Holden v. State

• Decision Date: 17 August 2022
• Docket Number: 1046-21
• Parties: GREGORY TYRONE HOLDEN, JR. v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

GREGORY TYRONE HOLDEN, JR. v. STATE OF MARYLAND

No. 1046-21

Court of Special Appeals of Maryland

August 17, 2022

Circuit Court for Worcester County Case No. C-23-CR-20-000170

Berger, Leahy, Tang, JJ.

OPINION ^[*]

LEAHY J.

While on patrol in the afternoon of November 14, 2019, Corporal Dana Orndorff, of the Maryland State Police, observed Gregory Holden, appellant, sitting in the driver's seat of a vehicle parked on the side of Cedar Street in Pocomoke City Maryland. As he drove down the narrow street and by Mr. Holden's car, Corporal Orndorff detected the odor of marijuana in the vicinity of the car. After he passed the car, Corporal Orndorff observed Cedar Street for approximately one minute before making a second pass down the road, parking approximately 15 to 20 feet in front of Mr. Holden's Ford Fusion. As he approached the vehicle, Corporal Orndorff continued to detect the odor of marijuana. And, after Mr. Holden rolled down his window, Corporal Orndorff detected the "overwhelming odor of burnt marijuana" emanating from the Ford Fusion. Mr. Holden, after being instructed to exit the vehicle, turned his body away from Corporal Orndorff and began digging in the center console. Mr. Holden did not agree to exit the vehicle until sometime after the backup officers arrived. The officers searched the vehicle and found a clear plastic bag with a white powdery substance, a digital scale with white powdery residue, multiple unused clear plastic bags, and 4.887 grams of fentanyl in the center console.

After he was charged in the Circuit Court for Worcester County, Mr. Holden moved to suppress the contraband recovered from his vehicle. After a hearing on August 3, 2021, the circuit court denied Mr. Holden's motion. Mr. Holden then elected to enter a plea of not guilty on an agreed statement of facts to one count of possession with intent to distribute fentanyl. On September 9, 2021, the court found Mr. Holden guilty and sentenced him to a fifteen-year term of incarceration, with five years suspended, and a term of supervised probation. He appealed and presents two questions for our review, which we have reordered:

I. "Did the court commit reversible [error] in failing to comply with Maryland Rule 4-215(e)?"

II. "Did the court err in denying [Mr. Holden's] motion to suppress?"

We hold the court did not violate Rule 4-215(e) because Mr. Holden never "requested" to discharge counsel. Consequently, he did not trigger the procedure in Rule 4-215. In accordance with the holding in Robinson v. State, 451 Md. 94 (2017), and its progeny, we also hold that the circuit court did not err by denying Mr. Holden's motion to suppress on the ground that the police failed to establish probable cause to search his vehicle. Accordingly, we affirm the judgment of the circuit court.

BACKGROUND

On August 25, 2020, Mr. Holden was indicted by a grand jury on three counts: (1) possession with the intent to distribute fentanyl; (2) possession of fentanyl; and (3) possession of cocaine.

Plea Hearing

The circuit court, on April 14, 2021, held a hearing to determine whether the law enforcement officers lawfully searched Mr Holden's vehicle. The hearing was brief because defense counsel informed the court that Mr. Holden wished to withdraw all outstanding motions. He explained:

We're going to withdraw motions at this time. I appreciate the officers. We're here today, I talked to [Mr. Holden] about it again. It's a small amount of marijuana issue. And I indicated to [Mr. Holden] my opinion is there was no chance of prevailing, frankly.

Mr. Holden waived his right to a jury trial, and, on July 14, 2021, a plea hearing commenced. At the hearing's outset, however, defense counsel informed the court that on the day prior to the hearing, his assistant had received a call indicating that Mr. Holden wished to discharge counsel. While the caller did not identify himself or herself, defense counsel indicated that his assistant believed that the call was made by "Mr. Holden and/or a friend[.]" Defense counsel explained that he came to the courthouse prior to the hearing "frankly, with a check from my escrow account to give [Mr. Holden] some money back." When he saw Mr. Holden, however, Mr. Holden "indicated . . . that . . . there was another guy in the background saying that - something about ineffective assistance of counsel" and that "he didn't want to discharge" current counsel. Counsel requested additional time and another motions hearing, explaining:

So I have a trifecta here, Judge. Number one, I didn't prepare my client, nor his family, particularly his mother, to testify on his behalf this morning. That's number one.

