Grant v. State

• Decision Date: 08 June 1983
• Docket Number: No. 719,719
• Citation: 55 Md.App. 1,461 A.2d 524
• Parties: William McKlveen GRANT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 1

55 Md.App. 1

461 A.2d 524

William McKlveen GRANT v. STATE of Maryland.

No. 719.

Court of Special Appeals of Maryland.

June 8, 1983.

Fred R. Joseph and Shelly E. Mintz, Hyattsville, with whom were Smith, Joseph, Greenwald & Laake, Hyattsville, on brief, for appellant.

Patricia E. McDonald, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen., Warren B. Duckett, Jr., State's Atty., for Anne Arundel County and Gerald K. Anders, Deputy State's Atty., for Anne Arundel County, on brief, for appellee.

Argued before MOYLAN, LOWE and ALPERT, JJ.

MOYLAN, Judge.

Far from condemning the alert and diligent efforts of the drug enforcement officers in this case, we applaud them. As a result of their efforts, a significant, high-level functionary in an underworld network importing contraband narcotics from Florida into Maryland has been brought to book. We approach this appeal bearing in mind the wisdom expressed by Justice Powell ¹ in his concurring opinion in United States v. Mendenhall, 446 U.S. 544, 561-562, 100 S.Ct. 1870, 1880-1881, 64 L.Ed.2d 497, 514 (1980):

"The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances. Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs, including heroin, may be easily concealed. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement."

The appellant, William McKlveen Grant, was convicted by an Anne Arundel County jury, presided over by Judge Raymond G. Thieme, Jr., of unlawful possession with intent to distribute contraband cocaine and of conspiracy to possess and distribute cocaine. He was discovered at the Baltimore-Washington International Airport to be in possession of 124 grams of 60% pure cocaine. Expert testimony established that that cocaine would be "cut" to a level of 10% purity before it hit the streets of Maryland and that the approximate street value was $48,000. Upon this appeal, the appellant raises five contentions:

(1) That the search of his suitcase and the seizure of the cocaine represented a violation of his Fourth Amendment rights;

(2) That a Corporal Cusimano should not have been allowed to testify as to "the drug courier profile" or as to the street value of the cocaine that was found in the appellant's possession;

(3) That Judge Thieme erroneously refused to grant the defense request for a bill of particulars;

(4) That Judge Thieme erroneously denied the appellant's motion to dismiss the indictment pursuant to Md.Rule 711; and

(5) That Judge Thieme erroneously excluded character evidence offered by the defense.

The Search and Seizure

We deal first with the suppression issue. The indispensable predicate for the exclusion of highly probative evidence is that the investigative behavior of the police be unreasonable within the contemplation of the Fourth Amendment. Far from being unreasonable, the investigative behavior in this case was a model of both thoroughness and restraint. Had they done other than what they did, the police would have been derelict and the scourge upon our society that is the drug traffic would have gone on unabated.

The reason for the police investigation in this case was that the appellant and his co-conspirator, Frank Anthony Herrmann, met a number of the telltale characteristics of the so-called "drug courier profile," promulgated by the Drug Enforcement Agency to assist federal and state agents in spotting possible drug couriers. A preliminary word is in order about the special training and the mission of the State Trooper who first questioned the appellant and ultimately seized the appellant's suitcase. Corporal Wayne Cusimano had been a Maryland State Policeman for 15 1/2 years. At the time of the investigation in this case, he had been assigned to the Special Services Intelligence Section for the preceding four years. As a part of his duties with the Special Services Intelligence Section, Corporal Cusimano had been assigned for the preceding five months to the Baltimore-Washington International Airport where his special mission was to intercept drugs coming into Baltimore from certain designated "source cities." During those five months at the Baltimore-Washington International Airport, Corporal Cusimano had received on-the-job training through DEA agents and had attended a DEA seminar on the airport courier situation throughout the country.

