Smith v. State

KENNEY, J. James Nathaniel Smith, appellant, was convicted after a bench trial in the Circuit Court for Prince George’s County of possession with intent to distribute greater than fifty grams of crack cocaine and possession of a firearm with nexus to drug trafficking. He was sentenced to ten years for the drug possession charge, with all but five years suspended, and five years for the possession of a firearm charge, with the sentences to be served concurrently. On appeal, Smith poses the following question, which we have slightly reworded: ⁴⁶⁶ Did the circuit court err in denying his motion to suppress evidence obtained in violation of his rights under the Fourth and Fourteenth Amendments to the United States Constitution? Because we find that Smith’s rights were not violated, we affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL HISTORY On May 2, 2003, Detective Anthony Weaver was assigned to the Narcotics Enforcement Division of the Prince George’s County Police Department. In a telephone conversation, a confidential source revealed to Detective Weaver that a man named “Jimmy” was present in the vicinity of Emo Street in Prince George’s County for the purpose of distributing crack cocaine. The informant described “Jimmy” as “a black male, thin build, corn rows, light beard, with a black T-shirt ... driving a grayish-black Jeep Cherokee with tinted windows.” In response to the informant’s tip, Detective Weaver and Sergeant Edward Davey, 1 traveling in separate cars, ventured to the Emo Street and Clovis Avenue neighborhood. They arrived there at approximately 7:30 p.m.

Shortly thereafter, the officers located a gray Jeep Cherokee in the eight or nine hundred block of Clovis Avenue. It had tinted windows and was facing the direction indicated by the informant. Surveil-ling the Jeep and the area, the officers witnessed a man matching the description given by the informant exit the vehicle several times, approach a group of males across the street, and then reenter the driver’s seat of the vehicle. Both Detective Weaver and Sergeant Davey later identified the man as James Smith.

Detective Weaver met with uniformed patrol officers on a nearby street for the purpose of instructing them to stop the vehicle when it was driven away. Sergeant Davey remained to watch the Jeep. ⁴⁶⁷ When Smith drove away, he was quickly stopped and surrounded by three marked Prince George’s County police vehicles in the middle of Balboa Avenue. Officer Gurry, the uniformed officer conducting the stop, ordered Smith to exit the vehicle. Smith was escorted away from the Jeep.

Two passengers, William Frazier and Andre Taylor, were then ordered to exit the Jeep and were escorted off to the side. Detective Weaver and Sergeant Davey both arrived on the scene shortly after the stop. Sergeant Davey had Maggs with him, a police canine trained to detect the odors of marijuana and crack cocaine, among other illicit drugs. He then conducted an exterior canine scan of the vehicle.

While passing the rear driver’s side of the Jeep, Maggs jerked her head, indicating to Sergeant Davey that she had detected an odor she was trained to recognize. When Maggs was placed in the interior of the Jeep, she immediately went to the center console. After being prompted to search the back seat, Maggs returned to the center console and began scratching it. Sergeant Davey testified that Maggs had been trained to scratch at an area where she discovers the strongest scent of an odor that she had been trained to detect.

Sergeant Davey informed Detective Weaver concerning the alerts Maggs had given. Based on that information, Detective Weaver began a search of the Jeep’s interior. An electronic scale with suspected cocaine residue on its top and sides was found in the glove compartment. In addition, some hollowed out “backwoods cigars” were found in the center console and some plastic bags were found on the rear seat.

Following the initial search of the Jeep, Smith was placed under arrest. He was searched incident to arrest and $1,573 and some suspected marijuana were found. According to the testimony of Detective Weaver and Sergeant Davey, after Smith’s arrest, the continued search of the Jeep was interrupted several times due to increased traffic on Balboa Avenue. Although Balboa Avenue was a two lane road, vehicles were parked on both sides of the road making it ⁴⁶⁸ impossible for two vehicles traveling in opposite directions to pass.

Determining that a continued search of the Jeep at that location was too dangerous, the officers impounded the Jeep and towed it to the District IV precinct. Upon the arrival of the Jeep at the precinct, Sergeant Davey again walked Maggs around the outside of the Jeep. According to Sergeant Davey, Maggs alerted to the same spot near the driver’s side rear tire. Moreover, a continued search of the interior of the vehicle revealed what Sergeant Davey considered to be an overabundance of air fresheners and electrical wires.

As a result-of his suspicion that the wires controlled access to a secret compartment, Sergeant Davey called in the “fire board” or fire department. The fire department located a secret compartment in the rear of the vehicle and used tools to open it. Inside the compartment were two handguns, a Beretta and a Glock, some money, and what appeared to be bags of crack cocaine totaling more than fifty grams. Cellular phones were recovered from the Jeep’s interior.

