Powers v. State

CHARLES E. ORTH, Jr. Judge, Specially Assigned. I Earl Powers was arrested on a street corner in Baltimore City about 8:30 p.m. on 24 May 1991. The arresting officer was Laura Deuerling, a member of the Police Department of Baltimore City, assigned to the Uniformed Patrol in the ³²³ Southern District. Powers was searched as an incident to the arrest.

Seven bags containing a cocaine base, commonly known as crack, 19 glassine bags of heroin and $70 in United States currency were found on his person and seized by the police. The State’s Attorney for the City of Baltimore filed two Criminal Informations against Powers in the Circuit Court for Baltimore City. The first document informed the court that on or about the day of Powers’s arrest, in the 1800 block of Lemmon Street in Baltimore City, Powers violated “Article 19, § 58C of the Baltimore City Code, 1983 Edition.” The second document informed the court that on the same day Powers committed four crimes in violation of the Controlled Dangerous Substances Law of Maryland, to wit: possession of cocaine (1st count) and possession of heroin (3rd count), each in sufficient quantity to reasonably indicate under the circumstances an intent to distribute, and simple possession of both cocaine (2nd count) and heroin (4th count). Powers waived a jury trial.

He was convicted of committing the offense charged in the first Information, and of the 1st and 3rd counts charged in the second Information. The judge merged the 2nd count into the conviction under the 1st count and the 4th count into the conviction under the 3rd count. Powers was duly sentenced and noted an appeal to the Court of Special Appeals from the judgments. On our own motion, we certified the case to us before decision by the intermediate appellate court.

II Before trial, Powers sought to dismiss the Information charging a violation of Art. 19, § 58C of the Baltimore City Code on the grounds that the law was unconstitutional on its face and as applied to him. He also sought to suppress the contraband and evidence seized for the reason that his arrest was illegal. A The heart of this appeal is, of course, the Baltimore City ordinance, now appearing as Art. 19, § 58C of the Baltimore ³²⁴ City Code, 1983 Repl.Vol., 1991 Cum.Supp. 1 In 1989 the City Council of Baltimore found and declared that the illegal manufacture, distribution, possession, and administration of drugs and other unlawful drug-related activities is a city-wide evil of substantial and urgent proportions constituting a clear and present danger to the citizens of the City; that innocent persons, including children, who come into contact with illegal drug-related activity are seriously and adversely affected and their health and safety are jeopardized by the violence and materials (such as discarded syringes) associated with these practices____ Subsection (a) of Art. 19, § 58C. 2 The City Council adopted a comprehensive scheme as “a necessary exercise of the police power to maintain the peace, good government, health and welfare of Baltimore City.” Id. The scheme ³²⁵ was designed to aid the enforcement of the Controlled Dangerous Substances Law enacted by the General Assembly of Maryland.

It entailed the creation of “drug free zones” in geographical areas of Baltimore City, certified as such by the Police Commissioner of Baltimore City. § 58C(e)(l). Paragraph (2) of subsection (e) spells out the criteria for the certification by the Commissioner of a drug free zone, and paragraph (3) thereof lists in detail the procedural steps to be taken prior to certification. Subsection (b) creates the crime of drug related “loitering.” Subsection (c) deals with the determination that a person has violated the provisions of subsection (b). Subsection (d) requires that [a] police officer shall first request a person suspected of loitering under this section within a drug free zone to leave the premises.

Failure to obey the police officer shall subject the person to arrest. Subsection (f) makes a violation of Art. 19, § 58C a misdemeanor and prescribes a sentence of “imprisonment for not more than 30 days or a fine of not more than $400, or both.” B The trial judge conducted a plenary hearing which covered both the motion to dismiss and the motion to suppress. He denied both of them. The place where Powers was arrested was within a certified drug free zone.

A large part of the hearing focused on the constitutionality of the ordinance and the validity of the certification by the Police Commissioner of the area in which Powers was arrested as a drug free zone. We are not concerned on this appeal with these matters. We assume for the purpose of decision here that Art. 19, § 58C is not constitutionally offensive. Our assumption is not to be taken as any suggestion or indication whatsoever that we deem that the ordinance does or does not conform to constitutional dictates.

Ordinarily we do not decide a question on constitutional grounds when it may be determined on non-constitutional bases. “Constitutional issues ³²⁶ should be addressed only after a determination that the activity complained of comports with the requirements of this State’s nonconstitutional law.” Brittingham v. State, 306 Md. 654, 660 , 511 A.2d 45 (1986) and cases therein cited. We do not depart from that general rule here. It is simply that in the light of the decision which we reach in this case, there is no need for us to address the matter of the constitutionality vel non of Art. 19, § 58C. We leave that to another day and another case.

By like token we assume, but only for the purpose of decision here, the validity of the certification as a drug free zone of the area in which Powers was arrested. We proceed on the basis that the certification was in full compliance with all of the requisites of the ordinance and that the certification was in full force and effect at the time Powers was arrested. Our concern focuses on the legality of the arrest of Powers. To determine that question we look to the evidence adduced at the hearing with respect to the motion to suppress.

