Dennis v. State
| Decision Date | 29 September 2015 |
| Docket Number | No. 0413,0413 |
| Parties | CHARLES DENNIS v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
UNREPORTED
Opinion by Leahy, J.
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
In this appeal, we address whether the circuit court erred in denying a criminal defendant's motion to suppress evidence recovered during a traffic stop. In 2010, Charles Dennis ("Appellant") was a passenger in a pickup truck with tinted windows that was pulled over by police after the driver committed a traffic violation, crossing the center line of a motorway. Police had received a tip that "stickup boys" operating in the area were driving a vehicle matching the description of the vehicle pulled over. Officer Nagovich, one of the officers involved in the traffic stop, saw Appellant, the right, rear passenger, pass a red object to the right, front passenger. The police recovered this object and discovered it to be a bag of heroin.
Appellant was indicted in the Circuit Court for Baltimore City and charged with possession of heroin, possession with intent to distribute, conspiracy to distribute heroin, conspiracy to possess heroin with the intent to distribute it, and conspiracy to possess heroin. After his motion to suppress was denied, a jury convicted him of conspiracy to possess heroin, a controlled dangerous substance. After Appellant was sentenced to three years' incarceration, with credit for time served, he filed an untimely notice of appeal that was dismissed by this Court in an unreported opinion. Dennis v. State, No. 2507, Sept. Term, 2011 (mandate issued July 5, 2013). Subsequently, Appellant filed a petition for writ of error coram nobis, alleging ineffective assistance of counsel for filing an untimely notice of appeal.1 After a hearing, the circuit court granted Appellant the opportunity to file a belated appeal. Appellant now asks this Court the following questions:
For the following reasons, we shall affirm.
On August 29, 2011, Appellant filed a motion to suppress evidence. On November 4, 2011, the court held a hearing on the motion to suppress during which the following evidence was presented.
At approximately 4:10 p.m. on March 2, 2010, police officers with the Baltimore City Police Department observed a red truck in the 2400 block of Lakeview Avenue. According to Sergeant Joseph Donato, that vehicle, a two door Dodge Ram with a rear seat, matched the description of a vehicle that was suspected in a number of robberies in the nearby area.2
Sergeant Donato was following the truck in a marked police vehicle along with Officer Robert Bonomo. At some point while the truck was on southbound Lakeview Avenue, the truck "drifted over across in the middle area of the road . . . ." Because of this traffic violation, as well as the fact that the truck's windows appeared to be tinted beyond what was permitted under Maryland law, Sergeant Donato initiated a traffic stop. Sergeant Donato maintained that he ordered the stop based on "the illegal tint and the one infraction."
Sergeant Donato and Officer Bonomo pulled in behind the truck. Officer Valentine Nagovich and Officer Hood were driving a separate car, and pulled in front of the stopped truck. As he approached the stopped vehicle, Sergeant Donato could see that there were multiple occupants inside. He discerned "a lot of movement in the vehicle," although the movement was not entirely clear because of the tinting.
During his initial approach to the truck, Officer Nagovich looked through the windshield and saw the right, rear passenger hand a red object to the front, right passenger, and then saw the front right passenger place an object near the door panel. Appellant was the right, rear passenger in the truck. Officer Nagovich conveyed this information to Officer Bonomo.
Once Officer Nagovich got closer to the truck, he saw "like a sword, like one of them Ninja swords," on the floor in the rear of the truck. Officer Bonomo and Sergeant Donato both confirmed that they saw swords in the vehicle, with Bonomo explaining that, before the occupants exited the truck, he shined a flashlight through the truck's tinted windows and saw the swords. Following these observations, the occupants were directedto exit the vehicle and sit on the curb. Officer Bonomo testified that he then saw a red object, which he immediately believed to be a controlled dangerous substance, on the inside door panel of the truck. Officer Bonomo explained that the area where the red object was stored was not a normal compartment, like a cup or map holder, but was underneath a piece of plastic that had been pried away from the door panel. Upon retrieving the red object, Officer Bonomo saw that the object contained "23 red, reddish-pink Ziploc baggies containing a rocky, powdered substance." Officer Bonomo, accepted as an expert in narcotic packaging and street level identification, opined that the heroin seized in this case was for purposes of distribution and not personal use. The police also recovered $1,163.00 in U.S. currency from Appellant's person. The occupants of the truck were placed under arrest.
On cross-examination, Sergeant Donato was asked about the window tinting. He testified that, based on his training at the police academy in 1994, the gauge of a proper window tinting was based on "officer safety," what was "reasonable," and "what I can reasonably see." He further testified that "this tint was dark enough that I couldn't see specifically enough what people were doing inside." Sergeant Donato agreed that he had heard of a device called a tint meter, used to measure the allowed percentage of tinting of a vehicle's window, but that the Baltimore City Police Department had refused his requests to issue him such a device. Donato was not familiar with the precise percentage of tinting that was allowed and not allowed on vehicle windows. On redirect examination, Donato testified that, if he had a tint meter, he would have used it after the traffic stop in this case was complete and after the occupants were arrested.
After hearing argument, in which the State argued that the traffic stop was valid under Edwards v. State, 143 Md. App. 157 (2002), discussed infra, and Appellant argued that the circumstances of this traffic stop made the traffic stop invalid, the court denied the motion to suppress as follows:
The court continued:
That once the vehicles were legitimately stopped the police had the right to have the occupants out of the vehicle, exit the vehicle. And the court also finds that there was concern for officer safety. And that views the totality of the circumstances which would also take into consideration the information. Although this court would not find probable cause based upon the information from the anonymous source, be it a confidential informant or a citizen or what-ever. There simply was not enough there. But viewing the totality of the circumstances means taking into consideration everything for the officers to have some concern for officer safety. Under the circumstances the court finds there was . . . certainly a legitimate basis for that. And the court finds credible and the only testimony that - that I got anyway was - and I listened for it - was that the arrest was made after the drugs were recovered. And for that reason I'm going to deny the motions.
Officer Nagovich, accepted as an expert in drug identification, packaging, and street level distribution, testified that he was working plain clothes in an unmarked vehicle on March 2, 2010, at approximately 4:00 p.m. Around that time, he participated in a trafficstop of a red pickup truck with tinted windows, in the 2400 block of Lakeview Avenue. Another vehicle, operated by Sergeant Donato, initiated the stop with its emergency equipment, and Nagovich's vehicle responded to the scene and parked in front of the truck.
As he approached the truck from the front, Officer Nagovich saw a lot of movement inside. Nagovich saw the right, rear passenger, identified as Appellant, hand a red object to the front, right passenger. The front, right passenger then took the object and put it in what appeared to be the "side panel of the window of the door." This exchange lasted only a few seconds.
As he and Officer Bonomo approached the passenger side of the truck, Nagovich could see a ninja sword in the vehicle through a now-open window. The occupants were then ordered out of the vehicle and placed on the curb. Officer Nagovich then advised Officer Bonomo that he saw the front passenger place an object in the door panel, and Officer Bonomo then retrieved a "clear, plastic bag containing 23 Zips - red Ziplocs containing suspected heroin." The narcotics tested positive for the presence of 6.63 grams of heroin. After the occupants were placed under arrest,...
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