Albert S., In re

• Decision Date: 01 September 1994
• Docket Number: No. 2079,2079
• Citation: 664 A.2d 476,106 Md.App. 376
• Parties: In re ALBERT S. ,
• Court: Court of Special Appeals of Maryland

Page 376

106 Md.App. 376

664 A.2d 476

In re ALBERT S.

No. 2079, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Sept. 8, 1995.

George E. Burns, Jr., Assistant Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Celia Anderson Davis, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and Andrew L. Sonner, State's Attorney for Montgomery County, Rockville, on the brief), for appellee.

Submitted before MOYLAN, BLOOM and DAVIS, JJ.

DAVIS, Judge.

This is an appeal from a judgment of the District Court for Montgomery County, sitting as a juvenile court, in which appellant Albert S. was found to be delinquent. Following an adjudicatory hearing, the court concluded that appellant committed four offenses: assault, resisting arrest, malicious destruction of property, and possession of alcohol by a minor. Appellant presents three questions for our review:

I. Did the trial court err in refusing to suppress the fruits of an illegal stop, illegal detention, illegal frisk and illegal arrest?

II. Did the trial court err in finding appellant guilty of assault and resisting arrest?

III. Did the trial court err in finding appellant guilty of malicious destruction of property?

FACTS

Officer Michael Price of the Montgomery County Police testified to the following facts. During his off-duty hours, Officer Price worked part-time in the security offices of Great Hope Homes, an enclosed community of rental townhomes. The community's property management company hires off-duty police officers because the complex is considered "one of the county's open air drug markets" and non-residents tend to congregate on the property. No trespassing signs are posted at the entrance to the complex. When security personnel observe someone who does not appear to be a resident, they are required to "[m]ake an inquiry about their whereabouts, you know, where they were headed, check it against the list of people we were provided with ... and basically provide our In the early morning hours of November 22, 1993, Officer Price was working security at the complex. Although not in uniform, he drove a marked police cruiser and carried his badge, his service revolver, and a police radio with open access to police channels. At approximately 12:30 a.m., the officer observed a car that he did not recognize attempting to leave the complex at a lawful rate of speed. The car was driven by Theresa Phillips. Appellant Albert S., who was seventeen years old at the time, rode in the passenger's seat.

                presence there."   Prior to the events at issue here, Officer Price had worked at the complex for three months and knew many of the residents
                

Officer Price stopped the car and asked Phillips for her driver's license. As Phillips looked through her purse, the officer saw Albert trying to conceal something under the front seat. Officer Price asked Albert what he was doing, and appellant responded in a "belligerent" manner. The officer walked to the passenger's side of the car and opened the door. Officer Price again asked Albert what he was hiding and Albert replied, "none of your fucking business, she's got her license on the other side." Officer Price then ordered Albert out of the car. After Albert complied with that request, the officer observed an open can of "Red Bull" malt liquor beer on the floor.

Officer Price suspected that Albert was under the age of majority and asked for his identification. When Albert refused, the officer told him to put his hands on the car. Officer Price then decided to conduct a pat-down search because Albert "had a coat on, and ... that's just something that I do. It's a safety issue for me." The officer felt two bulges in Albert's jacket, and asked Albert what they were. Albert replied, "you know what it is." Officer Price then reached into the pockets of Albert's jacket and removed two additional cans of beer.

Officer Price placed Albert under arrest and Albert resisted by locking his hands in an "isometric" position. After the officer placed a handcuff on one of Albert's wrists, Albert Officer J. Carr responded to the call for backup and helped Officer Price drag Albert to a cage car. Albert attempted to kick the officers but did not make contact. When asked to describe Albert's demeanor, Officer Carr stated that he "appeared to be extremely intoxicated and combative and uncooperative.... [H]e was, you know, basically out of control." While being transported to the police station, Albert repeatedly slammed his head against the door of the cage car.

made a "fake motion" as if he was going to hit the officer. In response, Officer Price struck Albert. While holding onto the handcuffs, Officer Price "grabbed" the police radio and called for help. Albert pushed up against the officer and the two men became entangled in the microphone cord. When Albert pulled away, the cord was stretched beyond its limits and the microphone "popped" off the cord.

