Dedo v. State

• Citation: 660 A.2d 959,105 Md.App. 438
• Decision Date: 01 September 1994
• Docket Number: No. 1512,1512
• Parties: Robert DEDO v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 438

105 Md.App. 438

660 A.2d 959

Robert DEDO v. STATE of Maryland.

No. 1512, Sept. Term, 1994.

Court of Special Appeals of Maryland.

June 29, 1995.

John L. Kopolow, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Tarra DeShields-Minnis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Davis R. Ruark, State's Atty. for Wicomico County, Salisbury, on the brief), for appellee.

Argued before FISCHER, HARRELL and MURPHY, JJ.

HARRELL, Judge.

On 15 June 1994, appellant, Robert Dedo, was convicted, on an agreed statement of facts, by the Circuit Court for Wicomico County (Simpson, J.) of one count of felonious possession of lysergic acid diethylamide (LSD). Appellant was sentenced to two years' imprisonment. ¹ A timely appeal was noted to this Court.

ISSUES

I. Did the [suppression hearing] judge err in refusing to suppress evidence seized in the course of an illegal search of appellant's truck?

II. Did the trial judge err in accepting appellant's waiver of his right to a jury trial without a showing on the record that the waiver was made knowingly and voluntarily?

III. Is appellant's sentence illegal because the trial court refused to award credit for some time spent on home detention?

IV. Must the docket entries and the commitment record be corrected to reflect the two-year sentence the lower court imposed?

FACTS

On 15 August 1993, Corporal James Wilson of the Maryland Natural Resources Police was assigned to "cover" the annual turtle race at Cedar Hill Park in Wicomico County. Corporal Wilson testified that, at approximately 12:00 p.m., he was approached by an informant who advised him that appellant was "involved in distributing LSD on the park grounds." The informant explained that appellant was "wearing a flowered shirt, multi-colored, brown khaki shorts, and that the LSD that he was, in fact, distributing was in his shirt pocket." Corporal Wilson relayed this information to Wicomico County Sheriff's Deputies Mike Nicholas and Claude Holland, who were stationed near the park gate. He also described for them a truck appellant had been observed driving (a blue Chevrolet S-10 pickup with distinctive rims). ²

Deputy Holland testified that, several minutes after talking to Corporal Wilson, he observed appellant's truck near the entrance to the park. Deputy Holland explained that as he and Sergeant Nicholas ³ approached the vehicle there was "a lot of movement in the inside." According to Deputy Holland, when he conveyed to appellant the information he had received from Corporal Wilson, appellant began "acting very Appellant was charged with one count of felonious possession of LSD, one count of possession of LSD, and one count of possession of drug paraphernalia. On 22 October 1993, appellant filed a motion to suppress the evidence seized from his vehicle, claiming that the officers did not have probable cause to search his truck. The judge who heard the motion denied it. Thereafter, appellant elected a court trial and was convicted of one count of felonious possession of LSD. The State nol prossed the remaining counts.

                nervous, sweating profusely, [and] would not make eye contact."   Appellant denied selling LSD.  Deputy Holland testified that he did not believe appellant was telling the truth and requested consent to search the vehicle.  Appellant declined.  The officers then asked him to step out of the truck, whereupon he was searched.  Finding no contraband, Deputy Holland explained that he noticed the shirt described by Corporal Wilson "laying on the seat of the pickup truck."   Sergeant Nicholas conducted a search of the shirt and again recovered no contraband.  Sergeant Nicholas then searched the vehicle--removing the key from the ignition to open the glove compartment--and recovered, in a plastic baggy, a piece of white paper, with blue flowers printed on it, that was perforated so that it could be torn into eighteen, quarter inch square pieces.  It was later determined to be impregnated with LSD
                

DISCUSSION

I.

Appellant argues that the circuit court erred in denying his motion to suppress the evidence recovered from his vehicle. Specifically, appellant contends that, "because the officers did not adequately demonstrate the [informant's] reliability in the past or independently corroborate any of the incriminating information the [informant] reported on the day in question, they lacked probable cause for the search." We disagree.

