Belote v. State, 103, September Term, 2008.

CourtCourt of Special Appeals of Maryland
Citation981 A.2d 1247,411 Md. 104
Docket NumberNo. 103, September Term, 2008.,103, September Term, 2008.
PartiesAntonio Gonozalez BELOTE v. STATE of Maryland.
Decision Date13 October 2009

George E. Burns, Jr., Asst. Public Defender (Nancy S. Forster, Public Defender), on brief, for Petitioner.

Carrie J. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen.), on brief, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and ELDRIDGE JOHN C., (Retired, specially assigned), JJ.

BELL, C.J.

I. Introduction

The late Professor Charles Whitebread said it best: "The question of what constitutes an arrest is a difficult one." Charles H. Whitebread, Criminal Procedure: An Analysis of Constitutional Cases and Concepts § 3.02 at 61 (The Foundation Press, Inc. 1980). Indeed, "[o]n one end of the spectrum, it seems apparent that detention accompanied by handcuffing, drawn guns or words to the effect that one is under arrest qualifies as an `arrest' and thus requires probable cause. At the other end, a simple questioning on the street will often not rise to the level of an arrest." Id. This case gives substance to that cogent observation.

On the night of July 21, 2006,1 Salisbury Police Officer James D. Russell approached Antonio Gonozalez Belote, the petitioner, smelled marijuana, conducted a Terry frisk, and searched the petitioner's pockets. Officer Russell's search revealed that the petitioner possessed marijuana. Instead of taking the petitioner into custody and immediately transporting him to the police station, Officer Russell let the petitioner go. It was not until October 12, 2006, more than two months later, that the petitioner was taken into custody. This Court issued a Writ of Certiorari to the Court of Special Appeals, Belote v. State, 406 Md. 442, 959 A.2d 792 (2008), to consider whether, as the trial court found and the Court of Special Appeals affirmed, Officer Russell's search of the petitioner on the night of July 21, 2006 was incident to a custodial arrest.2

We shall hold, based on our interpretation of his objective conduct and apparent subjective intent, that Officer Russell never made a custodial arrest of the petitioner. Therefore, we also shall hold that the trial court erred in finding otherwise and, accordingly, that the marijuana seized from the petitioner's pockets should have been suppressed. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Longshore v. State, 399 Md. 486, 924 A.2d 1129 (2007); State v. Nieves, 383 Md. 573, 861 A.2d 62 (2004).

II. Facts/Procedural History

At approximately 9 p.m. on July 21, 2006, Officer James D. Russell, accompanied by Officer David Underwood and a representative from the State's Attorney's Office, was on bicycle patrol near Baker Street in Wicomico County, a part of a neighborhood that was known for open-air drug transactions and recently had been the site of a spate of shootings. Also present at that location, seated on a porch next to each other, and observed by Officers Russell and Underwood, were Kevin Lacato and Antonio Belote, the petitioner. Believing there was an outstanding warrant for Mr. Lacato, the officers approached him, but, as they did so, Officer Russell smelled marijuana emanating from the petitioner. Turning his focus to the petitioner, Officer Russell related what then occurred:

"[Officer Russell]: I asked Mr. Belote, if he had anything on him I needed to know about. He stated that he had nothing. As I got closer to him, the odor was extremely strong. I patted him [the petitioner] down for weapons. In doing so, I could see that he had, when he went from a seated position, you could see that he had a bulge in his pocket. He stood up. I could see that there was a bulge in the pocket and the odor of marijuana became even stronger when he stood. I removed the bag of marijuana from his pocket, containing six individually wrapped bags of marijuana.

"[Q]: Did you know this defendant from previous contact?

"[Officer Russell]: Yes, I have had several previous contacts with him. Based on those contacts, I know him to be a frequent person to be involved in CDS activity.

* * *

"[Q]: At what point, did you decide you were going to arrest the defendant?

"[Officer Russell]: At the conclusion after recovering the marijuana, he had no weapons on him. For the purposes that I was on bicycle patrol and not able to transport him back to the police department and the exile project that he had no weapons, he was cooperative with me. I seized the marijuana and completed an application for charges at a later date."

On cross-examination, Officer Russell testified, in relevant part, to the following:

"[Q]: Upon locating the marijuana in Mr. Belote's pocket, you would agree that's when you, in fact, placed him under arrest?

"[Officer Russell]: I never placed him [the petitioner] under arrest.

"[Q]: You never arrested him?

"[Officer Russell]: I completed an application of charges.

"[Q]: When, if you know?

"[Officer Russell]: I believe it was approximately a month or two months later. I couldn't type them up immediately because later than [sic] night I broke my hand, my right hand. I'm right-handed.

"[Q] So you would agree you never arrested him that evening?

"[Officer Russell]: No, I did not arrest him."

