Turkes v. State

JAMES R. EYLER, J. On October 6, 2009, Michael Turkes, Jr., appellant, was tried on a not guilty agreed statement of facts in the Circuit Court for Prince George’s County on charges of possession of cocaine and possession with intent to distribute cocaine. That trial followed an October 2, 2009 motions hearing, during which the court denied appellant’s motion to suppress evidence. Ultimately, the court found appellant guilty of both charges. On January 8, 2010, the court sentenced appellant to twenty years of imprisonment, suspending all but eighteen months in favor of five years of supervised probation.

Appellant then appealed to this Court, challenging the trial court’s denial of his motion to suppress evidence. For the reasons set forth below, we shall affirm. Factual Background The following facts were adduced at the motions hearing. On May 2, 2009, at approximately 11:45 a.m., Officer Anthony Smith was patrolling the 6400 block of Greig Street in Prince George’s County, when he observed a brown Cadillac with dark-tinted windows drive past him. ¹⁰⁴ Officer Smith’s testimony concerning the events that transpired was as follows.

The tint on the Cadillac was so dark that Officer Smith could not see who was in the vehicle. Suspecting that the tint was darker than legally permissible, Officer Smith pulled in behind the Cadillac and activated his emergency equipment to make a traffic stop. The Cadillac pulled over immediately, and Officer Smith parked at an angle behind it. Officer Smith’s vehicle was about one-half of a car length from the Cadillac, canted to the left a bit.

Appellant, the driver of the Cadillac, then turned off the ignition, exited the driver’s side of his car, and quickly started walking towards an apartment building. Officer Smith told appellant to get back in his vehicle. Appellant replied that he could not open the driver’s side door, so Officer Smith ordered him to open the passenger’s side door. Appellant did so, and, through the passenger’s side door, unlocked all the car doors.

Then, appellant walked back to the driver’s side door. Officer Smith was standing next to appellant when appellant opened the driver’s side door. When appellant opened the door, he quickly looked to the left towards a black bag in the door well, and then looked at Officer Smith nervously. This drew Officer Smith’s attention to the bag.

Officer Smith described the bag as a black plastic half-gallon sized bag (about 12 inches, or the size of a tissue box). He testified that the bag had mass to it, and that the mass was about the size of a soda can, three to four inches in diameter. At that time, Officer Smith thought that the bag could contain “a weapon, ... drugs, or anything.” Officer Smith then asked appellant for his driver’s license and registration and told appellant that he was stopped because of the tint on his windows. Officer Smith advised appellant that, after receiving a ticket for a repair order, appellant would be free to leave.

Officer Smith then told appellant to roll down his windows for safety purposes. Officer Smith returned to his police car, informed the dispatcher of his location, and called for backup assistance. He noticed that appellant was looking through his rear view ¹⁰⁵ mirror and side view mirrors and pushing or raising up from his seat, with his head going toward the ceiling. According to Officer Smith, those movements seemed “extremely suspicious.” With the windows down, Officer Smith could see into appellant’s car, but he could not see appellant’s hands.

Shortly thereafter, Officer Ivey arrived on the scene to provide backup assistance. Officer Smith and Officer Ivey approached appellant’s vehicle. Officer Smith was on the driver’s side, and Officer Ivey was on the passenger’s side. Officer Smith asked appellant to step out of the vehicle to sign the citation.

Officer Smith testified as to why he thought it was important to have appellant exit the car to sign the repair order: Due to the initial traffic stop, in exiting the vehicle, while he was under lights and sirens, his nervous behavior, by looking at the bag when he opened the door; the furtive movements in the seat, pushing up from his seat; and continuously looking back through his rearview mirror, coupled with those movements, were very suspicious and there could possibly be a weapon in the vehicle. As appellant opened the door to get out of his car and sign the repair order, Officer Smith noticed that the black bag was no longer in the door well of the driver’s side door. Appellant followed Officer Smith to Officer Smith’s police vehicle, and Officer Smith told appellant that he would be free to go once he signed a repair order for the tinted windows. Appellant signed the order.

Officer Smith testified that appellant was not in fact free to leave; that he had only told appellant he would be free so that appellant would get out of the vehicle without incident, but that he intended to check the vehicle because he suspected it contained weapons or drugs. Officer Smith explained that he was in the middle of an investigative stop at that point: I’m investigating his furtive movements, him exiting the vehicle quickly against my lights and sirens, him nervously looking at a black bag in the door well that had mass to it, the black bag has now disappeared from the door well when ¹⁰⁶ he opens the door the second time, as well as him raising up in his seat, pushing with his head going towards the ceiling and nervously, continuously, over a five-minute time, looking back through his rearview mirror and side view mirror. Before appellant could walk back to his car, Officer Smith asked appellant if there was anything in the vehicle that he needed to know about. Appellant said no.

