Myers v. State

EYLER, JAMES R., J. Ernest James Myers, appellant, was convicted by a jury in the Circuit Court for Washington County of theft of property having a value of $500 or greater. The court sentenced appellant to ten years’ imprisonment. On appeal, appellant challenges (I) the denial of his motion to suppress evidence based on the alleged illegality of his arrest and (2) the legal sufficiency of the evidence to sustain his conviction. As explained below, we shall affirm the ruling, on slightly different grounds than that argued by the parties, and shall affirm the judgment.

Factual Background The charge and conviction in this case was based on the theft of property taken on October 11, 2002, from the residence of Joseph Marinelli in Washington County. 1 ⁵⁰⁸ On February 12, 2003, prior to the filing of charges in Washington County, Officer Clifford Weikert, with the Carroll Valley Borough Police Department, in the Commonwealth of Pennsylvania, stopped appellant while appellant was driving a vehicle. Subsequently, Pennsylvania charged appellant with the theft of property stolen from William Welsh in Pennsylvania in October, 2001. Appellant filed a motion to suppress evidence obtained as a result of the stop of his vehicle. The Court of Common Pleas, Adams County, the trial court, denied the motion.

A jury convicted appellant of theft, and appellant appealed to the Superior Court of Pennsylvania, an intermediate appellate court. The Superior Court, in an opinion dated June 7, 2004, labeled “non-precedential,” reversed the trial court’s ruling on the motion to suppress and “vacated” the “judgment of sentence.” The facts, in pertinent part, as set forth in the Superior Court’s opinion (quoting from the trial court’s opinion), are as follows. On February 12, 2003, at approximately [6:40 p.m.], Officer Clifford Weikert of the Carroll Valley Borough Police Department, while in a marked vehicle on routine patrol, observed a red Dodge Sundance unoccupied and parked in a no-parking zone along Northern Pike Trail. As he proceeded down the roadway past the vehicle, Officer Weikert observed a black male individual wearing a dark stocking cap and dark clothing walking toward the vehicle.

As Officer Weikert passed this individual, Officer Weikert observed this individual bend over and apparently cover his face from Officer Weikert’s view. Alerted by these actions, Officer Weikert proceeded down the road, immediately turned his vehicle around, and returned towards the area where he observed the individual and the vehicle. As he headed toward the parked vehicle, Officer Weikert observed the red Dodge Sundance pass him at a high rate of speed. Based upon the distance between the location where Officer ⁵⁰⁹ Weikert initially observed [appellant], the location of the parked vehicle and the amount of time that passed while Officer Weikert turned his vehicle around, Officer Weikert opined that the individual must have sprinted to the vehicle since the time of his initial observation.

When the Dodge Sundance passed the police vehicle, Officer Weikert once again turned his vehicle around in order to follow the Dodge Sundance. While following the vehicle, he estimated it was traveling at a rate of speed of 40 miles per hour in a 25 mile per hour zone. Officer Weikert indicated that at the time he observed the individual walking along the roadway, he was aware of a description of a suspect from a February 5, 2003 incident, in which a known eyewitness described a person involved in an attempted burglary. Specifically, Officer Weikert was aware that the suspect involved in the February 5, 2003, incident was wearing charcoal gray clothing, a dark blue cap, and was a black male between 5'6" and 5'10" in height.

Officer Weikert was also aware that several weeks prior to this incident there were a number of burglary or criminal trespass related incidents occurring in the Carroll Valley Borough area .... Prior to the stop of the individual’s vehicle, Officer Weikert was also aware that the investigation into the criminal incidents ... revealed that each of the incidents occurred between 6:00 p.m. and 9:00 p.m., which was a time consistent with the time of Officer Weikert’s observation of the subject in dark clothing. According to Officer Weikert, the recent number of burglaries within the Carroll Valley area was excessive and unusual based upon his experience as a Carroll Valley police officer and his familiarity with the area. ... Officer Weikert initiated a traffic stop of the vehicle.

At the time of the traffic stop, Officer Weikert observed in plain view a large screwdriver within the vehicle, which appeared to him to be consistent with a screwdriver capable ⁵¹⁰ of making pry marks [similar to those] found at [the other recent burglaries]. Officer Weikert identified the driver as appellant and took him into custody on outstanding warrants from a neighboring jurisdiction. As a result of a search incident to his arrest, several items of rare United States Currency and a savings bond titled in another person’s name were recovered from [his] person. The screwdriver was seized, the vehicle was impounded, and a search warrant was obtained for a search of the vehicle.

