Powell v. State

HOLLANDER, Judge. In this appeal, we focus on the status of a brown paper bag that was searched by police after it was placed at the curb of a ⁵⁸⁹ public street in Baltimore City by Marvin Powell, appellant. Appellant vigorously maintains that he did not abandon the bag, and therefore he contends that the police unlawfully searched it. Accordingly, he challenges the order of the Circuit Court for Baltimore City, denying his motion to suppress the cocaine recovered from the bag.

This case arises from a covert drug surveillance operation conducted by the Baltimore City Police Department on the evening of January 1, 2000. During the surveillance, the police saw appellant carefully place a brown paper bag near the curb of a public street. From the circumstances of appellant’s conduct, the police suspected that the bag contained narcotics. Members of a police team briefly stopped appellant while the bag was searched, and recovered 34 brown glass “jugs” of suspected crack cocaine, later determined to consist of 116.65 grams of cocaine.

The court found that the bag was not abandoned. Moreover, the court concluded that the seizure of appellant constituted an arrest. Nevertheless, the court denied appellant’s suppression motion, because it found that the arrest was supported by probable cause. Thereafter, a jury convicted Powell of possession with intent to distribute cocaine, for which he was sentenced to twelve years of imprisonment.

On appeal, Powell poses one question for our consideration: Whether the lower court erred in denying the motion to suppress. In our view, this case illustrates the sometimes critical distinction between the concept of abandonment as that term is used in property law, and the overarching principle of reasonable expectation of privacy that is central to Fourth Amendment analysis. As we see it, even if appellant did not intend to abandon the paper bag, thereby retaining a property interest in it, he had no reasonable expectation of privacy in the bag. Therefore, for purposes of Fourth Amendment analysis, the bag was abandoned.

Accordingly, although we do not agree with the trial court’s reasoning in denying the motion to suppress, we shall affirm, because we are satisfied ⁵⁹⁰ that the court reached the correct result. 1 See Offutt v. Montgomery County Bd. of Educ., 285 Md. 557 , 564 n. 4, 404 A.2d 281 (1979) (noting that “an appellate court may affirm a trial court’s decision on any ground adequately shown by the record”). FACTUAL SUMMARY — MOTION TO SUPPRESS On September 12, 2000, the trial court held a hearing on appellant’s motion to suppress the narcotics recovered from the brown paper bag. At the hearing, appellant asserted, inter alia, that the search and seizure of the bag was illegal, because appellant retained dominion and control over the paper bag, and thus did not abandon it. Moreover, Powell claimed that when the police stopped him moments after he put the bag on the ground, the stop constituted an arrest, for which the police lacked probable cause.

The State countered that appellant abandoned the bag in the gutter of a public street and thus lacked standing to challenge the search. Alternatively, the State claimed that the stop was a lawful investigatory stop, but, even if it was an arrest, the police had probable cause. Baltimore City Police Officer Parker Elliott was the only witness to testify. He was accepted by the court as an expert in “identification, packaging[,] and distribution patterns of controlled dangerous substances.” The following testimony is relevant: [PROSECUTOR]: [Officer Elliott] have you had any specialized training in controlled dangerous substance enforcement? [OFFICER ELLIOTT]: I have. [PROSECUTOR]: Can you describe this training, including the type and hours to the Court? ⁵⁹¹ [OFFICER ELLIOTT]: Basically it was identification of the narcotics and its packaging and identification of street level distribution and their patterns.

THE COURT: And what did you learn in that 40 hours [of training]? [OFFICER ELLIOTT]: Ma’am, basically identifying the narcotics and its packaging and its distribution patterns. THE COURT: What do you mean, “distribution patterns”? [OFFICER ELLIOTT]: Identifying what is done in a hand to hand transaction, what the transaction usually consists of, how the narcotics are carried, how they stash them, where to find them.... (Emphasis added). Officer Elliott testified that, at approximately 8:00 p.m. on January 1, 2000, he was conducting covert surveillance in the 1200 block of Bond Street from a rooftop location.

