Herod v. State

• Decision Date: 10 December 1987
• Docket Number: No. 47,47
• Citation: 534 A.2d 362,311 Md. 288
• Parties: John HEROD v. STATE of Maryland. Sept. Term 1987.
• Court: Maryland Court of Appeals

Page 288

311 Md. 288

534 A.2d 362

John HEROD v. STATE of Maryland.

No. 47 Sept. Term 1987.

Court of Appeals of Maryland.

Dec. 10, 1987.

Melissa M. Moore, Asst. Public Defender (Alan H. Murrell, Public Defender, on brief), Baltimore, for appellant.

Norman L. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

RODOWSKY, Judge.

The issues here are whether the police violated the fourth amendment by a warrantless stop of petitioner's van and search of its passenger compartment. We conclude that there was no violation because, as explained below, the police acted on probable cause so that the "automobile exception" to the warrant requirement applies.

Petitioner, John Herod (Herod), was tried on an agreed statement of facts in the Circuit Court for Baltimore City and convicted of possession of cocaine with intent to distribute and of possession of a handgun. He was sentenced as a recidivist to ten years without parole for the cocaine violation and to a concurrent term of three years for the handgun violation. In an unreported opinion the Court of Special Appeals affirmed each conviction. Certiorari was granted to review whether

the Court of Special Appeals err[ed] in holding that the search and seizure of [Herod] and the vehicle he was driving was not in violation of the Fourth Amendment.

The record of the suppression hearing before Judge Kenneth L. Johnson is the record for our review. See Trusty v. State, 308 Md. 658, 670-72, 521 A.2d 749, 754-56 (1987).

The case against Herod was made by the investigation of two uniformed police officers in the Western District of Baltimore City, John Fabula (Fabula) and Richard Phillips (Phillips). Their investigation utilized information from two anonymous informants and from a drug possession arrestee.

The events giving rise to the investigation date from August 1984 when Fabula, while on radio car patrol, was dispatched to investigate a report of drug dealing which the police had received by telephone from an anonymous person. The informant had stated that drugs were being sold by the operator of a green Ford van with Maryland registration RL 2630 which was then parked in front of 1560 North Woodyear Street. Fabula went to the 1500 block of N. Woodyear where he observed the described vehicle parked in front of 1560 but the van was unoccupied and there was no evidence of drug sales. ¹

During the first week of March 1985 Fabula again obtained information about drug dealing in the 1500 block of N. Woodyear. He was approached face to face by the informant. She was a drug user who showed Fabula her scars from injections. Her information related to an individual nicknamed "Crip." She had personally purchased drugs from Crip in the past and had come to the police because Crip was getting her sister hooked on drugs. She would not give the police her name because she feared retaliation.

The informant described Crip as a black male in his 50's with whitening grey hair, approximately five feet seven inches, 135 pounds. She related that Crip was a drug runner who sold heroin and cocaine and that Crip's routine was to leave 1560 N. Woodyear between 4:00 and 6:00 a.m. with large quantities of heroin and cocaine. She also said that, in order to protect his drug supply, he would be armed with a handgun which she described as similar to that carried by Fabula, a .38 revolver with a four inch barrel.

Fabula enlisted the assistance of Phillips who had returned to uniformed patrol duty at his request after a number of years of service with drug enforcement units of the Baltimore City Police. Phillips had never previously encountered the female informant. Upon receiving the informant's information the three traveled in Fabula's patrol car to the 1500 block of N. Woodyear. The informant lay down in the backseat of the car to minimize her risk of being seen with the police. Once in that block the informant identified a green Ford van with Maryland tags RL 2630 as a vehicle belonging to Crip. It was the same vehicle which Fabula had been informed in August 1984 was connected with drug trafficking in that block.

Fabula checked Maryland tag RL 2630 with the Motor Vehicle Administration and determined that the vehicle was registered to a John Herod of 3819 Victoria Avenue, Baltimore.

Thereafter Fabula and Phillips, both of whom were then working the midnight to 8:00 a.m. shift, attempted to keep the 1500 block of N. Woodyear under surveillance to the extent that they were able to do so when not occupied with other duties. Woodyear Street is an "alley street" running roughly north and south parallel to and between Calhoun St. to the west and Carey St. to the east. The northern end of the 1500 block of Woodyear is Baker Street and the southern end is Gold Street. Automobile traffic on Woodyear is one way southbound. To make their respective observations the officers would position themselves on Gold or Baker Streets. Although one or the other of the officers would from time to time see the green van parked in the 1500 block, they never saw anyone enter or leave it, and it was not until March 14, when Herod was arrested, that one of them saw someone driving the van.