On May 27, 2003, the Grand Jury for Prince George’s County indicted Smith for: 1) possession with intent to distribute greater than fifty grams of crack cocaine; 2) possession of cocaine, a controlled dangerous substance, with intent to distribute; 3) possession of cocaine, a controlled dangerous substance; 4) possession of marijuana, a controlled dangerous substance; 5) possession of drug paraphernalia; 6) possession of a firearm, Beretta, with nexus, to drug trafficking; and 7) possession of a firearm, Glock, with nexus to drug trafficking. The Suppression Hearing Smith moved to suppress the evidence obtained from the search incident to his arrest and from the search of the Jeep, alleging that the officers violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution. A hearing was held on August 29, 2003. Detective Weaver was the first witness called by the State.

He testified that, on May 2, 2003, he received a phone call ⁴⁶⁹ from a confidential informant regarding Smith. According to Detective Weaver, the informant told him that a black male named “Jimmy” was on Emo Street for the purpose of distributing crack cocaine. The informant described Jimmy as “a black male, thin build, corn rows, light beard, with a black T-shirt. He also said that he would be driving a grayish-black Jeep Cherokee.” After he and Sergeant Davey had gone to the area around Emo Street and Clovis Avenue, Detective Weaver was again contacted by the informant, who reiterated his prior description.

Detective Weaver recalled that the same confidential informant had once before provided information, which was relied on to obtain a search warrant and effectuate an arrest. Furthermore, he stated that none of the information provided by the confidential informant had been proven incorrect or inaccurate. He then testified as to the eventual location of the Jeep matching the informant’s description and the subsequent surveillance. According to Detective Weaver, a group of men were surrounding the Jeep and a man matching the informant’s description exited and reentered the Jeep several times.

On one occasion, a man approached the driver’s side window of the Jeep, but Detective Weaver was too far away to determine what was occurring. He stated that he did not witness anything that he “could verify as a drug transaction.” Detective Weaver left the area to instruct uniformed patrol units to stop the vehicle. Although he was not present when the Jeep was stopped, Detective Weaver arrived on the scene shortly afterward, and he was informed by Officer Gurry, the officer conducting the stop, that the three occupants of the Jeep were “extremely nervous.” Officer Gurry ordered all of the occupants out of the Jeep. Sergeant Davey then conducted the canine scan and informed Detective Weaver that Maggs had alerted.

Detective Weaver then searched the car. He found an electronic scale in the glove compartment, some cigars in the console, and some plastic bags in the back seat. He did not ⁴⁷⁰ remember whether he performed a field test, but Detective Weaver testified that there was suspected cocaine residue on the top and sides of the scale. According to Detective Weaver, after the scale was found, Smith was placed under arrest.

A search incident to Smith’s arrest revealed $1,573 and a small quantity of suspected marijuana. Detective Weaver testified that, following Smith’s arrest, Balboa Avenue became crowded with traffic. Because it was a “very narrow” street, when traffic passed, the continued search of the Jeep had become unsafe and had to be halted. The Jeep was towed to the District IV precinct.

When the Jeep arrived at the precinct, Detective Weaver observed Sergeant Davey conduct a second exterior canine scan. Sergeant Davey informed him that Maggs had alerted to the same location. While the search of the Jeep continued outside, Detective Weaver went into the station house to begin preparing paperwork. During cross-examination, Detective Weaver stated that he did not remember taking notes on his phone conversations with the informant.

He also did not remember whether the informant had provided him a license plate number, but he acknowledged that a tag number was not included in his report describing the information provided by the informant. Whether the informant had given a clothing description was also missing from the report. Furthermore, Detective Weaver testified that the informant had in the past been a drug user and dealer. Although the informant was not paid money for his prior tip, Detective Weaver stated that he was paid $600 for the information resulting in Smith’s arrest.

Detective Weaver did see Smith exit and leave the Jeep, but he did not witness Smith engage in behavior that he could identify as a drug transaction. Detective Weaver testified that he did not recall the method Officer Gurry used to get Smith out of the Jeep after it had been stopped, but he stated that not much force was used. He also stated that, after Smith got out of the Jeep, Officer Gurry patted Smith down, but that Officer Gurry did not ⁴⁷¹ handcuff Smith until the scale, baggies, and cigars were found in the Jeep. The State’s next witness was Sergeant Davey.

After identifying Smith, Sergeant Davey testified that he, along with Detective Weaver, traveled to Clovis Avenue because of the tip received from the informant. After locating the Jeep, Sergeant Davey observed Smith going to and from the vehicle several times. He watched the Jeep until Smith drove away. Although he was not present when Smith was stopped, Sergeant Davey arrived on the scene shortly afterward.

He stated that he had been the handler of Maggs, a dog trained in detecting drug odors since November 1999. He and Maggs had attended the United States Customs Training Academy for three months training the dog to detect, among other drugs, marijuana and cocaine. He and Maggs were also certified by United States Customs in the detection of crack cocaine. According to Sergeant Davey, following the removal of all of the Jeep’s occupants, he retrieved Maggs from his vehicle and did an exterior scan of the Jeep.

Passing the driver’s side rear tire, Maggs jerked her head to the side, which indicated to Sergeant Davey that Maggs had detected the presence of an odor that she had been trained to detect. Following the exterior scan, Sergeant Davey conducted an interior canine scan. During the interior scan, Maggs began scratching at the center console, which was what Maggs had been trained to do when she located the strongest scent of an odor she had been trained to detect. As a result of Maggs’s indications, the initial search of the Jeep was performed.

