Jones v. State

• Citation: 343 Md. 448,682 A.2d 248
• Decision Date: 01 September 1995
• Docket Number: No. 54,54
• Parties: Samuel JONES, Jr. v. STATE of Maryland. ,
• Court: Court of Appeals of Maryland

Page 448

343 Md. 448

682 A.2d 248

Samuel JONES, Jr. v. STATE of Maryland.

No. 54, Sept. Term, 1995.

Court of Appeals of Maryland.

Sept. 12, 1996.

Nancy S. Forster, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

BELL, Judge.

Samuel Jones, Jr., the petitioner, was charged with possessing with intent to distribute crack cocaine seized from his person during a search conducted on December 16, 1993. He moved to suppress the evidence. A hearing on that motion was held in the Circuit Court for Anne Arundel County. After that hearing, the matter having been held sub curia, the court granted the motion. Pursuant to Maryland Code (1974, 1995 Repl.Vol.) § 12-302(c)(3)(i) of the Courts and Judicial Proceedings Article ¹, the State appealed that decision to the Court of Special Appeals. That court reversed and remanded the case for trial. State v. Jones, 103 Md.App. 548, 653 A.2d 1040 (1995). This Court, on the petitioner's request, issued the writ of certiorari to review the propriety of the judgment granting the motion to suppress. We shall reverse the judgment of the intermediate appellate court.

I.

The motions court accepted the suppression hearing testimony of Officer Sean W. Ottey as to the events leading to the petitioner's arrest. ² Consequently, we will set out only Officer Ottey's version of the facts. ³

While patrolling an area of Annapolis known for its high level of drug activity, an "open air drug market," Officer Ottey and Officer Rice noticed the petitioner and another man standing by themselves on the sidewalk near the intersection of Carver Street and Dorsey Avenue. After observing them briefly, the uniformed officers approached the two men, Officer Ottey taking the petitioner and Officer Rice the other individual. Officer Ottey informed the petitioner that he was in a known drug area and asked him why he was there. Without waiting for a reply, Officer Ottey then inquired whether the petitioner had any drugs or guns on him, to which the petitioner answered "no." At that point, Officer Ottey requested permission to "check" the petitioner and petitioner consented to be searched.

Proceeding to pat the petitioner down, Officer Ottey felt a bulge when he reached the petitioner's left front pants pocket and he asked the petitioner what it was. Instead of responding to the question, the petitioner revoked his consent to search. Notwithstanding that revocation, Officer Ottey reached into the Petitioner's pocket and removed the source of the bulge, a package containing a substance which Officer Ottey recognized as crack cocaine. Officer Ottey retained custody of the substance, which, as later analysis confirmed, was crack cocaine, but he did not arrest the petitioner at that time. That occurred several months later.

Focusing on his state of mind prior to the seizure, particularly as relates to the bulge he felt in the petitioner's pocket, the State asked Officer Ottey what his perception of the bulge was at that time. Officer Ottey had earlier testified that he was familiar with how crack cocaine is packaged for street-level sales and that he had conducted pat-downs in the past in which he had recovered crack cocaine. He had also testified that he had been involved in 20 drug arrests that year, 90% of which involved crack cocaine. Specifically, the State wanted to know, "What did you think it was?" Officer Ottey responded, "When I squeezed it, prior to him revoking consent, I could feel the numerous rock-like substances in there, and I knew right then and there that I had crack cocaine or ... in his pocket." (Emphasis added). The State continued the inquiry: "Based on your training and experience, was it readily apparent what it was, the nature of the substance?" In response, Officer Ottey said that it was, that, indeed, it was readily apparent to him that the substance was crack cocaine. Except for asking on redirect examination whether Officer Ottey had felt crack cocaine before, the State did not further delve into the basis for Officer Ottey's assertion of knowledge and certainty.