During the subsequent search, a number of pieces of jewelry were found in the front console and seized as evidence. We shall discuss the Superior Court’s reasoning when we discuss the issues raised in this appeal. Suppression Hearing — Maryland As earlier stated, after appellant was charged in this case, he filed a motion to suppress all evidence. At the suppression hearing, Trooper Eric Guyer, with the Pennsylvania State Police, and Investigator Greg Alton, with the Washington County Sheriffs Department, testified.

Trooper Guyer testified to the following. In September, 2002, he was assigned to the criminal investigation division and continued an investigation, begun by his predecessor, of several burglaries with similar modes of operation. In connection with that investigation, Trooper Guyer had frequent contact with Investigator Alton. On February 12, 2003, the day of the traffic stop, Trooper Guyer went to the Carroll Valley Police Department station.

At that time, Trooper Guyer became aware of evidence that had been seized from appellant and his vehicle. Trooper Guyer also interviewed appellant. Trooper Guyer contacted Investigator Alton and shared information. As a result of information obtained from the evidence seized, officers applied for and obtained search warrants, which were executed.

The evidence obtained included stolen property and physical evidence connecting appellant to various crime scenes. ⁵¹¹ Investigator Alton testified that he began investigating burglaries in December 2001 and that he had identified 34 burglaries with a similar mode of operation. Prior to the traffic stop of appellant in Pennsylvania, Investigator Alton had a description of a suspect, described as a black male 5'7" or 5'8" in height. This information was made available to various police departments. Investigator Alton did not know appellant and had not identified him as a suspect.

Investigator Alton was aware that the arrest of appellant on February 12, 2003, was on an outstanding arrest warrant. Based on information obtained from the evidence seized from appellant, Investigator Alton obtained and executed search warrants in Maryland. One of the places searched was a residence located at 26 Belview Avenue in Hagerstown. During the search, the police seized stolen property, some of which had been stolen from the residence of Joseph Marinelli on October 11, 2002.

The police found other items which we will discuss when we address the legal sufficiency of the evidence to sustain the conviction. The search warrants were obtained and executed prior to the Superior Court’s decision. At the suppression hearing, five search warrants were introduced into evidence as State exhibits, and the Superior Court’s opinion was introduced as a court exhibit. The circuit court denied appellant’s motion to suppress.

The court explained: At the time of the vehicle stop the Defendant had an outstanding arrest warrant issued by the State of Maryland, which is not disputed. This court holds that once he was identified by the Pennsylvania authorities and confirmed that he had an outstanding warrant by a neighboring jurisdiction, he was lawfully detained. Maryland law is clear that the issue of identity discovered during an illegal detention is not subject to exclusion by the “fruit of the poisonous tree” doctrine. Modecki v. State, 138 Md.App. 372 , 771 A.2d 521 (2001).

The subsequent search and seizure of the Defendant and his vehicle pursuant to the arrest warrant, and not because of the traffic stop itself was therefore lawful. ⁵¹² In the present case the Defendant neither challenged the legality of the Maryland arrest warrant nor called for its production at the suppression hearing. Therefore, the issue of the warrant not being in evidence at the suppression hearing is of no consequence. Trial Joseph Marinelli testified that someone entered his home on October 11, 2002, by breaking the kitchen door. He testified that various- items were taken, including three strongboxes.

One contained the deed to his house and related papers. Another contained jewelry, including five watches which he valued at $1900. The third contained U.S. Savings Bonds, which he had to cash in, and by doing so, lost four thousand dollars. Mr. Marinelli described other items taken, including a credit card, a backpack, a class ring, a gold charm, and pens and pencils.

Detective Chris Kayser, with the Hagerstown Police Department, testified that he investigated the break-in at Mr. Marinelli’s home. He stated that the value of items stolen, as reported by Mr. Marinelli, included a gold charm valued at $500, a high school class ring valued at $100, and a pearl tie clip valued at $500. He stated that the total loss was reported as $18,840.00. Some of the items were recovered during the search of 26 Belview Avenue.

Investigator Alton testified that he obtained a search warrant for 26 Belview Avenue and executed it on February 20, 2003. When he executed the warrant, a “teenaged female” answered the door, who contacted her mother, Michelle King Hewitt. The officer explained why he and other officers were there, and they then searched the residence. The officers recovered various items of stolen property, including property owned by Mr. Marinelli.

