Scott v. State
| Citation | 247 Md.App. 114,233 A.3d 242 |
| Decision Date | 29 July 2020 |
| Docket Number | No. 3351, Sept. Term, 2018,3351, Sept. Term, 2018 |
| Parties | William SCOTT v. STATE of Maryland |
| Court | Court of Special Appeals of Maryland |
Argued by Gary R. Dyal (Wilmer, Cutler, Pickering, Hale & Dorr LLP of Washington, D.C. and Paul B. DeWolfe, Public Defender of Baltimore, MD), all on the brief, for Appellant.
Argued by Todd W. Hesel (Brian E. Frosh, Atty. Gen., on the brief), all of Baltimore, MD, for Appellee.
Fader, C.J., Leahy, Deborah S. Eyler (Senior Judge, Specially Assigned) JJ.
Eyler, Deborah S., J. William Scott, the appellant, was a passenger in a vehicle lawfully stopped for speeding. During the traffic stop, he answered yes and nodded affirmatively to a police officer's request to search his right front pants pocket. After the officer removed some items from that pocket, Scott moved slightly, and the officer saw a handgun in his waistband. The handgun was seized, Scott was arrested, and in a search incident to arrest, an Adderall capsule was found in another pocket.
Scott was indicted for wearing, carrying, and transporting a handgun, possession of Adderall, and other crimes, and moved to suppress the handgun and Adderall from evidence. The court denied the motion, ruling that Scott had consented voluntarily to the search of his pants pocket. Scott took a conditional guilty plea to the handgun and Adderall possession charges and was sentenced by the court.1
On appeal, Scott asks whether the suppression court erred in denying his motion. We answer in the negative and shall affirm the judgments.
The State called four officers with the Montgomery County Police Department's Sixth District Community Action Team ("CAT"): Sergeant Robert Sheehan and Officers William Weill, Marshall Weider, and Timothy Serlo. It also introduced into evidence a DVD containing police body camera videos from several officers and documents, including still photographs from some of those videos.
The search in question took place on July 16, 2018. That afternoon, Sergeant Sheehan was working undercover in the Gaithersburg area. While driving into the parking lot of the Extended Stay Hotel at 205 Professional Drive, a location known for drug activity and prostitution, he recognized a dark green Buick minivan heading toward the exit. He had stopped that same minivan almost a month earlier, on June 21, 2018. At that time, the minivan had had three occupants: John Dicks, the driver and owner; Andre Stevenson, the front seat passenger; and Danielle Kidwell, the backseat passenger.
Evidence generated from the June 21 stop of the minivan had been used to obtain an arrest warrant for Stevenson for heroin trafficking and as of July 16 the police still were looking for him to serve the warrant. Thinking Stevenson might be in the minivan, Sergeant Sheehan followed it south on Frederick Road. He paced it for about half a mile and determined its speed to be 10 miles per hour over the posted speed limit.2 He radioed Officer Weill, who was nearby, and told him to stop the minivan for speeding. Officer Weill was in uniform and driving a marked police cruiser.
At 4:42 p.m., Officer Weill stopped the minivan in the leftmost of three southbound lanes of Frederick Road, near its intersection with Gunners Branch Road, in a heavily populated area. It was rush hour on a Monday and the traffic was steady. The weather was overcast and very hot.3
When Officer Weill approached the driver's side of the minivan, he saw there were three occupants. From the June 21 traffic stop, he recognized the driver as Dicks and the backseat passenger as Kidwell. A male front seat passenger was holding some papers and complaining about a hotel overcharging him. Because the man was looking down, Officer Weill could not tell if he was Andre Stevenson. Officer Weill told Dicks he had been stopped for speeding and asked for his driver's license and registration, both of which Dicks turned over. Officer Weill returned to his cruiser and began processing the traffic violation.
Officers Weider and Serlo, and Officer Ruth Zotti (who did not testify), all in uniform, arrived at the scene close behind Officer Weill. A K-9 unit was called right away. A minute after Officer Weill returned to his cruiser, Officers Weider and Zotti approached the passenger side of the minivan and Officer Weider motioned for the front seat passenger to open his window. He did so, and asked Officer Weider whether he wanted identification. Officer Weider responded yes, and the passenger handed him his identification card, which showed that his name was William Scott and that he was born in 1976. Officer Weider took some notes about the card, returned it to Scott, and gave the notes to Officer Weill in his cruiser. Officer Zotti did likewise as to Kidwell's identification.
