Pringle v. State

JAMES R. EYLER, Judge. Appellant, Joseph Jermaine Pringle, was convicted by a jury in the Circuit Court for Baltimore County of possession with intent to distribute cocaine and possession of cocaine. Finding no error, we shall affirm the convictions. Background In the early morning of August 7, 1999, Officer Jeffrey Snyder, a Baltimore County police officer, conducted a routine traffic stop of a Nissan Maxima traveling on High Falcon Road.

The vehicle was speeding, and the driver was not wearing a seat belt. Officer Snyder asked the driver for his license and registration, and the driver, Donte Partlow, complied with the request. Accompanying Partlow in the car were appellant, sitting in the front passenger seat, and Otis Smith, sitting in the backseat. When Partlow opened the glove compartment to retrieve the vehicle registration, Officer Snyder noticed “a large amount of money rolled up.” Officer Snyder did not inquire about the money in the glove compartment, but took the license and registration and checked the Maryland Motor Vehicle Administration computer system for any outstanding violations.

After the computer check did not reveal any violations, Officer Snyder issued an oral warning to Partlow, who was standing outside the car. At this time, a second police car arrived and parked directly behind Officer Snyder’s car. Officer Snyder then inquired of Partlow whether he had ²⁹⁸ “any drugs, weapons, [or] narcotics in the vehicle.” Partlow said he did not. Officer Snyder then asked whether he could search the vehicle.

Partlow consented to the search, and Officer Snyder asked appellant and Smith to step out of the vehicle. After frisking them, Officer Snyder asked all three men to be seated on the sidewalk curb. In the search, Officer Snyder seized $763.00 from the glove compartment and five plastic baggies of cocaine from the backseat. At the hearing on appellant’s motion for suppression, Officer Snyder testified as follows, as to the discovery of the cocaine: [DEFENSE COUNSEL]: And you recovered some suspected narcotics? [OFFICER Snyder]: Yes. [Q.]: And they were recovered from inside an armrest that was located in the back seat? [A.]: Yes. [Q.]: Did you have — did you have to lift the armrest to get to those drugs? [A.]: The back rest was up.

The seat is flat. The armrest goes up and down. It was in the up position. I pushed it down and the drugs were subsequently there. [Q.]: Okay.

So, the back rest was actually in an upright position? [A.]: Yes. [Q.]: And the drugs were actually found sandwiched between the armrest and the back seat of the car? [A.]: Correct. [Q.]: And you hadn’t seen these drugs when you initially approached the car? [A.]: Correct. [Q.]: And you shined your light inside and the first time you noticed the drugs was when all three individuals were sitting on the curb, correct? [A.] Correct. Officer Snyder questioned the three men as to the ownership of the drugs and money. He advised all three passengers ²⁹⁹ of the car that, unless he knew who possessed the drugs, “you are all going to get arrested.” None of the passengers offered any information as to the ownership of the drugs or the money. Officer Snyder, with the assistance of the other officer at the scene, arrested the three men and transported them to the police station.

A few hours later, Officer Snyder met with appellant and, following a waiver of his Miranda 1 rights, procured a written confession. Appellant said that the cocaine belonged to him and that he and his friends were on their way to a party where he either intended to sell the cocaine or “use it for sex.” Appellant went on to say that Partlow and Smith did not know about the drugs. At trial, Officer Snyder testified, and his testimony was similar to that given at the suppression hearing. Irwin Litop-sky, a forensic chemist, also testified and stated that the baggies discovered by Officer Snyder contained .7 grams of cocaine.

Detective Frank Massoni, an expert in controlled substances, testified that the drugs were intended to be distributed. Discussion 1. Appellant contends that the circuit court erred in permitting Detective Massoni to express an expert opinion. The following colloquy is relevant: - [Prosecutor]: Detective, based upon your expertise in the area of drug distribution, packaging and recognition, do you have an opinion, based upon that expertise, within a reasonable degree of scientific certainty, as to whether the defendant intended to distribute the cocaine that is enclosed in those five zip lock baggies? [Defense Counsel]: Object.