Although they found an electronic scale with what appeared to be cocaine residue and wished to continue searching the Jeep, Detective Davey testified that traffic on Balboa Avenue made a continued search of the Jeep unsafe. Consequently, the Jeep was towed to the District IV Precinct in order to continue the search in a more conducive environment. ⁴⁷² When the Jeep arrived at the precinct, Detective Davey testified that he continued the search of the Jeep. An overabundance of electrical wires indicated to him that the Jeep likely had a hidden compartment. After locating the hidden compartment and having the fire department open it, Sergeant Davey stated that they recovered the guns, currency, and crack cocaine.

During cross-examination, Sergeant Davey stated that while watching the Jeep on Clovis Avenue, he saw Smith exit the Jeep several times, cross the street to where several males had congregated, and then return to the Jeep. He could not verify any activity as a drug transaction. Recalling Maggs’s interior search of the Jeep, Sergeant Davey stated that the scale was found in the Jeep’s glove compartment. Although Maggs would have been able to detect odors from the glove compartment, she did not alert to it.

Furthermore, when questioned about whether he performed a field test on the scale, he stated that he did not remember, but he believed a field test was performed. Smith called William Frazier. Frazier testified that he was friends with Smith and that he was in Smith’s gray Jeep Cherokee on May 2, 2003. According to Frazier, he was occupying the passenger seat, Smith was driving, and Andre Taylor was riding in the back seat.

As the Jeep arrived at Taylor’s house on Balboa Avenue, Frazier remembered that he heard an officer exclaim, “Get back in the car.” He also testified that a uniformed officer approached the Jeep with his gun drawn. Afterward, Frazier testified that the officer demanded Smith’s license and registration and then ordered him out of the Jeep. Immediately thereafter, Frazier testified that Smith was escorted to the back of the Jeep and placed in handcuffs. He and Taylor were ordered out of the vehicle and seated on the ground.

After the dog searched the Jeep, Frazier stated that Smith was taken to an unmarked police car and driven away. ⁴⁷³ After hearing arguments from both parties, the circuit court determined that the informant’s tip was sufficient to justify an investigative stop and the search of Smith was a valid search incident to arrest. The circuit court also found that the search of the Jeep was valid under the Carroll Doctrine. Following the suppression hearing, on September 28, 2003, Smith appeared before the circuit court and pleaded not guilty on an agreed statement of facts. He was found guilty of possession with intent to distribute greater than fifty grams of crack cocaine and guilty of possession of a firearm with a nexus to drugs trafficking.

This timely appeal followed. STANDARD OF REVIEW When reviewing a denial of a motion to suppress under Maryland Rule 4-252, we are required to make an independent review of the legal questions presented at the suppression hearing by applying the law to the facts. Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002). We are limited to the record adduced at the suppression hearing.

State v. Carroll, 383 Md. 438, 445 , 859 A.2d 1138 (2004); Rowe v. State, 363 Md. 424, 431 , 769 A.2d 879 (2001); Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999). We view the evidence in a light most favorable to the State as the prevailing party. Ferris, 355 Md. at 368 , 735 A.2d 491 ; Graham v. State, 146 Md.App. 327, 341 , 807 A.2d 75 (2002). The trial court’s factual findings are accepted unless clearly erroneous, as are the trial court’s conclusions regarding witness credibility.

Dashiell v. State, 374 Md. 85, 93 , 821 A.2d 372 (2003); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990). DISCUSSION Smith asserts that the circuit court erred in not suppressing the evidence seized from the search incident to his arrest and the search of the Jeep because both searches violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution to be free of unreasonable searches and seizures. He claims that he was subjected to a custodial ⁴⁷⁴ arrest without the police first having attained probable cause. According to Smith, it was during his unlawful custodial arrest that the police conducted a canine scan of the Jeep, and as a result, any evidence obtained in subsequent searches was fruit of the poisonous tree.

Smith maintains that the facts of the instant case are indistinguishable from Dixon v. State, 133 Md.App. 654 , 758 A.2d 1063 (2000). In Dixon , an officer with the Montgomery County Police Department received a phone call from a confidential informant. Id. at 658 , 758 A.2d 1063 . During the conversation, the informant disclosed that “a black male named Orville Dixon would be transporting approximately ten pounds of marijuana to the second level of a parking garage adjacent to the Nordstrom’s department store at the Montgomery Mall.” Id. at 659 , 758 A.2d 1063 .

Additionally, the informant stated that Dixon would arrive in a dark-colored Acura at approximately 8:15 p.m. for the purpose of conducting a drug sale. Id. As a result of the tip, the police went to the parking garage. Id.

When they arrived, the Acura was already present. A check of its tag number revealed that it was owned by Dixon. Id. at 660 , 758 A.2d 1063 . At approximately 8:15 p.m., Dixon emerged from a stairwell, looked around the vicinity of the car, and then returned to the stairwell.

Id. A few minutes later, Dixon entered the parking lot, walked