Hicks v. State, 2591, September Term, 2007.

• Court: Court of Special Appeals of Maryland
• Citation: 984 A.2d 246,189 Md. App. 112
• Docket Number: No. 2591, September Term, 2007.,2591, September Term, 2007.
• Parties: Myron Xavier HICKS v. STATE of Maryland.
• Decision Date: 25 November 2009

984 A.2d 246

189 Md. App. 112

Myron Xavier HICKS v. STATE of Maryland.

No. 2591, September Term, 2007.

Court of Special Appeals of Maryland.

November 25, 2009.

Juan P. Reyes (Nancy S. Forster, Public Defender, on brief), for Appellant.

Douglas D. Guidorizzi (Douglas F. Gansler, Atty. Gen., on brief), for Appellee.

Panel: WRIGHT, KEHOE, and J. FREDERICK SHARER, (Retired, Specially Assigned) JJ.

KEHOE, J.

A jury sitting in the Circuit Court for Prince George's County convicted Myron Xavier Hicks, appellant, of possession of a firearm after a felony conviction, possession of a regulated firearm after a conviction for a disqualifying crime, and possession of a regulated firearm after conviction for a crime of violence. The jury acquitted appellant of carrying a handgun, transporting a handgun on a roadway, of obliterating the identification number of a firearm, and of resisting arrest.¹ The sentencing court imposed a five-year term of incarceration, without parole, for each conviction, with the terms to run concurrently.

Appellant presents three questions for our review, which we quote:

1. Did the lower court err in denying appellant's motion to suppress the firearm?

2. Did the trial court err in allowing the jury to return inconsistent verdicts?

3. Did the trial court err in denying appellant's motion to reconsider the prior motion for judgment of acquittal? For the reasons that follow, we shall affirm the judgments below.

BACKGROUND

The following facts were adduced at a suppression hearing held on August 24, 2007.

On April 25, 2007, Officer Noah Waters and Officer Kevron Gottlieb, of the Prince George's County Police Department, were working a "special overtime assignment" in Oxon Hill. About 11:02 p.m., the officers observed a blue four-door sedan parked at the gas pumps of a Shell gas station located at Wheeler Road and Southern Avenue. Two people occupied the vehicle: a driver, later identified as Milton Lee Jennings, and appellant, who was seated in the front passenger seat. The vehicle was not running, its lights were off, and the occupants were not pumping gasoline. The officers observed the vehicle and its occupants, who remained sitting in the car, for about 15 minutes.²

Officer Waters then observed Jennings get out of the vehicle. He testified that "another person approach[ed] him, they didn't have conversation, and it appeared to be a hand-to-hand—. . . There was no conversation. I observed the gentleman approach [Jennings] and exchange and just walk away."³

Officer Waters testified that he had been trained in the "recognition of drug transactions" and had been involved in many drug arrests. His testimony continued as follows:

[STATE]: Describe the hand-to-hand. What were the things that you were taught in your training that were the characteristics of a hand-to-hand transaction?

* * * * * *

WATERS: Usually, it's a manner that is obscured, so you really don't see what item is being exchanged. It is not a customary handshake that I guess we're used to, but it's an action with the palms touching palms and sliding through.

[STATE]: What, if any, items in this case did you see exchanged?

WATERS: I did not see what item was exchanged. I just saw the activity which was suspicious to me.

* * * * * *

[STATE]: Do you have any experience working in this area itself of Wheeler Road and Southern Avenue?

WATERS: Yes, sir, that is my assigned area.

[STATE]: How long have you worked in that particular area. WATERS: Approximately two years.

[STATE]: Based on your experience, can you describe that area?

* * * * * *

WATERS: There's a lot of drug activity in that area.

After observing the "hand to hand," Officers Waters and Gottlieb, both in uniform, approached the vehicle without guns drawn. Officer Waters asked Jennings what they were doing and "what did you just exchange with the gentleman that walked away."⁴ Officer Waters directed Jennings to remove the car keys, which he then placed on the roof of the vehicle, "ordered" him to produce identification, and "ordered him out of the vehicle." He then did a "pat down" of Jennings for "officer safety." Officer Waters was also "looking for what [he] felt would be the result of a drug transaction." He did not however, find any drugs, drug paraphernalia, or weapons on Jennings.

