Partlow v. State

⁶²⁹ RAYMOND G. THIEME, JR. (Retired, Specially Assigned), J. Tavon Jamaal Partlow, appellant, was charged "with possession of and possession with intent to distribute cocaine, a Schedule II controlled dangerous substance (“CDS”). Prior to trial before the Circuit Court for Harford County, appellant moved to suppress the drug evidence recovered by police following a traffic stop of the vehicle he was driving. That motion was denied, and appellant subsequently proceeded by way of a not guilty plea on an agreed statement of facts.

Appellant was convicted of possession with intent to distribute. The State nol prossed the remaining charge, and the court imposed a sentence of 20 years in prison, suspending all but seven years, to be served concurrently with any other outstanding or unserved sentence. This timely appeal followed. Appellant presents only one question for our review: Did the trial court err in denying the motion to suppress?

We answer appellant’s question in the negative, and we thus affirm the judgment of the circuit court. FACTS and LEGAL PROCEEDINGS Hearing on the Motion to Suppress On April 29, 2009, appellant was heard on his motion to suppress the CDS evidence recovered from his person when the car he was driving was stopped by police. The following evidence was adduced at that hearing. Harford County Sheriffs Office Deputy First Class Robert Schultz was on patrol on February 3, 2009 when he received a call from dispatch at approximately 9:00 p.m.

The dispatcher relayed that a caller had witnessed what he or she believed to be a drug transaction in the area of Woodbridge. The caller stated that the deal involved an unidentified male and a black male in a tan colored Cadillac with tag number 5EHW11. 1 ⁶³⁰ DFC Schultz located the subject Cadillac — which matched the description in the tip exactly — several blocks from where the caller had seen the alleged drug deal occur. When Schultz observed the Cadillac proceed through an intersection without coming to a complete stop at a stop sign, he pulled in behind the Cadillac. At that time, he further observed that the vehicle’s third brake light was not fully illuminated. 2 At 9:38 p.m., Schultz initiated a traffic stop of the vehicle, with only the driver inside, whom Schultz identified as appellant.

Upon speaking with appellant, Schultz recognized him as the subject of a criminal investigation Schultz had undertaken a few years earlier. Schultz said he knew that appellant had been involved in drug activity in the past. He was also aware that appellant’s name was on a list of known gang members in Harford County. 3 Schultz also noticed “a large amount of U.S. currency overflowing from the center armrest,” as well as numerous air fresheners in the car, which, to him, indicated an attempt to mask the smell of CDS. Schultz returned to his cruiser to verify appellant’s license and registration and to run a warrants check; everything was in order.

Within one minute, he also called for a K9 officer to conduct a scan of appellant’s vehicle for the odor of narcotics. Before the K9 unit arrived, Schultz’s partner conducted a pat-down of appellant’s person for weapons; none was recovered. 4 Corporal John Seilback of the Harford County Sheriffs Office K-9 unit arrived at the scene of the stop with his dog, ⁶³¹ Sabre, at 9:50 p.m., after having been dispatched at 9:39 p.m. Schultz said that when the K-9 unit arrived, he had not yet completed writing the warnings for appellant’s two traffic violations. Upon his arrival, Corporal Seilback scanned the Cadillac.

Sabre gave a positive alert for the odor of narcotics along the driver’s door. Following the alert, Schultz undertook a further search of appellant’s person, during which he felt a hard object “underneath Mr. Partlow’s buttocks within his clothes.” Appellant’s jeans were secured with a belt below his buttocks, with his underwear showing above the waistband of the jeans. When Schultz felt the item under appellant’s buttocks, he attempted to remove it, but it would not come loose. Therefore, Schultz pulled the underwear away from appellant’s body and used a pocket knife to cut a small piece — “the size of a baseball maybe” — out of the underwear to retrieve the item, which he believed to be crack cocaine.

The search left a portion of appellant’s buttocks exposed. The suspected CDS was recovered at 9:56 p.m. Schultz advised appellant he was under arrest and read him his Miranda 5 rights. He then searched the vehicle, which turned up $1091; no CDS was located in the vehicle.

Schultz said that appellant advised he had “just gotten back into it, referring to the selling of CDS,” because the economic recession had caused him to fall upon hard times. In closing, the State argued that when Schultz received the tip about a drug deal, which included the approximate location of the deal, the type of car, exact license plate, and description of the driver, he had a reasonable, articulable suspicion to believe that a crime had occurred and thus a lawful basis on which to stop appellant’s car. When appellant did not stop fully at a stop sign and was observed driving with a nonfunctional brake light, Schultz also had a legitimate basis upon which to effectuate a valid traffic stop. Once he made the ⁶³² stop and realized that he was familiar with appellant’s past drug and gang related activities, and additionally observed a large amount of currency and numerous air fresheners in the car, Schultz had a reasonable, articulable suspicion of drug activity to support his call to the K-9 unit.

