Ray v. State

435 Md. 1 (2013) · Court of Appeals of Maryland

Court of Appeals of MarylandDisposition: AffirmedBarbera✓ Good law

HoldingPetitioner Bashawn Montgomery Ray was a passenger in a vehicle stopped on Interstate 270 for blue-tinted headlights and obstructed windshield.

BARBERA, C.J. We granted certiorari in this case intending to address the nature of probable cause, as that phrase is employed in Fourth Amendment jurisprudence, and to resolve what appeared to be the interesting question of whether, under the particular circumstances of this case, there existed the requisite probable cause to arrest Petitioner Bashawn Montgomery Ray. This legal matter is important to Petitioner because he links the denial of his motion to suppress evidence to his claim that the evidence, used against him at his subsequent criminal trial, was the unlawfully obtained fruit of his illegal arrest. ⁴ Petitioner advanced this Fourth Amendment claim before the Court of Special Appeals, which, over the State’s strenuous argument to the contrary, concluded that the claim was properly before that Court for review. Petitioner enjoyed only a Pyrrhic victory, however, because the Court of Special Appeals held that the claim failed on its merits. Petitioner seeks from us a second look at the same Fourth Amendment claim, and the State resurrects the argument that the claim is not properly before the appellate courts.

We agree with the State that Petitioner’s claim is not properly before the appellate courts. Petitioner waived the claim by not raising it before the Circuit Court, as required by Maryland Rule 4-252, and the record otherwise does not support the conclusion reached by the Court of Special Appeals that the claim is capable of appellate review by operation of Maryland Rule 8-131(a). In the following pages we explain why that is so. I. We begin with the historical and procedural facts that form the basis of the present appeal.

The incident leading to Petitioner’s arrest began when the police initiated a traffic stop of a vehicle traveling on Interstate 270. Petitioner was one of three occupants, in addition to the driver. As events unfolded, one of the officers on the scene asked the occupants to exit the vehicle. The officer obtained consent from a female passenger to look inside her wallet for identification.

Instead of identification, the officer discovered multiple fake credit cards. At some unspecified point thereafter, all the occupants of the vehicle, including Petitioner, were arrested. Petitioner was charged with conspiracy to commit theft, making a false statement to the police while under arrest, and related offenses. Before trial, Petitioner filed an “Omnibus Motion” pursuant to Maryland Rule 4-252. 1 The motion included boilerplate ⁵ language requesting suppression of all unlawfully obtained evidence.

Relevant here, the motion alleged: That articles of evidence taken from the Defendant by police authorities were obtained as the result of an illegal search and seizure in violation of the Defendant’s constitutional rights. WHEREFORE, the Defendant respectfully prays that this Honorable Court suppress all evidence obtained by police authorities as the result of an illegal search and seizure. On the day before the scheduled hearing on the motion to suppress, Petitioner filed a “Supplement to Omnibus Motion to Suppress Evidence,” requesting suppression of “all evidence obtained as a result of an illegal traffic stop and illegal detention and search on or about October 5, 2010.” The supplement set forth the following allegations: 1. That on October 5, 2010, the Defendant was a passenger in a black Ford Expedition that was traveling northbound on Interstate 270.

The vehicle was stopped by the Montgomery County Police at approximately 1:00 p.m. for having blue headlights and for having air fresheners hanging from the rear view mirror. 2. That the Police Officers had no reasonable articulable suspicion that a traffic violation had occurred and therefore no legal basis to stop the vehicle. Whren v. [United States], 517 U.S. 806 [ 116 S.Ct. 1769 , 135 L.Ed.2d 89 ] (1996), Rowe v. State, 363 Md. 424 [ 769 A.2d 879 ] (2001). 3. That the Defendant has standing to challenge the illegal stop of the vehicle.

Brendlin v. California, 551 U.S. 2 [4]9 [ 127 S.Ct. 2400 , 168 L.Ed.2d 132 ] (2007). 4. That after the vehicle was stopped, the Officer determined that the vehicle’s driver had a suspended license. ⁶ The driver was taken to the officer’s vehicle where he was issued traffic citations. After the citations were written, the passengers in the vehicle were illegally detained. Ferris v. State, 355 Md. 356 [ 735 A.2d 491 ] (1999). 5.

Petitioner first asserted that he had standing to challenge the traffic stop, then articulated the basis for his suppression motion: [I]f the State prevails on the traffic stop issue which we believe was illegal, the issue would then become that it becomes a second stop essentially of the group of people which then leads to a search of the female down the road, and that that second stop of the passengers would also be illegal. Two witnesses testified at the hearing, Sergeant Mark White and Officer Robert Sheehan, both of whom were called by the State. Petitioner offered no evidence, testimonial or otherwise. Sergeant White testified that he was on patrol on Interstate 270 on October 5, 2010, when he drove past a black Ford Expedition.

