Millwood v. State, 1456

• Decision Date: 01 September 1986
• Docket Number: No. 1456,1456
• Parties: Charles Truman MILLWOOD v. STATE of Maryland ,
• Court: Court of Special Appeals of Maryland

Page 82

72 Md.App. 82

527 A.2d 803

Charles Truman MILLWOOD v. STATE of Maryland

No. 1456, Sept. Term, 1986.

Court of Special Appeals of Maryland.

July 9, 1987.

Gerald A. Kroop (John D. Thompson and Kroop, Kurland & Rosenberg, on the brief), Baltimore, for appellant.

Norman L. Smith, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, M. Kenneth Long, Jr., State's Atty., for Washington County and Andrew G.W. Norman, Asst. State's Atty., for Washington County on the brief, both of Hagerstown), for appellee.

Argued before BLOOM and ROBERT M. BELL, JJ., and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

BLOOM, Judge.

A jury in the Circuit Court for Washington County convicted appellant, Charles Truman Millwood, of possession of methamphetamines, a controlled dangerous substance, with intent to distribute; unlawfully bringing methamphetamines into Maryland; and unlawful transportation of a handgun, for which he received concurrent sentences of five years, twelve years and three years, respectively.

In this appeal from those judgments, appellant asserts error in the trial court's denial of his motion to suppress, as the fruits of an illegal search and seizure, the evidence (methamphetamines and weapons) used to convict him. Finding no error in the ruling on appellant's suppression motion, we will affirm the judgments.

Facts

At 4:45 p.m. on 31 January 1986, the dispatcher at the Hagerstown Barracks of the Maryland State Police received a telephone call from an anonymous informant who stated that a purple ("like a lavender") 1965 Ford Thunderbird with Pennsylvania license plates was traveling south on Interstate 81 on a drug run from Pennsylvania into Maryland. It was alleged by the caller that the automobile contained a shipment of methamphetamines in the trunk or taped inside the grill. The informant further indicated that the car would cross into Maryland "in an hour or two" and that the occupants of the vehicle were a white male, wearing an "Indiana Jones" style hat, and a white female.

The Maryland State Police alerted its counterpart in Pennsylvania to be on the lookout for the suspect vehicle. Some time later, Pennsylvania officers advised the Maryland State Police that an automobile matching the description provided by the informant was then traveling south on Interstate 81 about 12 miles north of Maryland. Maryland Troopers Twigg and Keckler established surveillance posts along Interstate 81 near the Pennsylvania-Maryland border.

At approximately 5:50 p.m. Trooper Twigg observed a purple or lavender mid-sixties Thunderbird with Pennsylvania tags cross over into Maryland. Contacting Trooper Keckler by radio, Twigg, driving a marked police cruiser, began to follow the Thunderbird. Shortly thereafter, Trooper Keckler, who was driving an unmarked car, caught up with Trooper Twigg and the suspect vehicle. The two officers continued to follow the Thunderbird, hoping to observe the driver commit a violation of a traffic law. The driver, however, obeyed the posted speed limit and otherwise operated his vehicle in a lawful manner, thus providing no opportunity for the police to stop him on the basis of his driving.

After confirming that the car was a purple or lavender mid-sixties Thunderbird with Pennsylvania license tags and two occupants, Trooper Twigg activated his emergency lights and motioned to the driver to pull the Thunderbird over. The operator, appellant, Charles Millwood, responded by driving off Interstate 81 into a gasoline service station just off the highway. Millwood, who was wearing a felt hat described by Trooper Keckler as being "Indiana Jones" style, stepped out of the Thunderbird and approached Trooper Twigg. Trooper Keckler ordered Millwood to place his hands on the police cruiser so that he could be frisked. After he had assumed the "spread eagle" position, Millwood was informed by Trooper Keckler that he had been stopped because the police ... had received an anonymous phone tip that the car he was driving was described, that there was a white female passenger alleged to be with him, and that there was to be, according to the caller, a quantity of methamphetamine in the car, either taped to the back of the grill or in the trunk.

The passenger of the car, a white female, got out of the vehicle and remained near its right side throughout the ensuing events.

