Wilson v. State

SALMON, Judge. On September 27, 2001, a Maryland State Police trooper stopped appellant, Bruce Wilson, on Route 50 in Queen Anne’s County, Maryland, after observing a car he was driving exceed the speed limit arid follow another car too closely. The trooper subsequently found cocaine on Wilson’s person. He was arrested for possession of cocaine and possession of cocaine with the intent to distribute.

Wilson was thereafter charged in the Circuit Court for Queen Anne’s County with those crimes. Wilson filed a motion to suppress the cocaine, claiming that during the stop the police violated his right to be free from unreasonable searches and seizures. The court denied the motion. Wilson subsequently pleaded not guilty on an agreed statement of facts.

The court found him guilty of possession with intent to distribute cocaine and sentenced him to fourteen years of imprisonment. I. QUESTION PRESENTED Did the trial court err in denying appellant’s motion to suppress? 1 ⁶⁶¹ II. EVIDENCE PRESENTED AT THE SUPPRESSION HEARING On September 27, 2001, Corporal Karl Klotz and Deputy Shane McKinney, both of the Queen Anne’s County Sheriffs Department, and Maryland State Trooper Robert Penny, Jr. (and others) attended a meeting with the Talbot County Drug Task Force. Members of the task force told the attendees that Wilson would be driving through Queen Anne’s County that day, on Route 50, and that he would be carrying a large quantity of cocaine.

Task force members described the vehicle Wilson would be driving as a “red Ford Escort.” After receipt of this information, the officers devised a plan to apprehend Wilson. The plan was to position officers on Route 50 and wait for Wilson to drive by; if he were seen breaking any traffic laws, he was to be stopped immediately. As part of the plan, the officers arranged for a drug sniffing canine to be nearby in case a traffic stop was made. The plan was put into effect, and later that day, at 6:15 p.m., Wilson was observed traveling westbound on Route 50 in Queen Anne’s County, driving a red Ford Escort.

The police “clocked” his vehicle’s speed at 63 miles per hour. The maximum speed limit was 55 MPH at the point appellant was observed. Trooper First Class (“TFC”) Penny made the stop. TFC Penny approached Wilson’s vehicle and recognized him as a former high school acquaintance.

The two engaged in a brief period of “small talk,” after which TFC Penny asked for ⁶⁶² Wilson’s license and registration. Wilson found the registration card to the Ford Escort but could not produce a driver’s license. The trooper asked Wilson to get out of the vehicle while he “ran” his name through the police computer. At that point, the officer intended to check to see if Wilson had a valid license and to make sure the registration card Wilson had produced was valid.

Wilson’s front-seat passenger was allowed to stay in the automobile. Shortly after Wilson stepped out of the car, TFC Penny noticed Deputy McKinney and his dog arrive. The K-9 unit had been summoned by radio moments earlier. Wilson was instructed to get back into his vehicle and to turn off its engine.

Wilson did as he was told. TFC Penny backed away from Wilson’s vehicle after being instructed to do so by Deputy McKinney. Movement away from the vehicle was necessary because the drug dog was in a “work mode.” According to Deputy McKinney, the dog got “aggressive” when working. TFC Penny was still holding the vehicle’s registration Wilson had given him when he stepped away from appellant’s car. • The dog performed a perimeter scan of Wilson’s vehicle, which lasted less than two minutes.

During the scan, the dog “alerted” while at the passenger side of the car. The dog’s alert informed his handler that the dog detected the scent of a controlled dangerous substance in the vehicle. The dog handler notified TFC Penny and Corporal Klotz of the dog’s findings. TFC Penny re-approached the vehicle and again asked Wilson to get out of the car.

Corporal Klotz remained behind the vehicle and watched the front-seat passenger. As Wilson stepped out, TFC Penny noticed a bulge in Wilson’s right front jacket pocket. He also noticed what appeared to him to be a brown paper bag or sandwich bag sticking out of the top of the same jacket pocket. ⁶⁶³ Wilson was then asked to walk to the back of his vehicle. Wilson did as instructed and then turned to face TFC Penny, who inquired: “Bruce, what’s in your jacket[?]” Before the question was answered, TFC Penny “grabbed” the pocket and just “instantaneously” felt a “large mas[s],” which he “immediately .... knew from his [15 years] of training and experience ... was the amount and probably the type of contraband” he expected Wilson to have. 2 After he felt the bag, TFC Penny immediately pulled it out of Wilson’s pocket.

The bag contained numerous smaller baggies containing cocaine. Wilson was then arrested. On cross-examination, TFC Penny testified: MR. KANWISHER [Defense Attorney]: So you saw that and the bulge at the same time, it wasn’t just the bulge, you saw the paper bag?

TFC PENNY: Yup. MR. KANWISHER: At that point, were you concerned for officer safety, for your safety and the other officers? TFC PENNY: I am always concerned for my safety or the other officers there, especially with this type of stop.