Over the next forty-five minutes, Officer Elliott witnessed numerous drug transactions but made no arrests. At approximately 8:45 p.m., Officer Elliott observed appellant walking with a brown paper bag, about the size of a “softball,” which was “cupped in his hand down to his side.” According to Officer Elliott, “[h]ands is [sic] important,” and he “watcbfes] hands.” Further, the officer stated that “[fit’s known that narcotics are usually transported in brown paper bags.” Based on his expertise, the officer said his attention was “drawn” to the paper bag in appellant’s hand; the officer suspected that the bag contained narcotics. The officer saw Powell look up and down the street several times. According to the officer, Powell then “very gently sat the bag down in the gutter right on the curb side and then stood up, looked right and left again and backed up.... ” The officer recounted that appellant “took a couple of steps back, looked back and forth as he was stepping back and just stepped back about two sets of steps, row house steps and then just stood there.” At the time, Officer Elliott was ⁵⁹² located approximately 30 yards from where appellant stopped.

Although it was dark out, the area was- illuminated by street lights, and Officer Elliott’s view of appellant was not obstructed. Further, the officer testified that when he saw appellant put the bag in the street, he did not believe appellant was merely discarding garbage. Nor did the officer believe that appellant “was abandoning” the bag, despite the fact that Powell “set” it “down” in the street. To the contrary, because appellant placed the bag on the ground “gingerly and gently as not to break something in it,” the officer believed that such conduct showed that appellant was “still worried about the contents of that bag....” Officer Elliott added that, based on his experience, he would have “bet a paycheck” that the bag contained narcotics packaged in glass; he “believed there were jugs or vials in [the bag because of] the way it was set down because nobody’s going to drop that amount of narcotics on the ground because it’s going to break them.” The officer explained: Anybody that discards something throws it.

I throw it. I think everybody throws it somewhere. [The paper bag] was very gingerly put down as to not break anything in it and I know from my training and expertise that it was probably glass in that bag, glass vials or jugs or what have you. That’s how cocaine is packaged and he just set it down. And that was, instantly I saw that I was very sure, you know, other than that chemical analysis, that there was probably narcotics in that bag.

The State inquired of Officer Elliott as to why an individual would put a bag with drugs in the gutter of a public street. Officer Elliott replied: “Most people, through my training, don’t want to get caught with that amount of narcotics on you because that’s instant felony.” Based on the observations recounted above, and believing that the bag contained narcotics, Officer Elliott notified the arrest team by radio and instructed the officers to seize the bag and detain appellant “pending further investigation.” The ⁵⁹³ evidence indicated that a total of five officers participated in the events at the scene. The record does not reveal whether the officers drew their weapons when they stopped appellant. Officer Elliott acknowledged that he instructed the team to detain appellant before he knew the contents of the bag.

The court asked the officer why one of the officers did not look in the bag first, to “see if it was narcotics and then place the Defendant under arrest?” The officer expressed his concern that appellant “could have been gone” if they had proceeded in the way the court suggested. Nevertheless, Officer Elliott maintained that appellant was not arrested when he was initially stopped, even though he was not free to leave. Officer Elliott insisted that until the narcotics were found, appellant was merely detained. The officer noted that Powell was not handcuffed, and it only took about 15 seconds to look in the bag, which was about five yards away from appellant.

After a member of the arrest team notified Officer Elliott that the bag contained vials of suspected narcotics, Officer Elliott instructed the team to arrest appellant. The court asked: “What was your probable cause for stopping him?” 2 The officer responded: My training and expertise of distribution patterns and the packaging of narcotics.... Due to the high level of distribution in that area that I watch on almost a nightly occasion, I’ve made numerous arrests in that area. I know the area well, I work it every day and I’ve seen narcotics transported in bags like that, large amounts of narcotics transported in bags like that numerous times.

And from the actions of the ⁵⁹⁴ Defendant I had no doubt that there was either real or fake narcotics packaged in generally narcotics packaging material. I believed there was jugs or vials in it the way it was set down because nobody’s going to drop that amount of narcotics on the ground because it’s going to break them. The circuit court ruled on September 13, 2000, that the paper bag was not abandoned by appellant, stating: “Let’s just forget the abandonment right now. There’s no evidence that [the bag] was abandoned....

The evidence showed that it wasn’t abandoned, in fact.” The court also said: I think that part of the confusion in this case and the reason that both of you are all over the place in your argument is that, this is not actually a [m]otion to suppress tangible evidence but rather a motion to suppress an arrest. Standing is not an issue but if, in fact, we’re talking about a [m]otion to suppress tangible evidence this Court finds that the Defense met its burden to demonstrate standing because the evidence shows that this bag belonged to the Defendant and he had a reasonable expectation then of privacy. 3 (Emphasis added). In its analysis, the court considered the character of the stop as “critical.” The court concluded that, when the officers stopped appellant, he “was seized within the meaning of the Fourth Amendment ...,” and probable cause was required to validate the stop. Although the court acknowledged a “fine line” between detention and arrest, it found that the stop constituted an immediate arrest, for which probable cause was required.

The court reasoned: ⁵⁹⁵ [I]f the evidence had shown, for instance, that the arrest team had gone in an[d] asked Mr. Powell questions, had said what’s your name? What are you doing here? Or made any inquiry, then I think the argument that he was, in fact, detained would be stronger and the only thing that we require is reasonable, articuable [sic] suspicion. But, in fact, they didn’t — there’s no testimony that they asked questions or what are you doing here?

Or made any inquiry at all, but rather, put him under arrest. Now, in order to determine that you have to look at the surrounding circumstances. He’s surrounded by a group of officers in uniform with weapons and he’s told that he can’t leave. In this Court’s view that amounts to a seizure for purposes of the Fourth Amendment.

What that means is that Off. Elliott has to have probable cause in order to, in fact, effectuate that arrest. Nonetheless, the court upheld the search on the ground that the warrantless arrest was supported by probable cause. The court said: The officer testified that he saw Mr. Powell gingerly place a bag on the ground, then stand, take a few steps back, [then] stand near it.

It was New Year’s Day. It was dark. There was no one else in his general area. The Defendant looked — Mr. Powell looked around and waited.

Officer [Elliott] testified that it is his experience, he believed that that bag contained drugs and then — and the question is, is that adequate probable cause to make this arrest? And in the Court’s view, based on the fact that the officer is an expert, he had sufficient articuable [sic] facts to justify his arrest of Mr. Powell and he believed reasonably that an offense was being committed in his presence and, therefore, I "will deny Defense’s Motion. We shall include additional facts in our discussion. STANDARD OF REVIEW Our review of the trial court’s ruling with respect to a suppression motion “ordinarily is limited to information ⁵⁹⁶ contained in the record of the suppression hearing.” Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000); see Rowe v. State, 363 Md. 424, 431 , 769 A.2d 879 (2001); Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999); State v. Fernon, 133 Md.App. 41, 43 , 754 A.2d 463 (2000).

We review that evidence in the light most favorable to the prevailing party. Stokes v. State, 362 Md. 407, 414 , 765 A.2d 612 (2001); Charity v. State, 132 Md.App. 598, 606 , 753 A.2d 556 , cert. denied, 360 Md. 487 , 759 A.2d 231 (2000). Moreover, in reviewing the ruling of the trial court, we recognize that it is the trial court’s function “to assess the credibility of the witnesses.” McMillian v. State, 325 Md. 272, 282 , 600 A.2d 430 (1992). In our review, we extend great deference to the fact-finding of the lower court, and accept the first-level facts as found by that court, unless clearly erroneous.

Ferris, 355 Md. at 368 , 735 A.2d 491 ; Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990), overruled on other grounds by Wengert v. State, 364 Md. 76 , 89 n. 4, 771 A.2d 389 (2001); Argueta v. State, 136 Md.App. 273, 278 , 764 A.2d 863 (2001). Nevertheless, as to the ultimate determination regarding the legality of an arrest or search, we make our own independent, constitutional appraisal. We accomplish this task by reviewing the law and applying it to the facts that are not clearly erroneous. In re Tariq A-R-Y, 347 Md. 484, 488-89 , 701 A.2d 691 (1997), cert. denied, 522 U.S. 1140 , 118 S.Ct. 1105 , 140 L.Ed.2d 158 (1998); Jones v. State, 343 Md. 448, 457-58 , 682 A.2d 248 (1996); see also Ornelas v. United States, 517 U.S. 690, 699 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996) (recognizing that appellate court must conduct independent, de novo review of ultimate question of whether there was reasonable, articulable suspicion to detain individual; findings of historical fact are reviewed only for clear error).