Exactly what occurred after Millwood was frisked is disputed by the parties. According to Millwood, while he was being frisked Trooper Keckler grabbed the keys from the ignition of the Thunderbird and began to search the trunk. While rummaging through the trunk, the trooper said, "I guess I have your permission to search ..., ain't I?" and then threatened to "tear it all to damn pieces" if Millwood would not consent to the search. Millwood claimed he told the troopers to go ahead with the search because they were "very likely gonna do it anyway." Trooper Keckler's version of what occurred differed dramatically, not only as to the timing of the search but also with respect to his demeanor in dealing with Millwood.

As a result of the search, a large quantity of methamphetamines and two handguns were discovered. Millwood and his female passenger were then placed under arrest.

Millwood's motion to suppress the evidence obtained from the search of his automobile was denied on the alternative bases (1) that the police had probable cause to effect the search and (2) that Millwood had consented to the search.

Appellant's Contentions

Millwood's assertion that the court erred in denying his motion to suppress the evidence recovered from the Thunderbird is based primarily upon his contention that the information provided by the anonymous informant was insufficient to constitute probable cause for the search of his vehicle. He also insists that his consent to the search was coerced and, therefore, was involuntary. Furthermore, Millwood argues, even if he had consented to the search of his car, that consent and the resulting search were the products of an illegal stop and thus invalid as the "fruits of the poisoned tree," citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

We need not determine whether the police had probable cause to search the Thunderbird, nor need we consider the "poisoned tree" argument, because we find that Millwood voluntarily consented to the search after having been subjected to a valid investigatory stop.

I Investigatory Stop

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that a police officer, in appropriate circumstances, may approach, accost, and temporarily detain a person for the purpose of investigating possible criminal activity even though the officer lacks probable cause to effect an arrest. Id. at 22, 88 S.Ct. at 1880. As stated in Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972):

The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur. On the contrary Terry recognizes that it may be the essence of good police work to adopt an intermediate response.

That "intermediate response" is the investigatory stop.

A valid investigatory stop under Terry, in its simplest terms, requires only that the officer, in light of his experience, reach the reasonable conclusion that some type of criminal activity is taking place or is about to take place. United States v. Gomez, 776 F.2d 542, 546 (5th Cir.1985). See, e.g., Terry v. Ohio, supra, 392 U.S. at 30, 88 S.Ct. at 1884; Mosley v. State, 45 Md.App. 88, 194-95, 411 A.2d 1081 (1980), aff'd, 289 Md. 571, 425 A.2d 1039 (1981). That conclusion must be based upon a "reasonable articulable suspicion" that a crime is being or is about to be committed. Terry v. Ohio, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880; Gibbs v. State, 18 Md.App. 230, 306 A.2d 587, cert. denied, 269 Md. 759 (1973). The officer may develop his reasonable suspicion as a result either of direct personal observation of questionable activity, as in Mosley v. State, supra, or confirmation of information received from an informant. See e.g., Adams v. Williams, supra; United States v. Andrews, 600 F.2d 563 (6th Cir.1979); Johnson v. State, 50 Md.App. 584, 439 A.2d 607 (1982).

Obviously, the degree of suspicion that reasonably may arise from a tip varies according to the facts and circumstances in each case. As the Supreme Court pointed out:

Informants' tips, like all other clues and evidence coming to a policeman on the scene, may vary greatly in their value and reliability. One simple rule will not cover every situation. Some tips, completely lacking in indicia of reliability, would either warrant no police response or require further investigation before a forcible stop of a suspect would be authorized. But in some situations--for example, when the victim of a street crime seeks immediate police aid and gives a description of his assailant, or when a credible informant warns of a specific impending crime--the subtleties of the hearsay rule should not thwart an appropriate police response.

Adams v. Williams, supra, 407 U.S. at 147, 92 S.Ct. at 1924. Cf. United States v. White, 648 F.2d 29, 41 (D.C.Cir.) ("not all tips are created equal"), cert. denied, 454 U.S. 924, 102 S.Ct. 424, 70 L.Ed.2d 233, 70 L.Ed.2d 235 (1981). In holding that the information received from an informant justified the police in stopping the driver of a car for questioning, the Court in Adams stressed that the informant was personally known by the officer and that he had given information in the past. Moreover, the Court noted that under the applicable law, had the tip proved incorrect, the informant would have been arrested for filing a false complaint. 407 U.S. at 146-47, 92 S.Ct. at 1923.

The Court in Adams explicitly...