After Officer Waters completed his pat down of Jennings, Officer Gottlieb "ordered" appellant out of the vehicle "and he stepped out." Officer Gottlieb described what happened next:

GOTTLIEB: I positioned [appellant] with his face away from me towards the car, and told him . . . to interlock his fingers and put his hands over his head and he didn't do it. He said, you know, "I ain't done nothing, why are you messing with me," and started to turn towards me a little bit and I was pushing him back towards the car and asked him to do it again. He said, "I ain't done nothing." And he was looking back towards me. I just attempted to control him. And at one point he threw his right elbow back at me, missed, and got on the grass and ran toward the back of the car. I ran after him and caught up to him at the back of the car, pulled him to the ground, and Officer Waters came over and assisted and he was, basically, fighting us, elbowing us, trying to get away from us. At one point I said,["] You're under arrest for assault, stop resisting.["] And he continued to struggle until we got control of his wrist and were able to handcuff him.

* * * * * *

[STATE]: Once you had gotten the defendant on to the ground, what, if anything, did you do?

GOTTLIEB: After we got him down on the ground and we got him handcuffed, then he was under arrest, and I got him up in order to search him before transporting him. At one point I reached into his right front pocket and I pulled out a black handgun and it turned out to be a Davis Industries .380 automatic handgun. We cleared it for safety reasons. It had a round in the chamber and two in the magazine.

[STATE]: Why did you place him under arrest?

GOTTLIEB: Because he assaulted me and he assaulted Officer Waters. Officers Waters and Gottlieb were the only witnesses at the suppression hearing.

Defense counsel argued that the handgun recovered from appellant should be suppressed because the police did not have probable cause or a reasonable articulable suspicion justifying the stop and frisk of appellant. The court denied the motion, stating:

THE COURT: All right. As both sides know, I have to look at the totality of the circumstances. When [the driver] and the defendant, Hicks as a passenger, were sitting at a gas station for 10 to 15 minutes . . . not purchasing gas, just sitting there, and then somebody comes up and one of the officers observes what appears to him by his training and experience [to be] a hand-to-hand transaction, that is reasonable articulable suspicion to investigate.

What you're overlooking, [defense counsel], is the fact that they're sitting there at a gas pump for 10 to 15 minutes doing nothing. That is not [sic] in a high drug area. As far as this member of the bench is concerned, that certainly gives them reasonable articulable suspicion to investigate. That's not what, generally, persons do, sit at a pump and not get gas.

Once they go to investigate it, the officer does have the right to ask the passengers to get out of the car. And once they've asked them to get out of the car, they do have the right to search for weapons. For officer safety, the officer does have the right to detain Mr. Hicks temporarily and do a pat down search. When Mr. Hicks decides he wants to resist and starts elbowing the police officer, he is then arrested for assault. Once he's placed under arrest for unlawful assault, they certainly have the right to do the search. When doing the search, they find out that he has a revolver on him. Motion to suppress is denied.

Additional facts will be provided as needed for a discussion of the issues.

DISCUSSION

I The Motion to Suppress the Handgun

Appellant contends that the trial court erred in denying the motion to suppress the handgun. Specifically, appellant claims that, even if Officer Waters observed what he thought was a hand-to-hand transaction outside the vehicle between Jennings and a third person, that "could not provide the required individualized suspicion to stop and frisk appellant." Moreover, he asserts that, "by the time of appellant's frisk, [Jennings] had already been searched and nothing had been discovered," and thus any "reasonable suspicion to initiate an investigatory stop . . . was dispelled once the initial contact and search of [Jennings] yielded nothing." Appellant further maintains that Officer Gottlieb "had no right to restrict [his] freedom to leave the scene and certainly had no right to tackle [him] when he chose to leave," and thus, he was "entitled to resist an unlawful arrest."

The State counters that the trial court did not err in finding that the police had a reasonable, articulable suspicion to conduct a stop and frisk, but, even assuming it was not reasonable, appellant's "assault on the officer during his resistance to the stop and frisk was not privileged and provided probable cause for his arrest." Thus, the State asserts that the trial court properly denied the motion to suppress the handgun as it was the fruit of a lawful search incident to a lawful arrest.

When determining whether a detention or search of an individual's person or property violates the Fourth Amendment, we "`make our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case.'" Crosby v. State, 408 Md. 490, 505, 970 A.2d 894 (2009) (quoting State v. Williams, 401 Md. 676, 678, 934 A.2d 38 (2007)). However, our assessment is performed within certain limitations. First, we look only to the record of the suppression hearing. Owens v. State, 399 Md. 388, 403, 924 A.2d 1072 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1064, 169 L.Ed.2d 813 (2008); Paulino v. State, ...