Ill A The only evidence adduced at the hearing with respect to the circumstances surrounding the arrest of Powers was the testimony of Officer Deuerling. The State offered her “as an expert in the field of drug trafficking within the Southern District only____” She was examined and cross-examined at length as to her qualifications. The judge accepted her as an expert as proposed by the State. We give a compendium of her testimony.

On 24 May 1991 Deuerling, in uniform and on routine patrol, had two encounters with Powers. About 4:30 p.m. she was in the 100 block of South Addison Street, which is located in Post 933 within the Southern Police District of Baltimore City. It “is one of the highest drug trafficking areas in Southern District____” It was within an area duly designated and posted as a drug free zone. The officer saw ³²⁷ Powers standing at the corner of the 100 block of Addison Street and the 1800 block of Lemmon Street with several other people, some of whom lived in that block and some who did not.

She knew him from seeing him on other occasions and from information about him received from fellow police officers. She was aware that he had “been convicted of narcotic violations.” She approached him and, although she recognized him, asked his name and address. He complied. The address he gave was without the drug free zone.

She asked him why he was in the area. He said that he was visiting a girl. The officer asked the name of the girl. At the time of the hearing the officer did not remember the name Powers gave.

The officer also asked where the girl lived. She did not testify as to what Powers responded, but explained, “Because of the name that he had said at that time, I remember not recognizing it as to someone that lived in that area.” It is obvious that she simply did not believe that Powers was in the area to visit a girl, but she did not press him on the matter or investigate it further. She merely pointed out that “he was not around any ... females.” The officer asserted that Powers was free to leave during her conversation with him, but she made clear that he was not free to stay. She “advised him that he was loitering in a drug free zone, and asked him to move on.” He moved on, “[r]ather slowly, but he did.” She did not arrest him. “It was simply a warning.” B The City Council of Baltimore created a new misdemeanor in these words: It is unlawful for any person to loiter about or remain at any public way, public place or place open or legally accessible to the public within a certified drug free zone, as herein provided for the purpose of engaging in drug-related activity that is prohibited by any of the provisions of Article 27, Crimes and Punishments, subtitle, Health-Controlled Dangerous Substances of the Annotated Code of Maryland, as amended, relating to the manufacture, ³²⁸ distribution, sale, possession, or administration of substances covered therein.

Art. 19 § 58C(b). Thus, the elements of the offense are: (1) loitering 3 or remaining (2) at any public way, public place or place open or legally accessible to the public (3) within a certified drug free zone (4) for the purpose of engaging in drug-related activity prohibited by the Maryland Controlled Dangerous Substances Law. We shall assume, for the purpose of decision, that the first three elements were satisfied. The question is whether the evidence was sufficient to satisfy the fourth element requiring a specific intent.

Subsection (c) of the ordinance gives some guidance in the determination whether a person is loitering in the places specified “for the purpose of engaging in drug-related activity____” It declares first that “the totality of the circumstances involved shall be considered.” It then lists seven circumstances as among those “which may be considered in determining whether such purpose is manifested.” We ³²⁹ shall examine the evidence before us in the light of each of them. The first circumstance is: The conduct of the person being observed, including, by way of example only, that such person is behaving in a manner raising a reasonable belief that the person is engaging or is about to engage in illegal drug activity such as the observable distribution of small packages to other persons, the receipt of currency for the exchange of a small package, operating as a ‘lookout’, warning others of the arrival of police, fleeing without other apparent reason upon the appearance of a police officer, concealing himself or herself or any object which reasonably may be connected to unlawful drug-related activity, or engaging in any other conduct normally associated by law enforcement agencies with the illegal distribution or possession of drugs. Subsection (c)(1). The evidence does not disclose that Powers’s conduct comported with any of the examples.

He was merely standing at the corner with several other people, some who lived in the neighborhood and some who did not. He was not observed distributing small packages to other persons, or receiving currency for the exchange of a small package. There was no indication that he was operating as a “lookout,” warning others of the arrival of the police. He did not flee upon the appearance of the police officer.

He did not conceal himself or any object which reasonably may be connected to unlawful drug-related activity. All the officer observed was that Powers was standing on the public way in the presence of several other persons, none of whom the officer characterized as associated with illicit drug trafficking. Powers was not engaged in any other conduct normally associated by law enforcement agencies with the illegal distribution or possession of drugs. On the contrary, he said that he was there to visit a girl, and the officer made no attempt to disprove this because she did not recognize the girl’s name (which she did not remember at the time of the hearing) and because she saw no females in ³³⁰ his presence.

The required purpose was not shown under the first circumstance. The second circumstance is: Information from a reliable source indicating that the person being observed routinely distributes illegal drugs within the drug free zone. Subsection (c)(2). The officer did not indicate that she had such information.

The third circumstance is: Information from a reliable source indicating that the person being observed is currently engaging in illegal drug-related activity within the drug free zone. Subsection (c)(3). There was no evidence of the receipt of such