Taylor v. State

ZARNOCH, J. Appellant Efrain Taylor claims that police officers violated his Fourth Amendment rights when, after his arrest for ⁴⁸² driving under the influence of alcohol (DUI), they searched his vehicle for containers of alcohol and instead, found illegal narcotics. For the reasons set forth below, we affirm the ruling of the Circuit Court for Dorchester County that the search of his vehicle incident to his DUI arrest was constitutional. However, we also hold that the court incorrectly gave Taylor an enhanced sentence. Accordingly, we remand for resentencing.

FACTS AND PROCEEDINGS 1 Taylor was charged with possession with intent to distribute Controlled Dangerous Substance (CDS), Md.Code (2002, 2012 Repl. Vol., 2014 Supp.), Criminal Law Article (“CL”) § 5-602; possession of CDS, CL § 5-601; failure to stop at a lawful stop sign, Md.Code (1977, Repl.Vol.2012, 2014 Supp.), Transportation Article (TR) § 21-707; driving in excess of a reasonable and prudent speed, TR § 21-801; driving under the influence, TR § 21-902(a); and driving while impaired, TR § 21-902(b). Prior to trial, Taylor filed a motion to suppress evidence. a. Facts presented at suppression hearing Around 1:00 a.m. on March 1, 2013, Patrolman Chad Moth-ersell was on patrol in Cambridge.

As he later testified, he “observed a SUV vehicle traveling southbound on Phillips [Street] at what appeared to be a high rate of speed,” which he estimated to be about 45 miles per hour in a 25 mile per hour zone. His conclusion was based on his “training and experience” in determining the speed of vehicles. Mothersell followed the vehicle and soon after, noticed that it failed to ⁴⁸³ stop at a stop sign while making a left turn on to Bradley Street. Mothersell turned on his emergency lights, the SUV stopped, and he pulled up behind it.

Mothersell approached the vehicle, in which Taylor was the only occupant, and asked him for his driver’s license. He stated that “[a]fter making contact with [Taylor,] I detected a minor odor of alcohol beverage from his breath and person.” He observed that Taylor’s “speech was slurred, hard to understand at certain times. His eyes were bloodshot and glassy.” Mothersell asked Taylor where he was before he started driving. Taylor replied that he had been at the Point Break Beach Bar in Cambridge.

At that point, Mothersell asked Taylor to step out of the vehicle so that the officer could administer “standardized field sobriety tests: the horizontal gaze nystagmus, the nine-step walk-and-turn and the one-legged stand.” 2 Mothersell “determined that these weren’t done successfully.” Mothersell placed Taylor under arrest for suspicion of DUI. By that time, Mothersell’s back-up officer, Officer Carroll, arrived at the scene and conducted a search of the vehicle, while Mothersell read Taylor his DR-15 Advice of Rights. 3 At this time, Carroll reported back to Mothersell that he had found some “controlled dangerous substance” in the vehicle inside the center console, which Carroll had opened. Mother-sell then went to the vehicle and he “observed a clear plastic baggy containing several knotted bags of what [he] suspected to be powder cocaine.” ⁴⁸⁴ Mothersell explained at the suppression hearing that the purpose of a “search of a vehicle is to locate any other alcohol, open containers, anything pertaining to the DUI arrest.” Taylor’s attorney then asked: Q: Were you able to make observations of the interior passenger compartment of the car in general? A: Yes.

Q: And you described the lighting outside while all this is occurring? Obviously it’s the middle of the night. A: Middle of the night, it might be a couple of street lights, illuminated with my spotlight, take-down lights, my own flashlight.... Q: Did you have any reason to believe that there were any such open containers in the vehicle?

A: A good possibility, yes. I’ve had several DUI arrests where there’s plenty of open containers left in the vehicle. And I want to make sure there’s no other alcohol in the vehicle for the probable cause for my DUI stop. Q: But on this particular case, you had had an opportunity to approach the vehicle on the passenger’s side, look inside the vehicle, and see what was going on; is that right? [State’s Attorney]: Objection.

The Court: What’s your objection? [State’s Attorney]: Your honor, he already answered the question. The Court: Well, it is asked and answered. Go ahead. A: At that point I didn’t observe anything during my initial contact with him, my concern was also more directed to him, himself.

