State v. Mason

⁴¹⁶ MOYLAN, J. The appellee, Paul Andrew Mason, Jr., was indicted by the Allegany County Grand Jury for the possession of cocaine with the intent to distribute and related charges. The appellee moved, pretrial, to have the physical evidence suppressed on the ground that it had been unreasonably seized pursuant to the Fourth Amendment. Following a hearing on the motion in the Circuit Court for Allegany County on August 22 and August 31, 2006, and the submission of written memoranda by all parties, Judge Gary G. Leasure, on September 15, 2006, issued an Opinion and Order in which he granted the appellee’s motion to suppress. State Appeal The State has appealed, pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c), which provides in pertinent part: (c) Criminal case. — In a criminal case, the State may appeal as provided in this subsection.

(3) (i) In ... cases under §§ 5-602 through 5-609 and §§ 5-612 though 5-614 of the Criminal Law Article, the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Constitution of Maryland, or the Maryland Declaration of Rights. (iii) Before taking the appeal, the State shall certify to the court that the appeal is not taken for purposes of delay and that the evidence excluded or the property required to be returned is substantial proof of a material fact in the proceeding. The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final. ⁴¹⁷ (iv) If the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken.

(Emphasis supplied). Accordingly, our decision in this case, should we opt to reverse, must be filed no later than March 30, 2007. Should we opt to affirm, on the other hand, it really matters very little when we do so, except in the sense that our affirmation, should it be late, would be reduced to a redundancy. The Traffic Stop There are arguably two Fourth Amendment issues before us.

We will turn our attention first to the issue that is unquestionably before us. As part of what was acknowledged to be a narcotics investigation, the Narcotics Unit of the Maryland State Police, along with the Cumberland Police Department, seized the occasion to make a traffic stop of the 1994 Dodge Caravan being driven by the appellee at approximately 4:25 P.M. on May 16, 2006, pursuant to Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). The traffic-based justification was about as strained as one could be, but, under Whren , that really does not make any difference. The appellee was stopped in the environs of Cumberland in a residential neighborhood.

The traffic offense was that of “cruising through a stop sign” and making a left-hand turn without having come to a full stop. This occurred in a quiet neighborhood at a time when there were no pedestrians about and no other vehicles about, except for the surveilling police car. The appellee was driving on Pine Avenue and was approaching a T-intersection with Central Avenue. As the appellee pointed out at the suppression hearing, the approach to Central Avenue was down a hill and it would have been almost impossible to negotiate a left turn onto Central Avenue without having come to a virtual full stop.

Nonetheless, Officer Tringler of the Cumberland Police Department did not ⁴¹⁸ see a full stop, and he subsequently pulled over the appellee’s minivan for the ostensibly limited purpose of issuing the appellee a warning for the stop sign violation. Approximately twenty-five minutes into the processing of that warning, a drug-sniffing K-9 dog arrived on the scene and “alerted” to the presence of drugs in the appellee’s vehicle. As that version of the evidence most favorable to the prevailing party, we -will accept as true the fact that 25 minutes elapsed between the initial stop and the K-9 alert. The only issue before Judge Leasure concerning the vehicular stop was that of assessing the Fourth Amendment reasonableness of the 25-minute detention prior to the alert by the K-9 dog.

Judge Leasure found and ruled that the length of detention, for the sole purpose of issuing a warning for a stop sign violation, was unreasonable. The State contends this search was valid under the pretext stop doctrine enunciated by the United States Supreme Court in Whren v. United States, 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996). Under Whren , as explicated by Judge Moylan in Charity v. State of Maryland, 132 Md.App. 598 , 753 A.2d 556 (2000), a police officer may make a traffic stop based on a violation of a traffic law, irrespective of the officer’s true motivation. However, there are limits on the duration of the detention: [T]he purpose of the justifying traffic stop may not be conveniently or cynically forgotten and not taken up again until after an intervening narcotics investigation has been completed ... [for] the legitimating power of a traffic stop to justify a coincidental investigation has a finite “shelf life,” even when the traffic stop ... is not formally terminated.

Id. at 614-15 , 116 S.Ct. 1769 . In short, “the Supreme Court has made it clear that the detention of the person ‘must be temporary and last no longer than is necessary to effectuate the purpose of the stop. ’ ” Ferris v. State of Maryland, 355 Md. 356, 369 , 735 A.2d 491 (1999). However, it should be noted that “[i]n determining whether a police officer has exceeded the temporal scope of a lawful stop, the focus will ⁴¹⁹ not be on the length of time an average stop should ordinarily take nor will it be exclusively on a determination ... of whether a traffic stop was literally ‘completed.’ ” Charity, 132 Md.App. at 617 , 753 A.2d 556 . The State has the burden of proving that the stop was justified by an apparent violation of a traffic law, and that the detention during which the secondary motivation is fulfilled is not so substantial as to constitute a second, unjustified, detention of the suspect.

Id.; see also, Whitehead v. State of Maryland, 116 Md.App. 497, 502 , 698 A.2d 1115 (1997); Snow v. State of Maryland, 84 Md.App. 243 , 578 A.2d 816 (1990); Ferris v. State of Maryland, 355 Md. 356 , 735 A.2d 491 (1999). In the present case, the State has failed to meet its burden that the subsequent detention of Defendants was justified under either the Whren doctrine or some independent constitutional justification. There are several factors that require such a conclusion. Officer Tringler (the officer whom made the original stop) removed Defendant Mason from the vehicle before radioing Defendant’s information back to the barracks.