The recovered property owned by Mr. Marinelli included a strongbox containing a deed and other papers, two watches, a backpack, and a pocketknife. ⁵¹³ Investigator Alton testified that, in addition to stolen property, he found mail and bills addressed to appellant at 26 Belview Avenue. He also found male clothing in an upstairs bedroom. Appellant stipulated that property that Mr. Marinelli identified as his was recovered from 26 Belview Avenue. The jury found appellant guilty of theft and that the value of the property stolen had a value of $500 or greater.

Contentions Motion to suppress Appellant contends that Maryland courts are bound by the decision of the Pennsylvania Superior Court, holding that the traffic stop of appellant was illegal. If not binding, according to appellant, we should find that the Superior Court decision is persuasive in its analysis. Alternatively, appellant contends that, if Maryland case law governs, the traffic stop was illegal because the knowledge of the Pennsylvania police officer was legally insufficient to justify the stop. According to appellant, because information obtained as a result of the illegal stop was tainted and included in the subsequent applications for search warrants, including the warrant for 26 Belview Avenue, the circuit court was required to cull out all tainted information and make a probable cause determination.

The circuit court failed to do so. The State contends that the Pennsylvania Superior Court decision was premised on federal constitutional law and is neither binding nor persuasive. The State further contends appellant was properly arrested on an outstanding warrant, and even if his stop and detention were unlawful, his identity discovered as a result of the stop was not “fruit of the poisonous tree” and could not be suppressed. Additionally, the State contends that the initial traffic stop was lawful as a traffic stop, under Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), or based on reasonable articulable suspicion of criminal activity, under Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

Finally, the State contends that, if the stop was illegal, any taint was attenuated because Investigator Alton acted in good faith in ⁵¹⁴ obtaining search warrants, the evidence seized at the time of arrest would have been inevitably discovered because of the outstanding arrest warrant, and appellant could not suppress his identity. Sufficiency of the evidence Appellant was charged with theft by possession. He contends that the male clothing and mail addressed to him found at 26 Belview Avenue were legally insufficient to connect him with the stolen property. Additionally, he contends that the evidence of value of Mr. Marinelli’s property found at 26 Belview Avenue was less than $500, and thus, appellant could not be convicted of felony theft.

Not surprisingly, the State contends that the evidence was legally sufficient to sustain the conviction. Discussion Motion to suppress I. The first issue we address is whether the decision by the Pennsylvania Superior Court is binding with respect to its holding that the stop of appellant was illegal. This turns on whether the decision was premised on Pennsylvania state law or federal constitutional law. As explained in Moore v. State, 71 Md.App. 317, 322-323 , 525 A.2d 653 (1987): The first issue we consider is the application of the arrest jurisdiction’s law to the question of probable cause.

Since the arrest occurred in the District of Columbia, under the ruling in Berigan v. State, 2 Md.App. 666, 668 , 236 A.2d 743 (1968), we apply that jurisdiction’s “law” in testing the validity of the arrest. While the Berigan Court did not delineate what it meant when referring to the “law” of the arrest jurisdiction, the word “law” must refer to the particular statutes and constitutional provisions of that jurisdiction. Where those statutory and constitutional provisions are not in contravention of the United States Constitution, and to the extent that they expand an arrestee’s rights, clearly those provisions control any decision concerning the validity ⁵¹⁵ of an arrest. If the word “law” in Berigan meant case law interpreting federal constitutional law, under the principles of federalism, a sister state’s constitutional interpretation would not necessarily be binding in this State.

Where, however, that sister state’s interpretation is persuasive, as was the case in Berigan , a Maryland court may adopt that jurisdiction’s analysis. Applying this test, we conclude that the Superior Court’s decision is binding with respect to its conclusion that there was no probable cause for the stop based on a violation of motor vehicle laws but, as explained later, is not binding as to the remedy. The decision is also not binding with respect to its conclusion that there was no reasonable articulable suspicion of criminal activity. The Superior Court observed that the prosecution offered two explanations for the stop: (1) the officer’s belief that appellant was exceeding the speed limit, in violation of the motor vehicle code, and (2) the officer’s belief that appellant was engaged in criminal activity.