MR. KANWISHER: So your intent, at that point, was to see if he was carrying any weapons or was your intent, at that point, to see what was in the bag? TFC PENNY: My intent, at that point, was to identify the bulge. I didn’t know what the bulge was.

So that was why I grabbed that area. Then upon grabbing that area, it was clear to me and it felt like the contraband that I should have been looking for. The trial judge, after finding the testimony of the officers who participated in appellant’s arrest to be credible, denied Wilson’s motion to suppress. ⁶⁶⁴ III. DISCUSSION Appellant admits that the police had probable cause to stop his vehicle.

He contends, however, that his detention at the point drugs were discovered violated his rights, as protected by the Fourth Amendment. More precisely, he contends that once the police ceased activities concerning the traffic stop and focused their investigative energies exclusively on his possible possession of drugs, his confinement was illegal. Appellant identified the point where the detention became illegal as the moment after the canine unit arrived, which was (approximately) at the same point appellant was ordered back into his vehicle. Wilson’s argument is expressed as follows: While Trooper Penny was beginning to process the traffic violations, Deputy Shane McKinney arrived with his drug detecting canine Rey.

At this point, Trooper Penny stopped his investigation of Mr. Wilson’s license and the processing of the traffic violations to allow Deputy McKinney and Rey to scan the car for drugs. As Deputy McKinney was pursuing the drug interdiction purpose of the stop, Trooper Penny and Corporal Klotz stayed away from Mr. Wilson’s car. It is this abandonment of the actions related to the traffic laws that Whitehead [v. State, 116 Md.App. 497, 503 , 698 A.2d 1115 (1997),] specifically prohibited when stating “stopping a car for speeding does not confer the right to abandon or never begin to take action related to the traffic laws.” Wilson also argues that the holdings in Charity v. State, 132 Md.App. 598 , 753 A.2d 556 (2000), support his position that his detention after he was ordered back into his car was unlawful. The Whitehead case had its origin when Cedrick Whitehead was observed by a Maryland State trooper (who was “working a K-9 shift”), driving seventeen miles over the posted speed limit. 116 Md.App. at 498 , 698 A.2d 1115 .

Whitehead was stopped by the trooper and asked for his license and registration. Id. The motorist was able to produce his registration but not his license. Id.

At the trooper’s request, Whitehead walked back to the trooper’s cruiser. Whitehead’s passenger ⁶⁶⁵ was allowed to remain seated. Id. at 498-99, 698 A.2d 1115 . The K-9 officer next asked Whitehead where he was coming from and his intended destination.

Id at 499, 698 A.2d 1115 . He then went to Whitehead’s car and asked the passenger the same questions. Id. The answers received from the passenger conflicted with those given by Whitehead.

Id. This discrepancy prompted the trooper to ask Whitehead if he would sign a written consent to a search of his vehicle for drugs. Id. Whitehead became nervous, commenced stuttering, and declined to consent.

Id. While Whitehead was being asked to sign a consent form, the trooper received a radio report that Whitehead’s driving privileges were in order, that there were no outstanding arrest warrants, and that his vehicle was not stolen. Id. Despite receipt of this good news, the trooper detained Whitehead while his drug dog performed a scan of Whitehead’s vehicle.

Id. The dog “alerted to the driver’s door.” Id. The interior of the car was then searched, and drugs were found. Id.

In Whitehead, Judge Sonner, for this Court, said: We think it would be a mistake to read Whren [v. U.S., 517 U.S. 806 , 116 S.Ct. 1769 , 135 L.Ed.2d 89 (1996),] as allowing law enforcement officers to detain on the pretext of issuing a traffic citation or warning, and then deliberately engage in activities not related to the enforcement of the traffic code in order to determine whether there are sufficient indicia of some illegal activity. Stopping a car for speeding does not confer the right to abandon or never begin to take action related to the traffic laws.... Id. at 506, 698 A.2d 1115 (emphasis added). In reaching that conclusion, Judge Sonner commented about the lack of probable cause (prior to the K-9 alert) to believe that Whitehead’s vehicle contained drugs.

There is nothing that [Trooper] Donovan observed that even remotely indicates an involvement in the transportation of drugs. He did not observe scales, bongs, glassine bags, or instruments which may have a law abiding use, but about which an educated police officer could testify can also be consistent with drug dealing and, therefore, could give ⁶⁶⁶ rise to a permissible inference that criminal narcotic activity is afoot. Law enforcement personnel do not have the discretion to select neutral human behavior as the justification for the formation of probable cause. Wayne R. La-Fave, Search and Seizure, A Treatise on the Fourth Amendment, Section 3.6(f) (2d ed.1987); People v. Reynolds, 94 Ill.2d 160 , 68 Ill.Dec. 122 , 445 N.E.2d 766 (1983); Donaldson v. State, 46 Md.App. 521, 534 , 420 A.2d 281 (1980).