Taylor’s counsel later argued that Mothersell lacked “independent probable cause” for the search, because “[t]here was [sic] no observed potential open containers. There was no odor of alcohol identified by the law-enforcement officer emanating from the vehicle itself as opposed to Mr. Taylor.” After considering this argument, the court denied his motion, stating: ⁴⁸⁵ [O]n a stop for speed, a subsequent odor of alcohol, glassy eyes, and failure of field sobriety tests, the search of the vehicle incident to the arrest under those circumstances could have revealed a pint of whiskey in the glove compartment, who’s to say. So I feel the search was lawful as well. So the motion is denied. b.

Facts presented at trial At trial on March 13, 2014, Officer Carroll testified that as Mothersell was reading Taylor his DR-15 Advice of Rights, Carroll approached the two and explained that he had “located some controlled dangerous substance.” Carroll later explained that during his search, he noticed the vehicle’s center console was closed, but not “fully latched down,” as a piece of paper stuck out of it. He opened the console and observed a bag containing seventy-six smaller baggies of what was later tested to be 34.3 grams of cocaine hydrochloride (powder cocaine). Mothersell then approached the driver’s side of the SUV, looked inside the cabin, observed the bags on the driver’s seat, and seized them. Later, at the stationhouse, Mothersell searched Taylor’s person and discovered $1,045 in cash in his pocket and wallet.

Taylor testified that on the night of the arrest, he had drunk one twelve-ounce can of Bud Ice at the Point Break Beach Bar. He stated that he was on his way home at the time of arrest and “he did not own the SUV and that instead[,] another man, Leroy Roberts, owned it.” Taylor said he had borrowed the SUV to travel somewhere the following day, and that the morning of the arrest was the first time he had entered the vehicle, so he was ignorant of the contraband inside. As to the cash, Taylor said he was purchasing and investing in tax liens, and that he had been paid the balance of one lien that evening. He said that he had another check from one of those liens on the night of the arrest and tried to show it to Mothersell, who said “it wasn’t necessary.” Taylor also tried to explain his sobriety test failures.

He stated that he wore contact lenses and told this to the officer. ⁴⁸⁶ He explained that he failed the one-legged stand test because of a past fracture in the tested foot. However, Taylor claimed he had passed the “step test” as instructed. He stated that he was not under the influence of alcohol on the night he was arrested. The record does not indicate that Taylor provided any corroboration of his claims regarding the tax liens or his medical ailments.

At trial, a jury acquitted Taylor of driving at an unreasonable speed, but convicted him of all other charges. On July 7, 2014, the court then sentenced Taylor as a subsequent offender. He received a sentence of forty years of incarceration, with twenty years suspended, for the possession with intent to distribute charge, to be served consecutively to a sentence from a prior conviction. He was also sentenced to one year of incarceration for driving or attempting to drive a vehicle under the influence of alcohol, to be served concurrently with the possession with intent to distribute sentence.

QUESTIONS PRESENTED Taylor presents the following questions, which we have rephrased: 4 1. Did the circuit court err in denying his motion to suppress the narcotics found in his vehicle? 2. Was he properly sentenced as a second-time offender? DISCUSSION I. Standard of Review We review a denial of a motion to suppress evidence seized pursuant to a warrantless search based on the record of ⁴⁸⁷ 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. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” State v. Alexander, 124 Md.App. 258, 265 , 721 A.2d 275 (1998) (Emphasis added in Alexander) (quoting New Jersey v. T.L.O., 469 U.S. 325, 337 , 105 S.Ct. 733 , 83 L.Ed.2d 720 (1985)).

On that issue, “the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo.” Ferris v. State, 355 Md. 356, 385 , 735 A.2d 491 (1999) (quoting Ornelas v. United States, 517 U.S. 690, 691 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996)).

II

Search Incident to a DUI Arrest a. The Search Incident to Arrest Standard Taylor has challenged the legality of his search under the Fourth Amendment to the United States Constitution, 5 which prohibits warrantless searches and seizures of a citizen’s “persons, houses, papers, and effects.” One of a number of exceptions to this rule is that an officer may, in certain circumstances, conduct a “search incident to an arrest.” New York v. Belton, 453 U.S. 454, 459 , 101 S.Ct. 2860 , 69 L.Ed.2d 768 (1981). ⁴⁸⁸ Police may search an automobile incident to arrest of its driver or passenger for two reasons. First, officers may “search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Arizona v. Gant, 556 U.S. 332, 343 , 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009). No one suggests that this exception applies.

