Elliott v. State

• Decision Date: 21 December 2010
• Docket Number: No. 24, Oct. Term, 2010.,24, Oct. Term, 2010.
• Citation: 417 Md. 413,10 A.3d 761
• Parties: Winston ELLIOTT v. STATE of Maryland.
• Court: Maryland Court of Appeals

10 A.3d 761

417 Md. 413

Winston ELLIOTT

v.STATE of Maryland.

No. 24, Oct. Term, 2010.

Court of Appeals of Maryland.

Dec. 21, 2010.

Jaclyn Moyer, Assigned Public Defender (Chris Davies an Andrew Goetz, AssignedPublic Defenders of Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.), on brief, for petitioner/cross-respondent.

James E. Williams, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent/cross-petitioner.

Mitchell Y. Mirviss, Michael Schatzow, Andrew Paul Kawel (of counsel), Venable LLP, Baltimore, MD, Malia N. Brink (of counsel), National Association of Criminal Defense Lawyers, Washington, D.C., for Amicus Curiae brief of National Association of Criminal Defense Lawyers.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

GREENE, J.

In this case, we are asked to determine whether the intermediate appellate court erred in applying the doctrine of inevitable discovery sua sponte, where the State did not argue the doctrine at any point during prior proceedings. In addition, we are asked to determine whether the Circuit Court erred in failing to grant defense counsel's motion to compel disclosure of the identity of a confidential informant where the identity of the informant was material to the issue of the defendant's guilt or innocence.

FACTS AND PROCEDURAL BACKGROUND

On April 12, 2006, Winston Elliott was arrested in a parking lot in Prince George's County, Maryland, based on information provided by a confidential informant ("CI"). That morning, a CI, who is a registered source with the Prince George's County Police Department, contacted Detective Melvin Powell of the Narcotics Enforcement Division of the Prince George's County Police Department. Powell is the primary contact for the source within the police department. He testified that the CI previously provided information on numerous occasionswhich was "accurate, [ ] proven and corroborated" and lead to the "seizure of large quantities of marijuana" in previous cases. Previously, the source had been involved in buying and selling drugs, but police agreed not to arrest him in exchange for his cooperation in future police investigations.

The CI told Powell that a man named Winston would be arriving at a movie theater near Marlow Heights later that day, in order to deliver a large quantity of marijuana. The CI described Winston as a slim, black male, approximately five feet, eight inches tall, with a heavy Jamaican accent. The CI contacted Powell a second time and told Powell that the location had changed to the Southern Marketplace shopping center, with an estimated arrival time between 1:00 p.m. and 3:00 p.m. The CI also provided the officers with a description of a black Nissan Maxima, including the license plate number, which later proved to be almost an exact match to Elliott's car.¹ The police followed the tip and set up surveillance in the parking lot. The police were accompanied by the Special Operations Division ("SOD"), also known as the SWAT team, which provides protection for undercover officers by assisting in apprehension and safe detention of suspects, as well as agents from the Drug Enforcement Administration ("DEA").

At approximately 1:20 p.m., Mr. Elliott entered the parking lot of the shopping center driving a black Nissan Maxima, accompanied by his friend, Rowan Chambers. Elliott parked his car. The two men then got out and started walking towards the shopping center. Detective Crystal Mills, the lead investigator in Elliott's case, testified that she called a K-9 unit to come to the location when the car arrived at the parking lot.² The officers on the scene determined that Mr. Elliott and his vehicle matched the description given by the CI, and notified the SOD to make the apprehension. Anunmarked SOD police van then drove toward Elliott and Chambers; four police officers jumped out of the van, identified themselves as police, and ordered the men to put their hands up. The officers pointed assault rifles and sub-machine guns at the two men as they were handcuffed and forced to the ground. The men did not attempt to flee the scene. The officers searched the men and removed all of their possessions, including car keys from Mr. Elliott's pants pocket.