Officer Smith said that he would check, and according to Officer Smith, appellant consented. Appellant stood with Officer Ivey while Officer Smith checked the car. Officer Smith checked the “wing span” area of the Cadillac, including the door wells, the space beneath the seats, the dash, and the center console. He could not find the black bag that had been in the door well.

Officer Smith returned to appellant and asked him where the black bag was that had been in the door well. Appellant answered that the bag was trash, and that it was underneath the seat. Officer Smith returned to appellant’s car and searched the passenger compartment again, but could find no bag. Again, Officer Smith asked appellant where the bag was.

According to Officer Smith, appellant replied, “what bag, I don’t know what you’re talking about.” Officer Smith testified that, at that point, he thought that “whatever was in that bag, whether it could be a weapon or knife, or drugs, or anything, ... it was now on [appellant].” Officer Smith thus asked appellant to place both hands on the hood of the police car so that Officer Smith could perform a pat-down search for weapons. Using an open hand, Officer Smith began patting appellant down. As Officer Smith’s hand came up the inside of appellant’s leg, towards the crotch area, appellant pulled his hand from the hood of the car. Officer Smith asked appellant to put his hand back on the car, and began the pat-down again.

As Officer Smith’s hand approached appellant’s crotch area, Officer Smith felt “a very hard object” in between appellant’s legs. When Officer Smith pressed upwards on the hard object, appellant pushed off of the car and began to run. Officer Smith grabbed appellant, ¹⁰⁷ and they fell to the ground. Officer Ivey assisted in restraining appellant, who was resisting.

Officer Smith told appellant that he was under arrest, and the two officers handcuffed him behind his back. Once appellant was handcuffed, Officer Smith conducted another search of appellant, who was sitting on the curb between the Cadillac and the police vehicle. As a result of the search, Officer Smith found “[flour hundred ... glassine baggies, a razor blade, and 40 grams of crack cocaine, as well as the black bag that was in the door well of the Cadillac.” Officer Smith described the search as follows: [Officer Smith]: ... After [appellant] was placed in the handcuffs, we turned him over on his — for him to sit on his butt, and I undid the front of his pants, opened it up.

And down on the — where I felt the hard object, I saw that there was a very large bulge there. I pulled the inside — on his left leg, I pulled up his underwear there and I could see the black bag, and I pulled it out. [Prosecutor]: ... You said that you unbuttoned his pants? [Officer Smith]: Yes, sir. [Prosecutor]: Was his pants or his underwear removed? [Officer Smith]: No, sir. No, sir. [Prosecutor]: Were they pulled down in any way? [Officer Smith]: They weren’t pulled down, but they were opened.

He had — I believe he had a button fly, so I completely undid them, yes, sir. But I didn’t pull them off of his body, no. [Prosecutor]: Were any of his private parts exposed? [Officer Smith]: No sir. [Prosecutor]: When you reached in, you said that you reached in through the underwear? [Officer Smith]: Yes, sir. [Prosecutor]: Officer, can you describe where the item was found in relation to the Defendant’s body and how you went into his pants area? ¹⁰⁸ [Officer Smith]: The item was found underneath his scrotum. I went in, down his left pants leg. So I undid his buttons as far down as I could, opened his pants leg, reached in overhand, over the top of the underwear, from the — I don’t know how to explain it.

From the bottom piece of his underwear, I went in through the bottom and pulled out the bag and pulled it up and out. [Prosecutor]: At any time did you see, or were you able to see his — for lack of a better word — his penis? [Officer Smith]: No, sir. [Prosecutor]: And was anyone else able to see his penis? [Officer Smith]: No, sir. [Prosecutor]: At the time that you did the search was anyone else in this area? [Officer Smith]: No, sir. Only Officer Ivey. On cross-examination, Officer Smith testified that the traffic stop occurred about 7-8 blocks from the police department, which is about a five minute drive. He explained that four to five buildings of garden style apartments were approximately 40 yards from the street, with about 15 windows on each building facing the street.

On the other side of the street, there were five single-family homes. It was a sunny day, around 11:45 a.m., when the traffic stop occurred. Appellant’s testimony at the motions hearing conflicted substantially with Officer Smith’s. Appellant testified that, as soon as he parked, he saw a police vehicle make a u-turn and drive towards him.

