King v. State Of Md.

• Decision Date: 07 July 2010
• Docket Number: 2009.,No. 0152,0152
• Parties: Calvin Almeida KINGv.STATE of Maryland.
• Court: Court of Special Appeals of Maryland

193 Md.App. 582

998 A.2d 397

Calvin Almeida KINGv.STATE of Maryland.

No. 0152, Sept. Term, 2009.

Court of Special Appeals of Maryland.

July 7, 2010.

COPYRIGHT MATERIAL OMITTED

David Felsen (Greenberg, Selsen & Sargent, LLC, on the brief) Rockville, MD, for appellant.

Brian S. Kleinbord (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: ^* SALMON, MATRICCIANI and LAWRENCE F. RODOWSKY, (Retired, Specially Assigned), JJ.

LAWRENCE F. RODOWSKY, J., Retired, Specially Assigned.

Appellant, Calvin King (King), was convicted in the Circuit Court for Montgomery County on three charges arising out of his possession, while a passenger in an automobile, of a handgun and ammunition. The offenses were: (1) transporting a handgun in a vehicle, in violation of Maryland Code (2002), § 4-203 of the Criminal Law Article; (2) possession of a regulated firearm by a minor, in violation of Maryland Code (2003), § 5-133(d) of the Public Safety Article (PS); and (3) possession of ammunition by a minor, in violation of PS 5-133(d). The Court sentenced King to three years on the first conviction, a consecutive five year sentence on the second conviction, and to five years on the third conviction. The sentences were suspended in their entirety, and King was placed on five years supervised probation.

Following the denial of King's motion to suppress evidence, the case on the merits was tried on the record at the suppression hearing, supplemented by undisputed facts. The only issue on this appeal is whether the circuit court erred in denying the motion to suppress. King's submission is that the warrantless seizure of the handgun and ammunition are the fruits of an unreasonable seizure of his person. We agree and explain.¹

Standard of Review

“In reviewing the denial of a motion to suppress evidence under the Fourth Amendment, we look only to the record of the suppression hearing and do not consider any evidence adduced at trial. Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999). We extend great deference to the findings of the hearing court with respect to first-level findings of

fact and the credibility of witnesses unless it is shown that the court's findings are clearly erroneous. Reynolds v. State, 130 Md.App. 304, 313, 746 A.2d 422 (1999) cert. denied, 358 Md. 383, 749 A.2d 173 (2000) cert. denied, 531 U.S. 874, 121 S.Ct. 178, 148 L.Ed.2d 122 (2000). Moreover, we view those findings of fact, and indeed the record as a whole, in the light most favorable to the State. Id. We review the court's legal conclusions de novo, however, making our own independent constitutional evaluation as to whether the officers' encounter with appellant was lawful. Id.”

Daniels v. State, 172 Md.App. 75, 87, 913 A.2d 617, 624 (2006) cert. denied, 398 Md. 314, 920 A.2d 1059 (2007); see also Reynolds v. State, 130 Md.App. 304, 311, 746 A.2d 422, 425 (1999) (“[W]e consider, upon our review of the denial of the motion to suppress, only that version of the testimony in the light most favorable to the State and accepted by the motions judge.”) cert. denied, 358 Md. 383, 749 A.2d 173, cert. denied, 531 U.S. 874, 121 S.Ct. 178, 148 L.Ed.2d 122 (2000).

The Facts

At the suppression hearing, Officer Michael Chindblom testified for the State and presented the following facts. He is a seven-year veteran of the Montgomery County Police Department. On July 17, 2008, he was patrolling in the area of Thompson Road and King House Road. About 12:15 a.m., he received a dispatch reporting an anonymous complaint about the flickering of a lighter emanating from a dark-colored sedan, with unknown occupants, in an unlit portion of Thompson Road. In his marked police vehicle, Officer Chindblom approached the sedan, which was parked with the driver's side to the curb. He parked the cruiser essentially perpendicular to the front passenger side of the sedan. At no time had he activated his emergency equipment, but he did shine the cruiser's spotlight into the passenger compartment of the sedan. He noticed the driver bend over, apparently placing something under his seat. Officer Chindblom exited his vehicle and radioed for backup. He approached the sedan, shining his flashlight into the car. Approximately one to two minutes after Officer Chindblom had arrived on the scene, Officer Rebecca Shannon arrived in another marked police vehicle. The police units did not block in the sedan. Officer Shannon stood to the rear of the sedan on the passenger side and kept its occupants under observation.

