Jones v. State, 2039

• Citation: 111 Md.App. 456,681 A.2d 1190
• Decision Date: 01 September 1995
• Docket Number: No. 2039,2039
• Parties: James Desmond JONES v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 456

111 Md.App. 456 681 A.2d 1190 James Desmond JONES
v.
STATE of Maryland. No. 2039, Sept. Term, 1995. Court of Special Appeals of Maryland. Sept. 3, 1996.

[681 A.2d 1191]

Page 458

David M. Williams, Chestertown, for appellant.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Susanne Hayman, State's Atty. for Kent County, Chestertown, on brief), for appellee.

Submitted before FISCHER, DAVIS and HARRELL, JJ.

DAVIS, Judge.

On this appeal, appellant James Desmond Jones presents two questions for our review, which we restate as follows:

I. Did the circuit court err in denying appellant's motion to suppress?

II. Did the circuit court err in refusing to set aside appellant's guilty verdicts and dismiss the criminal charges against him under double jeopardy principles?

[681 A.2d 1192] We respond to these questions in the negative and, therefore, affirm the circuit court's rulings.

Page 459

FACTS

On May 3, 1995, the State of Maryland filed a criminal information in the Circuit Court for Kent County (Price, J.) charging appellant with possession of cocaine and possession of cocaine with intent to distribute. On the same day, pursuant to MD.ANN.CODE art. 27, § 297, Kent County filed a complaint in the circuit court seeking to obtain the forfeiture of appellant's 1979 Chevrolet Truck and $330 in cash recovered from appellant at the time of his arrest. The forfeiture complaint alleges that the truck was used to transport or facilitate the transportation, sale, and possession of controlled dangerous substances, see MD.ANN.CODE art. 27, § 297(b)(4), and that the cash was used in connection with the illegal distribution or possession of controlled dangerous substances, see MD.ANN.CODE art. 27, § 297(b)(6). The prosecutor in State of Maryland v. James Desmond Jones also prosecuted the forfeiture complaint.

Appellant filed a motion to suppress the evidence, arguing that the police allegedly obtained evidence in violation of appellant's rights under the Fourth Amendment of the U.S. Constitution and under the Maryland Constitution. Appellant also filed a motion seeking to consolidate the suppression hearing with the forfeiture hearing. The motion to consolidate was granted.

The consolidated hearing was held on July 6, 1995. Four witnesses testified: Sergeant Vernon J. Conaway of the Maryland State Police, assigned as supervisor of the Kent County Drug Task Force (Task Force); Sergeant Timothy S. Knapp of the Task Force; Trooper First Class Harry L. McDaniel of the Task Force; and Detective Robert A. Walters of the Kent County Sheriff's Office, assigned to the Task Force. We summarize the testimony of these witnesses as follows.

Sergeant Conaway, a veteran drug enforcement officer, testified that, on Thursday night of March 30, 1995, he conducted a surveillance at the Village Tavern Bar (Tavern) in Chestertown, Maryland. The purpose of the surveillance was to observe appellant--a suspect about whom complaints and

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information had been received alleging that appellant was a cocaine dealer and that he dealt cocaine from the Tavern primarily on Thursdays, Fridays, and on some Saturdays. This information came from both citizen complaints and from a confidential informant. According to Sergeant Conaway, the confidential informant's information was reliable, it having led in the past to arrests of other individuals for drug law violations and to seizures of drugs and narcotics. The confidential informant never in the past gave false or misleading information to the Task Force. According to Sergeant Knapp (another veteran drug enforcement officer), during the preceding four or five years the police had received complaints regarding appellant's drug involvement. Indeed, Sergeant Knapp acknowledged that a search warrant of appellant's home was executed two years before the Tavern surveillance, but nothing incriminating was recovered.

During the surveillance, Sergeant Conaway and Sergeant Knapp were stationed in a vacant third floor apartment of a nearby building, looking down at the Tavern. Sergeant Conaway was looking out of a bedroom window and Sergeant Knapp was on the balcony. According to Sergeant Conaway, they were positioned approximately 300 feet away from the Tavern. Sergeant Knapp, however, stated that they were about twenty-five or thirty yards away. The lights were out in the apartment. In addition to binoculars, they employed a night vision telescope. Detective Walters and Trooper McDaniel were in a covert vehicle parked down the street from the Tavern.