Appellant stated that he had already gotten out of his car and walked to the door of an apartment when Officer Smith turned on his lights and ordered him to go back to his car. Appellant also testified that there never was a black bag visible in the door well and that Officer Smith just made up the fact that he saw the bag in the door well as an “excuse ... for [the] search.” Further, appellant claimed that he never gave Officer Smith consent to search the vehicle. Appellant also denied running from the officers during the pat-down. Appellant testified that he was uncomfortable when Officer Smith began unbuckling his pants, so he pushed ¹⁰⁹ Officer Smith off of him.

In other words, appellant was not trying to resist or leave, but was merely reacting to an uncomfortable search. Appellant’s account of the subsequent search of his person also differs substantially from Officer Smith’s. On direct examination, appellant testified as follows: [Appellant]: ... [F]or the record, I had on boxer briefs, not boxers. It was hard to go under boxer briefs, you know.

So he pulled my — he unbuckled my pants. He had my pants halfway down while I was sitting on the curb, with my boxer briefs down, and that’s how he went under my scrotum, underneath my scrotum area and everything. [Defense Counsel]: Now, when you say unbuckled your pants, what did he do "with your pants? [Appellant]: Well, as I’m in restraints, he unbuckled my pants and he unloosened my belt. I had fly buttons. He unbuttoned those.

Then he pulls them down. And then, he also pulls my boxer briefs down -with them. That’s when— [Defense Counsel]: He pulls them? How far down does he pull these? [Appellant]: I’d say about, mid-like, close to my — close to like, or parallel to my scrotum area. [Defense Counsel]: So you’re saying your pants and your boxers were both pulled down? [Appellant]: As I was sitting on the curb, yes. [Defense Counsel]: And you’re telling me that this area was completely exposed? [Appellant]: Yes. [Defense Counsel]: And for the record, the area where — or what bodily parts are there that were completely exposed? [Appellant]: My scrotum and my penis. [Defense Counsel]: They were completely visible? [Appellant]: Yes. [Defense Counsel]: Your penis was completely visible. [Appellant]: Yes. ¹¹⁰ [Defense Counsel]: Your testicles completely visible? [Appellant]: Yes. [Defense Counsel]: Your pubic hair— [Appellant]: Yes. [Defense Counsel]: — was completely visible? [Appellant]: Yes. [Defense Counsel]: And it was right there on Greig Street? [Appellant]: Yes. [Defense Counsel]: Was there anything blocking you while — well, was the cruiser blocking you? [Appellant]: No. I was actually in between the — this is the cruiser, and you could say this is my car, so I was actually sitting here, in between, like this. [Defense Counsel]: Was you— [Appellant]: There was no blockage. [Defense Counsel]: was your penis, all your private parts, were they completely visible to all of these windows— [Appellant]: Right. [Defense Counsel]: — the 60 or so windows— [Appellant]: Correct. [Defense Counsel]: — of the apartments? [Appellant]: Yes.

Well, you could say the houses, because my back was towards the apartments. [Defense Counsel]: Your back was. But they were completely visible to all the apartments? [Appellant]: Yes. [Defense Counsel]: And you’re telling me that it wasn’t a reaching under, that he actually pulled down— [Appellant]: Yeah. [Defense Counsel]: — your underwear? [Appellant]: You can’t reach under boxer briefs when they fit tight to your leg. ¹¹¹ At the close of the hearing, the court concluded that neither the initial stop nor the search of appellant’s person was illegal. With respect to the stop, the court stated simply that: It appears to the Court that the officer believed that the tint was too dark, that there was no other reason for the stop, and that the officer did have a reasonable and articulable suspicion of the violation of the law. Turning to the question of the search of appellant’s person, the court made several findings.

First, the court deemed credible Officer Smith’s testimony that “after being stopped by the police ... [appellant] was observed moving about in the car in a suspicious manner and that he appeared very nervous and that at one point he tried to flee.” Further, the court “believe[d] that the officer had seen a black bag in the car, ... and that it was no longer there after the defendant had been left in the car with it,” which “caused [Officer Smith] a great deal of concern.” To that end, the court discredited appellant’s testimony that “there was never a black bag in the door, [and] that the officer never saw this bag.” With respect to the bag’s appearance, the court found that “the bag, which has been described as the length and size of a Kleenex box ... was not just a ... small baggie that would be likely to be drugs; but that this was large enough that it could [contain] weapons as well.” In terms of the reasonableness of the search, the court noted that “the search does need to be considered under all of the factors such as the scope of the intrusion, the manner it was conducted in, the justification that initiated it and the place that it was conducted.” First, the court found that “the search was really a reach in,” acknowledging the “big difference between the officer’s testimony and [appellant’s] testimony” on this point. The court reasoned as follows: The officer testified that during the pat down he felt an object that was in [appellant’s] pants, and that the officer then unbuckled his belt and unbuttoned the pants, opened the pants, reached into [appellant’s] underwear — and I be ¹¹² lieve that it was between the underwear and the skin — and he reached down to [appellant’s] scrotum to remove the bag that [appellant] had hidden on his body, but on his scrotum. The Court is not convinced that the defendant is being truthful in testifying that the police pulled his pants down so that all of his genitals were exposed, and that the police, with his bare hand, reached into his underwear and to pull out the bag. I’m betting that this was not a bare hand that reached in.

With respect to the place of search, the court found that the search occurred “right there on a city street, in broad daylight, near residences. There’s houses across the street and apartments to the back of [appellant].” Further, the court noted, although no person was identified as having people standing in and around and observing this, or who were watching it from some other site, it’s certainly reasonable to assume that someone, either in cars driving by or in any of the homes, could have observed this. Thus, the court concluded that “the location [was] certainly not [one] of any privacy whatsoever to [appellant].” Nevertheless, the court deemed Officer Smith’s justification for the public search reasonable. Specifically, the court found that: the police, upon determining that [appellant] had some type of an object in his pants — and that it was not his own natural body parts — had reason to be concerned that this may be a weapon.

You know, like a razor blade, if not a gun____ [T]his, again, was not a small baggie that would just indicate that there were just drugs in it; that this was larger, that this was more substantial, and it has been described as one that caused the police officer to be concerned that it could be a weapon as likely as any other object. The court then concluded that if Officer Smith had merely suspected that the hard object could be drugs, the search would have been unreasonable because, under that scenario, ¹¹³ appellant could simply have been transported to a less public place. But because the officer feared there may have been a weapon involved, “the concern for [appellant’s] privacy loses out to the greater concerns as to the safety of the officers and anyone else who may [have been] in any danger” if appellant had in fact possessed a weapon. Thus, the court denied appellant’s motion to suppress.

Appellant challenges that denial on appeal. Additional facts will be incorporated as necessary in the discussion below. Standard of Review We defer to the trial court’s fact-findings at the suppression hearing unless the findings were clearly erroneous. Bailey v. State, 412 Md. 349, 362 , 987 A.2d 72 (2010).

Where the court’s fact-findings are either “(1) ambiguous, (2) incomplete, or (3) non-existent[,]” the appellate Court can turn to the following “supplemental rule of interpretation” in order to “fill those fact-finding gaps[:]” In determining whether the evidence was sufficient, as a matter of law, to support the ruling, the appellate court will accept that version of the evidence most favorable to the prevailing party. It will fully credit the prevailing party’s witnesses and discredit the losing party’s witnesses. It will give maximum weight to the prevailing party’s evidence and little or no weight to the losing party’s evidence. It will resolve ambiguities and draw inferences in favor of the prevailing party and against the losing party.

Morris v. State, 153 Md.App. 480, 489-90 , 837 A.2d 248 (2003). The suppression hearing court’s legal determinations, unlike its fact-findings, are paid no deference on review. See Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001) (“We will review the legal questions de novo and based upon the evidence presented at the suppression hearing and the applicable law, we then make our own constitutional appraisal.”). Discussion Appellant offers five arguments on appeal: (1) the traffic stop was initiated without reasonable articulable suspicion; (2) ¹¹⁴ appellant was held after the purpose of the initial traffic stop ended and was thus subject to a “second stop,” which was not supported by reasonable articulable suspicion; (3) the search of appellant’s car was not supported by reasonable articulable suspicion; (4) the frisk of appellant was not supported by reasonable articulable suspicion; and (5) appellant was improperly strip-searched in a public area.

Only the first and fifth arguments were made at trial. Thus, appellant has waived the remaining three arguments, and they are not properly before us on appeal. This Court has held that the failure to argue a specific theory in support of a motion waives that argument on appeal. See Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any [non-jurisdictional] issue unless it plainly appears by the record to have been raised in or decided by the trial court....”); Evans v. State, 174 Md.App. 549, 557 , 922 A.2d 620 (2007).

Nevertheless, for completeness, we consider the merits of the unpreserved arguments and conclude that, were they preserved, they would lack merit. For ease of analysis, we have consolidated appellant’s second, third, and fourth arguments into one. 1. Reasonable Suspicion in Support of the Initial Traffic Stop Appellant argues that the initial traffic stop was not supported by a reasonable articulable suspicion, and thus “any evidence flowing there from should have been suppressed at trial.” We disagree. When an officer observes a vehicle that is in violation of window tint regulations, the officer may stop the driver of the vehicle and, in addition to issuing a citation charging the driver with the offense, may issue to the driver a safety repair order.

