Thompson v. State

WRIGHT, J. Appellant, Jeffrey Maurice Thompson, was indicted in the Circuit Court for Baltimore County, Maryland, and charged ⁶⁵⁷ with the illegal possession of a regulated firearm, possession of oxycodone, possession of hydrocodone, and related offenses. Following the denial of appellant’s motion to suppress evidence, the parties agreed to proceed by way of a not guilty plea on an agreed statement of facts. The court found appellant guilty of illegal possession of a regulated firearm and the State entered a nolle prosequi on the remaining charges. Appellant was then sentenced to five years without the possibility of parole.

Appellant timely appealed and presents the following questions for our review: 1. Did the trial court err in denying Appellant’s motion to suppress? 2. Should this case be remanded for further proceedings in light of Arizona v. Gant, — U.S.-, 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009)? For the following reasons, we answer these questions in the negative and therefore shall affirm.

FACTS AND PROCEDURAL HISTORY Officer Brown, of the Baltimore County Police Department, testified that he had been a patrol officer for approximately four years, working for the last three years out of Wilkens Precinct. 1 On March 26, 2008, at around 2:50 a.m., Officer Brown noticed a green Lexus vehicle in the area of Route 40 and Old Frederick Road in Baltimore County. After running a check on the vehicle’s license tag which was from Maryland, Officer Brown could not find a registration for the vehicle with the Maryland Motor Vehicle Administration (“M.V.A.”). Based on that information, Officer Brown stopped the vehicle in the area of Harlem Lane and Region Puff Road. Appellant was driving the vehicle. 2 ⁶⁵⁸ Officer Brown asked appellant for his license and registration.

Although appellant provided his name, he was nervous while responding to Officer Brown’s questions and was unable to provide a driver’s license or other state identification. Officer Brown advised appellant that his vehicle was stopped because it did not have a registration with the M.V.A., and appellant replied that he believed the vehicle was properly-registered. Appellant eventually produced some insurance documents purporting to be proof of insurance, but those documents included different vehicle identification numbers (“VINs”). Officer Brown testified as follows: [PROSECUTOR]: When he, when he provided you with that information and with the other information that you were gathering at the time is it [sic], did it come into your knowledge that there was a problem with the car? [OFF.

BROWN]: Yes ma’am. [PROSECUTOR]: And what was that? [OFF. BROWN]: Off of the various documents that he supplied one was a Maryland temporary registration. Actually he had two different temporary registrations that he provided. Those documents had different V.I.N. numbers associated with the vehicle.

And that’s not, usually that’s not typical of any type of vehicle. Its one V.I.N. number that’s identified as that vehicle along with the documents associated with the vehicle. [PROSECUTOR]: In your experience as a police officer when you have a car that you’re getting two different V.I.N. numbers— [OFF. BROWN]: Yes ma’am. [PROSECUTOR]: — what is that indicative of to you? [OFF. BROWN]: Fraud.

And actually it was three different V.I.N. numbers associated. But yes. Its [sic] indicative of fraud. Someone attempting to basically not ⁶⁵⁹ apply or not you know, abide by the rules and regulations of the Transportation Article of Maryland. [PROSECUTOR]: And did you ever, were you ever able to confirm the defendants identify [sic] prior to arresting him? [OFF.

BROWN]: No ma’am. [PROSECUTOR]: Okay. What if, what steps did you take to try and do that? [OFF. BROWN]: Through dispatch what we do is we run M.V.A. checks again. Try to, we run N.C.I.C. checks.

That’s the National Criminal Information Database. We take various steps. And I’ve, I did take various steps that night to determine who the defendant was, who the motorist was. And I was not satisfied to, who he was. [PROSECUTOR]: So, what did you do as a result? [OFF.

BROWN]: Effected arrest. Officer Brown then searched the vehicle and recovered a digital pocket scale from the glove compartment; U.S. currency, both in a compartment on the driver’s side and in a pair of black jeans in the backseat; and, prescription pills inside the center console. At this point, Officer Brown determined that the vehicle “needed to be stored. [The driver] was under arrest. The passenger was not at the scene any longer.

In addition to [sic] we still had the problem on the YIN’s. There was [sic] three different VIN’s to, and the documentation was not satisfactory.” Officer Brown testified that the vehicle would be sent to a towing company located off Old Frederick Road. Officer Brown then testified concerning the policy of the Baltimore County Police Department in such instances: The vehicles that are stored will come into our control. Basically you have to conduct an inventory search to protect motorists from different, basically if they have any items of importance or value in case you need to document that in case something would happen at the storage yard.

