Ray v. State

Decision Date02 July 2012
Docket NumberSept. Term, 2011.,No. 1444,1444
Citation206 Md.App. 309,47 A.3d 1113
PartiesBashawn Montgomery RAY v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

OPINION TEXT STARTS HERE

Nancy S. Forster, Towson, MD, for Appellant.

Todd W. Hesel (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: WATTS, BERGER, JAMES R. EYLER, (Retired, Specially Assigned) JJ.

WATTS, J.

On April 18, 2011, based on a not guilty agreed statement of facts, the Circuit Court for Montgomery County convicted Bashawn Montgomery Ray, appellant, of conspiracy to commit theft of property with a value of at least $1,000 and making a false statement when under arrest.1See Md.Code. Ann., Crim. Law Art. (C.L.) § 7–104 (theft of property with a value of at least $1,000),2C.L. § 9–502 (making a false statement when under arrest). On August 11, 2011, the circuit court sentenced appellant to ten years' imprisonment concurrent with pre-existing sentences, with all but four years suspended, for conspiracy to commit theft; six months' imprisonment concurrent for making a false statement when under arrest; and four years' supervised probation. Appellant noted an appeal raising two issues, which we rephrase: 3

I. A Did the circuit court err in finding that Sergeant Mark White had reasonable articulable suspicion to initiate a traffic stop of the vehicle in which appellant was a passenger?

B. Did the circuit court err in finding that law enforcement officers had probable cause to arrest appellant?

II. Did the circuit court err in determining that appellant knowingly waived the right to a jury trial, or in failing to announce its determination on the record pursuant to Maryland Rule 4–246(b)?

We answer both questions in the negative, and therefore, affirm the judgments of conviction.

FACTUAL AND PROCEDURAL BACKGROUND
Motion to Suppress

On January 31, 2011, appellant filed with the circuit court a Supplement to Omnibus Motion to Suppress Evidence, in which appellant moved “to suppress all evidence obtained as a result of an illegal traffic stop and illegal detention and search on or about October 5, 2010[.] The motion stated, in pertinent part:

[T]he Police Officers had no reasonable articulable suspicion that a traffic violation had occurred and therefore no legal basis to stop the vehicle. Whren v. [ United States ], 517 U.S. 806 [116 S.Ct. 1769, 135 L.Ed.2d 89] (1996), Rowe v. State, 363 Md. 424 (2001).

[Appellant] has standing to challenge the illegal stop of the vehicle. Brendlin v. California, 551 U.S. 2[4]9 [127 S.Ct. 2400, 168 L.Ed.2d 132] (2007).

[A]fter the vehicle was stopped, the Officer determined that the vehicle's driver had a suspended license. The driver was taken to the officer's vehicle where he was issued traffic citations. After the citations were written, the passengers in the vehicle were illegally detained. Ferris v. State, 355 Md. 356 (1999).

[ ] The detention of the passengers was [a] “second stop.” The Officers had no independent reasonable articulable suspicion of criminal activity to detain the passengers after making the decision to issue the driver traffic citations. Charity v. State, 132 Md.App. [598, 753 A.2d 556,cert. denied,360 Md. 487, 759 A.2d 231] (2000).

Suppression Hearing as to the Initial Traffic Stop

On February 1, 2011, the circuit court held a hearing on the motion to suppress. As a witness for the State, Sergeant Mark White testified that on October 5, 2010, he was driving a marked police vehicle north on Interstate 270 in Montgomery County. Sergeant White testified that he passed a black Ford Expedition that, he noticed in his rearview mirror, had headlamps that “were emitting a blue color which caught [his] attention[.] Sergeant White testified that “the blue tint could've very well been halogen lights. There was no way for [him] to determine that unless [he] got up in front of the” headlamps. Sergeant White testified that he was aware of a statute that mandated white headlamps.4 Sergeant White testified that he initiated a traffic stop, and after checking the Expedition's license plate number through the Motor Vehicle Administration and the National Crime Information Center, learned that the Expedition's owner, Antoine Norris, had a suspended driver's license due to a child support violation.

Sergeant White was the only witness for the State at this stage of the motion hearing. After Sergeant White testified, the circuit court heard argument and ruled from the bench, in pertinent part, as follows:

The standard is whether an officer, a reasonable police officer in the situation that the officer is in, can articulate reasonable, articulable suspicion and develop probable cause for a traffic stop. And it doesn't have to make sense to the Court, it doesn't have to make sense to counsel, but in the officer's situation, he sees a car going down the road, it's got blue lights. The law says you can't have blue lights; it says you have to have white lights.

