Henderson v. State, 20, Sept. Term, 2009.

• Court: Court of Appeals of Maryland
• Writing for the Court: MURPHY
• Citation: 416 Md. 125,5 A.3d 1072
• Parties: Hayward T. HENDERSON v. STATE of Maryland.
• Docket Number: No. 20, Sept. Term, 2009.,20, Sept. Term, 2009.
• Decision Date: 07 October 2010

5 A.3d 1072
416 Md. 125

Hayward T. HENDERSON
v.
STATE of Maryland.

No. 20, Sept. Term, 2009.

Court of Appeals of Maryland.

Oct. 7, 2010.

5 A.3d 1073

Nadine Jones, Assigned Public Defender (Arnold & Porter LLP, Washington, D.C.; Nancy S. Forster, Public Defender, Baltimore, MD), on brief, for petitioner.

Jeremy M. McCoy, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

Opinion by MURPHY, J.

416 Md. 127

In the Circuit Court for Harford County, a jury convicted Hayward T. Henderson, Petitioner, of possession of a controlled dangerous substance with intent to distribute, and

416 Md. 128

possession of a firearm in connection with a drug trafficking crime. The State's evidence, which was seized during a warrantless search of Petitioner's person and his mother's automobile, was sufficient to establish that he committed those offenses on May 2, 2005. Petitioner argues that the State's evidence should have been suppressed on the ground that those searches violated his Fourth Amendment right to protection against unreasonable government intrusion.

After Petitioner's convictions were affirmed by the Court of Special Appeals in Henderson v. State, 183 Md.App. 86, 960 A.2d 627 (2008), he filed a petition for writ of certiorari, in which he presented this Court with two questions:

1. Does a passenger in a car pulled over by the police for a minor traffic violation have to attempt to leave the scene and be stopped by the police before Maryland will consider that passenger has been "detained," particularly when the U.S. Supreme Court in Brendlin v. California [551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ] has already held that such a passenger is "seized" for Fourth Amendment purposes?

2. Can a law enforcement officer justifiably detain all passengers in a car pulled over for a traffic violation until a K-9 unit arrives on the basis that one of the passengers has an outstanding warrant and possesses $741 in cash?

5 A.3d 1074

We granted the petition. 407 Md. 529, 967 A.2d 182 (2009). For the reasons that follow, we answer "no" to each question, and therefore reverse the judgment of the Court of Special Appeals.

Background

The opinion of the Court of Special Appeals includes the following factual background:

The [Petitioner] was one of two passengers in a vehicle that Harford County Sheriff's deputies engaged in a traffic stop on May 2, 2005, at 9:28 p.m. Deputy Paul Ruszala twice observed the vehicle fail to stop fully at stop signs, in violation of Md.Code (1977, 2006 Repl.Vol.),

416 Md. 129

section 21-707 of the Transportation Article ("TR"). After the stop was called in, Deputy Scott Blankenship, who was patrolling nearby, responded to the scene for backup, arriving about two minutes later.

Deputy Ruszala performed a routine driver's license and registration check and recognized both the driver, Andre Austin, and the [Petitioner] because of their prior involvement in CDS activities. [Deputy Ruszala arrested Austin on a CDS charge roughly three weeks before this traffic stop occurred. Petitioner was with Austin at the time but had nothing on him.] Deputy Ruszala requested a K-9 unit, which was dispatched at about 9:32 p.m. Deputy Blankenship, who had been conducting a computer check for outstanding warrants, determined that there was an outstanding arrest warrant for the other passenger, Maurice Kevin Lewis, for failure to appear at a probation hearing on CDS-related charges. Before effecting an arrest, Deputy Blankenship called for additional backup, because departmental safety guidelines require at least an equal number of police officers to suspects when an arrest is made. There was a "four to five minute" delay while the deputies awaited confirmation from the dispatcher that the warrant for Lewis was "still good and valid and active." The motion judge found that the arrest warrant confirmation was radioed to deputies on the scene at 9:39 p.m.

[Per regulations pertaining to officer safety, a] third officer, Sergeant Carl Brooks, arrived at 9:40 p.m. Immediately afterward, Deputy Blankenship removed Lewis from the vehicle and placed him under arrest. [An alternate entry on the CAD report shows Lewis's arrest as taking place at 9:43 p.m.] A search of his person incident to arrest recovered $741 "in one of his pockets."

At 9:52 p.m., [approximately 24 minutes after the vehicle was initially stopped for the traffic violation, and 9-12 minutes after the arrest of Lewis,] Corporal John Seilback arrived with his K-9, Sabre. (The K-9 unit had been on patrol in Havre de Grace, a 20-minute drive away.) Deputies ordered Austin and [Petitioner] out of the vehicle to

416 Md. 130

perform the K-9 scan. They frisked the two men for weapons, but found none. When Sabre gave a positive alert, Deputies Ruszala and Blankenship handcuffed Austin and [Petitioner]. Deputy Ruszala searched Austin, recovered crack cocaine from inside a skull cap he was wearing, and arrested him. Deputies then searched the vehicle. They did not find CDS, but did find two weapons: a Glock model 23 handgun under the front passenger seat where Lewis had been sitting, and a "silver colored pocket knife" on "the rear floorboard, between [Petitioner's] feet." They also found, inter alia, a gray mask, two black baseball caps with the word "Police" on the front in white lettering, a video camera, cell phones, and $901 in currency.

Deputy Ruszala advised [Petitioner] he was under arrest. Deputy Blankenship then searched him and found a

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clear plastic bag that held a loose rock of crack cocaine and five smaller baggies of crack cocaine.

Id. at 89-91, 960 A.2d at 629-630 (footnotes omitted).

Petitioner filed a motion to suppress evidence seized, arguing that (1) the police officers had no legal basis to detain him for a traffic violation committed by Mr. Austin, and (2) the police impermissibly extended the length of the stop to allow the K-9 unit enough time to arrive.

At the suppression hearing, the State called Deputy Paul Ruszala, the officer responsible for the initial stop, who had filed a "STATEMENT OF PROBABLE CAUSE" pursuant to Md. Rule 4-211(b)(2) that included the following information:

At approximately 2128 hours [he] observed a 2002 Kia, 4-door, silver in color bearing MD tag 182AZW traveling west on Brookside Drive. The vehicle failed to come to a full and complete stop at the stop sign that is posted on Brookside Drive which intersects Fountain Rock Way and Topview Drive. [He] got behind the vehicle and further observed the vehicle fail to come to a full and complete stop at the stop sign on Topview Drive and Horseshoe Lane. [He] activated his emergency lights and initiated a traffic stop at Horseshoe Lane and Topview Drive.

416 Md. 131

[He] identified the driver by his New Jersey driver's license as Andre Tyree Austin. [He] knows Mr. Austin as a CDS user who was previously arrested for a CDS related offense approximately three weeks ago. Also, seated inside of the vehicle in the rear passenger seat behind the front passenger was [Petitioner] who [he] knows as a CDS user/seller with cautions as an armed person who has been known to have associations with the criminal street gang the "Crips." There was also a yet unidentified male who was sitting in the front passenger seat of the vehicle. [He] went back to his patrol vehicle to complete a license and registration check of the driver, complete the appropriate citations and await for backup Deputies to arrive.

Dep. Blankenship # 692 arrived on the scene as backup approximately 2 minutes later. Dep. Blankenship approached the front passenger to ask for identification. The front passenger consented by handing over his Maryland ID card that identified him as Kevin Maurice Lewis. Dep. Blankenship # 692 ran a wanted check on Mr. Lewis. The warrant check revealed that Mr. Lewis had a confirmed outstanding arrest warrant for failure to appear in court on a Violation of Probation on CDS related charges. Due to there being three known CDS user/sellers in the vehicle [he] waited for additional backup. Additional backup arrived and Mr. Lewis was ordered to exist the front passenger seat and he was placed under arrest of the outstanding warrant. An initial search of Mr. Lewis's person at the scene revealed no illegal contraband, but he did have $741.00 U.S. Currency on his person.

DFC Seilback K-9 unit # 7 arrived on scene and was used to scan the vehicle for illegal drugs prior to doing a search of where Mr. Lewis was seated inside of the vehicle. Mr. Austin and [Petitioner] were ordered to exit the vehicle so a search and K-9 scan could be safely performed. Dep. Blankenship could see on the rear floorboard between [Petitioner's] feet a silver colored pocket knife as [Petitioner] exited the vehicle. Mr. Austin was acting very nervous, figiting [sic] and asking why he had to get out of the car and

416 Md. 132

he stated that he didn't want to be searched. Dep. Ruszala began issuing Mr. Austin a citation for the second failure to stop at a stop

5 A.3d 1076

sign violation. [Mr. Austin] signed his citation and was issued his warning and given back his ID and registration as the K-9 was scanning the vehicle. The K-9 alerted that there may be illegal drugs inside of the vehicle.

Deputy Ruszala's "STATEMENT OF PROBABLE CAUSE" omits the fact that, although Mr. Lewis was arrested at 21:40 p.m., the K-9 scan did not occur until 21:52 p.m. Fortunately for Petitioner, his trial counsel issued a subpoena for the Harford County "CAD" record of the "dispatches" that are of consequence to the issue of what occurred between the moment of the initial stop and the moment when the K-9 scan occurred. The following "time line" was established by the CAD record:

21:28 Initial stop

21:29 Dep. Ruszala requests information about Mr. Austin

21:32 K-9 unit "dispatched" to location of stop

21:39 Deputies are notified

...