Flores v. State

• Decision Date: 01 September 1997
• Docket Number: No. 958,958
• Citation: 706 A.2d 628,120 Md.App. 171
• Parties: Victor Antonio FLORES v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 171

120 Md.App. 171

706 A.2d 628

Victor Antonio FLORES v. STATE of Maryland.

No. 958, Sept. Term, 1997.

Court of Special Appeals of Maryland.

March 3, 1998.

Richard K. Jacobsen, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant

Ann N. Bosse, Asst. Atty. Gen., Baltimore (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Jack B. Johnson, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Submitted before THIEME and BYRNES, JJ., and PAUL E. ALPERT, Judge (retired), Specially Assigned.

THIEME, Judge.

Appellant, Victor Flores, was convicted by a jury sitting in the Circuit Court for Prince George's County (Sothoron, J., presiding) of possession with intent to distribute cocaine, distribution of cocaine, and possession of cocaine. He was sentenced to ten years imprisonment, five years of which was suspended, for the distribution conviction. The remaining convictions were merged for purposes of sentencing. He noted a timely appeal and presents three questions, which we have slightly rephrased:

I. Did the suppression court err in denying appellant's motion to suppress a photograph that was taken of him during an allegedly illegal stop?

II. Did the trial court abuse its discretion in refusing to instruct the jury that mere presence at the scene of a crime is insufficient to prove guilt?

III. Did the trial court err in denying appellant's motion to dismiss for lack of a speedy trial?

FACTS

On the evening of 19 September 1996, Prince George's County Police Detectives Jennifer Hooper and Christopher Bishop, of the Narcotics Enforcement Division, were traveling in the vicinity of the 1300 block of University Boulevard. At trial, Detective Hooper testified that they were "working an undercover operation in the area targeting street-level drug dealers." The detective explained that on the evening in question, she and Detective Bishop were working in an undercover capacity, driving an unmarked vehicle, and dressed in street clothes. Detective Bishop was driving the vehicle and Detective Hooper was in the front passenger seat.

Detective Hooper testified that as they traveled an access road in the 1300 block of University Boulevard, she made eye contact with appellant, whom she identified in court. Detective Upon completing the exchange, Detective Hooper returned to the vehicle and handed the crack cocaine to Detective Bishop. Detective Hooper testified that she also watched appellant while Detective Bishop radioed the "stop team" and that she and Bishop drove slowly from the area, keeping appellant in sight at all times until the stop team had detained him. Appellant was not arrested. Detective Hooper explained that under the terms of the police operation they had no intention of arresting appellant that evening.

                Hooper was also shown a photograph of appellant and testified that it accurately depicted appellant's appearance on the evening in question.  According to the detective, appellant "raised his left hand and flagged [her] over...."  Detective Bishop pulled the car to the side of the road.  Detective Hooper got out and walked to the front of the vehicle.  Appellant approached the detective and she asked him "if he had 20."   Detective Hooper explained that by doing so she was using street terminology to request a quantity of crack cocaine.  Detective Hooper then gave appellant $20 and received suspected crack cocaine in return.  Subsequent laboratory analysis of the item purchased by Detective Hooper determined that it was .10 gram of crack cocaine
                

Detective Bishop also testified that he and Detective Hooper had encountered appellant on the evening in question. According to Detective Bishop, appellant was walking on the sidewalk when he signaled to them to pull to the side of the road. The detective made an in-court identification of appellant as the man who signaled to them and also testified that a photograph of appellant accurately depicted his appearance on the evening in question. This photograph was admitted into evidence.

Detective Bishop further testified that after they pulled to the side of the road Detective Hooper exited the car and Bishop observed the transaction between appellant and Hooper. When Detective Hooper returned to the vehicle, she gave Bishop the crack cocaine she had purchased from appellant. Bishop radioed appellant's location and description to We will include additional facts as necessary in our discussion of the questions presented.

the stop team, and Detective Bishop drove slowly from the area.

DISCUSSION

I. Suppression of the Photograph

This case would have remained a profoundly insignificant one to all except its immediate parties but for the initial question presented, which we now address.