In reviewing the denial of a motion to suppress under Maryland Rule 4-252, we look only to the record of the suppression hearing. We do not consider the record of the trial. Trusty v. State, 308 Md. 658, 670, 521 A.2d 749 (1987) (citing Jackson v. State, 52 Md.App. 327, 332 n. 5, 449 A.2d 438, cert. denied, 294 Md. 652 (1982)); Rice v. State, 89 Md.App. 133, 138-39, 597 A.2d 1001 (1991), cert. denied, 325 Md. 397, 601 A.2d 130 (1992). In considering the evidence presented at the suppression hearing, we extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibility of witnesses and to weighing and determining first-level facts. State v. Jones, 103 Md.App. 548, 653 A.2d 1040 (1995); Watson v. State, 282 Md. 73, 84, 382 A.2d 574, cert. denied, 437 U.S. 908, 98 S.Ct. 3100, 57 L.Ed.2d 1140 (1978); Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356 (1990). When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that his findings are clearly erroneous. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990); McMillian v. State, 325 Md. 272, 281-82, 600 A.2d 430 (1992). When a motion to suppress is denied, an appellate court should consider those facts developed during the suppression hearing that are "most favorable to the State as the prevailing party on the motion." Riddick, 319 Md. at 183, 571 A.2d 1239 (citing Simpler v. State, 318 Md. 311, 312, 568 A.2d 22 (1990)). But, as to the ultimate, conclusionary fact of whether a search was valid, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. See id. at 183, 571 A.2d 1239; Perkins, 83 Md.App. at 346, 574 A.2d 356.

In making our independent constitutional review of whether probable cause existed sufficient to validate the warrantless search of appellant's vehicle, we observe that a search "conducted without the benefit of a warrant supported by probable cause is per se unreasonable under the fourth amendment, subject to only a few exceptions." Gamble v. State, 318 Md. 120, 123, 567 A.2d 95 (1989) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973)). "However case law recognizes public policy exceptions to the warrant requirement, as in the case of automobile searches." Malcolm v. State, 314 Md. 221, 226, 550 A.2d 670 (1988) (citing Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925)). The rationale for permitting a warrantless automobile search in moments of exigency is that "1) the mobility of the vehicle creates a greater need to search without delay and 2) individuals have a lesser reasonable expectation of privacy in their cars as opposed to their homes." Id. at 227, 550 A.2d 670 (footnote omitted).

Probable cause has been defined as the " 'fair probability that contraband or evidence of a crime will be found in a particular place.' " Id. (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)). The test for probable cause based on an informant's tip is the totality of the circumstances. Id. at 230, 103 S.Ct. at 2328. As explained in Green v. State, 77 Md.App. 477, 551 A.2d 127 (1989) however, "Although Illinois v. Gates, supra, adopted a 'totality of the circumstances' analysis for assessing the existence of probable cause, an informant's veracity, reliability and status remain highly relevant in determining whether probable cause has been established where the police rely upon an informant's tip." Id. at 485, 551 A.2d 127. Accord Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) (probable cause to make warrantless arrest where police independently corroborated informant's story, even though corroborating detail was of entirely innocent activity).

In the case sub judice, Corporal Wilson testified that he was approached by an informant while monitoring the annual turtle races at Cedar Hill Park. Corporal Wilson explained that he knew the informant, that the informant was reliable, and that the informant had provided information to him "[a]pproximately a dozen times" in the past regarding appellant's involvement in the distribution of drugs. In addition, Corporal Wilson testified that the informant, on three prior occasions, had supplied him with information that resulted in arrests and convictions. Under the totality of the circumstances this testimony was sufficient to establish the informant's veracity and reliability. Cf. Green v. State, 77 Md.App. 477, 487, 551 A.2d 127 (1989) (no probable cause where "absolutely no testimony establishing the reliability or character status of the ... informant").

In addition, there was adequate corroboration of the informant's information to provide the officers with probable cause to search appellant's vehicle. The informant stated that appellant was distributing LSD on park grounds, that appellant was wearing a flowered shirt, and that the LSD was in appellant's shirt pocket. Corporal Wilson then relayed this information to Officers Holland and Nicholas, giving them a description of the appellant's distinctive vehicle. The officers thereupon located appellant and his vehicle at the entrance to the park. When first approached by the deputies, appellant was seated in the driver's position and the engine was running. A flowered shirt similar to the one described by the informant was...