Scribner v. State

DEBORAH S. EYLER, J. Jamar Scribner, the appellant, was convicted by a jury in the Circuit Court for Anne Arundel County of possession with intent to distribute cocaine, possession of cocaine, and possession of a regulated firearm after being convicted of a disqualifying offense. 1 He was sentenced to eight years’ imprisonment for possession with intent to distribute, and to a concurrent five years for the gun conviction. The remaining possession conviction merged for sentencing purposes. The appellant asks two questions on appeal, which we have rephrased slightly: I. Did the circuit court err in denying the appellant’s motion to suppress evidence?

II

Did the trial court abuse its discretion by denying the appellant’s motion for mistrial? For the following reasons, we answer each question in the negative and shall affirm the judgments of the circuit court. I. The Suppression Hearing Facts and Proceedings Prior to trial, the appellant filed a motion to suppress evidence, namely, the firearm discovered and seized during ⁹⁴ the search of a car in which he had been a passenger. The court held a suppression hearing on May 16, 2013, and the following facts were adduced.

Detective Ryan Holby, of the Annapolis City Police Department, testified that on January 16, 2013, he was conducting remote video surveillance of a house at 103 Clay Street in Annapolis (“the house”) in preparation for executing a search and seizure warrant there. A video camera was located near the house, and Detective Holby was monitoring the video feed from the police station. The warrant authorized a search of the house, which was associated with the appellant, for evidence related to “drugs, paraphernalia [and] distribution type stuff.” During the course of the afternoon, Detective Holby observed the appellant exit the house, smoke a cigarette, and go back inside. He also observed the appellant walking across the street, “walking around” and “going in and out of the house.” Around 4:00 p.m., the appellant and a woman exited the house, got into a Toyota Solara, and drove away.

The woman was driving and the appellant was in the front passenger seat. Detective Holby and his partner, Detective Newton, 2 drove from the police station “to attempt to locate the vehicle leaving the community.” Five to ten minutes later, Detective Holby located the Solara on Forest Drive, in Annapolis, and proceeded to follow it into the parking lot of the Safeway grocery store on that road. The appellant and the woman exited the car and went into the Safeway. Detective Holby watched the Solara while the appellant and the woman were in the store.

No one else approached the vehicle or entered it. Detective Holby knew there was an open arrest warrant for the appellant for second-degree assault. He radioed for uniformed officers to come to the Safeway parking lot “so when [the appellant] came out of the store they could place him under arrest for the open warrant.” About ten minutes after ⁹⁵ they entered the store, the appellant and the woman exited and “began to walk towards that vehicle.” Detective Holby directed the uniformed officers “to go ahead [and] place [the appellant] under arrest for the open warrant.” Detective Holby observed the events as they transpired in the parking lot. When the uniformed officers approached, the woman went to the driver’s door of the Solara and the appellant went “to the passenger side front door and attempted] to get in.” The officers stopped the appellant and handcuffed him.

They searched his person, and found “a little bit of U.S. Currency and a clear plastic baggie of crack cocaine.” The officers handcuffed the woman. According to Detective Holby, at that point, “civilians started to gather around just to watch what everyone was doing, taking out cell phones, [possibly] calling people, taking pictures.” He became concerned that someone in the crowd might know the appellant and might “tip off” someone at the house “to dispose of any evidence” before officers could execute the search warrant there. He also was concerned that the safety of the officers serving the warrant at the house could be compromised. For these reasons, Detective Holby advised Corporal Christopher Kintop, one of the arresting officers, to drive the Solara to a secure location “where [they] could search it further.” The appellant was placed in a police vehicle and driven to the police station, where he was booked.

The woman also was taken to the police station, but was released sometime later. Detectives Holby and Newton followed Corporal Kintop as he drove the Solara to the police station. Once they all arrived, Detectives Holby and Newton searched the Solara. Detective Holby found a green bag on the floor in front of the front passenger seat, where the appellant had been sitting when he and the woman were traveling to the Safeway.

Inside the bag, he found a black revolver. On cross-examination, Detective Holby stated that the search warrant for 103 Clay Street was for the house only and did not mention the Solara or any other vehicle. He acknowl ⁹⁶ edged that the Solara did not belong to the appellant, but to Monica Watkins, who was not a target of the search warrant. He also acknowledged that he did not observe the appellant engaging in any behavior indicative of “drug transactions, CDS transactions” before the arrest.

And he had no indication that the appellant was in possession of a gun. While he and Detective Newton were following the Solara, he did not “witness any furtive gestures or any furtive movements of any sort while [the appellant and the woman] were in the car.” Nor did he witness the appellant or the woman “throw anything out the car window.” Officer Ralph DeFalco, also of the Annapolis City Police Department, testified that on January 16, 2013, Detective Holby called him and Corporal Kintop, his partner, to the Safeway on Forest Drive to arrest the appellant on the open assault warrant. He and Corporal Kintop arrived in a marked police car. As the appellant and the woman accompanying him walked out of the Safeway, the officers “drove right up to the vehicle that [the appellant] was walking to.” When the appellant was standing between the passenger side of the Solara and another car parked next to it, with his back to the officers, Officer DeFalco “grabbed him and said you’re under arrest.” The appellant “attempted to get into the front seat of the car” by “[p]ull[ing] away [and] reaching] for the handle,” but Officer DeFalco stopped him.

The car door remained closed during the arrest. Officer DeFalco searched the appellant’s person, and found a “clear plastic baggie containing a white rock like substance” in his front right pocket. Based on his training, knowledge, and experience Officer DeFalco believed the substance was crack cocaine. He also found a $20 bill in each of the appellant’s front pockets.