There were four persons in the parked car. One Abbie McBride (McBride) was in the driver's seat. King, then age eighteen, was seated in the left rear passenger seat behind the driver. Two females were seated in the right passenger seats in the front and rear of the vehicle, respectively. Officer Chindblom stated that the driver appeared nervous and was staring at the floorboard. In response to the officer's questions, McBride stated that there was nothing illegal in the vehicle and that the occupants were simply smoking cigarettes and talking. The officer did not detect the odor of any illegal substances, nor did he observe any illicit paraphernalia. During this questioning, Officer Chindblom requested and obtained McBride's license. He ran a license and warrant check from his personal radio without returning to his vehicle. He could not guess how long it took to get the answer back, but acknowledged that it “usually takes a while to get a return back.”

Officer Chindblom continued questioning all of the occupants. He never returned McBride's license, even after the check came back clean. Officer Chindblom informed the occupants that he was requesting a canine unit to search for narcotics. On cross-examination, he testified as follows:

“Q When you ask those questions, that's intended to demonstrate your authority-to what's going on, isn't that right?

“A I wouldn't say demonstrate authority.

“Q What would you say?

“A To come to a conclusion to find the truth.

“Q When you're telling them that you could-in fact, you told the people that night that you could get a canine dog, right?

“A Yes.

“Q You told them that?

“A And one did show up on scene yes, eventually.

“Q Well, that was after you arrested everybody, right?

“A Yes.

“Q Okay, let's talk about before you took Mr. McBride out of the vehicle.

“A Yes, sir.

“Q Okay. You told them that you were planning on going to get a canine dog, weren't you?

“A Yes.

“Q And that they'd better-these might not be your exact words, but they better sort of let you know what's going on-

“A Correct.”

By this time, four to five additional minutes had passed and seven minutes had elapsed since the initial encounter. The officer acknowledged that the occupants of the vehicle “possibly” were “making out.”

McBride had initially rejected Officer Chindblom's request that McBride consent to a search of the car, but when the officer later renewed the request, McBride agreed. In order to conduct the search, McBride was asked to step from the vehicle and to stand to the side. Officer Chindblom returned to the vehicle to speak with the remaining occupants. They again stated that they were not engaged in any illegal activity. The officer noticed King was profusely sweating. He explained that his condition resulted from a broken air conditioner. However, the vehicle was off when the officer initially arrived on the scene. The officer returned to McBride, who was wearing shorts, to conduct a pat down for weapons. During the pat down, the officer noticed green flakes on McBride's shoes and legs that he believed from his training to be marijuana.² This prompted the officer to return to the vehicle. From outside the open driver's door, he observed, under the driver's seat, the handle of a silver semi-automatic handgun. McBride, King, and the remaining occupants were arrested.

A search of the vehicle also revealed another handgun under the driver's seat toward the rear passenger compartment. Seven or eight rounds of ammunition for various weapons were discovered in the front passenger door.

In denying King's motion to suppress the weapon and ammunition recovered from the vehicle, the court relied on Officer Chindblom's testimony.

“[T]here was no display of weapons, there was no physical touching prior to Mr. McBride exiting the vehicle and there being a pat down. I find that the language used and the tone used as I find it, do not indicate that compliance with the officer's request would be compelled absent consent. In other words, in the absence of such evidence, otherwise appropriate contact between members of the public and the police does not, without more, amount to seizure of the person, much less an unconstitutional seizure of the person.”

The court also found that the police vehicles did not restrict McBride's ability to operate his sedan, that no emergency equipment was activated, and that the presence of the second officer did not escalate the nature of the encounter.

DISCUSSION

We must determine if King's Fourth Amendment rights were violated prior to discovery of any incriminating evidence. Three types of police-citizen encounters are recognized under Maryland jurisprudence:

“The most intrusive encounter, an arrest, requires probable cause to believe that a person has committed or is committing a crime. The second category, the investigatory stop or detention, known commonly as a Terry stop, is less intrusive than a formal custodial arrest and must be supported by reasonable suspicion that a person has committed or is about to commit a crime and permits an officer to stop

and briefly detain an individual. A police officer may engage in an investigatory detention without violating the Fourth Amendment as long as the officer has a reasonable, articulable suspicion of criminal activity. A Terry stop is limited in duration and purpose and can only last as long as it takes a police officer to confirm or to dispel his suspicions. A person is seized under this

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