And then he gets up close and he says—I think it's a reasonable inference from his testimony even though he wasn't, there was no attempt to nail him down on this. I learned something about it. I didn't realize that halogen lights have a bluish tint; I didn't know that. But apparentlythe officer knows that the halogen lights may have a bluish tint and he say[s], upon close [r] examination, I mean they couldn't have been halogen lights. I think a reasonable inference is, obviously, halogen lights are not illegal so far as I know. But how could you know that without closer examination?

* * *

And so for reasons that I hope I have articulated clearly, I don't find that there was a lack of probable cause for making the traffic stop, so the motion to suppress for that reason would necessarily be denied.

Suppression Hearing as to the Search

After the circuit court ruled as to the initial traffic stop, Sergeant White testified that he approached the Expedition to speak with Norris, the Expedition's owner, who was sitting in the driver's seat. According to Sergeant White, Norris gave him an expired learner's permit. Sergeant White testified that he asked Norris to exit the Expedition. According to Sergeant White, Norris complied and sat in his marked police vehicle while the two of them had a conversation. Sergeant White testified that he wrote three citations for Norris—two for driving with a suspended license, and one for driving with an obstructed windshield. Sergeant White testified that he intended to search the Expedition because of Norris's suspended license, and that he intended not to let Norris continue driving.

During Sergeant White's conversation with Norris in the marked police vehicle, three other law enforcement officers arrived. Sergeant White testified that one of the other law enforcement officers, OfficerRobert Sheehan, asked the passengers in the Expedition to exit the vehicle.

As a witness for the State, Officer Sheehan testified that in October 2010, he learned via radio that Sergeant White was initiating a traffic stop. Officer Sheehan testified that he pulled up behind Sergeant White's marked police vehicle before he walked up to the driver's window of the black SUV, whose driver's seat was empty. Officer Sheehan testified that he started a conversation with the vehicle's passengers and asked where the passengers were coming from and where they were going. According to Officer Sheehan, after every question that he asked, the passengers would “all look at each other and then one of them would respond with an answer. (Emphasis added). Officer Sheehan testified that he “was having some difficulty hearing them because of the way traffic was going by.” Officer Sheehan testified that, because of his difficulty hearing and the passengers' behavior, he asked them to exit the vehicle.

According to Officer Sheehan, the two passengers in the backseat. 5 “immediately” exited the vehicle, but the female passenger in the front seat—whom the not guilty agreed statement of facts identified as Mashea Ray (“Mashea”)“started moving around and reaching for stuff, which [made Officer Sheehan] very nervous.” Officer Sheehan testified that he “didn't know if she was trying to access a weapon of some sort. So [he] asked her once again to get out of the vehicle. She didn't get out of the vehicle.” Officer Sheehan testified that he walked around to the vehicle's passenger side and once again asked Mashea exit the vehicle. According to Officer Sheehan, Mashea said that it was “cold out; [she] need[ed] to grab [her] jacket.” Officer Sheehan testified that Mashea “grabbed her jacket from the floor that was directly behind her seat before starting to exit the vehicle. (Emphasis added).

Officer Sheehan testified that he asked Mashea “if there were any weapons in her jacket[,] and that Mashea replied “no.” Officer Sheehan asked Mashea if he could search the jacket to make sure, and Mashea replied “yes.” Officer Sheehan found a “large wallet,” which he removed from the jacket. Officer Sheehan asked Mashea if it was her wallet, and she replied “yes.” Officer Sheehan asked if Mashea's identification was in the wallet, and she replied “no.” Officer Sheehan asked if he could search the wallet to make sure, and Mashea “said something to the effect of yeah, it[ was] not in there.” Officer Sheehan testified that, he “saw a whole stack of credit cards inside the wallet that to [him] appeared to be fake credit cards. [He] starting pulling them out and one by one[, and he would] say the name on the credit card and [ ] ask [Mashea], who's this person?” According to Officer Sheehan, every time that he showed a credit card to Mashea, she said she didn't know” who the person was whose name was on the credit card.

After Officer Sheehan testified, the prosecutor argued, in pertinent part, as follows:

[W]e concede that the officers did not have-because the decision had been made to issue the citations, under Knowles v. Iowa, the officers could not do a search incident to...

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