A third officer, Corporal Edward Caldwell, was present when Albert was processed at the police station. Corporal Caldwell testified that Albert was handcuffed to a table, and that he repeatedly struck both wrists very forcefully against an iron bolt on the table. Albert seemed to be having mood swings, and would alternate between laughing and crying. All three officers noticed a strong odor of alcohol, and opined that Albert was intoxicated. A sobriety test was not performed.

Angela Talley, a resident of Great Hope Homes, testified on appellant's behalf. When asked about her relationship to Albert, Ms. Talley stated that she had known Albert since he was eight or nine years old and "you could say he's like my grandson." At the time of the incident, Albert was living with Ms. Talley in a townhome shared by her four children, her three grandchildren, and her boyfriend. When Ms. Talley arrived at the scene, Albert was in handcuffs and his feet apparently were tied. Police were dragging him across the street by his arms. Ms. Talley asked if she could speak with Albert, but Officer Price denied her request.

Following an adjudicatory hearing, the judge found that

                appellant committed the offenses detailed above. 1  After finding appellant to be delinquent, the judge placed appellant on probation and ordered him to perform four hundred hours of community service.  The judge also ordered that appellant refrain from using drugs and alcohol and that he participate in a drug/alcohol education program.  This appeal followed
                

LEGAL ANALYSIS

I

Appellant first contends that the trial court erred when it refused to suppress the fruits of an illegal stop, illegal detention, illegal frisk, and illegal arrest. During the adjudicatory hearing, appellant moved to suppress the physical evidence seized by Officer Price, including the open can of beer seized from the car and the two cans seized from appellant's jacket. Appellant also moved to suppress certain testimony by Officers Price, Carr, and Caldwell, each of whom testified that appellant appeared to be intoxicated. We conclude that the initial stop was unlawful, and that the evidence at issue must be suppressed as the fruits of that Fourth Amendment violation. Consequently, we need not consider whether Officer Price acted unlawfully when he ordered appellant out of the car and conducted a pat-down search. For reasons set forth in part II, infra, we also conclude that the arrest was unlawful.

As a threshold matter, we reject the State's assertion that appellant "had no standing to complain about either the stop of the automobile or the seizure from him." The Supreme Court's fruit-of-the-poisonous-tree doctrine bars the use of physical, tangible evidence "obtained either during or as a direct result of an unlawful invasion." Ott v. State, 325 Md. 206, 225, 600 A.2d 111 (1992), cert. denied, 506 U.S. 904, 113 S.Ct. 295, 121 L.Ed.2d 219 (1992) (quoting Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963)). Professors LaFave and Israel have noted that a passenger in a car

does have standing to object to police conduct which intrudes upon his Fourth Amendment protection against unreasonable seizure of his person. If either the stopping of the car or the passenger's removal from it are unreasonable in a Fourth Amendment sense, then surely the passenger has standing to object to those constitutional violations and to have suppressed any evidence found in the car which is their fruit.

1 WAYNE R. LAFAVE AND JERALD H. ISRAEL, 1 CRIMINAL PROCEDURE § 9.1(d), at 726 (1984). See, e.g., United States v. Durant, 730 F.2d 1180, 1182 (8th Cir.), cert. denied, 469 U.S. 843, 105 S.Ct. 149, 83 L.Ed.2d 87 (1984) (holding that a passenger in a vehicle may move to suppress evidence uncovered as a direct result of an unlawful stop).

In Ott, 325 Md. at 219-23, 600 A.2d 111, police officers arrested the petitioner in the mistaken belief that there was an outstanding warrant for his arrest, and the Court of Appeals held that the arrest was unlawful. During a search incident to that arrest, police recovered three bags of cocaine from the glove compartment of the car that Ott was driving. Id. at 209-11, 600 A.2d 111. Notwithstanding the fact that Ott did not own the vehicle, the Court held that Ott had standing to challenge the search. The Court explained that "but for petitioner's arrest, the police would have had neither the occasion nor, presumably, any cause to conduct a search of the car...." Id. at 224, 600 A.2d 111.

A similar analysis applies to the case at hand. Appellant was detained when Officer Price stopped the car in which he was riding. At the time of the stop, the officer merely suspected that the occupants of the car might be trespassing. The sole justification for the search of the car was appellant's alleged attempt to conceal something under the seat. Even if we assume, for the sake of argument, that Officer Price had the reasonable...