Britton v. State, 829

CourtCourt of Special Appeals of Maryland
Docket NumberNo. 829,829
Decision Date11 June 2019


No. 829


September Term, 2018
June 11, 2019

Circuit Court for Baltimore County
Case No.: 3-K-17-00587


Graeff, Beachley, Alpert, Paul E. (Senior Judge, Specially Assigned), JJ.

Opinion by Alpert, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

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Appellant, Maurice Eugene Britton, was indicted in the Circuit Court for Baltimore County, Maryland, and charged with: one count of illegal possession of a firearm, under Section 5-622 of the Criminal Law Article (Count 1); two counts of illegal possession of a regulated firearm under Section 5-133 (c) of the Public Safety Article (Counts 2, 4); two counts of illegal possession of a regulated firearm under Section 5-133 (b) of the Public Safety Article (Counts 3, 5); wearing, carrying and transporting a handgun on his person, under Section 4-203 of the Criminal Law Article (Count 6); wearing, carrying and transporting a handgun in a vehicle, under Section 4-203 of the Criminal Law Article (Count 7); and, illegal possession of ammunition, under Section 5-133.1 of the Public Safety Article (Count 8). After his motion to suppress was denied, appellant was convicted by a jury of illegal possession of a firearm and was sentenced to fifteen years' incarceration, the first five without possibility of parole. Appellant timely appealed and presents the following questions for our review:

1. Did the circuit court err in denying appellant's motion to suppress?

2. Did the trial court err in denying appellant's motion to reopen the suppression hearing?

3. Did appellant knowingly and intelligently waive his right to testify?

4. Did the trial court impose an illegal sentence?

For the following reasons, we shall vacate appellant's sentence and remand this case for resentencing, but, otherwise shall affirm.

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On January 24, 2017, at approximately 1:00 a.m., Sergeant Paul Borowski, a sixteen-year veteran of the Baltimore County Police Department, was conducting surveillance near the Howard Johnson Motel, located at 407 Reisterstown Road in Pikesville. This particular motel was known for "a lot of crime and prostitution and human trafficking, drug dealing" and "to package drugs" and was often rented by individuals who were "wanted" by the police. In fact, Sergeant Borowski testified that he had made more than 50 arrests at this motel.

As he was driving near the motel, Sergeant Borowski noticed a four-door sedan "sitting in the front of the building with its lights on." The sedan remained in the same location for several minutes. Asked whether he could see inside the vehicle, Sergeant Borowski replied that he could not because "the window tint on the vehicle was so dark you could not see if anyone was in the vehicle, um, how many people or if anyone at all was in the vehicle."

After approximately five minutes, the sedan drove away from the front of the motel, made a right turn out of the parking lot, and then went to the rear of the motel. After another short while, the vehicle drove back to the front of the building, and began "changing positions from, um, different parking spots." The vehicle moved around the front parking lot two or three times, again, into different parking spots. The vehicle then

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exited the front of the lot and returned to the area behind the motel. At that time, at approximately 1:21 a.m., Sergeant Borowski determined he would stop the vehicle. He also called for a K-9 team to respond to the scene because he was "suspicious of drug activity."

As Sergeant Borowski approached the vehicle on foot, he noticed that the windshield was cracked. He also reaffirmed that the window tint was "very, very dark" and that he could not "see anything inside the vehicle" including the driver. After the driver, identified as appellant, rolled down his window, Sergeant Borowski saw that he was alone and that no one else was inside the vehicle.

At around that same time, another officer, Officer Justin Haines, arrived on the scene to assist in the stop. Sergeant Borowski advised Officer Haines of his suspicions and reason for the stop. Sergeant Borowski then went to the driver's side window, while Officer Haines went to the passenger side window, and asked appellant to roll down the windows so he could see inside the vehicle. Appellant then lowered just the passenger rear window. According to Sergeant Borowski, appellant seemed "very nervous to me," and "his eyes were wide open" and that he "just had a stare."