The Court: Overruled. ³⁰⁰ [Prosecutor]: Do you in fact have an opinion? [Witness]: My opinion is that the drugs that were here were going to be distributed in some form or fashion, either to regain money or to be used for sex. [Prosecutor]: And how is it you come to that opinion, officer? [Witness]: Based on the statement that I have before me and the fact that, I mean, we have got five baggies and they are packaged individually, which is the way they are usually packaged for resale, generally twenty dollar bags. The statement referred to was a statement by appellant that he was going to a party to sell the drugs or exchange them for sex. Appellant contends that the evidence was inadmissible under Rule 5-704(b) because it constituted an opinion as to appellant’s mental state at the time of his arrest. Additionally, according to appellant, the evidence violated the rule that one witness cannot comment on the credibility of another witness, in this case, appellant.

We disagree. The witness never opined as to appellant’s state of mind or his credibility. The witness opined that “the drugs were going to be distributed” with no reference to appellant’s intent or credibility. Appellant’s reliance on Hartless v. State, 327 Md. 558 , 611 A.2d 581 (1992), is misplaced.

The expert opinion in Hartless is distinguishable from Detective Massoni’s testimony. There, the expert explicitly alluded to the defendant’s state of mind, writing in a report, “it is my opinion that David Hartless did not intend to murder the victim ...”. Hartless, 327 Md. at 572-73 , 611 A.2d 581 . Contrary to appellant’s contentions, Detective Massoni did not explicitly or implicitly testify that appellant intended to distribute drugs.

Rather, Detective Massoni’s opinion related to the quantity and packaging of the drugs that were contained in five zip lock baggies each containing similar amounts of cocaine. The substance of Detec ³⁰¹ tive Massoni’s testimony was consistent with his area of expertise in drug distribution, packaging, and recognition. The case of Bohnert v. State, 312 Md. 266 , 539 A.2d 657 (1988), upon which appellant relies, is also distinguishable from the instant case. After being properly qualified, the expert testified that the victim was abused, basing her opinion solely on the results of questioning the victim; no other objective medical tests or medically recognized syndromes were utilized.

Bohnert, 312 Md. at 276 , 539 A.2d 657 . In effect, the expert was testifying to the credibility of the victim, the key witness in the case. The Court recognized, “[i]n a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and weight to be accorded the witness’ testimony are solely within the province of the jury.” Id. at 277 , 539 A.2d 657 (citing Battle v. State, 287 Md. 675, 685 , 414 A.2d 1266 (1980)). In the instant case, appellant did not testify.

The jury had no reason to weigh the testimony and credibility of appellant. Even if appellant had testified, Detective Massoni’s remarks would have had a different consequence than the remarks in Bohnert . Detective Massoni’s statement that the drugs were going to be distributed “either to regain money or to be used for sex” was based on his review of appellant’s written statement. The mere repetition of appellant’s statement was not a judgment of appellant’s credibility.

In contrast to Bohnert , Detective Massoni based his expert opinion on several factors, including the packaging of the drugs, appellant’s statement, and his expertise in drug distribution, packaging and recognition. Similar to our findings in Wilson v. State, 136 Md.App. 27 , 764 A.2d 284 (2000), Detective Massoni’s expert opinion would not impinge on the jury’s function to weigh credibility. Wilson, 136 Md.App. at 55-68 , 764 A.2d 284 (rejecting the argument that four doctors’ expert opinions were inadmissible comments on credibility). 2. Appellant contends that the circuit court erred in denying his motion to suppress his statement to a police officer.