An additional preliminary word is also in order about the so-called "drug courier profile." It is a convenient descriptive term without a great deal of legal significance. Some lament the fact that the Supreme Court has not yet told us whether meeting the so-called "drug courier profile" is an adequate predicate to establish either articulable suspicion for a stop or probable cause for an arrest or search. Of course, the Supreme Court has not told us that and they never will. Indeed, they cannot, for there is no such thing as a single drug courier profile; there are infinite drug courier profiles. The very notion is protean, not monolithic. United States v. Mendenhall, supra, refers to it as "an informally compiled abstract of characteristics thought typical of persons carrying illicit drugs." 446 U.S. at 547 n. 1, 100 S.Ct. at 1873 n. 1. It is simply an open-ended laundry list of more or less suspicious circumstances, some of which may occur in a particular case.

A larger number of the more suspicious circumstances may well pass constitutional muster in a given case, whereas a smaller number of more ambiguous circumstances will not pass muster in another case. In United States v. Mendenhall, supra, the particular characteristics there present were deemed to be enough to establish articulable suspicion for a Terry -type stop. ² In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), a different collection of characteristics from the laundry list did not pass constitutional muster. Yet, in the next case, Florida v. Royer, --- U.S. ----, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), a different collection of characteristics did pass constitutional muster. There is no inconsistency among these three cases.

It is rather the case that the suppression hearing judge and the reviewing court will look at the actual observations testified to on a case-by-case basis and will decide whether those observations add up to articulable suspicion and/or probable cause, just as if the phrase "drug courier profile" had never been coined. The only legal significance to this umbrella term called "the profile" is that the expertise of the police will be legitimately taken into consideration when we assess the significance of observations that might to the untrained layman seem completely ambiguous. The establishment of the profile by the Drug Enforcement Agency simply gives us the benefit of the collective expertise of many investigators working nationwide in this sensitive area of law enforcement. The special significance that a given observation might have to a trained and experienced policeman could always be established on a case-by-case basis, even if the "profile" did not exist.

Corporal Cusimano was on duty at the airport at 11:15 a.m. on March 13, 1981, when a Delta Airlines flight arrived from Miami/Fort Lauderdale. According to the "drug courier profile," Miami/Fort Lauderdale is a "source city" for narcotics arriving in the Baltimore area. Corporal Cusimano watched the passengers deplane and then followed them to the baggage claim area. He testified that two of the characteristics according to the "profile" were that (1) couriers would typically carry very little by way of luggage and (2) at the baggage claim area, they would frequently stay away from the luggage until they deemed it safe to pick it up. Corporal Cusimano observed the codefendant, Frank Anthony Herrmann, behaving "in a nervous and suspicious manner" as he picked up a small suitcase. He walked abruptly away from the baggage claim area and appeared to glance down at the tag on the bag in a surreptitious fashion. Corporal Cusimano followed Mr. Herrmann to the premium parking lot directly in front of the airport. He observed Mr. Herrmann approach a parked maroon-colored Lincoln, in which the appellant was seated on the driver's side. Mr. Herrmann opened the rear door of the automobile and placed the bag on the rear seat.

To that point, there is nothing remotely requiring constitutional analysis, for Corporal Cusimano was only observing what was visible for anyone to see and no constitutional right of the appellant was even dimly involved.

At that point, Corporal Cusimano approached the automobile and asked whether either Mr. Herrmann or the appellant could produce a claim check. For the next few minutes, there was conversation between the Corporal, on the one hand, and the appellant and Herrmann on the other hand. As each answer provoked new questions, that conversation took on increasingly suspicious overtones. Before recounting it and its legal significance, we preface it with our conclusion that the gears of the Fourth Amendment were not yet engaged. As Justice White observed in his concurring opinion in Terry v. Ohio, supra, at 392 U.S. 34, at 88 S.Ct. 1886, "There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets." The United States Court of Appeals for the Sixth Circuit spoke to the same issue in United States v. Collis, 699 F.2d 832, 835 (1963):

"The average citizen may well elect to stop and respond to inquiries of a law enforcement officer, compelled, perhaps, by a desire to assist the officer in the prevention of crime or, as noted by the lower court, bound by a sense of...