Pryor v. State

• Decision Date: 01 September 1997
• Docket Number: No. 1518,1518
• Citation: 122 Md.App. 671,716 A.2d 338
• Parties: Plevon V. PRYOR v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 671

122 Md.App. 671

716 A.2d 338

Plevon V. PRYOR v. STATE of Maryland.

No. 1518, Sept. Term, 1997.

Court of Special Appeals of Maryland.

Aug. 27, 1998.

Brian J. Murphy, Assigned Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for Appellant.

Kathryn Grill Graeff, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for Appellee.

Argued before MURPHY, C.J., HOLLANDER, J., and MARVIN H. SMITH, Judge (retired), Specially Assigned.

MURPHY, Chief Judge.

In the Circuit Court for Baltimore County, Plevon V. Pryor,appellant, was convicted of possession with intent to distribute crack cocaine in excess of fifty grams. The State's evidence was sufficient to establish his guilt of that offense. This appeal calls into question the means by which that evidence was acquired, and requires that we examine an important rule of engagement applicable to the forcible stop of a motorist who commits a minor traffic violation while under police surveillance: the point in time at which continued detention violates the motorist's Fourth Amendment protection against unreasonable searches and seizures. We hold that, unless continued detention can be justified by what occurs during the brief period of time it takes to determine whether the motorist has a valid license and whether the vehicle has been reported stolen, a motorist who is subjected to a "Whren ¹ stop" for a minor traffic violation cannot be detained at the scene of the stop longer than it takes--or reasonably should take--to issue a citation for the traffic violation that the motorist committed.

Factual Background

Sometime in August of 1995, Detective Scott Griffin of the Baltimore County Police Department was told by a confidential informant that appellant was "selling a large quantity of cocaine in the Frederick Road area of Catonsville." The informant provided Detective Griffin with appellant's address as well as the make and model of appellant's automobile, and also said that appellant stored his cocaine in a secret compartment within the dash of that automobile.

Detective Griffin verified that appellant was the registered owner of the vehicle described by the informant, and that appellant leased an apartment in the building identified by the informant. On October 31, 1995, Detective Griffin observed appellant and two other individuals exit appellant's apartment building, enter appellant's vehicle, and leave the area. Detective Griffin pursued in an unmarked vehicle and when he observed appellant driving at the speed of forty miles-per-hour in a posted, twenty-five mile-per-hour zone, he had appellant's vehicle stopped by a uniformed officer in a marked police vehicle. Appellant and his passengers were ordered out of the vehicle and were forced to wait at the scene while a K-9 "drug dog" was summoned. When the dog arrived, it conducted a "perimeter search" of the vehicle and indicated the presence of a controlled dangerous substance within the vehicle. The dog then entered the vehicle and indicated that the substance was somewhere within the dash. A search of that area turned up a hidden compartment in which crack cocaine had been secreted. ²

Procedural History

Appellant filed a timely motion for suppression of evidence. At the suppression hearing, the State, appellant's counsel, and the court agreed that this case was controlled by Munafo v. State, 105 Md.App. 662, 660 A.2d 1068 (1995). The court stated:

This case is very similar to [Munafo v. State ] ... There is no question in the Court's mind that [appellant] was stopped for speeding. Whether or not that was subterfuge, makes no difference. However, when they stopped him for speeding, they had an obligation and a duty to issue him a speeding ticket and send him on his way as was the case in [Munafo ]. The question is whether the continued detention ... was based on reasonable articulable suspicion.

...

The Court finds that although [the informant's tip coupled with Detective Griffin's independent verification] is somewhat thin ... the Court feels it was sufficient at this time to give a reasonable person articulable suspicion that there was a crime being committed at that point.

The motion for suppression was denied and appellant was convicted. When this case was originally before us during our 1997 term, appellant presented the following questions for our review:

I. Did the trial court err in declining to suppress the fruits of the search of [a]ppellant's car as the products of an unreasonable search?

