Graham v. State

• Decision Date: 02 February 1998
• Docket Number: No. 491,491
• Citation: Graham v. State, 705 A.2d 82, 119 Md.App. 444 (Md. App. 1998)
• Parties: Kelly GRAHAM v. STATE of Maryland. Sept. Term., 1997.
• Court: Maryland Court of Appeals

Page 444

119 Md.App. 444

705 A.2d 82

Kelly GRAHAM v. STATE of Maryland.

No. 491 Sept. Term., 1997.

Court of Special Appeals of Maryland.

Feb. 2, 1998.

Arthur A. DeLano, Jr., Asst. Public Defender, Baltimore, for appellant.

Devy Patterson Russell, Asst. Atty. Gen., for appellee.

Before CATHELL ^*, DAVIS and SONNER, JJ.

DAVIS, Judge.

Appellant Kelly Graham was sentenced to a term of ten years imprisonment, with all but five and one-half years suspended and a probationary period following service of the unsuspended portion of the sentence upon his conviction by a jury in the Circuit Court for Washington County of possession of cocaine with intent to distribute. From the conviction and sentence, he presents for our review one issue:

Whether the lower court erred in denying his motion to suppress the drugs recovered from his person.

PREFACE

Liberty comes not from officials by grace but from the Constitution by right.

These words were uttered by United States Supreme Court Justice Anthony M. Kennedy in his dissenting opinion in the recent case of Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997). Justice Kennedy was referring to what he perceived to be the implications of the Court's decision in Wilson in conjunction with the Court's decision in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Optimistically anticipating that "most officers ... will exercise their new power with discretion....," Justice Kennedy predicted what he considered would be the result of the Wilson decision.

The practical effect of our holding in Whren, of course, is to allow the police to stop vehicles in almost countless circumstances. When Whren is coupled with today's holding, the Court puts tens of millions of passengers at risk of arbitrary control by the police. If the command to exit were to become commonplace, the Constitution would be diminished in a most public way.

519 U.S. at ----, 117 S.Ct. at 890. In a separate dissenting opinion authored by Justice Stevens, citing the Annual Report of the Maryland Judiciary (1994-1995), the opinion observed that, "in Maryland alone, there are something on the order of one million traffic stops each year." Id. at ----, 117 S.Ct. at 888.

The majority opinion in Wilson, of course, held that "an officer making a traffic stop may order passengers to get out of the car pending completion of the stop." Id. at ----, 117 S.Ct. at 886. Pertinent to our decision herein, the Court noted:

Maryland urges us to go further and hold that an officer may forcibly detain a passenger for the entire duration of the stop. But respondent was subjected to no detention based on the stopping of the car once he had left it; his arrest was based on probable cause to believe that he was guilty of possession of cocaine with intent to distribute. The question which Maryland wishes answered, therefore, is not presented by this case, and we express no opinion upon it.

Id. at ---- n. 3, 117 S.Ct. at 886 n. 3. Thus, although the Supreme Court was presented with the question of what actions police officers making traffic stops may take vis-a-vis the passengers in the vehicle, it confined its holding to the narrow issue of whether such passengers could be ordered out of the vehicle. Significantly, the underlying basis for allowing officers conducting traffic stops to order the passengers out of the vehicle is for the protection and safety of the officers. Id. at ----, 117 S.Ct. at 887; Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). Absent facts that would indicate a threat to the safety of the officer, the only viable basis for a continued detention of a passenger beyond that period of time necessary to dispose of the traffic infraction must be justified by a reasonable suspicion that criminal activity is afoot. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983); Berkemer v. McCarty, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 3148, 82 L.Ed.2d 317 (1984).

We are called upon in this appeal to decide whether, and for how long, police officers may detain a passenger once the stated purpose of a traffic stop has been effectuated. For the reasons set forth in the discussion which follows, we shall reverse the judgment of conviction.

FACTS

On the evening of February 28, 1996, at approximately 9:10 p.m., Trooper First-Class Jeffrey L. Kissner, while on drug interdiction patrol assigned to intercept drug couriers, observed the vehicle in which appellant was a passenger exceeding the posted speed limit on Route 81 in Washington County. He also observed that the light illuminating the vehicle's license plate was out. Consequently, Trooper Kissner stopped the vehicle.