Corporal Kintop testified that he drove the Solara from the Safeway parking lot to the parking lot of the police station. He did not search the Solara or tamper with any of the items in it while the vehicle was in his custody. He also did not observe anyone else enter the Solara or tamper with items ⁹⁷ inside it before he turned it over to the detectives who conducted the search. At the end of the evidence phase of the suppression hearing, the prosecutor argued: [T]his is a very clear search incident to arrest.

Certainly, the officers went there with intention to arrest [the appellant] on the open arrest warrant. However, they then pat down the [appellant] and during the pat down — and remember the car it still on the scene, so the search of the car has not happened at that point, during the pat down of the [appellant] they find CDS on his person. So, I certainly think at the point that they find CDS on his person, the scope of the arrest has now broadened and they can now search the vehicle that he has been in, for any evidence of further criminal activity.... The prosecutor pointed out that the appellant was charged with possession of crack cocaine with intent to distribute, and simple possession, that same day, January 16, 2013.

She explained: So, I think it’s a difficult argument to make that at that point [the appellant is] only being arrested for the [assault charge]. [The appellant] certainly is being booked and charged at the same time with the new CDS charges, so I think that, certainly, they can search the vehicle for any evidence — further evidence of CDS. The prosecutor further argued that, under Arizona v. Gant, 556 U.S. 332 , 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009), the officers were justified in searching the Solara without a warrant for further evidence of the crimes for which the appellant was arrested; and “because [the appellant was] also being arrested for the CDS” the officers could search the vehicle he had recently occupied for further CDS-related evidence. Defense counsel countered that Gant did not apply to the facts of this case, because the appellant was arrested for second-degree assault, not for possession of crack cocaine. ⁹⁸ Therefore, the arresting officers were not justified in searching the Solara for additional drug evidence. At the conclusion of the suppression hearing, the court held the matter sub curia.

It ruled from the bench four days later, on May 20, 2013. The judge discussed the holding in Gant , quoting, in relevant portion, that “ ‘[cjircumstances unique to an automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might,’ highlighting the word ‘might[,]’ ‘be found in the vehicle.’ ” He stated, that’s what I’m going to find here.... The fact that [the appellant] was found with a controlled dangerous substance and cash, left the home that was being surveyed [sic] for purposes of getting ready to execute a search warrant related to the [appellant], and I believe it was related to ... evidence presented that was related to drugs and that’s what they were searching for, controlled dangerous substance and related items. To me would suggest that it’s entirely possible and in fact there might be evidence found in the vehicle.

So that would authorize the police to enter the vehicle and search it under Arizona [u] Gant . The judge found that the search of the Solara took place “an hour, hour and ten, twenty minutes” after the arrest and the police officers’ justification for searching the Solara was not attenuated simply because the search took place at the police station in that time frame. For these reasons, the court denied the appellant’s motion to suppress the evidence found in the Solara. Discussion The appellant argues on appeal as he did below that the warrantless search of the Solara was not lawful under Gant , because he was arrested for assault, not for drug offenses (possession of crack cocaine and related crimes).

As the appellant puts it, “[t]he fruits of the post-arrest search cannot provide an alternate justification for the arrest.” In reviewing the ruling of the suppression court, we must rely solely upon the record developed at the suppression ⁹⁹ hearing. See, e.g., Lee v. State, 418 Md. 136, 148 [ 12 A.3d 1238 ] (2011). We view the evidence and inferences that may be drawn therefrom in the light most favorable to the party who prevails on the motion, id., here, the State. We give deference to the first-level factual findings made by the suppression court, and we accept those findings unless shown to be clearly erroneous.

See, e.g., Elliott v. State, 417 Md. 413, 427 [ 10 A.3d 761 ] (2010). We, however, make an independent appraisal of the constitutionality of a search, “applying the law to the facts found in each particular case.” Id. at 428 [ 10 A.3d 761 ] (quoting Belote v. State, 411 Md. 104, 120 [ 981 A.2d 1247 ] (2009)) (internal quotation mark omitted). Briscoe v. State, 422 Md. 384, 396 , 30 A.3d 870 (2011) (parallel citations omitted). Searches conducted without a warrant “ ‘are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” Gant, 556 U.S. at 338 , 129 S.Ct. 1710 (quoting Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967)) (footnote omitted in Gant). “Among the exceptions to the warrant requirement is a search incident to a lawful arrest.

The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations.” Id. (citations omitted). In Gant , the United States Supreme Court clarified its holding in New York v. Belton, 453 U.S. 454 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981), regarding warrantless vehicle searches incident to the lawful arrest of the vehicle’s occupant. In Belton , the Court had held “that when an officer lawfully arrests ‘the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile’ and any containers therein.” Gant, 556 U.S. at 340-41 , 129 S.Ct. 1710 (quoting Belton, 453 U.S. at 460 , 101 S.Ct. 2860 ) (footnote omitted in Gant).

That holding was based on the Court’s “assumption ‘that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, ¹⁰⁰ within the area into which an arrestee might reach.’ ” Id. at 341, 129 S.Ct. 1710 (quoting Belton, 453 U.S. at 460 , 101 S.Ct. 2860 ) (some internal quotation marks omitted). The Gant Court acknowledged that Belton had been “widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” Id; see Briscoe, 422 Md. at 402 , 30 A.3d 870 (quoting the foregoing language in Gant , explaining that “Maryland courts were no different in this regard,” and citing several Maryland appellate cases to that effect). It rejected this broad interpretation of Belton , explaining: The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment [of an automobile] are rarely “within the area into which an arrestee might reach,” and blind adherence to Belton’s faulty assumption would authorize myriad unconstitutional searches.

Id. at 350-51, 129 S.Ct. 1710 (internal citation and some internal quotation marks