Moore v. State
| Decision Date | 29 October 2010 |
| Docket Number | No. 1759, Sept. Term, 2007.,1759, Sept. Term, 2007. |
| Parties | Ray Lamont MOORE v. STATE of Maryland. |
| Court | Court of Special Appeals of Maryland |
Nenutzka Villamar (Paul DeWolfe, Public Defender, on the brief) Baltimore, MD, for appellant.
Jeremy M. McCoy (Douglas Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.
Panel: HOLLANDER, EYLER, JAMES R. and JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.
JAMES A. KENNEY, III, J. (Retired, Specially Assigned).
A jury sitting in the Circuit Court for Baltimore County convicted Ray Lamont Moore, appellant, of possession of cocaine, possession of heroin, possession with intentto distribute cocaine, and possession with intent to distribute heroin. After merger of the simple possession charges, appellant received a sentence of 25 years without the possibility of parole for possession of cocaine with intent to distribute and a suspended sentence of five years for possession of heroin with intent to distribute. Prior to trial, the court denied appellant's motion to suppress evidence seized when he was subjected to a strip search at a police station.
Appellant presents three questions for our review, which we have slightly reworded:
We answer "no" to the first two questions, "yes" to the third, and affirm the judgment of the circuit court.
The Circuit Court for Baltimore County issued a search and seizure warrant on January 24, 2006, for the search of "[t]he person known as 'Ray Ray,' a black male described as being in his 20's with a medium build" and "[a] silver 4-door Kia with Maryland registration MPC835" for drugs, weapons, and drug paraphernalia. Probable cause to issue the warrant was based upon the affidavit of Detective C.M. Toland and Detective Steven Sodd of the Baltimore County Police Department.
In that affidavit, the detectives stated that a confidential informant had informed them that appellant "sells crack cocaine in Baltimore County." According to the informant, "Ray Ray [could] be called on his cell phone, ... and [he] will come out to sell crack cocaine, driving a silver 4-door Kia with Maryland registration MPC 835." The informant also advised that "he/she has observed Ray Ray talking about having guns and actually observed what he/she believed was a handgun in Ray Ray's silver Kia on one occasion."
The detectives affirmed that "[the informant] has provided information in the past which has lead [sic] to the successful recovery of narcotics in quantities that indicate an intention to distribute same and have led to several arrests; therefore, [the detectives] deem [the informant's] information reliable." They also stated that, in January, they had set up and executed a "controlled purchase of crack cocaine from Ray Ray." The informant arranged a meeting with appellant, while under surveillance by the detectives, to purchase cocaine with money given to the informant by the detectives. Appellant drove the described vehicle to the arranged meeting location where he sold cocaine to the informant.
On January 25, 2006, at 7:00 p.m., while driving a silver Kia in Baltimore County, appellant was stopped by the Baltimore County police for the purpose of executing the search warrant. After "a search of [appellant] at the scene there per his outer-garments, his clothing," and a search of the vehicle produced no drugs or paraphernalia, Detective Toland took appellant to the local police precinct. In a private room and in the presence of the detective and another male police officer, appellant was directed to take off his clothes, bend over, and spread the cheeks of his buttocks. When he did, the detective "observedsome plastic bag piece sticking out of his butt." Detective Toland "at that point ... removed the plastic bag which contained two plastic baggies." One of those bags contained eleven baggies of cocaine and the other contained ten baggies of heroin.
Appellant moved to require the State to produce the identity of the informant and to suppress the evidence recovered. Both motions were denied. Details of the motions hearing are set out in the Discussion section of this Opinion.
Trial took place on April 16 and 17, 2006. At trial, Detective Toland testified that, according to the officers who had stopped appellant, when appellant was stopped, he was observed "bending over in the vehicle with his hands tucked around his body." He refused to exit the vehicle, and a window had to be broken to remove him. Detective Toland was told that a cell phone was recovered in a search of appellant's vehicle, and that appellant had less than $200 on him.
Detective Toland was qualified and accepted by the court as an expert in the detection, sale, and packaging of narcotics. He testified that, in his opinion, each of the eleven baggies of crack cocaine had an approximate street value of $40 and each of the ten baggies of heroin had an approximate street value of $20. He opined that the amount of narcotics recovered, the two different types, and the way that the narcotics were packaged indicated an intent to distribute the drugs.
Detective Toland acknowledged that appellant said that he had a "bad" drug problem and that the drugs were for his personal use. Detective Toland, however, observed no visible indications of drug use on appellant's body.
The State's chemist testified that the drugs recovered from appellant tested positive for cocaine and heroin. The total weight of the cocaine was 4.4 grams and the total weight of the heroin was 1.4 grams.
Appellant did not testify or otherwise offer evidence.
In Paulino v. State, 399 Md. 341, 347-49, 924 A.2d 308 (2007), the Court of Appeals explained:
The sole witness at the suppression hearing was Detective Toland. He testified that on January 25, 2006, at 7:00 p.m.,appellant was stopped by Baltimore County police officers at the intersection of Mussula and Yakona Roads in Baltimore County because both his physical characteristics and the vehicle he was driving matched the description in a search and seizure warrant that authorized a search of appellant and the vehicle for drugs. Appellant's vehicle and outer clothing were searched at the scene and nothing was recovered.
In response to questioning by defense counsel, Detective Toland testified that he arrived at the scene shortly after the stop and took appellant to the Towson precinct. A search of appellant was carried out in a private interview room:
There's an interview room. [Appellant] was in the interview room with myself and another officer. At that point, he was strip searched. His clothes were removed. When I asked him to turn around and to bend over, I observed some plastic bag piece sticking out of his butt. And at that point, I removed the plastic bag which contained exactly two plastic bags. One contained 11 baggies of crack cocaine and one contained ten baggies of heroin.
The record reveals the following exchange on cross-examination by the State:
On redirect examination:
Detective Toland also testified that nothing fell out of appellant's underwear and nothing fell down when appellant was standing in the interview room.
Defense counsel argued that the search warrant only allowed a search of the outside of appellant's person, and that a strip and visual body cavity search were outside the scope of the warrant.1
The court, in denying the motion to suppress, stated:
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