Mcdowell v. State

• Decision Date: 08 May 2008
• Docket Number: No. 2367, September Term, 2006.,2367, September Term, 2006.
• Citation: 947 A.2d 582,179 Md. App. 666
• Parties: Ernest James McDOWELL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

947 A.2d 582

179 Md. App. 666

Ernest James McDOWELL v. STATE of Maryland.

No. 2367, September Term, 2006.

Court of Special Appeals of Maryland.

May 8, 2008.

Celia Anderson Davis and Stephen T. Harris^** (Nancy S. Forster, Public Defender on the brief), Baltimore, for Appellant.

Jeremy M. McCoy (Douglas F. Gansler, Atty. General on the brief), Baltimore, for Appellee.

Panel: DAVIS, WOODWARD and LAWRENCE F. RODOWSKY, (Retired, Specially Assigned), JJ.

WOODWARD, Judge.

In the Circuit Court for Queen Anne's County, appellant, Ernest James McDowell, was charged with eight counts of narcotics-related offenses arising from the seizure of heroin and drug paraphernalia following a routine traffic stop on December 20, 2005. At a motions hearing, appellant moved to suppress the evidence seized during the traffic stop and the statements that he made to the police. At the conclusion of the hearing, the judge took the case under advisement and, thereafter, issued a written opinion denying appellant's motion to suppress.

Appellant entered into an agreement with the State to proceed on an agreed statement of facts as to one count of unlawfully bringing a controlled dangerous substance into the State. The trial judge found the agreed facts sufficient to establish a factual basis for the charge and entered a verdict of guilty. On November 29, 2006, appellant was sentenced to 20 years' incarceration. The State entered a nolle pros to the remaining counts. This appeal followed.

The sole issue on appeal is whether the circuit court erred in denying appellant's motion to suppress the physical evidence. Finding no error, we shall affirm the judgment.

BACKGROUND

On August 16, 2006, the hearing on the motion to suppress was held. Trooper Jeremiah Gussoni of the Maryland State Police, Centreville Barrack, was the only witness to testify. Based on his testimony, the following facts were adduced.

On December 20, 2005, at 11:40 p.m., Trooper Gussoni was traveling on Route 301 southbound in Queen Anne's County, Maryland when he observed a Chevy pickup truck driving erratically. Trooper Gussoni testified:

I observed that the vehicle would be [sic] traveling in lane one, the fast lane, would go across the edge line, back over the center line, the divided white line, into lane two, across the edge line, back into lane one; made several erratic moves like that.

At one point, two vehicles actually had to take evasive maneuvers to keep from being struck. I paced the vehicle about a half mile. [It] [w]as actually traveling down the center of both the lanes. I then activated my emergency lights and initiated a traffic stop on the vehicle.

The vehicle pulled over onto the right-hand shoulder of Route 301, a short distance before the 101 mile marker. It was very dark outside, and Trooper Gussoni described the area as "poorly lit." Trooper Gussoni observed two individuals in the vehicle, a driver and a front-seat passenger. When Trooper Gussoni approached the stopped vehicle, he advised the driver of his name and the reason for the stop. The driver apologized, explaining that the reason for his erratic driving was that he was tired. The driver identified himself as Hugh Collins Hines and appellant as his passenger. Appellant stated that it was his vehicle and that he was not carrying any identification.

During the stop, Trooper Gussoni observed that both Hines and appellant were nervous. In particular, Trooper Gussoni noticed that appellant, who was "staring straight, wouldn't look at me, was just — just appeared to me to be out of it."¹

Trooper Gussoni returned to his vehicle and initiated a driver's license check on the status of Hines's license as well as a "check on both men." While sitting in his vehicle, Trooper Gussoni could see into appellant's vehicle, which was illuminated by the trooper's "multi-patrol vehicle spot light." Trooper Gussoni saw appellant "bending down, bending over. I could see him twisting his body. He made several movements like that. At that point, appearing that he might have been retrieving a weapon, I requested backup," which was approximately 15 to 20 minutes away.

Trooper Gussoni exited his patrol car, "went to the rear of [his] vehicle as not to cross [the vehicle's] high beam light," and walked up to the passenger side of the stopped pickup truck. Trooper Gussoni "stood just behind the passenger side window," where he "observed [appellant] reaching underneath his seat and then behind his seat into a gym bag." The gym bag was "a standard gym bag, two and a half feet by a foot and a half" and "undoubtedly" large enough to hold a weapon. Trooper Gussoni testified:

At that point, I knocked on the window and spoke with [appellant]. I asked him what he was reaching for in the bag. I observed that the driver was now smoking a cigarette. [Appellant] had advised me that he was looking for cigarettes. I said, well, [appellant], are there any cigarettes in the bag and he said, well, no. I said what are you doing going into that bag. Again, figuring he had some type of weapon in there.