Once the men were secured, SOD officer Anthony Cline called over DEA Agent Brian Silvestro, who was standing nearby. Silvestro approached the officers and requested the keys to the car. Silvestro testified that upon approaching the vehicle, he smelled the odor of marijuana emanating from the trunk. Silvestro opened the trunk using the keys, saw a large suitcase and two other bags, and smelled marijuana. He then closed the trunk. Agent Silvestro testified at the suppression hearing that the K-9 unit arrived approximately 15 minutes after he opened the trunk. When the K-9 unit arrived, Officer Andrew Logan and the police dog conducted a scan of the vehicle, and the dog alerted to the trunk area. The officers then transported the two men and the car to the Oxon Hill police station for processing. The entire sequence of events, from the initial apprehension until Elliott was placed in a police vehicle for transport to the police station, took about 30 minutes. At the police station, Agent Silvestro searched the vehicle and removed 20 pounds of marijuana contained in the suitcase, which was wrapped securely in closed, thick plastic bags. No marijuana or drug paraphernalia was uncovered anywhere else in the vehicle. No drugs or weapons were found on the two men.

Based on the evidence seized, Elliott was charged with possession of marijuana and possession with intent to distribute marijuana. Elliott filed preliminary motions in the Circuit Court for Prince George's County. He moved to suppress the drug evidence and to compel disclosure of the identity of the CI. The hearing on the motion to suppress was held on January 19, 2007, and the hearing on the motion to compel disclosure of the identity of the informant was held on February16, 2007. Elliott argued at the suppression hearing that he was arrested when he was initially apprehended and ordered to the ground, and that the information from the CI was insufficient on its own to establish probable cause for a warrantless arrest. Elliott therefore moved to suppress the evidence seized from the car under the "Fruit of the Poisonous Tree" doctrine. The Circuit Court judge denied the motion after hearing testimony from four officers involved in the arrest. The sole focus at the motions hearing was whether the stop was a detention or arrest, and whether the information provided by the CI was sufficient to furnish probable cause. The court held that the initial seizure of Elliott wasan investigative detention supported by reasonable suspicion, and held that the subsequent K-9 search provided the probable cause necessary to arrest Elliott and search the car.

On February 16, 2007, the Circuit Court held a hearing on the motion to compel disclosure. The parties incorporated the testimony of the suppression hearing by reference, and no additional testimony was taken. Elliott argued that the CI gave Elliott the drugs in order to set him up, and informed the court that the intended defense at trial would be entrapment. The defense attorney, however, was not permitted to question officers at the suppression hearing as to the identity of the CI. When the defense presented their theory that Elliott was set up by a specific person, the Circuit Court held that the State did not have to disclose the identity of the CI because the defense was just "fishing" and in fact knew the informant's identity. The Circuit Court denied the motion to compel, concluding that the information was not relevant to any defenses or charges, and emphasizing the obligation of the court to protect confidential sources.

Mr. Elliott's first trial was held on August 21-22, 2007. The jury was unable to reach a verdict and the court declared a mistrial. The second trial was held on April 8-9, 2008, and Elliott was found guilty on both counts. At both trials, Elliott testified in his own defense, presenting evidence to show lack of knowledge of the controlled dangerous substance, in addition to expanding on the defense's theory of entrapment.Elliott testified that he did not know the marijuana was in the trunk of his car. Rather, an acquaintance of Elliott's, known to him only as "Christopher Lodge," was responsible for the drugs. According to Elliott, Lodge called Elliott the day before the incident, requesting that Elliott help store some of Lodge's possessions. Lodge told Elliott that Lodge had a fight with his girlfriend and that she had kicked him out of their shared apartment. Mr. Lodge asked Elliott if Elliott could help store Lodge's belongings temporarily. Elliott drove to Lodge's apartment, and Lodge placed a backpack, large suitcase, and garment bag in the trunk. Elliott testified that he did not get out of the car; he merely popped the trunk, allowing Lodge to place the items in the trunk, and Lodge then closed the trunk. The next morning, Elliott received a call from Lodge asking Elliott to meet Lodge at the shopping center, in order for Lodge to retrieve his belongings. Elliott testified that following his arrest, he believed Lodge was the CI and was unable to contact or locate Lodge. In its rebuttal, the State called Detective Powell, who testified he had never heard of Lodge. Ultimately, Elliott was convicted as a result of the second trial.

Elliott filed a timely appeal to the Court of Special Appeals. Elliott argued that the evidence of the contraband found in the trunk of the car should have been suppressed as the product of an illegal arrest and that the failure to compel disclosure of the informant's identity precluded Elliott from effectively presenting his defense at trial. The State maintained that the initial stop of Elliott was an investigative detention, not an arrest, and...