And basically just to know exactly, also safety reasons what exactly is in the vehicle. What, what are you relinquishing. ⁶⁶⁰ Officer Brown continued that he was familiar with the Baltimore County Police Department’s policy and standard operating procedures on inventory searches, and a portion of the Department’s Field Manual was admitted into evidence at the suppression hearing. That field manual included a section covering vehicle property inventory searches. Although the record is not entirely clear where Officer Brown conducted his inventory search, Officer Brown testified that he searched all containers inside the vehicle and recovered appellant’s license in the front zipper compartment of a book bag located in the vehicle’s trunk.

Officer Brown also found “a loaded black high point nine millimeter pistol containing four nine millimeter rounds” inside the same book bag. Officer Brown testified that this gun was a regulated firearm. On cross-examination, Officer Brown clarified that appellant gave him two registrations and a proof of insurance and that these documents contained various VINs. The actual YIN on the car itself was JT8BF28G8W5022214.

Officer Brown then testified that appellant gave him a document, identified as Defendant’s Exhibit Number 1, that included appellant’s name and a YIN for the Lexus ending in the numbers 4405. Appellant also provided Officer Brown with a document identified as a “registration certificate” with the YIN listed as JT8BF28G2W5047223. In addition, Officer Brown did not recall whether he checked appellant’s driver’s license information on his computer, but he did testify that he checked it with dispatch. Officer Brown gave dispatch appellant’s name and date of birth but did not recall what dispatch advised concerning that information.

Officer Brown testified that, if they advised that appellant did not have a license, he would have possibly remembered. 3 On further cross-examination, Officer Brown testified that appellant was arrested for “failure to provide sufficient identi ⁶⁶¹ fication.” Officer Brown could not recall whether appellant gave him an expired college identification. Officer Brown testified that such a college identification was not a Maryland State identification, or any other state identification, and that it was not sufficient proof of appellant’s identity. 4 He also testified that a birth certificate would not be sufficient proof, and he could not recall if appellant actually offered to provide a birth certificate at the time of the stop. Appellant then testified on his own behalf at the suppression hearing. Appellant confirmed that Officer Brown advised him that he was stopped because his license tags did not appear in the M.V.A. system.

Appellant agreed that he did not provide license and registration when asked. However, appellant claimed he gave Officer Brown an expired identification card from Howard Community College. He also provided his name and believed he may have provided his date of birth. Appellant also testified that he tried to give Officer Brown his birth certificate and social security card, but Officer Brown told him “that he didn’t want a look at it or take it.” Appellant also confirmed that he gave Officer Brown various documents with respect to the vehicle.

At the conclusion of this evidence, appellant’s defense counsel agreed there was “probable cause to stop the car to investigate for a traffic stop. I mean, for a, to see why the tags aren’t registered. But I do not believe that the officer had probable cause to arrest Mr. Thompson.” Appellant’s counsel asserted that failure to provide sufficient identification was not against the law and there was no other driving offense that would have supported appellant’s arrest. Counsel further suggested that appellant did provide information concerning his identity.

Counsel also addressed the fact that the vehicle ⁶⁶² was unregistered, but maintained that that was not an arrestable offense either. The State responded that appellant was unable to confirm his identity, that it was approximately 3:00 a.m., and that appellant presented three different VINs for the vehicle. Under the totality of these circumstances, the State maintained that the arrest of appellant was supported by probable cause. The suppression court agreed with the State.

The court noted that this stop occurred in the early morning hours after Officer Brown ran the tags on the Lexus and determined that the vehicle was not registered. The court then stated: There’s no registration for this car. The car is not registered. Well, who’s car is it?

There’s no way to verify that because there is no registration. So, he stops the driver of the car. He stops the car. And he says to the driver, give me your license and registration.

The driver says, I can’t produce a license. But here’s who I am. I’m, my name is such and such. And I can show you [a] Howard County College ID.

And I can show you a birth certificate that’s in my pocket. But I don’t have any other state ID that shows my identity. Well, you and I are not old enough that we would forget. College ID’s are like, I mean, let’s stop every eighteen year old that’s walking down the street and they probably have three of them.

And they have them for all kinds of different reasons that they have them. But see, you can’t use that. I mean, that, that doesn’t show us who it is. Its [sic] not really a question of who it is as important as who’s car is this.

After stating that Officer Brown also asked appellant for information concerning the vehicle, the court stated: And [appellant] shows him three insurance slips, cards. Some document that’s got his name. The name he gave. But its [sic] got three different VIN numbers for this same Lexus ES 300.

