State v. Clowney

GARRITY, Judge. The appellee, Anthony Clowney, charged with possession of controlled dangerous substances with intent to distribute, successfully moved to suppress the evidence. The State noted its appeal to this court, pursuant to Cts. & Jud.Proc. Art., § 12-302(c)(3), arguing that the trial court, the Circuit Court for Anne Arundel County, erred in suppressing the evidence which had been seized pursuant to a consent search of the vehicle.

By per curiam order dated April 11,1991, we reversed the order granting the motion to suppress. We now give our reasons for the determination. The court below found that the police had requested the appellee’s consent to search and that he had given his consent. The court, nevertheless, ruled to suppress the evidence on the grounds that there was nothing to demonstrate that the appellee knew he could have withheld consent.

Viewing the court’s ruling in light of Schneckloth v. Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973), and its progeny, the issue before us is elegant in its simplicity: whether the lower court erred in suppressing evidence solely on the grounds that the appellee did not know that he could withhold consent. Statement of Facts On June 21, 1990, the Anne Arundel County Police set up a speed trap on the northbound side of the Baltimore Washington Parkway and detected the appellee’s car traveling approximately 75 miles per hour. Upon stopping appellee’s vehicle, Officer Samuel Sweet approached the vehicle ⁵¹ and informed the appellee of the traffic violation. After running a warrant and license check, the officer returned to the appellee’s car, issued him a warning ticket, and returned his license and registration.

At this point, the officer advised the appellee that he was free to leave and informed him that, although he was making traffic stops, his primary function was to interdict the transportation of illegal drugs on the Baltimore Washington Parkway. The officer testified that he then asked the appellee if he could look through his car. According to Officer Sweet, the appellee replied, “Sure,” as he opened the car door and stepped out of the vehicle. A second Anne Arundel County police officer, Officer Dean D’Camera, was working with Officer Sweet at the speed trap.

When D’Camera finished with two other vehicles which had been stopped on the other side of the highway, he walked over to the appellee’s car and entered into a conversation with the appellee, who was standing near the rear of the vehicle. While Officer D’Camera and the appellee conversed, Officer Sweet began to search the appellee’s car and immediately found beneath the driver’s seat a black change purse containing two small baggies of white powder and a small baggie of green leafy material. The appellee was then arrested, and a search incident to his arrest recovered 17 baggies of marijuana, a large freezer bag of marijuana, and two baggies of cocaine in the trunk of the car. Also in the trunk the police found 230 empty sandwich bags, one bottle of inositol, one box of razor blades, one hand-held scale, one pair of scissors, 160 small baggies, $843 in currency, and a box of papers containing names, addresses, phone numbers, and other notes.

At the suppression hearing, Officer Sweet testified that the appellee had not signed a consent form prior to the search. He further testified that he did not carry consent forms in his vehicle and used them only occasionally because they are not required. The officer estimated that he had used consent forms in very few of the nearly one hundred consent searches he had conducted in Anne Arun ⁵² del County. He further testified that he frequently asked the drivers of vehicles stopped under the same circumstances as the appellee’s if he could search the car; and, if the driver refused the search, the officer would tell the driver that he was free to leave.

Officer D’Camera testified that after Officer Sweet had written the warning violation for the appellee, Sweet had indicated to D’Camera that he intended to ask the appellee to consent to a search of his vehicle. D’Camera testified that although he did not hear the initial part of the conversation between Officer Sweet and the appellee, he observed the appellee step out of the car, hand the keys to Officer Sweet and say, “Sure,” or “something to that effect.” Officer D’Camera further testified that while Officer Sweet conducted the search, the appellee said, in reference to Officer Sweet, “You know, that’s a pretty cool cop. He only gave me a warning.” Officer D’Camera replied, “Yeah, he’s a hell of a nice guy. That’s a pretty lucky break.

You know you were seventy-three in a fifty-five.” The appellee then stated, “Yeah, I understand. You guys are just out here doing your job.” At that point, Officer Sweet had found the drugs in the change purse under the front seat and indicated to Officer D’Camera that he was to place the appellee under arrest and search the car incident to the arrest. The appellee testified that while he was returning to his home in Baltimore from Washington, the police stopped his vehicle for speeding, along with three other vehicles, and that Officer Sweet had issued him a warning ticket for exceeding the speed limit. He further stated that he did not consent to the search of his vehicle, that Officer Sweet had not asked his permission to search the car, and that he had not been advised that he could withhold his consent.

He also denied having any conversation with Officer D’Camera prior to his arrest. In ruling to suppress the evidence, the trial judge found as follows: ⁵³ [ 0 ] ne of the problems that has developed over time is that consent searches that are obtained orally and not in writing, with not full explanation to the defendant of his rights not to be searched, necessitated the drawing up of a form so that the trier of fact, either the court or the jury, knew the defendant knew his right and knew he didn’t have to consent. In this case, I don’t think there’s any question that Officer Sweet asked him if it would be all right to search the car and he said, “Sure.” I think that’s inherent in what was said, but I think Mr. Clowney didn’t fully understand the implications of what that consent involved and that he had a right to say, “No, I don’t want you to search,” and that he had a right to get in his car and just drive off. I don’t think that was clear to Mr. Clowney, and I think that had to be clear before you can have valid consent.

So I think the consent obtained here was not reasonable and for that reason I am going to grant the Motion to Suppress. I also think that it ought to be made clear in this whole interdiction process that the consent that is obtained must be done in writing just for the valid purpose. And here we don’t even have a second officer that heard the alleged consent. And I think in all fairness to everybody and for better prosecutorial evidence, there should be written consent so that the defendant is ... the court or the jury is fully aware of the fact that the defendant knew what he was consenting to, knew that he had a right not to consent, because he certainly had a right in this situation not to consent. [Emphasis added.] Analysis The State contends that the trial court erred in suppressing the evidence obtained as a result of the consent search of the appellee’s vehicle.

We agree. It is now well established that a police officer may conduct a warrantless search and seizure if he has an individual’s voluntary consent to do so. Schneckloth v. ⁵⁴ Bustamonte, 412 U.S. 218 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973).