tantamount to an arrest, and, in the context of executing search warrants, is often necessary to “prevent[] [] flight and to facilitate] the orderly completion of the search.” Fromm, 96 Md.App. at 256 , 624 A.2d 1296 . Detective Toland’s testimony that he read appellant his Miranda rights before conducting the search does not change our determination of whether appellant was under arrest at the time the search of appellant was initiated. As the Court of Appeals explained in Cotton, 386 Md. at 265-66 , 872 A.2d 87 : The prophylactic requirement of Miranda warnings is designed to safeguard important Fifth Amendment protections.

See Dickerson v. United States, 530 U.S. 428 , 120 S.Ct. 2326 , 147 L.Ed. [L.Ed.2d] 405 (2000). Although the giving of those warnings may be considered along with more relevant factors as part of all that occurred, it should have no special significance in determining whether a temporary detention constitutes an arrest for Fourth Amendment purposes because it may well be required even when there is clearly no arrest. Nor are we persuaded that appellant was under arrest because he was transported to a nearby police precinct to carry out the search of appellant’s person instead of a fire ⁷¹² house or other private location. To have carried out the search at the scene of the initial detention without taking extraordinary steps to ensure appellant’s privacy would have been unreasonable.

To be sure, there was probable cause to seek an arrest warrant for appellant based on the earlier controlled buy referred to in the attached probable cause statement to the application for the search warrant. But, no charges were ever brought against appellant related to that controlled buy. Instead, as the prosecutor pointed out to the motions court, in order to protect the confidential informant, the officers procured a search warrant, instead of an arrest warrant, “for the purpose of not having to identify the informant in the case.” It seems clear that, contrary to the State’s argument on appeal that the search was incident to arrest, Detective Toland was relying on the expected results of the search conducted pursuant to the search warrant to effect an actual arrest. Our conclusion that appellant was not arrested until the search produced clear evidence of drug trafficking is supported by the recent decision of the Court of Appeals in Belote v. State, 411 Md. 104, 107 , 981 A.2d 1247 (2009).

There, the Court, addressing “[t]he question of what constitutes an arrest,” stated: [A]n officer’s objective “manifestation of purpose and authority” at the “moment of arrest,” by words or conduct, which signal to an individual that he or she is under arrest, will be, and always has been, significant in determining whether a custodial arrest has occurred in Maryland. Id. at 113 , 981 A.2d 1247 (citing Wayne A. Logan, An Exception Swallows a Rule: Police Authority to Search Incident to Arrest, 19 Yale L. & Pol’y Rev. 381, 431-32 (2001); Bouldin v. State, 276 Md. 511, 518 , 350 A.2d 130 (1976), limited by State v. Evans, 352 Md. 496, 514 , 723 A.2d 423 (1999) (“Despite Bouldin’s reference, in dicta, ... whether the officer intends that a detention lead to a prosecution has no bearing on whether an arrest has occurred.”); State v. Crutcher, 989 S.W.2d 295, 302 (Tenn.1999)) (other citations omitted). The ⁷¹³ Court then reaffirmed its holding in Bouldin , stating, “The definition of arrest that we articulated in Bouldin applies to all custodial arrests in Maryland.” Id. at 118, 981 A.2d 1247 . In Bouldin , a police officer searched the personal belongings of Bouldin, an accident victim, while he was unconscious at the hospital.

Bouldin, 276 Md. at 512-14 , 350 A.2d 130 . After finding drugs, the officer placed Bouldin under 24-hour guard. Id. at 513 , 350 A.2d 130 . Bouldin moved to suppress the drugs, arguing that the search of his belongings was not incident to his arrest.

Id. at 512 , 350 A.2d 130 . The Belote Court, 411 Md. at 116-17 , 981 A.2d 1247 , summarized the Bouldin Court’s holding that the evidence should be suppressed: [A]n arrest in Maryland ordinarily requires four elements to coalesce: “(1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested.” Id. at 516 , 350 A.2d at 133 (citing 6A C.J.S. Arrest § 42 (1975)); Longshore v. State, 399 Md. 486, 502 , 924 A.2d 1129, 1137-38 (2007). We reasoned that [the officer] lacked the subjective intent to arrest Bouldin and failed to demonstrate, in his conduct or words, any objective acts that would reflect an intention to perform a custodial arrest of the unconscious Bouldin. Bouldin, 276 Md. at 518 , 350 A.2d at 134 .

