Green v. State

• Decision Date: 08 July 2002
• Docket Number: No. 00683,00683
• Citation: 802 A.2d 1130,145 Md. App. 360
• Parties: Richard Brandon GREEN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

802 A.2d 1130

145 Md. App. 360

Richard Brandon GREEN v. STATE of Maryland.

No. 00683, Sept. Term, 2001.

Court of Special Appeals of Maryland.

July 8, 2002.

Claudia A. Cortese, Assistant Public Defender (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.

Leigh S. Halstad, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, Baltimore, and David W. Gregory, State's Attorney for Queen Anne's County of Centreville, on the brief), for appellee.

Submitted before HOLLANDER, EYLER, JAMES R. and SONNER, JJ.

HOLLANDER, J.

Richard Brandon Green, appellant, was stopped for speeding in Queen Anne's County. In a search of Green's car at the scene, police found marijuana and cocaine. As a result, appellant was charged with narcotics violations. Green moved to suppress the fruits of the warrantless search but, after an evidentiary hearing, the court denied the motion, finding that the search was consensual. On March 15, 2001, Green tendered a plea of not guilty in the Circuit Court for Queen Anne's County, and proceeded by way of an agreed statement of facts. Thereafter, he was convicted of possession of marijuana with intent to distribute and possession of cocaine, for which the court sentenced him to consecutive terms of four years and two years, respectively.

On appeal, appellant poses a single question: "Did the trial court err in denying [his] motion to suppress the cocaine and marijuana found in his car?" That question requires us to focus on whether the lawful traffic stop ripened into an illegal detention or, instead, a consensual encounter in which appellant voluntarily consented to the vehicle search.

SUPPRESSION HEARING FACTS

The court held a suppression hearing on September 28, 2000. The following evidence was adduced at the hearing.

Deputy Mark Meil of the Queen Anne's County Sheriff's Office testified that, on the evening of March 26, 2000, he was working stationary radar near Route 302 and Dixon Tavern Road in Queen Anne's County. At around 7:30 p.m., he clocked a black 1999 Mercury traveling westbound on Route 302 at 65 m.p.h.; the zone had a posted speed limit of 50 m.p.h. Accordingly, the deputy activated his emergency equipment and executed a stop of the car. Upon exiting his vehicle, the deputy approached the driver's side of the Mercury. Appellant, who was sitting in the driver's seat, was the sole occupant of that vehicle. The deputy told appellant that he had stopped him for speeding. In response to the deputy's request, appellant produced his license and vehicle registration. Appellant also responded to an inquiry from the deputy by stating that he had two points on his license.

The deputy returned to his cruiser and ran a check of appellant's license and registration, and "a criminal check for any caution codes for officers' safety." Shortly thereafter, the deputy learned that appellant's license was valid, the vehicle was registered to Green, appellant had several points on his license, and there were no outstanding warrants for Green's arrest. The deputy testified that he decided to issue a warning citation to appellant, which he wrote while in the cruiser.

As the deputy walked towards appellant's car, he was advised, via police radio, that appellant had "prior caution codes for armed and dangerous and ... drugs." Nevertheless, Meil advised Green that he was issuing a warning citation to him for speeding. Moreover, Meil said that he returned appellant's license and registration at that time, and also gave him the warning. Additionally, Meil asserted that he "advised [appellant] that he was free to go...." In view of Green's "past history," however, Meil immediately asked appellant whether he would "mind answering a few questions before he [left] the scene...." According to the deputy, appellant responded, "`Sure.'" Appellant does not dispute that he said "sure" in response to the deputy's request.

While appellant was seated behind the steering wheel, with the keys in the ignition, the deputy asked appellant whether he had any guns, drugs, or alcohol in the car. Appellant responded, "No." Meil testified that he then made another request of appellant; he asked Green "if he would consent to a search of his person and vehicle...." According to Meil, appellant replied, `Sure. Go ahead.'" Appellant disputes that comment.