Second, officers may also search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Id. (Emphasis added) (quoting Thornton v. United States, 541 U.S. 615, 632 , 124 S.Ct. 2127 , 158 L.Ed.2d 905 (2004) (Scalia, J., concurring in judgment)). 6 Absent either of these circumstances, a search of the vehicle would be unreasonable. b. “Reasonable to believe” Under what circumstances is it reasonable to believe that evidence of the offense of arrest will be in the vehicle? The Supreme Court did not explain what quantum of suspicion this standard would require. Is it a preponderance of the evidence, probable cause, or the reasonable suspicion for a stop-and-frisk under Terry v. Ohio, 392 U.S. 1, 21 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968)?

Courts that have considered this issue have held that “[presumably, the ‘reasonable to believe’ standard requires ⁴⁸⁹ less than probable cause, because otherwise Gant’s evidentiary rationale would merely duplicate the ‘automobile exception,’ which the Court specifically identified as a distinct exception to the warrant requirement.” United States v. Vinton, 594 F.3d 14, 25 (D.C.Cir.2010) (citing Gant, 556 U.S. at 347 , 129 S.Ct. 1710 ). Because the automobile exception “allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader,” an officer must have a greater level of suspicion, ie. “probable cause to believe a vehicle contains evidence of criminal activity.” Gant, 556 U.S. at 347 , 129 S.Ct. 1710 (Emphasis added) (citing United States v. Ross, 456 U.S. 798, 820-21 , 102 S.Ct. 2157 , 72 L.Ed.2d 572 (1982) (permitting searches of any area of the vehicle in which the evidence might be found)). “Rather, the ‘reasonable to believe’ standard probably is akin to the ‘reasonable suspicion’ standard required to justify a Terry search.” Vinton, 594 F.3d at 25 (citing Adams v. Williams, 407 U.S. 143, 146 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972)) (noting that a Terry search is permissible if the officer has reason to believe that the suspect is armed and dangerous). “Accordingly, the officer’s assessment of the likelihood that there will be relevant evidence inside the car must be based on more than ‘a mere hunch,’ but ‘falls considerably short of [needing to] satisfy! ] a preponderance of the evidence standard.’ ” Id. (quoting United States v. Arvizu, 534 U.S. 266, 274 , 122 S.Ct. 744 , 151 L.Ed.2d 740 (2002)); see Quince v. State, 319 Md. 430, 433 , 572 A.2d 1086 (1990) (Quotation omitted.) (“[T]he level of suspicion for a Terry stop and frisk ‘is considerably less than proof of wrongdoing by a preponderance of the evidence’ ... [and] ‘the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause.’”); accord Powell v. Com., 57 Va.App. 329 , 701 S.E.2d 831, 835 (2010). Similarly, we hold that a Gant-like search of an automobile incident to arrest must be based on a similar level of reason ⁴⁹⁰ able suspicion as in an automobile stop under Terry .

Therefore we look at the Terry line of cases for guidance here. c. Factors establishing reasonable belief Whether a belief is reasonable depends upon the totality of the circumstances, rather than a categorical rule. See Arvizu, 534 U.S. at 274 , 122 S.Ct. 744 (Quotations omitted.) (noting that the “reasonable suspicion” standard is “somewhat abstract” and that the U.S. Supreme Court has “deliberately avoided reducing it to a neat set of legal rules”); Graham v. State, 325 Md. 398, 408 , 601 A.2d 131 (1992) (Quotation omitted) (“[I]n evaluating the validity of a detention, we must examine ‘the totality of the circumstances—the whole picture’ ”). As the Court of Appeals observed in Graham , where the officers “were immediately confronted with an array of facts which led them to reasonably suspect that Graham and Allen were engaged in some kind of criminal activity .... the subsequent arrest and seizure of property would not be tainted” and was not unconstitutional.