With respect to the traffic violation, the court relied primarily on Commonwealth v. Whitmyer, 542 Pa. 545 , 668 A.2d 1113 (1995), and concluded that the officer’s observation that appellant was speeding was insufficient to constitute probable cause. In Whitmyer , the officer’s observations were that the defendant changed lanes and drove at an unsafe speed, in excess of the speed limit. Id. at 1114. While the Whitmyer Court discusses Fourth Amendment jurisprudence, our reading of the opinion is that the court’s conclusion rested on the interpretation and application of state statutes, particularly a provision that required an estimate of speed to be based on following the vehicle for at least three-tenths of a mile. 2 See id. at 1117.

The officer had followed the defendant for two-tenths of a mile, not three-tenths as required by the statute, and there was no other evidence of a motor vehicle violation constituting probable cause for a stop. Id. ⁵¹⁶ In 1996, subsequent to the Whitmyer decision, the Supreme Court decided Whren v. United States, holding that a police officer could stop a vehicle based on probable cause to believe that the vehicle or driver was in violation of a provision in a motor vehicle code. 517 U.S. 806, 810 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). Subsequent to Whren , the Supreme Court of Pennsylvania decided Commonwealth v. Gleason, 567 Pa. 111 , 785 A.2d 983, 989 (2001), reaffirming its Whitmyer decision. The Superior Court did not reference any exclusionary rule that might exist under Pennsylvania law for violation of the vehicle code.

Neither did the court in the decisions that it relied upon. No such exclusionary'rule has been called to our attention, and our check has revealed none. Consequently, we conclude that the Superior Court determined that there was no valid stop under federal constitutional law 3 because there was no probable cause for a traffic stop under Pennsylvania statutory law. Thus, the Superior Court applied the federal exclusionary rule as a remedy.

That portion of the decision is not binding on us. In other words, we are bound by the portion of the decision that is based on Pennsylvania statutory law but not the remedy, i.e., suppression. ⁵¹⁷ [4.1 With respect to reasonable articulable suspicion of criminal activity, the Superior Court concluded that the evidence was insufficient to justify the stop. The prosecution relied on knowledge that (1) several burglaries had occurred in the weeks preceding the stop, between 6 p.m. and 9 p.m., in the general area where the officer observed appellant, and that (2) appellant matched the description of a suspect from a February 5, 2003 attempted burglary, (3) exhibited suspicious behavior as the officer approached, and (4) attempted to flee once he spotted the officer. The Superior Court observed that the physical description was “exceedingly general,” the span of time of the burglaries was in fact much broader than argued, and the burglaries occurred one half mile to ten miles away and a week to a month prior to the stop.

The Superior Court also found that there was insufficient evidence of flight. In contrast to the analysis of probable cause to believe that a traffic violation had occurred, the Superior Court’s conclusion that the officer lacked reasonable articulable suspicion of criminal activity appears to have been based solely on federal constitutional requirements. See, e.g., Commonwealth v. Goodwin, 561 Pa. 346 , 750 A.2d 795, 797 (2000) (“we note that Pennsylvania has consistently followed Fourth Amendment jurisprudence in stop and frisk cases ... Tenry v. Ohio sets forth standard for reasonableness of a search[.]”); Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa.Super.1998) (“It is well established “when the police stop a vehicle in this Commonwealth for investigatory purposes, the vehicle, and its occupants are considered “seized” and this seizure is subject to constitutional constraints.’ ”) (quoting Commonwealth v. Knotts, 444 Pa.Super 60, 64, 663 A.2d 216 (1995)).

Consequently, the Superior Court’s decision on this issue is not binding on us. As explained in the next section, however, applying federal constitutional law, we come to the same conclusion on this issue as the Superior Court. 4 ⁵¹⁸ II. In reviewing a denial of a motion to suppress, we look only to the record of the suppression hearing, extend deference to the fact finding of the suppression judge, and accept those findings as to disputed issues of fact unless clearly erroneous. See, e.g., Jones v. State, 343 Md. 448, 457-58 , 682 A.2d 248 (1996); Pryor v. State, 122 Md.App. 671 , 677 n. 4, 716 A.2d 338 (1998); Partee v. State, 121 Md.App. 237, 244 , 708 A.2d 1113 (1998).

We also consider those facts that are most favorable to the State as the prevailing party on the motion. Jones, 343 Md. at 458 , 682 A.2d 248 ; Partee, 121 Md.App. at 244 , 708 A.2d 1113 . We make our own independent constitutional appraisal based on a review of the law as it applies to the facts of the case. Jones, 343 Md. at 457 , 682 A.2d 248 .

