Russell v. State

⁶⁴³ MARVIN H. SMITH, Judge, Retired, Specially Assigned. At a bench trial in the Circuit Court for Wicomico County, appellant James Russell pleaded not guilty, on an agreed statement of facts, to unlawful possession of a handgun. 1 The court found appellant guilty and imposed a prison sentence of three years, with all but 18 months suspended, in favor of 18 months of supervised probation. ISSUE In this appeal, appellant argues that the trial court erred in denying his pre-trial motion to suppress the handgun, and that the judgment against him must therefore be reversed. We find no merit in this argument and affirm the judgment of the trial court.

STANDARD OF REVIEW In reviewing the denial of a motion to suppress evidence, we make our own independent constitutional appraisal. We make the appraisal by reviewing the law and applying it to the peculiar facts of the particular case____When the facts are in dispute, we accept them as found by the trial judge unless he is clearly erroneous in his judgment on the evidence before him. In ascertaining whether he is clearly erroneous, we give “due regard to the opportunity of the trial court to judge the credibility of the witnesses,” as commanded by Md. Rule 8-131(c).... [T]he relevant facts which we consider “are limited to those produced at the suppression hearing ... which are most favorable to the State as the prevailing party on the motion.” ... Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240-41 (1990), disapproved in part on other grounds, Wengert v. State, 364 Md. 76 , 89 n. 4, 771 A.2d 389 , 396 n. 4 (2001).

See ⁶⁴⁴ also Ferris v. State, 355 Md. 356, 868-69, 735 A.2d 491, 497 (1999). FACTS The State’s key witness at the hearing on the motion to suppress was Officer Jason Yankalunas of the Salisbury Police Department. Officer Yankalunas explained that appellant was arrested after the car in which he was a passenger was pulled over during a routine traffic stop. Officer Yankalunas testified that, in the early evening of November 11,1999, he and another officer were riding in a car driven by Officer Richard Hagel.

At 4:50 PM, the officers saw the driver of a car on Delaware Avenue in Salisbury commit a turn signal violation. They alerted the driver to pull over in the parking lot of a nearby business. The driver of the car was Monique Horsey. Officer Yankalunas observed Officer Hagel approach the driver’s window and ask Ms. Horsey for her driver’s license.

Ms. Horsey responded that she did not have her license with her. At that point, Officer Yankalunas approached the passenger window in order to “see if [appellant] had a driver’s license so that had [Ms. Horsey’s] license come back suspended as it did, he could drive the vehicle if he were valid.” Officer Yankalunas stated: “I approached him and asked him about his driver’s license and his driving status.” 2 Officer Yankalunas testified that, as he approached the passenger window, appellant rolled the window down. As the officer inquired about appellant’s driver’s license, appellant “became extremely nervous.” Officer Yankalunas observed that appellant “was looking around” and “began to fidget a bit.” Although appellant was wearing a heavy leather jacket, the officer also noticed that he “began to breathe more heavily and swallow very hard.” Officer Yankalunas explained that he had conducted a large number of traffic stops, and that the ⁶⁴⁵ level of nervousness exhibited by appellant was unusual for a mere passenger. Appellant went through all of his pockets apparently looking for his license.

He put both hands in a front pocket of his jacket and “fooled around with something” therein. Officer Yankalunas saw appellant “pull his hands out, but when he did, he put something back into the pocket____” Officer Yankalunas testified that he was aware that the area in which the traffic stop was made was considered to be a “very high crime, high drug area” area and that a “great deal of weapons” are recovered there. He observed that the pocket into which appellant pushed something back was large enough to conceal a handgun. Those facts, combined with what he considered to be excessive nervousness on appellant’s part, caused him to suspect that appellant might be carrying a weapon.

The officer then ordered appellant to get out of the car and explained to appellant that he would be patted down for weapons. Appellant got out of the vehicle but, despite Officer Yankalunas’ repeated instructions to stand with his hands on the roof of the car, refused to take his hands out of his pockets. Officer Yankalunas informed appellant that if he would not cooperate he would have to be handcuffed. The officer took a step toward appellant as if to handcuff him, and appellant then pulled a handgun from his front jacket pocket and threw it onto the front passenger seat of the car.

At that point, Officer Yankalunas shouted “gun” and the other two officers came to assist him. Appellant was arrested and handcuffed and the handgun was recovered. The driver of the car, Monique Horsey, testified for the defense. Ms. Horsey testified that appellant is her fiancé and that she lived at an address on Delaware Avenue at the time of the traffic stop.