Id. We believe relevant cases indicate that the following are appropriate considerations in developing a reason to believe evidence will be found in the vehicle: (1) a police officer’s training and experience; (2) the lack of an innocent explanation for a driver’s seemingly illicit behavior; and (3) the nature of the crime of arrest. First, an officer may draw on his or her personal training and experience to develop a reasonable suspicion, or reason to believe, that a crime is afoot. Assessing the totality of the circumstances includes, inter alia, “allowing] officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” Arvizu, 584 U.S. at 273, 122 S.Ct. 744 .

Second, an officer cannot, however, simply assert that “presumably innocent” behavior provides reason to believe evidence of the crime of arrest is in the vehicle. See Ferris, 355 Md. at 387 , 735 A.2d 491 . In Ferris , a driver was stopped ⁴⁹¹ for speeding at 1:06 a.m. and appeared to the arresting officer to have bloodshot eyes, but there was no odor of alcohol on his breath. Id. at 362-68 , 735 A.2d 491 .

The officer concluded that the driver was not under the influence of alcohol, but some other CDS. The Court of Appeals held that the officer lacked reasonable suspicion to search the vehicle for evidence of intoxication. Id. at 384 , 735 A.2d 491 . The Court reasoned: The facts articulated by the trooper—that Ferris had exhibited extremely bloodshot eyes, nervousness, and a lack of odor of alcohol—are too weak, individually or in the aggregate, to justify reasonable suspicion of criminal activity.

In the early morning hours, these factors could fit “a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure.” Id. at 387 , 735 A.2d 491 . In this case, the State presented no evidence that bloodshot eyes—or excessive speed—are indicative of persons under the influence of a controlled substance. In other words, Trooper Smith did not testify that Ferris’s bloodshot eyes were somehow distinct from other bloodshot eyes irritated by non-criminal causes; nor did he explain how excessive speed, without any other driving irregularity, might imply a driver’s impaired operation. Id. at 392 , 735 A.2d 491 .

Because the officer failed to explain why apparently innocent behavior—driving with bloodshot eyes, nervousness, and lack of an odor of alcohol—established reasonable suspicion of criminal activity, the search of the automobile was impermissible. Id. at 391-92 , 735 A.2d 491 (“The Fourth Amendment does not allow the law enforcement official to simply assert that apparently innocent conduct was suspicious to him or her; rather, the officer must offer ‘the factual basis upon which he or she bases the conclusion.’ ”). Notably, nowhere in Ferns is there an indication that the officer ever explained how his training and experience led him to believe that the arrestee’s behavior was consistent with illegal activity. Under those circumstances, the Ferris officer ⁴⁹² based his search not on a reasonable suspicion, but on a “mere hunch.” See Arvizu, 534 U.S. at 274 , 122 S.Ct. 744 .

Third, certain offenses by their nature will involve evidence that an officer could reasonably believe is in a vehicle. A number of state courts to consider this issue have found that a DUI arrest provides reason to believe there will be containers of alcohol in the vehicle. In State v. Cantrell, 149 Idaho 247 , 233 P.3d 178 (Ct.App.2010), the DUI arrestee challenged the search of his vehicle, stating that it was “not reasonable to believe that evidence of the offense of arrest, DUI, might be found in the vehicle based solely upon evidence of intoxication.” Id. at 184. He argued that officers “must possess some additional information suggesting that evidence related to a DUI might be found in the vehicle,” such as evidence “in plain view, or partially hidden, but visible to the officers.” Id.

However, the Court of Appeals of Idaho rejected this argument and held that no additional evidence was required once the arrestee was found to be intoxicated; the search incident to arrest for evidence of the DUI offense was “authorized irrespective of whether evidence is known to be located in the vehicle.” Id. It was “reasonable to believe that evidence of the offense, e.g. alcohol containers or other evidence of alcohol use, ‘might be found in the vehicle.’ ” Id. at 185. Notably, the court explained, Cantrell’s admission to consuming alcohol did not make it unreasonable for officers to still search for further evidence, as “officers are not required to accept as true a defendant’s version of the events.” Id. Furthermore, the court rejected Cantrell’s contention that a search of his vehicle is unreasonable because evidence of his DUI would only be contained in his body[, which] ignores the realities of a DUI investigation.

Indeed, as the State points out, “a DUI trial does not start and end with a breathalyzer report,” considering