This case requires application of the Fourth Amendment of the United States Constitution, which protects against unreasonable searches and seizures. 5 U.S. Const, amend.

IV

The protections of the Fourth Amendment are applicable to the State of Maryland through the Fourteenth Amendment. Mapp v. Ohio, 367 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). “The Fourth Amendment is not, of course, a guarantee against all searches and seizures, but only against unreasonable searches and seizures.” United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985); see also In re Tariq A-R-Y, 347 Md. 484, 490 , 701 A.2d 691 (1997). It is fundamental, under federal and Maryland jurisprudence, that ⁵¹⁹ the detention of a motorist pursuant to a police traffic stop is a seizure encompassed by the Fourth Amendment. See, e.g., Sharpe, 470 U.S. at 682 , 105 S.Ct. 1568 ; United States v. Brignoni-Ponce, 422 U.S. 873, 881 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975); Ferris v. State, 355 Md. 356, 369 , 735 A.2d 491 (1999); Derricott v. State, 327 Md. 582, 587 , 611 A.2d 592 (1992).

Absent a warrant or probable cause, the forced stop of a motorist may be had under the Fourth Amendment when the police officer is “able to point to specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant [the] intrusion.” Ferris, 355 Md. at 384 , 735 A.2d 491 . The Supreme Court has held that this standard can be constitutionally applied to seizures based on suspicion of past criminal activity. United States v. Hensley, 469 U.S. 221, 229 , 105 S.Ct. 675 , 83 L.Ed.2d 604 (1985); see also Berkemer v. McCarty, 468 U.S. 420, 439 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984); Pryor, 122 Md.App. at 679 , 716 A.2d 338 . As the Supreme Court held, fl]f police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony, then a Terry stop may be made to investigate that suspicion.

Hensley, 469 U.S. at 229 , 105 S.Ct. 675 . Under such circumstances, the police are permitted to stop and briefly detain a person to investigate the suspicion. See Derricott, 327 Md. at 587 , 611 A.2d 592 . The Court of Appeals, however, “has consistently held that mere hunches are insufficient to justify an investigatory stop; for such an intrusion, an officer must have ‘reasonable articulable suspicion.’ ” Stokes v. State, 362 Md. 407, 415 , 765 A.2d 612 (2001)(citing Ferris, 355 Md. at 371 , 735 A.2d 491 ); see also Graham v. State, 325 Md. 398, 408 , 601 A.2d 131 (1992); Quince v. State, 319 Md. 430, 433 , 572 A.2d 1086 (1990); Derricott, 327 Md. at 588 , 611 A.2d 592 ; Jones v. State, 319 Md. 279, 287 , 572 A.2d 169 (1990). ⁵²⁰ To determine whether an officer had reasonable articulable suspicion to justify a Ten'y stop, courts “must look at the ‘totality of the circumstances’ of each case to see whéther the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” Collins v. State, 376 Md. 359, 368 , 829 A.2d 992 (2003) (quoting United States v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002), in turn quoting United States v. Cortez, 449 U.S. 411, 417-18 , 101 S.Ct. 690 , 66 L.Ed.2d 621 (1981)).

The Court of Appeals has adopted the following six factors set forth by Professor La-Fave as appropriate considerations in determining what constitutes reasonable suspicion: (1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; (6) knowledge or suspicion that the person or. vehicle stopped has been involved in other criminality of the type presently under investigation. 4 Wayne R. LaFave, Search and Seizure § 9.4(g), at 195 (3d ed. 1996 & 2000 Supp.); accord Collins, 376 Md. at 368 , 829 A.2d 992 ; Stokes, 362 Md. at 420 , 765 A.2d 612 ; Cartnail v. State, 359 Md. 272, 289 , 753 A.2d 519 (2000); State v. Lemmon, 318 Md. 365, 378 , 568 A.2d 48 (1990). In Collins v. State, the Court of Appeals held that the police officer possessed reasonable articulable suspicion that Collins was involved in a recently reported robbery offense, and thus was justified in making the Terry stop. 376 Md. at 371-72 , 829 A.2d 992 . In Collins , the police officer arrived at the scene of the robbery of a convenience store, obtained a description of the robber from the store clerk, and promptly broadcast the description to other members of the police department. Id. at 363-64 , 829 A.2d 992 .

On appeal, Collins argued that the officer who stopped