Cherry v. State

Decision Date28 February 1991
Docket NumberNo. 584,584
Citation86 Md.App. 234,586 A.2d 70
PartiesJeanette CHERRY v. STATE of Maryland. Sept. Term 1990.
CourtCourt of Special Appeals of Maryland

Brian J. Murphy, Baltimore, for appellant.

Mary Ann Ince, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before GARRITY, ALPERT and ROSALYN B. BELL, JJ.

ALPERT, Judge.

Late in the evening of August 18, 1988, Jeanette Cherry, the appellant, arrived in Baltimore by train from New York City with 17 glassine bags of heroin, one of marijuana, and one of cocaine secreted on her person. After an encounter with certain members of the Baltimore City Police Department, which we shall describe later in some detail, the illicit drugs were discovered and confiscated. The discovery of the drugs led to the issuance of two grand jury indictments against the appellant: the first charged her with possession of heroin with intent to distribute, possession of marijuana, and possession of cocaine; the second charged her with the unlawful importation into the State of Maryland of "4 grams or more of Morphine or Opium or any derivative, salt, isomer, or salt of an isomer of Morphine or Opium."

Appellant moved to suppress the drugs from evidence on the ground that their seizure violated her Fourth Amendment right to be free from unreasonable searches and seizures. She moved also for dismissal of the second indictment containing the importation count on the ground that it was duplicitous. A hearing on the motions was held before the Honorable Roger Brown in the Circuit Court for Baltimore City. At the conclusion of the hearing, both motions were denied. Appellant was subsequently tried before Judge Brown on an agreed statement of facts and found guilty of all charges. She received concurrent prison sentences of fifteen years for possession of heroin with intent to distribute, one year for possession of marijuana, four years for possession of cocaine, and fifteen years for unlawful importation. All but six years of the sentences were suspended in favor of three years probation.

Appellant now appeals that judgment and challenges the trial judge's denial of her pre-trial motions. Specifically, she asserts that:

1. The trial court erred in finding that the State met its burden of proving consent to search; and that

2. The trial court erred in denying appellant's motion to dismiss the importation count for duplicity.

We disagree with both assertions, and shall affirm the judgment of the trial court.

I.

Because appellant's first challenge is to the trial judge's denial of her motion to suppress, our review is limited to those facts produced at the suppression hearing which are most favorable to the State as the prevailing party on the motion. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990); see also Simpler v. State, 318 Md. 311, 312, 568 A.2d 22 (1990); Trusty v. State, 308 Md. 658, 521 A.2d 749 (1987). Those facts are as follows.

Detectives Debra Evans and Glen Olivi, members of the police department's narcotics interdiction squad, received information from their superiors that three Amtrak passengers, one female and two black males, would be arriving in Baltimore about 11:00 p.m. carrying controlled dangerous substances. The detectives went to Penn Station to greet the arrival of Amtrak's Merchant Limited coming from New York City. When the train arrived at 10:28 p.m., a number of passengers disembarked, including two black males and the appellant, a black female. The trio walked together through the concourse and out the main door of the train station, turned right, and headed up Charles Street. Appellant was carrying a handbag and a plastic bag. Detectives Evans and Olivi, dressed in plainclothes followed the three passengers out of the train station and walked up to them on Charles Street. They did not tell the passengers to stop.

Detective Evans approached appellant and identified herself as a police officer verbally and by displaying her badge and identification card. She asked appellant if she would mind talking to her, and appellant replied "no," she didn't mind. At this point the two men accompanying appellant walked hurriedly away in separate directions. The detectives made no effort to stop them. Appellant stayed standing on the sidewalk next to Detective Evans; Detective Olivi stood about seven feet away. 1 Neither officer displayed a weapon or told appellant to stop or to stay with them.

Detective Evans asked appellant where she was coming from; appellant replied "New York." Detective Evans asked if she could see appellant's ticket; appellant replied she had left it on the train. Detective Evans asked appellant if she knew the two men she had been walking with; appellant replied that she did know them and that they were going to catch a taxi together. Detective Evans pointed out that they had just walked past a number of waiting taxicabs outside the train station and asked appellant why they had not taken one of those taxis. Appellant did not reply. Detective Olivi then told appellant that Baltimore City was experiencing a problem with people bringing narcotics into the city by train. At this point appellant became visibly nervous and began shaking and trembling. She said she had to leave to go to school at Coppin State College. Detective Evans stated that it was eleven o'clock at night and no school was in session at that time.

Detective Evans then asked appellant if the officers could search her bags. Appellant said "yes," and handed her bags to the officers. Nothing was found in the bags. Detective Evans gave appellant the bags back, and asked if she could search her. Appellant again said "yes." Detective Evans conducted a pat-down search and felt a plastic bag in appellant's groin area. She asked appellant what it was and appellant said she was menstruating. Detective Olivi asked appellant if she had any pads or tampons with her; appellant looked into her bags, but found none. Detective Evans asked appellant if she would mind going to the police interview room to continue the search. Appellant agreed to go to the interview room with the officers. The three walked back into the train station to the police interview room. Detective Evans walked in the middle of the group. Appellant was not touched or restrained in any way. Detective Evans testified that appellant was free to leave if she wanted to.

When the group entered the interview room they were joined by a third plainclothes detective, Christopher Rayburn. Detective Rayburn observed appellant to be "nervous" and "very upset," looking as if she was about to cry. Because of her demeanor, and based upon his prior experience with narcotics offenders, Detective Rayburn asked appellant if she had any drugs on her. Appellant replied "yes." Detective Evans then accompanied appellant into the bathroom, where appellant removed a plastic bag containing the aforementioned drugs from the crotch of her pants. She handed the plastic bag to Detective Evans and was placed under arrest.

Appellant neither testified at the hearing nor presented any evidence. Defense counsel argued that the search of appellant without a warrant was in violation of the Fourth Amendment and that it was not consented to by appellant. In his argument defense counsel repeatedly emphasized appellant's nervous appearance and the fact that she was not told by the detectives that she was free to leave and free to refuse permission for the search. The suppression hearing judge noted that there is no absolute requirement that citizens be informed of this right in these kinds of situations, and that under the circumstances testified to in this case the State had shown by a preponderance of the evidence that the consent was voluntary.

We are now asked to review the constitutionality of the search. In so doing, we extend great deference to the fact-finding of the suppression hearing judge with respect to determining the credibility of the witnesses and to weighing and determining first-level facts. Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356 (1990). But as to the ultimate, conclusionary fact of whether appellant's consent was truly voluntary, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of this case. See Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990); Perkins, 83 Md.App. at 346, 574 A.2d 356.

We begin by noting that a search conducted without a warrant supported by probable cause is per se unreasonable under the Fourth Amendment, subject to only a few exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). However, "one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent." Id. The State bears the burden to prove, by a preponderance of the evidence, that consent to search was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968); State v. Wilson, 279 Md. 189, 201, 367 A.2d 1223 (1976). Consent that is coerced by threats or force, or granted only in submission to a claim of lawful authority, is not voluntary. Doering v. State, 313 Md. 384, 402, 545 A.2d 1281 (1988). Moreover, coercion may be either explicit or implied, and in reviewing instances of alleged consent courts must take into account subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents. Bustamonte, 412 U.S. at 229, 93 S.Ct. at 2048. The State is not required to prove, however, that the person who allegedly consented knew or was warned that he or she had a right to refuse consent; rather voluntariness is a question of fact to be determined from the totality of the circumstances. Bustamonte, supra; Gamble v. State, 318...

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