Hatcher v. State

• Decision Date: 07 November 2007
• Docket Number: No. 1055 September Term, 2006.,1055 September Term, 2006.
• Parties: Carroll Antonio HATCHER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

935 A.2d 468

177 Md. App. 359

Carroll Antonio HATCHER v. STATE of Maryland.

No. 1055 September Term, 2006.

Court of Special Appeals of Maryland.

November 7, 2007.

Katherine P. Rasin (Sarah Thorpe, Nancy S. Forster, Public Defender, on the brief), Baltimore, for Appellant.

Jeremy M. McCoy (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, for Appellee.

Panel: DAVIS, JAMES R. EYLER and MEREDITH, JJ.

JAMES R. EYLER, Judge.

Carroll Antonio Hatcher, appellant, was charged in the Circuit Court for Washington County with possession of cocaine and possession of cocaine with intent to distribute. Before trial, appellant filed a motion to suppress cocaine seized from his pants pocket. Following a suppression hearing, the court denied appellant's motion, and appellant was convicted by a jury of possession of cocaine with intent to distribute. Subsequently, appellant was sentenced to fifteen years' imprisonment, with all but 84 months suspended, and three years of unsupervised probation upon release. Appellant's sole contention on appeal is that the court's denial of his motion to suppress was in error. We shall affirm.

Appellant was a passenger in a vehicle stopped by police officers. The officers observed the driver of the vehicle run a red light and drive at an excessive speed, and they knew the vehicle had been stolen, prior to initiating the stop. The basis for our conclusion is that the arresting police officers had probable cause to arrest appellant and conduct a search incident to that arrest and, alternatively, that the cocaine would have been inevitably discovered.

Factual Background

On April 25, 2006, a suppression hearing was held pursuant to appellant's motion to suppress cocaine seized from his person during an illegal search. At that hearing, Officer Thomas Kelley testified as follows.

On December 15, 2005, at approximately 12:41 a.m., Officer Kelley and Officer Tom Niebauer of the Hagerstown Police Department, were stopped at a traffic light at the intersection of "North Jonathan and Franklin," when they observed a black Chevy run a red light on Franklin Street. At that time, Officer Kelley began to follow the vehicle, which was traveling at approximately 45 miles per hour in a zone with a posted speed limit of 25 miles per hour. The officers ran the vehicle registration through police dispatch and learned that the vehicle had been stolen in Leesburg, Virginia. Subsequently, the officers initiated a traffic stop by activating the police vehicle's lights and siren. The vehicle continued traveling approximately "a quarter of a mile to a half mile," however, and proceeded to a ramp onto southbound Interstate 81 before it stopped "just off the ... ramp."

Once the vehicle stopped, the officers conducted a "high-risk stop" based on the fact that the vehicle was reported stolen and initially failed to comply when the officers attempted to stop it. Officer Kelley testified that the high-risk stop consisted of giving verbal commands to the driver, with weapons drawn, to turn off the vehicle, remove the keys from the ignition, and drop the keys outside of the vehicle. The officers then advised the driver to exit the vehicle. The driver complied with the officers' request, and he was handcuffed and removed to a safe location where he was detained.

Officer Kelley stated that the front seat passenger, a female, was then commanded to exit the vehicle, was handcuffed, and removed to a safe location, where she was detained. The last occupant of the vehicle, appellant, who had been sitting in the rear, on the driver's side of the vehicle, was then commanded to exit the vehicle, was handcuffed, and removed to a safe location, where he was detained. Officer Kelley testified that, as each occupant was removed from the vehicle, "[d]uring each time of the handcuffing, as they were being removed to a safe location, a quick pat down was conducted for any possible weapons."

Officer Kelley testified that after confirming that the vehicle had been stolen and determining that all of the occupants were going to be placed under arrest for the vehicle theft, but prior to placing appellant in the rear of his police cruiser, he "searched" appellant. Officer Kelley's testimony in this regard was as follows.

THE STATE: And now proceeding on with what happened that evening, did there come a time when you patted down [appellant], the rear seat passenger?

OFFICER KELLEY: Yes. After the vehicle had been cleared for any possible or any additional suspects, I then went back, made contact with [appellant]. He was in a safe location. I u'm prior to placing him in the back of my police cruiser, once again searched him.

THE STATE: Let me ask you, at that point was it your intent at that point to place him in the back of the police cruiser before you patted him down?