The State further argued that the traffic stop was not unnecessarily delayed and the continued detention of appellant was lawful because they had reasonable suspicion to believe he was involved in illegal drug activity. Once the K-9 dog alerted for narcotics in the vehicle, Schultz had a lawful basis to arrest appellant and search his person, as he was the driver and sole occupant of the car. With regard to the search in which a portion of appellant’s underwear was cut to retrieve the suspected drug evidence, the State noted that the parties agreed that appellant was not disrobed at any time and argued that his modesty must give way to “reasonable precautionary procedures designed to protect evidence, drugs or objects that might be used against others or might cause sudden inflicted harm.” Furthermore, there was no testimony that anyone other than the police officers was present at the search to violate appellant’s privacy. In light of the circumstances, the State concluded, the search of appellant’s person was not unreasonable.

The defense argued that the traffic stop was a mere pretense for a drug investigation because the police cruiser dashboard video showed appellant neither failing to make a full stop at the stop sign nor driving with an unilluminated brake light. Once Schultz stopped the vehicle on the pretense of a traffic stop, counsel continued, he immediately called for the K-9 unit, rendering the stop not a traffic stop but a drug stop with the pretext of a traffic stop without the requisite probable cause to undertake the ensuing investigation. Furthermore, appellant averred, Schultz had probably completed writing the traffic violation warnings before the K-9 unit arrived, so even if the traffic stop had been valid at the start, it was complete before the drug alert by the drug sniffing dog, thereby rendering the continued detention a ⁶³³ second detention without the requisite probable cause. As such, appellant concluded, the drug evidence was illegally obtained from his person.

As for the search of his person, appellant stated that exposing one’s buttocks to passers by is “not the kind of thing we want to do to people that are stopped for traffic stops.... [T]hat’s not the way police are expected to conduct themselves in terms of going down in peoples’ private areas if it can be done in private areas.” The court found that the initial stop was legitimate, as Schultz had observed appellant commit stop sign and brake light violations. The detention was thus legal so long as no more time passed than it took the officer to process the traffic issues, and the testimony showed that the K-9 dog alerted for drugs before Schultz had completed the writing of the two warnings. The court thus ruled that the length of the detention was not beyond what was necessary to process the traffic violations, but even if it were, Schultz had a reasonable, articulable suspicion to continue the search based on a complaint of a drug sale made in appellant’s car, the matching license tag number, and the matching description of appellant. Furthermore, the officer realized he had personal knowledge of appellant being involved in prior drug and gang activities.

The officer also saw a large amount of cash in plain view and numerous air fresheners, both of which could reasonably be associated with drug activity. The court concluded that all the factors, taken as a whole, supported a finding that Schultz had a reasonable suspicion for a search. As to the circumstances of the search, the court found that there was “no grand display or embarrassing process,” as the search was probably not seen by anyone other than police personnel. In any event, the court said, the search was not a strip search and was not unreasonable, due to its location and minimal body exposure.

In sum, the court ruled the searches of the car and of appellant to be lawful once the K-9 dog alerted to the pres ⁶³⁴ ence of drugs. The court therefore denied appellant’s motion to suppress. Trial On October 13, 2009, appellant proceeded by way of a not guilty plea on an agreed statement of facts to the charge of possession of cocaine with intent to distribute. 6 The agreed statement of facts essentially mirrored the testimony provided at the suppression hearing, with the addition of the following facts: 1) the Maryland State Police Crime Lab verified that the suspected CDS evidence seized from appellant comprised 8.8 grams of cocaine, and; 2) Sergeant John Burton of the Maryland State Police would have testified as an expert in the identification, packaging, and distribution of CDS that the quantity and packaging of the CDS, along with the amount of money recovered, were consistent with intent to distribute and not personal use. From the facts presented, the court found appellant guilty beyond a reasonable doubt of possession with the intent to distribute cocaine.

The State nol prossed the simple possession count, and appellant was sentenced, as noted above. DISCUSSION Appellant contends that the suppression court erred in denying his motion to suppress the CDS evidence. He argues, as he did before the trial court, that: 1) the delay between the pretextual traffic stop and the canine alert was longer than necessary to accomplish the objective of the traffic stop and was not supported by reasonable suspicion, and; 2) the public strip search was unreasonable. The State disagrees, arguing that the length of time between the onset of the traffic stop and the K-9 alert was not unreasonable and that, in any event, at the outset of the traffic stop, the police had reasonable suspicion to believe appellant ⁶³⁵ was involved, with illegal drug activity and thus to detain him until the K-9 unit arrived.

Additionally, the police search of appellant’s person after the K-9 unit alerted to the car for CDS was reasonable, given the circumstances. Our review of a circuit court’s denial of a motion to suppress evidence is ordinarily limited to information contained in the record of the suppression hearing and not the record of the trial. When the motion to suppress has been denied, we consider the facts in the light most favorable to the State as the prevailing party on the motion. Dashiell v. State, 374 Md. 85, 93 , 821 A.2d 372 (2003) (citing State v. Collins, 367 Md. 700, 706-07 , 790 A.2d 660 (2002)).

