Steck v. State

Battaglia, J. ⁴⁴⁶ Ryan Lawrence Steck, appellant, was convicted by a jury sitting in the Circuit Court for Worcester County of possession with intent to distribute heroin, possession of heroin, possession with intent to distribute cocaine, and possession of cocaine, after which the court sentenced him to a term of imprisonment for fourteen years. Prior to trial, Steck had filed a Motion to Dismiss the charges against him, alleging that the State had destroyed exculpatory evidence. After having had his motion denied, the judge proceeded to hear evidence regarding Steck's Motion to Suppress, which was also subsequently denied. About two months later, but prior to trial, after receiving additional material from the State, Steck successfully filed a Motion to Reopen his Motion to Suppress, which was, again, ultimately ⁴⁴⁷ denied.

Before us, Steck presents the following questions for our review: 1. Did the lower court err in denying Mr. Steck's Motion to Suppress? 2. Did the lower court err in denying Mr. Steck's Motion to Dismiss? Finding no error or abuse of discretion, we affirm, for the reasons set forth below.

FACTUAL BACKGROUND In the early morning of August 7, 2016, while working bicycle patrol in the area of First Street and St. Louis Avenue in Ocean City, Officer Dan McBride, of the Ocean City Police Department, observed a "2008 black Chevy Impala" with a "Delaware registration" stop at a stop sign and then make a left-hand turn, crossing over ⁵³⁵ one lane of the roadway. At the suppression hearing, Officer McBride testified that when the "vehicle went to make a left-hand turn, it pulled out in front of a taxicab, which caused the taxicab [driver] to ... slam on his brakes to avoid a collision with the vehicle." Believing that the driver had committed a traffic violation, Officer McBride, according to his testimony, "broadcast a description of the vehicle and the occupants" over a radio network used by the Ocean City Police Department. The vehicle was subsequently stopped by Officer Neshawn Jubilee of the Ocean City Police Department. Officer McBride testified further that after broadcasting this information, he immediately began riding his bicycle to the area of the traffic stop, arriving within three or four minutes after witnessing the "unsafe lane change." Upon arriving on the scene of the traffic stop, Officer McBride confirmed that the vehicle stopped was the Chevy Impala he witnessed nearly get into an accident with the taxicab and identified Etoyi Roach 1 as the driver, Steck in the ⁴⁴⁸ backseat, and another passenger in the front seat.

After speaking with the vehicle's occupants, Officer McBride testified that he walked to Officer Jubilee's patrol car, sat inside it, and "began issuing Mr. Roach a written warning [for the unsafe lane change] and then requested a K-9 unit to respond to the scene." At the suppression hearing, Officer McBride informed the court that he chose to request a canine unit "based on the behavior of the occupants, which [was] noted in [his] report, as well as the information that Officer Jubilee had relayed[,]" including that "it took a little longer to pull over than usual ... [the Impala] almost ran a red light when it pulled over and kind of coasted to a stop. And [Officer Jubilee] said that as he approached the vehicle, the driver - the occupants were making some furtive movements around the vehicle." Similarly, Officer Jubilee testified that, the Impala "did not stop until the ocean block of 8th street, which is three city blocks further than where I initiated the traffic stop." As he pulled up to the vehicle, he noticed that, "the occupants were looking around. Their hands were moving about the car. I did not know exactly what they were doing, but they were looking around at each other and their hands were also moving." The occupants of the vehicle provided Officer Jubilee their licenses upon request, and at that point, Officer McBride arrived on the scene and took control of the traffic stop.

Officer McBride further testified that after he made his request for the canine unit, it took a "couple minutes" for a team to arrive, and he was still in the process of writing Roach's warning when it arrived. At the suppression hearing, Deputy Christopher Larmore, of the Worcester County Sheriff's Office Patrol Division, testified, also, that he was in the area of Third Street and Atlantic Avenue when he received a request for canine support. He further testified that it took him and his canine partner, Simon, a "couple of minutes" to travel from the location wherein they received the request to the scene of the traffic stop. Upon the K-9 team's arrival, Deputy Larmore requested ⁴⁴⁹ that Officer McBride and the other officers remove the occupants from the vehicle for safety reasons.

