Derricott v. State

• Decision Date: 01 September 1989
• Docket Number: No. 1606,1606
• Citation: 578 A.2d 791,84 Md.App. 192
• Parties: Darone Antonio DERRICOTT v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 192

84 Md.App. 192

578 A.2d 791

Darone Antonio DERRICOTT v. STATE of Maryland.

No. 1606, Sept. Term, 1989.

Court of Special Appeals of Maryland.

Sept. 4, 1990.

Philip H. Armstrong (Heeney, Armstrong & Heeney, on the brief), Rockville, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Andrew L. Sonner, State's Atty. for Montgomery County, Rockville, on the brief), for appellee.

Argued before MOYLAN and KARWACKI, JJ., and JAMES S. GETTY (retired), Specially Assigned, J MOYLAN, Judge.

The appellant, Darone Antonio Derricott, was convicted in the Circuit Court for Montgomery County by Judge J. James McKenna, sitting without a jury, of the unlawful possession of cocaine with intent to distribute. There are no appellate issues arising out of the trial itself. The case proceeded on an agreed statement of facts. The undisputed facts established that when the appellant was stopped for speeding at 6:53 P.M. on June 3, 1988, the 1985 Nissan 300ZX which he was operating contained a cellophane bag, situated between the driver's seat and the center console, containing 43 "hits" of crack cocaine in individual glassine bags. The appellant was the only occupant of the automobile. Other paraphernalia typically employed by narcotics pushers, including a beeper, were also found on the center console and the right front seat. The appellant does not contest the legitimacy of the guilty verdict.

The appellant does contest, most strenuously, the denial of his Motion to Suppress the glassine bags of crack cocaine on the ground that the search of his automobile that produced the cocaine was unreasonable under the Fourth Amendment. ¹

FACTUAL SUMMARY

Although certain facts will be developed and discussed more fully as they bear upon specific sub-issues in the case a brief summary may help to provide background. The appellant was stopped for speeding. The traffic officer approached the appellant's vehicle as the appellant remained seated behind the wheel. The appellant turned over his driver's license and registration card uneventfully. The officer, during that brief initial encounter, did make certain observations about the appellant and about the automobile that took on subsequent significance. In the course of the initial stop, however, the officer did not notice anything that suggested the presence of either contraband or a weapon of any sort.

The officer returned to his police cruiser for the purpose of writing a traffic citation. He made a routine radio check with respect to the appellant's operator's license and registration card. The check revealed nothing out of the ordinary. The officer wrote out the citation for speeding but did not proceed immediately to reapproach the appellant's vehicle to issue the citation. The curbside detention was to some extent protracted beyond the time ordinarily required to issue a speeding ticket, as a second purpose emerged in the officer's mind. Because certain characteristics of the appellant and his vehicle matched the local drug courier profile for the Washington metropolitan area, the officer called for a drug-sniffing canine. He called, in addition, for police "backup." He awaited the arrival of that reinforcement before reapproaching the appellant because he now suspected that the appellant might be armed. He estimated that approximately seven minutes transpired between spotting the appellant's car on the radar screen and reapproaching the appellant for the second time with the traffic citation in hand.

Although the traffic ticket had been written, it was not then handed to the appellant. The appellant was instead requested to step out of his automobile. He was then frisked. No weapons were found on his person. As part of an extended frisk, the officer approached the automobile, the door of which was open. The officer leaned the upper part of his body into the automobile for the express purpose of looking for weapons. As he did so, he was looking down at a center console between the two bucket seats. Between the driver's seat and the console, he observed approximately 20 per cent of a cellophane bag he suspected to contain narcotics. He seized the bag and found therein the contraband that formed the basis for the appellant's prosecution.

THE IMMATERIALITY OF PROBABLE CAUSE

As we undertake our consideration of Fourth Amendment issues, we can narrow the focus significantly at the outset. Fully half of the appellant's brief was dedicated to discussing and analyzing the alleged absence of probable cause to support any of the police actions in this case. The appellant in that regard may well be right. Even if that be so, however, it is utterly immaterial.