On cross-examination, defense counsel sought to undermine Officer Ottey's testimony regarding his ability to identify crack cocaine by touch. ⁴ Inquiring into the grounds for Officer Ottey's asserted belief that the substance he felt in the Petitioner's pants pocket was crack cocaine, he asked, "If ..., for example, Judge Thieme was standing in the hall, and he ... provided you consent to search him, and you had felt in his pocket a similar item, would you have ... drawn ... the conclusion at that point that it was crack cocaine?" Officer Ottey replied, "[Y]es, sir." Moreover, although he also conceded that "being in an open-air drug market did add to [the] conclusion [he] had drawn based on touch ... the feeling that I observed," Officer Ottey left no doubt that location was not a critical factor in his identification. Responding to the question, "what is it about the object ... that led you to the conclusion that it was crack cocaine?," he said, "[t]he texture of it, the way it felt." Having reminded the officer that he had neither smelled nor seen the substance, the petitioner asked if there were other criteria that led him to conclude that it was crack cocaine. Officer Ottey indicated that it was "[j]ust the way it felt," nothing else.

At the conclusion of the hearing, the motions judge held the matter sub curia in order more carefully to read Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the "plain feel" case, upon which the State relied. When he reconvened the hearing, he granted the petitioner's motion to suppress, explaining:

On December the sixteenth, nineteen ninety-three, Officer Ottey of the Annapolis City Police Department was on routine patrol in an area known as an open air drug market. And these are facts that I'm accepting. Officer Ottey approached the Defendant, asked him if he had any drugs or weapons, the Defendant replied that he did not. Ottey then asked if he could check. The Defendant replied that he could. Ottey then patted down the Defendant. In the Defendant's [left] pants pocket Officer Ottey felt a bulge. At this point, the Defendant requested the Officer to stop.

Officer Ottey testified, and I'm quoting, he immediately recognized [the bulge] to be crack cocaine. Despite the request that Officer Ottey cease, he seized the substance from the Defendant's pocket. The Defendant was not arrested at the time.

Now, there's no question, and the State [con]cedes that the basis for the seizure was the probable cause issue not as any Terry type of situation[ ⁵] or anything else under the ... plain feel doctrine....

Now, the problem is, and the Officer testified as an expert, and I accept him as an expert, but ... it's not just a question of being an expert and coming in and saying the magic words like it was readily apparent would be the words from the Supreme Court.... I have to make my determination as to whether I'm going to accept the expert's opinion based upon the facts upon which his opinion was based. And there are insufficient facts for me to accept that opinion [in] the record.

For that reason, the Court will grant the Motion to Suppress.

II.

The Court of Special Appeals, in a 2-1 decision, reversed the trial court's judgment. The majority reasoned:

The issue decided was the existence ... of probable cause on the part of the officer. The appellate review of such an issue calls for our own independent de novo determination of whether Officer Ottey had enough data to permit him reasonably to conclude that he had probable cause.

In that regard, the historic fact of Officer Ottey's conclusion, even if not its accuracy, is before us for our review. It is our independent determination that 1) the presence of Jones on a corner in an "open air drug market"; 2) the detection of rock-like substances in Jones's pocket; 3) the officer's expert ability, based on his training and expertise, to recognize the feel of crack cocaine; and 4) the officer's conclusion that the rock-like substance he felt was crack cocaine was a legally sufficient basis to support the officer's probable cause determination.

Since the officer's subsequent warrantless seizure of the crack cocaine was reasonable, the evidence should not have been suppressed.

Jones, 103 Md.App. at 615, 653 A.2d at 1073-74.

The dissenting judge perceived the issue to be an entirely different one:

Although he accepted Officer Ottey as an expert witness, i.e., one who by training and experience is able to recognize crack cocaine by sight and by touch, Judge Thieme concluded that there had been presented insufficient evidence as to the extent of the officer's training, experience or tactile acuity to persuade him, as trier of fact, that it was "readily apparent" to the officer that what he felt in Jones's pocket while "patting him down" was crack cocaine. Certainly, that determination was first level fact-finding, which, not being clearly erroneous, is binding on us. Md. Rule 8-131(c).

Id. at 617, 653 A.2d at 1074 (Bloom, J., dissenting). Interpreting the motions court as ruling that the State had not established the basis for Officer Ottey's expert witness opinion, it concluded:

What this case boils down to, once we defer to Judge Thieme's finding that he does not accept the Officer's assertion that it was readily apparent to him that what he felt was crack cocaine, is that the Officer's seizure of the substance from appellee's pocket was based on suspicion, not probable cause. An experienced police Officer observed two men conversing on a street corner in a residential neighborhood, where drugs are sold with some degree of frequency. One of these men...