Fair v. State

• Decision Date: 30 March 2011
• Docket Number: No. 2741,Sept. Term,2008.,2741
• Citation: 198 Md.App. 1,16 A.3d 211
• Parties: Arnell FAIRv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

198 Md.App. 1

16 A.3d 211

Arnell FAIR

v.STATE of Maryland.

No. 2741

Sept. Term

2008.

Court of Special Appeals of Maryland.

March 30, 2011.

William R. Buie, III, Baltimore, MD, for appellant.

Tennant D. Magee, Sr. (Douglas Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellee.Panel: EYLER, JAMES R., ZARNOCH and JAMES A. KENNEY, III (retired, specially assigned), JJ.JAMES A. KENNEY, III (retired, specially assigned), J.

Appellant, Arnell Fair, was arrested and charged with possession of a firearm by a convicted felon, carrying or transporting a handgun in a vehicle, and possession of marijuana, a controlled dangerous substance. A jury, sitting in the Circuit Court for Baltimore City, convicted appellant of possession of a firearm by a convicted felon and possession of marijuana. He was sentenced to five years without the possibility of parole for the firearm conviction and to a consecutive one year for the marijuana possession conviction. He presents the following issues for our review, which we have slightly reworded:

I. Did the circuit court err by denying appellant's pretrial motion to suppress the key and the remote to the Cadillac automobile, the marijuana, or the firearm found in the Cadillac under the Fourth Amendment of the United States Constitution and Article 26 of the Maryland Declaration of Rights?

II. Did the circuit court err by denying appellant's trial motion to exclude the City of Baltimore paycheck to appellant found in the Cadillac on the basis of hearsay?

For the following reasons, we affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

Appellant was arrested for possession of marijuana by Detective Steven Mahan of the Baltimore City Police Department. While appellant was in his custody, the detective observed a vehicle with suspected marijuana in plain view that he had reason to believe had been driven by appellant. He searched the vehicle and found a firearm in the center console next to a combined paycheck and pay-stub (collectively, “the paycheck”) in appellant's name. Appellant was charged with possession of marijuana along with the firearm charges.

Before trial, appellant moved to suppress the marijuana found inside the vehicle, the handgun, and the remote and the keys to the vehicle. At the suppression hearing, Detective Mahan testified to the following:

On the evening of June 30, 2007, he was working security as a second job for Central Parking Agency at a garage located at 414 Water Street in Baltimore, Maryland. At approximately 10:20 p.m., he observed, from approximately ten or fifteen feet away, appellant and Scott Tanner, walking down a garage ramp toward him “drinking and smoking a brown hand-rolled cigar.” He saw appellant pass the cigar to Tanner, and both were smoking it. Upon seeing Detective Mahan, Tanner dropped the cigar saying, “Yo, the police.” Appellant and Tanner also poured out their drinks.

Detective Mahan placed them under arrest, handcuffed them, and searched them. He found a remote along with a set of keys to a Cadillac on appellant and a set of keys to a Lexus on Tanner. He also recovered the cigar.

After advising both men of their Miranda rights, Detective Mahan asked Tanner where he parked his car. Tanner told him that “he drove in with the Lexus;” appellant said that “he drove in with Mr. Tanner.” Detective Mahan, with both men in his vehicle, then drove to locate Tanner's vehicle in the garage. Tanner identified his vehicle when they came to it.

Detective Mahan's testimony on direct examination as to the sequence of events after Tanner identified his vehicle was somewhat inconsistent with his testimony on re-direct examination. On direct examination, Detective Mahan testified that, at this point in time, he separated the men, and, after being separated from appellant, Tanner told him that “he drove the Lexus and that his friend, [appellant], drove the Cadillac in behind him.” Tanner identified the Cadillac that was parked next to the Lexus as appellant's vehicle.

Detective Mahan “hit ... either the panic button or the lock button” on the remote to the Cadillac, “and the horn sounded.” He looked inside the Cadillac, and, in the center console, “in plain view” saw “a clear sandwich bag that contained a green substance of suspected marijuana.”

Detective Mahan testified that he then performed a “search inventory to tow.” Inside the vehicle's center console, he found a “Hungrade (sic) .9 millimeter handgun” and “a paycheck stub” in appellant's name.

On re-direct examination, Detective Mahan testified as follows:

[Prosecutor]: And when in the sequence of events did ... Mr. Tanner [ ] advise you that [appellant] drove the Cadillac that was next to his car?