Shortly thereafter, Deputy Larmore and Simon conducted a scan of the vehicle, at which time Roach, Steck, and the other passenger were all seated on a nearby curb. Deputy Larmore further related: ⁵³⁶ So I get up to scan the vehicle with my K-9 partner. I give him his command to scan the vehicle.... And at that point in time, I notice a change of his breathing and posture and his general behavior.

And it's consistent with when he's in the odor of narcotics.... When he got in the area of the rear passenger door, Your Honor, he began to go back and forth between sniffing the vehicle and sniffing the gusts of wind that were blowing from the general direction of the occupants. So, basically, at this point in time, he is showing the signs of behavior of being in odor, but he's actually going back and forth, trying to pull me in different directions. Deputy Larmore explained through his testimony that since Simon was kind of, fighting two different odors here, he won't actually go into what's called a final alert, which is his sit.

That's his trained response. All of the other responses that he's giving me are involuntary responses. Those are the responses that he gives when he's in the odor of the five odors I just mentioned. 2 When asked by Officer McBride whether Simon provided an alert at the scene, Deputy Larmore testified that he informed the lead officer that he "believed that the odor was mostly coming from the occupants and that's why [Simon] kept trying to pull me to them." Deputy Larmore further testified that Simon's behavior was "consistent with odor coming from the vehicle" and "odor coming from the individuals sitting on the curb." ⁴⁵⁰ Deputy Larmore also testified on direct examination that he believed the odor to have originated from the occupants, but explained that, perhaps, Simon was also indicating to the car because "of the odor having been recently in the vehicle from the occupants who obviously had gotten out just before." At the end of his direct examination, Deputy Larmore concluded that, at the time of the scan, he considered there to be "two sources" of the odor - the vehicle and the occupants. Detective Corey Gemerek, of the Criminal Investigation Division, Ocean City Police Department, testified that after the scan was complete, he approached Steck and "asked if he had any drugs and/or illegal weapons on his person." According to Detective Gemerek, Steck replied "that he had a blunt inside his pocket." 3 Detective Gemerek then asked Steck to remove it from his pocket; Steck, in turn, "retrieved a clear plastic bag containing marijuana and handed it to" Detective Gemerek. 4 Detective Gemerek then handed Officer McBride the marijuana.

After the seizure of the marijuana, the officers searched the vehicle and, discovered one thousand bags of what turned out to be heroin. DISCUSSION Motions to Suppress Steck filed two motions to suppress the seizure of the heroin, both of which were denied. All of the testimony discussed herein relates solely to that which was developed at the suppression hearings. ⁵³⁷ " When reviewing the denial of a motion to suppress evidence," appellate courts "ordinarily consider only the information contained in the record of the suppression hearing, and ⁴⁵¹ not the trial." Lewis v. State , 398 Md. 349 , 358, 920 A.2d 1080 (2007) (citations omitted). In these cases, we are limited to viewing "the evidence and all reasonable inferences drawn therefrom in the light most favorable to the prevailing party on the motion[,]" which here, is the State.

Id. (citations omitted). While "we will not disturb the [circuit] court's factual findings unless clearly erroneous[,]" we "review legal questions de novo [.]" Grant v. State , 449 Md. 1 , 14-15, 141 A.3d 138 (2016) (quoting State v. Wallace , 372 Md. 137 , 144, 812 A.2d 291 (2002), cert. denied , 540 U.S. 1140 , 124 S.Ct. 1036 , 157 L.Ed.2d 951 (2004) ). Where a party "has raised a constitutional challenge to a search or a seizure, we must make an independent constitutional evaluation by reviewing the relevant law and applying it to the unique facts and circumstances of the case." Id.