* * *

So when I say we have a trifecta, I would not be ready this morning to proceed because I haven't prepared my client, nor his family members, to proceed this morning; number two, Mr. Cabrera and I just cleared up the situation of the officer's report having to do with the smell of marijuana; and, number three, I - as I always say, I always tell - tell you - tell anybody - tell everybody the truth, I believed that, to preserve this case, that there should have been about a half an hour motions hearing in this case asking for the Court to consider that the approaching of the vehicle and the final search may have been unconstitutional. So I'm in the unenvious position of asking the Court to consider, on a motion that I'm going to file today, to set this - set this back in for motions and allow me to query the officers about their approach, have my client testify and also his mother.

The court then engaged in the following colloquy with Mr. Holden:

THE COURT: Okay. Mr. Holden, what do you want to do? Who represents you in this case?

[MR. HOLDEN]: [Defense counsel].

THE COURT: Okay. But there's been discussions about somebody else entering their appearance, there's been a telephone call that was supposedly made, and it's gone so far as our assignment office has received telephone calls from another attorney's office seeking dates.

THE DEFENDANT: I haven't gave any -

THE COURT: Mr. Holden, this is your case. Does [current counsel] represent you in this matter?

[MR. HOLDEN]: [Defense counsel] represents me, Gregory Holden.

THE COURT: Is [Defense counsel] going to continue to represent you in this matter?

[MR. HOLDEN]: Yes, sir.

Defense counsel subsequently informed the court of another issue. He explained that his notes on the police report provided by the State reflected that a small amount of marijuana was found on the carpet of Mr. Holden's vehicle. However, it was now his understanding that no marijuana was found in the vehicle. He therefore requested that the court schedule a motions hearing to address "that the approaching of the vehicle and the final search may have been unconstitutional." The State opposed the request, arguing that a motions hearing was held in April 2021 in which Mr. Holden withdrew all outstanding motions. In the State's view, the police reports had not changed, and, if defense counsel's recollection of the reports had changed, "that's on him." The court asked that defense counsel file a written motion articulating his requests by the end of the day.

In his written motion, defense counsel argued that it was "improbable" that the officer detected marijuana as he approached Mr. Holden's vehicle because the windows of Mr. Holden's vehicle were closed. The State, he averred, had not previously disclosed that the approaching officer had to tap on Mr. Holden's window and instruct him to roll the window down before making contact with Mr. Holden. He also explained that he had "erroneously believed that a small amount of marijuana was found on the floorboard of [Mr. Holden's] vehicle," which was not accurate. The circuit court granted the motion on July 16, 2021.

The Suppression Hearing

The circuit court held a hearing on Mr. Holden's motion to suppress on August 3, 2021. Corporal Orndorff testified first. He explained that he had been with the Maryland State Police as a police officer for 18 years and that, on the date of Mr. Holden's arrest, he was a member of the MSP Proactive Criminal Enforcement ("PACE") unit. As a member of the PACE unit, Corporal Orndorff was tasked with locating "criminals through aggressive traffic enforcement." He testified that he was familiar with the odor of marijuana and that he had completed specialized training in controlled and dangerous substances, including marijuana, while he was at the police academy.

Corporal Orndorff related that, at approximately 3:00 p.m. on the afternoon of November 14, 2019, he was on patrol in Pocomoke City, Maryland. He recalled that although the weather that afternoon was "chilly," he had his driver's side window down. As he was traveling down Cedar Street, which he described as a "very narrow street"^[1] in a residential area, he:

[O]bserved a black Ford Fusion sitting on the road . . . in front of a residence, actually in front of a residence on each side of the street.

When I observed that vehicle, I was traveling in my patrol vehicle traveling slow. As I was passing the Ford Fusion I detected the odor of marijuana and observed that there was someone sitting in the driver's seat of that Ford Fusion.

I continued driving south on Cedar Street for approximately one to two blocks, and I turned around and sat there for approximately a minute and watched the vehicle from that location and observed that the person stayed there and the vehicle stayed there as well.

Corporal Orndorff drove back down Cedar Street and parked his patrol car approximately 15 to 20 feet in front of Mr. Holden's vehicle. As he approached, Corporal Orndorff recalled detecting the odor of marijuana emanating from the vehicle from a "few feet" away. After Mr....