Spell v. State

Graeff, J. On December 11, 2017, George Spell, appellant, was convicted by a jury, in the Circuit Court for Baltimore City, of several firearm offenses relating to a firearm found in a utility room in an apartment complex and several drug offenses relating to drugs found in the utility room and on appellant's person. The court imposed concurrent sentences totaling 12 years of imprisonment. 1 On appeal, appellant presents the following questions for this Court's review, which we have rephrased, as follows: 1. Did the circuit court err in denying appellant's motion to suppress? 2. Was the evidence insufficient to support appellant's convictions relating to the contraband found in the utility room?

For the reasons set forth below, we shall affirm the judgments of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND Suppression Hearing Officers Anthony Casabona and Norman Jones, members of the Baltimore City Police Department, testified that, on June 15, 2017, at approximately 2:00 p.m., they were driving down Madison Street in Baltimore patrolling for crimes related to the sale of narcotics. They saw appellant parked on the street, sitting in the driver's seat of a silver Hyundai Santa Fe, with the vehicle running. The officers previously had encountered appellant in February 2017, when they arrested him in connection with a search and seizure warrant relating to a narcotics investigation. 2 The officers knew as well from the prior encounter that appellant did not have a driver's license, so they decided to "investigate further." Officer Casabona parked the car parallel to appellant's car, and Officer Jones began to speak with appellant from the passenger seat of the police vehicle.

Officer Jones asked appellant what he was doing driving the vehicle, stating that he knew appellant "didn't have a license." Appellant responded: "I know, but I ain't doing nothing but chilling man." Both officers testified that it was illegal to drive or operate a motor vehicle without a license. At that point, they believed that they had probable cause to arrest appellant. Officer Jones stated that the following then ensued: I spoke to him for a few moments. Later, I asked him if he had anything illegal on his person.

He told me no. I asked him if I can check him out. He said yes, gave me full consent. At that time, I exited the car and approached the driver's side door. [Appellant] exited out of the vehicle.

And as soon as he came out, I began to search his person and found narcotics in his front pocket. During the search of appellant's person, Officer Jones found a plastic bag containing ten vials of suspected cocaine. Nine of the vials had a yellow top, and one vial had a white top. The officers then handcuffed appellant.

They searched his vehicle and found a key, which Officer Casabona removed from the vehicle. 3 Officer Jones testified that the key resembled a utility room key similar to one that appellant had on his person during the February 2017 incident. At some point after the officers handcuffed appellant, Officer Jones received a text message from a confidential informant ("CI") stating that appellant had a handgun and was using the same "stash" locations that had been used when he was arrested for narcotics violations in February 2017. The locations to which the CI referred were utility rooms in apartments buildings at 1536 and 1534 East Madison, across the street from where appellant and his car were found. The messages said that a gun "was stashed in one of the buildings." The information received from the CI was sent via text, and Officer Jones testified that he always deletes text messages from his CIs, so he could not remember the exact language of the message.

Officers Casabona and Jones then walked toward the buildings. They first went to 1536 Madison, and used the key found in appellant's vehicle to open two utility rooms at that location. They then opened and searched the second-floor utility room at 1534 Madison, where they found controlled dangerous substances ("CDS") and a handgun. At the December 7, 2017, suppression hearing, the court initially addressed whether appellant had standing to challenge the search of the utility room where contraband was found.

Appellant testified that he did not live in the building, but a maintenance man gave him a key to the laundry room so he could wash his laundry there. Based on this testimony, the circuit court found that appellant did not have a legitimate expectation of privacy in the utility room, and therefore, he did not have standing to challenge the search of that room. 4 The court then addressed appellant's motion to suppress the evidence seized from his person. Counsel for appellant acknowledged that, because appellant was sitting in the car with the ignition on, he was operating a motor vehicle without a license, which permitted the officers to arrest appellant. Counsel argued, however, that the police did not arrest appellant for that offense, but rather, they "engage[d] in activities not related to the enforcement of the traffic code in order to determine whether there [was] sufficient indicia of some [other] illegal activity." 5 The State argued that the police had probable cause to arrest appellant for operating a vehicle without a valid driver's license, that the search of appellant's person was proper as a search incident to arrest, and the narcotics found on appellant's person gave the police probable cause to search the vehicle.