Steck proffers several arguments to support his claim that the heroin recovered from the vehicle should have been suppressed. He first argues that the initial traffic stop was unlawful, as it was not supported by reasonable articulable suspicion that a traffic violation had occurred. Specifically, he contends that neither Sections 21-309(b) 5 nor 21-402(a) 6 of the Transportation ("TR") Article, Maryland Code (1977, 2012 Repl. Vol.), was violated by the driver of the vehicle, Etoyi Roach, and as a result, the stop was illegal from its inception.

Steck further avers that the traffic stop was "prolonged beyond the time necessary to effectuate the purpose of the stop, to write a warning ticket, in order to permit a K-9 unit to arrive and conduct a scan of the car." He next argues that ⁴⁵² there was no probable cause to search the vehicle, as the drug detection dog failed to provide "a positive alert" and that the dog handler failed "to explain why Simon did not positively alert to the car." The State conversely avers that, "[t]he facts testified to by Officer McBride, which were credited by the suppression court, were sufficient to support a traffic stop based on a reasonable suspicion of a violation of TR § 21-403(b) or (c), 7 for a failure to yield the right-of-way to a vehicle on a through highway." The State also argues that Steck's contention that the traffic stop was unnecessarily prolonged or abandoned ⁵³⁸ to allow the canine unit to arrive and scan the vehicle is waived on appeal, because it was not preserved. In the alternative, if not waived, the State contends that there "was no unnecessary delay or abandonment of the original traffic stop[.]" The State next avers that "the canine's detection and indication of both the vehicle and the vehicle occupants as separate sources of the odor of drugs provided probable cause for police to conduct a warrantless search of the vehicle." The Fourth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, protects individuals against unreasonable searches and seizures by the government. Whren v. United States , 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996) ; United States v. Mendenhall , 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980) ; Lewis , 398 Md. at 360 -61 , 920 A.2d 1080 . The Supreme ⁴⁵³ Court has maintained that, the "[t]emporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a 'seizure' of 'persons' within the meaning of [the Fourth Amendment]." Whren , 517 U.S. at 809 -10 , 116 S.Ct. 1769 ; see also Holt v. State , 435 Md. 443 , 459, 78 A.3d 415 (2013).

The Fourth Amendment, however, is not "a guarantee against all searches and seizures, but only against unreasonable searches and seizures." United States v. Sharpe , 470 U.S. 675 , 682, 105 S.Ct. 1568 , 84 L.Ed.2d 605 (1985) (italics in original); Cartnail v. State , 359 Md. 272 , 283, 753 A.2d 519 (2000). Therefore, the "touchstone of our analysis under the Fourth Amendment is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.' " Pennsylvania v. Mimms , 434 U.S. 106 , 108-09, 98 S.Ct. 330 , 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio , 392 U.S. 1 , 19, 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968) ); Sellman v. State , 449 Md. 526 , 540, 144 A.3d 771 (2016) (quoting Lewis , 398 Md. at 361 , 920 A.2d 1080 ). In assessing the reasonableness of a traffic stop, the Supreme Court has adopted a "dual inquiry," examining "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Sharpe , 470 U.S. at 682 , 105 S.Ct. 1568 (quoting Terry , 392 U.S. at 20 , 88 S.Ct. 1868 ). A traffic stop is permissible under the Fourth Amendment "where the police have a reasonable suspicion supported by articulable facts that criminal activity is afoot." Lewis , 398 Md. at 361 , 920 A.2d 1080 (original citations omitted).

