Mitchell v. State

• Decision Date: 01 October 2020
• Docket Number: No. 324,324
• Parties: JUSTIN G. MITCHELL v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

JUSTIN G. MITCHELL v. STATE OF MARYLAND

No. 324

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

October 1, 2020

Circuit Court for Frederick County

Case No. 10-K-17-060027

UNREPORTED

Nazarian, Wells, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

Opinion by Raker, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant Justin G. Mitchell was convicted by a jury in the Circuit Court for Frederick County of possession of drug paraphernalia, possession of oxycodone, possession of methadone, and possession of alprazolam. Appellant presents the following re-ordered questions for our review:

1. Did the motions court err in denying appellant's motion to suppress?

2. Did the motions court err in precluding appellant from impeaching the police witness at his suppression hearing?

3. Did the trial court err in denying appellant's motion for in camera review of the police witness' internal personnel files?

We shall hold that the motions court erred in denying appellant's motion to suppress and shall reverse.

I.

By criminal information in the Circuit Court for Frederick County, the State charged appellant with possession of alprazolam with intent to distribute, possession of drug paraphernalia, possession of oxycodone, possession of methadone, and possession of alprazolam. After trial, the jury convicted him of possession of drug paraphernalia, oxycodone, methadone, and alprazolam. The court sentenced him to a term of incarceration of one year for possession of alprazolam, one year for possession of oxycodone to be served consecutively to the sentence for possession of alprazolam, and one year for possession of methadone to be served concurrently, all suspended, witheighteen months' probation.¹

Appellant filed a pre-trial motion to suppress the evidence seized from his person at the time of his arrest. The following facts are drawn from the suppression hearing. On the night of May 8, 2017, Juliana Gallucci, a manager of Madrones Restaurant on Wormans Mill Road, called the police and reported that a dining customer seemed like "a suspicious person" (in the words of police testimony). In response to the call, three Frederick County uniformed police officers, Officers Rippeon, Grimes and Rucci, arrived at the restaurant in marked cars at the same time, around 10:30 p.m. At least one of these officers, Officer Rippeon, was carrying a holstered gun that was visible on his uniform.

Officer Rippeon and Officer Grimes spoke with Ms. Gallucci and then with appellant, while Officer Rucci was also on the scene. Ms. Gallucci told the police that appellant had made numerous trips in and out of the restaurant and to the restroom. Officer Rippeon testified that Ms. Gallucci said that appellant eventually had come back to the bar and passed out.² When Officer Rippeon and Grimes spoke to appellant, who was eating his dinner at the bar, he struck them as "alert"; when they asked him if he was okay, appellant replied that he was fine, but tired. Officer Rippeon asked appellant for identification, and appellant retrieved it from a bag he had next to him.

Officer Rippeon then asked appellant to step outside, told him that he should pay the check for his dinner, and asked appellant to bring his bag outside with him. Appellant paid his bill and walked outside with Officers Rippeon and Grimes, who were joined outside by Officer Rucci.

Outside of the restaurant, Officer Rippeon asked appellant if he had anything illegal on him. Appellant responded that he did not. Officer Rippeon then asked appellant for consent to search him, to which appellant replied, "Yeah, go ahead, I don't have anything."

Officer Rippeon proceeded to search appellant. From appellant's jacket pocket, the officer seized a blue cylinder containing white powder residue, which Officer Rippeon believed was a pill grinder. From appellant's wallet, the officer seized a clear plastic bag containing five green pills. Officer Rippeon testified that he then arrested appellant.

Officer Rippeon proceeded to further search appellant, as a search incident to arrest. He found three pills of suspected methadone from a silver canister connected to appellant's keys. Officer Rippeon then searched the bag from which appellant had earlier retrieved his identification, where the officer found forty-four bars of suspected Xanax, ten hypodermic needles, five loose needles, a spoon with residue, and cotton balls.

