Gilmore v. State

• Decision Date: 25 April 2012
• Docket Number: No. 2744,Sept. Term, 2009.,2744
• Citation: 42 A.3d 123,204 Md.App. 556
• Parties: Bruce Wayne GILMORE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

204 Md.App. 556

42 A.3d 123

Bruce Wayne GILMORE

v.STATE of Maryland.

No. 2744, Sept. Term, 2009.

Court of Special Appeals of Maryland.

April 25, 2012.

Martha Gillespie (Paul B. DeWolfe, Public Defender, on the brief) Baltimore, for appellant.

Gary E. O'Connor (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: EYLER, JAMES R., MEREDITH and JAMES P. SALMON (Retired, specially assigned), JJ.

MEREDITH, J.

Bruce Wayne Gilmore, appellant, was charged in the Circuit Court for Prince George's County with possession of cocaine and marijuana, and possession with intent to distribute cocaine and marijuana. Prior to trial, appellant filed a motion to suppress evidence seized from his person prior to his arrest. After the motion was denied, the case proceeded by way of a bench trial on an agreed statement of facts. Appellant was found guilty of possession of cocaine, and possession with intent to distribute cocaine. The charges for possession of marijuana and possession with intent to distribute marijuana were initially placed on the STET docket, and later nolle prossed. Appellant was sentenced to eight years' incarceration, all but four of which were suspended, subject to five years' supervised probation.

The sole question presented for our consideration is whether the circuit court erred in denying appellant's motion to suppress. Because the detention of appellant which led to the search was based upon the police officer's mistake of law as to whether the observed conduct was prohibited, we shall reverse.

Factual Background

Appellant contends that the circuit court erred in denying his motion to suppress cocaine and marijuana seized from his person after an unlawful detention that was purportedly based upon a parking infraction. Our review of a trial court's denial of a motion to suppress is limited to the record of the suppression hearing, and we do not consider the trial record. Brown v. State, 397 Md. 89, 98, 916 A.2d 245 (2007); Myers v. State, 395 Md. 261, 274, 909 A.2d 1048 (2006); State v. Green, 375 Md. 595, 607, 826 A.2d 486 (2003)(citing Dashiell v. State, 374 Md. 85, 93, 821 A.2d 372 (2003)). “Although we extend great deference to the hearing judge's findings of fact, we review, independently, the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law and, accordingly, should be suppressed.” Laney v. State, 379 Md. 522, 533–34, 842 A.2d 773 (2004) (citations omitted). In addition, we review the evidence in the light most favorable to the prevailing party, in this case, the State. Brown, 397 Md. at 98, 916 A.2d 245;Myers, 395 Md. at 274, 909 A.2d 1048;Green, 375 Md. at 607, 826 A.2d 486;Cartnail v. State, 359 Md. 272, 282, 753 A.2d 519 (2002).

At the suppression hearing, Corporal Derrick Neumer of the Prince George's County Police Department, testified that, on February 7, 2008, he was working on a special assignment team “saturating high drug trafficking areas.” He observed appellant backing his vehicle into a parking space at a liquor store known as the 51 Club. According to Corporal Neumer, appellant parked his car so that it was centered over one of the lines of a parking space, and, as a consequence, his vehicle occupied two parking spaces. After appellant and a passenger from his vehicle entered the liquor store, Corporal Neumer observed other vehicles attempting to park, but they were unable to park in the spots occupied by appellant's vehicle because of the manner in which appellant's vehicle straddled a line.

Corporal Neumer waited approximately 10 minutes for appellant to exit the liquor store and return to his vehicle. He then confronted appellant and asked him “why he parked his car like that in a parking lot.” Appellant responded that “he didn't realize he parked his car that way.” Corporal Neumer advised appellant that other people were trying to visit the liquor store, but were unable to use one of the parking spaces, and that appellant “was in violation.” He asked appellant for his driver's license and registration, which appellant handed over.

