Ferris v. State

• Decision Date: 18 August 1999
• Docket Number: No. 127,127
• Citation: 735 A.2d 491,355 Md. 356
• Parties: Peter Michael FERRIS v. STATE of Maryland.
• Court: Maryland Court of Appeals

735 A.2d 491

355 Md. 356

Peter Michael FERRIS v. STATE of Maryland.

No. 127, Sept. Term, 1997.

Court of Appeals of Maryland.

August 18, 1999.

Patrick E. Maher, Towson (Jay C. Beasley, Michael J. Nehring, Hagerstown, all on brief), for Petitioner.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for Respondent.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW¹, RAKER, WILNER and CATHELL, JJ RAKER, Judge.

Petitioner Peter Michael Ferris appeals the denial of his motion to suppress evidence seized by the police. Because the police officer in this case effected a seizure not premised upon the reasonable, articulable suspicion required under the Fourth Amendment, we shall hold that the Circuit Court for Washington County erred in denying Ferris's motion to suppress.

I.

In the early morning hours of May 7, 1996, Maryland State Trooper Andrew Smith was operating a laser speed gun on Interstate 70, just east of Route 66 in Washington County, Maryland. The posted speed limit was 65 miles per hour. At 1:06 a.m., Trooper Smith observed a westbound Toyota Camry traveling down a mountain at what appeared to be a high rate of speed. Engaging the laser device, the trooper clocked the vehicle's speed at 92 miles per hour.

Trooper Smith activated his emergency lights and stopped the car without incident. The trooper parked his patrol car approximately twenty feet behind Petitioner's car. Trooper Smith approached the Camry and observed Ferris, the driver, and one passenger, Michael Discher, in the front seat. Smith asked Ferris to produce his driver's license and registration. At the hearing on Ferris's motion to suppress tangible evidence seized by the trooper, Trooper Smith testified that during this initial encounter he noticed that Ferris's "eyes were bloodshot and he did appear a little nervous, a little fidgety."

Trooper Smith returned to his patrol car and requested a driver's license and outstanding warrant check on Ferris. The trooper began to write the speeding citation. During this time, Trooper Smith glanced up several times and noticed that Ferris and Discher were moving around and looking back towards him "quite frequently." Specifically, Smith testified that Ferris and the passenger looked back at the patrol car three or four times.

While Trooper Smith was writing the citation, Deputy John C. Martin of the Washington County Sheriff's Department arrived and parked ten feet behind Smith's patrol car, activating his vehicle emergency "flashers."² Deputy Martin approached Trooper Smith's patrol car and spoke briefly with the trooper. After witnessing Ferris and Discher "moving around in the vehicle a lot and looking around," the deputy relayed that observation to Trooper Smith.

Trooper Smith returned to the Camry with Deputy Martin, who went to the rear of the passenger's side of the vehicle. Ferris signed the citation, and then the trooper returned Ferris's driver's license and registration along with a copy of the citation. Although Trooper Smith did not advise Ferris that he was free to depart or that he was not free to leave, the trooper testified: "I just asked him if he would mind stepping to the back of his vehicle to answer a couple of questions. He stated he didn't mind." Ferris accompanied the trooper to the rear of the Camry. During this time, Deputy Martin remained between the Camry and Trooper Smith's patrol car and watched Discher, the passenger. At the suppression hearing, Trooper Smith testified that the reasons he asked Petitioner to step out of the car were that Petitioner's eyes were bloodshot, Petitioner and the passenger were acting very nervous, and there was no detectable odor of alcohol on Petitioner's breath.³ Behind the Camry, Trooper Smith first asked Ferris if he had smoked any drugs prior to the traffic stop. Trooper Smith testified that Ferris became more nervous in response to this question. Ferris answered by stating that he had not smoked anything. Trooper Smith again asked Ferris "was he sure that he hadn't smoked any drugs because of the fact that his eyes were bloodshot, extremely bloodshot and he didn't have alcohol on his breath." During the encounter, the trooper remained within two or three feet of Ferris.