Sergeant White noticed that the Expedition had blue-tinted headlights instead of white 2 and there were multiple air fresheners hanging from the windshield, which he ⁷ believed obstructed the view of the driver. 3 Based on these perceived Code violations, Sergeant White initiated a traffic stop of the Expedition. Before approaching the vehicle, Sergeant White performed a computer search of the Expedition’s license plate number, revealing that the driver’s license of the registered owner of the vehicle, Antoine Norris, had been suspended. Following that portion of Sergeant White’s testimony, defense counsel asked the court to hear argument and rule on the legality of the stop. The court agreed, heard from counsel, and ruled that the traffic stop of the vehicle was lawful because Sergeant White’s observation of the blue headlights provided the requisite justification to believe that the owner of the Expedition was violating a Maryland traffic law.

Sergeant White resumed his testimony, describing next that he approached the driver of the Expedition, Mr. Norris, and asked for his license and registration. Mr. Norris gave Sergeant White an expired learner’s permit, after which Sergeant White asked Mr. Norris to accompany him to the police cruiser and informed Mr. Norris of his intent “to search the vehicle for items related to [Mr. Norris’s] driving while suspended.” Sergeant White then completed three traffic citations: two for driving with a suspended license and one for the obstructed windshield. While Sergeant White was speaking with Mr. Norris in the police cruiser, three other officers arrived on the scene, including Officer Sheehan. There were three remaining passengers in the vehicle: an adult female in the front passenger seat, a juvenile female in the rear behind the driver’s seat, and Petitioner in the rear on the passenger side.

Officer Sheehan testified that, after briefly engaging the passengers, he asked them to exit the vehicle. Petitioner and the other passenger in the back seat complied immediately with Officer Sheehan’s ⁸ request, but the female in the front passenger seat, later identified as Mashea Ray, 4 did not get out of the vehicle, despite being asked twice by Officer Sheehan. Eventually, after stating that it was cold outside, Ms. Ray grabbed her jacket from the floor directly behind her seat and exited the vehicle. Officer Sheehan asked Ms. Ray if she had any weapons in her jacket, and she replied that she did not.

Upon Officer Sheehan’s request, Ms. Ray consented to a search of the jacket to ensure it contained no weapons. During the search of the jacket, Officer Sheehan discovered a large wallet. He testified, “I said is your identification in this wallet? She said no.

I said can I search it and make sure? She said something to the effect of yeah, it’s not in there.” Officer Sheehan next testified: As soon as I opened the wallet I immediately saw a whole stack of credit cards inside the wallet that to me appeared to be fake credit cards. I started pulling them out and one by one I’d say the name on the credit card and I’d ask the female, who’s this person? She said I don’t know.

Who’s this person? I don’t know. Who’s this person? I don’t know.

So every card that I showed or took out of the wallet and asked her who these people were, she said she didn’t know. Officer Sheehan testified that Petitioner did not reach for the jacket or claim ownership of it or the wallet. Upon completion of the testimony of the two officers, the court heard argument of counsel. Throughout the argument of both counsel, the focus remained squarely on Petitioner’s claim, disputed by the State, that there occurred an unlawful second detention of the vehicle’s occupants, during which the police obtained evidence that Petitioner was entitled to have suppressed. 5 ⁹ The State argued that the officers did not unlawfully detain the remaining passengers after issuing the citations because the passengers would have been free to leave had the vehicle not been pulled over on Interstate 270, a controlled access highway. 6 Defense counsel disagreed, arguing that the officers unlawfully ordered Petitioner and the other passengers out of the car and detained them instead of ascertaining whether any of them had a valid driver’s license and could drive the Expedition away.

The following is an excerpt of the discussion that ensued: [PROSECUTOR]: [T]he State’s argument is they have to get these people out of there because we’re stuck on 270, as the Timmons [v. State, 114 Md.App. 410 , 690 A.2d 530 (1997),] case notes. Sometimes you’re in those situations where you have something that looks like a seizure but is not actually a seizure because of the circumstances. Once that non-seizure, if you will, occurs and the defendant is asked out of the car with the female, what happens next is a variety of consent things with the female, which we already, he has no standing to contest. That leads to what are readily apparent fraudulent credit cards.

