Carter v. State

• Citation: 182 A.3d 236,236 Md.App. 456
• Decision Date: 02 April 2018
• Docket Number: No. 290, Sept. Term, 2017,290, Sept. Term, 2017
• Parties: Jason Nathaniel CARTER v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

236 Md.App. 456

182 A.3d 236

Jason Nathaniel CARTER

v.STATE of Maryland

No. 290, Sept. Term, 2017

Court of Special Appeals of Maryland.

April 2, 2018

Argued by: Peter F. Rose (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant

Argued by: Karinna M. Rossi (Brian E. Frosh, Atty. Gen., on the brief), Baltimore, MD, for Appellee

Panel: Graeff, Fader, James R. Eyler (Senior Judge, Specially Assigned), JJ.

Fader, J.A Montgomery County jury convicted the appellant, Jason Nathaniel Carter, of possession of crack cocaine and possession of 50 grams or more of crack cocaine,¹ but acquitted him of possession with intent to distribute crack cocaine. Mr. Carter challenges the circuit court's: (1) denial of his motion to suppress more than 70 grams of crack cocaine and more than three grams of cocaine that police seized from him during a traffic stop; and (2) refusal to instruct the jury that "intent to distribute" is an element of the offense of possession of 50 grams or more of crack cocaine.² We find no error in the circuit court's denial of the motion to suppress or in its jury instruction, and so affirm.

BACKGROUND

In a challenge to a ruling on a motion to suppress, we are limited to considering the facts presented at the motions hearing, Nathan v. State , 370 Md. 648, 659, 805 A.2d 1086 (2002), and we must view those facts in the light most favorable to the prevailing party, Belote v. State , 411 Md. 104, 120, 981 A.2d 1247 (2009). Our discussion of background facts adheres to both of these principles.

In the early morning hours of April 4, 2014, Montgomery County Patrol Officer Michael Mancuso observed a car being driven by Mr. Carter fail to make a complete stop at a stop sign while driving in a high-crime area known for drug activity.

Officer Mancuso followed the car, pacing its speed at approximately 48 miles per hour in a 40 miles-per-hour zone. At approximately 12:52 a.m., Officer Mancuso pulled Mr. Carter over and obtained his license and registration. Mr. Carter displayed signs of being extremely nervous.

Officer Mancuso returned to his car at 12:57 a.m. and promptly: (1) requested a K–9 unit to conduct a scan for narcotics; and (2) ran a records check, which revealed that Mr. Carter's license was valid and that he did not have any outstanding warrants. Officer Mancuso estimated that it took him approximately eight-to-ten minutes to perform the various license and records checks. At 1:00 a.m., after the records check was complete, Officer Mancuso opened the electronic system to write Mr. Carter warning citations for both the failure to stop and speeding violations.³ From that point, it "probably took about five to seven minutes" to write the citations. During that same time, Officer Mancuso also briefed another officer, Officer Gary Finch, who had arrived on the scene at approximately 1:02 a.m.

Officer Jason Buhl of the K–9 unit, along with Konner, his drug-sniffing dog, arrived on scene at 1:07 a.m. At that time, Officer Mancuso had not yet finished writing the citations. At approximately 1:09 a.m., after he had briefed Officer Buhl, Officer Mancuso ordered Mr. Carter out of his car and to stand behind the patrol car so that the canine scan could proceed. Within 15–20 seconds, Konner alerted to the presence of narcotics on the driver's seat of Mr. Carter's car.

After a search of the car yielded nothing illegal, Officer Michael Murphy conducted a pat-down search of Mr. Carter. After Officer Murphy noticed an unnatural bulge in the area of Mr. Carter's groin, Mr. Carter became combative. It took all four officers to place Mr. Carter in handcuffs. The search ultimately produced two plastic baggies containing more than 70 grams of crack cocaine and three grams of cocaine. The officers then placed Mr. Carter under arrest.

Mr. Carter moved to suppress the drugs. After a hearing at which Officers Mancuso and Buhl, along with Mr. Carter, testified, the Circuit Court for Montgomery County made findings of fact, including:

• Upon returning to his vehicle, Officer Mancuso "promptly" called for the K–9 unit and initiated the records checks (including license, warrant, and case search).

• Officer Buhl and Konner "arrived before Officer Mancuso had finished writing the tickets."

• Mr. Carter "was removed from his vehicle so the canine search could be conducted."

• The drug-sniffing dog "more or less immediately alerted."

• "[T]here was no delay, intentional or otherwise, by the stopping officer between the time he began questioning the driver at 12:51:57 and 1:00am."

• "[T]here was no delay by the stopping officer between 1:00am and 1:07:19am when the canine officer arrived."

• This is not a case where the officer engaged in delay and "dilly dallied waiting for the canine officer. That's not this case."

• "[T]here was no delay. This was ordinary course."

The court also concluded that the search was "incident to [Mr. Carter's] arrest," and so denied the motion to suppress.

Mr. Carter was tried before a Montgomery County jury on charges of possession of crack cocaine, possession with intent to distribute crack cocaine, and possession of 50 grams or more of crack cocaine. At the conclusion of a three-day jury trial, the trial court instructed the jury that to convict Mr. Carter of the crime of possession of 50 grams or more of crack cocaine, which the court referred to as "volume dealer," the State must prove beyond a reasonable doubt that Mr. Carter "possessed 50 grams of crack cocaine." The trial court rejected Mr. Carter's contention that the jury should also be instructed that "volume dealer" required the State to prove that Mr. Carter intended to distribute the crack cocaine. The jury acquitted Mr. Carter of possession with intent to distribute, but convicted him of both simple possession and possession of 50 grams or more of crack cocaine. The trial court merged the two convictions and sentenced Mr. Carter to the mandatory minimum sentence of five years' incarceration for possession of 50 grams or more of crack cocaine.

DISCUSSION

I. THE MOTIONS COURT DID NOT ERR IN DENYING MR. CARTER'S MOTION TO SUPPRESS .

Mr. Carter argues that the suppression court's ruling must be reversed for two reasons. First, he contends that Officer Mancuso lacked reasonable suspicion to authorize what was effectively a second stop to investigate potential drug activity. Mr. Carter concedes that Officer Mancuso had probable cause to detain him for the traffic offenses. But he contends that Officer Mancuso abandoned that traffic stop when he paused from writing Mr. Carter's citations to assist Officer Buhl with the canine search. Thus, Mr. Carter reasons, the traffic stop ended at that point and Officers Mancuso and Buhl needed reasonable suspicion of drug activity to proceed with the canine search. Second, Mr. Carter argues that Officer Mancuso's search of his person was not incident to arrest because Mr. Carter was not yet arrested, and there was no indication that he would be arrested, until after the drugs were found.

When reviewing a ruling on a motion to suppress evidence, we defer to the suppression court's findings of fact unless clearly erroneous. Holt v. State , 435 Md. 443, 457, 78 A.3d 415 (2013) ; Longshore v. State , 399 Md. 486, 498, 924 A.2d 1129 (2007). We only consider the facts presented at the motions hearing, Nathan , 370 Md. at 659, 805 A.2d 1086, and we view those facts in the light most favorable to the prevailing party, Belote , 411 Md. at 120, 981 A.2d 1247. "[W]e review the hearing judge's legal conclusions de novo , making our own independent constitutional evaluation as to whether the officer's encounter with the defendant was lawful." Sizer v. State , 456 Md. 350, 362, 174 A.3d 326 (2017). Each of these encounters is unique, and our review looks to the totality of the circumstances on the specific facts of the case before us. Id. at 363, 174 A.3d 326 ; Belote , 411 Md. at 120, 981 A.2d 1247.

A. The Original Traffic Stop Was Ongoing When the Canine Alert Occurred.

The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...." The Court of Appeals has generally interpreted Article 26 of the Maryland Declaration of Rights to provide the same protections as the Fourth Amendment. Byndloss v. State , 391 Md. 462, 465 n.1, 893 A.2d 1119 (2006).

The Fourth Amendment's protections extend to investigatory traffic stops such as that of Mr. Carter.

United States v. Sharpe , 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) ; Ferris v. State , 355 Md. 356, 369, 735 A.2d 491 (1999). In determining whether such stops violate an individual's Fourth Amendment rights, courts examine the objective reasonableness of the stop. Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Thus, an otherwise-valid traffic stop does not become unconstitutional just because the actual purpose of the law enforcement officer making the stop was to investigate potential drug crimes.

So-called Whren stops—valid but pretextual traffic stops undertaken for the primary purpose of investigating other illegal activity—though "a powerful law enforcement weapon," Charity v. State , 132 Md. App. 598, 601, 753 A.2d 556 (2000), are restricted in scope and execution.⁴ A Whren stop " 'must be temporary and last no longer than is necessary to effectuate the purpose of the stop.' " Ferris , 355 Md. at 369, 735 A.2d 491 (quoting Florida v. Royer , 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ). This Court has recognized, though, that officers may pursue investigations into both the traffic violation and another crime "simultaneously, with each pursuit necessarily slowing down the other to some modest extent." Charity , 132 Md. App. at 614, 753 A.2d 556. But investigation into the original traffic violation cannot "be conveniently or cynically forgotten...