State v. Cheek

GILBERT, Chief Judge. • Levorre Cheek, Rickey A. Perry, and Barbara M. Waters were passengers in a 1979 Buick owned and operated by Able Austin. Mr. Austin had recently purchased the vehicle in the District of Columbia; it bore a “D.C.” temporary plate on the rear of the vehicle, but there was no front license tag. Late on the morning of February 28, 1989, Prince George’s County Police Officer Barry Beck was seated in a police cruiser on a parking lot, 1 observing moving traffic on the adjacent road. Officer Beck’s duty that morning was to stop vehicles that lacked a front license plate.

By happenstance, Austin and his passengers were traveling on the road that was being observed by Beck. When Officer Beck noticed that Austin’s vehicle had the front tag missing, the officer immediately drove from the parking lot and began a pursuit of Austin. Observing the flashing lights and hearing the siren of the police cruiser, Austin ¹⁷³ pulled his automobile to the right side of the road. Beck drove up and stopped behind Austin’s car.

Observing a D.C. temporary tag, the expiration date of which was blurred, affixed to the rear of Austin’s vehicle, Officer Beck decided to make further inquiry. He radioed for a motor vehicle check of the tag, alit from his vehicle, and approached the driver’s side of Austin’s car. Beck requested Austin to produce a driver’s license and vehicle registration card. Austin responded that he did not have a driver’s license, but he showed a registration card to Beck.

Returning to the police cruiser, Beck requested a motor vehicle license and warrant check. He was advised there was an open warrant for Austin’s arrest on the ground of welfare fraud. The radio communications between Beck and the dispatcher were overheard by Prince George’s County Police Officer Edward Talik who had joined Beck at the scene. Thereafter, Beck and Talik returned to Austin’s Buick.

Beck proceeded to the driver’s side, and Talik approached on the right. Austin was placed under arrest. While Austin was being handcuffed, he was asked if he had any weapons. Austin responded that there was a handgun in the pouch on the back of the right front seat.

Officer Talik then ordered Cheek, Perry, and Waters out of the vehicle. Talik performed a cursory weapons pat down of the trio. The policeman then reached into the described pouch and extracted a .38 caliber revolver. Once the handgun was secured, Officer Talik informed Cheek, Perry, and Waters that they were under arrest, and he began to handcuff them.

Because of a shortage of handcuffs, Officer White was summoned to the scene to provide assistance. Mr. Cheek was then patted down a second time. During the search, Officer Talik discovered five .38 caliber bullets in Cheek’s coat pocket. While the search of Cheek was going on, Officer White was busy searching Mr. Perry.

A quantity of “rock” cocaine was found on Perry’s person. Shortly thereafter, a ¹⁷⁴ third search was performed on Perry by Officer Talik, who discovered more cocaine, paper baggies, and a scale in Perry’s clothing. Ms. Waters was not physically searched until a female police officer arrived. The officer, who happened to be in the area, responded to the call, and searched Ms. Waters.

All three of the Austin vehicle’s occupants were then transported to the police station for further questioning. Austin, Cheek, Perry and Waters were each charged with 1) possession of CDS (cocaine) with intent to distribute, 2) possession of CDS (cocaine), and 3) transportation of a handgun. Cheek was additionally charged with possession of drug paraphernalia. Cheek, Perry, and Waters moved to suppress, and a hearing was held in the Circuit Court for Prince George’s County.

The motions judge ruled that Officer Beck was justified in stopping the Austin vehicle, but once he discovered that the rear plate was a temporary tag, he should have halted his investigation. The judge characterized further police action as a “fishing expedition.” Because the “fishing expedition” was declared improper, all that flowed from it was held