The State asserted that there was no Fourth Amendment violation relating to these actions, and because appellant had no standing to contest the search of the utility room, the court should deny the motion to suppress. The circuit court ultimately denied the motion to suppress. After considering the testimony of Officers Casabona and Jones, as well as the body camera footage, it found "that the officers had probable cause to arrest the [appellant], again based on their prior knowledge and information that he did not have a Maryland-valid Maryland driver's license." The court stated that appellant clearly was "operating a motor vehicle by sitting in the car with the car running," and therefore, the police "had probable cause to effectuate the arrest. And what was seized incident to the arrest certainly comes in, and is not fruit of any poisonous tree." Trial Trial began on December 8, 2017.

Officer Jones testified consistent with his testimony during the suppression hearing. 6 He testified that appellant was operating a vehicle without a license, and upon a search of appellant's person, he found a clear plastic bag containing ten vials of cocaine, nine with yellow tops and one with a white top. He further testified that he previously had seen the type of key found in appellant's vehicle, and he had used it to access a utility room at 1536 East Madison, where he had found narcotics. After finding appellant's key in June, they used it to open utility rooms in the same area, and they found "[a] large amount of narcotics, as well as a firearm," in 1534 East Madison. Officer Jones explained: There was heroin in gelcap form.

There was cocaine that was in vials, specific vials. There was other paraphernalia to go along with it. There were tops that go on top of the vials specifically matching the tops of-the colors of the tops that we recovered from [appellant.] There were 30 vials with yellow tops, which contained a white powder substance. The police also found a 9mm semiautomatic pistol in the utility room. 7 Officer Jones, who was accepted as an expert in the field of narcotics investigation and enforcement, testified that a "stash" is a place "where somebody can place or hide any type of items," and it typically holds narcotics and/or a firearm.

Based on his knowledge, training, experience, and expertise, Officer Jones explained that firearms are used in narcotics distribution because "[e]very drug shop has to have some means of protection" from "outside sources of competition ... to protect themselves from getting robbed or anything like that." Officer Jones opined that the purpose of the firearm seized in the utility room was to protect the narcotics in the room. He further opined that the amount of suspected heroin and suspected cocaine seized from the utility room was indicative of intent to distribute. 8 Jennifer Ingbretson, a forensic scientist with the Baltimore City Police Department, testified that the firearm found in the utility room was operable. To her knowledge, no DNA testing was performed on the handgun, but she noted that information gained from testing for DNA on guns often is "not very probative." Mr. Barry Verger, also a forensic scientist, tested the substances found in the utility room and on appellant's person. The substances in the vials found on appellant's person and the utility room tested positive for cocaine.

The substances found in the gelcaps in the utility room tested positive for heroin. The State and the defense stipulated that appellant previously was convicted of a crime that "prohibited him from possessing a regulated firearm, as it applie[d] to Counts 2, 3, and 4 of the charging document," and that he previously had been convicted of a drug felony. Additional facts will be discussed as necessary in the discussion that follows. DISCUSSION I. Motion to Suppress Appellant does not challenge the initial traffic stop for operating a vehicle without a license, but he contends that the "officers' actions following the initial stop violated the Fourth Amendment." He asserts that, although "the officers may have had probable cause to detain [him] for driving without a license ... the legitimate traffic stop lapsed into an unconstitutional narcotics investigation as soon as [he] answered Officer Jones' question about his license." The State disagrees.

It contends that the traffic stop was valid because the officers stopped appellant for a "valid traffic violation," and the police "acted reasonably during the stop," which ended in appellant's arrest. This Court has set forth the proper standard of review of a motion to suppress as follows: We review a denial of a motion to suppress evidence seized pursuant to a warrantless search based on the record of the suppression hearing, not the subsequent trial. State v. Nieves , 383 Md. 573 , 581, 861 A.2d 62 (2004). We consider the evidence in the light most favorable to the prevailing party, here, the State.

Gorman v. State , 168 Md. App. 412 , 421, 897 A.2d 242 (2006) (Quotation omitted). We also "accept the suppression court's first-level factual findings unless clearly erroneous, and give due regard to the court's opportunity to assess the credibility of witnesses." Id. "We exercise plenary review of the suppression court's conclusions of law," and "make our own constitutional appraisal as to whether an action taken was proper, by reviewing the law and applying it to the facts of the case." Id. Goodwin v. State , 235 Md. App. 263 , 274, 175 A.3d 911 (2017) (quoting Bowling v. State , 227 Md. App. 460 , 466-67, 134 A.3d 388 (2016) ), cert. denied , 457 Md. 671 , 181 A.3d 210 (2018).

The Fourth Amendment to the Constitution of the United States protects against "unreasonable searches and seizures." U.S. Const. amend.

IV

It is "made applicable against the States through the Fourteenth Amendment." Smith v. State , 214 Md. App. 195 , 201, 75 A.3d 1048 (2013), cert. denied , 436 Md. 330 , 81 A.3d 459 (2013). "A police-initiated traffic stop constitutes a seizure within the confines of the Fourth Amendment." Id. As indicated, appellant does not challenge the initial stop; he concedes that it was proper because the police had probable cause to believe that he was driving without a license. The State argues that the police had probable cause to justify not only the stop but also appellant's arrest.

"Probable cause to arrest 'exists where the facts and circumstances within the knowledge of the officer at the time of the arrest, or of which the officer has reasonably trustworthy information, are sufficient to warrant a prudent person in believing that the suspect had committed or was committing a criminal offense.' " Barrett v. State , 234 Md. App. 653 , 666, 174 A.3d 441 (2017) (quoting Moulden v. State , 212 Md. App. 331 , 344, 69 A.3d 36 (2013) ), cert. denied , 457 Md. 401 , 178 A.3d 1243 (2018). Probable cause " 'requires less evidence than is necessary to sustain a conviction, but more evidence than would merely arouse suspicion.' " Id. (quoting Moulden , 212 Md. App. at 344 , 69 A.3d 36 ). Maryland Code (2012 Repl.

Vol.) § 26-202(a) of the Transportation Article ("TR") provides, in relevant part, as follows: (a) A police officer may arrest without a warrant a person for a violation of the Maryland Vehicle Law, including any rule or regulation adopted under it, or for a violation of any traffic law or ordinance of any local authority of this State, if: ... (3) The officer has probable cause to believe that the person has committed the violation, and the violation is any of the following offenses: ... (viii) Driving or attempting to drive a vehicle in violation of § 16-101 of this article [which generally requires an individual to have a driver's license] The term "drive" is defined, in relevant part, as: "to drive, operate, move, or be in actual physical control of a vehicle." TR § 11-114. The record here supports the circuit court's conclusion that the police had probable cause to believe that appellant was driving without a license.

The police had reason to believe from a prior encounter in February 2017 that appellant may not have had a license on June 15, 2017, which appellant confirmed to be a fact. When Officer Jones asked: "[W]hat are you doing driving that car. You know you don't have a license," appellant stated: "I know, but I ain't doing nothing but chilling man." And there is no question that appellant's actions, sitting in the vehicle with the engine running, constituted driving. Motor Vehicle Admin. v. Atterbeary , 368 Md. 480 , 503, 796 A.2d 75 (2002) (motorist was "driving" when he was "sitting in the driver's seat, awake, with the vehicle's engine running").

Under these circumstances, the circuit court properly found that the officers had probable cause to arrest appellant. 9 Appellant contends that, even if the officers had probable cause to arrest him, the search of his person was not a valid search incident to arrest because it occurred prior to the time the police put him in handcuffs. This contention similarly is without merit. Once a person is lawfully arrested, the "police may search 'the person of the arrestee' as well as 'the area within the control of the arrestee' to remove any weapons or evidence that could be concealed or destroyed.' " Conboy v. State , 155 Md. App. 353 , 364, 843 A.2d 216 (2004) (quoting United States v. Robinson , 414 U.S. 218 , 224, 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973) ). That the search occurs