Prior to the start of trial, appellant moved to suppress the photograph of him that was taken by the stop team. Defense counsel set forth a statement of facts in which the State agreed:

I will recite the facts as I believe they are applicable. I'm basically taking them from the application of the statement of charges. It is my understanding on September 19th, 1996, it is alleged that my client was involved in an undercover sale of narcotics. After that alleged sale took place Officer Warren, whom we have spoken of here today, stopped the defendant and obtained a photograph of him. He was released.

It is my--what the officers and what the State has relayed to me concerning the stop of Mr. Flores is that he was stopped after the sale for identification purposes and he was photographed. There was I believe a pat down of the defendant. Then he was subsequently released.

Counsel then referred to Evans v. State, 113 Md.App. 347, 688 A.2d 28, cert. granted, 345 Md. 459, 693 A.2d 356 (1997), stating that Evans and appellant's case presented "very similar situation[s]" with a "buy/bust operation where a sale would be made [and][a]n officer would take a photograph and then the accused were [sic] arrested at a later time." Counsel alleged that under Evans, it was permissible for the police to take appellant's photograph only if they arrested him. Counsel claimed that since appellant was not arrested, "any seizure that occurred against [appellant's] person is invalid, and therefore that photograph that was seized from my client ... should be suppressed." Finding that Evans was inapposite to appellant's case, the suppression court denied the motion.

Appellant contends:

First, that the trial court erred in denying his motion to suppress as the photograph of him was obtained during an illegal stop. He alleges that even if the officers who stopped him had probable cause to arrest, since there was no arrest, the evidence obtained as a result of the stop, including the photograph of him, should have been suppressed in keeping with this Court's decision in Evans.

Secondly, because none of the officers who conducted the stop testified at trial, the photograph should not have been admitted at trial as it constituted hearsay.

The State claims that Evans does not apply to appellant's case since the police did not search his person. The State also contends that the seizure of appellant was conducted legally pursuant to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that taking appellant's photograph was not violative of the Fourth Amendment. In the alternative, the State alleges that even if the photograph should not have been admitted into evidence, as Detectives Hooper and Bishop identified appellant in court, any error committed was harmless beyond a reasonable doubt.

In reviewing the denial of a motion to suppress, we consider only the record of the suppression hearing and not that of the trial itself. Trusty v. State, 308 Md. 658, 670, 521 A.2d 749 (1987) (citing Jackson v. State, 52 Md.App. 327, 332 n. 5, 449 A.2d 438, cert. denied, 294 Md. 652 (1982)); Aiken v. State, 101 Md.App. 557, 563, 647 A.2d 1229 (1994), cert. denied, 337 Md. 89, 651 A.2d 854 (1995). We extend great deference to the factfinding of the suppression court and accept the facts as found, unless clearly erroneous. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App 341, 346-47, 574 A.2d 356 (1990). In addition, we review the evidence in the light most favorable to the prevailing party, the State. Riddick, 319 Md. at 183, 571 A.2d 1239; Cherry v. State, 86 Md.App. 234, 237, 586 A.2d 70 (1991). Nevertheless, this Court must make its own independent constitutional appraisal by reviewing the law and applying it to the facts of this case. Riddick, 319 Md. at 183, 571 A.2d 1239; Perkins, 83 Md.App. at 346, 574 A.2d 356.

We reject the Appellant's donnee. It is undisputed that when he was detained by the stop team, his identity determined, a photograph taken of him, and then released, under Evans, he had not been arrested. Appellant is incorrect, however, in concluding that the absence of an arrest requires the suppression of his photograph. Evans affects appellant's case only in that it leads us to the conclusion that an arrest cannot serve as a basis to justify the stop made by the police in his case, but Evans does not control appellant's case. The suppression court correctly recognized that Evanswas inapposite to the question before it.

In Evans, the defendant was caught in a police operation similar to that in the present case. The operation was designed to identify "street level drug dealers by making 'controlled buys' from them." 113 Md.App. at 351, 688 A.2d 28. One evening during the course of the operation, an undercover police officer purchased $10 worth of cocaine from Evans. The officer had used marked money to make the purchase. When the officer left the scene, he transmitted to a "technical team," by the body wire he was wearing, a description of Evans and his location. 113 Md.App. at 352, 688 A.2d 28. The technical team proceeded into the area and stopped Evans....