Myers v. State

• Citation: 885 A.2d 920,165 Md. App. 502
• Decision Date: 04 November 2005
• Docket Number: No. 233,233
• Parties: Ernest James MYERS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

885 A.2d 920

165 Md. App. 502

Ernest James MYERS v. STATE of Maryland.

No. 233, September Term, 2005.

Court of Special Appeals of Maryland.

November 4, 2005.

Paul A. Fortenberry, Bradford C. Peabody (Nancy S. Forester, on brief), Baltimore, for appellant.

Steven L. Holcomb (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Panel SALMON, EYLER, JAMES R. and MEREDITH, JJ.

EYLER, JAMES R., J.

Ernest James Myers, appellant, was convicted by a jury in the Circuit Court for Washington County of theft of property having a value of $500 or greater. The court sentenced appellant to ten years' imprisonment. On appeal, appellant challenges (1) the denial of his motion to suppress evidence based on the alleged illegality of his arrest and (2) the legal sufficiency of the evidence to sustain his conviction. As explained below, we shall affirm the ruling, on slightly different grounds than that argued by the parties, and shall affirm the judgment.

Factual Background

The charge and conviction in this case was based on the theft of property taken on October 11, 2002, from the residence of Joseph Marinelli in Washington County.¹

On February 12, 2003, prior to the filing of charges in Washington County, Officer Clifford Weikert, with the Carroll Valley Borough Police Department, in the Commonwealth of Pennsylvania, stopped appellant while appellant was driving a vehicle. Subsequently, Pennsylvania charged appellant with the theft of property stolen from William Welsh in Pennsylvania in October, 2001. Appellant filed a motion to suppress evidence obtained as a result of the stop of his vehicle. The Court of Common Pleas, Adams County, the trial court, denied the motion. A jury convicted appellant of theft, and appellant appealed to the Superior Court of Pennsylvania, an intermediate appellate court. The Superior Court, in an opinion dated June 7, 2004, labeled "non-precedential," reversed the trial court's ruling on the motion to suppress and "vacated" the "judgment of sentence."

The facts, in pertinent part, as set forth in the Superior Court's opinion (quoting from the trial court's opinion), are as follows.

On February 12, 2003, at approximately [6:40 p.m.], Officer Clifford Weikert of the Carroll Valley Borough Police Department, while in a marked vehicle on routine patrol, observed a red Dodge Sundance unoccupied and parked in a no-parking zone along Northern Pike Trail. As he proceeded down the roadway past the vehicle, Officer Weikert observed a black male individual wearing a dark stocking cap and dark clothing walking toward the vehicle. As Officer Weikert passed this individual, Officer Weikert observed this individual bend over and apparently cover his face from Officer Weikert's view. Alerted by these actions, Officer Weikert proceeded down the road, immediately turned his vehicle around, and returned towards the area where he observed the individual and the vehicle. As he headed toward the parked vehicle, Officer Weikert observed the red Dodge Sundance pass him at a high rate of speed. Based upon the distance between the location where Officer Weikert initially observed [appellant], the location of the parked vehicle and the amount of time that passed while Officer Weikert turned his vehicle around, Officer Weikert opined that the individual must have sprinted to the vehicle since the time of his initial observation. When the Dodge Sundance passed the police vehicle, Officer Weikert once again turned his vehicle around in order to follow the Dodge Sundance. While following the vehicle, he estimated it was traveling at a rate of speed of 40 miles per hour in a 25 mile per hour zone. Officer Weikert indicated that at the time he observed the individual walking along the roadway, he was aware of a description of a suspect from a February 5, 2003 incident, in which a known eyewitness described a person involved in an attempted burglary. Specifically, Officer Weikert was aware that the suspect involved in the February 5, 2003, incident was wearing charcoal gray clothing, a dark blue cap, and was a black male between 5'6" and 5'10" in height. Officer Weikert was also aware that several weeks prior to this incident there were a number of burglary or criminal trespass related incidents occurring in the Carroll Valley Borough area ....

. . . .

Prior to the stop of the individual's vehicle, Officer Weikert was also aware that the investigation into the criminal incidents... revealed that each of the incidents occurred between 6:00 p.m. and 9:00 p.m., which was a time consistent with the time of Officer Weikert's observation of the subject in dark clothing. According to Officer Weikert, the recent number of burglaries within the Carroll Valley area was excessive and unusual based upon his experience as a Carroll Valley police officer and his familiarity with the area.