And at that point, just as if drugs had been discovered, they’ve got probable cause to arrest everybody. THE COURT: Presumably, at the end of the day, there’s something about what was in her purse that incriminated all of the occupants or more than one of the occupants. THE COURT: [Defense counsel], where are you in this? [DEFENSE COUNSEL]: Well, I guess sort of not knowing exactly which issue to address first, I mean, my argument, which I think a lot of which the State and I are on the same page, we agree, is that this is a classic second stop ¹⁰ that the officers did not have the right to perform under Charity and Ferris . Later, when the court inquired precisely what evidence Petitioner hoped to suppress, defense counsel explained: “I want to suppress everything, things found in the car,[ 7 ] as well as what was found on [Ms. Ray], because I don’t think they had the right for that second detention of the group.” As argument before the court continued, defense counsel never strayed from the contention that the evidence found on Ms. Ray and in the Expedition must be suppressed because it was the fruit of an unlawful second stop of the passengers following issuance of the citations to the driver.

Counsel argued: [DEFENSE COUNSEL]: ... there was an illegal detention of these three is my argument. [DEFENSE COUNSEL]: The group is stopped again, is my argument, illegally, after the citation.... [DEFENSE COUNSEL]: ... I think what we have here is while [Sergeant White] is [explaining the ticket to the driver], he’s clearly telling [Officer Sheehan], go get everybody else out. They’re clearly at this point, after making that decision, after having those tickets written, it’s been a decision; we’re now going to get everybody else out of the car. That’s the problem I have.

That’s where it all becomes illegal. And I don’t think it can be saved by saying well, we couldn’t have let them walk off. Right, they can’t let them walk off, but if you’re not in a detention type situation, if everybody is free to go, they’re going to say does anybody have a good license. Yes, I do.

Okay, drive away. That’s what’s going to happen, and we have no — and they didn’t do that. They never go to that point because — and maybe I ¹¹ didn’t make this, I guess I didn’t make the argument that well — we didn’t get to that point when the officers could’ve said does anyone have a valid license and then let the car drive off because they were all three detained. And that’s when we immediately get into this whole, can I search your wallet?

Can I search your jacket? And that’s the problem I have. I think it all hinges right there. So I would ask that anything after that point be suppressed.

(Emphasis added). The court concluded that Officer Sheehan had the authority to order the remaining passengers out of the car while the driver was with Sergeant White and the officers “got lucky” by discovering the credit cards during the consent search. The court also indicated its concurrence with the State’s concession, see supra note 5, that, had the police officers searched Mr. Norris’s vehicle merely as a search incident to his citation for driving with a suspended license, the search would have been illegal. The court then ruled: I think this illegal search was interrupted by the consent search of the young woman who had contraband on her, and then of course, once the police discover contraband, they’re not going to ignore that.

And so for reasons that I’ve probably articulated, perhaps ad nauseam, the motion to suppress will be denied.

II

On a later date, trial before the Circuit Court proceeded on an agreed statement of facts. The court found Petitioner guilty of conspiracy to commit theft of property having a value of at least $1,000 but less than $10,000 and making a false statement while under arrest. Petitioner raised several claims on appeal to the Court of Special Appeals, including that the Circuit Court erred in denying the motion to suppress evidence. In support of that argument, Petitioner relied on the theory that all the evidence obtained by the police — the counterfeit credit cards, Nordstrom shopping bags and merchan ¹² dise, and a statement Petitioner eventually made to the police 8 — was the fruit of his unlawful arrest.

The Court of Special Appeals first addressed the State’s argument that Petitioner’s unlawful arrest theory in support of suppression of the evidence was not preserved for appellate review and concluded that it was. The Court of Special Appeals explained its rationale in a footnote: The issue of whether law enforcement officers had probable cause to arrest appellant is preserved for appellate review because it was raised in the circuit court. Ironically, it was the prosecutor who raised the issue in the circuit court by arguing: “[A]t that point, just as if drugs had been discovered, they’ve got probable cause to arrest everybody.” Afterward, the circuit court, ruling from the bench, endorsed the State’s position by stating: “[0]nce the police discover contraband, they’re not going to ignore that.” That appellant did not mention probable cause while arguing before the circuit court is not relevant. Pursuant to Maryland Rule 8 — 131(a), to be preserved for appellate review, an issue simply needs to be “raised in or decided by the trial court,” regardless of which party raises the issue.

