Santos v. State

Beachley, J. Anthony Santos, appellant, presents one question for our review: whether the Circuit Court for Baltimore County erred in denying appellant’s motion to suppress evidence seized as a result of an illegal search. Appellant entered conditional guilty pleas to distributing heroin and possession with intent to distribute cocaine. We find no error and affirm. FACTUAL AND PROCEDURAL BACKGROUND On September 30, 2014, at approximately 12:45 p.m., Detective Dominic Bridges and Sergeant George Rakowski were patrolling in an unmarked car near the Eastpoint Mall in Dundalk.

Both officers were assigned to the narcotics section of the Baltimore County Police Department. While traveling on an access road around the mall, the officers observed a black car parked outside a McDonald’s restaurant. Detective Bridges noticed the car because, in his experience, “drug transactions and things like that are occurring at places, public places where you can blend in.” He also noted that the vehicle was parked away from the restaurant itself, though spaces were available closer to the McDonald’s. Sergeant Rakowski noted that the officers knew the parking lot to be “highly concentrated for narcotics transactions.” Detective Bridges saw appellant in the driver’s seat and a white female, later identified as Amanda Fitch, in the passenger’s seat.

He noticed that they were “looking around” and believed they were checking for the presence of police. The ⁴⁹¹ officers observed Ms. Fitch exit the car, enter the McDonald’s restaurant, and sit at a table with a white male. Both officers noted that she was wearing pajama pants. Appellant then drove out of the parking lot, passing the officers.

The officers noticed that appellant was not wearing a seat belt and was “manipulating” his cell phone. Detective Bridges believed that everything he had observed to that point was consistent with a drug transaction. He told Sergeant Rakowski that he intended to stop the vehicle. The officers followed appellant and conducted a traffic stop in a parking lot in front of a Bank of America branch on the other side of the mall.

Detective Bridges approached the driver’s side of appellant’s car while Sergeant Rakowski went to the passenger’s side. Detective Bridges identified himself as an undercover detective, explained the reasons for the stop, and asked for appellant’s license and registration. Both officers observed that appellant was unusually nervous and “sweating profusely” even though it was “not a hot day.” Detective Bridges noted that appellant was trembling; he instructed appellant to place the vehicle in park and appellant complied. Sergeant Rakowski asked appellant where he was coming from.

Appellant replied that he had just come from the mall. Sergeant Rakowski then asked appellant if he had stopped anywhere or met with anyone. Appellant replied that he had not met anyone and was headed home. Because he had just seen appellant at the McDonald’s with Ms. Fitch, Detective Bridges concluded that appellant was lying.

Detective Bridges asked appellant to exit and move to the rear of the car. Detectives Herr and Johnson arrived in a second vehicle within two to three minutes after the initial stop. While Detective Bridges conducted a record and registration check, Sergeant Rakowski and Detective Johnson went back to the McDonald’s to try to find Ms. Fitch. Appellant’s record check revealed two possible warrants.

Detective Bridges asked the precinct desk to confirm whether the warrants were active. Meanwhile, after arriving at the McDonald’s, which was “right around the corner” from the location of the traffic stop, ⁴⁹² Sergeant Rakowski went inside to look for Ms. Fitch. Unable to find her in the dining area, Sergeant Rakowski asked the manager to check the women’s bathroom for a female matching Ms. Fitch’s description. The manager obliged and told Sergeant Rakowski that a woman matching the description was in the bathroom.

After she exited the bathroom, Sergeant Rakowski asked Ms. Fitch about “the stuff you just got from the guy in the car, the black car at the top of the hill.” Ms. Fitch replied that she had “already used it.” She explained that appellant had retrieved the heroin from behind the passenger’s seat of the car. Sergeant Rakowski then radioed Detective Herr at the scene of the traffic stop and informed him that Ms. Fitch had admitted to buying heroin from appellant. Sergeant Rakowski estimated he made the radio report six minutes after leaving the traffic stop. According to Detective Bridges, he and Detective Herr received Sergeant Rakowski’s call after appellant’s license and registration had been verified, but before learning the status of appellant’s warrants.