But its [sic] got three VIN numbers. How can that be? Who’s car is this? Is this legitimately Mr. Thompson’s car?

This isn’t normal. This isn’t right. What ⁶⁶³ should he do at that point? Should he say, well, Mr. Thompson I’m going to give you a ticket.

You go drive off with the car. Who’s car is it? Is it a stolen car? Is it a car, because it’s not registered to him.

At least D.M.V. says it isn’t. Its [sic] not registered. How do we know when the officers say, well, I’m going to write you a ticket, you drive off, are we ever going to find that car again? Who’s, is it his car?

I mean, legitimately is it his? Or is it yours that was parked in front of your house that was taken from you? How does he know that? How could the officer do anything other realistically than what he did?

The suppression court continued: That’s why he’s got to keep the car. Until he can verify that in fact this is a car that belongs to this guy or, or even if it doesn’t belong to him that he has the legitimate right to be driving around in. To be, to have. That doesn’t have three different VIN numbers on pieces of paper.

The court then stated: So, what does he do? He arrests the defendant. He impounds the car. He can then take the car back.

They can investigate. Who’s car is this? Is it his? Is it not his?

Is there a reason why there are three separate VIN numbers. Its no other way to do it other than what he did at 2:00 in the morning on whatever the streets were that he arrested him on. And that’s why. It seems to me that when you look at the totality of the circumstances here what he did was reasonable.

Its [sic] not an unreasonable search and seizure. Its [sic] not. We know the defendant has committed some offenses. We know that by his own admission.

But we’ve got to find out what’s the story with this car? Thereafter, the court heard further argument from appellant’s counsel. Counsel suggested that the court’s legal conclusion was incomplete because “[s]o far everything that you’ve said you’ve not mentioned probable cause for any offense.” The suppression court disagreed, responding that the fact that appellant did not have a driver’s license and ⁶⁶⁴ produced documentation with a variety of conflicting VINs was more than “mere suspicion.” After further argument, defense counsel asked, “maybe I’m, maybe I’m not getting it, but probable cause to arrest him for what?” The court replied: “For being in a stolen car. For, for being in a car that he doesn’t have any right to be in.” The court agreed with counsel’s subsequent assertion that there was no evidence that the car was stolen, then stated, “I agree with you.

I agree with everything you’re saying. That there could be an explanation for it. There could be. Its [sic] not proof.” The court then stated: That he committed some crime.

Those things. But what I’m saying is, when you put all that together. Here’s 2:30 in the morning. A dark street.

The, I mean, its [sic] dark because its [sic] 2:30 in the morning. Police officer stops a guy. A car is not registered. Asks him for a license.

Don’t have a license. Give me papers. Gives him papers with three separate VIN numbers on the papers. That’s, that’s enough.

After counsel again asked “[t]o arrest him for what?” the court then suggested that recovery of the handgun was reasonable under a different rationale, as follows: [THE COURT]: Well, its [sic], see, we don’t even have to get to the arrest. Let’s get to did they have the right to at that point [to] seize the car?” [DEFENSE COUNSEL]: Okay. Let’s assume they have the right to seize— [THE COURT]: Because that’s, that’s the issue. [DEFENSE COUNSEL]: Okay. [THE COURT]: If they have the right to seize the car. [DEFENSE COUNSEL]: Okay. But— [THE COURT]: Because once they have the right to seize the car then all the things that you want suppressed are in the car. ⁶⁶⁵ [DEFENSE COUNSEL]: Okay.

But that’s not the theory by which he searched the compartment area of the car. He searched him as a search incident to arrest. [THE COURT]: Because they then inventory the car he said because the car is going to be towed and its going to be taken to some private lot. And they have to do that. That’s why the State introduced those procedures. [DEFENSE COUNSEL]: Right. [THE COURT]: Because that’s what they have to do.

That is what they do. After defense counsel claimed that the police only decided to do the inventory search after they found the pills, during a search incident to arrest, the suppression court again disagreed with counsel’s characterization and summarized the issue as follows: [D]id he have a right at that point to seize the car? I don’t know how he could have let the car go. I really don’t.

I don’t know how he if he was doing his job could have said, drive off with the car. I don’t know how he could. I don’t know how that’s reasonable. At that point with what he knows and what he doesn’t know how can he let the car go?

Its [sic] not registered. Its [sic] being driven by a man who doesn’t have a license. We’ve got three separate YIN numbers. How, how can you let it go?

Therefore, the court ruled that the gun was found after an inventory search. Further, the court stated that “what the officer did was reasonable. If you take all the facts, the totality of the facts given the circumstances here I don’t know what else he reasonably could have done.” The suppression court then denied the motion to suppress. Following denial of the motion to suppress, the parties immediately agreed to proceed by way of a not guilty plea on an agreed statement of facts.