All of the documents in the trial record, which were before the court at the suppression hearing, indicate that appellant lived at the same address. Ms. Horsey stated that Officer Hagel specifically instructed Officer Yankalunas to “ask the passenger for identification.” ⁶⁴⁶ She thus tacitly contradicted Officer Yankalunas’ testimony that he merely asked appellant if he had a valid driver’s license. Ms. Horsey further stated that appellant did not get out of the car on his own. Rather, she asserted that several officers pulled him out of the vehicle and handcuffed him immediately.

DISCUSSION Appellant contends that the trial court erred in refusing to suppress the handgun, in that the handgun was the fruit of a seizure conducted in violation of the Fourth Amendment to the Constitution of the United States. Appellant’s principal argument is that he was unlawfully seized “the moment Officer Yankalunas asked [him] for his identification.” In the alternative, appellant argues that he was unlawfully seized when he was ordered to get out of the car so that Officer Yankalunas could conduct a pat-down. Appellant did not present his principal argument to the trial court at the hearing on the motion to suppress or at any other point below. His counsel argued only that Officer Yankalunas did not have a reasonable articulable suspicion to pat appellant down.

Thus, the argument is not preserved and is not properly before this Court. See, e.g., McKoy v. State, 127 Md.App. 89, 99 , 732 A.2d 312, 317 (1999). Had appellant’s principal argument been properly preserved, we would find it to be without merit. We shall address the argument for guidance purposes.

We shall hold that appellant’s alternative argument is without merit as well. —Questioning Regarding Driver’s License— In Ferris 3 , 355 Md. at 369 , 735 A.2d at 497-98 , the Court of Appeals summarized: ⁶⁴⁷ The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention---- The Supreme Court has made clear that a traffic stop involving a motorist is a detention which implicates the Fourth Amendment.... It is equally clear, however, that ordinarily such a stop does not initially violate the federal Constitution if police have probable cause to believe that the driver has committed a traffic violation____ Nonetheless, the Supreme Court has also made clear that the detention of a person “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” ... Neither the Supreme Court, the Court of Appeals, nor this Court has addressed whether police may lawfully detain a passenger in a vehicle stopped pursuant to a routine traffic stop. In Maryland v. Wilson, 519 U.S. 408, 415 , 117 S.Ct. 882, 886 , 137 L.Ed.2d 41 (1997), the Supreme Court held that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.” The Court expressly declined to comment upon whether the officer could forcibly detain such passengers.

See id. at 415 n. 3, 117 S.Ct. at 886 n. 3. Even if appellant had properly preserved his argument that he was unlawfully seized “the moment Officer Yankalunas asked [him] for his identification,” we are confident that the issue could be resolved without plowing new ground. In Ferris, 355 Md. at 374-75 , 735 A.2d at 500-01 , the Court of Appeals explained: Mere police questioning does not constitute a seizure____ This is so even if the police lack any suspicion, reasonable or otherwise, that an individual has committed a crime or is involved in criminal activity, because the Fourth Amendment simply does not apply____ If the engagement between the Petitioner and the officer was merely a “consensual encounter,” no privacy interests were invaded and thus the Fourth Amendment is not implicated. Even when the officers have no basis for suspecting criminal involvement, ⁶⁴⁸ they may generally ask questions of an individual “so long as the police do not convey a message that compliance with their request is required.” ...

If the police, in some way, communicate to a reasonable person that he or she was not free. to ignore the police presence and go about their business, then the Fourth Amendment is implicated---- (Citations omitted.) The Ferns Court went on to elucidate: If a reasonable person would have felt free to leave, no seizure occurred. Conversely, if a reasonable person would have felt compelled to stay, a seizure took place. The focus, then, is “whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” ... Id. at 375-76 , 735 A.2d at 501 .

This “reasonable person” test is an “objective one,” id. at 377 , 735 A.2d at 502 , and in applying it “a court must apply the totality-of-the-circumstances approach, with no single factor dictating whether a seizure has occurred.” Id. at 376 , 735 A.2d at 501 . The Court of Appeals summarized in Ferris, 355 Md. at 377 , 735 A.2d at 502 : Although the inquiry is a highly fact-specific one, courts have identified certain factors as probative of whether a reasonable person would have felt free to leave____These factors include: the time and place of the encounter, the number of officers present and whether they were uniformed, whether the police removed the person to a different location or isolated him or her from others, whether the police indicated that the person was suspected of a crime, whether the police retained the person’s documents, and whether the police exhibited threatening behavior or physical contact that would suggest to a reasonable person that he or she was not free to leave. Appellant’s argument that he was unlawfully seized “the moment Officer Yankalunas asked [him] for his identification” would not survive the test set forth in Ferris. The trial court was not asked to, and did not, rule on whether appellant was detained at the point when Officer Yankalunas