In concluding that Bouldin was not arrested at the time that [the officer] searched his belongings, we emphasized that [the officer’s] conduct immediately prior to, and contemporaneously with, the search did not resemble the kind of conduct that indicated an intent to make a custodial arrest. Id. at 518-19 , 350 A.2d at 134 . In fact, we noted, [the officer] “said nothing and did nothing before searching Bouldin’s clothing to indicate to anyone in control of Bouldin’s medical care and movements that Boul-din was under arrest.” Id. In Bouldin , we appropached the custodial arrest question by reviewing [the officer’s] objective conduct and subjective intent.

Id. The Bouldin court’s analysis established that, where a police officer’s objective conduct unambiguously reflects an intent to make a custodial arrest, the subjective ⁷¹⁴ intent inquiry, which is one of the four elements reviewed to determine whether a custodial arrest occurred under Boul-din, takes on less significance. In other words, when an arresting officer’s objective conduct, which provides significant insight into that officer’s subjective intent, is unambiguous, courts need not allocate significant weight to an officer’s subjective intent that is revealed partially in the form of his testimony at the suppression hearing; the officer’s objective conduct, in effect, will have made his subjective intent clear. It is only when an arresting officer’s objective conduct is ambiguous that his or her subjective intent increases in importance to a court’s legal inquiry into whether a custodial arrest of the suspect occurred.

The Bouldin court’s focus on [the officer’s] subjective intent was a direct result of the fact that [the officer] did not engage in or demonstrate any objective conduct that indicated that he was making a custodial arrest of the unconscious Bouldin[.] A review of the record under the Bouldin four-prong test indicates that Detective Toland’s objective conduct at the time he detained and transported appellant to the police station indicated an intent to complete the execution of the search and seizure warrant that had been started at the scene of the initial stop. 5 Other than Detective Toland giving appellant Miranda warnings, no evidence was presented on what was told to appellant at the time he was detained or during his detention. The suppression hearing record reveals the following exchange between defense counsel and Detective Toland: [Defense Counsel]: Did you conduct a search of [appellant] on the premises of where he was?---- ⁷¹⁵ Detective Toland: There was a search of [appellant] at the scene there per his outer garments, his clothing. Q. As a result of that — we’ll say pat down or unintrusive search, was anything recovered? A. Not at that time, no.

Q. Okay. Mr. Moore was then, I assume, taken to a secure location. A. The Towson Precinct. Q. Right.

Would you consider that a secure location? A. Yes. Q. Okay. And at that location, was he then under your control with other officers of course?

A. Yes. Q. Okay. Mr. Moore was then searched, is that correct. A. Yes.

On redirect examination of Detective Toland: [Defense Counsel]: (Referencing Detective Toland’s prior testimony concerning the search of appellant) So this procedure was taken by you and that’s how [the evidence] was recovered. Detective Toland: Per the search warrant, yes. No other testimony concerning the detention and transportation of appellant from his vehicle to the precinct, including appellant’s understanding of that detention, was offered at the suppression hearing. 6 That the officers may have intended that the detention lead to a prosecution because they expected to find drugs is not relevant as to whether there was an arrest. Appellant was detained and transported to the police precinct for the purpose of completing the search and he was not ⁷¹⁶ arrested until the search revealed clear evidence of drug trafficking.

The officers “had to take him back to the precinct” because they considered that location an appropriate private location to carry out the search. In sum, the search at issue was not initiated as a “search incident to arrest.” That it subsequently became a search incident to arrest after the visual cavity search revealed a “plastic bag piece sticking out of [appellant’s] butt” is discussed further in the Opinion. See Conboy v. State, 155 Md.App. 353, 364 , 843 A.2d 216 (2004). Search Pursuant to the Warrant We have not been directed to, nor have we found, any Maryland case directly addressing whether a warrant to search “a person” provides authorization to conduct a strip search or some degree of a body cavity search of the person.

There is, however, Maryland case law to guide our consideration of the question presented. In the context of a search incident to arrest, the Court of Appeals addressed the constitutionality of a strip search and body cavity search in Paulino, 399 Md. at 349 , 924 A.2d 308 . As explained by the Court, “[t]here exist three separate categories of searches,” id. at 352 , 924 A.2d 308 , as described by the United States Court of Appeals for the First Circuit in Blackburn v. Snow, 771 F.2d 556 , 561 n. 3 (1st Cir.1985): A “strip search,” though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject’s body cavities. A “visual body cavity search” extends to a visual inspection of the anal and genital areas.

