Dashiell v. State

• Decision Date: 10 April 2003
• Docket Number: No. 32,32
• Citation: 821 A.2d 372,374 Md. 85
• Parties: Rashida C. DASHIELL v. STATE of Maryland.
• Court: Maryland Court of Appeals

821 A.2d 372

374 Md. 85

Rashida C. DASHIELL v. STATE of Maryland.

No. 32, Sept. Term 2002.

Court of Appeals of Maryland.

April 10, 2003.

Stacy W. McCormack, Assistant Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Rachel Marblestone Kamins. Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

CATHELL, J.

Rashida C. Dashiell, petitioner, seeks review of a judgment of the Maryland Court of Special Appeals affirming a trial judge's dismissal of petitioner's motion to suppress evidence as the fruit of an alleged illegal frisk. The suppression hearing was held on May 29, 2001, before the Honorable D. William Simpson of the Circuit Court for Wicomico County. Judge Simpson denied the motion to suppress, finding that the officers had the right to pat-down petitioner because they had the right to secure the premises during a search pursuant to a warrant. Judge Simpson stated:

"The Court believes that when the officers pursuant to a search warrant enter the premises, they do have the right to secure the people while they search the premises, and where they are entering pursuant to a search and seizure warrant on probable cause that drugs are being—that there is drug trafficking occurring within the premises to permit them to secure these individuals while the search pursuant to a warrant was being conducted without giving them the covenant right to pat down for weapons would be pure folly.

If you can secure them, I certainly think you can determine that they do have no weapons to injure those persons in the premises, so I am going to rule that the officers did have the right to pat down. Once they patted down, another officer determined that or talked to [petitioner] and she said it was the dope in her pocket and they could see the plastic bag sticking out of her pocket, I believe at that point they had probable cause to seize that property, and I am going to deny your motion to suppress." [Alteration added.]

Petitioner waived her right to a jury trial. On July 25, 2001, petitioner was tried and convicted in the Circuit Court for Wicomico County on several counts, including two counts of possession of cocaine with intent to distribute, possession of cocaine and possession of marijuana. Judge Simpson sentenced petitioner to five years of incarceration, with all but eighteen months suspended.

Petitioner filed an appeal to the Court of Special Appeals. On March 5, 2002, the Court of Special Appeals affirmed the trial court's rulings. Dashiell v. State, 143 Md. App. 134, 792 A.2d 1185 (2002). The Court of Special Appeals held that a Wicomico County Task Force's policy mandating an automatic pat-down of every person located within a premises named in a search warrant was not justified. The intermediate appellate court, however, further held that the totality of the facts in this case justified the pat-down, when it said: "[l]ooking objectively at the facts known to the police in the case before us, we hold that a reasonably prudent officer would be warranted in believing that his or her safety or that of others was in danger when executing a `no-knock' search warrant at Booth Street."¹ Id. at 149, 792 A.2d at 1193 (alteration added).

Petitioner then filed a timely Petition for Writ of Certiorari to this Court. Along with an answer to that petition, respondent, the State of Maryland, filed a Conditional Cross-Petition, to which petitioner replied. On June 20, 2002, this Court granted both petitions. Dashiell v. State, 369 Md. 570, 801 A.2d 1031 (2002). In her brief, petitioner presents one question for our review:

"Does a police officer have the authority to detain and `pat-down' every individual present in a home during the execution of a `no-knock' search warrant?"

Petitioner argues that the police violated her Fourth Amendment rights when they frisked her for weapons absent particularized reasonable articulable suspicion that she was, in fact, armed and/or dangerous.

Respondent presents this Court with two questions:

"1. Did the police have the authority to detain and frisk every individual present at the scene where a narcotics search warrant was being executed?

"2. Would the evidence in this case inevitably have been discovered pursuant to the search warrant, the validity of which was never challenged?"

