Kambon v. State

• Decision Date: 12 April 2023
• Docket Number: 536-2022
• Parties: OTAGWYN SENGBE KAMBON v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

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OTAGWYN SENGBE KAMBON v. STATE OF MARYLAND

No. 536-2022

Court of Special Appeals of Maryland^[*]

April 12, 2023

Circuit Court for Frederick County Case No. C-10-CR-21-000752

Reed Tang, Zarnoch, Robert A. (Senior Judge, Specially Assigned) JJ.

OPINION ^[*]

Reed J. On November 5, 2021, a Frederick County grand jury indicted Otagwyn Sengbe Kambon ("Appellant") on the following ten charges: (1) two counts of use of a firearm in relation to a drug trafficking crime; (2) two counts of illegal possession of a regulated firearm; (3) two counts of wearing, carrying, or transporting a handgun; (4) use of a magazine with a capacity exceeding ten rounds in the commission of a felony; (5) illegal possession of ammunition; (6) possession of a controlled dangerous substance ("CDS"); and (7) possession with intent to distribute CDS. These charges arose from a traffic stop and subsequent search of Appellant's vehicle, which revealed a loaded handgun and CDS. Appellant moved to suppress that physical evidence, arguing that the stop was unlawful. Following a hearing, the Circuit Court for Frederick County denied Appellant's motion. Thereafter, Appellant pled not guilty and proceeded on an agreed upon statement of facts. Although the State nolle prossed one count of use of a firearm in relation to a drug trafficking crime and the charge for use of a magazine with a capacity exceeding ten rounds, the court convicted Appellant of the remaining eight counts. The court then sentenced him to an aggregate term of 35 years' incarceration, with all but 20 years suspended, and five years' post-release probation.

Appellant presents two issues for our review, which we have rephrased slightly as follows:^[1]

1. Did the court err in denying Appellant's motion to suppress evidence seized during the warrantless search of his automobile?

2. Did the court err by failing to merge Appellant's conviction for possession of a regulated firearm after having been convicted of a disqualifying crime under Maryland Code (2003, 2018 Repl. Vol.), § 5-133(b) of the Public Safety Article ("PS") with his conviction for possession of a regulated firearm after having been convicted for possession of a regulated firearm after having been convicted of a violent crime under PS § 5-133(c)?

We answer Appellant's first question in the negative and his second in the affirmative. We will, therefore, vacate Appellant's conviction under PS § 5-133(b) and otherwise affirm the judgments of the circuit court.

BACKGROUND

The Suppression Hearing

On April 11, 2022, the circuit court held a hearing on Appellant's motion to suppress. We present the evidence adduced at that hearing and the inferences reasonably drawn therefrom in the light most favorable to the State as the prevailing party. See Barnes v. State, 437 Md. 375 389 (2014).

Shortly after 10:00 p.m. on the evening of Friday, October 15, 2021, Frederick County Sheriff's Deputy Sean Vanderwall parked his unmarked dark gray Dodge Charger next to a gas pump at the Sheetz store located at 8408 Woodsboro Pike.^[2] Deputy Vanderwall described the weather conditions that evening as having been "fairly clear," by which he meant that it was not raining. When he exited his vehicle to pump gas, Deputy Vanderwall noticed a silver Mitsubishi with "damage to the right side as well as a doughnut tire" parked approximately 15 to 20 yards away. Deputy Vanderwall observed two occupants in the vehicle, both of whom were reclined in their respective seats.^[3]

After entering Sheetz to procure a beverage, Deputy Vanderwall returned to his vehicle and surveilled the Mitsubishi through his rearview mirror. Deputy Vanderwall testified that his suspicions were aroused because the Mitsubishi was parked in a high crime area with its engine off notwithstanding the cold weather. Deputy Vanderwall prepared to exit his vehicle, approach the Mitsubishi, and speak with its occupants "to see if they were okay." Before he could do so, however, the Mitsubishi exited the Sheetz parking lot, turning right onto Woodsboro Pike ("the Road").^[4] The Road began as an undivided two-lane, two-way highway. As Deputy Vanderwall followed the Mitsubishi, however, it became a four-lane, two-way divided highway with a grassy median. When it reached the divide, the Mitsubishi traveled in the left passing or "fast lane." After crossing a bridge, the Mitsubishi approached an intersection. Prior to that intersection, the Road widened to four southbound traffic lanes, one of which was a left turn lane, which was separated from the passing lane by a dotted white line followed by a solid white line.^[5] Before entering the intersection, the Mitsubishi's left two tires crossed the solid white line into the turn lane. The vehicle then "correct[ed]," returning to the middle of the passing lane.