At approximately 10:00 p.m., appellant drove his pick-up truck into the back parking lot of the Tavern, which is illuminated by lights on the back of the building. After parking, appellant walked into the Tavern. At approximately 10:30 p.m., appellant came out of the Tavern and walked toward his truck. As he was walking, appellant was counting paper currency that he was holding in his hand. Appellant entered his truck from the driver's side, sat down, and flipped the truck's sun visor down. After doing so, [681 A.2d 1193] appellant was

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observed looking down into his lap and then putting the sun visor up. Appellant exited the truck and began walking.

He was met by a second man. Sergeant Knapp recognized the man as an individual about whom "well over 100 calls" have been received indicating that he was a cocaine addict. Sergeant Conaway testified that he observed appellant hand the man--in a "nonchalant exchange, which is customary in the drug culture"--an item concealed in appellant's hand. Sergeant Conaway could not actually see what that object was. Although the police did not apprehend the second man to confirm that he had received drugs from appellant, Sergeant Conaway believed from his training and observations that a drug transaction just transpired between appellant and the man. Similarly, Sergeant Knapp testified, "There is no question in my mind what I saw was a drug transaction."

Thereafter, Sergeant Conaway and Sergeant Knapp met in the living room of the apartment and acknowledged having witnessed a drug deal. According to Sergeant Knapp, "at that time, we called for TFC McDaniel and for Detective Walters to come to ... that location so we could take down the [appellant]." Sergeant Knapp explained that this was when the decision was made to place appellant under arrest.

Sergeant Conaway and Sergeant Knapp then left the apartment and entered the Tavern. Approximately ten minutes had elapsed since the officers observed the transaction. They approached appellant and asked him to step outside of the crowded bar. Sergeant Conaway explained that he held one of appellant's arms as appellant was escorted out of the Tavern. The officers informed appellant of their observations and told him to place his hands on the concrete wall of the Tavern located outside of the doorway. Sergeant Conaway searched appellant and recovered $330 in cash and the keys to the truck.

Sergeant Conaway handed the keys to Sergeant Knapp. By this time, Detective Walters and Trooper McDaniel had arrived on the scene. Holding appellant's arms, Sergeant Conaway and Trooper McDaniel escorted appellant approximately

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120 to 130 feet to his truck, with Sergeant Knapp and Detective Walters leading the way. Sergeant Conaway testified that he and Trooper McDaniel had held appellant to prevent appellant--who "wasn't free to leave"--from fleeing their control and custody. According to Sergeant Knapp, appellant was in handcuffs during the walk to the truck. Sergeant Knapp also stated that on an occasion in the past, a drug suspect had eluded and fled from him in the Tavern parking lot.

Sergeant Knapp proceeded to search appellant's truck. He began searching under the seat and behind the back seat of the truck, at which time Sergeant Conaway instructed Sergeant Knapp to flip down the sun visor. After doing so, Sergeant Knapp recovered seven small plastic bags of cocaine. Sergeant Knapp explained that, from his observations and from the fact that "there would be no reason for the [appellant] to go to the vehicle prior to the drug transaction which occurred behind the Village Tavern," his belief before searching the truck was that it contained drugs.

At some point, Sergeant Knapp directed Detective Walters to take the truck to the Sheriff's Office to finish the search because a small crowd started to gather in the parking lot and Sergeant Knapp believed it would be safer to move the truck. From Detective Walter's further search, a document that appellant allegedly used to keep a record of his drug debts was recovered.

Sergeant Knapp then approached appellant and advised him that he was under arrest for possession of cocaine with intent to distribute. Miranda warnings were read to appellant at that time. Sometime thereafter, appellant is alleged to have voluntarily made incriminating statements.

At the close of the consolidated hearing, after making factual findings matching the facts presented above, the circuit court denied the motion to suppress. Just as the circuit court was preparing to rule on the forfeiture complaint, the prosecutor--apparently anticipating that the circuit court was going to order the forfeiture of appellant's property and recognizing

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a potential double jeopardy problem--interjected and requested the circuit court not to order the forfeiture[681 A.2d 1194] until after the prosecutor had submitted an order of forfeiture to the circuit court following the final decision in the criminal case. In this regard, the prosecutor stated, "If I was going to lose one on double jeopardy, I would opt to lose the forfeiture over the criminal case." Over the objection of defense counsel, the circuit court granted the prosecutor's request and reserved judgment on the forfeiture issues.

On October 13, 1995, a bench trial was conducted on appellant's criminal charges. At the conclusion...