Byndloss v. State
Decision Date | 05 May 2005 |
Docket Number | No. 711,711 |
Citation | 162 Md. App. 286,873 A.2d 1233 |
Parties | Orlando BYNDLOSS v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
Amy E. Brennan (Nancy S. Forster, Public Defender, on brief), for appellant.
Shannon E. Avery (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.
Panel DAVIS, EYLER, D. S., THEODORE G. BLOOM (retired, specially assigned), JJ.
Appellant, Orlando Byndloss, was charged in the Circuit Court for Prince George's County with importation of 28 or more grams of cocaine, possession of 448 or more grams of cocaine with intent to distribute, possession of cocaine with intent to distribute, conspiracy to distribute cocaine, and possession of cocaine. His motion to suppress was heard and denied (Krauser, J. presiding) on March 19, 2004. He was subsequently tried and convicted at a bench trial (Lamasney, J. presiding) and sentenced as follows: 15 years for count one — importation of cocaine; a concurrent 15 year sentence, the first five years without the possibility of parole, for count two — possession of 448 grams or more of cocaine with intent to distribute; count three — possession of cocaine with intent to distribute and count five — possession of cocaine, were merged with count two for purposes of sentencing. From these convictions and sentences, appellant appeals and presents the following question for our review:
Did the motions court err in denying appellant's motion to suppress evidence seized from a suitcase in the trunk of a car in which he was a passenger?
We answer in the negative. Accordingly, we shall affirm the judgment of the lower court.
Sergeant Clifford Hughes, a ten-year veteran of the Special Operations Section of the Interstate Criminal Enforcement Team of the Maryland State Police, and a former police officer in Virginia from 1992-1994, testified that the primary duties of the criminal enforcement team were traffic enforcement on Maryland interstate roads and interception of the bulk shipment of drugs, untaxed cigarettes, currency, illegal weapons, and contraband, as well as identifying potential interstate terrorists. Through "aggressive, proactive traffic enforcement," maintained the witness, the Team "look[ed] for violations, traffic violations." Sergeant Hughes elaborated:
We do what we call the complete traffic stop process. We identify the operator and/or passengers in the vehicle, we look for anything basically out of place, indicate if there is criminal activity, whether it be nervousness or any other things that you don't see in a normal traffic stop, and just follow through with it.
At approximately 10:58 a.m. on November 19, 2003, Sergeant Hughes observed a 1997 Green Chevrolet Malibu with Florida registration plates preceding Northbound on I-95 at Route 198 in Prince George's County. As Sergeant Hughes followed the green Malibu, he observed that the vehicle registration "tags and month were not visible at all" because of a plastic cover over them. After pulling the vehicle over1 because of this violation,2 he immediately notified the communications operator at the College Park barrack, at 10:58 a.m., who advised him that the information requested regarding the driver's license of appellant and the driver, Joan Malone, and vehicle registration, were not available, because the MILES and NCIC computer systems were down. The dispatcher was also unable to say when the systems would be up and running again.
To avoid being struck by vehicles on Interstate 95, Sergeant Hughes had approached the passenger side of the vehicle and signaled for appellant to roll down his window at 10:59 a.m. After advising appellant and Malone that the traffic stop was being videotaped, the officer had asked Malone for her driver's license and registration, explaining that she had been stopped because her license plate cover obstructed the view of her license tag. According to Sergeant Hughes, Malone's hands were shaking, her voice was "shaky," and "she seemed extremely nervous and she was very restless" as she handed him her license and registration. When asked where she was going and from where she was coming, Malone responded that she was coming from Florida on her way to New York City.
At 11:02 a.m., Sergeant Hughes returned to his vehicle with Malone's and appellant's driver's licenses and the car registration, but, because the information system was not in service, he began to write a warning ticket. Sergeant Hughes further testified that he told the other officer "I'm going to talk to them a little more, she is real nervous." A K-9 unit was also called at this juncture. Six minutes later, at 11:08 a.m., Sergeant Hughes again called the College Park barrack and was informed that the system was still not operational. Having been unable to check for outstanding warrants or other infractions, Sergeant Hughes did not give Malone the written warning because he had been unable to "run" her license and registration information.
Advised by the College Park barrack dispatcher that it was only that system that was down, Sergeant Hughes, at 11:09 a.m., contacted the Waterloo barrack dispatcher, but had to call back at 11:10 a.m. because of background noise during his initial call. After being assured that the Waterloo dispatcher would relay the results of the requested background check once he received the information, Sergeant Hughes advised Malone that he was waiting for the results of the license and warrant check and that she would be free to go as soon as they were received. Sergeant Hughes then asked Malone to step outside of the vehicle and again asked her where she was going and reminded her that she was free to leave once the computer system relayed the information he required. Sergeant Hughes testified:
She told me she was going to New Jersey, and she had previously told me she was going to New York. I asked her did she have a lot of luggage in the vehicle and she said no. She had previously told me she was going to stay a week, and I asked her how was she going to stay a week without a lot of luggage, and she stated she wasn't going to stay a week because she had to go back to work. Her stories were inconsistent with what she had previously stated to me and at that time, I also noticed that her eyes were watering and she appeared to be crying. She was jumpy. She couldn't keep still and she was holding herself.
The College Park dispatcher called Sergeant Hughes at 11:19 a.m. to advise that Trooper First Class Butler, assigned to the K-9 Unit and who had been summoned by Sergeant Hughes at 11:02 a.m., was unable to find his location. After again attempting to obtain results of the warrant check from the Waterloo barrack and having been told to "stand by," Sergeant Hughes, in a conversation which took place in his departmental vehicle after Malone voluntarily entered, asked whether there were
At 11:23 a.m., despite complaining to the communications officer at the Waterloo barrack that the background check was taking a long time, Sergeant Hughes was still unable to obtain the information requested, as the officer said he was "really busy." At 11:26 a.m., TFC Butler arrived and began the scan of the car. At 11:27 a.m., the communications operator at the Waterloo barrack called to inform that appellant had an extensive criminal background, but that no information was yet available as to Malone. "At the same time," testified Sergeant Hughes, "TFC Butler is running the dog around the vehicle, I observed the dog to the right-rear side of the vehicle, which I knew was a positive sit alert for the presence of narcotics."
Based on the dog's alert, the vehicle was searched from 11:30 a.m. until 11:40 a.m. Two kilos of suspected cocaine were found in a suitcase in the trunk of the car. The communications operator at the Waterloo barrack never called back with information about Malone. After the pair was arrested, Sergeant Hughes went to the College Park barrack, where he obtained the background information on Malone.
Upon consideration of the above testimony, the lower court issued the following ruling:
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Byndloss v. State, 54 Sept. Term, 2005.
...sentencing purposes. Petitioner appealed to the Court of Special Appeals and that court affirmed the conviction. Byndloss v. State, 162 Md. App. 286, 873 A.2d 1233 (2005). On June 21, 2005, petitioner filed a petition for writ of certiorari. On August 10, 2005, we granted certiorari. Byndlo......