The Maryland State Police Forensic Sciences Division performed lab chemistry tests indicating that the forty-four bars found in appellant's bag were alprazolam (sometimes known as Xanax, which is Pfizer's trade name for the drug), the five pills in the wallet were oxycodone, and the three pills from the silver canister were methadone.

On August 20, 2018, appellant discharged his trial counsel, and from there proceeded pro se. On January 23, 2019, the court heard and denied appellant's motion to suppress physical evidence, reasoning as follows:

"In this case, . . . dispatch had received a call from the restaurant for a person acting suspiciously. And when [Officer Rippeon] arrived at the restaurant, he made contact with the manager, who said that the gentleman seated at the bar, who was [appellant], had been running in and out of the restaurant, and then running around his car, and that, at one point, was asleep at the bar.

[Officer Rippeon] approached [appellant]. ... [H]e asked him if he was okay. He said he was okay. He was alert. He said he was fine, just tired. ... He asked him to step outside with him. He voluntarily went outside. There was no physical touching, no threat of arrest. His weapon was holstered. He wasn't threatened in any manner by the evidence presented today.

They were on the front sidewalk. They continued their conversation. The officer asked him if he had anything illegal on him. He said no. [The officer] [a]sked him if he could search him. He said yes, go ahead, I don't have anything on me. And then, upon searching, he initially finds a pill grinder . . . and, eventually, finds five pills in a clear baggy in his wallet, and he arrested him then.

After the arrest, there was further searching, and . . . there were more drugs discovered.

None of the three officers, who were present, displayed weapons. There was no physical force. The police vehicles were parked. There [were] no flashing lights on any of the vehicles to signal a heavy response. [The other officer] had no interaction with [appellant].

[Appellant] never asked to leave by the testimony presented today. He seemed tired, but in no distress. He never revokedhis consent to search. He was fine the whole time is the only evidence that the Court has before it.

When looking at all of this ... I believe ... consent was freely and voluntarily given. He was free to, in the encounter, walk away. He elected not to. There was nothing arbitrary or oppressive about this, and, therefore, the motion to suppress is denied."

As indicated, a jury convicted appellant of the four possession charges. The court imposed sentence, and this timely appeal followed.

II.

Before this Court, appellant argues that the motions court erred in denying his motion to suppress the physical evidence seized by the police in violation of the Fourth Amendment to the United States Constitution and Article 26 of the Maryland Declaration of Rights. In support, appellant argued that the police did not have reasonable suspicion or probable cause to seize him prior to conducting the search. He contends that he did not consent to the search and that his "ostensible consent" to search him "was merely the product of an atmosphere of overt police domination [and that] no reasonable person would have felt free to decline Officer Rippeon's request for consent to search." Because the search violated his Fourth Amendment protection from unreasonable search and seizure, he argues, the court should have suppressed the fruits of that search.

Appellant argues that the full context of the three police officers' conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Implicit in appellant's argument is the relatedcontention that the police conduct amounted to an unreasonable seizure of his person before Officer Rippeon requested consent to a search.

In response, appellee State maintains that the circuit court was correct in finding that appellant's consent was freely and voluntarily given. Appellee argues that appellant's ostensible consent was voluntary because the request of the police to move from the restaurant to the outdoors "simply moved the encounter from one public place to another." Appellee argues that any movement of appellant was not coercive, there was no seizure of appellant, and the presence of multiple uniformed officers was not coercive.

III.

In reviewing a trial court's denial of a motion to suppress evidence, we view the evidence from the suppression hearing, along with any reasonable inferences, in a light most favorable to the prevailing party. Davis v. State, 426 Md. 211, 219 (2012). We give deference to the facts found by the trial court unless they are clearly erroneous. Bailey v. State, 412 Md. 349, 362 (2010). We review de novo whether the trial court's decision was in accordance with the law. Crosby v. State, 408 Md. 490, 505 (2009).

The Fourth Amendment to the United States Constitution prohibits unreasonable search and seizure: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...and particularly describing...the persons or things to be seized." U.S. Const. amend. IV. Warrantless searches and seizures are...