Cuffey v. State

Decision Date23 November 2022
Docket Number1969-2021
PartiesFRANCISCO CUFFEY v. STATE OF MARYLAND
CourtCourt of Special Appeals of Maryland

Circuit Court for Baltimore County Case No C-03-CR-21-002711

Leahy Beachley, Sharer, J. Frederick (Senior Judge, Specially Assigned), JJ.

OPINION [*]

SHARER, J.

Appellant, Francisco Cuffey, was charged in the District Court of Maryland for Baltimore County with multiple counts of possession and possession with intent to distribute a controlled dangerous substance and one count each of driving on a suspended license, driving while under the influence of alcohol, driving while impaired by alcohol, and driving while impaired by drugs.

On Appellant's prayer for a jury trial, the case was moved to the circuit court. There, Appellant elected a bench trial. That court denied Appellant's motion to suppress and, based on the same evidence, found him guilty of two counts of possession of a controlled dangerous substance (cocaine and Oxycodone) and one count of driving while impaired by drugs. Appellant noted this timely appeal and asks this Court to address the following question:

Did the circuit court err in denying Appellant's motion to suppress evidence seized during a sexually invasive search?
For the following reasons, we shall affirm.
BACKGROUND

On the morning of February 25, 2021, Baltimore County Police Officer Kent responded to a call of a Chevrolet Malibu blocking a public alleyway in a residential neighborhood near Eastern Avenue.[1] Upon approaching the driver's side of the vehicle, Officer Kent observed Appellant asleep in the driver's seat. He also noticed that Appellant had a "baggie of CDS in his lap" in "plain view." Officer Kent explained that it was a "small, clear plastic baggie[,]" containing a "white rock substance" and that, based on his training, he knew it to be a controlled dangerous substance ("CDS"). He further testified, without objection, that his training indicated the substance was cocaine.

After speaking to Appellant and believing that he might be under the influence, Officer Kent stepped back from the Malibu and called for backup. He testified that at this point in the investigation he considered the case to either be a case of driving while under the influence or, due to his observation of a "decent amount of narcotics," a possible distribution case.

Once Officers Ernst and Cardano arrived, and after obtaining identifying information from Appellant, Officer Kent had Appellant exit the vehicle. The baggie of suspected narcotics was no longer in view. Moreover, after patting Appellant down, searching the vehicle, and looking into nearby fenced-in backyards, the police were unable to find the baggies. Believing at that point that Appellant may have ingested the suspected CDS, a medic was called to the scene to prevent Appellant from overdosing. Meanwhile, Appellant was asked to perform several field sobriety tests, a.k.a. "SFST." As even Appellant's trial counsel conceded, Appellant performed poorly on those tests. At that point, Appellant was placed under arrest.

Incident to that arrest, and as evident on the body-worn camera footage admitted at the suppression hearing (and included with the appellate record), Appellant was moved from his vehicle back to Officer Ernst's vehicle. At that point, Officer Ernst searched Appellant again, before placing him into his marked police vehicle. Appellant was wearing several layers of pants, including sweatpants, long "athletic like" thermals, and a pair of underwear. During the ensuing search, Officer Ernst felt a plastic baggie in Appellant's groin area. As Officer Ernst testified:

STATE: Okay. Court's indulgence. Did there come a time where the Defendant was ultimately placed under arrest?
OFFICER: Yes, at the conclusion of the SFST's conducted by Officer Cardano.
STATE: Okay and did you search the Defendant once he was placed under arrest?
OFFICER: Yes, I searched him again, before placing anyone in my police vehicle, I search them again, just to ensure and then during that search, in his groin area, I felt, and I could hear the crumble of a plastic bag.
STATE: Okay. Was the Defendant wearing multiple layers of clothing?
OFFICER: Yes.
STATE: How, how, once the Defendant was placed under arrest and you are searching him pursuant to putting him in your patrol vehicle.
OFFICER: Um hm.
STATE: How quickly do you hear or feel that crinkle that you just testified to?
OFFICER: So, when I had him, I believe we were like catty-corner in my back car door, so I had him turn around and at that point, it was a little bit easier to search him thoroughly. Once I brought my hand up into his groin area, I could feel that crunch.