In ³⁰² support of that contention, he argues that the statement was (1) the fruit of an illegal arrest, and (2) the result of an improper inducement. Probable Cause The United States Supreme Court instructs us that “the usual traffic stop is more analogous to a so-called ‘Terry stop,’ ... than to a formal arrest.” Berkemer v. McCarty, 468 U.S. 420, 439 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984) (citing Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)); see also Livingston v. State, 317 Md. 408, 411 , 564 A.2d 414 (1989). “Therefore, stopping a vehicle for a speeding [or seat belt] violation and detaining its occupants does not constitute a custodial arrest.” Livingston v. State, 317 Md. 408, 412 , 564 A.2d 414 (1989) (citing Colorado v. Bannister, 449 U.S. 1, 3 , 101 S.Ct. 42 , 66 L.Ed.2d 1 (1980)). In the instant case, the speeding and seat belt violations constituted a valid reason for stopping the vehicle in which appellant was a passenger, and the stop shall not be “rendered invalid by the fact that it was ‘a mere pretext for a narcotics search.’ ” Whren v. United States, 517 U.S. 806, 813 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996) (quoting United States v. Robinson, 414 U.S. 218, 221, n. 1 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973)). Our inquiry, similar to that in Doering v. State, 313 Md. 384 , 545 A.2d 1281 (1988), is whether Officer Snyder, after making a legal traffic stop and conducting a legal search of the vehicle, had probable cause to believe that a felony had been committed and that appellant had been involved in the commission of that felony.

Doering, 313 Md. at 403 , 545 A.2d 1281 . Clearly, upon finding the cocaine, Officer Snyder had probable cause to believe a felony had been committed, specifically, possession of a controlled dangerous substance. The present question is whether Officer Snyder had probable cause to believe appellant, at the time of the arrest, was in possession of the controlled dangerous substance. “The rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less ³⁰³ evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion.” Id.; see also Collins v. State, 322 Md. 675, 680 , 589 A.2d 479 (1991); Sterling v. State, 248 Md. 240, 245 , 235 A.2d 711 (1967); Edwardsen v. State, 243 Md. 131, 136 , 220 A.2d 547 (1966). The United States Supreme Court explained this nontechnical conception in Brinegar v. United States, 338 U.S. 160, 176 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949): Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part.

But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating ... often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.

See Doering, 313 Md. at 403 , 545 A.2d 1281 . In the instant case, during the hearing on appellant’s motion to suppress, defense counsel argued that there was no basis upon which to infer appellant had knowledge of the drugs. The following exchange occurred. The Court: Well, I think one reason they may know they are there is because he placed them there.

Within an arm’s reach. That’s a reasonable assumption. [Defense Counsel]: Again, your Honor, ... The Court: I am thinking only on the fact that they were in arm’s reach in the way he was seated. Especially when they were not secreted.

They were just basically placed back there and hidden by the armrest. That was the information that [the officer] had before he made the arrest. [Defense Counsel]: I would argue, Your Honor, that the drugs are secreted under those circumstances. [The officer] can’t see them. The armrest is certainly placed up there for some purpose. ³⁰⁴ The Court: To hide them. [Defense counsel]: To hide them. The Court: From the police. [Defense counsel]: Exactly.

The Court: Well, he didn’t do a very good job. He didn’t have much time. The trial court concluded: Upon the search drugs were found within an arm’s reach of [Pringle], not in a secretive place or in a locked place. As well as put the armrest back up [sic].

The other factor that was not argued is the fact that there was money in front which you have money in front, drugs in the back, both in arm’s reach of this particular Defendant, I think the officer had probable cause to make the arrest as he did. The trial court did not cite authority for its “arm’s reach” standard, but we presume it was derived from the application of the Folk test to contraband found within automobiles. The Folk test, announced by this Court in Folk v. State, 11 Md.App. 508 , 275 A.2d 184 (1971), consists of four factors. The factors are: 1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the contraband is found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband.