At this juncture, Ferris admitted that he and his passenger had smoked a "joint" in Philadelphia about three hours earlier. Ferris stated that he and the passenger were traveling from Philadelphia to Morgantown, West Virginia. Trooper Smith then asked Ferris whether the passenger was in possession of any controlled dangerous substances. Ferris acknowledged that Discher possessed a small amount of marijuana. Thereupon Trooper Smith approached Discher, still seated in the front passenger seat of Ferris's car. After Trooper Smith questioned Discher, the latter turned over a small baggie containing marijuana. Trooper Smith then searched the Camry. On the rear seat, the trooper found a green L.L. Bean book bag. Trooper Smith uncovered a gallon-sized plastic baggie inside the book bag containing a compressed, green vegetable matter, a substance the trooper believed to be marijuana.

As a result of this incident, the State's Attorney for Washington County charged Ferris by criminal information with: operating a motor vehicle in excess of the posted speed limit, in violation of Maryland Code (1977, 1999 Repl.Vol.) § 21-801.1 of the Transportation Article; possession of marijuana, in violation of Maryland Code (1957, 1996 Repl.Vol., 1998 Supp.), Article 27, § 287; and possession of marijuana in sufficient quantity to reasonably indicate an intent to distribute that substance, in violation of Article 27, § 286(a)(1). Prior to trial, Ferris moved to suppress all evidence and statements illegally obtained.

At the suppression hearing, the State and Ferris presented essentially the same primary arguments made before this Court. The circuit court rejected the analytical path taken by the parties, instead reasoning:

Well I don't want anybody to lose the forest for the trees. The citizen has a right not to be unreasonably seized nor to have property unreasonably searched and seized under the totality of the circumstances.

You know I've heard the State talk about Terry and articulable suspicions and the defense talking about the end of one stop and seizure and the beginning of another stop and seizure. Quite frankly I think that neither argument is persuasive. What we have to do is look at the situation, the entire totality of the situation that the officer found himself in on this occasion to determine if he acted unreasonably in any stop, in any seizure, in any search and seizure.

Now the officer has a vehicle that's going ninety-two miles an hour on a highway that even though I don't think there was evidence of this fact but I think we can take judicial notice of the fact that the speed limit was sixty-five or under at the time. So we have a situation where he has a driver of a motor vehicle that's going well over the speed limit.

He stops that motor vehicle. He notes that the driver of the motor vehicle has extremely bloodshot eyes, not just bloodshot eyes, extremely bloodshot eyes and is exhibiting signs or symptoms of nervousness, fidgety.

It's an out of state vehicle. He checks the registration, ownership, license, determines that the license and registration are appropriate. But then [the officer] goes back to the vehicle. And what's he going to do? What's expected of him? Is he to allow a person who is operating at ninety-two miles an hour with bloodshot eyes to sign a citation and get back into the vehicle and drive it away?

Or is he expected to proceed to further investigate the condition of the driver? And that's what he was doing when he then asked the driver to step back and answer certain questions. It was, I think, a very reasonable expected continuation of the encounter between the officer and the driver of this motor vehicle.

The driver is operating in a dangerous way. And he's got bloodshot eyes. And I think it would be expected that this officer would inquire further and not just allow the driver with bloodshot eyes who's been going ninety-two miles an hour to get back in that vehicle and drive it away.

And that is what the officer did. He continued ... there was no, I do not feel that there was any end of one stop and the beginning of another stop and seizure. It was a continuation. It's expected of this officer to have done what he did.

So then the driver of the motor vehicle does in fact answer the questions without intimidation, voluntarily answers the questions. And as the questions are asked and answered, there is an incriminating response which leads to the recovery of a controlled dangerous substance from an ... individual who then gives the officer further probable cause to believe that the vehicle itself contained contraband or does surely under any of our known doctrines enable it to be searched, and the contents of that vehicle.

So under the totality of the circumstances I see nothing ... that the officer did wrong, no violation of any right against unreasonable stop, seizures, searches of this defendant.

The trial court therefore denied Ferris's motion to suppress.

Ferris was tried before a jury in the circuit court and convicted of speeding and possession of marijuana with the intent to distribute. On the marijuana charge, the court sentenced Ferris to a term of incarceration of eighteen months, with all but five months suspended. Ferris noted a timely appeal to the Court of Special Appeals.

Before the Court of Special Appeals, Ferris challenged only the denial of his motion to suppress. A divided panel of the intermediate appellate court affirmed in an unreported opinion. As to the question of whether Ferris had been seized under the Fourth Amendment during the encounter with Trooper Smith, the court reasoned that the finding of the motions judge that the conversation...