A “manual body cavity search” includes some degree of touching or probing of body cavities. In Paulino , police received a tip from a confidential informant that Paulino would be at a particular location, that he would have in his possession a quantity of a controlled dangerous substance, and that “Paulino typically hides the controlled dangerous substance in the area of his buttocks.” Id. at 344 , 924 A.2d 308 . When Paulino pulled into a car wash bay, the police removed him from the vehicle. Wearing gloves, they ⁷¹⁷ “lift[ed] up his shorts,” spread his butt cheeks, and discovered cocaine.

Id. at 346, 924 A.2d 308 . The Paulino Court classified that search as “both a strip search and a visual body cavity search” because “the drugs were not visible until after the cheeks of Paulino’s buttocks were spread apart.” Id. at 353-54 , 924 A.2d 308 . In addressing the reasonableness of the search, the Court looked to the United States Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979), for “the appropriate test” to determine “the reasonableness of a search.” 7 Id. According to the Paulino Court, all searches that “entail[ ] the inspection of the anal and/or genital areas have been accurately described as demeaning, dehumanizing, undignified, humiliating, embarrassing, repulsive, degrading, and extremely intrusive of one’s personal privacy.” Paulino, 399 Md. at 356 , 924 A.2d 308 (citing Amaechi v. West, 87 F.Supp.2d 556, 565 (E.D.Va.2000), aff'd, 237 F.3d 356 (2001)).

In considering the scope of the search, the Court concluded that “the police officers’ search of Paulino was highly intrusive and demeaning.” Id. The Court emphasized that the issue was “not whether the police had the right to search Paulino, but instead whether an ⁷¹⁸ exigency existed such that an invasive search, conducted at the scene of the arrest, was reasonable.” Id. at 357 , 924 A.2d 308 . Because the police had made no “attempt to limit the public’s access to the car wash or [to take] any similar precaution that would limit the ability of the public or any casual observer from viewing the search of Paulino[,]” the search was determined to be unreasonable. Id. at 357-58, 924 A.2d 308 .

In reaching that determination, the Court found the Texas Court of Criminal Appeals case of McGee, 105 S.W.3d at 616, “instructive.” Id. In McGee, police officers, acting on an informant’s tip, approached McGee, a suspected drug dealer. They observed “ ‘marijuana smoke in the air above McGee and a marijuana cigarette on the ground next to him.’ ” Id. (quoting McGee, 105 S.W.3d at 614.).

They “arrested McGee,” “drove him to a nearby fire station,” and, “[i]n a secluded area of the station,” ordered him to “ ‘drop his pants, bend over, and spread his buttocks.’ ” Id. at 358, 924 A.2d 308 (quoting McGee, 105 S.W.3d at 613). In finding the search reasonable, “the court held that the searching officer acted appropriately to protect the privacy interest of McGee because he took him to a separate location within the firehouse that was more secluded.” Id. (citing McGee, 105 S.W.3d at 617). Here, the search warrant authorized a search of a known drug dealer’s person for illegal drugs and associated paraphernalia.

It is well known in the law enforcement community, and probably to the public at large, that drug traffickers often secrete drugs in body cavities to avoid detection. In the “Probable Cause” section of the Application and Affidavit for Search and Seizure Warrant in this case, the affiants stated, generally, that they knew “through their training, knowledge and experience” that drug traffickers “[s]ecrete contraband ... in secure locations within their person ... for ready access and to conceal the same from law enforcement authorities.” (Emphasis added). 8 Based on the facts of this case, ⁷¹⁹ and guided by Paulino and Bell , we are persuaded that the search of appellant pursuant to the warrant was reasonable, considering the nature of the items being searched for and the places in which they are often hidden. In determining the reasonableness of the search, we have looked to Bell and considered “the scope of the particular intrusion, the manner in which it was conducted, the justification for initiating it, and the place in which it is conducted.” Bell, 441 U.S. at 559 , 99 S.Ct. 1861 . As to scope, appellant was subjected to a strip search when he was told to take off his clothes.