Thus, a traffic stop violates the Fourth Amendment where there is no "reasonable suspicion that the car is being driven contrary to the laws governing the operation of motor vehicles or that either the car or any of its occupants is subject to seizure or detention in connection with the violation of any other applicable laws." ⁴⁵⁴ Delaware v. Prouse , 440 U.S. 648 , 650, 99 S.Ct. 1391 , 59 L.Ed.2d 660 (1979) ; Rowe v. State , 363 Md. 424 , 433, 769 A.2d 879 (2001). In assessing whether the articulable reasonable suspicion standard is satisfied, it is well settled that the police have the right to stop and detain the operator of a vehicle when they witness a violation of a traffic law. Cartnail , 359 Md. at 289 , 753 A.2d 519 . See, e.g., Byndloss v. State , 391 Md. 462 , 893 A.2d 1119 (2006) (validating a traffic stop where petitioner was stopped for having her license plate obscured by a plastic license plate cover); State v. Green , 375 Md. 595 , 609, 826 A.2d 486 (2003) (stating that "when a police officer has probable cause to believe that a driver has broken a traffic law, the officer may detain ⁵³⁹ the driver temporarily 'to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with intent to issue a citation or warning' " (quoting Ferris v. State , 355 Md. 356 , 372, 735 A.2d 491 (1999) ) ).

Steck not only urges this Court to find that the driver of the Impala did not violate Section 21-309(b) of the Transportation Article, the offense for which Mr. Roach ultimately received a citation, but also urges us to find that Mr. Roach "was lawfully operating his vehicle" and that " 'almost' causing an accident is insufficient to support a traffic stop." Steck relies on Lewis v. State , a case in which the Court of Appeals did not uphold a traffic stop and subsequent vehicle search because the Court determined that Lewis had not violated any law, traffic or other. 398 Md. at 368 , 920 A.2d 1080 . What differentiates Lewis from the present case is that the motions judge found that, "the behavior, the actions, of [Roach] in driving the vehicle in front of the cab certainly is grounds for a traffic offense. So I find that that was warranted to have the vehicle pulled over and begin writing at that time what would have been a warning." The judge's finding was supported by the testimony of Officer McBride, who had a "clear and unobstructed view of the event" and observed the Impala pull "out in front of a taxicab, which caused the taxicab to hit his brakes in the roadway," in order to avoid a collision. Unlike Lewis , therefore, where police officers grounded their ⁴⁵⁵ decision to stop a vehicle on an alleged traffic violation which was not one-the vehicle used its turn signal, began to pull into the street from a parallel parking space, and "nearly" struck the back of a police car-the behavior observed by Officer McBride and credited by the Circuit Court, in the present case, provided the officers reasonable suspicion to stop Mr. Roach's Impala.

Steck next contends that, even if "the traffic stop was lawful, it was nevertheless prolonged beyond the time necessary to effectuate the purpose of the stop, to write a warning ticket, in order to permit a K-9 unit to arrive and conduct a scan of the car." Steck further contends that Officer McBride "ceased writing the warning ticket so as to help focus on the dog sniff[,]" hence, abandoning the original purpose of the stop. The State counters that "there is no evidence that Officer McBride unnecessarily prolonged the original traffic stop, or abandoned" its original purpose because he was "still in the process of preparing the warning when the scan occurred, and aside from briefly speaking to [Deputy] Larmore when he arrived, there is no evidence that he suspended his activities in preparing a warning for Roach." While the reasonableness of a "traffic-based detention is not measured by the clock alone," State v. Ofori , 170 Md. App. 211 , 237, 906 A.2d 1089 , cert. denied , 396 Md. 13 , 912 A.2d 649 (2006), it must also "be temporary and last no longer than is necessary to effectuate the purpose of the stop ." Id. (italics in original). The purpose of a traffic stop should be limited to "the period of time reasonably necessary for the officer to (1) investigate the driver's sobriety and license status, (2) establish that the vehicle has not been reported stolen, and (3) issue a traffic citation[.]" Pryor v. State , 122 Md. App. 671 , 682, 716 A.2d 338 , cert. denied , 352 Md. 312 , 721 A.2d 990 (1998).

