Partee v. State
| Decision Date | 01 September 1997 |
| Docket Number | No. 1023,1023 |
| Citation | 708 A.2d 1113,121 Md.App. 237 |
| Parties | Marvin PARTEE v. STATE of Maryland. , |
| Court | Court of Special Appeals of Maryland |
Thomas K. Clancy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Jack B. Johnson, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.
Argued before HARRELL and BYRNES, JJ., and JOHN F. McAULIFFE, Judge (retired), Specially Assigned.
Marvin Partee, appellant, was convicted by a jury in the Circuit Court for Prince George's County of possession of heroin with intent to distribute, possession of heroin, and Before trial, appellant moved to suppress a large sum of cash, a baggie containing heroin, a black pouch containing heroin and marijuana, and a pocket calendar, all of which he maintained were fruits of a seizure of his person by the police in violation of his rights under the Fourth Amendment to the United States Constitution. The motions court granted the motion in part and denied it in part, suppressing the baggie of heroin and the cash as the fruits of an illegal seizure and ruling admissible the drugs in the pouch and the pocket calendar, as abandoned property.
possession of marijuana. He was sentenced [708 A.2d 1115] to an aggregate term of sixteen years imprisonment.
On appeal, appellant presents one question for review, which we have rephrased:
Did the motions court err in ruling admissible physical evidence that left appellant's possession when he was illegally seized by the police?
We answer the question affirmatively, holding that the motions court erred in ruling that the pouch containing heroin and marijuana was abandoned property and, implicitly, that it was not the fruit of the illegal seizure of appellant's person. Accordingly, we reverse the judgments and remand for further proceedings.
In the early morning hours of May 23, 1996, Sergeant Richard Logue and Officer Jerome Manley of the Prince George's County Police Department were on "high visibility" patrol in a crime-ridden area of Oxon Hill. The officers were sitting in their marked police cruiser, with Sergeant Logue at the wheel, when they observed a 1979 Pontiac station wagon drive down the street, make a U-turn, 1 and proceed back up the same street. The station wagon was occupied by a white male driver and by appellant, an African-American male, who was the front seat passenger. Sergeant Logue thought that The police cruiser fell in behind the station wagon. Soon the officers noticed that the wagon was picking up speed, eventually exceeding the posted speed limit by 15 miles per hour. They continued to follow the vehicle for about a mile. The station wagon stopped for a red light, pulled out when the light turned green, and made a legal left turn. At that point, the officers activated their cruiser's emergency equipment, including their high intensity lights, and made a traffic stop. The driver immediately pulled the wagon over to the side of the road.
the station wagon "didn't belong" in the neighborhood and "wonder[ed] what they [were] up to." He decided to follow it
The officers saw the interior dome light in the station wagon come on. Officer Manley noticed the driver move as if to reach under the seat. Sergeant Logue saw appellant look back and make a similar movement. The officers got out of the cruiser and started to walk toward the station wagon. Officer Manley had his gun drawn and pointed at the vehicle. Suddenly, appellant exited the vehicle and ran away from the officers. Both officers noticed that appellant was holding a small shiny black object in one hand. They testified that they thought the object was a gun.
Sergeant Logue ordered Officer Manley to stay with the driver, who was still sitting in the station wagon. With his gun drawn, Sergeant Logue chased appellant, yelling, "Stop, or I'll shoot, halt, police." Appellant kept running. As he rounded a corner, he tripped over a curb and fell down. When appellant started to get up, Sergeant Logue saw that he was still holding the black object. Sergeant Logue took cover and fired one shot at appellant. It missed. Appellant resumed flight by "crab-walking" away on all fours. At that point, Sergeant Logue noticed that appellant was no longer holding anything. He stopped shooting for that reason.
With his weapon still drawn, Sergeant Logue continued to run after appellant, intending to circle in front of him to head him off. According to Sergeant Logue, appellant reached to At that point I'm screaming and yelling at him, "See your hands, pull your hands out, you know, stop, stop," and that's when all of a sudden he comes out with the black object. And as soon as I saw black in his hand, I started firing again.
his "groin area" and "c[ame] out with another black object," which was not shiny. Sergeant Logue explained:
Sergeant Logue fired three rounds at appellant from a distance of about twenty feet. At that precise moment, appellant threw the black object, staggered, and fell to the ground. He had been shot twice, once in the back of each leg. The black object landed beneath a parked car, a few feet away. As Sergeant Logue put it: "[A]s I hit him with the bullets he chucked [the black object] underneath the car."