... Officer Weikert initiated a traffic stop of the vehicle. At the time of the traffic stop, Officer Weikert observed in plain view a large screwdriver within the vehicle, which appeared to him to be consistent with a screwdriver capable of making pry marks [similar to those] found at [the other recent burglaries]. Officer Weikert identified the driver as appellant and took him into custody on outstanding warrants from a neighboring jurisdiction. As a result of a search incident to his arrest, several items of rare United States Currency and a savings bond titled in another person's name were recovered from [his] person. The screwdriver was seized, the vehicle was impounded, and a search warrant was obtained for a search of the vehicle. During the subsequent search, a number of pieces of jewelry were found in the front console and seized as evidence.

We shall discuss the Superior Court's reasoning when we discuss the issues raised in this appeal.

Suppression Hearing — Maryland

As earlier stated, after appellant was charged in this case, he filed a motion to suppress all evidence. At the suppression hearing, Trooper Eric Guyer, with the Pennsylvania State Police, and Investigator Greg Alton, with the Washington County Sheriff's Department, testified.

Trooper Guyer testified to the following. In September, 2002, he was assigned to the criminal investigation division and continued an investigation, begun by his predecessor, of several burglaries with similar modes of operation. In connection with that investigation, Trooper Guyer had frequent contact with Investigator Alton.

On February 12, 2003, the day of the traffic stop, Trooper Guyer went to the Carroll Valley Police Department station. At that time, Trooper Guyer became aware of evidence that had been seized from appellant and his vehicle. Trooper Guyer also interviewed appellant. Trooper Guyer contacted Investigator Alton and shared information. As a result of information obtained from the evidence seized, officers applied for and obtained search warrants, which were executed. The evidence obtained included stolen property and physical evidence connecting appellant to various crime scenes.

Investigator Alton testified that he began investigating burglaries in December 2001 and that he had identified 34 burglaries with a similar mode of operation. Prior to the traffic stop of appellant in Pennsylvania, Investigator Alton had a description of a suspect, described as a black male 5'7" or 5'8" in height. This information was made available to various police departments. Investigator Alton did not know appellant and had not identified him as a suspect. Investigator Alton was aware that the arrest of appellant on February 12, 2003, was on an outstanding arrest warrant.

Based on information obtained from the evidence seized from appellant, Investigator Alton obtained and executed search warrants in Maryland. One of the places searched was a residence located at 26 Belview Avenue in Hagerstown. During the search, the police seized stolen property, some of which had been stolen from the residence of Joseph Marinelli on October 11, 2002. The police found other items which we will discuss when we address the legal sufficiency of the evidence to sustain the conviction. The search warrants were obtained and executed prior to the Superior Court's decision.

At the suppression hearing, five search warrants were introduced into evidence as State exhibits, and the Superior Court's opinion was introduced as a court exhibit.

The circuit court denied appellant's motion to suppress. The court explained:

At the time of the vehicle stop the Defendant had an outstanding arrest warrant issued by the State of Maryland, which is not disputed. This court holds that once he was identified by the Pennsylvania authorities and confirmed that he had an outstanding warrant by a neighboring jurisdiction, he was lawfully detained. Maryland law is clear that the issue of identity discovered during an illegal detention is not subject to exclusion by the "fruit of the poisonous tree" doctrine. Modecki v. State, 138 Md.App. 372, 771 A.2d 521 (2001). The subsequent search and seizure of the Defendant and his vehicle pursuant to the arrest warrant, and not because of the traffic stop itself was therefore lawful.

. . . .

In the present case the Defendant neither challenged the legality of the Maryland arrest warrant nor called for its production at the suppression hearing. Therefore, the issue of the warrant not being in evidence at the suppression hearing is of no consequence.

Trial

Joseph Marinelli testified that someone entered his home on October 11, 2002, by breaking the kitchen door. He testified that various items were taken, including three strongboxes. One contained the deed to his house and related papers. Another contained jewelry, including five watches which he valued at $1900. The third contained U.S. Savings Bonds, which he had to cash in, and by doing so, lost four thousand dollars. Mr. Marinelli described other items taken, including a credit card, a backpack, a class ring, a gold charm, and pens...