Police activity at a traffic stop, however, would not justify "a detention that extend[s] beyond the period of time that it would reasonably have taken for a uniformed officer to go through the procedure involved in issuing a citation to a motorist." Id. ^{456 540} When evaluating "the effect of the length of the detention, we take into account whether the police diligently pursue[d the purpose] of their investigation." Henderson v. State , 416 Md. 125 , 144, 5 A.3d 1072 (2010) (quoting United States v. Place , 462 U.S. 696 , 709, 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983) ). Once the mission of the original traffic stop has been completed, "the continued detention of a vehicle and its occupant(s) constitutes a second stop and must be independently justified by reasonable suspicion." Munafo v. State , 105 Md. App. 662 , 670, 660 A.2d 1068 (1995). A canine scan that occurs during a valid, lawful traffic stop may not be considered a Fourth Amendment "search" that requires additional reasonable suspicion or probable cause, Gadson v. State , 341 Md. 1 , 8 n.4, 668 A.2d 22 (1995), cert. denied , 517 U.S. 1203 , 116 S.Ct. 1704 , 134 L.Ed.2d 803 (1996), because drug detection dogs do not seek out items that are lawful to possess, only contraband, and as such, the "use of a well-trained narcotics-detection dog ... during a lawful traffic stop, generally does not implicate legitimate privacy interests." Illinois v. Caballes , 543 U.S. 405 , 409, 125 S.Ct. 834 , 160 L.Ed.2d 842 (2005) (quoting United States v. Place , 462 U.S. 696 , 707, 103 S.Ct. 2637 , 77 L.Ed.2d 110 (1983) ). It is "perfectly legitimate" to use a drug detection dog during a traffic stop as a "free investigative bonus," as long as the traffic stop is "still genuinely in progress." Ofori , 170 Md. App. at 235 , 906 A.2d 1089 .

If a dog scan, however, unnecessarily exceeds the scope of the original seizure, then a Fourth Amendment violation has occurred. Munafo , 105 Md. App. at 670 -72 , 660 A.2d 1068 . Police officers may not prolong an initial stop to effectuate a canine search, especially when the purpose of that stop has been completed ( e.g., complete license check and ticket writing). Florida v. Royer , 460 U.S. 491 , 500, 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983).

See Snow v. State , 84 Md. App. 243 , 267, 578 A.2d 816 (1990) ("The case at bar demonstrates a police officer's 'hunch' that there were illegal drugs in Snow's vehicle. It so happens that the 'hunch' was correct, but this ⁴⁵⁷ does not justify the seizure of Snow and his passenger, which was an additional intrusion on Snow's Fourth Amendment rights."). The issue turns on "not whether the dog sniff occurs before or after the officer issues a ticket ... but whether conducting the sniff adds time to the stop." Rodriguez v. United States , --- U.S. ----, 135 S.Ct. 1609 , 1616, 191 L.Ed.2d 492 (2015). If the officer issuing the citation is diligently and "legitimately still working on those citations when the K-9 unit arrives, the traffic stop is still ongoing, and the detention will be considered reasonable for Fourth Amendment purposes." Partlow v. State , 199 Md. App. 624 , 638, 24 A.3d 122 (2011) (citing Ofori , 170 Md. App. at 243 , 906 A.2d 1089 ).

See e.g. , Rodriguez , 135 S.Ct. at 1613 (vacating a judgment which found it lawful to conduct a canine scan after police officer returned driver's license and issued a written warning for momentarily crossing into the shoulder-the purpose of the stop); In re Montrail M. , 87 Md. App. 420 , 437, 589 A.2d 1318 (1991), aff'd , 325 Md. 527 , 601 A.2d 1102 (1992) (affirming the legitimacy of a canine sniff that occurred during a traffic stop, where the deputy who initiated the stop was still running the defendant's license and registration when the canine scan took place). While not entirely dispositive, time is a consideration in this calculus. For example, in Padilla v. State , this Court found that no Fourth Amendment violation ⁵⁴¹ occurred when a drug-sniffing canine provided an alert "within twelve minutes of the inception of the traffic stop, at a point when Trooper Kennard had not yet received the results of the registration and license check[.]" 180 Md. App. 210 , 224, 949 A.2d 68 , cert. denied , 405 Md. 507 ,