We do not engage in de novo fact finding. Instead, we “‘extend great deference to the findings of the motions court as to first-level findings of fact and as to the credibility of witnesses, unless those findings are clearly erroneous.’ ” Padilla v. State, 180 Md.App. 210, 218 , 949 A.2d 68 (quoting Brown v. State, 397 Md. 89, 98 , 916 A.2d 245 (2007)), cert. denied, 405 Md. 507 , 954 A.2d 468 (2008). We do, however, review de novo all legal conclusions, “making our own independent constitutional determination of whether the search in question was lawful.” Conboy v. State, 155 Md.App. 353, 362 , 843 A.2d 216 (2004). The Fourth Amendment to the United States Constitution 7 prohibits unreasonable governmental searches and seizures, and its protections extend to brief investigatory police stops of persons or vehicles that fall short of traditional arrest.

Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). However, because the “balance between the public interest and the individual’s right to personal security tilts in favor of a standard less than probable cause in such cases, ⁶³⁶ the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity may be afoot.” U.S. v. Arvizu, 534 U.S. 266, 273 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002) (internal quotes and citations omitted). Under Terry and its progeny, police may, under appropriate circumstances and in an appropriate manner, conduct a brief investigatory stop if “there is a reasonable and articulable suspicion that the person is involved in criminal activity.” Nathan v. State, 370 Md. 648, 660 , 805 A.2d 1086 (2002). The Supreme Court has held that a “stop and frisk” may be conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures, so long as two conditions are met.

First, the investigatory stop must be lawful, that is, the police officer must reasonably suspect that the person apprehended is committing or has committed a criminal offense, and second, to proceed from the stop to the frisk, the officer must reasonably suspect that the person stopped is armed and dangerous. Arizona v. Johnson, 555 U.S. 323 , 129 S.Ct. 781, 784 , 172 L.Ed.2d 694 (2009) (citing Terry, supra). In the context of a traffic stop, the first Terry condition, a lawful investigatory stop, is met whenever police may lawfully detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not, in addition, believe any occupant of the vehicle is involved in criminal activity.

Id. In this matter, Deputy Schultz indicated that he stopped appellant’s vehicle when it ran a stop sign and proceeded on a public road with one of its brake lights partially nonfunctional. Therefore, although he admitted that he had been hoping appellant would commit a traffic violation to support a drug investigation, Schultz had at least a reasonable, articulable suspicion on which to base the initial traffic stop, notwithstanding the fact he may have had some other purpose in mind in making the stop. See Whren v. U.S., 517 U.S. 806 , ⁶³⁷ 813, 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). 8 Although appellant, at the suppression hearing, denied that he had committed a traffic violation, on appeal, he does not contest the reasonableness of the initial traffic stop, so the legality of the beginning of his detention is established.

State v. Ofori, 170 Md.App. 211, 220 , 906 A.2d 1089 , cert. denied, 396 Md. 13 , 912 A.2d 649 (2006). He also makes no attempt to assail the alert by the K-9 dog itself as probable cause for his subsequent arrest and search. He contends, instead, that the time between the detention related to the initial stop and the alert by the K-9 unit was unreasonable to the point of creating a second detention, which was unsupported by probable cause. We disagree with the appellant’s contention of the need for probable cause.

It is well settled that police may stop and briefly detain a person for purposes of investigation if the officer has a reasonable suspicion supported by articulable facts that criminal activity may be afoot. See Terry, 392 U.S. at 30 , 88 S.Ct. 1868 ; see also Stokes v. State, 362 Md. 407, 415-16 , 765 A.2d 612 (2001). With any analysis of reasonable suspicion, the totality of the circumstances must be considered. See, e.g., United States v. Arvizu, 534 U.S. 266, 273-74 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002).

As the trial court recognized, there were a number of factors, when taken “in combination,” constituted reasonable articulable suspicion to continue the detention of Partlow until the arrival of the police dog. Partlow’s ear, a champagne-colored Cadillac, and his license plate matched the description of the car that was alleged to have been involved in a drug transaction a short time before and in the same vicinity as where Partlow was stopped. When Deputy Schultz, who had ⁶³⁸ training and experience in drug investigations, approached the car, he recognized Partlow from prior drug activity and he understood that Partlow’s name was on a list of gang members. Deputy Schultz observed in plain view a large amount of currency overflowing from the center armrest area of the vehicle, which the trial court recognized as possibly indicative of illegal drug activity, and also a number of air fresheners in the car.

We have stated that the use of a drug sniffing dog is “a perfectly legitimate utilization of a free investigative bonus” to a valid traffic stop, so long as the traffic stop is still genuinely in progress when the dog alerts to the presence of narcotics. Ofori, 170 Md.App. at 235 , 906 A.2d 1089 . The courts, however, attempt to impose a restraint upon police by ensuring that traffic stops are not unduly prolonged simply to allow more time for the K-9 unit to arrive on the scene. Id.

The basic rule is easy to articulate: once the traffic-related purpose of the stop has been met, any detention based on the traffic stop should end, and the detainee should be permitted to leave the scene immediately. There is “no waiting for the arrival, even the imminent arrival, of the K-9 unit.” Id. If the traffic stop has ended, any further detention will only be permitted if there is an independent justification for it. Id.