We hold that the mere issuance of a `no-knock' warrant does not, per se, rise to the level of articulable suspicion needed for an officer to conduct a Terry frisk for weapons. But, we also hold that when specific information enumerating factors suggesting a possibility of weapons being present on the person or persons who might be in the premises and/or in the place to be searched is included within the affidavit to obtain a search warrant and the warrant issues without any limitations as to the officers' authority to frisk subjects for weapons, the police may frisk individuals found therein for weapons in order to ensure the safety of the officers. Where particularized and reliable information sufficient to cause a judge to issue a search warrant also states a reasonable belief that weapons may be located within the premises to be searched or on the person or persons anticipated to be present therein, the officers executing such a search have sufficient reasonable articulable suspicion to frisk persons inside that premises. As this was the case here, petitioner's motion to suppress was properly denied. As we do not find the frisk to be in violation of petitioner's Fourth Amendment rights, we need not directly resolve the question of inevitable discovery contained within respondent's Conditional Cross-Petition.

I. Facts

Petitioner's charges stem from a January 25, 2001 search of a private residence conducted pursuant to a search warrant. The Wicomico County Task Force (hereinafter, Task Force) conducted a four-month undercover investigation of Brewington Holton Bivens. On January 11, 2001, the Task Force applied for a search and seizure warrant to search Bivens and the residences located at "907, Apartment # 1, Booth Street" (hereinafter, Booth Street) and "1113, Apartment # A, Parsons Road" (hereinafter, Parsons Road), both residences in which the police alleged Bivens was concealing controlled dangerous substances (CDS).

The application for the search warrant included information obtained from several confidential informants and concerned citizens, as well as officers' observations during police surveillance of the residences and Bivens himself. The pertinent facts included that the Booth Street apartment was within the general area of an open air drug market and was being used as a stash house in Bivens' drug trafficking operations. This conclusion was supported by witness accounts, including police officer observations of heavy vehicle and pedestrian traffic with individuals only staying brief periods of time, which the Task Force attested were significant indicators of drug trafficking. In addition, confidential informants divulged that large quantities of controlled dangerous substances were seen at the Booth Street apartment and on Bivens' person. Facts asserted in the application indicated that Bivens personally engaged in drug transactions with many of the frequent visitors to Booth Street. The Task Force also knew that Bivens had been previously charged with drug-related and violent offenses and had been involved in a high-speed police chase after a routine traffic stop. A "concerned source of information," named "D" in the affidavit, reported, pursuant to "D's" own personal knowledge, Bivens' drug-related activities and that "D" had "seen several guns inside [Booth Street] and had observed Brewington Bivens with a handgun." (alteration added). Judge Donald C. Davis then issued the warrant finding probable cause that criminal activity was being conducted at the Booth Street house.

The police executed the Booth Street search warrant on January 25, 2001. Bivens was not present during the execution of the warrant; rather petitioner, petitioner's two children and Angela Bower were the only people located in the Booth Street residence at that time. The police entered the Booth Street residence at approximately 9:00 p.m. by ramming open the front door. After the entry team entered the apartment, Corporal Michael Kravecz, a member of the Task Force, testified that "everyone in the residence was handcuffed and secured and put on the ground while the team searched the residence for other subjects in the house. Once everyone was secured, they went back and then patted down all the individuals in the house for weapons."

After the adults in the residence were frisked, the member of the entry team who conducted the frisk of petitioner informed Corporal Kravecz that petitioner had a plastic bag, which the officer suspected to be crack cocaine, in her front pants pocket. The officer had not removed the plastic bag from petitioner's pocket. Corporal Kravecz testified that he approached petitioner and stated, "one of the State team's members stated that you had something on you," to which she replied, "yes, the dope." At this time, Corporal Kravecz observed a plastic bag hanging out of her right front pants pocket. He then removed the plastic bag and petitioner was placed under arrest.² During the subsequent search of petitioner incident to her arrest, additional controlled dangerous substances, including crack cocaine and marijuana, were found on her person. At that time, a simultaneous search of the residence was being conducted, in which the police recovered marijuana underneath a sofa cushion in the living room. Later, during her booking procedure, petitioner gave the Booth Street residence as her home address.

II. Discussion

A. Standard of Review

The standard of review of motions to suppress has recently been summarized by this Court in the...