Looking to the videos included with the record on appeal, the pertinent search referenced in this testimony was recorded on Officer Ernst's body-worn camera.

Throughout the search, Appellant stood near Officer Ernst's vehicle, partly concealed behind the open rear door located on the driver's side of the police vehicle.[2]

During the search, Officer Ernst, wearing blue latex gloves, lowered Appellant's outer pants, revealing a pair of long thermal underwear underneath. After searching Appellant's outer pants and patting down the thermals, Officer Ernst lowered the thermals slightly, revealing a third layer of garments, namely, a pair of gray underwear underneath the thermals. After approximately a minute and a half, Officer Ernst appeared to have found the missing baggie of CDS, and announced to another officer standing nearby that he was "pretty sure it was under his balls" and that it "feels like plastic." Officer Ernst then asked Appellant "Do I really have to go in there to get it?" to which Appellant replied "What do you mean?" and maintained that he was not concealing anything in his underwear.

Officer Ernst then asked Officer Kent, the first responder to the stop, for assistance. Officer Kent, wearing leather gloves, approached Appellant, reached down and almost immediately said he felt something underneath Appellant's underwear. Officer Kent testified that "[t]here was a pocket in the brief, groin area where the CDS that I had saw originally was located." Although not entirely clear, Officer Ernst's video body-worn camera recording shows Officer Kent bend over in front of Appellant, patting him down again, and then reaching in to Appellant's underwear to retrieve the packaged drugs.

Officer Kent maintained that Appellant's clothing was never "stripped" and that "[h]is genital region or anything was never exposed, no." Officer Kent further testified the drugs retrieved were indeed the same ones he saw in plain view on Appellant's lap at the beginning of the stop.

After the State rested, Appellant both moved for judgment of acquittal and argued his motion to suppress evidence. With respect to the motion to suppress, Appellant's counsel argued that he was detained for an unreasonable length of time during the stop and that the police did not have probable cause to perform a strip search. Specifically, defense counsel argued:

They have him unbutton his pants on a number of occasions, go into his drawers and on the last occasion, when they eventually did find the CDS, ... they actually pulled down his pants and went into the thermal underwear, which they described that he was wearing as a second layer to determine that he was secreting drugs in his groin area.

The court, after hearing argument from the State, denied Appellant's motion to suppress, finding in pertinent part:

So, the, the question, I guess, going beyond that here, in, in this case, is, is how do we get to the drug, now obviously, the drugs themselves, per the test for counts one and two, exist. And, and Mr., excuse me, why did I forget his name, Mr. Cuffey was certainly in possession of the drugs at the time.
So, the, the, the real question here is the, the length of the time that the, the, the police officers took to find those drugs here. I, what I, I, I don't think, given the nature of the situation we have here, that it, it was an inappropriate amount of time because we have, again, a factually confusing situation here.
I mean, I think it might have been a much, quite frankly, it might have been a different question if they had found them in the car without a warrantless search. Then you'd have the question of whether they saw them or didn't see them. I do think because it's an incarcerable offense and he was arrested, that a search incident to arrest would have proved, would, actually this would have actually come, eventually, under the inevitable discovery rule, but that's, the second police officer, who is new to the scene, who frisks him, is the one who finds the drugs on him.
I don't think the strip search aspects apply here and, again, that's kind of an inevitable thing that had he been back at the station, this was going to be found anyways. We don't, I don't, in many respects, I don't get to the issue of the plain view.
Now, it would seem to me, it might have been more reasonable for the officer in the plain view to say, hold your hands up, let me pull, I'm going to pull this out of here, as opposed to turning and leaving. And he indicated that he did so because he wanted to get backup. He wasn't sure, perhaps, this individual had a gun, he didn't know what might happen.
It might have been more prudent just to go ahead and grab the, the white bag while he had it in front of him. That's not what happened here. Police officers make difficult decisions every day in, in crisis situations and that's the decision he made.
DISCUSSION

Appellant contends the court erred because the search of his person incident to arrest was an excessive "sexually invasive search" in violation of his Fourth Amendment rights. The State disagrees,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT