Johnson v. State

• Decision Date: 04 January 2002
• Docket Number: No. 465,465
• Citation: 788 A.2d 678,142 Md. App. 172
• Parties: Jemale A. JOHNSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

788 A.2d 678

142 Md. App. 172

Jemale A. JOHNSON v. STATE of Maryland.

No. 465, Sept. Term, 2001.

Court of Special Appeals of Maryland.

January 4, 2002.

Margaret L. Lanier, Assistant Public Defender and Stacey Elaine White-Welker (Rule 16 Student) (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Edward J. Kelley, Staff Attorney (J. Joseph Curran, Jr., Attorney General and Gary E. Bair, Asst. Atty. Gen., Baltimore, and Scott G. Patterson, State's Attorney for Talbot County of Easton, on the brief), for appellee.

Argued before SONNER, KRAUSER, and RAYMOND G. THIEME, JR. (Ret'd, Specially Assigned), JJ. THIEME, Judge.

Appellant Jemale A. Johnson was convicted by the Circuit Court for Talbot County of possession of crack cocaine with intent to distribute, possession of marijuana, and possession of paraphernalia. The court sentenced appellant to ten years of incarceration, with seven years of that sentence suspended, for his conviction of possession of cocaine with intent to distribute. The court imposed a concurrent sentence of six months for his conviction of possession of marijuana. Johnson appeals his convictions and presents the following questions for our review:¹

1. Did the trial court err in denying the motion to suppress, since probable cause to arrest appellant for possession of marijuana was lacking?

2. Is the evidence sufficient to support the convictions for possession of marijuana, possession of paraphernalia, and possession of cocaine with intent to distribute?

We shall remand to the trial court the issue concerning the sufficiency of the evidence for appellant's conviction for possession of paraphernalia. Aside from that issue, we perceive no error by the trial court and we affirm its remaining judgments.

Facts

Officer Lenox Trams of the Easton Police Department received a broadcast report of a possible car theft. He located a vehicle fitting the description, and observed two men inside. The officer stopped the vehicle and confirmed that the tag number matched the one from the broadcast, but concluded shortly thereafter that the vehicle was not stolen. As Trams approached the vehicle, however, he smelled marijuana. He also noticed in plain view through the window what he believed to be marijuana on the gear shifter equidistant between the driver and appellant, the front seat passenger. He ordered the driver to exit the vehicle, while he instructed appellant to remain inside. The driver and appellant both denied having any knowledge as to marijuana in the vehicle. Nevertheless, both were arrested. Trams subsequently found another partially burnt piece of marijuana cigarette in the ashtray of the vehicle.

Appellant was transported to the police station, where he was searched. Trams found a glycine bag containing a whitish powder substance inside a pocket in appellant's jeans. It was later determined that the substance in the bag was crack cocaine weighing a total of 1.5 grams, with a total value of $150, consisting of several rocks of the drug varying in value from five to forty dollars.

At appellant's trial, an officer who qualified as an expert in the distribution of drugs testified that in his opinion, based on the various sizes and values of the rocks in the bag, the crack cocaine found in appellant's jeans was intended for sales and distribution on the street. Upon convicting appellant of the various charges for which he was charged, the trial judge said:

Based upon the evidence the Court finds the Defendant guilty of possession of crack cocaine in a quantity sufficient to indicate under all of the circumstances an intent to distribute said crack cocaine. Guilty of possession of marijuana and guilty of possession of paraphernalia. The verdict is based upon the fact that the evidence discloses that the Defendant was in direct personal possession secreted on his person of ten times what is probably the most common unit of packaged crack cocaine. The common sale in my experience in the last 12 years sitting here is that most people pull up and ask if they are looking, if they are connected, all that other talk. They want a 20. And they buy a 20 or they buy a 40. They very seldom pull up and say, give me 1.5 grams, give me $150 or $200 worth. Also I think that it's important that we remember that the term distribution is not limited to sale. One may distribute by sale or by giving it away, by sharing it with ones [sic] friends. So because the Court does not feel that this is a quantity that is found in the usual street sale, the common street sale because of the packaging of the material, because of the differentiation of the pieces, the sizes of the pieces and because the Court feels that in this case that amount indicates an intent under all the circumstances to distribute, Court finds the Defendant guilty as I previously stated.

Discussion

I. Motion to Suppress

Appellant contends that the trial court erred in denying his motion to suppress the cocaine found on his person. He argues that his arrest for possession of marijuana was illegal because it was not supported by probable cause, and therefore the cocaine found on him was inadmissible as a product of a search incident to an illegal arrest.

In reviewing the denial of a motion to suppress, this Court looks to the facts adduced at the suppression hearing that are most favorable to the State as the prevailing party. Charity v. State, 132 Md.App. 598, 606, 753 A.2d 556 (2000); In Re Patrick Y, 124 Md.App. 604, 608-09, 723 A.2d 523 (1999). "In determining whether the denial of a motion to suppress... is correct, the appellate court looks to the record of the suppression hearing, and does not consider the record of the trial itself." Trusty v. State, 308 Md. 658, 670, 521 A.2d 749 (1987). In considering that evidence, great deference is extended to the fact-finding of the suppression hearing judge with respect to weighing credibility and determining first-level facts. When conflicting evidence is presented, this Court accepts the facts found by the hearing judge, unless clearly erroneous. Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990); Charity, 132 Md.App. at 606, 753 A.2d 556; Perkins v. State, 83 Md. App. 341, 346-47, 574 A.2d 356 (1990). "As to the ultimate conclusion of whether a search was valid, we must make our own independent constitutional appraisal by applying the law to the facts of the case." Charity, 132 Md.App. at 607, 753 A.2d 556; See also Ferris v. State, 355 Md. 356, 368-69, 735 A.2d 491 (1999)

; Marr v. State, 134 Md.App. 152, 163, 759 A.2d 327 (2000),

cert. denied, 362 Md. 623, 766 A.2d 147 (2001). "[T]he ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo." Ferris, 355 Md. at 385,

735 A.2d 491 (quoting Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996)). Bearing in mind the applicable standard of review, we turn to the merits of appellant's contention.

"[A] police officer is generally required to obtain a search warrant to conduct a valid search of an individual. Nevertheless, there are exceptions to this requirement, such as when the search of an individual is incident to a lawful arrest." Colvin v. State, 299 Md. 88, 98, 472 A.2d 953 (1984). The Colvin Court applied the reasoning used by the Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467 (1973):

A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but it is also a `reasonable' search under that Amendment.

Colvin, 299 Md. at 97-98, 472 A.2d 953 (citing Robinson, 414 U.S. at 235, 94 S.Ct. 467).

The Supreme Court, in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), made clear that this rule regarding a search incident to an arrest extended to searches occurring in a police station, when it said, "both the person and the property in his immediate possession may be searched at the station house after the arrest has occurred at another place and if evidence of crime is discovered, it may be seized and admitted in evidence." Id. at 803, 94 S.Ct. 1234.

Clearly, "a reasonable search under such circumstances is predicated upon a prior lawful arrest. Conversely, if the prior arrest is unlawful, the subsequent search and seizure—necessarily derived from it—are also unlawful." Livingston v. State, 317 Md. 408, 411, 564 A.2d 414 (1989). It follows therefore that the search of Johnson's person whereby the crack cocaine was discovered was only valid if his initial arrest for possession of marijuana was valid. If the arrest of Johnson for possession of marijuana was invalid, however, then the crack cocaine found in his jeans must be suppressed and his conviction thereof reversed. Accordingly, we shall determine whether Johnson's arrest for possession of marijuana was lawful.

We begin with the initial stop of the vehicle by Officer Trams. "The Fourth Amendment protects against unreasonable searches and seizures, including seizures that involve only a brief detention." Ferris, 355 Md. at 369, 735 A.2d 491. In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Supreme Court said, "the usual traffic stop is more analogous to a so-called `Terry stop,' ... than to a formal arrest." Id. at 439, 104 S.Ct. 3138 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Stopping a vehicle for a speeding violation and detaining its occupants does not constitute a custodial arrest. Colorado v. Bannister, 449 U.S. 1, 3, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980). Yet...