Folk, 11 Md.App. at 518 , 275 A.2d 184 . See also Moye v. State, 139 Md.App. 538, 549-50 , 776 A.2d 120 (2001); West v. State, 137 Md.App. 314, 357-58 , 768 A.2d 150 (2001); Herbert v. State, 136 Md.App. 458, 465-66 , 766 A.2d 190 (2001); Veney v. State, 130 Md.App. 135,143-44 , 744 A.2d 1094 (2000); In Re Nahif A., 123 Md.App. 193, 209 , 717 A.2d 393 (1998); Hall v. State, 119 Md.App. 377, 394 , 705 A.2d 50 (1998); Colin v. State, 101 Md.App. 395, 406 , 646 A.2d 1095 (1994). ³⁰⁵ The Folk test is a useful tool for determining whether someone exercises actual or constructive dominion or control over contraband, but it is not a bright line rule that permits law enforcement officials and trial courts to find joint possession if the facts of a case satisfy any one of the four factors. Folk , like the instant case, was an automobile case, and, when this Court discussed the “proximity” factor in Folk , we stated: In the case at bar, the proximity between the appellant and the marihuana could not be closer, short of direct proof that the appellant herself was in exclusive physical possession of the marihuana. She was one of six occupants in a Valiant automobile and was, therefore, whatever her position in the car, literally within arm’s length of every other occupant of that automobile.

The marihuana cigarette being smoked was, at any point in time, within direct physical possession of one of those occupants. Proximity could not be more clearly established. Folk, 11 Md.App. at 518 , 275 A.2d 184 (emphasis added). The Folk test was again applied in Colin v. State, 101 Md.App. 395 , 646 A.2d 1095 (1994), in which this Court said: As a passenger, it may be true that Colin did not exercise “control” over the vehicle.

Colin was traveling in the same vehicle as the cocaine, however, and that is sufficient to establish “close proximity.” Although the cocaine was not in plain view, being secreted away in the door, this factor is also not determinative.... Moreover, as Colin was a voluntary passenger, it may be reasonably inferred that he anticipated “the mutual enjoyment of the contraband.” Further, from his riding in the vehicle with appellant Heath, it could be reasonably inferred that they wanted to use the drug jointly. Colin, 101 Md.App. at 407 , 646 A.2d 1095 (citations omitted). In Colin , we examined all four Folk factors and found the “proximity” and “mutual enjoyment” factors were satisfied.

Id. Colin was followed a year later in Pugh v. State, 103 Md.App. 624, 652-53 , 654 A.2d 888 (1995), a case in which cocaine was found inside the spare tire under the carpeting of ³⁰⁶ the trunk. Folk, Colin, and Pugh were all cases in which this Court was tasked to review the sufficiency of the evidence to sustain a possession conviction. Appellant relies on Livingston v. State, 317 Md. 408 , 564 A.2d 414 (1989), in which the Court dealt with the issue of probable cause.

In Livingston , the Court held that “the presence of two seeds on the floor in the front of the car, without more, [was] insufficient to inculpate [Wesley Warren] Livingston, a rear seat passenger, for possession of marijuana.” Livingston, 317 Md. at 413 , 564 A.2d 414 . Livingston is distinguishable from the case before us. In Livingston , there were two marijuana seeds on the front floorboard and the defendant was in the back seat. In the case before us, there were five baggies behind an armrest in the back seat and a substantial amount of cash in the glove compartment located in front of appellant.

We see a significant difference between two marijuana seeds and five baggies plus cash. The circumstances were sufficient to constitute probable cause to make an arrest. Inducements The introduction of a criminal defendant’s confession is permitted at trial if the confession was, “(1) voluntary under Maryland nonconstitutional law, (2) voluntary under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights, and (3) elicited in conformance with the mandates of Miranda.” Hoey v. State, 311 Md. 473, 480 , 536 A.2d 622 (1988). To overcome a pretrial motion to suppress, the State must establish by a preponderance of the evidence that the confession was freely and voluntarily given, and not a product of improper threats, inducements, or promises.