After Green consented to the searches of person and vehicle, the deputy asked appellant to exit the vehicle "for officer safety given [appellant's] past criminal history of armed and dangerous, not knowing whether there might be a hand gun in the vehicle." Moreover, after appellant gave his consent, the officer called for back-up, for the purpose of "watch[ing] the Defendant while [Meil] searched the vehicle." The deputy explained that he made the request for back-up for "officer safety," because he could not watch Green while also searching the car. When asked what the officer was "worried" about, Meil answered: "Given the area and location, it was extremely dark out, [appellant] was much larger than I was, his past criminal history of violence with hand guns, I didn't feel good about that at all." The deputy did not tell appellant that, if he consented to a search, he would have to wait for the arrival of a back-up unit.

When appellant exited his car, Deputy Meil frisked appellant and searched his pockets, but found nothing noteworthy. The deputy then "visually" looked in the "open areas" of the car at that time, but did not observe anything significant. Deputy Meil did not conduct a full scale search of the car at that time. Instead, he and appellant waited about fifteen minutes for the arrival of the back-up unit; only then did Meil conduct a thorough vehicle search.

According to Meil, appellant "was free to go at any time." Meil acknowledged, however, that although he told appellant he was free to go at the time he returned appellant's documents, he never informed appellant that he could refuse to consent to the frisk or the vehicle search. Moreover, Meil never informed appellant that he could leave if he did not want to continue to wait for the arrival of the back-up unit. Deputy Meil maintained, however, that appellant never said that he wanted to leave, nor did appellant indicate that he changed his mind about allowing Deputy Meil to search his car.

Meil acknowledged that appellant "was cooperative the whole time," stating: "I never had a problem with him." Moreover, Meil conceded that appellant never tried to escape during the encounter, he never threatened Meil in any way during the stop, and he never made any "furtive movements" suggestive of an effort to hide contraband or retrieve a weapon. In short, the deputy did not identify anything about appellant's conduct or behavior that amounted to reasonable, articulable suspicion to continue the detention. While Meil and Green waited for back-up, Meil learned from appellant that appellant had been convicted of armed robbery about fifteen years earlier.

Corporal Riggleman testified that, at about 7:45 p.m. on March 26, 2000, he was advised to respond to the scene. He recalled that it took him about 15 to 20 minutes to reach the location. When asked if he was at the scene "to make sure [that] appellant didn't leave," Riggleman answered, "Correct."

Upon the arrival of Corporal Riggleman, Deputy Meil searched appellant's car while the corporal watched appellant. The search began at about 8:04 p.m. During the search, the deputy's attention was drawn to the center console by the faint odor of marijuana. The deputy opened the console and found a black zipper bag containing two bags of a green leafy substance. The zipper bag also contained 110 bags of various colors and sizes; they contained a white rock like substance of suspected cocaine. Appellant was then arrested.

Appellant also testified at the hearing. Much of his testimony was consistent with the State's evidence or was never disputed by the State.

On the night in question, appellant was driving on Route 302 in his 1999 Mercury Sable when he was stopped for speeding by Meil. He produced his license and registration, which Meil took back to his cruiser. Appellant claimed that the deputy did not give him his license or registration when the deputy returned to appellant's car. But, appellant agreed that Deputy Meil asked him if he would answer a few questions, and appellant said, "Sure." Deputy Meil then asked whether appellant had any guns, drugs, or alcohol in his car, and appellant replied that he did not. The deputy also inquired about appellant's criminal record, and then asked Green to submit to the search of his car. Appellant claimed that he refused to consent to a search. At that point, according to Green, Deputy Meil told him, "You have to step out of the vehicle, sir," and appellant complied. In his testimony, Green explained that he complied because he did not believe that he had a choice. Appellant acknowledged, however, that after he was ordered out of his car, he never told Meil that he wanted to leave.

Meil proceeded to frisk appellant. The deputy also emptied appellant's pockets. Then, using a flashlight, the officer looked inside Green's vehicle, while appellant was required to stand with his hands on the trunk of the car. As the officer peered into the car, appellant asked the deputy if he wanted appellant to open the trunk. Appellant testified:

[The deputy] had me stand with my hands on the trunk of my car and he went in my car. He took his flashlight. He looked under the passenger, the driver's side of the seat first. Then he got out, closed that door and went around to the passenger's side and looked under that seat. So, at that point, I said, "Well, do you want me to open the trunk for you?" He said, "No. You just stand right there like that." I said, "Okay." So, at that point, he said, "Well, I'm going to call for back up." I said, "Why I got to go through all of this for for just a traffic

...