Nothing fell out of his underwear when he disrobed and nothing fell down where he was standing in the interview room facing the officers. When he was told to “turn around and bend over and spread his ... butt cheeks,” the strip search became a visual body cavity search. 9 Paulino, 399 Md. at 356 , 924 A.2d 308 . As to the manner and the place in which the strip search was conducted, appellant was in a private room and observed by only two male officers. 10 The search was progressive, beginning with a search of appellant’s outer garments, moving on to a strip search, and then to a visual body cavity search when the drugs were not found in the previous search efforts. The observation of a “plastic bag piece” sticking out of a known drug dealer’s “butt” clearly provided probable cause to arrest for, at least, possession of drugs and changed the calculus of the search from reliance on the warrant to a search incident to appellant’s inevitable arrest.

In other words, any continuing search at that point in time, including the removal of the protruding plastic bag, was based ⁷²⁰ upon probable cause to arrest and incident to that arrest and no longer dependent on the warrant. See Conboy, 155 Md.App. at 364 , 843 A.2d 216 (“[A]s long as police have probable cause to arrest before they search the arrestee, it is not ‘particularly important that the search precede the arrest rather than vice versa.’ ” (quoting Rawlings v. Kentucky, 448 U.S. 98, 111 , 100 S.Ct. 2556 , 65 L.Ed.2d 633 (1980))); See also Nieves, 383 Md. at 579 , 861 A.2d 62 (“A search incident to a lawful arrest is one of the well delineated exceptions to the warrant requirement.”); Chimel v. California, 395 U.S. 752, 763 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969) (The United States Supreme Court articulated the bases for a search incident to arrest, as being, “to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape ... [or] to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.”); Stokeling v. State, 189 Md.App. 653, 669-670 , 985 A.2d 175 (2009) (Holding that a strip search was conducted as a search incident to arrest, because, after an officer performed a Terry frisk which resulted in him feeling what he thought was a bag in appellant’s crotch area, the officer had probable cause to arrest appellant for suspicion of drug possession.); McGee, 105 S.W.3d at 612 (“[C]rack cocaine retrieved from between [appellant’s] buttocks” as the result of “a visual body cavity inspection” was upheld, where the search was incident to arrest and supported by probable cause.); North Carolina v. Johnson, 143 N.C.App. 307 , 547 S.E.2d 445 (2001) (Where a search warrant authorized a search of appellant’s person for drugs, drugs recovered from appellant’s rectum pursuant to a strip search where appellant was made to “bend over at the waist” were admissible and the search was within the scope of the warrant.); But see People v. More, 97 N.Y.2d 209, 214 , 738 N.Y.S.2d 667 , 764 N.E.2d 967 (2002) (A body cavity search incident to arrest was unreasonable because a particularized warrant could have been procured.); People v. Hall, 10 N.Y.3d 303, 311 , 856 N.Y.S.2d 540 , 886 N.E.2d 162 (N.Y.2008) (“If an object is visually detected or other information provides probable cause that an object is hidden inside the arrestee’s body, ⁷²¹ Schmerber [v. California, 384 U.S. 757 , 86 S.Ct. 1826 , 16 L.Ed.2d 908 (1966)], dictates that a warrant be obtained before conducting a body cavity search unless an emergency situation exists. Under our decision in More, [ 97 N.Y.2d at 214 , 738 N.Y.S.2d 667 , 764 N.E.2d 967 ], the removal of an object protruding from a body cavity, regardless of whether any insertion into the body cavity is necessary, is subject to the Schmerber rule and cannot be accomplished without a warrant unless exigent circumstances reasonably prevent the police from seeking prior judicial authorization.”), cert, denied, - U.S. -, 129 S.Ct. 159 , 172 L.Ed.2d 241 (2008); Arizona v. Barnes, 215 Ariz. 279, 281 , 159 P.3d 589 (2007) (“an officer must secure a warrant to remove items partially protruding from an arrestee’s rectum.”), review granted, 2008 Ariz. LEXIS 2 (Jan. 8, 2008), review improvidently granted and vacated, 2008 Ariz.

LEXIS 38 (Feb. 20, 2008). The Paulino classifications of strip searches focus on the search itself and not the following seizure of the drugs discovered as a result of the search. Here, it was not necessary for the officers to touch appellant or to invade his body cavity in any way to discover where the drugs were secreted. Once the plastic bag was seen, it was removed by Detective Toland.

The record does not indicate that any “degree of touching or probing of the body eavit[y]” in which the drugs were hidden was necessary to recover them. See Paulino, 399 Md. at 352 , 924 A.2d 308 . Moreover, appellant does not contend that the