Ray v. State, 206 Md.App. 309 , 337 n. 13, 47 A.3d 1113 (2012) (alterations in original). The Court of Special Appeals held that the police had probable cause to arrest Petitioner under the “common enterprise” theory endorsed by Maryland v. Pringle, 540 U.S. 366 , 124 S.Ct. 795 , 157 L.Ed.2d 769 (2003), and therefore any evidence that police obtained pursuant to or as the fruit of that arrest was not subject to suppression. 9 See Ray, 206 Md.App. at 338-41 , 47 A.3d 1113 . ¹³ Petitioner then filed with this Court a petition for a writ of certiorari. We granted the petition to consider the following question: Did the Court of Special Appeals err in holding that there existed probable cause to arrest Mr. Ray under the common enterprise theory developed in Maryland v. Pringle, when a female passenger of the car in which Mr. Ray was also a passenger, consented to a search of her own jacket and of her own wallet found inside her jacket and police discovered counterfeit credit cards inside the wallet that had been used to purchase items later found in shopping bags inside the car? We also granted the State’s conditional cross-petition, which asks: Should the Court of Special Appeals have refused to address Ray’s claim that he was arrested without probable cause where Ray did not challenge the legality of his arrest at the suppression hearing, and as a result, no testimony or evidence was produced on the circumstances of Ray’s arrest?

III

Petitioner claims that the Circuit Court wrongly denied his motion to suppress the physical evidence and inculpatory statement to the police on the ground that all of that evidence was the product of an unlawful arrest. In that regard, he insists that the Court of Special Appeals wrongly relied on the rationale and holding of Maryland v. Pringle in holding that Petitioner was lawfully arrested, and that we must correct that error here. We cannot decide the merits of Petitioner’s claim because, as the State argues, the claim is not properly before us for appellate review. ¹⁴ Maryland Rule 1-252 Maryland Rule 4-252 governs the mandatory motions that are deemed waived unless properly raised in the Circuit Court. The text of that rule provides: (a) Mandatory motions.

In the circuit court, the following matters shall be raised by motion in conformity with this Rule and if not so raised are waived unless the court, for good cause shown, orders otherwise: (3) An unlawful search, seizure, interception of wire or oral communication, or pretrial identification; (e) Content. A motion filed pursuant to this Rule shall be in writing unless the court otherwise directs, shall state the grounds upon which it is made, and shall set forth the relief sought.... Every motion shall contain or be accompanied by a statement of points and citation of authorities. (Emphasis added).

The purpose of Rule 4-252 is “to alert both the court and the prosecutor to the precise nature of the complaint, in order that the prosecutor have a fair opportunity to defend against it and that the court understand the issue before it.” Denicolis v. State, 378 Md. 646, 660 , 837 A.2d 944 (2003). Therefore, the word “raise,” as used in subsection (a) of Rule 4-252, is properly defined as meaning “[t]o bring up for discussion or consideration; to introduce or put forward.” Black’s Law Dictionary 1373 (9th ed. 2009). For example, “the party raised the issue in its pleading.” Id. See also Merriam-Webster’s Collegiate Dictionary 1028 (10th ed. 1999) (defining “raise” as “to bring up for consideration or debate” and offering the phrase “raise an issue” as an example).

It is clear from Petitioner’s motion to suppress and from what he did— and did not — argue at the hearing on the motion, that Petitioner did not comply with the dictate of Rule 4-252 that he raise the claim he now asks us to resolve. ¹⁵ We begin with the omnibus motion, in which Petitioner sought suppression of unidentified evidence claiming merely “[t]hat articles of evidence taken from the Defendant by police authorities were obtained as the result of an illegal search and seizure in violation of the Defendant’s constitutional rights.” The omnibus motion contained no supporting factual allegations, legal arguments, or citations to authority. In the words of Rule 4-252(e), the motion did not “state the grounds upon which” suppression was sought. See Denicolis, 378 Md. at 660 , 837 A.2d 944 (describing this species of omnibus motions as those that “seek[] a panoply of relief based on bald, conclusory allegations devoid of any articulated factual or legal underpinning”); Phillips v. State, 425 Md. 210 , 217 n. 4, 40 A.3d 25 (2012) (cautioning that “a motion that fails to provide either a factual or legal basis for granting the requested relief should not be granted”). We therefore reject Petitioner’s suggestion that the omnibus motion sufficed to put at issue the specific ground for suppression of evidence that it was the fruit of an unlawful arrest.

Petitioner filed a written supplement to the omnibus motion on the day before the motions hearing. In that motion, Petitioner offered two arguments for suppression of evidence and cited authority for each: (1) “That the Police Officers had no reasonable articulable suspicion that a traffic violation had occurred and therefore no legal basis to stop the vehicle. Whren v. [United States], 517 U.S. 806 [ 116 S.Ct. 1769 , 135 L.Ed.2d 89 ] (1996), Rowe v. State, 363 Md. 424 [ 769 A.2d 879 ] (2001).” (2) “After the citations were written, the passengers were illegally detained. Ferris v. State, 355 Md. 356 [ 735 A.2d 491 ] (1999)....