The State informed the court that the parties would proceed on count one, the illegal possession of a regulated firearm, see Md.Code (2003), § 5-133(c) of the Public Safety Article, and the State would nolle prosequi the remaining charges. After determining that ap ⁶⁶⁶ pellant waived his right to a jury trial, the State incorporated Officer Brown’s testimony from the suppression hearing. In addition, a report indicating that the aforementioned gun was operable was submitted without objection, as well as an exhibit indicating that appellant was prohibited, under Maryland law, from possessing a regulated firearm based on a prior disqualifying conviction of second degree assault. After hearing further from appellant’s counsel, the court convicted appellant of illegal possession of a regulated firearm.

The court then proceeded to disposition and sentenced appellant to five years without the possibility of parole. This appeal followed. DISCUSSION I. Appellant contends that the suppression court erred in denying his motion to suppress on the grounds that he was illegally arrested for a nonexistent crime and without probable cause. Therefore, according to appellant, the subsequent search incident to arrest and inventory search were tainted by his illegal arrest.

The State responds, in light of the facts— that appellant did not have a registration for the vehicle, was unable to provide a driver’s license, and produced several documents with conflicting VINs — the suppression court properly determined that there was probable cause to support appellant’s arrest. Alternatively, the State suggests that the recovery of the handgun occurred during a lawful inventory search. We agree with the State’s latter rationale and will affirm the motion court’s ruling because it is clear that the vehicle had to be impounded regardless of whether there was probable cause to arrest appellant in this case. In reviewing the denial of a motion to suppress evidence, the appellate court looks exclusively to the record of the suppression hearing and does not consider the trial record.

See Paulino v. State, 399 Md. 341, 347-48 , 924 A.2d 308 (2007); Byndloss v. State, 391 Md. 462, 477 , 893 A.2d 1119 (2006). In ⁶⁶⁷ considering the evidence presented at the suppression hearing, the appellate court extends great deference to the fact finding of the suppression hearing judge with respect to determining the credibilities of contradicting witnesses and to weighing and determining first-level facts. Brown v. State, 397 Md. 89, 98 , 916 A.2d 245 (2007); accord Bost v. State, 406 Md. 341, 349 , 958 A.2d 356 (2008). When conflicting evidence is presented, the appellate court accepts the facts as found by the hearing judge unless those findings are shown to be clearly erroneous as a matter of law.

Brown, 397 Md. at 98 , 916 A.2d 245 . However, the appellate court does “not engage in de novo fact-finding.” Haley v. State, 398 Md. 106,131 , 919 A.2d 1200 (2007) (citation omitted). Furthermore, where the motion to suppress is denied, the evidence is to be reviewed in the light most favorable to the State as the prevailing party on the motion. Byndloss, 391 Md. at 477 , 893 A.2d 1119 .

Nevertheless, as to the ultimate, conclusory fact, the appellate court must make its own “independent constitutional appraisal by reviewing the law and applying it to the facts of the present case.” State v. Williams, 401 Md. 676, 678 , 934 A.2d 38 (2007) (citations omitted). This case concerns the reasonableness of an arrest and a subsequent search and seizure under the Fourth Amendment. The Court of Appeals has stated: The Fourth Amendment to the United States Constitution protects persons and places from unreasonable intrusions by the government. The Fourth Amendment does not protect against all seizures, however, but only against unreasonable searches and seizures.

United States v. Sharpe, 470 U.S. 675, 682 , 105 S.Ct. 1568, 1573 , 84 L.Ed.2d 605 (1985). In assessing whether a search or seizure was reasonable, “[t]he 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, 332 , 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 , 88 S.Ct. 1868, 1878-79 , 20 L.Ed.2d 889 (1968)). Reasonableness “depends on a ⁶⁶⁸ balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” Maryland v. Wilson, 519 U.S. 408, 411 , 117 S.Ct. 882, 885 , 137 L.Ed.2d 41 (1997) (quoting United States v. Brignoni-Ponce, 422 U.S. 873, 878 , 95 S.Ct. 2574, 2579 , 45 L.Ed.2d 607 (1975)). Wilson v. State, 409 Md. 415, 427-28 , 975 A.2d 877 (2009) (footnote omitted).

The motion court’s initial ruling was that there was probable cause to support appellant’s warrantless arrest and the subsequent search of the vehicle he was driving. As to the meaning of probable cause, the Court of Appeals has provided: Probable cause, we have