The subsequent questioning was wholly unrelated to the underlying traffic stop ... See State of Maryland v. Michael Jackson Ofori, 170 Md.App. 211 , 906 A.2d 1089 (2006) (Moylan, J.) (“If, on the other hand, [the officer] was deliberately stalling so that the K-9 unit could arrive before he sent the appellee on his way, the length of the detention was thereby unreasonable.”) Further, there was no probable cause to continue the detention for the purpose of unrelated questioning, thereby resulting in an undue delay in the processing of the traffic citation. See Whitehead, 116 Md.App. at 504-05 , 698 A.2d 1115 . Extraneous Issues In appealing that ruling by Judge Leasure, the State is grandly proclaiming factors favorable to it that are not contested and that are, moreover, not dispositive of the single issue before us.

The State asserts that the traffic stop was valid. Of course, it was. That is a given. The only question ⁴²⁰ is that of how long a person may be detained following a valid traffic stop in order to process the traffic stop.

The State asserts that the K-9 alert gave the police probable cause to search the minivan. Of course, it did. No one is contesting that fact, but it has nothing to do with the resolution of the only issue before us. We are assessing the length of the detention between the initial stop and the K-9 alert.

We do not care what happened after the K-9 alert. That is not the issue. Duration of the Traffic Stop In determining the reasonableness of a period of detention, at least two critical findings of fact must be made. One involves measuring the duration of the detention.

How much time elapsed from the initial stop of the appellee until the K-9 alert on the vehicle? The State’s best version of the evidence established that detention as one lasting about 10 minutes. The appellee’s best version of the evidence established it as one lasting between 23 and 25 minutes. Because the appellee was the prevailing party, we accept as established truth the fact that the detention lasted for 25 minutes.

Any de novo determination we may be called upon to make will be based, as a matter of course, on that fact. Another necessary finding of fact is that of how diligently the stopping officer worked in processing the traffic warning. If Officer Tringler was proceeding with due diligence to write and to issue the traffic warning, the length of the detention was, by definition, reasonable. If, on the other hand, Office Tringler was stalling in order to facilitate the arrival of the K-9 dog, the length of the detention was, by definition, unreasonable.

Whether Officer Tringler was or was not staffing is not something that can be established, as a matter of law. It is something that must be found, as a matter of fact, from the totality of the circumstances. Judge Leasure found that the length of the detention was unreasonable in the context of issuing a warning for running a stop sign. We cannot say that that finding was clearly erroneous. ⁴²¹ We have looked at the warning that Officer Tringler wrote.

It was not a difficult exercise in composition. It consisted of 22 words or numbers and 5 check marks. It contained the appellee’s name, address, and the date of the offense. It included the appellee’s race, sex, and age.

It included the number of the appellee’s license tag and his driver’s license number. It gave the location of the offense as “Pine at Central” along with the officer’s last name and ID number. There were then checked five boxes, indicating the 1) month, 2) day of the week, and 3) hour of the day, as well as two other checkmarks indicating that the offense was 4) a stop sign violation and 5) a moving violation. In the time that elapsed, the officer could have written the warning in cuneiform.

Officer Tringler also explained that when he first stopped the appellee, he approached the driver’s door and took from the appellee his driver’s license and registration card. He testified that he got back in his police cruiser and called his dispatcher. He then explained his routine. [W]hen I returned to my vehicle, I get all my materials out that I need, my pen, my stuff, and then I’ll contact dispatch, give them all the information I have ... I’d run all that information and then I begin writing my warning.

Once I’ve done the [warning], get all my material and put it back together, make sure I got his license and registration and my warning ... [T]hen I’ll sit in my car until dispatch comes back with a transmission on if everything’s valid, things like that. And make sure nobody has warrants. In terms of checking the license and registration with the dispatcher, in this case that had already been done by this particular police team before the traffic stop was even made. This was a narcotics investigation, under the guise of a traffic stop.

The members of the Narcotics Unit of the State Police who were orchestrating the entire production had no more than an hour earlier run a computer check with the Department of Motor Vehicles. They had the appellee’s license tag number, M638649; the vehicle to which it was listed, a 1994 Dodge Caravan; and the owner’s name, Paul Mason, all of which checked out when the traffic stop was made. If Officer ⁴²² Tringler wanted to know what the computer check would reveal, all he had to do was ask one of the State troopers who were standing a few feet away and who were directing the whole operation. It is at least arguable that the computer check did not have to be done all over again, and that creates a genuine issue of fact as to whether someone was stalling.

Under Whren , we must be indulgent, but we need not be naive. In assessing an officer’s diligence or dilatoriness, a reviewing court is not oblivious to the nature of the whole exercise. When narcotics investigators make a traffic stop, they are employing a ruse, albeit a ruse sanctioned by Whren . The State is being deliberately disingenuous to protest that an officer processing the traffic offense would never deliberately slow down his processing long enough for the ruse to work.

Because the officer, after all, is one of the actors engaged in staging the ruse, his performance will inevitably be taken with a grain of salt. How does a reviewing court ignore the fact that if an officer were to announce that a traffic stop had been fully consummated before the K-9 dog arrived, the officer, at least in the eyes of his fellow officers, would have doomed the entire investigative exercise to failure? It would ill-behoove the traffic officer to cross the finish line ahead of the K-9 dog, unless a supervening rationale has made its appearance. That would not be good teamwork.

It calls for Samuel Taylor Coleridge’s “willing suspension of disbelief’ not to recognize this. In arguing that the length of the detention was not excessive, the State relies heavily on Byndloss v. State, 391 Md. 462 , 893 A.2d 1119 (2006), in which the Court of Appeals affirmed the trial judge’s ruling that a detention for a traffic stop that lasted for 30 minutes was not unreasonable. In Byndloss , however, the trial judge had ruled that the length of