OFFICER KELLEY: Yes to get — due to the — Believe it or not at that time of night 81 was very congested, a lot of traffic. It was determined, based on the information that we had, it was confirmed that the vehicle was stolen, that all suspects were to be placed under arrest and also to bring [appellant] to a safe location out of the flow of traffic or to at least get him off the uh in a vehicle, my determination was to place him in the back of the vehicle for his safety.

THE STATE: Okay. And Officer Kelley, let me — I just want to clarify some things. Do you have your reports in front of you?

OFFICER KELLEY: Yes.

THE STATE: Okay and this — just to make sure we get a good chronology for the [c]ourt, at the time that you were going to conduct the pat down —

OFFICER KELLEY: Yes.

THE STATE: Okay you placed [appellant] in handcuffs at that point is that correct? Before patting him down?

OFFICER KELLEY: He had already — Excuse me. [Appellant] had already been in handcuffs at that time, yes. And another officer had already patted him down.

THE STATE: Okay so another officer had patted him down. Was anything found at that point that you know of?

OFFICER KELLEY: Not that I know of, no sir.

THE STATE: So at what point was it that you sear — that you conducted any further search of [appellant]?

OFFICER KELLEY: Prior to placing him in the back of the vehicle, which each day I sign out that vehicle, I am responsible for that vehicle, any contents of that vehicle I am responsible for. So before each — At the beginning of each shift, at the end of each shift, I search the interior compartment of that vehicle, be it the passenger compartment, under the driver and passenger side seats. I search that. Anyone that is taken into custody, be it myself or another officer makes an arrest and I'm required to transport, I search that person the best I can to uphold the integrity of my search of the compartment of that vehicle.... But to uphold the integrity of the original or the initial search, anybody that is put in the vehicle is searched by myself.

THE STATE: And prior to conducting that search that we're talking about and will describe for the [c]ourt in a second here, was it your intent to place [appellant] under arrest on the car issue, the car theft issue?

OFFICER KELLEY: Yes.

THE STATE: Okay. And what did you do then — Could you please explain to the [c]ourt what type of search you conducted and what you found if anything?

OFFICER KELLEY: I searched the outer area of [appellant]. I then proceeded to check his pockets. And then as I checked his right front pocket, I felt an object that was hard, a hard cylinder object that was consistent, based on initial feeling of it, with the size of an item that I believed to be possibly a or consistent to be with a crack cocaine pipe. I proceeded further, removed the item from his pocket. It was wrapped in a piece of cloth with a rubber band wrapped around it. I removed the rubber band, the cloth and there was a glass pipe with wire mesh on one end. The contents of that wire mesh had burnt residue. And through my training, knowledge and experience, I suspected that the item was used to smoke crack cocaine and that the residue was possibly crack cocaine in the burnt — in the mesh. In addition in the same area a small plastic zip-lock baggie contained a white or beige rocklike substance. Also through my training, knowledge and experience I initially suspected the item to be, recognized the item to be, suspected to be crack cocaine.

I maintained custody of those items, continued with the search and then placed [appellant] in the back of the car. Now the search was not an extensive search. It was just the, like you could say the personal compartments of [appellant] which consisted of pockets, the belt lining and again the belt lining for any possible hidden weapons or contrabands that may have been missed and then I rubbed down the legs and sock area.

On cross-examination, Officer Kelley testified that, although he had information that the vehicle was stolen, he had not received information prior to the stop that appellant was wanted for the theft. As the officers were in the "process of leaving" the scene, the police dispatcher advised that "Carroll Antonio Hatcher" was wanted for the theft, in Leesburg, Virginia. At that time, Officer Kelley was still trying to determine if appellant was Carroll Antonio Hatcher because he had identified himself as "Randolph T. Hatcher," and presented a New Jersey identification card so indicating. At some point, Officer Kelley also learned that there was a warrant for the driver of the vehicle, Dewaine Feaster.

As noted earlier, Officer Kelley testified that a "pat-down" had occurred prior to his search of appellant. On cross examination, Officer Kelley testified that he "assumed" a "pat-down" had occurred prior to his search. The pertinent testimony follows.

APPELLANT'S COUNSEL: Officer Kelley, who was driving the vehicle in question?

OFFICER KELLEY: A black male who was later identified as Dewaine . . . Feaster. . . .

APPELLANT'S COUNSEL: And the record would indicate that there...