II. Did the trial court err in admitting [a]ppellant's statement because it was not proven to be voluntary?

We answered no to appellant's second question, ³ but concluded that a remand was necessary to determine the period of time between the moment of appellant's initial stop and the moment when the incriminating evidence was seized, ⁴ and gave the following directions to the circuit court:

If the search of appellant's automobile violated his constitutional rights, he is entitled to a judgment of acquittal notwithstanding the fact that his post-arrest statement was voluntary. The statement, as well as items seized from appellant's apartment, constituted derivative evidence of the automobile search. If, on remand, the circuit court concludes that the automobile search was valid, appellant is not entitled to any relief because the jurors received evidence of his post-arrest statement.

On remand, the circuit court proceeded to resolve the issue of "how long the appellant was detained for K-9 to arrive," and announced the following findings and conclusions:

The Court finds it was in the area of twenty, maximum of twenty-five, minutes that it took the K-9 officer to get there. That he, in fact, then let the dog sniff the car and a hit was alerted on the car.

The Court further finds that certainly under the circumstances herein, the arresting officer who had the probable cause called immediately upon the stop of the car, which incidentally was speeding doing over forty miles an hour in a twenty-five mile an hour zone, and promptly called the K-9 unit. The K-9 officer testified that he was the only one available and that he promptly responded.

The Court finds that the stop and the amount of time was more than reasonable in this case given all of the facts that have been testified to in open court. I reject the fact that it was ... it was forty-five minutes or more (as claimed) by the Defendant. I find that both officers' testimony to be credible with regard to the time frame and as such the motion, again, will be denied.

This second appeal followed, in which appellant now presents a single question for our review:

Did the suppression court err in finding that the 20 to 25-minute roadside detention of Appellant while awaiting [sic] for a drug sniffing dog was reasonable under all the circumstances?

We accept the circuit court's non-clearly erroneous finding of fact that appellant and his passengers were detained "in the area of" twenty minutes, and no longer than twenty-five minutes before the K-9 arrived. We are persuaded, however, that the question now before us should be answered "yes." Appellant was detained for an unreasonable period of time pending the arrival of the K-9. That unreasonable detention violated his Fourth Amendment rights.

I.

The Fourth Amendment permits the warrantless search of an automobile when there is probable cause to believe that the automobile contains contraband or evidence of criminal activity. Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925); Malcolm v. State, 314 Md. 221, 226-227, 550 A.2d 670(1988). A search based on probable cause "obviously may continue until the probable cause has dissipated or developed into confirmed facts indicating criminal activity." Graham v. State, 119 Md.App. 444 459, 705 A.2d 82 (1998). In this case, however, the officers did not have probable cause to conduct a warrantless search of appellant's vehicle.

The Fourth Amendment permits the forcible stop of an automobile, the frisk of its occupants, and the inspection of items within their reach, when there is (1) a reasonable articulable suspicion that the occupants are involved in criminal activity, and (2) a reasonable articulable suspicion that one or more of the occupants is armed with a weapon. Derricott v. State, 327 Md. 582, 587, 611 A.2d 592 (1992). In Williams v. State, 19 Md.App. 204, 310 A.2d 593 (1973), when this Court held that the rationale of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) applies to occupants of automobiles, Judge Moylan "noted that an occupant of an automobile is just as subject to a reasonable 'stop' and to a reasonable 'frisk' as is a pedestrian." Id. at 210, 88 S.Ct. 1868. In this case, however, there was no reasonable articulable suspicion to believe that a stop of appellant's vehicle, and/or a frisk of its occupants, was necessary for the officers' safety. "While there undoubtedly is some risk to the police in every confrontation, Terry has never been thought to authorize a protective frisk on the occasion of every authorized stop." Simpler v. State, 318 Md. 311, 321, 568 A.2d 22 (1990).

It is well settled, however, that the forcible stop of a motorist may be based on reasonable articulable suspicion that is insufficient to establish probable cause. ⁵ Goode v. State, 41 Md.App. 623, 629-630, 398 A.2d 801 (1979). Under Whren, the law enforcement officer who observes a traffic violation may stop the violator, even though the officer does so out of curiosity as to whether (or in the hope that) the stop will lead to the discovery of other incriminating evidence. Whren supra, 517 U.S. 806, 116 S.Ct. at 1774; Whitehead v. State, 116 Md.App. 497, 500-501, 698 A.2d 1115 (1997). The forcible stop of appellant's vehicle was justified for two reasons: (1) there was reasonable...