Nieves v. State

RAYMOND G. THIEME, JR., Judge (Ret’d, Specially Assigned). This case is one of first impression. Following the arrest of appellant, Chris Nieves, he was transported to the police station and subsequently strip searched. It is undisputed that the strip search yielded several baggies of crack cocaine that were partially protruding from appellant’s rectum.

He maintains that, because the officers lacked reasonable suspicion to conduct a strip search incident to his arrest for a minor offense, the search was unconstitutional and his motion to suppress the fruits of that search (ie., the crack cocaine) should have been granted. Following the denial of his motion to suppress, appellant was convicted by the Circuit Court for Washington County of possession with the intent to distribute cocaine, possession of cocaine, and driving without a license and two other violations of the Transportation Article of the Maryland Code. For the possession of cocaine with the intent to distribute conviction, appellant was sentenced to ten years without the possibility of parole. The circuit court merged the possession of cocaine ⁶⁵² conviction, and imposed monetary fines for the three traffic-related violations.

This appeal followed and presents the following question: Did the trial court err by denying appellant’s motion to suppress the evidence seized subsequent to a strip search of appellant? We answer “Yes” and explain. FACTS Testimony at the hearing on appellant’s Motion to Suppress disclosed that at approximately 7:45 a.m., Officer Ackerman was on routine patrol in the area of Wakefield Road and West Franklin Street. Officer Ackerman explained that when he stopped his vehicle behind a Toyota pick-up truck at the intersection stop sign, he noticed that the driver and sole occupant of the pick-up truck, later identified as appellant, appeared to be having some difficulty with the truck’s transmission gear shift.

Officer Ackerman testified that “the vehicle started to drift back as if the clutch was engaged and it wasn’t in gear.” The pick-up truck rolled backward and struck Officer Ackerman’s police vehicle. Officer Ackerman approached appellant’s vehicle and asked appellant “if he possessed a valid driver’s license,” to which appellant responded that he did not. Officer Ackerman then asked appellant if he possessed “a valid driver’s license in any state,” to which appellant responded that he did not. At that point, Officer Jason Dietz, who had been riding in the police vehicle with Officer Ackerman, exited the police vehicle and began questioning appellant.

Meanwhile, Officer Ackerman received information from the police dispatcher that the pickup truck was registered to a female who had been reported missing for ten days. According to Officer Ackerman, Officer Dietz asked appellant for his name, and appellant responded that his name was “Nathan Nieves.” He further informed the officer that his date of birth was June 26, 1976. Officer Ackerman testified that Officer Dietz then ran a check for driver’s license infor ⁶⁵³ mation and a check for any outstanding warrants. The checks returned no information.

Officer Ackerman testified that he and Officer Dietz then advised appellant of the dispatcher’s negative result, and appellant responded by providing a different first name, that of “Chris,” but the same last name. The dispatcher’s check of the name “Chris Nieves” revealed that appellant did not have a valid driver’s license, but instead had only an identification license, which was suspended. There were no outstanding warrants. At that time, according to Officer Ackerman, the officers placed appellant under arrest for giving false information.

Officer Ackerman stated during cross-examination that the probable cause for the arrest was “for obstruction and hindering a police officer.” Officer Ackerman testified that prior to appellant’s arrest appellant consented to a pat-down. Officer Ackerman testified that during the pat-down he felt “an item” in appellant’s pocket. Upon receiving permission to remove the item, Officer Ackerman discovered a roll of money totaling $375. Officer Ackerman explained that Officer Batistig had arrived on the scene, as department regulations mandate that “if one officer is involved in a motor vehicle collision another officer has to investigate that accident.” Officer Batistig testified that he transported appellant to the police station upon his arrest.

Officer Batistig also authored the statement of probable cause. Upon arriving at the Hagerstown Police Station, Officer Batistig met with Lieutenant Johnson, who was investigating the case of Melissa Langford, the missing female to whom the pick-up truck was registered. When Lieutenant Johnson saw appellant, he identified him as “Chris Nieves” and explained that he knew appellant from two prior occasions related to his work with the Narcotics Task Force. Lieutenant Johnson further explained: When they were doing the booking procedures obviously the search and subsequent fingerprint processing, photographs ⁶⁵⁴ and so forth I indicated to them because of his prior drug activity and the knowledge that I had at that time that he needed to be strip searched.

It was stipulated at the suppression hearing that the strip search of appellant produced two small plastic baggies, each containing smaller individually wrapped baggies of cocaine. Defense counsel entered appellant’s Motor Vehicle Administration record into evidence, which stated appellant’s name as “Chris Nathan Nieves” and his date of birth as June 26, 1976. The trial court denied appellant’s motion to suppress. During appellant’s bench trial, the State presented essentially the same testimonial evidence as it did during the suppression hearing.

Unlike at the suppression hearing, appellant testified that his name was Chris Nathan Nieves. Appellant admitted that he was under the influence of cocaine during the morning in question. Appellant testified that, when the officers informed him that the name “Nathan Nieves” did not produce any results from the police dispatcher, he “told them to add Chris in front of the name.” The trial court convicted appellant of possession with the intent to distribute cocaine. DISCUSSION Initially, appellant claims that his arrest was illegal because the police did not have probable cause to arrest him for obstructing or hindering the police in the performance of their duties.

Our review of the propriety of the trial court’s denial of a motion to suppress evidence is limited to the record developed at the motions hearing. In determining whether the police officers’ conduct was reasonable, we consider only those relevant facts produced at the suppression hearing that are most favorable to the State as the prevailing party on the motion. Although we make our own independent appraisal of whether a constitutional right has been violated, we will not disturb the trial court’s factual findings unless those findings are clearly erroneous. ⁶⁵⁵ Wengert v. State, 364 Md. 76, 84 , 771 A.2d 389 (2001) (citations omitted). With respect to weighing and determining first-level facts (such as the number of officers at the scene, the time of day, whether certain words were spoken, etc.), we extend great deference to the fact-finding of the suppression hearing judge.

Dashiell v. State, 374 Md. 85, 93 , 821 A.2d 372 (2003). In this case, however, the trial judge made no findings of first-level facts. The court’s ruling simply stated: Upon consideration of the testimony submitted at the May 21 hearing, it is determined that detaining the defendant under the totality of the circumstances and subsequent search were reasonable. Therefore, the motion to suppress evidence obtained as the result of that search is, this 7th day of June, 2002, denied.

With that as our focal point, we will now consider appellant’s arguments, and we will review the evidence in the light most favorable to the State, as the prevailing party. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990). the arrest Although probable cause itself is a mixed question of law and fact with respect to which an appellate court may make its own independent de novo determination, Ornelas v. United States, 517 U.S. 690 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996), the facts that go into probable cause are within the fact-finding prerogative of the suppression hearing judge. Appellate courts extend great deference to such fact-finding, unless it is deemed to have been clearly erroneous. Bums v. State 149 Md.App. 526, 535 , 817 A.2d 885 (2003). “The rule of probable cause is 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 arouse a mere suspicion.” We have recognized that in dealing with probable cause, we deal with probabilities. “These are not technical; they are the factual and practical consider ⁶⁵⁶ ations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. at 539 , 817 A.2d 885 (quoting Johnson v. State, 142 Md.App. 172, 190 , 788 A.2d 678 (2002)) (citations omitted).

Appellant claims initially that the police lacked probable cause to arrest him for the common-law crime of obstructing and hindering a police officer in the performance of his duty. The Court of Appeals has set forth four elements that comprise the common-law offense of obstructing or hindering a police officer: (1) A police officer engaged in the performance of a duty; (2) An act, or perhaps an omission, by the accused which obstructs or hinders the officer in the performance of that duty; (3) Knowledge by the accused of facts comprising element (1); and (4) Intent to obstruct or hinder the officer by the act or omission constituting element (2). DiPino v. Davis, 354 Md. 18, 33-34 , 729 A.2d 354 (1999). Apparently accepting that the police were performing their duties during their encounter with him and that he was aware that they were doing so, appellant contends that the police did not have probable cause to believe that he, by act or omission, hindered or obstructed their efforts with the intent to do so.

The State argues that, when Officer Jason Ackerman and Officer Jason Dietz reported to dispatch that appellant’s truck had collided into their patrol car, they were informed that the vehicle was registered to a female whose parents had reported her missing ten days earlier. Thus, at the time of their initial encounter with appellant, the police investigation involved the auto accident and appellant’s relationship to the missing female. When the police approached appellant and asked for his license, he failed to produce one. Officer Ackerman testified that, when asked to identify himself, appellant stated that his name was “Nathan Nieves” and that his birth date was June ⁶⁵⁷ 26, 1976.