The petitioner was taken into custody, pursuant to an arrest warrant, on October 12, 2006, more than 2 months after his encounter with Officer Russell. The charge, Possession with the Intent to Distribute Marijuana, however, was based on the July detention and search. The petitioner filed, in the Circuit Court for Wicomico County, a Motion to Suppress the marijuana seized as a result of the July search, arguing both that Officer Russell lacked either a factual basis to justify the Terry3 frisk of his person or probable cause to arrest him. The motions court denied the motion. Although it also held that Officer Russell lacked a valid basis for conducting a Terry frisk of the petitioner, the court concluded that Officer Russell's search of the petitioner's pockets on the evening of July 21, 2006, was incident to a lawful arrest. The motions court reasoned that "he [Officer Russell] had probable cause for a search and arrest at the time he smelled the raw marijuana and consequently the fact that the arrest was not made until later" had no bearing on the validity of the search.

The petitioner proceeded to trial on a Not Guilty Agreed Statement of Facts.4 Not surprisingly, he was found guilty. He was sentenced to five years' imprisonment, with all but eighteen months suspended and placed on twenty-four months probation, upon his release from imprisonment.

The Court of Special Appeals, in an unreported opinion, affirmed the judgment of conviction rendered by the trial court. Before the intermediate appellate court, the petitioner raised two legal challenges to the motion court's denial of his Motion to Suppress. First, he argued that "the smell of marijuana and the presence of a bulge in his [the petitioner's] pocket" did not constitute probable cause and, thus, Officer Russell lacked probable cause to arrest the petitioner. He also argued that he was not "arrested" on the evening of July 21, 2006 and, consequently, the search that revealed the marijuana was not incident to a lawful custodial arrest. In support of the latter argument, the petitioner maintained that his "arrest" did not occur until approximately two months later, when he was taken into custody and brought to the police station under an arrest warrant.

The Court of Special Appeals agreed with the motion court's determination that Officer Russell had probable cause to arrest the petitioner after smelling marijuana. The intermediate appellate court concluded that Officer Russell's subsequent detention of the petitioner consummated the petitioner's arrest:

"While not formally taken to the police station at the time of his arrest, Belote was not free to leave. The standards established in Bouldin [v. State, 276 Md. 511, 350 A.2d 130 (1976)] indicate that an arrest has occurred if the suspect is physically detained, subject to the control of the officer, or consents to be arrested. Officer Russell completed two of the three possible ways to effectuate an arrest when he detained Belote by putting his hands on him and conducting a search of his body."[5] (Emphasis added and italics omitted).

III. Legal Analysis

"[A] search conducted without a warrant supported by probable cause is per se unreasonable under the Fourth Amendment, subject to only a few exceptions." Cherry v. State, 86 Md.App. 234, 240, 586 A.2d 70, 73 (1991) citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854, 858 (1973); Everhart v. State, 274 Md. 459, 474-75, 337 A.2d 100, 109 (1975). One of those exceptions is that of a search incident to a lawful custodial arrest. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427, 434 (1973); Chimel v. California, 395 U.S. 752, 759, 89 S.Ct. 2034, 2038, 23 L.Ed.2d 685, 692 (1969); McChan v. State, 238 Md. 149, 158, 207 A.2d 632, 638 (1965); Gross v. State, 235 Md. 429, 440, 201 A.2d 808, 814 (1964). There are two primary rationales that underlie the ability of the police to search an arrestee incident to a lawful custodial arrest: (1) to seize weapons from the arrestee that might be used to effect an escape or to harm law enforcement officers; and (2) to recover evidence that might be destroyed by the arrestee. Robinson, 414 U.S. at 234, 94 S.Ct. at 476, 38 L.Ed.2d at 439-40 (citing Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925)); Chimel, 395 U.S. at 764, 89 S.Ct. at 2040, 23 L.Ed.2d at 694 (1969) (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, 780 (1964)); Carter v. State, 367 Md. 447, 458-62, 788 A.2d 646, 652-54 (2002); St. Clair v. State, 1 Md.App. 605, 612, 232...

To continue reading

Request your trial
98 cases
  • Bailey v. State
    • United States
    • Court of Special Appeals of Maryland
    • January 14, 2010
    ...a reasonable, articulable suspicion of a threat to officer safety or by an exception to the warrant requirement. Belote v. State, 411 Md. 104, 112, 981 A.2d 1247, 1252 (2009); Wilson v. State, 409 Md. 415, 439, 975 A.2d 877, 892 (2009). "It is well established that the State has the burden ......
  • Stokeling v. State
    • United States
    • Court of Special Appeals of Maryland
    • December 30, 2009
    ...Arizona v. Gant, ___ U.S. ___, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009) (alterations in original); see also Belote v. State, 411 Md. 104, 981 A.2d 1247, 1252 (2009) (stating purpose of the exception is: "(1) to seize weapons from the arrestee that might be used to effect an escape or to......
  • Perez v. State Of Md.
    • United States
    • Court of Special Appeals of Maryland
    • July 1, 2010
    ...denial of a motion to suppress evidence, we look only to the evidence that was presented at the suppression hearing. Belote v. State, 411 Md. 104, 120, 981 A.2d 1247 (2009). Moreover, we review “the evidence in the light most favorable to the prevailing party and defer[ ] to the motions cou......
  • Sinclair v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 25, 2013
    ...used to harm the officers or escape, and (2) to recover evidence that might be destroyed by the arrestee.”) (citing Belote v. State, 411 Md. 104, 113, 981 A.2d 1247 (2009)). In Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Supreme Court explained that th......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT