Cross v. State

• Decision Date: 27 October 2005
• Docket Number: No. 720,720
• Citation: 884 A.2d 1236,165 Md. App. 164
• Parties: Elohim CROSS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

884 A.2d 1236

165 Md. App. 164

Elohim CROSS v. STATE of Maryland.

No. 720, September Term, 2004.

Court of Special Appeals of Maryland.

October 27, 2005.

Laurel A. Albin (Nancy S. Forster, Public Defender, on the brief), Baltimore, for Appellant.

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

Panel: SALMON, BARBERA and SHARER, JJ.

SALMON, Judge.

Elohim Cross was charged in Prince George's County with having committed the following crimes: (1) possession with intent to distribute cocaine, (2) possession of cocaine, (3) possession with intent to distribute heroin, (4) possession of heroin, (5) possession of a firearm during and in relation to a drug trafficking crime, (6) carrying a handgun on or about his person, (7) possession of drug paraphernalia, and (8) second-degree assault.

Prior to standing trial on the above charges, Cross filed a motion to suppress evidence that was seized from his car. He contended that the warrantless search of his vehicle violated his Fourth Amendment rights. A motions judge denied Cross's motion to suppress. On August 18 and 19, 2003, Cross stood trial before a jury in the Circuit Court for Prince George's County. Because the jury could not reach a verdict, the court declared a mistrial.

A second trial was held on October 16 and 17, 2003. The jury convicted Cross of second-degree assault but was unable to reach a verdict as to any of the remaining charges. The trial judge declared a mistrial as to all counts, except for the one for which Cross was convicted.

Cross was sentenced for the second-degree assault¹ conviction to a term of incarceration of three years, with all suspended except for eighteen months. This appeal followed.

QUESTION PRESENTED

Did the motions court err in denying appellant's motion to suppress the evidence seized from his vehicle?

I.

In Faulkner v. State, 156 Md.App. 615, 640, 847 A.2d 1216, cert. denied, 382 Md. 685, 856 A.2d 721 (2004), we said:

In [reviewing] the circuit court's denial of a motion to suppress, we are limited to the record of the suppression hearing. We consider the evidence in the light most favorable to the prevailing party, in this case, the State. We accept the suppression court's first-level factual findings unless clearly erroneous, and give due regard to the court's opportunity to assess the credibility of the witnesses. We make our own constitutional appraisal as to whether an action taken was proper, by reviewing the law and applying it to the facts of the case. When the material facts are undisputed, "we are not limited to the ground of decision relied upon by the circuit court. We may base our independent constitutional review on any ground plainly appearing from the record."

(Citations omitted.) (Emphasis added.) See also Wengert v. State, 364 Md. 76, 84, 771 A.2d 389 (2001)

; McMillian v. State, 325 Md. 272, 281-82, 600 A.2d 430 (1992).

II. EVIDENCE INTRODUCED AT THE SUPPRESSING HEARING

The motions judge considered the testimony of four police officers. Appellant presented no evidence.

A. Testimony of Officer Anthony Knox

On September 21, 2002, Officer Anthony Knox of the Edmonston Police Department was a patron at a 7-Eleven store in Bladensburg, Maryland, which was out of his jurisdiction. While standing in line, a stranger entered the 7-Eleven and asked the officer if he could speak with him. Officer Knox told the man to wait until he had paid for his purchases. The man left the store but returned shortly thereafter and told Officer Knox that it was necessary for him to speak with him immediately because there was an emergency. Officer Knox exited the 7-Eleven along with the stranger, who was "shaking real bad," "sweating extremely," and appeared to be "extremely nervous." The man advised Officer Knox that he had "just seen a high-speed car chase" and that one of the occupants of a vehicle in that chase "had displayed a handgun out the window." The informant said the car involved in the chase was in the 7-Eleven parking lot and pointed it out to Officer Knox. Officer Knox inquired as to where the driver of the vehicle was. In the officer's words, the informant then

stopped talking and just completely looked away from me. He started looking out to his left and turned his back on me. I asked him several more times. He looked over the shoulder and saw a gentleman talking on the phone and pointed to a gentleman talking on the [pay] telephone, that he had ... the handgun.

The person whom the informant pointed out was appellant.

Officer Knox then asked the informant to "go inside the 7-Eleven or sit in his car for his own safety" so that he could notify the Bladensburg Police Department by radio that "they had an armed subject in the area."

Officer Knox called the Bladensburg Police Department and talked with Officers Russell Chick, Shawn Morder, and Corporal Charles Cowling. He told the Bladensburg officers that "a citizen had ... approached me saying that there was a vehicle in the parking lot where there was a handgun either in the car or on the person. The citizen couldn't advise me if he had it on him or if it was in the car."

Officer Knox did not ask the informant to provide identification, nor did he later learn his identity. Moreover, he did not ask the informant if he knew appellant personally. Additionally, no inquiries were made as to how many individuals were riding in the two cars that were involved in the high-speed chase.

Officer Knox did not participate in the search of appellant's vehicle, and he did not approach appellant personally. Instead, he observed the actions of the Bladensburg police officers whom he had summonsed to the 7-Eleven parking lot.²

B. Testimony of Officer Russell Chick

Officer Chick testified that he received a call from Officer Knox "advising that he was flagged down by a citizen, or advised by a citizen that there was an armed person at the payphone attached to the front of the building of 4199 Kenilworth Avenue, the 7-Eleven." Officer Chick responded to the 7-Eleven and "called for additional cars to block off ... all entrances of the 7-Eleven." Next, he and two other Bladensburg officers "sat and watched" appellant on the payphone. The observation went on for "[s]everal minutes, maybe as much as five minutes," until it appeared to Officer Chick that appellant "was stalling, waiting for the police to leave the area."

Officer Chick then got out of his marked police cruiser and waited, out of sight, behind an electrical transformer. The other officers drove off to other locations. "Within seconds of all the officers leaving the area in their marked police cars, [appellant] walked from the payphone towards" a gray Chevrolet Corsica, which was the car that had been pointed out to Officer Knox by the "citizen." Officer Chick waited until appellant was "preparing to get into the car," and then ordered him to "put his hands on top of his head and walk away from" the vehicle. Appellant obeyed the order. Appellant was then "placed in handcuffs for officer safety" because of the nature of the information received from the informant.

Officer Chick performed what he described as "a Terry stop pat-down" while appellant was handcuffed, in order to ascertain if he had a weapon on his person. No weapons were found. Officer Chick then explained to the other officers, in appellant's presence, that appellant "was being detained while we investigated the report of a firearm." The two other Bladensburg officers searched the passenger compartment of appellant's vehicle, while Officer Chick obtained background information from appellant and spoke to him "about what was being done." Officer Morder next told Officer Chick "that he had seen a firearm in the glove box of" appellant's car, but that the glove box "was locked and he was unable to open it completely."³ A key was obtained from appellant, and the glove box was unlocked. A handgun, together with a bag containing a large quantity of narcotics, was recovered from the glove box.

On cross-examination, Officer Chick admitted that he had never spoken to the "citizen" who told Officer Knox about the presence of a handgun either before or after the search.

C. Testimony of Officer Shawn Morder

Officer Morder testified that upon arrival at the 7-Eleven he spoke to Officer Knox, who said

that a citizen came up to him and advised that he witnessed a car chase, I guess coming out of Washington, D. C., northbound Kenilworth Avenue, and the citizen advised Officer Knox that the individual who had the gun was parked in the 7-Eleven parking lot. Officer Knox pointed the car out to us and also pointed out the individual who was supposed to be driving the car.

After Officer Morder and the other officers observed appellant on the payphone for "a couple of minutes," Officer Morder realized that appellant was watching the officers. For that reason, he told the other officers, via radio, to leave the area. He too left the area but was able to still observe appellant while the latter was on the payphone. After a "couple of minutes," Officer Morder saw appellant hang up the phone and walk, at a very fast pace, toward his car. Once appellant "got to the car," Officer Morder told the other officers to "move in on the individual before he could get into the car." Appellant was then "detained, placed in handcuffs," and the interior of his vehicle was searched. In Officer Morder's words, the glove box "was partially opened," which allowed him to pull the glove compartment "open a little bit," so he could see "that there was a handgun laying inside the glove box." Corporal Cowling was advised by Officer Morder of what he had seen. Corporal Cowling obtained a key from appellant and opened the glove box. Inside the glove box, the officer recovered a handgun and a bag containing drugs.

On cross-examination, Officer Morder admitted that he had no information that appellant had pointed the handgun at anyone...