The detention of the passengers was [a] “second stop.” The Officers had no independent reasonable articulable suspicion of criminal activity to detain the passengers after making the decision to issue the driver traffic citations. Charity v. State, 132 Md.App. 5 [98, 753 A.2d 556 ] (2000).” ¹⁶ This motion satisfies Rule 4-252(e), but the grounds stated in it do not come close to raising unlawful arrest as a ground for suppression of the evidence, and Petitioner does not argue to the contrary. Neither did Petitioner comply with the dictates of Rule 4-252(e) by orally injecting the unlawful arrest claim into the motions hearing. Not once during the hearing, which covers nearly 90 pages of transcript, did defense counsel even utter the terms “probable cause” or “arrest” when discussing Petitioner. 10 Indeed, at the outset of the hearing, while stating his case for suppression, and throughout the hearing, while examining the police witnesses and later arguing to the court, Petitioner did not deviate from the two-part illegal stop/unlawful second “detention” of the passengers theory — the same theory for suppression of evidence he set forth in the supplemental motion.

Notwithstanding that he never advanced before the motions court, in any way, shape, or form, the unlawful arrest claim he now asserts, Petitioner believes his case is akin to Phillips , in which we deemed it appropriate to address the merits of an issue that was not specifically identified at the Circuit Court level as a ground for suppression of evidence. We do not agree. In that case, the defendant Phillips’s omnibus Rule 4-252 motion sought suppression of illegally obtained statements and confessions made by him, but offered “[n]o facts supporting that allegation and no points or authorities.” Id. at 216 , 40 A.3d 25 . On appeal, Phillips asked this Court to consider whether his statements had been obtained in violation of Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), which dictates that, if an accused invokes his right to have counsel present, police questioning must cease “until counsel is made available to him, unless the accused himself initiates further communication, exchanges, or conversations ¹⁷ with the police.” 451 U.S. at 484-85 , 101 S.Ct. 1880 .

The State argued that the issue was not preserved for appellate review, and we noted that Edwards was not cited in the written motion or during the court proceeding. Phillips, 425 Md. at 216-17 , 40 A.3d 25 . But upon review of the hearing, it was “clear from the entire context that counsel and the court understood [compliance with Edwards ] to be the issue.” Id. at 217, 40 A.3d 25 . At the outset of the Phillips motions hearing, “defense counsel advised the court that [Phillips] ‘was interviewed by the police and he asked for a lawyer, and it is in not honoring that request that brings us to court this morning.’ ” Id.

The prosecution also “noted that the issues were whether [Phillips] had initiated the conversation and whether doing so constituted a waiver of his right to counsel.” Id. And the court “ruled that [Phillips] had initiated the conversation that led to the inculpatory statements and knew what he was doing.” Id. The court and the parties were clearly aware of the argument advanced by Phillips on appeal. Consequently, we were able to address the merits of his claim.

Petitioner’s case is quite different. Petitioner did not raise the issue of probable cause to arrest in his written motion or at the hearing, and he did not otherwise allude to that theory for suppression of the evidence. It is so that the prosecutor mentioned during argument that, at the point the counterfeit credit cards were found, “just as if drugs had been discovered, they’ve got probable cause to arrest everybody,” and the court appeared to agree. But that point was not pressed by the prosecutor, and, notably, Petitioner did not dispute the prosecutor’s words.

Moreover, the court did not rely on a search incident to arrest theory when ruling on the motion. This case is more akin to Miller v. State, 380 Md. 1 , 843 A.2d 803 (2004), than to Phillips . Miller filed a pre-trial omnibus motion in which he asked, among other things, that all evidence seized from his person “at or about the time of the arrest” be suppressed because such evidence “was seized unlawfully, absent probable cause, and in viola ¹⁸ tion of the United States Constitution, the Maryland Declaration of Rights and other legal rights of this Defendant.” Id. at 49, 843 A.2d 803 . When Miller argued on appeal that he had been arrested without probable cause, we agreed with the State that the argument had been waived under Rule 4-252.

Id. We noted that “Miller’s omnibus motion gave no details supporting his bald contention that evidence was seized from him ‘at or about the time of the arrest’ without probable cause. Nor ... did Miller ever pursue the matter at the hearing on the motion.” Id. As a result, we held that, “[although he pressed his

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