Information was run through a computer database for license status and outstanding warrants, and no results returned. Asked a second time for his identity, appellant revealed that “his name was Chris with no middle name with the same date of birth.... ” When the police ran the name “Chris Nieves” through the same computer database, they discovered that appellant’s license to drive had been suspended by the State of Maryland. The Motor Vehicle Administration record revealed appellant’s full name is “Chris Nathan Nieves,” and his birth date is, in fact, June 26, 1976. The fact that appellant initially provided his middle name in place of his first name, according to the State, constituted probable cause to arrest appellant for obstructing and hindering a police officer.

Based on these circumstances, the State concludes that it was reasonable for the police to believe that appellant was trying to prevent the police from discovering his identity and driving status so that he could escape the consequences of driving on a suspended license and/or hinder the investigation into the accident and the missing female. The State ignores the fact that appellant did not provide a false or fictitious name; he simply provided his middle name as his first name, an act that is not at all uncommon. More important, appellant provided the police with his correct last name and his correct date of birth, arguably the only necessary information the police actually needed to ascertain appellant’s identity. Nothing about appellant’s act could possibly “lead a reasonably cautious person” to believe appellant was intending to obstruct or hinder a police officer.

Further, appellant’s act did not actually cause any hindrance. In DiPino, supra, a police officer suspected that the plaintiff had revealed the officer’s undercover status by announcing to his companion in a loud voice, and in a public place frequented by drug dealers and drug users, that DiPino and her partner were undercover detectives. DiPino, 354 Md. at 24-25 , 729 A.2d 354 . The Court found that DiPino did not have probable cause to believe that Davis had committed the crime of hindering because there was no evidence that DiPino was engaged in police activities when Davis made his ⁶⁵⁸ remarks, and thus no showing that Davis frustrated DiPino’s ability to carry out her assignment.

The Court concluded that there was no evidence that the plaintiff’s remarks hindered the performance of the police officers. Id. at 35-36 , 729 A.2d 354 . “Once the remark was made,” the Court stated, “they [Officer DiPino and her partner] got into their car and left, uneventfully. The assertion in DiPino’s application for a Statement of Charges that she was placed in ‘extreme danger’ is entirely without foundation.” Id. at 36 , 729 A.2d 354 . The Court ruled that the officer “had no probable cause to believe that [the plaintiff] had committed the crime of hindering by virtue of his remark to [his companion].” Id. at 42 , 729 A.2d 354 .

The State argues that DiPino is factually dissimilar because in this case the police were actively engaged in their investigation of the accident, appellant’s driving status, and his possession of a missing person’s vehicle at the time he gave his name to the police. Here, as in DiPino , the State produced no evidence to demonstrate how appellant’s act actually obstructed and hindered the police officers. In sum, based on the totality of the circumstances, it was unreasonable for the police to believe that appellant had provided a false name in order to hinder and/or obstruct the investigation of the car accident, his driving status, and the missing person. Accordingly, his arrest on that charge was unlawful.

Thus, even though we have determined that the police lacked probable cause to arrest appellant for hindering a police officer, a reversal would not, as appellant suggests, be required, because his arrest was otherwise justified. At the suppression hearing, the State noted driving on a suspended license as a basis of authority for appellant’s arrest. The simple answer is that the police had probable cause to arrest appellant for various traffic offenses, including driving without a license. Thus, the police were entitled to effect his arrest based on the traffic violations alone.

See Md.Code (2002 Repl. Vol.) Transportation Article (“TA”), ⁶⁵⁹ § 26-202(a)(2)(i) (authorizing an arrest for any violation of Maryland’s traffic laws when the person has committed the violation in the presence of an officer). Appellant could not produce a valid driver’s license when approached by the police and his license to drive was suspended in Maryland, 1 an offense that justifies an arrest regardless of whether the person can produce satisfactory evidence of identity. See Md.Code TA § 26-202(a)(3)(iv) (authorizing arrest where the officer has probable cause to believe that person is driving on a suspended or revoked license).