While Corporal Neumer ran a registration and license check, he observed that appellant, who was five to ten feet in front of him, “appeared to be very nervous,” and “kept moving back and forth ... placing both hands in his pockets.” Out of concern for officer safety, Corporal Neumer instructed appellant not to place his hands in his pockets. Thereafter, appellant “bladed his body,” so as to turn or twist his torso away from Corporal Neumer with his hand in his pocket. It was the officer's experience that some prior suspects he had encountered had “discarded things out of their pockets while doing that.” After appellant again put his hands back in his pockets, Corporal Neumer approached appellant and advised that he would “have to conduct a pat down for officer safety, and that if everything checked out okay, he could put his hands in his pocket.” As Corporal Neumer approached to conduct the pat down, he asked appellant if he had any weapons in his possession, and appellant stated that he had a knife in his left pocket. In conducting the pat down, Corporal Neumer located the knife in appellant's left jacket pocket. Intending to hold the knife until the records check came back, Corporal Neumer reached into the pocket. As he pulled the knife out of appellant's pocket, Corporal Neumer saw that there was a bag “hooked right with the front of the knife and it had—it was a clear sandwich baggie with a green leafy substance” that a subsequent field test revealed was marijuana. Corporal Neumer advised appellant that he was under arrest and placed handcuffs on him.

Corporal Neumer then conducted a more thorough search of appellant. He found another bag of suspected marijuana in appellant's right jacket pocket, and 16 bags of crack cocaine in his pants pocket. Corporal Neumer also searched appellant's vehicle, and found two glassine baggies containing suspected controlled dangerous substances.

Appellant moved to suppress the evidence recovered from his person. He argued that there was no traffic offense which justified the officer's detention of appellant in the parking lot, and it was that unlawful detention that led to the officer's recovery of the evidence.

At the suppression hearing, Corporal Neumer described his justification for approaching appellant as follows:

Q. [Prosecutor]: What caused you to come into contract with Mr. Gilmore?

A. [Corporal Neumer]: I observed Mr. Gilmore backing his vehicle into the parking space of the 51 Club parking lot area and he—the way he pulled his car back, he completely took up two lanes. He pulled his car, center over the line, and other vehicles that were attempting to get in—after he and the passenger got out of the vehicle, they went into the liquor store, and other vehicles that were attempting to get in could not use either one of the two spaces that he was parked in. At that point, other people were going around, parking in other areas. So we waited for the defendant to come out of the store, to question him in reference to the violation.

* * *

Q. ... Is double parking in the liquor store parking lot a traffic offense?

A. Yes, it is.

Q. Do you recall what specific offense that is?

A. It's parked in a double space.

On cross-examination, Corporal Neumer reiterated that occupying two spaces was the specific traffic violation for which he approached appellant and detained him during a records check:

Q. [Defense Counsel]: And are you familiar with the ordinance that indicates that when an officer sees a parking violation and the car is unattended, that they just leave a citation on the window?

A. [Corporal Neumer]: Yes.

Q. Are you also aware that this ordinance indicates that if you do come in contact with the parking offender, that you then also give them a citation?

A. Yes.

Q. But none of that took place, either giving a citation or leaving a citation?

A. We were not able to put one on his window.

Q. Or give him a citation.

A. Not until he came out, no.

Q. Did you give him a citation?

A. No. We gave him a verbal warning though.

Q. Now, based on the photographs, it seems like he is not what is traditionally called double parking, but actually just parking within more than one parking space. Would you agree with that?

A. He's taking up two parking spaces, yes.

* * *

... I know this is illegal, right here, in terms of taking up two parking spaces. We were trained that at the academy.

In his closing argument at the suppression hearing, defense counsel argued, in part:

There is no ordinance or citation in the parking citations on what is a parking violation that indicates that parking in more than one spot is a violation of any parking ordinance. In fact, Maryland Code 21–1003 delineates every single parking type of violation, from stop and standing parking that is prohibited, and no place within the regulation is parking in more than one spot enumerated.

The prosecutor argued in response: “[T]he vehicle was double parked. At that point the officer had reasonable articulable suspicion that a traffic offense had occurred.” The prosecutor further argued that, even if there was no parking violation, the officer was permitted to approach the appellant to verify the status of his driver's license and registration. The court asked the prosecutor: “What is the section you're referring to to establish the violation, that there was a parking violation?” The prosecutor replied: “Well, the officer conceded he did not cite him for that. I don't have that particular statute or provision—.”

At the conclusion of the suppression hearing, the court denied appellant's motion, stating, in part:

Based on the testimony of Officer Neumer, it appears to the Court that the defendant was operating his vehicle on the date and time as stated and that the officers had observed him back into a parking space, and he parked between the markings in...