The State's theory of the case, and the one obviously suggested by the evidence, is that 1) a routine stop for a speeding violation led to 2) the accumulation of articulable suspicion for a Terry ^* stop for a narcotics violation which was, in turn, attended by 3) a Terry frisk for weapons. The necessary predicate for both a Terry stop and a Terry frisk is articulable suspicion, not probable cause.

On the continuum of escalating likelihood of guilt, the articulable suspicion level is well down the scale from the probable cause level. The settled law that it is a significantly lesser measure of likely guilt was recently rearticulated by Chief Justice Rehnquist in United States v. Sokolow, 490 U.S. 1, ----, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1, 10 (1989):

"The officer, of course, must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch." ' ... The Fourth Amendment requires 'some minimal level of objective justification' for making the stop.... That level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence. We have held that probable cause means 'a fair probability that contraband or evidence of a crime will be found,' ... and the level of suspicion required for a Terry stop is obviously less demanding than that for probable cause." (Citations omitted). (Emphasis supplied).

And see Quince v. State, 319 Md. 430, 433-434, 572 A.2d 1086 (1990).

THE TRAFFIC STOP

As we "bracket the target" of issue or issues to be resolved, we can move in a step or two closer. With respect to the traffic stop that set this episode in motion, there is no hint of subterfuge. This is not one of those cases where a narcotics officer, for instance, seizes the occasion, opportunistically, to observe a traffic violation on the part of a narcotics suspect.

Corporal Michael W. Thomas of the Maryland State Police was routinely performing stationary radar observations from the median strip of Interstate 270 at a point just northwest of the Capital Beltway. At 6:53 P.M. on June 3, 1988, he observed the appellant's vehicle travelling northbound at a speed of 89 miles per hour in a 55 miles-per-hour zone. He pursued the vehicle and directed it to the side of the road. The appellant produced his driver's license and his registration card and was ultimately issued a traffic citation for speeding. The appellant does not contest the legitimacy of the traffic stop.

PENNSYLVANIA v. MIMMS

We can also eliminate another distinct component of the police conduct as noncontroversial. After the appellant had been initially approached by Corporal Thomas but just before the officer reapproached him for the second time, Corporal Thomas ordered the appellant out of his car.

Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), established unequivocally that when the police have legitimately stopped an automobile, for a traffic offense or for any other reason, they are automatically entitled to order the driver and/or any of the passengers to alight from the vehicle. No particularized justification is required. The rationale behind this blanket police prerogative is general concern for police safety under such potentially dangerous circumstances. The need having been established as a general rule, nothing by way of further justification is required on an individual occasion of its being invoked. In the Mimms case itself, there was no individualized justification:

"The State freely concedes the officer had no reason to suspect foul play from the particular driver at the time of the stop, there having been nothing unusual or suspicious about his behavior. It was apparently his practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation."

434 U.S. at 109-110, 98 S.Ct. at 332. The constitutional imprimatur on this police tactic is unequivocal, the Supreme Court saying, 434 U.S. at 111, 98 S.Ct. at 333:

"We think this additional intrusion can only be described as de minimis. The driver is being asked to expose to view very little more of his person than is already exposed. The police have already lawfully decided that the driver shall be briefly detained; the only question is whether he shall spend that period sitting in the driver's seat of his car or standing alongside it. Not only is the insistence of the police on the latter choice not a 'serious intrusion upon the sanctity of the person,' but it hardly rises to the level of a ' "petty indignity." ' ... What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer's safety." (Citation and footnote omitted).

Indeed, the appellant raises no issue with respect to his having been ordered to alight from his vehicle during the course of the encounter.

THE FOCUS BECOMES BLURRED

At this point, it would appear that we have settled upon three key issues for ultimate resolution: 1) the legitimacy of the superseding Terry stop based upon articulable suspicion that the appellant was a drug courier, 2) the legitimacy of the attendant Terry -frisk based upon articulable suspicion that the appellant might be armed, and 3) the permitted geographic scope of...