Officer Weider walked to the median strip, which is wide and grassy, and stood about two car lengths behind the minivan. Officer Serlo stayed next to the driver's side of the minivan. He could see Scott and noticed that he was "kind of hunched over" and "didn't look like he felt okay." Scott's papers, cell phone, and wallet were in his lap. He stayed hunched over and sitting forward most of the time he was in the minivan. Officer Zotti stood by the passenger's side of the minivan.
The two officers conversed with the three occupants of the minivan. Dicks had turned off the vehicle's air conditioning, and Scott was complaining about the heat. Dicks complained that every time he gave someone a ride, he got stopped and, in a halfjoking tone, told Kidwell he would no longer give her rides. He showed Officer Serlo papers concerning the June 21 stop, then began scrolling through his cell phone. Apparently, he opened a real estate website because Officer Serlo, who could see the phone from where he was standing, asked whether he was looking to buy a house. Dicks said yes and showed Officer Serlo photographs of houses. Dicks and Officer Serlo exchanged comments about various houses, including about how expensive some of them were.
On the other side of the minivan, Officer Zotti chatted with Kidwell, who was scratching off lottery tickets. Kidwell asked whether the sliding door could be opened because of the heat and Officer Zotti said that would be fine. Kidwell and Officer Zotti talked about a tattoo Kidwell had designed and applied to her knee. At one point, Scott resumed complaining about his hotel bill and Officer Zotti asked him what was wrong with it. He replied that his credit card had been charged for two nights instead of one.
In the meantime, Sergeant Sheehan had parked his unmarked vehicle in a lot across the street to watch the traffic stop. He got out of his vehicle, put on his police vest, and waited near the minivan, by the median strip.
The K-9 unit arrived at 4:54 p.m., twelve minutes after the traffic stop began.4 Police policy required the vehicle's occupants to exit so they would not be bitten by the canine, and for them to be far enough away from the vehicle so their presence wouldn't interfere with the scan. Remarking that they had done this before, evidently a reference to the June 21 traffic stop, Officer Serlo told Dicks to get out.5 When asked whether he was carrying knives, Dicks answered "yes" and showed Officer Serlo knives he had in two side pants pockets. Officer Serlo took them, handed them to Sergeant Sheehan, and performed a brief pat down of Dicks's waist area, near the side pants pockets. After telling Dicks he was doing so, Sergeant Sheehan put the knives in the minivan.6
Sergeant Sheehan then approached the passenger's side of the minivan and told Scott to get out.7 As Scott stood up, holding his papers, Sergeant Sheehan said, "Watch your stuff," referring to the cell phone and wallet. Scott either didn't hear or wasn't focusing and his wallet and cell phone fell off his lap to the ground. According to Sergeant Sheehan, Scott took "a little longer" than would be expected to pick these items up. As Scott began walking toward the median strip, hunched over, Sergeant Sheehan asked him whether something was wrong. Scott didn't answer, so Sergeant Sheehan asked Kidwell, still in the minivan, whether Scott was drunk. She replied no, that he had "sickle cell."8 At no time during the traffic stop did Scott himself mention having sickle cell disease
or any illness.
As soon as Scott reached the median strip, he began to sit down on the curb next to the minivan. Officer Serlo saw him and said, "No, get up" because Scott would be too close to the canine scan. He told Scott to go beyond the rear of the minivan, to an area on the median strip behind Officer Weill's cruiser and in front of the cruiser behind it. As Scott stood up to move he stumbled. Officer Serlo took hold of the back of his shirt and guided him to "prevent[ ] him from falling on the ground." Once Scott reached the right location, Officer Serlo told him he could sit on the curb if he wanted to, as it was cooler there, away from the heat of the car engines. Scott sat down on the curb of the median strip facing the road.
Officer Serlo remained in the area, standing on the shoulder of the road, between Scott and Dicks. Officer Weider already was standing on the median strip near Scott and to his right. Scott was wearing a black tee shirt and low-slung jeans shorts with large front pockets. Because his tee shirt was not tucked in and he was hunching over, the waistband of his shorts was not visible. As Scott was sitting on the curb of the median strip, Officer Weider noticed a bulge around his right front pants pocket but could not tell whether it was from something in that pocket or his waistband. At the same time, Scott began "kind of grabbing in that front pocket area" and "manipulating the front pocket area." (Officer Serlo demonstrated for the court what he saw Scott doing and it is visible on his body camera video.) From experience, Officer Weider took this as an indication that Scott might be carrying a weapon....
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