Winder v. State, 362 Md. 275, 307 , 765 A.2d 97 (2001). “Maryland law demands that confessions ‘be shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary.’ ” Reynolds v. State, 327 Md. 494, 504 , 610 A.2d 782 (1992) (quoting Hillard v. State, 286 Md. 145, 150 , 406 A.2d 415 (1979)). ³⁰⁷ In the case sub judice, appellant relies on nonconstitutional grounds for challenging the voluntariness of his confession. Appellant contends he confessed because of promises by Officer Snyder to release the other occupants of the vehicle. Appellant argues Officer Snyder’s statement to the suspects at the arrest scene, that unless he knew who possessed the drugs, “you are all going to get arrested,” induced appellant’s subsequent confession. Appellant testified at the suppression hearing that Officer Snyder reissued a similar inducement during the police station interrogation.

Officer Snyder testified the alleged incident at the police station never occurred, however. The circuit court denied appellant’s motion to suppress, finding that the confession was voluntary. In general, we review the totality of the circumstances surrounding the confession to determine voluntariness. Reynolds, 327 Md. at 495 , 610 A.2d 782 .

Relying on Hillard v. State, 286 Md. 145 , 406 A.2d 415 (1979), the Court established a two-part test whereby a confession is deemed involuntary and inadmissible, if “(1) a police officer or an agent of the police force promises or implies to a suspect that he or she will be given special consideration from a prosecuting authority or some other form of assistance in exchange for the suspect’s confession, and (2) the suspect makes a confession in apparent reliance on the police officer’s statement.” Winder, 362 Md. at 309 , 765 A.2d 97 . In the instant case, neither prong is satisfied. Under the first prong, we apply an objective test to determine whether Officer Snyder’s statement was a threat, promise, or inducement. “Although a defendant need not point to an express quid pro quo, ‘[a] mere exhortation to tell the truth is not enough to make a statement involuntary.’ ” Winder, 362 Md. at 311 , 765 A.2d 97 (quoting Reynolds, 327 Md. at 507 , 610 A.2d 782 ). There is a distinction between a permissible exhortation, “much better if you told the story,” Ball v. State, 347 Md. 156, 174 , 699 A.2d 1170 (1997); general recommendation that suspect seek advice, Reynolds, 327 Md. at 509 , 610 A.2d 782 ; “get it off your chest,” Bean v. State, 234 ³⁰⁸ Md. 432, 442, 199 A.2d 773 (1964); “better if [you] told the truth,” Ralph v. State, 226 Md. 480, 486 , 174 A.2d 163 (1961); “the truth hurts no one,” Merchant v. State, 217 Md. 61, 68 , 141 A.2d 487 (1958); “the truth would hint no one,” Deems v. State, 127 Md. 624, 630 , 96 A. 878 (1916); “I want you to tell me the truth,” Nicholson v. State, 38 Md. 140, 153 (1873); “no sense in lying,” Clark v. State, 48 Md.App. 637, 646 , 429 A.2d 287 (1981), and an impermissible promise or offer; “produce the narcotics, [and your] wife would not be arrested,” Stokes v. State, 289 Md. 155, 157 , 423 A.2d 552 (1980); “if you are telling me the truth ...

I will go to bat for you,” Hillard, 286 Md. at 147 , 406 A.2d 415 ; “it would be better for him to tell the truth, and have no more trouble about it,” Biscoe v. State, 67 Md. 6, 6 , 8 A. 571 (1887). Consistent among the later category, prior to the confession, the suspect is promised something as a consequence of his or her response or silence. In contrast, Officer Snyder’s statement communicated that all three suspects were going to be arrested for possession. This statement flowed naturally from the attendant circumstances of finding three suspects within the proximity of the illegal drugs.

Officer Snyder subsequently arrested the three suspects, consistent with the import of his statement. Officer Snyder denied telling the three suspects that “if one person is going to be the one who fesses [sic] up tell me now so I can let the other two go.” Instead, Officer Snyder sought the truth, stated his intent to arrest the suspects, and carried out the arrests. Absent an express promise, threat, or inducement, we shall not consider the defendant’s subjective belief that he or she would benefit by confessing. Winder, 362 Md. at 311 , 765 A.2d 97 .

Consequently, we reject appellant’s argument that he believed the other suspects would be released from custody if he confessed. Assuming