After obtaining appellant's license and registration, Sergeant Borowski returned to his patrol vehicle to check the status of those documents, as well as whether there were any outstanding warrants for appellant. Sergeant Borowski explained that he could check certain law enforcement computerized indices, namely the National Crime Information Center [NCIC]; and the Maryland Interagency Law Enforcement System [MILES], on the computer inside his patrol car, but he had to contact Baltimore County Police to check for

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local warrants. The Baltimore County dispatcher advised Sergeant Borowski that there were two possible unserved warrants for appellant from Baltimore City.

On cross-examination, Sergeant Borowski agreed that he spoke with appellant near the car for approximately twelve (12) minutes. He also clarified that, prior to the stop, when appellant was parked in the front lot of the motel, he was parked diagonally over at least two or three parking spots. He agreed that appellant told him he was visiting his girlfriend who had a room at the motel. Sergeant Borowski also testified that he believed appellant was issued a repair order for the window tint violation.

Officer Haines, who had been with the police department since 2008, was called to the scene as a backup officer. When he arrived, he saw that Sergeant Borowski was speaking to appellant at the driver's side window. Officer Haines approached the passenger side of appellant's vehicle, where he remained while Sergeant Borowski went back to his vehicle to check on appellant's license and warrant status. During that time, appellant asked if he could exit the vehicle, and that request was denied. Appellant also asked to be able to smoke a cigarillo, and Officer Haines instructed him not to do so during the stop. Officer Haines also told appellant to "[p]ut your hands on the wheel." Appellant remained in the vehicle, prior to getting out for the K-9 scan, for approximately 11 to 12 minutes. He also testified that, after the K-9 scanned the vehicle and gave a positive alert, he searched the vehicle and recovered a loaded Lorcin L380 handgun in the center console.

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No narcotics were found during the course of the stop. Officer Haines confirmed that he was wearing a body camera and that it recorded portions of the stop.2

Corporal William Kelly, the K-9 unit officer, received a call to respond to the scene at 1:25 a.m., and arrived with his dog, Inferno, at approximately 1:37 a.m. Inferno alerted on the driver's side door. Based on this, Corporal Kelly opened the vehicle door to let Inferno inside to continue the scan. At that point, Officer Kelly observed approximately 15 air fresheners hanging from the rearview mirror, an air freshener aerosol spray can in the back seat, as well as containers of baking soda and scented bath soap which could be used as masking agents, according to the officer. Despite the presence of these items, Inferno gave another positive alert at the driver's seat. Corporal Kelly informed the officers that there was a positive alert and the officers then searched appellant's vehicle as indicated.

After the testimony concluded, the State argued this was a valid stop under Terry v. Ohio, 392 U.S. 1 (1968), "based on the officer's investigation, based on the high crime area, and I think more importantly, the constant movement of his vehicle back and forth in this parking lot." The court interjected and noted that another factor was the dark window

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tinting. The State continued that reasonable articulable suspicion was further enhanced by appellant's nervousness after the stop, as well as his behavior during the course of the stop. The State then maintained that "this is clearly a Terry type stop, from, I would say, from the very beginning." The State also contended that the duration of the stop was reasonable under the circumstances.

Appellant responded that this case should be considered as a traffic stop instead of a Terry stop, and that, under that analysis, the stop was unreasonable under the Fourth Amendment. Further, even if considered a valid Terry stop, the duration of the stop was unreasonable in that "[h]e was detained, well past any reasonable opportunity to give him a work order repair." More specifically, defense counsel argued:

But you have this young man who is -- especially a young black male who's surrounded by all of these police officers, um, late at night for a hunch and some suspicion.

It -- they detained him. They held him. He could -- was not free to leave. Um, more than enough time elapsed to get a ticket, because you have Sergeant Borowski who's standing there, who's not even writing a ticket. Who's not even doing anything.

Mr. Britton is out of the car. Um, they said -- they take him out of the car while waiting for the, um, K9. He says the K9 was on its way.

Officer Haines says that he didn't see the K9 unit, but they just take him out. And he's out of the car.

Officer Borowski he's not doing anything to further, um, writing a ticket, writing anything for a traffic stop.

Mr. Britton was seized, and he was seized for the -- an unusual length of time. And while 12 minutes might seem normal if you are doing something fun and good, um, and 12 minutes pass and you

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