Cox v. State

• Decision Date: 06 April 2005
• Docket Number: No. 0191,0191
• Citation: 161 Md. App. 654,871 A.2d 647
• Parties: David COX v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

871 A.2d 647

161 Md. App. 654

David COX v. STATE of Maryland.

No. 0191, September Term, 2003.

Court of Special Appeals of Maryland.

April 6, 2005.

Allison E. Pierce (Stephen E. Harris, Public Defender, on brief), for appellant.

Shannon E. Avery (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel HOLLANDER, KRAUSER, JAMES S. GETTY (Retired, Specially Assigned) JJ.

HOLLANDER, J.

David Cox, appellant, proceeded to trial before the Circuit Court for Baltimore City (Prevas, J.), sitting without a jury, and was convicted of possession with intent to distribute heroin and possession of heroin. After merging the two offenses, the court sentenced appellant to four years' incarceration for the felony drug offense.

On appeal, Cox presents one question for our review:

Did the trial court err in denying appellant's motion to suppress?

For the reasons that follow, we shall affirm.

FACTUAL BACKGROUND¹

The Suppression Hearing

On October 2, 2001, Baltimore City Police Officer Maxwell Anderson was in uniform and on patrol in an unmarked police vehicle, accompanied by Officer Chris Tims. As a member of the City's police force for more than fifteen years, Anderson was received as an expert in narcotics investigation.

Anderson testified that, late in the morning on October 2, 2001, he saw appellant standing with other individuals on the corner of Federal and Wolfe streets in Baltimore City, an area "known for heroin sales." Anderson spoke to Cox "in reference to being on that corner, why are you there, you have to go, that type of thing."

About forty minutes later, at approximately noon, Officer Anderson was driving "in the area of Federal and Wolfe," with Officer Tims as a passenger. As they were proceeding eastbound in the 1900 block of Federal Street, Anderson saw appellant "riding a BMX styled bicycle," heading eastbound on the same street. Appellant "glanced over his shoulder" at the officers and "appeared nervous[.]" Then, appellant "sped up on the bike," turned south onto Chapel Street,² and headed west onto Oliver Street. On Oliver Street, appellant "slowed up" and "kept glancing over his shoulder" at the officers. From Oliver Street, Cox turned north onto Wolfe Street. By that point, Cox had made three right turns, and appeared to be making a "square."

When appellant turned onto Chapel Street and then onto Oliver Street, Officer Anderson lost sight of him briefly. The officer explained: "When I say lost sight, I'm talking about momentarily. Like a second. He turned the corner, then I'm around the corner. I could actually still see him at that point."

Anderson noted that Wolfe Street is a one-way street in the southbound direction, and appellant "was riding against traffic on Wolfe Street ... cars were coming southbound." Anderson considered "highly suspicious" appellant's conduct of riding the wrong way on Wolfe Street. In an effort to follow Cox, Anderson turned onto Wolfe Street, driving "the wrong way on a one-way street."

When Cox was "half way up the block" on Wolfe Street, he "cut" between two parked vehicles, made a "U-turn," and went onto the sidewalk. According to Officer Anderson, while appellant made the U-turn, he (Cox) took his right hand off the handle bars of his bicycle and reached into his right front pocket. As appellant made this maneuver "in the middle of a turn," he "lost his balance" and had to stop his bicycle by putting his foot down "momentarily."

Anderson pulled up to the space between the parked cars, through which appellant had just ridden his bicycle. Anderson estimated that he was seven yards from appellant at that point.

While appellant was stopped, Anderson saw appellant remove from his front pocket a clear plastic bag that contained "numerous small gel caps." Officer Anderson recalled: "They were clear, containing a white powder I knew to be, based upon my training, to be heroin. Suspected heroin, at least." Anderson also testified: "When [appellant] stopped, reached into his pocket and pulled out what I could see to be drugs, at that point he was told to stop." However, Anderson maintained that he had not asserted his authority as a police officer prior to that point.

Officer Anderson also stated that, at the "moment" that appellant was removing the drugs from his pocket, Officer Tims "was getting out of the car and was going right towards [appellant]." Officer Tims then "grabbed a hold" of appellant and "seized him along with the bag." Tims "subsequently handcuffed" appellant and placed him "under arrest."

The officers recovered the plastic bag that appellant had removed from his pocket; it contained 24 gel caps. Officer Anderson described that bag as being knotted at the top and about an inch and a half in size, which could fit in appellant's hand.

Appellant was also searched incident to his arrest. During the search, the officers recovered another plastic bag containing "25 small clear gel caps with white powder suspected to be heroin similar to the ones in the other bag,"³ and $790 in U.S. currency. Officer Anderson opined that the heroin was "for street level distribution." The officer added that, while being searched, appellant stated: "[I]t's only 50 pills. So, if I get you a gun, what can be done?"

Officer Anderson denied that he called out, "David, come here." Moreover, he maintained that he did not instruct appellant to stop until after he saw appellant remove the drugs from his pocket. Officer Anderson agreed, however, that the Statement of Charges, which he wrote, stated: "Police Officer Tims asked Mr. Cox to stop so we could talk to him. Instead, Mr. Cox tried to make an abrupt U-turn on the bicycle at the same time trying to discard a plastic bag."

Officer Tims testified that, while the officers were following appellant, they lost sight of him for "[n]ot more than a second or two" as he turned each corner. According to Officer Tims, appellant "kept looking back over his shoulder, peddling fast, looking over his shoulder peddling faster."

According to Officer Tims, he was still in the police car, about ten feet from appellant, when he told Cox to stop. He directed appellant to stop when he (Cox) "attempted to do a u-turn to pull the bike up on the sidewalk and was attempting to discard the drugs." Tims exited the police car when he saw appellant "pulling drugs out of his pocket." Tims explained: "I could see that they were drugs and I took him to the ground."

According to Officer Tims, appellant committed a "whole multitude" of traffic violations, including failure to signal and riding the wrong way on a one-way street. Therefore, the officer wanted to conduct a field interview of appellant and issue a traffic citation. The following exchange is relevant:

COURT: All right, Officer Tims, on the occasion that gave rise to this complaint number on October 2, 2001, about noon in the street, just in front of Oliver, did you ever give any command, either verbally or non-verbally — when I say you, I mean you and/or Anderson — to the defendant before you did the instructions?

[TIMS]: I believe I said could I speak to you a second.

COURT: What was your basis for saying that?

[TIMS]: Just when he appeared to be fleeing from us.

COURT: What was it about fleeing that caused you to assert your authority as a policeman?

[TIMS]: Just the area. I know that's in a high drug area. When people flee from you, there is usually a reason for it. I believe the court has upheld that people fleeing in a high drug traffic area is probable cause for a field interview. And at that time, I believe I was going to conduct a field interview when he saw us and issue a traffic violation for traveling the wrong way on a one-way street.

COURT: Had the traffic violation already occurred at the time you gave the command?

[TIMS]: Yes, sir....

(Emphasis added).

In addition, Officer Tims said: "[I]t wasn't until after he committed the traffic violation, traveling the wrong way on a one-way street, that we went behind him." Notably, Tims stated: "Had [appellant] not committed any traffic violations or didn't try to flee from us, we might have driven right on by him."

Officer Tims claimed that, in his twelve-year career, he had ticketed bicyclists "[t]hree or four" times for traveling the wrong way on a one-way street. He acknowledged, however, that he never issued a traffic citation to Cox. Tims explained that "the drug offense supersedes the traffic violation so I believed there was no need for [the citation]." He added: "I could have gave him a warning. It is the officer's discretion on traffic cases."

Appellant testified in his own defense. He stated that, on the date in question, he was stopped by Officers Maxwell and Tims while he was on foot in the 1900 block of East Lanvale Street. The officers checked his identification, asked why he was in the area, and told him "to go home." Appellant also stated that he consented to the officers' search of him, and claimed he had no drugs in his possession at that time.

Approximately forty-five minutes later, while appellant was riding his bicycle on Federal Street, he again saw the officers. When appellant turned onto Chappel Street, he noticed that the officers were "directly behind" him. Appellant turned right from Chapel Street onto Oliver Street and, from Oliver Street, appellant then turned right onto Wolfe Street, where he rode his bicycle on the sidewalk. Appellant denied riding his bike the wrong way on a one-way street. Appellant added that he did not realize the officers were following him until he made his third turn. He claimed that he only glanced over his shoulder once, and he denied speeding up at any point.

Further, Cox testified that, as he rode on the sidewalk, Officer Tims directed him to stop, stating: "David, stop." Appellant continued to ride his bike, however, so Officer Tims got out of the vehicle, "pushed" him off of his bicycle, "grabbed" him, and "searched" him. Appellant admitted that he had...