Id. at 504-05 , 698 A.2d 1115 . Charity v. State was preceded by our Whitehead decision. The facts in Charity were somewhat similar to those in Whitehead and were outlined by the Court as follows: According to Sergeant Lewis’s testimony at the suppression hearing, he approached the second vehicle, advised the appellant as to why he had been stopped, and asked to see a driver’s license and registration card. After noticing that Sean White, the only passenger in the car, was not wearing a seat belt, Sergeant Lewis requested his identification as well.

Both the appellant and White complied. As he stood at the window, Sergeant Lewis noticed a large bundle of air fresheners hanging from the rear view mirror. A subsequent count revealed 72 such air fresheners. Sergeant Lewis also indicated at the suppression hearing that “there was little doubt” in his mind that there was “something criminal going on inside the vehicle.” His suspicion was based on the large number of air fresheners and on the fact that the appellant had a North Carolina driver’s license and White had a New York license.

Based on those observations, Sergeant Lewis asked the appellant to step out and to move to the rear of the vehicle, notwithstanding that a light rain was falling. He then began questioning the appellant as to where he was coming from and where he was going. Leaving the appellant standing in the rain, Sergeant Lewis then approached the passenger side of the vehicle and began asking White the same questions. After receiv ⁶⁶⁷ ing answers from White that were different from the answers given by the appellant, Sergeant Lewis returned to the rear of the vehicle where the appellant was standing.

Because it then began to “rain heavier” and because he wanted to have the appellant “seated in [his] cruiser,” Sergeant Lewis requested a “consensual patdown” of the appellant. The appellant ostensibly consented. In the course of the pat-down, Sergeant Lewis felt a bulge in the appellant’s front pants pocket. In response to the sergeant’s question regarding the contents of the pocket, the appellant reached into the pocket and pulled out a packet of gum and some money.

In the process of the appellant’s doing so, Sergeant Lewis saw “a one gram size packet” of what he “readily recognized to be marijuana” between the appellant’s ring finger and his middle finger. Sergeant Lewis then “plucked” the packet from the appellant’s fingers, held it in front of his face, and stated, “This authorizes me to conduct a full-blown search of your vehicle now.” 132 Md.App. at 602-04 , 753 A.2d 556 . Thereafter, Charity’s car was searched incident to the arrest for possession of marijuana. Id. at 604 , 753 A.2d 556 .

A large quantity of cocaine was found as a result of the search. Id. In Charity , we said: In determining whether a police officer has exceeded the temporal scope of a lawful traffic stop, the focus will not be on the length of time an average traffic shop should ordinarily take nor will it be exclusively on a determination, pursuant to Ferris, of whether a traffic stop was literally “completed” by the return of documents or the issuance of a citation. Even a very lengthy detention may be completely reasonable under certain circumstances.

Conversely, even a very brief detention may be unreasonable under other circumstances. There is no set formula for measuring in the abstract what should be the reasonable duration of a traffic stop. We must assess the reasonableness of each detention on a case-by-case basis and not by the running of the clock. ⁶⁶⁸ In both Snow v. State, [ 84 Md.App. 243 , 578 A.2d 816 (1990),] and Munafo v. State, [ 105 Md.App. 662 , 660 A.2d 1068 (1995) ], we held that an initially valid traffic stop could not serve as the justifying predicate for the narcotics-related investigation that followed in its immediate wake, notwithstanding the fact that in both cases “the total length of the stop was brief and did not exceed the normal duration for a traffic stop.” Munafo ... at 671 [ 660 A.2d 1068 ]. What might be a reasonable duration for most traffic stops might not be reasonable duration for a particular traffic stop on a particular occasion.

Reasonableness may depend on whether the purpose of the traffic stop is actually being pursued with some modicum of diligence. We repeat that in processing a traffic infraction the police are not to be monitored with a stop-watch. Neither, however, does Whren confer on them, for example, five minutes of “free time” to do whatever they wish in the service of some other investigative purpose. Id. at 617, 753 A.2d 556 .

The Charity Court looked to Ferris v. State, 355 Md. 356 , 735 A.2d 491 (1999), for guidance. Ferris , unlike Whitehead, did not involve a “Whren stop,” i.e., a stop ostensibly made to enforce the traffic laws but in reality a stop for another motive — such as to enforce the narcotics laws. Charity, 132 Md.App. at 610-11 , 753 A.2d 556 . Ferris was stopped simply because he was speeding.

Ferris, 355 Md. at 362 , 735 A.2d 491 . After completing a license and registration check, the police officer gave Ferris a traffic citation. Id. Immediately thereafter the officers asked Ferris to step out of his vehicle to “answer a couple of questions.” Id. at 363 , 735 A.2d 491 .

The request was made because (1) the trooper had seen Ferris and his passenger “acting nervous,” and (2) Ferris’s eyes were bloodshot yet no odor of alcohol was