In his second issue, appellant argues that the strip search was impermissibly based solely on his past criminal arrest record for drug offenses and not on a reasonable articulable suspicion that he was in possession of contraband at the time of the search. We agree and explain. A The Fourth Amendment & Search Incident to a Lawful Arrest It is axiomatic that warrantless searches conducted within the purview of the Fourth Amendment are per se unreasonable absent some specifically recognized exception. Gamble v. State, 318 Md. 120, 123 , 567 A.2d 95 (1989).

It is equally well settled, however, that “[a] search incident to a valid arrest is one of the limited exceptions to the warrant requirement.” Ricks v. State, 322 Md. 183, 188 , 586 A.2d 740 (1991) (citing Chimel v. California, 395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969)). Nevertheless, the search incident to arrest exception to the warrant requirement does not give a police officer unfettered access to search the arrestee wherever and however that officer so chooses. The essential purpose of the Fourth Amendment is to impose a standard of “reasonableness” upon government searches and seizures and to limit ⁶⁶⁰ the exercise of discretion by government officials. As emphasized by the Supreme Court in United States v. Edwards, 415 U.S. 800, 808 , 94 S.Ct. 1234 , 39 L.Ed.2d 771 (1974), regardless of the applicability of the search incident exception, the search of an individual must still conform to the general constraints of reasonableness: Holding the Warrant Clause inapplicable in the circumstances present here does not leave law enforcement officials subject to no restraints.

This type of police conduct “must [still] be tested by the Fourth Amendment’s general proscription against unreasonable searches and seizures.” (Quoting Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).) Whether a search is reasonable requires careful scrutiny of the circumstances of each individual case. Bell v. Wolfish, 441 U.S. 520 , 99 S.Ct. 1861 , 60 L.Ed.2d 447 (1979), is the first articulation by the Supreme Court of Fourth Amendment protection against unreasonable strip searches during pretrial detention. In Bell , the Supreme Court announced a balancing test that became the touchstone of Fourth Amendment analysis in the strip search context. The Court indicated several factors must be considered, including “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Id. at 559 , 99 S.Ct. 1861 .

Having already determined that the arrest of appellant was based on probable cause and, therefore, proper, there is no question that following his arrest appellant could have been (and should have been) searched as a natural consequence of that arrest. We are called to determine, however, whether the strip search following appellant’s arrest went beyond the bounds of reasonableness dictated by the Fourth Amendment. B Strip Searches Generally .Much of what is important in human life takes place in a situation not open to the entire world. The Supreme Court’s ⁶⁶¹ landmark decision in Katz v. United States 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), placed privacy at the heart of the Fourth Amendment.

Although there may be a lack of a precise definition of the vague and inclusive notion of privacy, that does not indicate an indifference to privacy. Searches of the person of any variety undoubtedly invade that individual’s privacy, but a strip search procedure flies in the face of individual privacy rights. Strip searches, moreover, particularly intrude upon the individual’s sanctity of his own body. In Justice v. City of Peachtree City, 961 F.2d 188 , 191 (11th Cir.1992), the Court of Appeals for the Eleventh Circuit astutely observed: We accept as axiomatic the principle that people harbor a reasonable expectation of privacy in their “private parts.” In Doe v. Calumet City, Illinois, 754 F.Supp. 1211 (N.D.I11. 1990), the court recognized that “deeply imbedded in our culture ... is the belief that people have a reasonable expectation not to be unclothed involuntarily, to be observed unclothed or to have their ‘private’parts observed or touched by others.” (Internal citation omitted; emphasis added.) Likewise, John Does 1-100 v. Boyd, 613 F.Supp. 1514, 1522 (D.C.Minn.1985), also highlighted the degradation and invasion of privacy associated with a strip search: The experience of disrobing and exposing one’s self for visual inspection by a stranger clothed with the uniform and authority of the state, in an enclosed room inside a jail, can only be seen as thoroughly degrading and frightening.

Moreover, the imposition of such a search upon an individual detained for a lesser offense is quite likely to take that person by surprise, thereby exacerbating the terrifying quality of the event. (Emphasis added.) See also, Wood v. Clemons, 89 F.3d 922, 928 (1st Cir.1996) (“A strip search can hardly be characterized as a routine procedure or as a minimally invasive means of maintaining prison security. Indeed, a strip