Detective Mahan: Once I was able to separate them and had some distance between Mr. Tanner and I, when he was out of earshot of Mr. Fair.

Q. Was that before or after you looked in the Cadillac and saw the marijuana?

A. I believe it was after.

Q. Okay. And was it before or after you hit the button?

A. I think it was after. I believe it was after.

The motion court denied the motion to suppress. It concluded that the search of appellant incident to his arrest for possession of the marijuana cigar “was constitutionally permitted,” and that “[l]ooking in the Cadillac, opening it, and seizing the marijuana visible from the exterior of the Cadillac was [ ] constitutionally protected.” According to the motion court, “[t]he question [was] really whether opening the console where the gun was found [was] also constitutionally permitted.”

The court, through the following analysis, determined that the search of the console was permissible:

The facts suggest strongly that Detective Mahan had every intention of towing the cars of the arrestees, Tanner and [appellant], before he ever saw the cars or before he ever observed the marijuana in [appellant's] car.

When the detective and the two arrestees were still downstairs in the garage away from [appellant's] car, Detective Mahan seized the keys with the remote. Both Mr. Tanner and [appellant] had keys to different cars and Detective Mahan asked both about how they got there and quizzed Tanner out of [appellant's] presence about how [he] got there. So it is clear that Detective Mahan was focused on finding those cars, given the policy of Central Parking Garage to have them removed.

In addition, as to the Defendant's car, the need for it to be towed was heightened when Detective Mahan observed the marijuana in plain view in the car.

The bottom line here is that there is no subterfuge. Detective Mahan was not engaged in subterfuge to search the Defendant's car. Rather, knowing that the car was going to be towed, either because that was the policy of Central Parking or because contraband had been found there, Detective Mahan knew the car was going to be towed.

Given this knowledge, Detective Mahan's opening of the console where the gun was observed was constitutionally permissible, the inventory search was necessary to protect the police from claims and disputes over lost property, and to protect the Defendant's property while it remained in police custody. Therefore, there was a bona fide inventory and not an investigative search.

Before trial, appellant moved to exclude from evidence the paycheck based on hearsay, arguing that it would be offered to prove the truth of its contents, most specifically, the date. The State argued that it was “going to be arguing that ... because the piece of paper was found with his name and the paycheck and everything with the gun, that he had to have gone in that console at some point with the piece of paper there, not that he definitively owns the car or anything else.” Defense counsel explained that use of the paycheck to prove the date it was written was hearsay, unless the check came in pursuant to a business records exception. The circuit court held that “[t]he document is not being offered for the truth of the matter asserted, it's being offered to show the Defendant's possessory interest in the vehicle,” and denied the motion.

Appellant then moved to redact the date on the paycheck, which the court denied without comment.

Detective Mahan was the State's only witness at trial, and he testified substantially as he had at the suppression hearing. In addition to his previous testimony, he testified that the Cadillac was registered to Dashae Mariano, but that it was not considered stolen.

On direct examination, the State questioned the detective on finding the paycheck in the center console. He testified to finding the paycheck, but, at that time, did not testify as to the date on the paycheck. The prosecutor then moved the paycheck into evidence. At that time, defense counsel stated, “And Your Honor, I would just renew my objection.” The court admitted the paycheck into evidence.

On redirect-examination, the prosecutor returned to the topic of the paycheck and the following exchange took place:

[Prosecutor]: And Mr. Fair at some point had left his paycheck in there?

[Detective Mahan]: Yes, ma'am.

[Prosecutor]: And what is the date on the paycheck?

...

[Defense counsel]: Your honor, just object for the record, pursuant to bench conference, Your Honor, that we already had.

[The Court]: Overruled.

...

[Detective Mahan]: The pay period began 6/18/07 through 6/24/07, the pay date was 6/29/07.

[Prosecutor]: The day before this incident?

[Detective Mahan]: Yes, ma'am.

It was stipulated that appellant “is prohibited from possessing a firearm or ammunition because of a prior disqualifying crime;” that the “gun in this case was found to be operable;” and that “the substance recovered and tested was marijuana.”

In closing, the prosecutor argued to the jury:

Nobody else had access to that vehicle that night. The only person who had access to that vehicle is Mr. Arnell Fair. Mr. Arnell Fair, who knew that there was a gun in that car because he was trying to distance himself. Mr. Arnell Fair who knew that...