Based on the information he received from Sergeant Ra-kowski, Detective Bridges arrested appellant and searched his car. Detective Bridges found a modified WD-40 can containing suspected illegal drugs behind the passenger’s seat. A laboratory analysis confirmed that the substances were heroin and cocaine. At the hearing on appellant’s motion to suppress evidence, appellant’s counsel attempted to pinpoint the timing and sequence of the events.

Detective Bridges testified that the stop occurred at 12:47 p.m. and that the warrants check came back as negative at 1:00 p.m. This testimony was based on audio recordings between the detective and police dispatch. Sergeant Rakowski testified similarly. Appellant’s counsel then showed both officers the written dispatch record indicating that unit “N-120”—Sergeant Rakowski—was “in route” to an unspecified destination at 1:03 p.m.

Neither officer could initially determine whether “in route” meant that Sergeant Ra-kowski was traveling to or from the McDonald’s. Sergeant Rakowski ultimately concluded, based on the audio-record of ⁴⁹³ communications, that he was at the McDonald’s when he made a radio request for a marked patrol car. Sergeant Rakowski made that call at 1:01 or 1:02 p.m., fourteen to fifteen minutes after the initial traffic stop at 12:47 p.m. Appellant also testified at the suppression hearing.

He denied using his phone while driving, but acknowledged the “possibility” of not wearing his seat belt. Based on the testimony and evidence, the circuit court denied the motion to suppress, specifically finding the testimony of both Detective Bridges and Sergeant Rakowski credible. The trial court also made the following findings of facts: • The officers noticed appellant’s car parked on the “upper lot” away from the McDonald’s. • Both appellant and his female passenger (Ms. Fitch) ■ were “looking around.” • The female passenger exited the vehicle and went into the McDonald’s where she “sat with a man.” • As appellant passed the officers, they noticed that appellant was not wearing a seat belt and was “manipulating his phone.” • Appellant was “nervous beyond what one would normally expect” when stopped by the officers. • Appellant was “sweating profusely.” • When asked where he had been, appellant stated that he had been at the mall. Appellant denied having met with anyone “when, in fact, he had met with the red haired pajama bottom lady” (Ms. Fitch).

Appellant provided those answers before exiting the car. • Sergeant Rakowski left the scene of the traffic stop to go to the McDonald’s before dispatch provided the record check. • Approximately thirteen minutes elapsed between the traffic stop at 12:47 p.m. and the report at 1:00 p.m. verifying that appellant did not have any active warrants. ⁴⁹⁴ • Sergeant Rakowski was at the McDonald’s when he requested a patrol car. The trial court concluded that the traffic stop was a valid Whren 1 stop, the questions posed to appellant by the officers were “routine,” and that the officers had “reasonable suspicion” to detain appellant based on his answers and the officers’ other observations. The trial court therefore denied the motion to suppress. In order to preserve his right to appeal, appellant entered a conditional guilty plea to charges of distributing heroin and possession of cocaine with intent to distribute.

The court accepted the plea and sentenced appellant to ten years without the possibility of parole on the distribution charge and fifteen years consecutive, but suspended, on the possession with intent charge. Appellant timely noted this appeal. STANDARD OF REVIEW “When reviewing the disposition of a motion to suppress evidence alleged to have been seized in contravention of the Fourth Amendment ... we view the evidence adduced at the suppression hearing, and the inferences fairly deducible therefrom, in the light most favorable to the party that prevailed on the motion.” Crosby v. State, 408 Md. 490, 504 , 970 A.2d 894 (2009). The one qualification to this general rule is that “[t]he actual findings of fact made by the hearing judge, unless clearly erroneous, ‘trump’ the version most favorable to the prevailing party to the extent to which they might be in conflict.” Charity v. State, 132 Md.App. 598, 606 , 753 A.2d 556 (2000). “Nevertheless, in resolving the ultimate question of whether the detention and attendant search of an individual’s person or property violates the Fourth Amendment, we make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.” Crosby, 408 Md. at 505 , 970 A.2d 894 (internal quotation marks omitted).

Here, the trial court made several specific ⁴⁹⁵ findings of fact in denying appellant’s motion to suppress. We will therefore accept these facts unless clearly erroneous. As to all other facts and evidence, we will assume the version of the facts most favorable to the State and make our own independent conclusions of the law. DISCUSSION Our analysis begins with the so-called “Whren-stop.” We observed in Charity v. State, 132 Md.App. 598, 601 , 753 A.2d 556 (2000): In Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996), the Supreme Court extended law enforcement officers a sweeping prerogative, permitting them to exploit the investigative opportunities presented to them by observing traffic infractions even when their primary, subjective intention is to look for narcotics violations.