Trooper Kissner had been working as a member of a two-car drug interdiction team, the other vehicle having been operated by K-9 Trooper First-Class Charles Stanford, who employed Dillon, a K-9 qualified and certified as a patrol/attack and narcotics canine. At the inception of the traffic stop, Trooper Stanford and the K-9 were involved in a stop at another location which resulted in at least a twenty minute delay in arriving at the location of appellant's traffic stop. Ordinarily, Trooper Stanford and the K-9 would have arrived within a few minutes.

The operator of the vehicle, Carey Lee Davis, when ordered to produce his driver's license and the vehicle's registration card, advised Trooper Kissner that he did not have a driver's license. Appellant thereupon produced a registration card and informed the officer that he was the owner of the car. Of the two forms of identification appellant displayed, neither was a driver's license.

In response to the trooper's inquiry, Trooper Kissner stated that one of the two occupants had said they were traveling from New Jersey whereas the other occupant told him they were coming from Pennsylvania. Both had indicated they were en route to Martinsburg, West Virginia. Trooper Kissner then radioed to Trooper Stanford requesting that the K-9 unit respond to his location.

After directing Davis, the operator of the vehicle, to sit in his police car, Trooper Kissner radioed the police barracks for verification that Davis had no driver's license. Sometime shortly after requesting information regarding the status of Davis's driving privileges, Trooper Kissner received information that the operator's driving privileges had been suspended. The driver was then placed under arrest and appellant was ordered to remain in his vehicle.

As previously indicated, occasioned by his presence at another traffic stop, Trooper Stanford and the K-9, Dillon, arrived approximately twenty-five minutes after the initial stop. On command, the K-9 circled the vehicle in an effort to detect narcotics, during which Trooper Stanford gave the command "up search," directing the K-9 to the driver's side window which was open. Dillon raised up on his hind legs, put his head in the window of the vehicle, and "alerted" to the presence of narcotics by sitting, after withdrawing from the driver's side window.

Appellant was then told to exit the car and, when he did, he was ordered to remove his left hand which had been in his left coat pocket. Upon a second command to remove his hand, one of the troopers reached into appellant's pocket and found fifty vials of what appeared to be cocaine. The substance was later determined to be cocaine whereupon appellant was arrested.

STANDARD OF REVIEW

In reviewing the denial of a motion to suppress under MARYLAND RULE 4-252, we look only to the record of the suppression hearing and do not consider the record of the trial. Trusty v. State, 308 Md. 658, 670, 521 A.2d 749 (1987) (quoting Jackson v. State, 52 Md.App. 327, 332 n. 5, 449 A.2d 438, cert. denied, 294 Md. 652 (1982)); see also Gamble v. State, 318 Md. 120, 125, 567 A.2d 95 (1989); Herod v. State, 311 Md. 288, 290, 534 A.2d 362 (1987). In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to determining the credibility of the witnesses and to weighing and determining first-level facts. Perkins v. State, 83 Md.App. 341, 346, 574 A.2d 356 (1990). When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that his findings are clearly erroneous. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990). As to the ultimate conclusion, however, we must make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Riddick, 319 Md. at 183, 571 A.2d 1239; Perkins, 83 Md.App. at 346, 574 A.2d 356.

THE PRECISE ISSUE PRESENTED

We have identified the issue the Court declined to address in Wilson, 519 U.S. at ---- n. 3, 117 S.Ct. at 886 n. 3, as whether "[a]n officer may forcibly detain a passenger for the entire duration of the stop." The case sub judice, in precise terms, poses the question, "Is it constitutionally permissible to detain passengers of a vehicle once the purpose of the traffic stop has been effectuated?" ¹ Lest there be any doubt, appellant was no less detained against his will than the passenger in Dennis v. State, 345 Md. 649, 693 A.2d 1150 (1997) in which the passenger there "rather than heeding the police command to remain in the vehicle, ... walks away from the scene and subsequently resists police attempts at detention." Id. at 650, 693 A.2d 1150. To suggest, somehow, that one may simply alight from a vehicle and casually walk away once a State Trooper has ordered one to remain in the vehicle is sheer folly. As the Court said in Royer:

First, it is submitted that the entire encounter was consensual and hence [Respondent] was not being held against his will at all. We find this submission untenable. Asking for and examining [Respondent's] ticket and his driver's license were no doubt permissible in themselves, but when the officers identified...