Under cross-examination Phillips testified:

Q. You were unable to at least with regard to the young lady ... to corroborate anything she told you physically?

A. Other than the van left between four and six. Several times we were involved in calls ... between 3 and 6 o'clock in the morning.... When we had come back or I had come back to do a spot check or spot surveillance, the van was gone. That was all after 6 o'clock in the morning.

Q. Six o'clock in the morning the van was gone?

A. Everytime I checked, it would be gone.

In the early morning hours of March 7 Phillips and Fabula were parked in marked vehicles at either end of the 1500 block of Woodyear. The same van was parked in front of 1560 and they observed "a lot of traffic in and out of that location." At about 2:40 a.m. Phillips observed a man, later identified as Vernon Green (Green), leaving 1560 N. Woodyear. ² Phillips approached Green for a field interview. ³ When approached Green discarded something which Phillips retrieved. It appeared to be cocaine and Green was arrested for controlled dangerous substance possession. ⁴ This occurred in the 700 block of Gold Street, around the corner from the 1500 block of Woodyear. Standing there, after he had been cautioned, Green said that he had purchased the drugs from Crip whom he described as a short, black male in his 50's whose first name was John. Green pointed to a green van parked in the immediate area and said it was Crip's. The vehicle pointed to was the same green Ford van bearing Maryland tags RL 2630.

The officers took Green to the Western District station where he gave an oral statement in which he said that he had previously purchased drugs from Crip when Crip was selling from 1504 Vine Street.

Phillips caused police records to be searched which confirmed that the John Herod who was the registered owner of the van used the alias, "Crip," that he had a previous address of 1504 Vine Street and that he had an extensive criminal record. His contacts with the criminal justice system included "numerous penalties in the past for violations of narcotics laws in Maryland and in Washington, D.C." The most recent arrest was in 1982. His record also included weapons violations and some other crimes. The printout under Phillips's computer clearance number of this information is dated March 13, 1985, at 12:04 a.m.

At about 1:15 a.m. on March 14 Fabula arrested one Donald Bennett at Gold and Calhoun Streets. Fabula had observed Bennett in the 1500 block of Woodyear Street. For reasons which do not explicitly appear in the record, Bennett, while being observed by Fabula, was inspired to discard a plastic bag containing numerous gelatin capsules which Fabula believed contained cocaine.

At about 4:35 a.m. that same morning, as Fabula was driving westbound on Gold Street at Woodyear, he observed the green van proceeding south on Woodyear. This was the first time that either Fabula or Phillips had seen anyone in the van. Continuing through the intersection and glancing over his right shoulder Fabula saw that a black male with white and grey hair was operating the van. Fabula made a U-turn and followed the van which had made a left-hand turn and was eastbound on Gold. Fabula decided to conduct a field interview in order to confirm the identity of the operator, but he neither turned on his flashing lights nor forced the van to stop. Suddenly the van pulled to the curb on Gold Street east of Carey. ⁵ By the time Fabula had stopped and approached the van on foot, the driver was already standing in the street beside an open driver's side door.

Fabula, who did not draw his side arm, identified himself and asked the driver for his license and registration. The driver matched the descriptions that Fabula had been given for John Herod, a.k.a. Crip, and Fabula "believed it to be the same person that was supposed to have been armed with a gun, transporting a large quantity of heroin and cocaine." The driver identified himself as John Herod.

Fabula briefly patted down Herod's front waistline. He did not find a weapon. Through the open van door Fabula observed a purple, Seagram's Crown Royal bag on the engine cover between the two front seats. Fearing that the bag might contain a gun, Fabula picked it up and squeezed it. He felt numerous plastic objects sliding around in it. After opening the cloth bag he found 110 glassine or plastic packets containing what was later confirmed to be cocaine. Fabula then searched the interior of the van and discovered a fully loaded .38 caliber revolver beneath the driver's seat. Following the search Fabula formally arrested Herod.

Herod asks us to...