State v. Williams, 401 Md. 676 , 934 A.2d 38 (2007). In Williams , the Court of Appeals summarized Maryland law requirements as to vehicle window tinting as follows: The amalgam of these statutes and the MVA-ASED regulation is that (1) post-manufacture tinting is permissible pro ¹¹⁵ vided that it allows at least 35% light transmittance and other conditions set forth in the regulation, including the requirement that a label stating the percentage of light transmittance be permanently attached to the window between the glass and the tinting material, are satisfied, but (2) if a police officer observes a vehicle being driven on a highway that is not in compliance with those requirements, the officer may stop the vehicle and issue both a citation for the traffic offense and a vehicle equipment repair order. Id. at 685 , 934 A.2d 38 . The Court in Williams explained that a traffic stop is justified under the Fourth Amendment if the officer has a reasonable articulable suspicion that a traffic law has been violated.

Id. at 690 , 934 A.2d 38 . In the absence of objective measurement of the tint, which may not be feasible prior to a stop, the following standard applies: If an officer chooses to stop a car for a tinting violation based solely on the officer’s visual observation of the window, that observation has to be in the context of what a properly tinted window, compliant with the 35% requirement, would look like. If the officer can credibly articulate that difference, a court could find reasonable articulable suspicion, but not otherwise. Id. at 692 , 934 A.2d 38 .

Further, applicable regulations require that a label or sticker be placed on a window that has post-manufacturing tinting. Id. Thus, if an officer stops a car based solely on visual inspection, the officer could check the car for an inspection sticker to determine whether the sticker indicates that the tint is in compliance with the law. Id. at 692 n. 3, 934 A.2d 38 .

If there is no reason to believe the sticker is not genuine, there would be no reason to continue detaining the motorist. Id. However, if there is no label, or the label appears to be not genuine, “that alone may justify a citation ..., a repair order, and some further investigation.” Id. In this case, Officer Smith stopped appellant on a sunny morning.

Officer Smith testified that, when he saw appellant’s vehicle, he was unable to see into the vehicle at all to tell ¹¹⁶ the number of occupants in the car or to distinguish movement in the car. He also did not see an inspection sticker on the tint. He testified that he had approximately 8 to 10 seconds to observe the car before initiating a stop. Those facts justified the stop, especially in light of Officer Smith’s training and experience in recognizing legally tinted windows.

Officer Smith testified that he was familiar with the appearance of a legal tint at 35% and had observed the difference between legal and non-legal tints during traffic stop training at the police academy. He also had conducted at least 100 traffic stops for tinted windows. Officer Smith noted that, based on his training and experience, if a window’s tint is legal, a person should be able to see into the window because sunlight can get through. We affirm the trial court’s finding that the stop was supported by a reasonable articulable suspicion. 2.

Reasonable Articulable Suspicion to Support a “Second Stop, ” a Search of Appellant’s Vehicle, and a Frisk of Appellant’s Person Appellant argues that (1) Officer Smith “continued to hold [appellant] after the purpose of the original stop was effectuated, thereby conducting an unlawful ‘second stop[,]’ [which was] unsupported by reasonable suspicion or probable cause[;]” (2) the search of appellant’s car was not supported by reasonable articulable suspicion; and (3) the frisk of appellant was not supported by reasonable articulable suspicion. Although these arguments were not preserved for appeal, we address their merits below. As the Court of Appeals explained in Ferris v. State, 355 Md. 356 , 735 A.2d 491 (1999), the officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Thus, once the underlying basis for the initial traffic stop has concluded, a police-driver encounter which implicates the Fourth Amendment is constitutionally per ¹¹⁷ missible only if either (1) the driver consents to the continuing intrusion or (2) the officer has, at a minimum, a reasonable, articulable suspicion that criminal activity is afoot. 355 Md. at 372 , 735 A.2d 491 (citations omitted).

We agree that appellant was subjected to a “second stop” because Officer Smith continued to detain appellant after appellant signed the citation for the tinting violation, which marked the conclusion of the initial stop. See Id. at 373 , 735 A.2d 491 (“We conclude ... that the traffic stop essentially came to an end upon the trooper’s delivery of the citation, and return of the driver’s license and registration.”); Charity v. State, 132 Md.App. 598 , 753 A.2d 556 (2000) (explaining that in Ferris, the initial traffic stop ended “[a]t the moment when Trooper Smith returned Ferris’s driver’s license and registration card to him and handed Ferris a copy of the speeding citation”). However, we conclude that the