In this case, the trial court found that the bag was not abandoned, but did not articulate the facts on which it based its conclusion. As to the ultimate legal conclusion of questions such as whether the police had probable cause or articulable suspicion for a stop, or whether a defendant had a ⁵⁹⁷ reasonable expectation of privacy, we do not defer to the trial court’s determination. Rather, we review these conclusions de novo. See Ferris, 355 Md. at 368-69 , 735 A.2d 491 ; Charity, 132 Md.App. at 607-08 , 753 A.2d 556 ; Martin v. State, 113 Md.App. 190, 236 , 686 A.2d 1130 (1996) (recognizing de novo review concerning question of whether defendant had a reasonable expectation of privacy); Sproates v. State, 58 Md.App. 547, 563 , 473 A.2d 1289 (1984) (“A trial court’s determination that a reasonable expectation of privacy exists ‘is a legal conclusion involving substantive Fourth Amendment analysis’ subject to appellate review.”) (citation omitted).

We believe the same principles apply to whether the undisputed facts of this case amounted to an abandonment under the Fourth Amendment. DISCUSSION We glean from appellant’s brief his contention that the police had no right to search the paper bag unless it was either abandoned or the search was supported by probable cause. In Powell’s view, his conduct and the attendant circumstances demonstrated that he did not abandon the paper bag, and the police lacked probable cause to search it. Powell also asserts that when the police stopped him, their action constituted an arrest, and that the arrest was illegal because it was unsupported by probable cause.

In furtherance of Powell’s contention that he did not abandon the paper bag, Powell seems to rely on circumstantial evidence of his subjective intent, as well as the testimony of the police officer, who did not consider the bag abandoned. He also points to the trial court’s finding that the bag was not abandoned, which he contends is a factual determination that was not clearly erroneous. The State counters that appellant abandoned the paper bag, and thus had no reasonable expectation of privacy in it. Therefore, the State contends that the police officers were entitled to .search the bag.

Moreover, the State argues that the stop constituted a lawful investigatory detention rather ⁵⁹⁸ than an arrest. In any event, the State maintains that the seizure of appellant was supported by probable cause. Resolution of the issue before us requires that we determine whether appellant had a reasonable expectation of privacy in the paper bag under Fourth Amendment law. If appellant lacked a reasonable expectation of privacy in the bag, then the bag was abandoned for purposes of Fourth Amendment analysis, and the search of the bag was lawful.

Once the search was made, the police clearly had probable cause to arrest Powell. On the other hand, if Powell retained a reasonable expectation of privacy in the bag, then it was not abandoned. In that circumstance, the validity of the search would depend on whether the police had probable cause to search the bag or arrest appellant. Although only reasonable, articulable suspicion is needed to conduct a lawful investigatory detention, sometimes called a “Terry stop” or a “stop and frisk,” see Terry v. Ohio, supra, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 , the pat-down search permitted as part of such a stop is “limited” to “outer garments to detect weapons” for the officer’s safety.

Reynolds v. State, 130 Md.App. 304, 321 , 746 A.2d 422 (1999), cert. denied, 358 Md. 383 , 749 A.2d 173 , cert. denied, 531 U.S. 874 , 121 S.Ct. 178 , 148 L.Ed.2d 122 (2000). It would not extend to a bag that was not abandoned, if the bag was several feet away from the suspect and did not pose any threat to the safety of the officers or others. The Fourth Amendment, made applicable to the States by the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643 , 646 n. 4, 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), guarantees, inter alia, the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” See Rosenberg v. State, 129 Md.App. 221, 239 , 741 A.2d 533 (1999), cert. denied, 358 Md. 382 , 749 A.2d 173 (2000). The Fourth Amendment does not denounce all governmental searches and seizures, however.

Rather, it protects the sanctity of the individual, as well as his property, from unreasonable and arbitrary governmental intrusions. See Florida v. Jimeno, 500 U.S. 248, 250 , 111 S.Ct. 1801 , 114 ⁵⁹⁹ L.Ed.2d 297 (1991); McMillian, 325 Md. at 281 , 600 A.2d 430 . As the Supreme Court has said, “ ‘[t]he touchstone of [the] analysis under the Fourth Amendment is always “the reasonableness in all the circumstances of the particular governmental invasion____Maryland v. Wilson, 519 U.S. 408, 411 , 117 S.Ct. 882 , 137 L.Ed.2d 41 (1997) (citations omitted). The determination of whether a search is “unreasonable” requires a balancing of “the intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” Maryland v. Buie, 494 U.S. 325, 331 , 110 S.Ct. 1093 , 108 L.Ed.2d 276 (1990).

Subject to a few carefully delineated exceptions, warrantless searches are presumptively unreasonable. See Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19