Allen v. State W. Smith v. State

• Decision Date: 04 February 2011
• Docket Number: 2009.,1968,Nos. 1963,Sept. Term,s. 1963
• Citation: 13 A.3d 801,197 Md.App. 308
• Parties: Octavian ALLENv.STATE of Maryland.Drew W. Smithv.State of Maryland.
• Court: Court of Special Appeals of Maryland

197 Md.App. 308
13 A.3d 801

Octavian ALLEN
v.
STATE of Maryland.Drew W. Smith
v.
State of Maryland.

Nos. 1963

1968

Sept. Term

2009.

Court of Special Appeals of Maryland.

Feb. 4, 2011.

[13 A.3d 802]

Brian J. Fleming (Williams & Connolly, LLP, on the brief), Washington, D.C., for appellant.Edward J. Kelley (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for Appellee.Panel: WRIGHT, GRAEFF, ARRIE W. DAVIS, (Retired, Specially Assigned), JJ.GRAEFF, J.

[197 Md.App. 311] On October 2, 2009, in the Circuit Court for Baltimore City, Octavian Allen and Drew W. Smith, appellants, were convicted of distribution of cocaine pursuant to an agreed statement of facts. Both appellants were sentenced to six years imprisonment.

In this consolidated appeal, appellants present two questions for our review, which we quote:

1. Did the suppression court err in concluding that the warrantless searches of Mr. Allen and Mr. Smith were reasonable under the Fourth Amendment when the police took no steps to protect their personal privacy, their clothing was manipulated to expose private areas of their bodies, and the searches were conducted on a public street in a residential

[13 A.3d 803]

area in the presence of individuals other than the searching officers and in the absence of any exigency?

2. Did the suppression court err in concluding that the warrantless arrest of Mr. Smith was supported by probable cause?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND Suppression Hearing

On April 23, 2009, the court held a hearing on appellants' motion to suppress drugs found on their persons. Detective Willie E. Farrar, Jr., a Baltimore City Police Officer, testified as an “expert in the sale, identification, [use], and distribution” [197 Md.App. 312] of street-level drugs. On March 27, 2008, he was patrolling the 100 block of North Clinton Street, a “popular place to buy narcotics.” At approximately 8:00 p.m., he observed a group of males, including Mr. Allen and Mr. Smith, standing at the corner of Esther Place and Clinton Street. As cars passed by, the men shouted: “We got the fat 20's here.” Detective Farrar testified that, based on his training and experience, he understood “fat 20's” to be a term used to refer to $20 worth of cocaine. When a car would pull up, “the whole group would just bum rush the cars.”

A truck pulled up to the men. Detective Farrar observed Mr. Allen approach the truck and engage the driver in a brief conversation. Mr. Allen was accompanied by other men, including Mr. Smith, who Detective Farrar previously had arrested for drug distribution on the same block. The driver gave Mr. Allen money, and Mr. Allen then “removed small objects from his sleeve area and handed [them] to the driver.” Believing that the group was participating in narcotics sales, Detective Farrar called an arrest team to stop the truck and arrest the group of men.

Detective James Beal, one of the officers on the arrest team, testified that Detective Farrar issued a radio alert requesting assistance in arresting a group of males suspected of participating in a drug transaction. Although Detective Beal could not recall the details of Detective Farrar's description of the men, he said that Detective Farrar did give a description, and Mr. Allen matched that description. Detective Beal approached Mr. Allen, who was standing “alongside some parked cars near a garage on Esther Place,” and placed him under arrest. There were no residential houses on the block, only garages that were closed.

Detective Beal then conducted a search incident to arrest. He first searched Mr. Allen's pockets and pant legs, and then he checked for “slits in the waistband area of his pants,” but he did not find any narcotics. Detective Beal then pulled back Mr. Allen's pants and saw a plastic bag “protruding” from between his buttocks. While holding the waistband of Mr. [197 Md.App. 313] Allen's pants out, Officer Beal directed Mr. Allen to “spread his legs and squat.” A bag dropped from between Mr. Allen's buttocks to “his underwear area,” and Officer Beal “reached in and pulled it out.” The bag contained 28 orange ziploc bags filled with narcotics. Officer Beal testified that he did not touch Mr. Allen while recovering the narcotics, and the only people present during the search were six or seven police officers. Officer Beal stood “right behind” Mr. Allen when the search of Mr. Allen's pants was conducted, and he testified that “no one” else could have observed Mr. Allen's buttocks.

Detective Andrew Wiman, who conducted the search of Mr. Smith, similarly testified that he received a directive from Detective

[13 A.3d 804]

Farrar to assist in the arrest of a group of men. Detective Wiman approached Mr. Smith, and he asked if Mr. Smith had “anything illegal on him.” Mr. Smith responded that he had “some weed,” meaning marijuana. Detective Wiman recovered marijuana from Mr. Smith's coat pocket and arrested him.

In his search of Mr. Smith incident to arrest, Detective Wiman pulled back the waistband of Mr. Smith's pants and saw “a plastic baggy kind of coming up through ... his cheeks.” The bag was “kind of half concealed” in Mr. Smith's buttocks area. Detective Wiman then “reached down and pulled it out.” The bag contained 24 ziploc bags filled with narcotics.

Detective Wiman described the location in which the search took place, testifying that there were a series of storage garages on one half of the block, which was divided by a wide alley, and residential homes on the other side of the block. The search was conducted near the storage garages. Detective Wiman testified that there were “no civilians in the area,” and that no one, including the other officers present, could have observed Mr. Smith's buttocks.

After the State called its last witness, Mr. Allen testified on his own behalf. He stated that, as he walked down Esther Place between 8:00 p.m. and 8:30 p.m. on March 27, 2008, he was approached by the police and subsequently searched. His [197 Md.App. 314] description of the search differed from Detective Beal's testimony. He testified that Officer Beal unbuckled his belt and put a flashlight “down in the front part of [his] boxers.” Mr. Allen testified that he had hidden drugs between his buttocks, but he stated that they were located “closer to [his] penis area,” suggesting that the drugs would not have been visible from looking down his pants. When Officer Beal directed him to “drop and squat,” his pants and underpants were “down by his knees,” and his penis and buttocks were exposed. He testified that he was searched in front of the Royal Farms' parking lot, where he had been “hanging out,” and when he was searched, he was able to see customers entering and exiting the store.

Mr. Smith was the last witness. He denied that he had shouted “fat 20's.” He testified that he was walking down Esther Place toward Highland Avenue when “police cars swarmed in front of [him].” The police approached him, and Officer Wiman searched him. He stated that Detective Wiman “recovered some marijuana from out of [his] pocket” and then pulled his pants and underwear down to his knees, exposing his genital area. According to Mr. Smith, Detective Wiman bent him over and then recovered the drugs from between Mr. Smith's buttocks. Detective Wiman then pulled up Mr. Smith's pants, set Mr. Smith on the ground, and removed Mr. Smith's boots. Mr. Smith stated that three other individuals were being searched in the immediate vicinity.

In resolving the disputed testimony, the court found the testimony of the police officers to be credible, specifically finding as a fact that no one but the officers conducting the searches could see inside appellants' pants. It found that, with respect to each appellant, his “genitalia [was] not exposed, his anus [was not] exposed,” and the officer merely “reached in” appellant's pants with “no manipulation.” With respect to Mr. Smith's claim that the police lacked probable cause to arrest him, the court found that, at the very least, the police had reasonable suspicion of illegal drug activity to [197 Md.App. 315] support a Terry ¹ stop, and once Mr. Smith admitted that he had marijuana

[13 A.3d 805]

in his coat pocket, the police had probable cause to arrest him. The court denied appellants' motions to suppress.

Trial Proceedings

On October 2, 2009, appellants pled guilty pursuant to the following agreed upon statement of facts:

On March 27th, 2008, at approximately 8:00 p.m., officers were in covert [sic] observing the 100 block of North Clinton Street. Officers observed a group of at least eight males in the block that would attempt to flag down vehicles and yell that they had “fat 20's” as cars passed by, “fat 20's” being a street term for 20 dollars' worth of CDS. At approximately 8:20 p.m., officers observed a Chevy truck enter the block. The driver of the vehicle was later identified as Ray Collier. Several of the males flagged down Collier's truck. Octavian Allen approached the driver's side of the vehicle and engaged in a brief conversation. Collier then handed Allen U.S. currency. Allen then reached into his left sleeve and removed suspected CDS and handed it to Collier. Collier then left the area. Collier was stopped by officers, and upon the officers' approach, had swallowed the suspected CDS. The arrest team then approached the group of males. As the officers approached, Darien Johnson dropped two clear zips and four zips of cocaine on to the ground. Said cocaine was recovered and Johnson was arrested. Octavian Allen was also arrested and search incident to arrest of Octavian Allen was 28 orange zips of cocaine recovered from Allen's buttocks area. Officers asked Drew Smith if he had anything illegal and Smith advised that he only had some weed in his coat pocket, which officers at the time recovered one jug of marijuana. Smith was then arrested. Search incident to arrest of...