After the intersection, the Road consisted of three southbound lanes, with a solid yellow line separating the leftmost passing lane from the median shoulder.^[6] As the Mitsubishi continued southbound in the passing lane, its driver's side tires crossed the solid yellow edge line onto the left median shoulder before again "correct[ing] itself."

When the Mitsubishi was in the vicinity of Monocacy Boulevard, Deputy Vanderwall activated his emergency equipment and initiated a traffic stop. Deputy Vanderwall testified that he had tailed the vehicle for a total of approximately two miles before doing so. Deputy Vanderwall paced the Mitsubishi from between six and eight car lengths behind and determined that it was traveling at a speed of between 40 and 45 miles per hour-five to ten miles per hour below the posted speed limit.

Deputy Vanderwall identified the driver as Kayla Scott and the passenger as Appellant. He issued Ms. Scott a citation for driving without her license and gave her a warning for failure to obey a traffic control device. Deputy Vanderwall testified that he pulled over the Mitsubishi, in part, because, based on his training and experience, he believed that the vehicle's slow rate of speed suggested that its driver may have been "under the influence of narcotics or alcohol."

Based on the foregoing facts, the circuit court denied Appellant's motion to suppress, ruling:

With regards to the first crossing of the solid line in this case, I note and I think it is important factually it was into another lane of travel, a . . . turn lane in which a [vehicle] could well have been located. With regard to the second crossing, it was over a solid yellow line. In both instances, there were lanes of travel coming from the opposite side, although separated by a grass median. The Court finds that . . . based upon the totality of circumstances . . . the State has met its burden.

And I include in this analysis the deputy's testimony. The location and nature of the crossings one over a solid white line into another lane of travel and over into a yellow solid -- over a yellow solid line. There was probable cause in this case to believe that there was a traffic violation committed at a minimum for the failure to obey a traffic control device for which Deputy Vanderwall testified that he gave the driver a warning[.]

The Agreed-Upon Statement of Facts

Although unnecessary to the resolution of this appeal, we set forth the following agreed-upon facts to provide context for our discussion of the issues presented.

After conducting a traffic stop of the Mitsubishi, Deputy Vanderwall approached the passenger side door. Once the passenger's window was rolled down, Deputy Vanderwall "detected the strong odor of marijuana and observed a cloud of burnt marijuana smoke emanat[ing] from the vehicle." Deputy Vanderwall asked Ms. Scott whether the vehicle contained additional marijuana, whereupon she advised him that she had a medical marijuana card and removed a white prescription marijuana container from her purse. The container's seal was broken and some marijuana had been removed therefrom. Appellant- who had been convicted of second-degree assault in 2013 and was the vehicle's registered owner-volunteered to Deputy Vanderwall that Ms Scott and he had smoked a "blunt." Turning to Appellant, Deputy Vanderwall asked whether he too had a medical marijuana card. When Appellant answered in the negative, Deputy Vanderwall instructed Ms. Scott and him to exit the vehicle and initiated a search thereof.

During the search of the Mitsubishi, Deputy Vanderwall found a marijuana cigarette in the cupholder ashtray. On the floor behind the driver's seat, he also discovered a black garbage bag containing 56 individually packaged Tetrahydrocannabinol ("THC") "edibles"^[7] and a digital scale, as well as "a small black tactical bag" containing a loaded Glock 21 .45-caliber semiautomatic handgun without a serial number.^[8]

Deputy Vanderwall read Appellant his Miranda rights. Immediately thereafter, Appellant claimed ownership of any contraband in the vehicle. Deputy Vanderwall then asked him whether he had any paperwork pertaining to the firearm. Appellant answered in the negative. Deputy Vanderwall issued Ms. Scott traffic citations and arrested Appellant. During a search incident to that arrest, Deputy Vanderwall recovered a red iPhone from Appellant's person.

Deputy First Class Daniel Schlosser conducted a warranted forensic data extraction of Appellant's phone, which revealed multiple text messages sent by him offering to sell THC edibles. In DFC Schlosser's opinion as an expert in the identification, packaging, and distribution of CDS, Appellant "possessed the [CDS] in a quantity indicative of distribution, rather than personal use, and that [Appellant] was selling THC products at a street level for profit." DFC Schlosser further opined that Appellant "possessed the firearm . . . to protect...