Appellant's nervous movements made Trooper Gussoni fearful that, based on his training at the State Police Academy, appellant had a weapon. Trooper Gussoni described appellant's movements as "indicative of someone trying to hide an item or retrieving a weapon or hiding a weapon." Trooper Gussoni elaborated: "A normal person is not going to reach underneath a seat, reach behind his seat into a bag and, then, when you ask about his [sic] contents, he is quickly moving away from that bag."

Because of his belief that "there was a weapon in the bag or [appellant] had secreted one," Trooper Gussoni asked appellant to exit the vehicle and bring the bag with him. Hines remained in the driver's seat while Trooper Gussoni directed appellant to "come to the rear of the vehicle, along with the bag." When asked "Why did you have [appellant] bring the bag out [of the car]?," Trooper Gussoni responded: "[F]rom the initial point of the traffic point [sic] how [appellant] was acting, the movements into the bag. I believe he had placed a weapon in there. It would be foolish of me to leave a bag with a weapon with another person in a vehicle with me outside." Trooper Gussoni further explained: "I was going to search the bag for a weapon. I was going to make sure there wasn't a gun in there or a knife or something that would harm me."

When appellant reached the rear of the vehicle, Trooper Gussoni expressed to appellant his fear that appellant was retrieving a weapon or hiding a weapon in the bag. Appellant responded: "[N]o, there's no weapons in there," after which Trooper Gussoni asked appellant to open the bag. Appellant opened the bag "extremely wide from the top and the sides," and Trooper Gussoni observed several prescription bottles, personal hygiene items, clothing, used syringes, and a torn plastic baggy containing white powdery residue. Trooper Gussoni described the syringes: "You could tell from the syringes that they had been used. Some were partly drawn back. There was dry blood in there — what appeared to be dried blood at that point[.]"

Based on his training and expertise, Trooper Gussoni believed that the torn baggy was drug paraphernalia containing either cocaine or heroin, because "[t]hose are drugs that are heavily ... injected into the body." When backup arrived, Trooper Gussoni placed appellant under arrest and performed a search incident to arrest of appellant's person and the pickup truck. Several torn plastic baggies of powdery residue were found in the front pocket of appellant's jeans. Recovered from the vehicle were several torn plastic baggies, a spoon with residue on one side and burn marks on the other side, a syringe left in the glove box, 20 packages of mannite, an agent commonly used for cutting narcotics, and numerous bloody towels.

The gym bag was transported to the police barracks where it was searched further. Trooper Gussoni found two knotted plastic baggies containing 55.5 grams of a brownish substance, later determined to be heroin.

At the conclusion of the hearing, the motions judge took the case under advisement and, on September 7, 2006, issued a written opinion denying appellant's motion to suppress the physical evidence and the statements that he made to the police.² In a thorough and well-reasoned opinion, the motions court stated, in pertinent part:

Trooper Gussoni had reasonable articulable suspicion that [appellant] was armed and dangerous, thereby allowing him to conduct a frisk of [appellant], and of the gym bag. Trooper Gussoni described that at the time of the stop it was dark, late at night; the Trooper was conducting a traffic stop whereby he received an out of state driver's license from the driver who did not own the vehicle; the passenger in the right front passenger seat owned the car but was not driving it; the same passenger seemed "out of it"; [appellant] was making furtive gestures towards the rear seat of the car, and the gym bag was in the rear seat. [Appellant] was reaching for it during the traffic stop, and the bag was large enough to hold a handgun. These are not the inchoate, unparticularized facts present in Derricott [v. State, 327 Md. 582, 611 A.2d 592 (1992)] or Payne [v. State, 65 Md.App. 566, 501 A.2d 484 (1985)]. The Trooper here observed what he considered furtive gestures, suspicious activity by the passenger, in particular, while effectuating the stop and attempting to obtain information from and about the driver and passenger, which led him to believe that [appellant] possessed a weapon which might have harmed him. As in Matoumba [v. State, 162 Md.App. 39, 873 A.2d 386 (2005)], Trooper Gussoni acted as a reasonably prudent man in the circumstances and was warranted in the belief that his safety was in danger. Upon re-approaching the car, on the passenger side, he observed [appellant] reaching for the bag. [Appellant] indicated, when questioned about the...