In assessing the traffic stop, the only concern is whether the officer possessed sufficient information to objectively justify the stop; the officer’s subjective intent is irrelevant. Jackson v. State, 190 Md.App. 497, 503 , 988 A.2d 1154 (2010). Here, the officers observed appellant not wearing a seat belt and “manipulating” his cell phone while driving. Appellant correctly notes that only uniformed police officers are authorized to stop motorists for seat belt violations.

See Md. Code (1977, 2012 Repl. Vol., 2016 Supp.) § 22-106(a) of the Transportation Article (“TR”). At oral argument appellant conceded that there is no such limitation for stopping a driver while using a handheld telephone. Accordingly, the trial court correctly found that the traffic stop was justified under Whren . 2 A. Limitations of a Traffic Stop Under Ferris v. State In Ferris v. State, 355 Md. 356, 369 , 735 A.2d 491 (1999), the Court of Appeals explained the limitations imposed upon law enforcement after a valid traffic stop: ⁴⁹⁶ The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention.

United States v. Mendenhall, 446 U.S. 544, 551 , 100 S.Ct. 1870, 1875 , 64 L.Ed.2d 497 (1980). The Supreme Court has made clear that a traffic stop involving a motorist is a detention which implicates the Fourth Amendment. See United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568, 1573 , 84 L.Ed.2d 605 (1985); Berkemer v. McCarty, 468 U.S. 420, 489 , 104 S.Ct. 3138, 3150 , 82 L,Ed.2d 317 (1984) (analogizing the degree of intrusiveness of the usual traffic stop to the degree of restraint imposed by the typical Terry stop). It is equally clear, however, that ordinarily such a stop does not initially violate the federal Constitution if the police have probable cause to believe that the driver has committed a traffic violation.

Whren v. United States, 517 U.S. 806, 810 , 116 S.Ct. 1769, 1772 , 135 L.Ed.2d 89 (1996). Nonetheless, the Supreme Court has also made it clear that the detention of a person “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 , 103 S.Ct. 1319, 1325 , 75 L.Ed.2d 229 (1983) (plurality opinion). The Court further explained that, the officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.

See Royer, 460 U.S. at 500 , 103 S.Ct. at 1325-26 . Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot. Id. at 372, 735 A.2d 491 . It is that second component— reasonable articulable suspicion—that formed the basis of the ⁴⁹⁷ trial court’s ruling in this ease and to which we turn our attention.

B. Reasonable Articulable Suspicion Under Terry The officers detained appellant at 12:47 p.m. for two traffic violations. Almost immediately, the status of appellant’s detention embarked upon a parallel track of a Terry investigation for a narcotics violation. In State v. Ofori, 170 Md.App. 211, 245 , 906 A.2d 1089 (2006), we recognized the potential for a second, independent justification for a detention: The caselaw universally recognizes the possibility that by the time a legitimate detention for a traffic stop has come to an end, or more frequently while the legitimate traffic stop is still in progress, justification may develop for a second and independent detention. Unfolding events in the course of the traffic stop may give rise to Terry-level articulable suspicion of criminality, thereby warranting further investigation in its own right and for a different purpose.

And in Jackson, 190 Md.App. at 515 , 988 A.2d 1154 , we further explained: There is no logically sound reason why at any point in the course of a traffic stop, articulable suspicion might not achieve critical mass for a Terry criminal investigation. If such articulable suspicion may develop in the total absence of a traffic stop, it may as readily develop in the course of one. From that point on, the processing of 1) the traffic infraction and 2) the Terry investigation for narcotics involvement may proceed simultaneously on parallel tracks. The time limit for processing the traffic infraction, to be sure, might run its course before the Terry drug investigation time limit runs out; but the detention itself will still be reasonable as long as either of its justifying rationales, the old one or the new one, remains vital.

As in Jackson , the traffic stop and detention of appellant in this case almost immediately morphed into a parallel Terry-stop. The trial court found reasonable suspicion under Terry rather than the ripening of probable cause to arrest while waiting for the records check.