Appellant lay on the ground, wriggling around and reaching into the front of his pants. Thinking that appellant might be trying to pull a weapon, Sergeant Logue struggled to get hold of his hands. Officer Manley came running up to assist. He and another officer who had arrived on the scene handcuffed appellant. Sergeant Logue then searched appellant's groin area. Instead of finding a weapon, he found a "large bagg[ie] of heroin, all individually packaged" and $800.00 in cash.
Sergeant Logue retrieved the black object from beneath the parked car. It was a pouch that looked like a camera bag. Part of a cellophane bag containing marijuana was protruding from one corner of the pouch. Sergeant Logue opened the pouch and found marijuana and heroin. He then returned to the spot where he had fired at appellant and missed. There he found a small black pocket calendar containing credit cards and papers listing many names and telephone numbers. According to Sergeant Logue, the black pocket calendar was the first object that he had mistaken for a gun; the pouch was the second such object.
Sergeant Logue and Officer Manley were the only witnesses to testify at the suppression hearing. At the conclusion of their testimony, the motions judge examined the pouch and the pocket calendar. The court then ruled that the police At trial, Officer Logue testified consistent with his testimony at the suppression hearing. Officer Manley did not testify, as he was out-of-state on vacation. Appellant moved the trial court for reconsideration of the denial of the motion to suppress the contraband in the pouch and the pocket calendar. The trial judge denied the motion, stating that she agreed with the decision made by the motions judge. The State called a chemist, who confirmed that the substances inside the pouch were heroin and marijuana, and a narcotics expert, whose testimony it used to argue that the names and numbers recorded in the pocket calendar were evidence of an intent to distribute on appellant's part. Following his conviction and sentencing, appellant noted a timely appeal.
officers had "no reason whatsoever" to "accost" appellant or to pursue him. The judge implicitly rejected Sergeant Logue's testimony that he believed that the black objects that had appeared in appellant's hand were guns, remarking that "there are a lot of black objects which may or may not be guns" and that the officers "were not threatened at all." 2 The motions court suppressed the heroin found inside appellant's pants and the cash as fruits of an illegal seizure of appellant's person by the police. It did not specify when, prior to the search that yielded the suppressed contraband and cash, appellant was seized. With respect to the pouch containing heroin and marijuana, the court stated: "Its jettison property, its abandoned and the police had every right to pick it up, even if none of this occurred."
In reviewing the denial of a motion to suppress, we consider only the record of the suppression hearing. Trusty v. State 308 Md. 658, 670-71, 521 A.2d 749 (1987)(citing Jackson v. State, 52 Md.App. 327, 332 n. 5, 449 A.2d 438, cert. denied, 294 Md. 652 (1982)). 3 We "extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibility of witnesses and to weighing and determining first-level facts." Dedo v. State, 105 Md.App. 438, 446, 660 A.2d 959 (1995),reversed on other grounds, 343 Md. 2, 680 A.2d 464 (1996). When those facts are in dispute, we accept the motions court's factual findings, unless they are clearly erroneous. Jones v. State, 343 Md. 448, 457-58, 682 A.2d 248 (1996). Moreover, we rely only on the facts adduced at the suppression hearing that are "most favorable to the State as the prevailing party." Id. at 458, 682 A.2d 248 (quoting Simpler v. State, 318 Md. 311, 312, 568 A.2d 22 (1990)); see also Matthews v. State, 106 Md.App. 725, 732, 666 A.2d 912 (1995), cert. denied,341 Md. 648, 672 A.2d 623 (1996). Finally, when the question is whether a constitutional right has been violated, we perform our own independent constitutional appraisal by reviewing the law and applying it to the facts of the case. Carroll v. State, 335 Md. 723, 736, 646 A.2d 376 (1994); Riddick v. State, 319 Md. 180, 183, 571 A.2d 1239 (1990).
The Fourth Amendment protects "the right of the people to be secure in their persons, papers, and...
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